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==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
AMENDMENT NO. 1
---------------------------
(Mark one)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED EFFECTIVE OCTOBER 7, 1996)
For the fiscal year ended January 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
Commission file number 0-14625
TECH DATA CORPORATION
(Exact name of registrant as specified in its charter)
-------------------------------------------
Florida No. 59-1578329
(State or other jurisdiction (I.R.S. Employer Identification Number)
Of incorporation or organization)
5350 Tech Data Drive, Clearwater, FL 34620
(Address of principal executive offices (Zip Code)
---------------------------------------------
Registrant's telephone number including area code: (813) 539-7429
Securities registered pursuant to Section 12(g) of the Act:
Common stock, par value $.0015 per share.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of regulation S-K is not contained herein, and will not be contained to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference to Part III of this Form 10-K or any
amendment to this Form 10-K.
Aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 31, 1997: $938,276,000
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at March 31, 1997
Common stock, par value $.0015 per share 43,335,078
DOCUMENTS INCORPORATED BY REFERENCE
The registrant's Proxy Statement for use at the Annual Meeting of
Shareholders on June 10, 1997 is incorporated by reference in Part III of this
Form 10-K to the extent stated herein.
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<PAGE>
PART III
PART IV
ITEM 14. Exhibits, Financial Statement Schedule, and Reports on Form 8-K
(c) the exhibit numbers on the following list correspond to the numbers
in the exhibit table required pursuant to Item 601 of Regulation S-K.
3-A(1) -- Articles of Incorporation of the Company as amended to April 23,
1986.
3-B(2) -- Articles of Amendment to Articles of Incorporation of the Company
filed on August 27, 1987.
3-C(13) -- By-Laws of the Company as amended to November 28, 1995.
<PAGE>
3-F(9) -- Articles of Amendment to Articles of Incorporation of the Company
filed on July 15, 1993.
10-F(4) -- Incentive Stock Option Plan, as amended, and form of option
agreement.
10-G(10) -- Employee Stock Ownership Plan as amended December 16, 1994.
10-V(5) -- Employment Agreement between the Company and Edward C. Raymund
dated as of January 31, 1991.
10-W(5) -- Irrevocable Proxy and Escrow Agreement dated April 5, 1991.
10-X(6) -- First Amendment to the Employment Agreement between the Company
and Edward C. Raymund dated November 13, 1992.
10-Y(6) -- First Amendment in the nature of a Complete Substitution to the
Irrevocable Proxy and Escrow Agreement dated November 13, 1992.
10-Z(7) -- 1990 Incentive and Non-Statutory Stock Option Plan.
10-AA(7) -- Non-Statutory Stock Option Grant Form.
10-BB(7) -- Incentive Stock Option Grant Form.
10-CC(8) -- Employment Agreement between the Company and Steven A. Raymund
dated February 1, 1992.
10-EE(10)-- Retirement Savings Plan as amended January 26, 1994.
10-FF(9) -- Revolving Credit and Reimbursement Agreement dated December 22,
1993.
10-GG(9) -- Transfer and Administration Agreement dated December 22, 1993.
10-HH(10)-- Amendments (Nos. 1-4) to the Transfer and Administration
Agreement.
10-II(10)-- Amended and Restated Revolving Credit and Reimbursement
Agreement dated July 28, 1994, as amended.
10-JJ(10)-- Revolving Foreign Currency Agreement dated August 4, 1994, as
amended.
10-KK(13)-- Amendments (Nos. 5,6) to the Transfer and Administration
Agreement
10-LL(13)-- Amendments (Nos. 3-5) to the Amended and Restated Revolving
Credit and Reimbursement Agreement dated July 28, 1994, as amended.
10-MM(13)-- Amendments (Nos. 3-5) to the Revolving Foreign Currency
Agreement dated August 4, 1994, as amended.
10-NN(12)-- Non-Employee Directors' 1995 Non-Statutory Stock Option Plan.
10-OO(12)-- 1995 Employee Stock Purchase Plan.
10-PP(12)-- Employment Agreement between the Company and A. Timothy Godwin
dated as of December 5, 1995.
10-QQ(3) -- Amended and Restated Transfer and Administration Agreement
dated January 21, 1997.
10-RR(3) -- Amendment Number 1 to the Amended and Restated Transfer and
Administration Agreement dated March 3, 1997
10-SS(3) -- Revolving Credit and Reimbursement Agreement dated May 23, 1996.
21(3) -- Subsidiaries of Registrant.
99-A(11) -- Cautionary Statement For Purposes of the "Safe Harbor"
Provisions of the Private Securities Litigation Reform Act of 1995.
- -------------
(1) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-4135.
(2) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-21997.
(3) Filed herewith.
(4) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-8, File No. 33-21879.
(5) Incorporated by reference to the Exhibits included in the Company's
Form 10-Q for the quarter ended July 31, 1991, File No. 0-14625.
(6) Incorporated by reference to the Exhibits included in the Company's
Form 10-Q for the quarter ended October 31, 1992, File No. 0-14625.
(7) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-8, File No. 33-41074.
<PAGE>
(8) Incorporated by reference to the Exhibits included in the Company's
Form 10-K for the year ended January 31, 1993, File No. 0-14625.
(9) Incorporated by reference to the Exhibits included in the Company's
Form 10-K for the year ended January 31, 1994, File No. 0-14625.
(10) Incorporated by reference to the Exhibits included in the Company's
Form 10-K for the year ended January 31, 1995, File No. 0-14625.
(11) Incorporated by reference to the Exhibits included in the Company's
Form 8-K filed on March 26, 1996, File No. 0-14625.
(12) Incorporated by reference to the Exhibits included in the Company's
Definitive Proxy Statement for the 1995 Annual Meeting of Shareholders, File No.
0-14625.
(13) Incorporated by reference to the Exhibits included in the Company's
Form 10-K for the year ended January 31, 1996, File No. 0-14625.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on the 29th day of
April 1997.
TECH DATA CORPORATION
By /s/ STEVEN A. RAYMUND
---------------------
Steven A. Raymund
Chairman of the Board of Directors;
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this Report on Form 10-K/A appears below
hereby appoints Jeffery P. Howells and Arthur W. Singleton, or either of them,
as his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file any and all amendments and post-effective amendments to
this Report on Form 10-K/A, and any and all instruments or documents filed as a
part of or in connection with this Report on Form 10-K/A or such amendments
thereto, and the attorney-in-fact, or either of them, may make such changes and
additions to this Report on Form 10-K/A as the attorney-in-fact, or either of
them, may deem necessary or appropriate.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ STEVEN A. RAYMUND Chairman of the Board of Directors; April 29, 1997
- --------------------------- Chief Executive Officer
Steven A. Raymund
/s/ JEFFERY P. HOWELLS Executive Vice President of Finance; April 29, 1997
- --------------------------- Chief Financial Officer;
Jeffery P. Howells (principal financial officer)
/s/ JOSEPH B. TREPANI Vice President and Worldwide Controller; April 29, 1997
- --------------------------- (principal accounting officer)
Joseph B. Trepani
/s/ CHARLES E. ADAIR Director April 29, 1997
- ---------------------------
Charles E. Adair
/s/ DANIEL M. DOYLE Director April 29, 1997
- ---------------------------
Daniel M. Doyle
/s/ DONALD F. DUNN Director April 29, 1997
- ---------------------------
Donald F. Dunn
/s/ LEWIS J. DUNN Director April 29, 1997
- ---------------------------
Lewis J. Dunn
/s/ EDWARD C. RAYMUND Director; Chairman Emeritus April 29, 1997
- ---------------------------
Edward C. Raymund
/s/ JOHN Y. WILLIAMS Director April 29, 1997
- ---------------------------
John Y. Williams
</TABLE>
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AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
among
ENTERPRISE FUNDING CORPORATION,
as Company
TECH DATA FINANCE, INC.
as Transferor
and
TECH DATA CORPORATION,
as Collection Agent and Guarantor
and
NATIONSBANK, N.A.,
as Agent and a Bank Investor
Dated as of January 21, 1997
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0104420.05-01S7a
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms......................................... 1
SECTION 1.2. Other Terms................................................... 29
SECTION 1.3. Computation of Time Periods................................... 29
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. Facility...................................................... 30
SECTION 2.2. Transfers; Certificates;
Eligible Receivables............................. 30
SECTION 2.3. Selection of Tranche Periods and
Tranche Rates.................................... 35
SECTION 2.4. Discount, Fees and Other Costs and
Expenses......................................... 39
SECTION 2.5. Non-Liquidation Settlement and
Reinvestment Procedures.......................... 39
SECTION 2.6. Liquidation Settlement Procedures............................. 40
SECTION 2.7. Fees.......................................................... 42
SECTION 2.8. Protection of Ownership Interest of the
Company and the Bank Investors................... 42
SECTION 2.9. Deemed Collections; Application of
Payments......................................... 44
SECTION 2.10. Payments and Computations, Etc................................ 45
SECTION 2.11. Reports....................................................... 46
SECTION 2.12. Collection Account............................................ 46
SECTION 2.13. Sharing of Payments, Etc...................................... 46
SECTION 2.14. Rights of Set-off............................................. 47
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the
Transferor....................................... 48
SECTION 3.2. Reaffirmation of Representations and
Warranties by the Transferor..................... 52
0104420.05-01S7a
i
<PAGE>
SECTION 3.3. Representations and Warranties of Tech
Data, as Collection Agent and
Guarantor........................................ 52
SECTION 3.4 Reaffirmation of Representations
and Warranties by Tech Data, as
Collection Agent and Guarantor................... 55
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing......................................... 56
SECTION 4.2. Post Closing Conditions....................................... 59
ARTICLE V
COVENANTS
SECTION 5.1. Affirmative Covenants of Transferor........................... 60
SECTION 5.2. Negative Covenants of Transferor.............................. 63
SECTION 5.3. Affirmative Covenants of Tech Data............................ 65
SECTION 5.4. Negative Covenants of Tech Data............................... 68
SECTION 5.5. Financial Covenants........................................... 70
ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. Appointment of Collection Agent............................... 71
SECTION 6.2. Duties of Collection Agent.................................... 71
SECTION 6.3. Rights After Designation of New
Collection Agent................................. 74
SECTION 6.4. Responsibilities of the Transferor
and Tech Data.................................... 75
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. Termination Events............................................ 76
SECTION 7.2. Termination................................................... 78
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor................................. 80
0104420.05-01S7a
ii
<PAGE>
SECTION 8.2. Indemnity for Taxes, Reserves and
Expenses......................................... 82
SECTION 8.3. Other Costs, Expenses and Related
Matters.......................................... 84
SECTION 8.4. Reconveyance Under Certain
Circumstances.................................... 85
ARTICLE IX
GUARANTEE
SECTION 9.1. Guaranty of Obligations....................................... 87
SECTION 9.2. Validity of Obligations;
Irrevocability................................... 87
SECTION 9.3. Rights of Set-Off............................................. 88
ARTICLE X
THE AGENT; BANK COMMITMENT
SECTION 10.1. Authorization and Action..................................... 89
SECTION 10.2. Agent's Reliance, Etc........................................ 91
SECTION 10.3. Credit Decision.............................................. 91
SECTION 10.4. Indemnification of the Agent..................................92
SECTION 10.5. Successor Agent.............................................. 92
SECTION 10.6. Payments by the Agent........................................ 93
SECTION 10.7. Bank Commitment; Assignment to
Bank Investors.................................. 94
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Term of Agreement............................................ 99
SECTION 11.2. Waivers; Amendments.......................................... 99
SECTION 11.3. Notices ..................................................... 99
SECTION 11.4. Governing Law; Submission to
Jurisdiction; Integration......................101
SECTION 11.5. Severability; Counterparts...................................102
SECTION 11.6. Successors and Assigns.......................................102
SECTION 11.7. Waiver of Confidentiality....................................103
SECTION 11.8. Confidentiality Agreement....................................103
SECTION 11.9. No Bankruptcy Petition Against the
Company........................................103
SECTION 11.10. No Recourse Against Stockholders,
Officers or Directors..........................103
SECTION 11.11. Characterization of the Transactions
0104420.05-01S7a
iii
<PAGE>
Contemplated by the Agreement..................104
SECTION 11.12. Optional Reconveyance of All
Receivables....................................104
SECTION 11.13. Mandatory Reconveyance of Certain
Receivables....................................105
<PAGE>
AMENDED AND RESTATED
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION AGREEMENT
(this "Agreement"), dated as of January 21, 1997 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 Califor- nia corporation, as transferor (in such capacity, the
"Transferor"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company"), and NATIONSBANK, N.A., a national banking association
("NationsBank"), as agent for the Company and the Bank Investors (in such
capacity, the "Agent") and as a Bank Investor, amending and restating that
certain Transfer and Administration Agreement among Tech Data, as collection
agent and guarantor, the Transferor and Company dated as of December 23, 1993,
and as amended to the date hereof.
PRELIMINARY STATEMENTS
WHEREAS, the Transferor may desire to convey, transfer and
assign, from time to time, undivided percentage interests in certain accounts
receivable, and the Company may desire to, and the Bank Investors, if requested
shall, accept such conveyance, transfer and assignment of such undivided
percentage interests, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms. As used
in this Agreement, the following terms shall have the
following meanings:
0104420.05-01S7a
<PAGE>
"Administrative Agent" means NationsBank, N.A.,
as administrative agent.
"Adverse Claim" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person (including any UCC financing statement
or any similar instrument filed against such Person's assets or properties).
"Affected Assets" means, collectively, the
Receivables and the Related Security, Collections and Proceeds relating thereto.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting stock, by contract or
otherwise.
"Affiliated Obligor" means any Obligor which is
an Affiliate of another Obligor.
"Agent" means NationsBank, N.A., in its capacity as agent for
the Company and the Bank Investors, and any successor thereto appointed pursuant
to Article X.
"Aggregate Unpaids" means, at any time, an amount equal to the
sum of (i) the aggregate accrued and unpaid Discount with respect to all Tranche
Periods at such time, (ii) the Net Investment at such time, and (iii) all other
amounts owed (whether due or accrued) hereunder by Transferor to the Company at
such time.
0104420.05-01S7a
2
<PAGE>
"Applicable Margin" means the percent per annum set forth
below in the case of a Eurodollar Tranche or a CD Tranche, which percent shall
be the Applicable Margin effective with Tranche Periods commencing after the
first day next following the delivery by the Transferor of the quarterly
certificate referred to in Section 5.3(a)(iii) hereof demonstrating that (i) the
ratio of Consolidated Total Funded Indebtedness to Consolidated Total Capital
(each as defined in Exhibit N attached hereto) is less than or equal to or more
than, as the case may be, or (ii) the ratio of Consolidated EBIT to Consolidated
Interest Expense (each as defined in Exhibit N attached hereto) is greater than
or equal to or less than, as the case may be, the applicable ratio set forth
opposite such Applicable Margin (provided that if such determination shall
result in more than one Applicable Margin, the lower Applicable Margin shall
apply):
=======================================================================
|Ratio of | OR | Ratio of | Eurodol- | CD |
|EBIT to | -- | Debt to | lar | Tranche |
|Interest | | Capital | Tranche | Applica- |
| | | | | ble Mar- |
| | | | | gin |
| | | | | |
|-----------|---------|---------------|--------------|----------------|
|Less than | | Less than | .550% | .675% |
|3.0 to | | .60 to | | |
|1.00 | | 1.00 but | | |
| | | equal to | | |
| | | or great- | | |
| | | er than | | |
| | | .55 to | | |
| | | 1.00 | | |
|-----------|---------|---------------|--------------|----------------|
|Greater | | Less than | .450% | .575% |
|than or | | .55 to | | |
|equal to | | 1.00 but | | |
|3.0 to | | equal to | | |
|1.00 but | | or great- | | |
|less than | | er than | | |
|4.0 to | | .50 to | | |
|1.00 | | 1.00 | | |
|---------------------------------------------------------------------|
0104420.05-01S7a
3
<PAGE>
|-----------|---------|---------------|--------------|----------------|
|Greater | | Less than | .400% | .525% |
|than or | | .50 to | | |
|equal to | | 1.00 but | | |
|4.0 but | | equal to | | |
|less than | | or great- | | |
|5.0 to | | er than | | |
|1.0 | | .45 to | | |
| | | 1.00 | | |
|-----------|---------|---------------|--------------|----------------|
|Greater | | Less than | .375% | .500% |
|than or | | .45 to | | |
|equal to | | 1.00 | | |
|5.0 to | | | | |
|1.00 | | | | |
| | | | | |
| | | | | |
| | | | | |
=======================================================================
Notwithstanding the foregoing, if Tech Data fails to deliver any such quarterly
certificate when required pursuant to Section 5.3(a)(iii) hereof, then the
Applicable Margin for any Eurodollar Tranche or CD Tranche shall be the highest
Applicable Margin for such type of Tranche set forth above until such quarterly
certificate is so delivered. From the Closing Date to the first date such
quarterly certificate is required to be delivered, the Applicable Margin shall
be .525% for CD Tranches and .40% for Eurodollar Tranches.
"Assignment Amount" with respect to a Bank Investor shall mean
at any time an amount equal to the lesser of (i) such Bank Investor's Pro Rata
Share of the Net Investment at such time and (ii) such Bank Investor's unused
Commitment.
"Assignment and Assumption Agreement" means an
Assignment and Assumption Agreement substantially in the
form of Exhibit G attached hereto.
"Average Collection Period" means at any time a period of days
equal to the product of (i) a fraction the numerator of which shall be the
amount set forth in the most recent Investor Report as the "Beginning Balance"
of the Receivables and the denominator of which shall be the Collections as set
forth in the most recent Investor Report and (ii) thirty (30).
"Bank Investors" shall mean NationsBank, N.A.
and its successors and assigns.
0104420.05-01S7a
4
<PAGE>
"Base Rate" or "BR" means, a rate per annum equal to the
greater of (i) the prime rate of interest announced by the Liquidity Provider
(or, if more than one Liquidity Provider, then by NationsBank) from time to
time, changing when and as said prime rate changes (such rate not necessarily
being the lowest or best rate charged by the Liquidity Provider (or NationsBank,
as applicable)) and (ii) sum of (a) 1.50% and (b) the rate equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
for such transactions received by the Liquidity Provider (or, if more than one
Liquidity Provider, then by NationsBank) from three Federal funds brokers of
recognized standing selected by it.
"Benefit Plan" means any employee benefit plan as defined in
Section 3(3) of ERISA in respect of which the Transferor or any ERISA Affiliate
of the Transferor, is or at any time during the immediately preceding six years
was, an "employer" as defined in Section 3(5) of ERISA.
"Business Day" means any day excluding Satur- day, Sunday and
any day on which banks in New York, New York, Charlotte, North Carolina,
Ontario, California or Clearwater, Florida are authorized or required by law to
close, and, when used with respect to the determination of any Eurodollar Rate
or any notice with respect thereto, any such day which is also a day for trading
by and between banks in United States dollar deposits in the London interbank
market.
"BR Tranche" means a Tranche as to which Discount is
calculated at the Base Rate.
"BR Tranche Period" means, with respect to a BR Tranche,
either (i) prior to the Termination Date, a period of up to 30 days requested by
the Transferor and agreed to by the Company, NationsBank on behalf of the
Liquidity Provider, or the Agent, as the case may be, commencing on a Business
Day requested by the Transferor
0104420.05-01S7a
5
<PAGE>
and agreed to by the Company, NationsBank or the Agent, as the case may be, or
(ii) after the Termination Date, a period of one day. If such BR Tranche Period
would end on a day which is not a Business Day, such BR Tranche Period shall end
on the next succeeding Business Day.
"Capitalized Lease" of a Person means any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with generally accepted accounting principles.
"CD Rate" shall mean, with respect to any CD Tranche Period, a
rate which is the Applicable Margin in excess of a rate per annum equal to the
sum (rounded upward to the nearest 1/100 of 1%) of (A) the rate obtained by
dividing (x) the Certificate of Deposit Rate for such CD Tranche Period by (y) a
percentage equal to 100% minus the stated maximum rate for all reserve
requirements as specified in Regulation D (including without limitation any
marginal, emergency, supplemental, special or other reserves) that would be
applicable during such Tranche Period to a negotiable certificate of deposit in
excess of $100,000, with a maturity approximately equal to such Tranche Period,
of any member bank of the Federal Reserve System plus (B) the then daily net
annual assessment rate (rounded upward, if necessary, to the nearest 1/100 of
1%) as estimated by the Agent for determining the current annual assessment
payable by the Agent to the Federal Deposit Insurance Corporation for insuring
such certificates of deposit.
"CD Tranche" means a Tranche as to which Discount is
calculated at the CD Rate.
"CD Tranche Period" means, with respect to a CD Tranche,
either (i) prior to the Termination Date, a period of up to one month requested
by the Transferor and agreed to by the Company, NationsBank on behalf of the
Liquidity Provider, or the Agent, as the case may be, commencing on a Business
Day requested by the Transferor and agreed to by the Company, NationsBank or the
Agent, as the case may be, or (ii) after the Termination Date, a period of one
day. If such CD Tranche Period would end on a day which is not a Business Day,
such CD Tranche Period shall end on the next succeeding Business Day.
0104420.05-01S7a
6
<PAGE>
"Certificate" means the certificate issued to
the Agent for the benefit of the Company and the Bank
Investors pursuant to Section 2.2(d) hereof.
"Certificate of Deposit Rate" means, with respect to any CD
Tranche Period, the average of the bid rates determined by the Agent to be bid
rates per annum, at approximately 10:00 a.m. (New York City time) on the
Business Day before the first day of the CD Tranche Period for which such CD
Rate is to be applicable, of two or more New York certificate of deposit dealers
of recognized standing selected by the Agent for the purchase in New York from
the Agent at face value of certificates of deposit of the Agent in an aggregate
amount approximately comparable to the amount of the CD Tranche to which such CD
Rate is to be applicable and with a maturity approximately equal to the
applicable CD Tranche Period.
"Closing Date" means January 21, 1997
"Collateral Agent" means NationsBank N.A., as collateral agent
for any Liquidity Provider, any Credit Support Provider, the holders of
Commercial Paper and certain other parties.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including, without
limitation, all Finance Charges, if any, and cash proceeds of Related Security
with respect to such Receivable and any Deemed Collections of such Receivable.
"Collection Account" means the account, established by the
Agent, for the benefit of the Company and the Bank Investors, pursuant to
Section 2.12.
"Collection Agent" means at any time the Person then
authorized pursuant to Section 6.1 to service, administer and collect
Receivables.
"Collection Agent Account" means the account, established by
the Collection Agent, for the benefit of the Company and the Bank Investors,
pursuant to Section 2.8(b).
"Collection Delay" means 30 days.
0104420.05-01S7a
7
<PAGE>
"Commercial Paper" means the promissory notes of the Company
issued by the Company in the commercial paper market.
"Commitment" means (i) with respect to each Bank Investor
party hereto, the commitment of such Bank Investor to make acquisitions from the
Transferor or the Company in accordance herewith in an amount not to exceed the
dollar amount set forth opposite such Bank Investor's signature on the signature
page hereto under the heading "Commitment", minus the dollar amount of any
Commitment or portion thereof assigned pursuant to an Assignment and Assumption
Agreement plus the dollar amount of any increase to such Bank Investor's
Commitment consented to by such Bank Investor prior to the time of
determination, (ii) with respect to any assignee of a Bank Investor party hereto
taking pursuant to an Assignment and Assumption Agreement, the commitment of
such assignee to make acquisitions from the Transferor or the Company not to
exceed the amount set forth in such Assignment and Assumption Agreement minus
the dollar amount of any Commitment or portion thereof assigned pursuant to an
Assignment and Assumption Agreement prior to such time of determination and
(iii) with respect to any assignee of an assignee referred to in clause (ii),
the commitment of such assignee to make acquisitions from the Transferor or the
Company not to exceed the amount set forth in an Assignment and Assumption
Agreement between such assignee and its assign.
"Commitment Termination Date" means December 31, 1997, or such
later date to which the Commitment Termination Date may be extended by
Transferor, the Agent and the Bank Investors not later than 60 days prior to the
then current Commitment Termination Date.
"Company" means Enterprise Funding Corporation,
and its successors and assigns.
"Concentration Factor" means for any Designated Obligor (a) 2%
of the Outstanding Balance of all Eligible Receivables; provided however, that
for up to three (3) Designated Obligors at any one time, 2.5% of the Outstanding
Balance of all Eligible Receivables at such time; provided further, however,
that with respect to any Designated Obligor and its affiliates whose long term
unsecured debt obligations are rated at least "A1" by
0104420.05-01S7a
8
<PAGE>
Moody's and at least "A+" by Standard & Poor's and with respect to which rating
neither Moody's nor Standard & Poor's shall have made a public announcement
anticipating a downgrading of such Designated Obligor's long term unsecured debt
obligations to a rating less than the aforementioned ratings ("A1/A+ Rated
Obligors") 5% of the Outstanding Balance of all Eligible Receivables at such
time, or (b) such other greater amount determined by the Agent in the reasonable
exercise of its good faith judgment and disclosed in a written notice delivered
to the Transferor.
"Consolidated Fixed Charge Ratio" has the
meaning specified in Exhibit N hereto.
"Consolidated Tangible Net Worth" has the
meaning specified in Exhibit N hereto.
"Consolidated Total Liabilities" has the mean-
ing specified in Exhibit N hereto.
"Contract" means an agreement or invoice in substantially the
form of one of the forms set forth in Exhibit A attached hereto or otherwise
approved by the Company, pursuant to or under which an Obligor shall be
obligated to pay for merchandise purchased or services rendered.
"CP Rate" means, with respect to any CP Tranche Period, the
rate equivalent to the rate (or if more than one rate, the weighted average of
the rates) at which Commercial Paper having a term equal to such CP Tranche
Period may be sold by any placement agent or commercial paper dealer selected by
the Company, provided, however, that if the rate (or rates) as agreed between
any such agent or dealer and the Company is a discount rate, then the rate (or
if more than one rate, the weighted average of the rates) resulting from the
Company's converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum.
"CP Tranche" means a Tranche as to which Discount is
calculated at a CP Rate.
"CP Tranche Period" means, with respect to a CP Tranche, a
period of days not to exceed 90 days commencing on a Business Day requested by
the Transferor and
0104420.05-01S7a
9
<PAGE>
agreed to by the Company pursuant to Section 2.3. If a CP Tranche Period would
end on a day which is not a Business Day, such CP Tranche Period shall end on
the next succeeding Business Day.
"Credit and Collection Policy" shall mean Tech Data's and the
Transferor's credit and collection policy or policies and practices, relating to
Contracts and Receivables existing on the date hereof and referred to in Exhibit
B attached hereto, as modified from time to time in compliance with Section
5.2(c).
"Credit Support Agreement" means the agreement between the
Company and the Credit Support Provider evidencing the obligation of the Credit
Support Provider to provide credit support to the Company in connection with the
issuance by the Company of Commercial Paper.
"Credit Support Provider" means the Person or Persons who
provides credit support to the Company in connection with the issuance by the
Company of Commercial Paper.
"Current Receivable" means any Receivable with respect to
which no payment is outstanding beyond the date on which such payment was due.
"Dealer Fee" means the fee payable by the Transferor to the
Agent, pursuant to Section 2.4 hereof, the terms of which are set forth in the
Fee Letter.
"Deemed Collections" means any Collections on any Receivable
deemed to have been received pursuant to Section 2.9(a) or (b) hereof.
"Defaulted Receivable" means a Receivable: (i)
as to which any payment, or part thereof, remains unpaid for 91 days or more
from the original due date for such Receivable; (ii) as to which an Event of
Bankruptcy has occurred with respect to the Obligor thereof; (iii) which has
been identified by the Collection Agent as uncollect- ible; or (iv) which,
consistent with the Credit and Col- lection Policy, should be written off the
Transferor's books as uncollectible.
"Delinquency Ratio" means, the ratio (expressed
as a percentage) computed as of the last day of each
0104420.05-01S7a
10
<PAGE>
calendar month by dividing (i) the aggregate Outstanding Balance of all
outstanding Receivables as to which on the date of determination, any payment or
part thereof, remains unpaid for more than 30 days from the original due date
for such Receivable and which is not a Defaulted Receivable, by (ii) the
aggregate Outstanding Balance of all Receivables as of such date less Defaulted
Receivables as of such date.
"Delinquent Receivable" means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for more than 60 days from the original due date
for such Receivable and (ii) which is not a Defaulted
Receivable.
"Designated Obligor" means, at any time, each Obligor;
provided, however, that any Obligor shall cease to be a Designated Obligor upon
notice from the Agent to the Transferor and the Collection Agent, delivered at
any time in good faith and based upon reasonable criteria.
"Dilution Ratio" means, the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the aggregate
amount of credits, rebates, discounts, disputes, warranty claims, repossessed or
returned goods, charge back allowances and other dilutive factors, and any other
billing or other adjustment by the Transferor or the Collection Agent, provided
to Obligors in respect of Receivables during the preceding three months
(including such month) by (ii) the aggregate Outstanding Balance of all
Receivables which arose during the three month period commencing with the first
day of the fourth preceding month and ending with the last day of the second
preceding month.
"Dilution Reserve" means, at any time, an amount equal to the
product of (i) the highest Dilution Ratio as of the preceding six (6) months and
(ii) the Net Investment at such time.
"Discount" means, with respect to any Tranche
Period:
(TR x TNI x AD)
360
Where:
0104420.05-01S7a
11
<PAGE>
TR = the Tranche Rate applicable to such Tranche Period.
TNI = the portion of the Net Investment allocated to such Tranche
Period.
AD = the actual number of days during such Tranche Period.
provided, however, that no provision of this Agreement shall require the payment
or permit the collection of Discount in excess of the maximum amount permitted
by applicable law; and provided, further, that Discount shall not be considered
paid by any distribution if at any time such distribution is rescinded or must
be returned for any reason.
"Discount Reserve" means, at any time, an
amount equal to:
TD + LY
Where:
TD = the sum of the unpaid Discount for all Tranche
Periods.
LY = the Liquidation Yield
"Early Collection Fee" means, for any Tranche Period (such
Tranche Period to be determined without regard to the last sentence in Section
2.3(a) hereof) during which the portion of the Net Investment that was allocated
to such Tranche Period is reduced for any reason whatsoever, the excess, if any,
of (i) the additional Discount that would have accrued during such Tranche
Period if such reductions had not occurred, minus (ii) the income, if any,
received by the recipients of such reductions from investing the proceeds of
such reductions.
"Eligible Investments" means any of the following: (a)
negotiable instruments or securities represented by instruments in bearer or
registered or in book-entry form which evidence (i) obligations fully guaranteed
by the United States of America; (ii) time deposits in, or bankers acceptances
issued by, any depositary institution
0104420.05-01S7a
12
<PAGE>
or trust company incorporated under the laws of the United States of America or
any state thereof and subject to supervision and examination by Federal or state
banking or depositary institution authorities; provided, however, that at the
time of investment or contractual commitment to invest therein, the certificates
of deposit or short-term deposits, if any, or long-term unsecured debt
obligations (other than such obligation whose rating is based on collateral or
on the credit of a Person other than such institution or trust company) of such
deposi- tary institution or trust company shall have a credit rating from
Moody's and S&P of at least "P-1" and "A-1", respectively, in the case of the
certificates of deposit or short-term deposits, or a rating not lower than one
of the two highest investment categories granted by Moody's and by S&P; (iii)
certificates of deposit having, at the time of investment or contractual
commitment to invest therein, a rating from Moody's and S&P of at least "P-1"
and "A-1", respectively; or (iv) investments in money market funds rated in the
highest investment category or otherwise approved in writing by the applicable
rating agencies, (b) demand deposits in any depositary institution or trust
company referred to in (a)(ii) above; (c) commercial paper (having original or
remaining maturities of no more than 30 days) having, at the time of investment
or contractual commitment to invest therein, a credit rating from Moody's and
S&P of at least "P-1" and "A-1", respectively; (d) Eurodollar time deposits
having a credit rating from Moody's and S&P of at least "P-1" and "A-1",
respectively; and (e) repurchase agreements involving any of the Eligible
Investments described in clauses (a)(i), (a)(iii) and (d) hereof so long as the
other party to the repurchase agreement has at the time of investment therein, a
rating from Moody's and S&P of at least "P-1" and "A-1", respectively.
"Eligible Receivable" means, at any time, any
Receivable:
(i) which has been transferred
by Tech Data to the Transferor and to which the
Transferor has good title thereto, free and
clear of all Adverse Claims;
(ii) the Obligor of which is a
United States resident, is a Designated Obligor
0104420.05-01S7a
13
<PAGE>
at the time of the initial creation of an in-
terest therein hereunder, is not an Affiliate
of any of the parties hereto, and is not a
government or a governmental subdivision or agency;
(iii) which is not a Defaulted
Receivable at the time of the initial creation
of an interest therein hereunder;
(iv) which is not a Delinquent
Receivable at the time of the initial creation
of an interest of the Company therein;
(v) which, (A) arises pursuant
to a Contract with respect to which each of the
Seller and the Transferor has performed all
obligations required to be performed by it
thereunder, including without limitation ship-
ment of the merchandise and/or the performance
of the services purchased thereunder; (B) has
been billed; and (C) according to the Contract
related thereto, is required to be paid in full
within 60 days of the original billing date
therefor;
(vi) which is an "eligible as-
set" as defined in Rule 3a-7 under the Invest-
ment Company Act of 1940, as amended;
(vii) a purchase of which with
the proceeds of Commercial Paper would consti-
tute a "current transaction" within the meaning
of Section 3(a)(3) of the Securities Act of
1933, as amended;
(viii) which is an "account" with-
in the meaning of Article 9 of the UCC of all
applicable jurisdictions;
(ix) which is denominated and
payable only in United States dollars in the
United States;
(x) which, arises under a Con-
tract that together with the Receivable related
thereto, is in full force and effect and con-
0104420.05-01S7a
14
<PAGE>
stitutes the legal, valid and binding obliga-
tion of the related Obligor enforceable against
such Obligor in accordance with its terms and,
to the best knowledge of the Collection Agent
or the Transferor is not subject to any litiga-
tion, dispute, offset, counterclaim or other
defense at such time;
(xi) which, together with the
Contract related thereto, does not contravene
in any material respect any laws, rules or
regulations applicable thereto (including,
without limitation, laws, rules and regulations
relating to truth in lending, fair credit bill-
ing, fair credit reporting, equal credit oppor-
tunity, fair debt collection practices and
privacy) and with respect to which no part of
the Contract related thereto is in violation
of any such law, rule or regulation in any material respect;
(xii) which (A) satisfies, in all
material respects, all applicable requirements
of the applicable Credit and Collection Policy
and (B) is assignable;
(xiii) which was generated in the
ordinary course of Tech Data's business; and
(xiv) the Obligor of which has
been directed to make all payments to a speci-
fied account of the Collection Agent with re-
spect to which there shall be a Lock-Box Agreement in effect.
"ERISA" means the U.S. Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code (as in effect from time to
time, the "Code")) as such Person; (ii) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Code) with
0104420.05-01S7a
15
<PAGE>
such Person; or (iii) a member of the same affiliated service group (within the
meaning of Section 414(n) of the Code) as such Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above.
"Estimated Maturity Period" means, at any time, the period,
rounded upward to the nearest whole number of days, equal to the weighted
average number of days until due of the Receivables as calculated by the
Collection Agent in good faith and set forth in the most recent Investor Report,
such calculation to be based on the assumptions that (a) each Receivable within
a particular aging category, (as set forth in the Investor Report) will be paid
on the last day of such aging category and (b) the last day of the last such
aging category coincides with the last date on which any Outstanding Balance of
any Receivables would be written off as uncollectible or charged against any
applicable reserve or similar account in accordance with the objective
requirements of the Credit and Collection Policy and the Transferor's normal
accounting practices applied on a basis consistent with those reflected in the
Transferor's financial statements, provided, however, that if the Agent, the
Company or any of the Bank Investors shall reasonably disagree with any such
calculation, the Agent may recalculate the Estimated Maturity Period on the
basis of such calculation at such time, and such recalculation, in the absence
of manifest error, shall be conclusive.
"Eurodollar Rate" means, with respect to any Eurodollar
Tranche Period, a rate which is the Applicable Margin in excess of a rate per
annum equal to the sum (rounded upwards, if necessary, to the next higher 1/100
of 1%) of (A) the rate obtained by dividing (i) the applicable LIBOR Rate by
(ii) a percentage equal to 100% minus the reserve percentage used for
determining the maximum reserve requirement as specified in Regulation D
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) that is applicable to the Agent during such Eurodollar
Tranche Period in respect of eurocurrency or eurodollar funding, lending or
liabilities (or, if more than one percentage shall be so applicable, the daily
average of such percentage for those days in such Eurodollar Tranche Period
during which any such percentage shall be applicable) plus (B) the then daily
net annual assessment rate (rounded upwards,
0104420.05-01S7a
16
<PAGE>
if necessary, to the nearest 1/100 of 1%) as estimated by the Agent for
determining the current annual assessment payable by the Agent to the Federal
Deposit Insurance Corporation in respect of eurocurrency or eurodollar funding,
lending or liabilities.
"Eurodollar Tranche" means a Tranche as to
which Discount is calculated at the Eurodollar Rate.
"Eurodollar Tranche Period" means, with respect to a
Eurodollar Tranche, prior to the Termination Date, a period of up to one month
requested by the Transferor and agreed to by the Company, NationsBank, on behalf
of the Liquidity Provider, or the Agent, as the case may be, commencing on a
Business Day requested by the Transferor and agreed to by the Company,
NationsBank or the Agent, as applicable; provided, however, that if such
Eurodollar Tranche Period would expire on a day which is not a Business Day,
such Eurodollar Tranche Period shall expire on the next succeeding Business Day;
provided, further, that if such Eurodollar Tranche Period would expire on (a) a
day which is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Eurodollar Tranche Period shall expire
on the next preceding Business Day or (b) a Business Day for which there is no
numerically corresponding day in the applicable subsequent calendar month, such
Eurodollar Tranche Period shall expire on the last Business Day of such month.
"Event of Bankruptcy", means, with respect to any Person, (i)
that such Person (a) shall generally not pay its debts as such debts become due
or (b) shall admit in writing its inability to pay its debts generally or (c)
shall make a general assignment for the benefit of creditors; (ii) any
proceeding shall be instituted by or against such Person seeking to adjudicate
it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial part of
its property or (iii) if such Person is a corporation, such Person or any
Subsidiary shall take any corporate action to autho-
0104420.05-01S7a
17
<PAGE>
rize any of the actions set forth in the preceding claus-
es (i) or (ii).
"Facility Limit" means $306,000,000 provided that such amount
may not at any time exceed the aggregate Commitments at any time in effect.
"Fee Letter" means the letter agreement dated the date hereof
between the Transferor, the Agent and the Company with respect to the fees to be
paid by the Trans- feror hereunder, as amended, modified or supplemented from
time to time.
"Finance Charges" means, with respect to a Contract, any
finance, interest, late or similar charges owing by an Obligor pursuant to such
Contract.
"Guaranty" means the agreement of guarantee of
the Guarantor set forth in Article IX hereof.
"Incremental Transfer" means a Transfer which is made pursuant
to Section 2.2(a) hereof.
"Indebtedness" means, with respect to any Person, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property other than accounts payable arising in the
ordinary course of such Person's business on terms customary in the trade, (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease obligations and (vi) obligations for which
such Person is obligated pursuant to a Guaranty.
"Indemnified Amounts" has the meaning specified
in Section 8.1 hereof.
"Indemnified Parties" has the meaning specified
in Section 8.1 hereof.
"Interest Component" shall mean, (i) with respect to any
Commercial Paper issued on an interest-bearing basis, the interest payable on
such Commercial Paper at its maturity (including any dealer commissions)
0104420.05-01S7a
18
<PAGE>
and (ii) with respect to any Commercial Paper issued on a discount basis, the
portion of the face amount of such Commercial Paper representing the discount
incurred in respect thereof (including any dealer commissions).
"Investor Report" means a report, in substantially the form
attached hereto as Exhibit E or in such other form as is mutually agreed to by
the Transferor and the Agent, furnished by the Collection Agent pursuant to
Section 2.11.
"Law" means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"LIBOR Rate" means, with respect to any Euro- dollar Tranche
Period, the rate at which deposits in dollars are offered to the Agent in the
London interbank market at approximately 11:00 a.m. (London time) two Business
Days before the first day of such Eurodollar Tranche Period in an amount
approximately equal to the Eurodollar Tranche to which the Eurodollar Rate is to
apply and for a period of time approximately equal to the applicable Eurodollar
Tranche Period.
"Liquidation Yield" means, at any time, an
amount equal to:
(RVF x LBR x NI) x (EM + CD)
---------
360
Where:
RVF = the Rate Variance Factor;
LBR = the Base Rate which is applicable to the liqui-
dation period of the Net Investment at such
time;
NI = the Net Investment;
EM = the Estimated Maturity Period of the Receiv-
ables; and
CD = the Collection Delay.
0104420.05-01S7a
19
<PAGE>
"Liquidity Provider" means the Person or Persons who will
provide liquidity support to the Company in connection with the issuance by the
Company of Commercial Paper.
"Liquidity Provider Agreement" means the agreement between the
Company and the Liquidity Provider evidencing the obligation of the Liquidity
Provider to provide liquidity support to the Company in connection with the
issuance by the Company of Commercial Paper.
"Lock-Box Account" means an account maintained by the
Collection Agent at a Lock-Box Bank for the purpose of receiving Collections
from Receivables.
"Lock-Box Agreement" means an agreement between the Collection
Agent and a Lock-Box Bank in substantially the form of Exhibit D hereto.
"Lock-Box Bank" means each of the banks set forth in Exhibit C
hereto and such banks as may be added thereto or deleted therefrom pursuant to
Section 2.8 hereof.
"Loss Percentage" means on any day the greater (i) 5 times the
highest Loss-to-Liquidation Ratio as of the last day of the 12 months preceding
the then current month, or (ii) 10 percent.
"Loss Reserve" means, on any day, an amount
equal to:
LP x (NI + DLR + DR + SFR)
Where:
LP = the Loss Percentage at the close of business of
the Collection Agent on such day;
NI = the Net Investment at the close of business of
the Collection Agent on such day;
DLR = the Dilution Reserve at the close of business
of the Collection Agent on such day;
DR = the Discount Reserve at the close of business
of the Collection Agent on such day; and
0104420.05-01S7a
20
<PAGE>
SFR = the Servicing Fee Reserve at the close of business of the
Collection Agent on such day.
Notwithstanding the foregoing, the Loss Reserve shall at all times be at least
equal to $25,000,000.
"Loss-to-Liquidation Ratio" means, for any period of
determination, the ratio (expressed as a percentage) computed as of the last day
of each calendar month by dividing (i) the aggregate Outstanding Balance of all
Receivables which became Defaulted Receivables during such period, by (ii) the
aggregate amount of Collections received by the Collection Agent during such
period less Deemed Collections for the period.
"Majority Investors" shall have the meaning
specified in Section 10.1(a) hereof.
"Maximum Net Investment" means $300,000,000.
"Maximum Percentage Factor" means 98%.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding five years contributed to by the Trans- feror,
or any ERISA Affiliate of the Transferor on behalf of its employees.
"Net Asset Test" means, in connection with any assignment by
the Company to the Bank Investors of an interest in the Net Investment pursuant
to Section 10.7 hereof, that on the day immediately prior to the day on which
such assignment is to take effect, the Net Receivables Balance shall be equal to
or greater than the Net Investment.
"Net Investment" means the sum of the cash amounts paid to the
Transferor for each Incremental Transfer less the aggregate amount of
Collections received and applied by the Agent to reduce such Net Investment
pursuant to Section 2.5, 2.6 or 2.9 hereof; provided that the Net Investment
shall be restored and reinstated in the amount of any Collections so received
and applied if at any time the distribution of such
0104420.05-01S7a
21
<PAGE>
Collections is rescinded or must otherwise be returned for any reason; and
provided further that the Net Investment may be increased by the amount
described in Section 10.7(d) as described therein.
"Net Receivables Balance" means at any time the Outstanding
Balance of the Eligible Receivables at such time reduced by the sum of (i) the
aggregate amount by which the Outstanding Balance of all Eligible Receivables of
each Designated Obligor exceeds the Concentration Factor for such Designated
Obligor, plus (ii) the aggregate Outstanding Balance of all Eligible Receivables
which are Defaulted Receivables, plus (iii) the aggregate Outstanding Balance of
all Eligible Receivables which are Delinquent Receivables.
"Obligations" shall have the meaning specified
in Section 9.1.
"Obligor" means a Person obligated to make payments for the
provision of goods and services pursuant to a Contract.
"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, in each case whether foreign or domestic.
"Other Transferor" means any Person other than the Transferor
that has entered into a receivables purchase agreement or transfer and
administration agreement with the Company.
"Outstanding Balance" means, with respect to any Receivable at
any time, the then outstanding principal amount thereof including any accrued
and outstanding Finance Charges related thereto.
"Percentage Factor" shall mean the fraction (expressed as a
percentage) computed at any time of determination as follows:
NI + LR + DLR + DR + SFR
------------------------
NRB
Where:
0104420.05-01S7a
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<PAGE>
NI = the Net Investment at the time of such computa-
tion;
LR = the Loss Reserve at the time of such computa-
tion;
DLR = the Dilution Reserve at the time of such compu-
tation;
DR = the Discount Reserve at the time of such compu-
tation;
SFR = the Servicing Fee Reserve at the time of such
computation; and
NRB = the Net Receivables Balance at the time of such
computation as reduced by the amount of all
Deemed Collections.
Notwithstanding the foregoing computation, the Percentage
Factor shall not exceed one hundred percent (100%). The Percentage Factor shall
be calculated by the Collection Agent on the day of the initial Incremental
Transfer hereunder. Thereafter, until the Termination Date, the Collection Agent
shall daily recompute the Percentage Factor and report such recomputations to
the Agent monthly in the Investor Report or as reasonably otherwise requested by
the Agent. The Percentage Factor shall remain constant from the time as of which
any such computation or recomputation is made until the time as of which the
next such recomputation shall be made, notwithstanding any additional
Receivables arising, any Incremental Transfer made pursuant to Section 2.2(a) or
any reinvestment Transfer made pursuant to Section 2.2(b) and 2.5 during any
period between computations of the Percentage Factor. The Percentage Factor, as
calculated at the close of business on the Business Day immediately preceding
the Termination Date, shall remain constant at all times thereafter until such
time as the Agent shall have received the Aggregate Unpaids, in cash, at which
time the Percentage Factor shall be recomputed in accordance with Section 2.6.
"Person" means any corporation, limited liabil-
ity company, natural person, firm, joint venture, part-
0104420.05-01S7a
23
<PAGE>
nership, trust, unincorporated organization, enterprise,
government or any department or agency of any government.
"Potential Termination Event" means an event which but for the
lapse of time or the giving of notice, or both, would constitute a Termination
Event.
"Pro Rata Share" means, for a Bank Investor, the Commitment of
such Bank Investor divided by the sum of the Commitments of all Bank Investors.
"Proceeds" means "proceeds" as defined in
Section 9.306(1) of the UCC.
"Program Fee" means the fee payable by the Transferor to the
Company pursuant to Section 2.7 hereof, the terms of which are set forth in the
Fee Letter.
"Purchase Agreement" means the Receivables Purchase Agreement
dated as of December 21, 1993, between Tech Data and the Transferor, as the same
may be amended, supplemented or otherwise modified.
"Purchase Termination Date" means the date upon which the
Transferor shall cease, for any reason whatsoever, to make purchases of
Receivables from Tech Data under the Purchase Agreement or the Purchase
Agreement shall terminate for any reason whatsoever.
"Purchased Interest" means the interest in the Receivables
acquired by the Liquidity Provider through purchase pursuant to the terms of the
Liquidity Provider Agreement.
"Rate Variance Factor" means the number, computed from time to
time in good faith by the Agent, that reflects the largest potential variance
(from minimum to maximum) in selected interest rates over a period of time
selected by the Agent from time to time, set forth in a written notice by the
Agent to the Transferor and the Collection Agent.
"Receivable" means the indebtedness owed to the Transferor by
any Obligor (without giving effect to any purchase hereunder by the Company at
any time) under a Contract whether constituting an account, chattel paper,
instrument or general intangible, arising in connection
0104420.05-01S7a
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with the sale of merchandise or services by Tech Data and thereafter transferred
to the Transferor by Tech Data, and includes the right to payment of any Finance
Charges and other obligations of such Obligor with respect thereto.
Notwithstanding the foregoing, once a Receivable has been deemed collected
pursuant to Section 2.9 hereof, it shall no longer constitute a Receivable
hereunder.
"Records" means all Contracts and other documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related Obligors.
"Reinvestment Termination Date" means the second Business Day
after the delivery by the Company to the Transferor of written notice that the
Company elects to commence the amortization of its interest in the Net
Investment or otherwise liquidate its interest in the Transferred Interest.
"Related Commercial Paper" shall mean Commercial Paper issued
by the Company the proceeds of which were used to acquire, or refinance the
acquisition of, an interest in Receivables with respect to the Transferor.
"Related Security" means with respect to any Receivable, all
of the Transferor's rights, title and interest in, to and under:
(i) all of the Transferor's interest, if any, in the
merchandise (including returned or repossessed merchandise), if any,
the sale of which by the Transferor gave rise to such Receivable;
(ii) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all financing
statements signed by an Obligor describing any collateral securing such
Receivable;
0104420.05-01S7a
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<PAGE>
(iii) all guarantees, indemnities, warranties,
insurance (and proceeds and premium refunds thereof) or other
agreements or arrangements of any kind from time to time supporting or
securing payment of such Receivable whether pursuant to the Contract
related to such Receivable or otherwise;
(iv) all Records related to such
Receivable; and
(v) all rights and remedies of the Transferor under
the Receivables Purchase Agreement, together with all financing
statements filed by the Transferor against the Seller in connection
therewith; and
(vi) all Proceeds of any of the
foregoing.
"Section 8.2 Costs" has the meaning specified
in Section 8.2(d) hereof.
"Seller" means Tech Data Corporation, a Florida
corporation.
"Servicing Fee" means the fees payable by the Company or the
Bank Investors to the Collection Agent, with respect to a Tranche, in an amount
equal to .75% per annum on the amount of the Net Investment allocated to such
Tranche pursuant to Section 2.3. Such fee shall accrue from the date of the
initial purchase of an interest in the Receivables to the later of the
Termination Date or the date on which the Net Investment is reduced to zero. On
or prior to the Termination Date, such fee shall be payable only from
Collections pursuant to, and subject to the priority of payments set forth in,
Section 2.5 hereof. After the Termination Date, such fee shall be payable only
from Collections pursuant to, and subject to the priority of payments set forth
in, Section 2.6 hereof.
"Servicing Fee Reserve" means at any time the sum of (i) the
Servicing Fee for all Tranches and (ii) an amount equal to the product of (A)
the Net Investment at such time, and (B) the Servicing Fee percentage and (C) a
fraction having as the numerator, the sum of the Estimat-
0104420.05-01S7a
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<PAGE>
ed Maturity Period and the Collection Delay and as the
denominator, 360.
"Standard & Poor's" or "S&P" means Standard & Poor's Ratings
Services, a division of McGraw-Hill Companies, Inc.
"Subsidiary" of a Person means any corporation more than 50%
of the outstanding voting interests of which shall at any time be owned or
controlled, directly or indirectly, by such Person or by one or more
Subsidiaries of such Person or any similar business organization which is so
owned or controlled.
"Termination Date" means the earliest of (i) that Business Day
designated by the Transferor to the Agent as the Termination Date at any time
following 60 days' written notice to the Agent, (ii) the date of termination of
the commitment of the Liquidity Provider under the Liquidity Provider Agreement,
(iii) the date of termination of the commitment of the Credit Support Provider
under the Credit Support Agreement, (iv) the day upon which a Termination Date
is declared or automatically occurs pursuant to Section 7.2(a) hereof, (v)
December 31, 1997 unless extended for any additional period by consent of Tech
Data, the Company, the Transferor and the Agent upon notice given by the Company
to Tech Data and the Transferor at least 60 days prior to such date, (vi) two
Business Days prior to the Commitment Termination Date, (vi) the day on which a
Reinvestment Termination Date shall occur, or (vii) the Purchase Termination
Date.
"Termination Event" means an event described in
Section 7.1 hereof.
"Tranche" means a portion of the Net Investment allocated to a
Tranche Period pursuant to Section 2.3 hereof.
"Tranche Period" means a CP Tranche Period, a
BR Tranche Period, a CD Tranche Period or a Eurodollar
Tranche Period.
"Tranche Rate" means the CP Rate, the Base Rate, the CD Rate
or the Eurodollar Rate.
0104420.05-01S7a
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<PAGE>
"Transaction Documents" means, collectively, this Agreement,
the Purchase Agreement, the Fee Letter, the Lock-Box Agreements, the
Certificates, the Transfer Certificates and all of the other instruments,
documents and other agreements executed and delivered by Tech Data or the
Transferor in connection with any of the foregoing, in each case, as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"Transfer" means a conveyance, transfer and assignment by the
Transferor to the Company or the Bank Investors of an undivided percentage
ownership interest in Receivables hereunder (including, without limitation, as a
result of any reinvestment of Collections in Transferred Interests pursuant to
Section 2.2(b) and 2.5 hereof).
"Transfer Certificate" has the meaning speci-
fied in Section 2.2(a) hereof.
"Transfer Date" means, with respect to each Transfer, the
Business Day on which such Transfer is made.
"Transfer Price" means with respect to any Incremental
Transfer, the amount paid to the Transferor by the Company or the Bank Investors
as described in the applicable Transfer Certificate.
"Transferor" means Tech Data Finance, Inc., a California
corporation, and its successors and permitted assigns.
"Transferred Interest" means, at any time of determination, an
undivided percentage ownership interest in (i) each and every then outstanding
Receivable, (ii) all Related Security with respect to each such Receivable,
(iii) all Collections with respect thereto, and (iv) other Proceeds of the
foregoing, which undivided ownership interest shall be equal to the Percentage
Factor at such time, and only at such time (without regard to prior
calculations). The Transferred Interest in each Receivable, together with
Related Security, Collections and Proceeds with respect thereto, shall at all
times be equal to the Transferred Interest in each other Receivable, together
with Related Security, Collections and Proceeds with respect thereto. To the
extent that
0104420.05-01S7a
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<PAGE>
the Transferred Interest shall decrease as a result of a recalculation of the
Percentage Factor, the Company or the Bank Investors, as applicable, shall be
considered to have reconveyed to the Transferor an undivided percentage
ownership interest in each Receivable, together with Related Security,
Collections and Proceeds with respect thereto, in an amount equal to such
decrease such that in each case the Transferred Interest in each Receivable
shall be equal to the Transferred Interest in each other Receivable.
"UCC" means, with respect to any state, the Uniform Commercial
Code as from time to time in effect in such state.
"Unpaid Balance" means, at any time, with respect to any
Receivable, the outstanding principal amount of the indebtedness of the related
Obligor incurred in connection with a particular purchase under or evidenced by
such Receivable, exclusive of any sales or other tax, if any, included in or
payable with respect to such purchase.
"Unused Facility Fee" means the fee payable by the Transferor
to the Company pursuant to Section 2.7 hereof, the terms of which are set forth
in the Fee Letter.
SECTION 1.2. Other Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
SECTION 1.3. Computation of Time Periods. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including", the words "to" and "until" each means "to but excluding" and the
word "within" means "from and excluding a specified date and to and including a
later specified date".
0104420.05-01S7a
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<PAGE>
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. Facility. Upon the terms and subject to the
conditions herein set forth, (x) the Transferor may, at its option, convey,
transfer and assign to the Agent, on behalf of the Company or the Agent, on
behalf of the Bank Investors, as applicable, and (y) the Agent, on behalf of the
Company may, provided that the Termination Date shall not have occurred, at its
option, or the Agent on behalf of the Bank Investors, provided that the
Termination Date shall not have occurred and that the Bank Investors shall have
previously accepted the assignment by the Company of all of its interest in the
Affected Assets, shall, if so requested, accept such conveyance, transfer and
assignment from the Transferor of, without recourse except as provided herein,
undivided percentage ownership interests in the Receivables, together with
Related Security, Collections and Proceeds with respect thereto, from time to
time. By accepting any conveyance, transfer and assignment hereunder, neither
the Company, any Bank Investor nor the Agent assumes or shall have any
obligations or liability under any of the Contracts, all of which shall remain
the obligations and liabilities of the Transferor and the Seller.
SECTION 2.2. Transfers; Certificates; Eligible
Receivables. (a) Incremental Transfers. Upon the terms and subject to the
conditions herein set forth the Trans- feror may, at its option, convey,
transfer and assign to the Agent on behalf of the Company or the Bank Investors,
as applicable, and the Agent, on behalf of the Company may, provided that the
Termination Date shall not have occurred, at its option, or the Agent on behalf
of the Bank Investors, provided that the Termination Date shall not have
occurred and that the Bank Investors shall have previously accepted the
assignment by the Company of all of its interest in the Affected Assets, shall,
if so re- quested by the Transferor, accept such conveyance, trans- fer and
assignment from the Transferor, without recourse except as provided herein,
undivided percentage ownership interests in the Receivables, together with
Related Security, Collections and Proceeds with respect thereto (each, an
"Incremental Transfer"); provided that after
0104420.05-01S7a
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<PAGE>
giving effect to the payment to the Transferor of such Transfer Price (x) the
sum of the Net Investment plus, in the case where the Transferred Interest is
held by the Company, the Interest Component of all outstanding Related
Commercial Paper, would not exceed the Facility Limit and (y) the Net Investment
would not exceed the Maximum Net Investment; and, provided further, that the
representations and warranties set forth in Section 3.1 shall be true and
correct both immediately before and immediately after giving effect to any such
Incremental Transfer and the payment to the Transferor of the Transfer Price
related thereto and an Investor Report shall have been delivered with respect to
such Incremental Transfer as required by Section 3.2 hereof.
The Transferor shall, by notice to the Agent given by
telecopy, offer to convey, transfer and assign to the Agent, on behalf of the
Company or the Bank Investors, as applicable, undivided percentage ownership
interests in the Receivables and the other Affected Assets relating thereto at
least three (3) Business Days prior to the proposed date of any Incremental
Transfer. Each such notice shall specify (w) whether such request is made to the
Agent on behalf of the Company or to the Agent on behalf of the Bank Investors
(it being understood and agreed that once the Bank Investors acquire any
Transferred Interest hereunder, the Bank Investors shall be required to purchase
all Transferred Interests held by the Company in accordance with Section 10.7
and thereafter the Company shall no longer accept any additional Incremental
Transfers hereunder), (x) the desired Transfer Price (which shall be at least
$5,000,000 or integral multiples of $1,000,000 in excess thereof) or, to the
extent that the then available unused portion of the Facility Limit is less than
such amount, such lesser amount equal to such available portion of the Facility
Limit), (y) the desired date of such Incremental Transfer and (z) the desired
Tranche Period(s) and allocations of the Net Investment of such Incremental
Transfer thereto as required by Section 2.3. The Agent will promptly notify the
Company or each of the Bank Investors, as the case may be, of the Agent's
receipt of any request for an Incremental Transfer to be made to such Person. To
the extent that any such Incremental Transfer is requested of the Company, the
Company shall accept or reject such offer by notice given to the Transferor and
the Agent by telephone or telecopy by no later than the close of its
0104420.05-01S7a
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<PAGE>
business on the Business Day following its receipt of any such request. Each
notice of proposed Transfer shall be irrevocable and binding on the Transferor
and the Trans- feror shall indemnify the Company and each Bank Investor against
any loss or expense incurred by the Company or any Bank Investor, either
directly or through the Liquidity Provider Agreement) as a result of any failure
by the Transferor to complete such Incremental Transfer including, without
limitation, any loss (including loss of anticipated profits) or expense incurred
by the Company or any Bank Investor, either directly or pursuant to the
Liquidity Provider Agreement by reason of the liquidation or reemployment of
funds acquired by the Company (or the Liquidity Provider) or any Bank Investor
(including, without limitation, funds obtained by issuing commercial paper or
promissory notes or obtaining deposits as loans from third parties) for the
Company or any Bank Investor to fund such Incremental Transfer.
On the date of the initial Incremental Transfer, the Agent, on
behalf of the Company or the Bank Investors, as applicable, shall deliver
written confirmation to the Transferor of the Transfer Price, the Tranche
Period(s) and the Tranche Rate(s) relating to such Transfer and the Transferor
shall deliver to the Agent the Transfer Certificate in the form of Exhibit F
hereto (the "Transfer Certificate"). The Agent shall indicate the amount of the
initial Incremental Transfer together with the date thereof on the grid attached
to the Transfer Certificate. On the date of each subsequent Incremental
Transfer, the Agent shall send written confirmation to the Transferor of the
Transfer Price, the Tranche Period(s), the Transfer Date and the Tranche Rate(s)
applicable to such Incremental Transfer. The Agent shall indicate the amount of
the Incremental Transfer together with the date thereof as well as any decrease
in the Net Investment on the grid attached to the Transfer Certificate. The
Transfer Certificate shall evidence the Incremental Transfers. Following each
Incremental Transfer, the Agent shall deposit to the Transferor's account at the
location indicated in Section 11.3 hereof, in immediately available funds, an
amount equal to the Transfer Price for such Incremental Transfer made to the
Company or the Bank Investors, as applicable.
By no later than 11:00 a.m. (New York time) on
any Transfer Date, the Company or each Bank Investor, as
0104420.05-01S7a
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<PAGE>
the case may be, shall remit its share (which, in the case of an Incremental
Transfer to the Bank Investors, shall be equal to such Bank Investor's Pro Rata
Share) of the aggregate Transfer Price for such Transfer to the account of the
Agent specified therefor from time to time by the Agent by notice to such
Persons. The obligation of each Bank Investor to remit its Pro Rata Share of any
such Transfer Price shall be several from that of each other Bank Investor, and
the failure of any Bank Investor to so make such amount available to the Agent
shall not relieve any other Bank Investor of its obligation hereunder. Following
each Incremental Transfer and the Agent's receipt of funds from the Company or
the Bank Investors as aforesaid, the Agent shall remit the Transfer Price to the
Transferor's account at the location indicated in Section 11.3 hereof, in
immediately available funds, an amount equal to the Transfer Price for such
Incremental Transfer. Unless the Agent shall have received notice from the
Company or any Bank Investor, as applicable, that such Person will not make its
share of any Transfer Price relating to any Incremental Transfer available on
the applicable Transfer Date therefor, the Agent may (but shall have no
obligation to) make the Company's or any such Bank Investor's share of any such
Transfer Price available to the Transferor in anticipation of the receipt by the
Agent of such amount from the Company or such Bank Investor. To the extent the
Company or any such Bank Investor fails to remit any such amount to the Agent
after any such advance by the Agent on such Transfer Date, the Company or such
Bank Investor, on the one hand, and the Transferor, on the other hand, shall be
required to pay such amount, together with interest thereon at a per annum rate
equal to the Federal funds rate (as determined in accordance with clause (ii) of
the definition of "Base Rate"), in the case of the Company or any such Bank
Investor, or the Base Rate, in the case of the Transferor, to the Agent upon its
demand therefor (provided that the Company shall have no obligation to pay such
interest amounts except to the extent that it shall have sufficient funds to pay
the face amount of its Commercial Paper in full). Until such amount shall be
repaid, such amount shall be deemed to be Net Investment paid by the Agent and
the Agent shall be deemed to be the owner of a Transferred Interest hereunder.
Upon the payment of such amount to the Agent (x) by the Transfer- or, the amount
of the aggregate Net Investment shall be reduced by such amount or (y) by the
Company or such Bank
0104420.05-01S7a
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<PAGE>
Investor, such payment shall constitute such Person's payment of its share of
the applicable Transfer Price for such Transfer.
(b) Reinvestment Transfers. On each
Business Day occurring after the initial Incremental Transfer hereunder and
prior to the Termination Date, the Transferor hereby agrees to convey, transfer
and assign to the Agent, on behalf of the Company or the Bank Investors then
owning any Transferred Interests, and in consideration of Transferor's agreement
to maintain at all times prior to the Termination Date a Net Receivables Balance
in an amount at least sufficient to maintain the Percentage Factor at an amount
not greater than the Maximum Percentage Factor, the Agent on behalf of the
Company may, and the Agent on behalf of the Bank Investors shall (in either
case, to the extent such Persons then own any Transferred Interest), agrees to
purchase from the Transferor undivided percentage ownership interests in each
and every Receivable, together with Related Security, Collections and Proceeds
with respect thereto, to the extent that Collections are available for such
Transfer in accordance with Section 2.5 hereof, such that after giving effect to
such Transfer, (i) the amount of the Net Investment at the close of business on
such Business Day shall be equal to the amount of the Company's Net Investment
at the close of the business on the Business Day immediately preceding such
Business Day plus the Transfer Price of any Incremental Transfer made on such
day, if any, and (ii) the Transferred Interest in each Receivable, together with
Related Security, Collections and Proceeds with respect thereto, shall be equal
to the Transferred Interest in each other Receivable, together with Related
Security, Collections and Proceeds with respect thereto.
(c) All Transfers. Each Transfer shall
constitute a purchase by the Agent on behalf of the Company or the Bank
Investors, as applicable, of undivided percentage ownership interests in each
and every Receivable, together with Related Security, Collections and Proceeds
with respect thereto, then existing, as well as in each and every Receivable,
together with Related Security, Collections and Proceeds with respect thereto,
which arises at any time after the date of such Transfer. The Agent's aggregate
undivided percentage ownership interest in the Receivables, together with the
Related
0104420.05-01S7a
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<PAGE>
Security, Collections and Proceeds with respect thereto, held on behalf of the
Company or the Bank Investors, as applicable, shall equal the Percentage Factor
in effect from time to time. So long as the Agent on behalf of either the
Company, on the one hand, or the Bank Investors, on the other hand, owns all of
the Transferred Interests at such time, each of the Company's and each Bank
Investor's undivided percentage ownership interest in the Affected Assets shall
equal such Person's ratable share (determined on the basis of the relationship
that such Person's Net Investment bears to the aggregate Net Investment of the
Company and all of the Bank Investors at such time) of the Percentage Factor at
such time.
(d) Certificate. The Transferor shall
issue to the Agent the Certificate, in the form of Exhib-
it M, on or prior to the date hereof.
(e) Percentage Factor. The Percentage
Factor shall be initially computed as of the opening of business of the
Collection Agent on the date of the initial Incremental Transfer hereunder.
Thereafter until the Termination Date, the Percentage Factor shall be
automatically recomputed as of the close of business of the Collection Agent on
each day (other than a day after the Termination Date). The Percentage Factor
shall remain constant from the time as of which any such computation or
recomputation is made until the time as of which the next such recomputation, if
any, shall be made. The Percentage Factor, as computed as of the day immediately
preceding the Termination Date shall remain constant at all times on and after
the Termination Date until the date on which the Net Investment has been reduced
to zero, and all accrued Discount and Servicing Fees have been paid in full and
all other Aggregate Unpaids have been paid in full.
SECTION 2.3. Selection of Tranche Periods and
Tranche Rates.
(a) At all times hereafter, but prior to
the occurrence of a Termination Event and not with respect to any portion of the
transferred Interest held by the Bank Investors (or any of them), the Transferor
may, subject to the Company's approval and the limitations described below,
request Tranche Periods and allocate a portion of the Net Investment to each
selected Tranche
0104420.05-01S7a
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<PAGE>
Period, so that the aggregate amounts allocated to outstanding Tranche Periods
at all times shall equal the Net Investment held by the Company. The Transferor
shall give the Company irrevocable notice by telephone of the new requested
Tranche Period(s) and whether the requested Tranche Rate applicable thereto
shall be the CP Rate, the BR Rate, the CD Rate or the Eurodollar Rate at least
(i) three (3) Business Days prior to the expiration of any then existing Tranche
Period if the Tranche Rate to be applicable to the new requested Tranche Period
shall be the Eurodollar Rate, (ii) two (2) Business Days prior to the expiration
of any then existing Tranche Period if the Tranche Rate to be applicable to the
new requested Tranche Period shall be the BR Rate or the CD Rate, and (iii) one
(1) Business Day prior to the expiration of any then existing Tranche Period if
the Tranche Rate to be applicable to the new requested Tranche Period shall be
the CP Rate; provided, however, that the Company may select, in its reasonable
discretion, any such new Tranche Period and Tranche Rate if (i) the Transferor
fails to provide such notice on a timely basis or (ii) the Company determines,
in its reasonable discretion, that the Tranche Rate or Tranche Period requested
by the Transferor is unavailable or for any reason commercially undesirable. The
Company confirms that it is its intention to allocate all or substantially all
of the Net Investment held by it to one or more CP Tranche Periods; provided
that the Company may determine from time to time, in its sole discretion, that
funding such Net Investment by means of one or more CP Tranche Periods is not
desirable for any reason. If the Liquidity Provider acquires from the Company a
Purchased Interest with respect to the Receivables pursuant to the terms of the
Liquidity Provider Agreement, NationsBank, on behalf of the Liquidity Provider,
may exercise the right of selection granted to the Company hereby. The initial
Tranche Period applicable to any such Purchased Interest shall be a period of
not greater than 14 days. In the case of any Tranche Period outstanding upon the
occurrence of a Termination Event, such Tranche Period shall end on such date.
(b) After a Termination Event; Trans-
ferred Interest Held by Company. At all times on and after the occurrence of a
Termination Event, with respect to any portion of the Transferred Interest which
shall not have been transferred to the Bank Investors (or any
0104420.05-01S7a
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<PAGE>
of them), the Company or NationsBank, as applicable, shall select all Tranche
Periods and Tranche Rates applicable thereto.
(c) Prior to a Termination Event; Trans-
ferred Interest Held by Bank Investor. At all times with respect to any portion
of the Transferred Interest transferred to the Bank Investors (or any of them)
pursuant to Section 10.7, but prior to the occurrence of a Termination Event,
the initial Tranche Period applicable to such portion of the Net Investment
allocable thereto shall be a period of not greater than 14 days and such Tranche
shall be a BR Tranche. Thereafter, with respect to such portion, and with
respect to any other portion of the Transferred Interest held by the Bank
Investors (or any of them), provided that a Termination Event shall not have
occurred, the Tranche Period applicable thereto shall be, at the Transferor's
option, either a BR Tranche, a CD Tranche or a Eurodollar Tranche. The
Transferor shall give the Agent irrevocable notice by telephone of the new
requested Tranche Period at least three (3) Business Days prior to the
expiration of any then existing Tranche Period. In the case of any Tranche
Period outstanding upon the occurrence of a Termination Event, such Tranche
Period shall end on the date of such occurrence.
(d) After a Termination Event; Trans-
ferred Interest Held by Bank Investor. At all times on and after the occurrence
of a Termination Event, with respect to any portion of the Transferred Interest
which shall have been owned or transferred to the Bank Investors (or any of
them), the Agent shall select all Tranche Periods and Tranche Rates applicable
thereto.
(e) Eurodollar Rate Protection; Illegali-
ty. (i) If the Agent is unable to obtain on a timely basis the information
necessary to determine the LIBOR Rate for any proposed Eurodollar Tranche, then
(A) the Agent shall forthwith notify the Company or Bank
Investors, as applicable and the Transferor that the Eurodollar Rate
cannot be determined for such Eurodollar Tranche, and
(B) while such circumstances exist, neither
the Company, the Bank Investors or the Agent shall
0104420.05-01S7a
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<PAGE>
allocate the Net Investment of any additional Transferred Interests
purchased during such period or reallocate the Net Investment allocated
to any then existing Tranche ending during such period, to a Eurodollar
Tranche.
(ii) If, with respect to any outstanding Eurodollar Tranche,
the Company or any of the Bank Investors owning any Transferred Interest therein
notifies the Agent that it is unable to obtain matching deposits in the London
interbank market to fund its purchase or maintenance of such Transferred
Interest or that the Eurodol- lar Rate applicable to such Transferred Interest
will not adequately reflect the cost to the Person of funding or maintaining its
respective Transferred Interest for such Tranche Period then the Agent shall
forthwith so notify the Transferor, whereupon neither the Agent nor the Company
or the Bank Investors, as applicable, shall, while such circumstances exist,
allocate any Net Investment of any additional Transferred Interest purchased
during such period or reallocate the Net Interest allocated to any Tranche
Period ending during such period, to a Eurodollar Tranche.
(iii) Notwithstanding any other provision of this Agreement,
if the Company or any of the Bank Investors, as applicable, shall notify the
Agent that such Person has determined (or has been notified by any Liquidity
Provider) that the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful (either for the Company, such Bank
Investor, or such Liquidity Provider, as applicable), or any central bank or
other governmental authority asserts that it is unlawful, for the Company, such
Bank Investor or such Liquidity Provider, as applicable, to fund the purchases
or maintenance of Transferred Interests at the Eurodollar Rate, then (x) as of
the effective date of such notice from such Person to the Agent, the obligation
or ability of the Company or such Bank Investor, as applicable, to fund its
purchase or maintenance of Transferred Interests at the Eurodollar Rate shall be
suspended until such Person notifies the Agent that the circumstances causing
such suspension no longer exist and (y) the Net Investment of each Eurodollar
Tranche in which such Person owns an interest shall either (1) if such Person
may lawfully continue to maintain such Transferred Interest at the Eurodollar
Rate until the last day of the
0104420.05-01S7a
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<PAGE>
applicable Tranche Period, be reallocated on the last day of such Tranche Period
to another Tranche Period in respect of which the Net Investment allocated
thereto accrues Discount at a Tranche Rate other than the Euro- dollar Rate or
(2) if such Person shall determine that it may not lawfully continue to maintain
such Transferred Interest at the Eurodollar Rate until the end of the applicable
Tranche Period, such Person's share of the Net Investment allocated to such
Eurodollar Tranche shall be deemed to accrue Discount at the Base Rate from the
effective date of such notice until the end of such Tranche Period.
SECTION 2.4. Discount, Fees and Other Costs and Expenses.
Notwithstanding the limitation on recourse under Section 2.1 hereof, the
Transferor shall pay, as and when due in accordance with this Agreement, all
fees hereunder, all amounts payable pursuant to Article VIII hereof, if any, and
the Servicing Fees. On the last day of each Tranche Period, the Transferor shall
pay to the Agent, on behalf of the Company, in the event the Transferred
Interest is held by the Company, an amount equal to the discount accrued on the
Company's Commercial Paper to the extent such Commercial Paper was issued in
order to fund the Transferred Interest in an amount in excess of the Transfer
Price of an Incremental Transfer, which excess amount shall not exceed $5,000.
The Transferor shall pay to the Agent, on behalf of the Company, each day on
which Commercial Paper is issued by the Company, the Dealer Fee. Discount shall
accrue with respect to each Tranche on each day occurring during the Tranche
Period related thereto. Nothing in this Agreement shall limit in any way the
obligations of the Transferor to pay the amounts set forth in this Section 2.4.
SECTION 2.5. Non-Liquidation Settlement and Reinvestment
Procedures. On each day after the date of any Incremental Transfer but prior to
the Termination Date and provided that no Potential Termination Event for which
there is no grace period shall have occurred and be continuing, the Collection
Agent shall out of the Percentage Factor of Collections received on or prior to
such day and not previously applied or accounted for: (i) set aside and hold in
trust for the Company or the Bank Investors, as applicable (or deposit into the
Collection Account if so required pursuant to Section 2.12 hereof) an amount
equal to all Discount and the Servicing
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Fee accrued through such day and not so previously set aside or paid and (ii)
apply the balance of such Percentage Factor of Collections remaining after
application of Collections as provided in clause (i) of this Section 2.5 to the
Transferor, for the benefit of the Company or the Bank Investors, as applicable,
to the purchase of additional undivided percentage interests in each Receivable
pursuant to Section 2.2(b) hereof. On the last day of each Tranche Period, from
the amounts set aside as described in clause (i) of the first sentence of this
Section 2.5, the Collection Agent shall deposit to the Agent's account, for the
benefit of the Company or the Bank Investors, as applicable, an amount equal to
the accrued and unpaid Discount for such Tranche Period and shall deposit to its
own account an amount equal to the accrued and unpaid Servicing Fee for such
Tranche Period. The Agent, upon its receipt of such amounts in the Agent's
account, shall distribute such amounts to the Company and/or the Bank Investors
entitled thereto as set forth above; provided that if the Agent shall have
insufficient funds to pay all of the above amounts in full on any such date, the
Agent shall pay such amounts ratably (based on the amounts owing to each such
Person) to all such Persons entitled to payment thereof. In addition, the
Collection Agent shall remit to the Transferor at the end of each Tranche
Period, as provided in Section 6.2(b), such portion of Collections not allocated
to the Company and the Bank Investors.
SECTION 2.6. Liquidation Settlement Procedures. If at any time
on or prior to the Termination Date, the Percentage Factor is greater than the
Maximum Percentage Factor, then the Transferor shall immediately pay to the
Agent, for the benefit of the Company or the Bank Investors, as applicable, from
previously received Collections, an amount equal to the amount such that, when
applied in reduction of the Net Investment, will result in a Percentage Factor
less than or equal to the Maximum Percentage Factor. Such amount shall be
applied to the reduction of the Net Investment of Tranche Periods selected by
the Agent. On the Termination Date and on each day thereafter, and on each day
on which a Potential Termination Event has occurred and is continuing, the
Collection Agent shall set aside and hold in trust for the Company or the Bank
Investors, as applicable (or deposit into the Collection Account if so required
pursuant to Section 2.12 hereof) the Percentage Factor of all
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Collections received on such day and shall set aside and hold in trust for the
Transferor such portion of Collections not allocated to the Company or the Bank
Investors, as applicable. On the Termination Date or the day on which a
Potential Termination Event for which there is no grace period occurs, the
Collection Agent shall deposit to the Agent's account, for the benefit of the
Company or the Bank Investors, as applicable, any amounts set aside pursuant to
Section 2.5 above. On the last day of each Tranche Period to occur on or after
the Termination Date or during the continuance of a Potential Termination Event,
the Collection Agent shall deposit to the Agent's account to the extent not
already so deposited, for the benefit of the Company or the Bank Investors, as
applicable, the amounts so set aside for the Company or the Bank Investors
pursuant to the second preceding sentence, but not to exceed the sum of (i) the
accrued Discount for such Tranche Period, (ii) the portion of the Net Investment
allocated to such Tranche Period, and (iii) all other Aggregate Unpaids. On such
day, the Collection Agent shall deposit to its account, from the amounts set
aside for the Company and the Bank Investors pursuant to the preceding sentence
which remain after payment in full of the aforementioned amounts, the accrued
Servicing Fee for such Tranche Period. If there shall be insufficient funds on
deposit for the Collection Agent to distribute funds in payment in full of the
aforementioned amounts, the Collection Agent shall distribute funds first, in
payment of the accrued Discount, second, in payment of all fees payable by the
Transferor, third, if the Trans- feror, Tech Data or any Affiliate of the
Transferor or Tech Data is not then the Collection Agent, to the Collection
Agent's account, in payment of the Servicing Fee payable to the Collection
Agent, fourth, in reduction of the Net Investment allocated to any Tranche
Period ending on such date, fifth, in payment of all other Aggregate Unpaids and
sixth, if the Transferor, Tech Data or any Affiliate of the Transferor or Tech
Data is the Collection Agent, to its account as Collection Agent, in payment of
the Servicing Fee payable to such Person as Collection Agent. The Agent, upon
its receipt of such amounts in the Agent's account, shall distribute such
amounts to the Company and/or the Bank Investors entitled thereto as set forth
above; provided that if the Agent shall have insufficient funds to pay all of
the above amounts in full on any such date, the Agent shall pay such amounts in
the order of priority set forth above
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and, with respect to any such category above for which the Agent shall have
insufficient funds to pay all amounts owing on such date, ratably (based on the
amounts in such categories owing to such Persons) among all such Persons
entitled to payment thereof.
Following the date on which the Net Investment has been
reduced to zero, all accrued Discount and Servicing Fees have been paid in full
and all other Aggregate Unpaids have been paid in full, (i) the Collection Agent
shall recompute the Percentage Factor, (ii) the Agent, on behalf of the Company
and the Bank Investors, shall be considered to have reconveyed to the Transferor
all of the Company's and the Bank Investors' right, title and interest in and to
the Affected Assets (including the Transferred Interest), (iii) the Collection
Agent shall pay to the Transferor any remaining Collections set aside and held
by the Collection Agent pursuant to the third sentence of this Section 2.6 and
(iv) the Agent, on behalf of the Company and the Bank Investors, shall execute
and deliver to the Transferor, at the Transferor's expense, such documents or
instruments as are necessary to terminate the Company's and the Bank Investors'
respective interests in the Affected Assets. Any such documents shall be
prepared by or on behalf of the Trans- feror. On the last day of each Tranche
Period, the Collection Agent shall remit to the Transferor such portion of
Collections set aside for the Transferor pursuant to this Section 2.6.
SECTION 2.7. Fees. Notwithstanding any limitation on recourse
contained in this Agreement, the Transferor shall pay, on the last day of each
month, to the Agent, for distribution to the Company and/or the Bank Investors,
as agreed between themselves, the Program Fee and the Unused Facility Fee. The
Transferor acknowledges that the foregoing fees are non-refundable.
SECTION 2.8. Protection of Ownership Interest of the Company
and the Bank Investors. (a) The Transferor agrees that it will, and will cause
the Seller to, from time to time, at its expense, it will promptly execute and
deliver all instruments and documents and take all actions as may be necessary
or as the Agent may reasonably request in order to perfect or protect the
Transferred Interest or to enable the Agent, the Company or the Bank Investors
to exercise or enforce any of their
0104420.05-01S7a
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respective rights hereunder. Without limiting the foregoing, the Transferor
will, and will cause the Seller to, upon the reasonable request of the Agent,
the Company or any of the Bank Investors, in order to accurately reflect this
purchase and sale transaction, (x) execute and file such financing or
continuation statements or amendments thereto or assignments thereof (as
permitted pursuant to Section 11.6 hereof) as may be requested by the Agent, the
Company or any of the Bank Investors and (y) mark its and the Seller's
respective master data processing records and other documents with a legend
describing (i) in the case of the Seller, the conveyance to the Transferor and
(ii) in the case of the Transferor, the conveyance to the Agent, for the benefit
of the Company and the Bank Investors, of the Transferred Interest. The
Transferor shall, and will cause the Seller to, upon the reasonable request of
the Agent, the Company or any of the Bank Investors, obtain such additional
search reports as the Agent, the Company or any of the Bank Investors shall
request. To the fullest extent permitted by applicable law, the Agent shall be
permitted to sign and file continuation statements and amendments thereto and
assignments thereof without the Transferor's or the Seller's signature. Carbon,
photographic or other reproduction of this Agreement or any financing statement
shall be sufficient as a financing statement. The Transferor shall not, and
shall not permit the Seller to, change its respective name, identity or
corporate structure (within the meaning of Section 9-402(7) of the UCC as in
effect in the States of New York and California) nor relocate its respective
chief executive office or any office where Records are kept unless it shall
have: (i) given the Agent at least thirty (30) days prior notice thereof and
(ii) prepared at Transferor's expense and delivered to the Agent all financing
statements, instruments and other documents necessary to preserve and protect
the Transferred Interest or requested by the Agent in connection with such
change or relocation. Any filings under the UCC or otherwise that are occasioned
by such change in name or location shall be made at the expense of Trans- feror.
(b) The Collection Agent shall instruct
all Obligors to cause all Collections to be deposited directly with a Lock-Box
Bank. Any Lock-Box Account maintained by a Lock-Box Bank pursuant to the related
Lock-Box Agreement shall be under the exclusive ownership
0104420.05-01S7a
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and control of the Agent which is hereby granted to the Agent by the Seller and
the Transferor. The Collection Agent shall be permitted to give instructions to
the Lock-Box Banks for so long as neither a Collection Agent default nor any
other Termination Event has occurred hereunder. The Collection Agent shall not
add any bank as a Lock-Box Bank to those listed on Exhibit C attached hereto
unless such bank has entered into a Lock-Box Agreement. The Collection Agent
shall not terminate any bank as a Lock-Box Bank unless the Agent shall have
received fifteen (15) days' prior notice of such termination. If the Transferor
receives any Collections or is deemed to receive any Collections pursuant to
Section 2.9, the Transferor shall immediately remit such Collections to a
Lock-Box Account. Any Collections that are received by the Seller or the
Collection Agent shall be immediately, but in any event within forty-eight (48)
hours of receipt, be deposited by into a Lock-Box Account or a bank account (the
"Collection Agent Account") established by the Collection Agent pursuant to an
agreement between the Collection Agent, the Agent and a bank consented to by the
Agent, which shall be substantially in the form of a Lock-Box Agreement.
SECTION 2.9. Deemed Collections; Application of Payments. (a)
If on any day the Outstanding Balance of a Receivable is either (x) reduced as a
result of any defective, rejected or returned merchandise or services, any
discount, credit, rebate, dispute, warranty claim, repossessed or returned
goods, chargeback, allowance, any billing adjustment, dilutive factor or other
adjustment, or (y) reduced or canceled as a result of a setoff or offset in
respect of any claim by any Person (whether such claim arises out of the same or
a related transaction or an unrelated transaction), the Transferor shall be
deemed to have received on such day a Collection of such Receivable in the
amount of such reduction or cancellation and the Transferor shall pay to the
Collection Agent an amount equal to such reduction or cancellation and such
amount shall be applied by the Collection Agent as a Collection in accordance
with Section 2.5 or 2.6 hereof, as applicable. The Net Investment shall be
reduced by the amount of such payment applied to the reduction of the Net
Investment and actually received by the Agent.
0104420.05-01S7a
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(b) If on any day any of the representa-
tions or warranties in Article III was or becomes untrue with respect to a
Receivable (whether on or after the date of any transfer of an interest therein
to the Agent, the Company or the Bank Investors as contemplated hereunder), the
Transferor shall be deemed to have received on such day a Collection of such
Receivable in full and the Transferor shall on such day pay to the Collection
Agent an amount equal to the Outstanding Balance of such Receivable and such
amount shall be allocated and applied by the Collection Agent as a Collection
allocable to the Transferred Interest in accordance with Section 2.5 or 2.6
hereof, as applicable. The Net Investment shall be reduced by the amount of such
payment applied to the reduction of the Net Investment and actually received by
the Agent.
(c) Any payment by an Obligor in respect
of any indebtedness owed by it to the Transferor shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Company, be applied as a Collection of any
Receivable of such Obligor included in the Transferred Interest (starting with
the oldest such Receivable) to the extent of any amounts then due and payable
thereunder before being applied to any other receivable or other indebtedness of
such Obligor.
SECTION 2.10. Payments and Computations, Etc. All amounts to
be paid or deposited by the Transferor or the Collection Agent hereunder shall
be paid or deposited in accordance with the terms hereof no later than 11:00
a.m. (New York City time) on the day when due in immediately available funds; if
such amounts are payable to the Company or any Bank Investor they shall be paid
or deposited in the account indicated in Section 11.3 hereof, until otherwise
notified by the Agent. The Transferor shall, to the extent permitted by law, pay
to the Agent, for the benefit of the Company and the Bank Investors upon demand,
interest on all amounts not paid or deposited when due hereunder at a rate equal
to 1% per annum plus the Base Rate. All computations of Discount, interest and
all per annum fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first but excluding the last day)
elapsed. Any computations by the Agent of amounts payable by the
0104420.05-01S7a
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Transferor hereunder shall be binding upon the Transferor absent manifest error.
SECTION 2.11. Reports. Prior to the 15th day of each month,
the Collection Agent shall prepare and forward to the Agent and the
Administrative Agent (i) an Investor Report (including without limitation, a
settlement statement and a certification as to the Net Receivables Balance)
together with an aging of all Receivables, as of the close of business of the
Collection Agent on the last day of the immediately preceding month, (ii) if
requested by the Company, a listing by Obligor of all Receivables together with
an aging of such Receivables and (iii) such other information as the Agent or
the Administrative Agent may reasonably request.
SECTION 2.12. Collection Account. There shall be established
on the day of the initial Incremental Transfer hereunder and maintained, for the
benefit of the Company and the Bank Investors, with the Agent, a segregated
account (the "Collection Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Company and the
Bank Investors. On and after the occurrence of a Collection Agent default or a
Termination Event, the Collection Agent shall remit daily within forty-eight
hours of receipt to the Collection Account all Collections received with respect
to any Receivables. Funds on deposit in the Collection Account (other than
investment earnings) shall be invested by the Agent in Eligible Investments that
will mature so that such funds will be available prior to the last day of each
successive Tranche Period following such investment. On the last day of each
calendar month, all interest and earnings (net of losses and investment
expenses) on funds on deposit in the Collection Account shall be retained in the
Collection Account and be available to make any payments required to be made
hereunder (including Discount) to the Agent, the Company or the Bank Investors.
On the date on which the Net Investment is zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate Unpaids have been
paid in full, any funds remaining on deposit in the Collection Account shall be
paid to the Transferor.
SECTION 2.13. Sharing of Payments, Etc. If
the Company or any Bank Investor (for purposes of this
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Section only, being a "Recipient") shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) on
account of Transferred Interest owned by it (other than pursuant to Section 2.7,
or Article VIII and other than as a result of the differences in the timing of
the applications of Collections pursuant to Section 2.5 or 2.6) in excess of its
ratable share of payments on account of Transferred Interest obtained by the
Company and/or the Bank Investors entitled thereto, such Recipient shall
forthwith purchase from the Company and/or the Bank Investors entitled to a
share of such amount participations in the Percentage Interests owned by such
Persons as shall be necessary to cause such Recipient to share the excess
payment ratably with each such other Person entitled thereto; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such Recipient, such purchase from each such other Person shall be rescinded and
each such other Person shall repay to the Recipient the purchase price paid by
such Recipient for such participation to the extent of such recovery, together
with an amount equal to such other Person's ratable share (according to the
proportion of (a) the amount of such other Person's required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.
SECTION 2.14. Rights of Set-off. Without in any way limiting
the provisions of Section 2.13, each of the Company and the Bank Investors is
hereby authorized (in addition to any other rights it may have) at any time
after the occurrence of the Termination Date or during the continuance of a
Potential Termination Event to set-off, appropriate and apply (without
presentment, demand, protest or other notice which are hereby expressly waived)
any deposits and any other indebtedness held or owing by the Company or such
Bank Investor to, or for the account of, the Transferor against the amount of
the Aggregate Unpaids owing by the Transferor to such Person (even if contingent
or unmatured).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Transferor.
The Transferor represents and warrants to the Company, the Agent and the Bank
Investors that:
(a) Corporate Existence and Power. The
Transferor is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
corporate power and all material governmental licenses, authorizations, consents
and approvals required to carry on its business in each jurisdiction in which
its business is now conducted.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Transferor of this
Agreement, the Purchase Agreement, the Fee Letter, the Certificate and the
Transfer Certificate are within the Transferor's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, Official Body or official thereof (except as
contemplated by Section 2.8 hereof), and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
Certificate of Incorporation or Bylaws of the Transferor or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Transferor or result in the creation or imposition of any Adverse Claim on the
assets of the Transferor or any of its Subsidiaries (except as contemplated by
Section 2.8 hereof).
(c) Binding Effect. Each of this Agree-
ment, the Purchase Agreement, the Fee Letter and the Certificate constitutes and
the Transfer Certificate upon payment of the Transfer Price set forth therein
will constitute, the legal, valid and binding obligation of the Transferor,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors generally.
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(d) Perfection. Immediately preceding
each Transfer hereunder, the Transferor shall be the owner of all of the
Receivables, free and clear of all Adverse Claims. On or prior to each Transfer
and each recomputation of the Transferred Interest, all financing statements and
other documents required to be recorded or filed in order to perfect and protect
the Transferred Interest against all creditors of and purchasers from the
Transferor and Tech Data will have been duly filed in each filing office
necessary for such purpose and all filing fees and taxes, if any, payable in
connection with such filings shall have been paid in full.
(e) Accuracy of Information. All infor-
mation heretofore furnished by the Transferor (including without limitation, the
Investor Report furnished on a monthly basis and the Transferor's financial
statements) to the Company, any Bank Investors, the Agent or the Administrative
Agent for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Transferor to the Company, any Bank Investors, the Agent or the Administrative
Agent will be, true and accurate in every material respect, on the date such
information is stated or certified.
(f) Tax Status. The Transferor has filed
all tax returns (federal, state and local) required to be filed and has paid or
made adequate provision for the payment of all taxes, assessments and other
governmental charges.
(g) Action, Suits. Except as set forth
in Exhibit H, there are no actions, suits or proceedings pending, or to the
knowledge of the Transferor threatened, against or affecting the Transferor or
any Affiliate of the Transferor or their respective properties, in or before any
court, arbitrator or other body, which may materially adversely affect the
financial condition of the Transferor and the Subsidiaries taken as a whole or
materially adversely affect the ability of Transferor to perform its obligations
under this Agreement.
(h) Use of Proceeds. No proceeds of any
Transfer will be used by the Transferor to acquire any security in any
transaction which is subject to Section 13 or 14 of the Securities Exchange Act
of 1934, as amended.
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<PAGE>
(i) Place of Business. The principal
place of business and chief executive office of the Transferor are located at
the address of the Transferor indicated in Section 11.3 hereof and the offices
where the Transferor keeps all its Records, are located at the address(es)
described on Exhibit I or such other locations notified to the Agent in
accordance with Section 2.8 hereof in jurisdictions where all action required by
Section 2.8 hereof has been taken and completed.
(j) Good Title. Upon each Transfer and
each recomputation of the Transferred Interest, the Company shall acquire a
valid and perfected first priority undivided percentage ownership interest to
the extent of the Transferred Interest or a first priority perfected security
interest in each Receivable that exists on the date of such Transfer and
recomputation and in the Related Security and Collections with respect thereto
free and clear of any Adverse Claim.
(k) Tradenames, Etc. As of the date
hereof: (i) the Transferor's chief executive office is located at the address
for notices set forth in Section 11.3 hereof; (ii) the Transferor has only the
subsidiaries and divisions listed on Exhibit J hereto; and (iii) the Transferor
has, within the last five (5) years, operated only under the tradenames
identified in Exhibit J hereto, and, within the last five (5) years, has not
changed its name, merged with or into or consolidated with any other corporation
or been the subject of any proceeding under Title 11, United States Code
(Bankruptcy), except as disclosed in Exhibit J hereto.
(l) Nature of Receivables. Each Receiv-
able (x) represented by the Transferor or the Collection Agent to be an Eligible
Receivable (including in any Investor Report or other report delivered pursuant
to Section 2.11 hereof) or (y) included in the calculation of the Net
Receivables Balance in fact satisfies at such time the definition of "Eligible
Receivable" set forth herein and is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act, of 1940, as amended and, in the case of clause
(y) above, is not a Receivable of the type described in clauses (i) through
(iii) of the definition of "Net Receivables Balance."
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(m) Coverage Requirement; Amount of
Receivables. The Percentage Factor does not exceed the Maximum Percentage
Factor. As of December 31, 1996 the aggregate Outstanding Balance of the
Receivables in exis- tence was $503,847,551 and the Net Receivables Balance was
$456,871,841.
(n) No Termination Event. No event has
occurred and is continuing and no condition exists which constitutes a
Termination Event or a Potential Termination Event or if either such event has
occurred, the Transferor has notified the Company in writing of either such
event immediately upon learning of the occurrence thereof, describing the same
and if applicable, the steps being taken by the Person(s) affected with respect
thereto.
(o) Not an Investment Company. The
Transferor is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all provisions of such Act.
(p) ERISA. The Transferor and each of
its ERISA Affiliates is in compliance in all material respects with ERISA and no
ERISA lien exists on any of the Receivables.
(q) Lock-Box Accounts. The name and
address of the Bank where the Collection Agent Account is maintained, together
with the account number of such account, and the names and addresses of all the
Lock-Box Banks, together with the account numbers of the Lock-Box Accounts of
Tech Data at such Lock-Box Banks, are specified in Exhibit C hereto (or at such
other Lock-Box Banks and/or with such other Lock-Box Accounts as have been
notified to the Agent and for which Lock-Box Agreements have been executed in
accordance with Section 2.8(b) hereof and delivered to the Collection Agent).
All Obligors have been instructed to make payment to a Lock- Box Account and
only Collections are deposited into the Lock-Box Accounts.
Any document, instrument, certificate or notice delivered to
the Company hereunder shall be deemed a representation and warranty by the
Transferor.
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SECTION 3.2. Reaffirmation of Representations and Warranties
by the Transferor. On each day that a Transfer is made hereunder, the
Transferor, by accepting the proceeds of such Transfer, whether delivered to the
Transferor pursuant to Section 2.2(a) or Section 2.5 hereof, shall be deemed to
have certified that all representations and warranties described in Section 3.1
hereof are correct on and as of such day as though made on and as of such day.
Each Incremental Transfer shall be subject to the further condition precedent
that prior to the date of such Transfer, the Collection Agent shall have
delivered to the Agent and the Administrative Agent, in form and substance
satisfactory to the Agent and the Administrative Agent, a completed Investor
Report dated within 14 days prior to the date of such Transfer, together with a
listing by Obligor, if requested, and such additional information as may be
reasonably requested by the Agent or the Administrative Agent; and the
Transferor shall be deemed to have represented and warranted that such
conditions precedent have been satisfied.
SECTION 3.3. Representations and Warranties of Tech Data, as
Collection Agent and Guarantor. Tech Data, as Collection Agent and Guarantor
represents and warrants to the Company and the Bank Investors that:
(a) Corporate Existence and Power. Tech
Data is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has all corporate power
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business in each jurisdiction in which its business is
now conducted.
(b) Corporate and Governmental Autho-
rization; Contravention. The execution, delivery and performance by Tech Data of
this Agreement and the Purchase Agreement are within Tech Data's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any Official Body or official
thereof (except for the filing of UCC financing statements in connection with
the Purchase Agreement), and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the Certificate of
Incorporation or Bylaws of Tech Data or of any agreement, judgment, injunction,
order, decree or other instrument binding upon
0104420.05-01S7a
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Tech Data or result in the creation or imposition of any Adverse Claim on the
assets of Tech Data or any of Tech Data's Subsidiaries except as contemplated by
this Agreement and the Purchase Agreement.
(c) Binding Effect. Each of this Agree-
ment and the Purchase Agreement constitute the legal, valid and binding
obligation of Tech Data, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors.
(d) Accuracy of Information. All infor-
mation heretofore furnished by Tech Data to the Transfer- or, the Agent, the
Company, any Bank Investor or the Administrative Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by Tech Data to the Transferor, the
Agent, the Company, any Bank Investor or the Administrative Agent will be, true
and accurate in every material respect, on the date such information is stated
or certified.
(e) Tax Status. Tech Data has filed all
tax returns (federal, state and local) required to be filed and has paid or made
adequate provision for the payment of all taxes, assessments and other
governmental charges.
(f) Action, Suits. Except as set forth
in Exhibit H hereto, there are no actions, suits or proceedings pending, or to
the knowledge of Tech Data threatened, against or affecting Tech Data or any
Affiliate of Tech Data or their respective properties, in or before any court,
arbitrator or other body, which may materially adversely affect the financial
condition of Tech Data and Tech Data's Subsidiaries taken as a whole or
materially adversely affect the ability of Tech Data to perform its obligations
under this Agreement.
(g) Credit and Collection Policy. Since
Closing Date, there have been no material changes in Tech Data's Credit and
Collection Policy; since such date, no material adverse change has occurred in
the overall rate of collection of the Receivables.
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(h) Collections and Servicing. Since
December 31, 1996, there has been no material adverse change in the ability of
Tech Data to service and collect the Receivables.
(i) Place of Business. The principal
place of business and chief executive office of Tech Data are located at the
address of Tech Data indicated in Section 11.3 hereof and the offices where Tech
Data keeps all its Records, are located at the address(es) described on Exhibit
I or such other locations notified to the Company in accordance with Section 2.8
hereof in jurisdictions where all action required by Section 2.8 hereof has been
taken and completed.
(j) Tradenames, Etc. As of the date
hereof: (i) Tech Data's chief executive office is located at the address for
notices set forth in Section 11.3 hereof; (ii) Tech Data has only the
subsidiaries and divisions listed on Exhibit J hereto; and (iii) Tech Data has,
within the last five (5) years, operated only under the tradenames identified in
Exhibit J hereto, and, within the last five (5) years, has not changed its name,
merged with or into or consolidated with any other corporation or been the
subject of any proceeding under Title 11, United States Code (Bankruptcy),
except as disclosed in Exhibit J hereto.
(k) Nature of Receivables. Each Receiv-
able is an "eligible asset" as defined in Rule 3a-7 under the Investment Company
Act, of 1940, as amended.
(l) No Termination Event. No event has
occurred and is continuing and no condition exists which constitutes a
Termination Event or a Potential Termination Event or if either such event has
occurred, Tech Data has notified the Company in writing of either such event
immediately upon learning of the occurrence thereof, describing the same and if
applicable, the steps being taken by the Person(s) affected with respect
thereto.
(m) Not an Investment Company. Tech Data
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is exempt from all provisions of such Act.
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(n) ERISA. Tech Data is in compliance in
all material respects with ERISA and no lien exists in favor of the Pension
Benefit Guaranty Corporation on any of the Receivables.
SECTION 3.4. Reaffirmation of Representations and Warranties
by Tech Data, as Collection Agent and Guarantor. On each day that a Transfer is
made hereunder, Tech Data shall be deemed to have certified that all
representations and warranties described in Section 3.3 are correct on and as of
such day as though made on and as of such day.
Any document, instrument, certificate or notice delivered to
the Company hereunder shall be deemed a representation and warranty by Tech
Data.
0104420.05-01S7a
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ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing. On or prior to the date of
execution hereof, the Transferor shall deliver to the Agent the following
documents, instruments and fees all of which shall be in a form and substance
acceptable to the Agent:
(a) A copy of the resolutions of the
Board of Directors of the Transferor and Tech Data certified by its Secretary
approving the execution, delivery and performance by the Transferor and Tech
Data of this Agreement, the Purchase Agreement and the other Transaction
Documents to be delivered by the Transferor and Tech Data hereunder or
thereunder.
(b) The Articles of Incorporation of the
Transferor and of Tech Data certified by the Secretary of State or other similar
official of the Transferor's and Tech Data's respective jurisdictions of
incorporation, each dated a date reasonably prior to the Closing Date.
(c) A Good Standing Certificate for the
Transferor and a Certificate of Status for Tech Data issued by the Secretary of
State or a similar official of the Transferor's and Tech Data's respective
jurisdictions of incorporation and certificates of qualification as a foreign
corporation issued by the Secretaries of State or other similar officials of
each jurisdiction where such qualification is material to the transactions
contemplated by this Agreement and the other Transaction Documents, in each
case, dated a date reasonably prior to the Closing Date.
(d) A Certificate of the Secretary of the
Transferor and Tech Data substantially in the form of Exhibit L attached hereto
certifying (i) the names and signatures of the officers authorized on its behalf
to execute this Agreement, the Purchase Agreement, the Certificate, the Fee
Letter and any other documents to be delivered by it hereunder (on which
Secretary's Certificates the Company may conclusively rely until such time as
the Company shall receive from the Transferor and Tech Data a revised
Certificate meeting the requirements of
0104420.05-01S7a
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this clause (d)(i)) and (ii) a copy of the Transferor's
and Tech Data's By-Laws.
(e) Copies of proper financing statements
(Form UCC-1), dated a date reasonably near to the date of the initial
Incremental Transfer naming the Transferor as the debtor in favor of the Agent,
for the benefit of the Company and the Bank Investors, secured party or other
similar instruments or documents as may be necessary or in the reasonable
opinion of the Agent desirable under the UCC of all appropriate jurisdictions or
any comparable law to perfect the Agent's undivided percentage interest in all
Receivables and the Related Security and Collections relating thereto.
(f) Copies of proper financing statements
(Form UCC-1), dated a date reasonably near to the date of the initial
Incremental Transfer naming Tech Data as the debtor in favor of the Transferor
as secured party and the Agent, for the benefit of the Company and the Bank
Investors, as assignee of the secured party or other similar instruments or
documents as may be necessary or in the reasonable opinion of the Agent
desirable under the UCC of all appropriate jurisdictions or any comparable law
to perfect the Transferor's ownership interest in all Receivables.
(g) Copies of proper financing statements
(Form UCC-3), if any, necessary to terminate all security interests and other
rights of any person in Receivables previously granted by Tech Data and the
Transferor.
(h) Certified copies of request for
information or copies (Form UCC-11) (or a similar search report certified by
parties acceptable to the Agent) dated a date reasonably near the date of the
initial Incremental Transfer listing all effective financing statements which
name the Transferor or the Seller (under their respective present names and any
previous names) as debtor and which are filed in jurisdictions in which the
filings were made pursuant to items (e) or (f) above together with copies of
such financing statements (none of which shall cover any Receivables or
Contracts).
(i) Executed copies of the Lock-Box
Agreements, relating to each of the Lock-Boxes and the
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Lock-Box Accounts, and an executed copy of the agreement referred to in Section
2.8(b).
(j) An opinion of David Vetter, counsel
to Tech Data, addressing certain corporate matters relating to Tech Data,
covering the appropriate matters set forth in Exhibit K hereto.
(k) An opinion of Heller, Ehrman, White &
McAuliffe, special California counsel to the Transferor, addressing certain
corporate matters relating to the Transferor, covering the appropriate matters
set forth in Exhibit K hereto.
(l) A certificate of the Transferor and
Tech Data in the form of Exhibit L-1 and Exhibit L-2 hereto executed by Arthur
W. Singleton, Secretary of the Transferor and Tech Data, respectively.
(m) A hard copy, microfiche or computer
tape setting forth all Receivables and the Outstanding Balances thereon and such
other information as the Agent may reasonably request.
(n) An executed copy of this Agreement,
the Purchase Agreement, and the Fee Letter.
(o) The Transfer Certificate, duly exe-
cuted by the Transferor.
(p) The Certificate, duly executed by the
Transferor and appropriately completed.
(q) An Investor Report for December 31,
1996.
(r) An assignment by NationsBank, N.A.,
as collateral agent under the Company's commercial paper program, of its
interest in certain of the Lock-Box Agreements to the Agent.
(s) A letter agreement, dated the Closing
Date, between NationsBank, N.A. and the Transferor relat-
ing to certain legal opinion matters.
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(t) Such other documents, instruments,
certificates and opinions as the Agent or the Administra-
tive Agent, shall reasonably request.
SECTION 4.2. Post Closing Conditions. On or prior to February
3, 1997, the Transferor shall deliver to the Agent the following documents,
which shall be in a form and substance acceptable to the Agent:
(a) An opinion of Heller, Ehrman, White &
McAuliffe, special California counsel to the Transferor, addressing certain
security interest and Uniform Commercial Code matters relating to the Agent's
interest in the Receivables; and
(b) An original fully executed copy of a
Lock-Box Agreement relating to account number 3750627895 maintained at
NationsBank of Texas, N.A.
0104420.05-01S7a
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ARTICLE V
COVENANTS
SECTION 5.1. Affirmative Covenants of Trans- feror. At all
times from the date hereof to the later to occur of (i) the Termination Date or
(ii) the date on which the Net Investment has been reduced to zero, all accrued
Discount and Servicing Fees shall have been paid in full and all other Aggregate
Unpaids shall have been paid in full, in cash, unless the Agent shall otherwise
consent in writing:
(a) Reports. The Transferor shall deliv-
er to the Agent, on behalf of the Company:
(i) Compliance Certificate. Within one hundred and
twenty (120) days of the close of each of its fiscal years and within
sixty (60) days of the close of each of the first three fiscal quarters
of each of its fiscal years, a compliance certificate signed by its
chief financial officer stating that no Termination Event or Potential
Termination Event exists, or if any Termination Event or Potential
Termination Event exists, stating the nature and status thereof.
(ii) Notice of Termination Events or Potential
Termination Events. As soon as possible and in any event within two
days after the occurrence of each Termination Event or each Potential
Termination Event, a statement of the chief financial officer or chief
accounting officer of the Transferor setting forth details of such
Termination Event or Potential Termination Event and the action which
the Transferor proposes to take with respect thereto.
(iii) Change in Credit and Collection Policy. Within
15 days after the date any material change in or amendment to the
Credit and Collection Policy is made, a copy of the Credit and
Collection Policy then in effect indicating such change or amendment.
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(iv) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any
"reportable event" (as defined in Article IV of ERISA) which the
Transferor, Tech Data or any Affiliate of the Transferor files under
ERISA with the Internal Revenue Service, the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or which the Transferor,
Tech Data or any Affiliates of the Transferor receives from the
Internal Revenue Service, the Pension Benefit Guaranty Corporation or
the U.S. Department of Labor.
(v) Other Information. Such other
information (including non-financial in- formation) as the Agent, or
the Administrative Agent, may from time to time reasonably re- quest.
(b) Conduct of Business. The Transferor
will carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted and do
all things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
(c) Compliance with Laws. The Transferor
will comply in all material respects with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject.
(d) Furnishing of Information and Inspec-
tion of Records. The Transferor will furnish to the Agent from time to time such
information with respect to the Receivables as the Agent may reasonably request,
including, without limitation, listings identifying the Obligor and the
Outstanding Balance for each Receivable. The Transferor will at any time and
from time to time during regular business hours upon forty-eight (48) hours
prior written notice, permit the Agent, or its agents or representatives, (i) to
examine and make copies of and abstracts from all Records and (ii) to visit the
offices and properties of the Transferor or Tech Data, as appli-
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cable, for the purpose of examining such Records, and to discuss matters
relating to Receivables or the Transferor's performance hereunder with any of
the officers, directors, employees or independent public accountants of the
Transferor having knowledge of such matters.
(e) Keeping of Records and Books of
Account. The Transferor will maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Receivables in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable); provided, that the Transferor shall not be required
to keep and maintain such records with respect to any Receivables for a period
of more than sixty (60) days after such Receivables shall have been paid in full
by the Obligors thereof. The Transferor will give the Agent notice of any
material change in the administrative and operating procedures referred to in
the previous sentence.
(f) Performance and Compliance with
Receivables and Contracts. The Transferor will at its expense timely and fully
perform and comply with all material provisions, covenants and other promises
required to be observed by it under the Contracts related to the Receivables.
(g) Credit and Collection Policies. The
Transferor will comply in all material respects with the Credit and Collection
Policy in regard to each Receivable and the related Contract.
(h) Collections. The Transferor shall
instruct all Obligors to cause all Collections to be
deposited directly to a Lock-Box Account.
(i) Collections Received by Transferor.
The Transferor shall hold in trust, and deposit, immediately, but in any event
not later than forty-eight (48) hours of its receipt thereof, to a Lock-Box
Account all Collections received from time to time by the Transferor
0104420.05-01S7a
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(including without limitation, in the case of the Trans- feror, all Collections
deemed to have been received by the Transferor under Section 2.9(a)).
SECTION 5.2. Negative Covenants of Transferor. At all times
from the date hereof to the later to occur of (i) the Termination Date or (ii)
the date on which the Net Investment has been reduced to zero, all accrued
Discount and Servicing Fees shall have been paid in full and all other Aggregate
Unpaids shall have been paid in full, in cash, unless the Agent shall otherwise
consent in writing:
(a) No Sales, Liens, Etc. Except as
otherwise provided herein, the Transferor will not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon (or the filing of any financing statement) or with respect to
(x) any of the Affected Assets, (y) any inventory or goods, the sale of which
may give rise to a Receivable or any Receivable or related Contract, or (z) any
account which concentrates in a Lock-Box Bank to which any Collections of any
Receivable are sent, or assign any right to receive income in respect thereof.
(b) No Extension or Amendment of Receiv-
ables. Except as otherwise permitted in Section 6.2 hereof, the Transferor will
not extend, amend or otherwise modify the terms of any Receivable, or amend,
modify or waive any term or condition of any Contract related thereto.
(c) No Change in Business or Credit and
Collection Policy. The Transferor will not make any change in the character of
its business or in the Credit and Collection Policy, which change would, in
either case, impair the collectibility of the Receivables in a material respect.
(d) No Mergers, Etc. The Transferor will
not (i) consolidate or merge with or into any other Person, or (ii) sell, lease
or transfer all or substantially all of its assets to any other person;
provided, however, that so long as the Transferor remains wholly owned by Tech
Data, the foregoing prohibitions will not apply.
0104420.05-01S7a
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(e) Change in Payment Instructions to
Obligors. The Transferor will not add or terminate any bank as a Lock-Box Bank
or any account as a Lock-Box Account to or from those listed in Exhibit C hereto
or make any change in its instructions to Obligors regarding payments to be made
to any Lock-Box Account, unless (i) such instructions are to deposit such
payments to another existing Lock-Box Account or (ii) the Agent shall have
received written notice of such addition, termination or change at least 30 days
prior thereto and the Agent shall have received a Lock-Box Agreement executed by
each new Lock-Box Bank or an existing Lock-Box Bank with respect to each new
Lock-Box Account, as applicable.
(f) Deposits to Lock-Box Accounts. The
Transferor will not deposit or otherwise credit, or cause or permit to be so
deposited or credited, to any Lock-Box Account cash or cash proceeds other than
Collections of Receivables or cash proceeds of other receivables that were
originally Receivables but were not Eligible Receivables on the date of the
initial Transfer hereunder and so were subsequently repurchased by the
Transferor pursuant to Section 2.9 and, upon any deposit of any proceeds of such
other receivables to any Lock-Box Account, remove such proceeds within two
Business Days following such deposit.
(g) Change of Name, Etc. The Transferor
will not change its name, identity or structure or the location of its chief
executive office, unless at least 10 days prior to the effective date of any
such change the Transferor delivers to the Agent (i) such documents, instruments
or agreements, executed by the Transferor, necessary to reflect such change and
to continue the perfection of the Agent's ownership interests or security
interests in the Affected Assets and (ii) new or revised Lock-Box Agreements
executed by the Lock-Box Banks which reflect such change and enable the Agent to
continue to exercise its rights contained in Section 2.8 hereof.
(h) Amendment to Purchase Agreement. The
Transferor will not amend, modify, or supplement the Purchase Agreement between
the Transferor and Tech Data, except that the Transferor may, upon 15 days prior
written notice to the Agent and the Administrative Agent, enter into an
amendment, modification or supplement to the Purchase Agreement, provided the
same shall not mate-
0104420.05-01S7a
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rially adversely affect the interests of the Agent, the Company or any Bank
Investor; nor shall the Transferor take any other action under the Purchase
Agreement that shall have the same such affect upon the interests of the Agent,
the Company, or any Bank Investor.
SECTION 5.3. Affirmative Covenants of Tech Data. At all times
from the date hereof to the later to occur of (i) the Termination Date or (ii)
the date on which the Transferred Interest shall be equal to zero, unless the
Agent shall otherwise consent in writing:
(a) Financial Reporting. Tech Data will
maintain, for itself, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Agent and each Bank Investor:
(i) Annual Reporting. Within one hundred and twenty
(120) days after the close of each of its fiscal years, an unqualified
audit report certified by independent certified public accountants,
acceptable to the Agent, prepared in accordance with generally accepted
accounting principles on a consolidated and consolidating basis
(consolidating statements need not be certified by such accountants)
for itself including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus statements, and a
statement of cash flows, accompanied by any management letter prepared
by said accountants and by a certificate of said accountants that, in
the course of the foregoing, they have obtained no knowledge of any
Termination Event or Potential Termination Event, or if, in the opinion
of such accountants, any Termination Event or Potential Termination
Event shall exist, stating the nature and status thereof.
(ii) Quarterly Reporting. With-
in sixty (60) days after the close of the first three quarterly periods
of each of its fiscal years, for itself consolidated and consolidating
unaudited balance sheets as at the close of each such period and
consolidated and consoli-
0104420.05-01S7a
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dating profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer.
(iii) Compliance Certificate. Together with the
financial statements required hereunder, a compliance certificate
signed by its chief financial officer stating that no Termination Event
or Potential Termination Event exists, or if any Termination Event or
Potential Termination Event exists, stating the nature and status
thereof and containing a computation of, and showing compliance with,
each of the financial ratios and restrictions contained in this
Agreement and showing all information necessary in order to determine
the Applicable Margin.
(iv) Shareholders Statements and
Reports. Promptly upon the furnishing thereof to the shareholders of
Tech Data, copies of all financial statements, reports and proxy
statements so furnished.
(v) S.E.C. Filings. Promptly
upon the filing thereof, copies of all registration statements and
nnual, quarterly, monthly or other regular reports which Tech Data
or any subsidiary files with the Securities and Exchange Commission.
(vi) Other Information. Such
other information (including non-financial in- formation) as the Agent
may from time to time reasonably request.
(b) Conduct of Business. Tech Data will,
and will cause each of its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and maintain all requisite authority to
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conduct its business in each jurisdiction in which its
business is conducted.
(c) Compliance with Laws. Tech Data
will, and will cause each of its Subsidiaries to, comply in all material
respects with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it or its properties may be subject.
(d) Furnishing of Information and Inspec-
tion of Records. Tech Data will furnish to the Transfer- or and the Agent from
time to time such information with respect to the Receivables as the Transferor
or the Agent may reasonably request, including, without limitation, listings
identifying the Obligor and the Outstanding Balance for each Receivable. Tech
Data will at any time and from time to time during regular business hours upon
forty-eight (48) hours prior written notice, permit the Agent, or its agents or
representatives, (i) to examine and make copies of and abstracts from all
Records and (ii) to visit the offices and properties of Tech Data for the
purpose of examining such Records, and to discuss matters relating to
Receivables or Tech Data's performance hereunder with any of the officers,
directors, employees or independent public accountants of Tech Data having
knowledge of such matters.
(e) Keeping of Records and Books of
Account. Tech Data will maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate records
evidencing Receivables in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including, without limitation, records adequate to permit the daily
identification of each new Receivable and all Collections of and adjustments to
each existing Receivable); provided, that Tech Data shall not be required to
keep and maintain such records with respect to any Receivables for a period of
more than sixty (60) days after such Receivables shall have been paid in full by
the Obligors thereof. Tech Data will give the Agent notice of any material
change in the administrative and operating procedures referred to in the
previous sentence.
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(f) Performance and Compliance with
Receivables and Contracts. Tech Data, at its expense, will timely and fully
perform and comply with all material provisions, covenants and other promises
required to be observed by it under the Contracts related to the Receivables.
(g) Credit and Collection Policies. Tech
Data will comply in all material respects with the Credit and Collection Policy
in regard to each Receivable and the related Contract.
(h) Collections. Tech Data shall in-
struct all Obligors to cause all Collections to be depos-
ited directly to a Lock-Box Account.
(i) Collections Received by Tech Data.
Tech Data shall hold in trust, and deposit, immediately, but in any event not
later than forty-eight (48) hours of its receipt thereof, to a Lock-Box Account
or the Collection Agent Account all Collections received from time to time by
Tech Data.
(j) Transfer of Receivables. Tech Data
shall sell or contribute Receivables (as defined in the Purchase Agreement) to
the Transferor at such time or times as necessary in order to cause the
Percentage Factor not to exceed the Maximum Percentage Factor.
SECTION 5.4. Negative Covenants of Tech Data. At all times
from the date hereof to the later to occur of (i) the Termination Date or (ii)
the date on which the Net Investment has been reduced to zero, all accrued
Discount and Servicing Fees shall have been paid in full and all other Aggregate
Unpaids shall have been paid in full, in cash, unless the Agent shall otherwise
consent in writing:
(a) No Sales, Liens, Etc. Except as
otherwise provided herein and in the Receivables Purchase Agreement, Tech Data
will not sell, assign (by operation of law or otherwise) or otherwise dispose
of, or create or suffer to exist any Adverse Claim upon (or the filing of any
financing statement) or with respect to (x) any of the Affected Assets, (y) any
inventory or goods, the sale of which may give rise to a Receivable or any
Receivable or related Contract, or (z) any account which concen-
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trates in a Lock-Box Bank to which any Collections of any Receivable are sent,
or assign any right to receive income in respect thereof.
(b) No Extension or Amendment of Receiv-
ables. Except as otherwise permitted in Section 6.2 hereof, Tech Data will not
extend, amend or otherwise modify the terms of any Receivable, or amend, modify
or waive any term or condition of any Contract related thereto.
(c) No Change in Business or Credit and
Collection Policy. Tech Data will not make any change in the character of its
business or in the Credit and Collection Policy, which change would, in either
case, impair the collectibility of the Receivables in a material respect.
(d) No Mergers, Etc. Tech Data will not
(i) consolidate or merge with or into any other Person if such action shall
result in a Potential Termination Event or a Termination Event and Tech Data
shall not be the surviving entity or (ii) sell, lease or transfer all or
substantially all of its assets to any other person.
(e) Change in Payment Instructions to
Obligors. Tech Data will not add or terminate any bank as a Lock-Box Bank or any
account as a Lock-Box Account to or from those listed in Exhibit C hereto or
make any change in its instructions to Obligors regarding payments to be made to
any Lock-Box Account, unless (i) such instructions are to deposit such payments
to another existing Lock-Box Account or (ii) the Agent shall have received
written notice of such addition, termination or change at least 30 days prior
thereto and the Agent shall have received a Lock-Box Agreement executed by each
new Lock-Box Bank or an existing Lock-Box Bank with respect to each new Lock-Box
Account, as applicable.
(f) Deposits to Lock-Box Accounts. Tech
Data will not deposit or otherwise credit, or cause or permit to be so deposited
or credited, to any Lock-Box Account cash or cash proceeds other than
Collections of Receivables or cash proceeds or other receivables that were
originally Receivables but were not Eligible Receivables on the date of the
initial Transfer hereunder and so were subsequently repurchased by the
Transferor pursu-
0104420.05-01S7a
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<PAGE>
ant to Section 2.9 and, upon any deposit of any proceeds of such other
receivables to any Lock-Box Account, remove such proceeds within two Business
Days following such deposit.
(g) Change of Name, Etc. Tech Data will
not change its name, identity or structure or location of its chief executive
office, unless at least 10 days prior to the effective date of any such change
Tech Data delivers to the Transferor and the Agent (i) such documents,
instruments or agreements, executed by the Transferor, as are necessary to
reflect such change and to continue the perfection of the Transferor's ownership
interest in the Receivables and (ii) new or revised Lock-Box Agreements executed
by the Lock-Box Banks which reflect such change and enable the Agent to continue
to exercise its rights contained in Section 2.8 hereof.
SECTION 5.5. Financial Covenants.
(a) Indebtedness to Total Capital.
Tech Data shall not permit the ratio of Consolidated Funded
Indebtedness to Consolidated Total Capital to exceed .60 to 1.00 at any
time.
(b) EBIT to Interest Expense. Tech Data shall not
permit the ratio of Consolidated EBIT to Consolidated Interest Expense
to be less than 2.50 to 1.00 at any time.
Capitalized terms used in this Section 5.5 and not defined
herein shall have those meanings assigned in Exhibit N.
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ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. Appointment of Collection Agent. The servicing,
administering and collection of the Receivables shall be conducted by such
Person (the "Collection Agent") so designated from time to time in accordance
with this Section 6.1. Until the Agent gives notice to Tech Data of the
designation of a new Collection Agent, Tech Data is hereby designated as, and
hereby agrees to perform the duties and obligations of, the Collection Agent
pursuant to the terms hereof. The Collection Agent may not delegate any of its
rights, duties or obligations hereunder, or designate a substitute Collection
Agent, without the prior written consent of the Agent, and provided that the
Collection Agent shall continue to remain solely liable for the performance of
the duties as Collection Agent hereunder. The Agent may, and upon the direction
of the Majority Investors, shall, after the occurrence of a Collection Agent
default or any other Termination Event designate as Collection Agent any Person
(including itself) to succeed Tech Data or any successor Collection Agent, on
the condition in each case that any such Person so designated shall agree to
perform the duties and obligations of the Collection Agent pursuant to the terms
hereof. The Agent, at any time following the occurrence of a Termination Event,
may notify any Obligor of the Transferred Interest.
SECTION 6.2. Duties of Collection Agent.
(a) Subject to the limitations contained
herein, the Collection Agent shall take or cause to be taken all such action as
may be necessary or advisable to collect each Receivable from time to time, all
in accordance with applicable laws, rules and regulations, with reasonable care
and diligence, and in accordance with the Credit and Collection Policy. Each of
the Transferor, the Company, the Agent and the Bank Investors hereby appoints as
its agent the Collection Agent, from time to time designated pursuant to Section
6.1 hereof, to enforce its respective rights and interests in and under the
Affected Assets. To the extent permitted by applicable law, each of the
Transferor and the Seller (to the extent not then acting as Collection Agent
hereunder)
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hereby grants to any Collection Agent appointed hereunder an irrevocable power
of attorney to take any and all steps in the Transferor's and/or the Seller's
name and on behalf of the Transferor or the Seller necessary or desirable, in
the reasonable determination of the Collection Agent, to collect all amounts due
under any and all Receivables, including, without limitation, endorsing the
Transferor's and/or the Seller's name on checks and other instruments
representing Collections and enforcing such Receivables and the related
Contracts. The Collection Agent shall set aside for the account of the
Transferor and the Company or the Bank Investors their respective allocable
shares of the Collections of Receivables in accordance with Sections 2.5 and 2.6
hereof. The Collection Agent shall segregate and deposit to the Agent's account
the Company's and the Bank Investors' allocable share of Collections of
Receivables when required pursuant to Article II hereof. So long as no
Termination Event shall have occurred and be continuing, the Collection Agent
may, in accordance with the Credit and Collection Policy, extend the maturity of
Receivables, but not beyond 60 days, and extend the maturity or adjust the
Outstanding Balance as the Collection Agent may determine to be appropriate to
maximize Collections thereof; provided, however, that such extension or
adjustment shall not alter the status of such Receivable as a Delinquent
Receivable or a Defaulted Receivable. The Transferor shall deliver to the
Collection Agent and the Collection Agent shall hold in trust for the
Transferor, the Company, the Agent and the Bank Investors, in accordance with
their respective interests, all Records which evidence or relate to Receivables
or Related Security. Notwithstanding anything to the contrary contained herein,
the Agent shall have the absolute and unlimited right to direct the Transferor,
if Tech Data is the Collection Agent, or if Tech Data is not the Collection
Agent, the Collection Agent to commence or settle any legal action to enforce
collection of any Receivable or to foreclose upon or repossess any Related
Security. The Collection Agent shall not make the Agent, the Company or any of
the Bank Investors a party to any litigation without the prior written consent
of such Person.
(b) The Collection Agent shall, as soon
as practicable following receipt of any Collections, turn over to the Transferor
an amount equal to such Collections minus the Percentage Factor of such
Collections.
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In addition, the Collection Agent shall, as soon as practicable following
receipt thereof, turn over to the Transferor any collections of any indebtedness
of any Obligor which is not a Receivable. If the Collection Agent is not Tech
Data or the Transferor or any Affiliate of the Transferor or Tech Data, the
Collection Agent, by giving three Business Days' prior written notice to the
Agent, may revise the percentage used to calculate the Servicing Fee so long as
the revised percentage will not result in a Servicing Fee that exceeds 110% of
the reasonable and appropriate out-of-pocket costs and expenses of such
Collection Agent incurred in connection with the performance of its obligations
hereunder as documented to the reasonable satisfaction of the Agent. The
Collection Agent, if other than Tech Data, shall as soon as practicable upon
demand, deliver to the Transferor all Records in its possession which evidence
or relate to indebtedness of an Obligor which is not a Receivable, and copies of
Records in its possession which evidence or relate to Receivables.
(c) On or before 120 days after the end
of each fiscal year of the Collection Agent, beginning with the fiscal year
ending January 31, 1997, the Collection Agent shall cause a firm of independent
public accountants (who may also render other services to the Collection Agent
or the Transferor) to furnish a report to the Agent to the effect that they have
(i) confirmed the Net Receivables Balance as of the end of each Tranche Period
during such fiscal year, and (ii) confirmed that the Receivables treated by the
Collection Agent as Eligible Receivables in fact satisfied the requirements of
the definition thereof contained herein, except, in each case for (a) such
exceptions as such firm shall believe to be immaterial (which exceptions need
not be enumerated) and (b) such other exceptions as shall be set forth in such
statement.
(d) Notwithstanding anything to the
contrary contained in this Article VI, the Collection Agent, if not Tech Data,
the Transferor, or any Affiliate of the Transferor or Tech Data, shall have no
obligation to collect, enforce or take any other action described in this
Article VI with respect to any indebtedness that is not included in the
Transferred Interest other than to deliver to the Transferor the collections and
documents
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with respect to any such Receivable as described in
Section 6.2(b) hereof.
SECTION 6.3. Rights After Designation of New Collection Agent.
At any time following the designation of a Collection Agent (other than Tech
Data, the Trans- feror, or any Affiliate of Tech Data or the Transferor)
pursuant to Section 6.1 hereof:
(i) The Agent may direct that payment of all amounts
payable under any Receivable be made directly to the Agent or its
designee.
(ii) Tech Data shall, at the Agent's request and at
Tech Data's expense, give notice of the Agent's, the Transferor's, the
Company's and/or the Bank Investor's ownership of Receivables to each
Obligor and direct that payments be made directly to the Agent or its
designee.
(iii) Tech Data shall, at the Agent's request, (A)
assemble all of the Records, and shall make the same available to the
Agent at a place selected by the Agent or its designee, and (B)
segregate all cash, checks and other instruments received by it from
time to time constituting Collections of Receivables in a manner
acceptable to the Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(iv) The Transferor and Tech Data hereby authorize
the Agent to take any and all steps in the Transferor's or Tech Data's
name and on behalf of the Transferor or Tech Data necessary or
desirable, in the determination of the Agent, to collect all amounts
due under any and all Receivables, including, without limitation,
endorsing the Transferor's or Tech Data's name on checks and other
instruments representing Collections and enforcing such Receivables and
the related Contracts.
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SECTION 6.4. Responsibilities of the Trans- feror and Tech
Data. Anything herein to the contrary notwithstanding, the Transferor and Tech
Data, as seller under the Purchase Agreement, shall (i) perform all of their
respective obligations under the Contracts related to the Receivables to the
same extent as if interests in such Receivables had not been sold hereunder and
the exercise by the Agent of its rights hereunder shall not relieve the
Transferor or Tech Data, as seller under the Purchase Agreement, from such
obligations and (ii) pay when due any taxes, including without limitation, any
sales taxes payable in connection with the Receivables and their creation and
satisfaction. Neither the Agent nor the Company nor any of the Bank Investors
shall have any obligation or liability with respect to any Receivable or related
Contracts, nor shall it be obligated to perform any of the obligations of the
Transferor or Tech Data thereunder.
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ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. Termination Events. The occur-
rence of any one or more of the following events shall
constitute a Termination Event:
(a) (i) the Collection Agent shall fail
to perform or observe any term, covenant or agreement hereunder (other than as
referred to in clause (ii) of this Section 7.1(a)) and such failure shall remain
unremedied for 15 days, or (ii) either the Collection Agent, the Transferor, or
the Guarantor shall fail to make any payment or deposit to be made by it
hereunder when due or the Collection Agent shall fail to observe or perform any
term, covenant or agreement on the Collection Agent's part to be performed under
Section 2.8(b) hereof; or
(b) any representation, warranty, certif-
ication or statement made by Tech Data or the Transferor in this Agreement or in
any other document delivered pursuant hereto shall prove to have been incorrect
in any material respect when made or deemed made; or
(c) (i) the Transferor shall default in
the observance or performance of the terms, covenants, conditions or agreements
on the Transferor's part to be performed or observed under Section 4.2, Section
5.1(a)(ii), Section 5.1(h), Section 5.1(i), Section 5.2(a), Section 5.2(c),
Section 5.2(d), Section 5.2(e), Section 5.2(f), Section 5.2(g) or Section 5.2(h)
hereof or (ii) the Transferor shall default in the observance or performance of
the terms, covenants, conditions or agreements on the Transferor's part to be
performed or observed under Section 5.1(a)(i), Section 5.1(a)(iii), Section
5.1(a)(iv), Section 5.1(a)(v), Section 5.1(b), Section 5.1(c), Section 5.1(d),
Section 5.1(e), Section 5.1(f), Section 5.1(g) or Section 5.2(b) hereof and such
failure shall remain unremedied for 15 days; or
(d) (i) Tech Data shall default in the
observance or performance of the terms, covenants, conditions or agreements on
Tech Data's part to be performed or observed under Section 5.3(h), Section
5.3(i), Section 5.4(a), Section 5.4(c), Section 5.4(d), Section 5.4(e),
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Section 5.4(f) or Section 5.5 or (ii) Tech Data shall default in the observance
or performance of the terms, covenants, conditions or agreements on Tech Data's
part to be performed under Section 5.3(a), Section 5.3(b), Section 5.3(c),
Section 5.3(d), Section 5.3(e), Section 5.3(f), Section 5.3(g) or Section 5.4(b)
hereof and such failure shall remain unremedied for 15 days; or
(e) the Transferor or Tech Data shall de-
fault in the observance or performance of any other term, covenant, condition or
agreement on the Transferor's or Tech Data's part to be performed or observed
under this Agreement and such default shall continue for 30 days after the
earlier of (i) the date that such written notice thereof is given to the
Transferor or Tech Data, as applicable, by the Agent or (ii) the date the Trans-
feror or Tech Data, as applicable, becomes aware of such default; or
(f) failure of Tech Data or any Subsid-
iary of Tech Data to pay any Indebtedness greater than $500,000 when due; or the
default by Tech Data or any Subsidiary of Tech Data in the performance of any
term, provision or condition contained in any agreement under which any
Indebtedness greater than $500,000 was created or is governed, the effect of
which is to cause, or to permit the holder or holders of such Indebtedness
greater than $500,000 to cause, such Indebtedness to become due prior to its
stated maturity; or any Indebtedness greater than $500,000 shall be declared to
be due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the date of maturity thereof; or
(g) any Event of Bankruptcy shall occur
with respect to the Transferor, the Collection Agent,
Tech Data or any Subsidiary of either the Transferor or
Tech Data; or
(h) the Agent, on behalf of the Company
and/or the Bank Investors, shall, for any reason, fail or cease to have a valid
and perfected first priority ownership or security interest in the Affected
Assets free and clear of any Adverse Claims; or
(i) Tech Data shall enter into any trans-
action or merger whereby it is not the surviving entity;
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or the Transferor shall no longer be wholly owned by Tech
Data; or
(j) there shall have occurred any materi-
al adverse change in the operations of Tech Data since October 31, 1996 or any
other event shall have occurred which materially affects Tech Data's ability to
either collect the Receivables or to perform under this Agreement or under the
Purchase Agreement; or
(k) the Liquidity Provider or the Credit
Support Provider shall have given notice that an event of default has occurred
and is continuing under any of its respective agreements with the Company; or
(l) the Commercial Paper issued by the
Company shall not be rated at least "A-2" by Standard & Poor's and at least
"P-2" by Moody's, unless such downgrading is the result of the Credit Support
Provider being downgraded; or
(m) the Percentage Factor exceeds the
Maximum Percentage Factor unless the Transferor reduces the Net Investment on
the next day or increases the balance of the Affected Assets on the next
Business Day so as to reduce the Percentage Factor to less than or equal to 98%;
or
(n) the Percentage Factor equals or ex-
ceeds 100% for a period of one full Business Day (provided that in such case the
Termination Event caused thereby shall be deemed to have occurred at the start
of such one full Business Day period) or the Net Investment plus the aggregate
Interest Component exceeds the Facility Limit; or
(o) the Dilution Ratio equals or exceeds
15%; or
(p) the average of the Loss to Liquida-
tion Ratios for any three consecutive months exceeds
2.25%; or
(q) the Delinquency Ratio exceeds 11%.
SECTION 7.2. Termination. (a) Upon the
occurrence of any Termination Event, the Agent may, or at
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the direction of the Majority Investors shall, by notice to the Transferor and
the Collection Agent declare the Termination Date to have occurred; provided,
however, that in the case of any event described in Section 7.1(g), 7.1(h),
7.1(i) or 7.1(n) above, the Termination Date shall be deemed to have occurred
automatically upon the occurrence of such event. Upon any such declaration or
automatic occurrence, the Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of the applicable jurisdiction and other applicable laws,
all of which rights shall be cumulative.
(b) At all times after the declaration or automatic occurrence
of the Termination Date pursuant to Section 7.2(a) (other than a declaration
following the occurrence of a Termination Event set forth in Section 7.1(k) or
Section 7.1(l)), the Base Rate plus 2.00% shall be the Tranche Rate applicable
to the Net Investment for all existing and future Tranches.
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ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor. Without limiting
any other rights which the Agent, the Company or the Bank Investors may have
hereunder or under applicable law, the Transferor hereby agrees to indemnify the
Agent, the Company, the Bank Investors, the Administrative Agent, the Collateral
Agent, the Liquidity Provider and the Credit Support Provider and any successors
and any permitted assigns and their respective officers, directors and employees
(collectively, "Indemnified Parties") from and against any and all damages,
losses, claims, liabilities, costs and expenses, including, without limitation,
reasonable attorneys' fees (which such attorneys may be employees of the
Liquidity Provider, the Credit Support Provider, the Agent, the Administrative
Agent or the Collateral Agent, as applicable) and disbursements (all of the
foregoing being collectively referred to as "Indemnified Amounts") awarded
against or incurred by any of them arising out of or as a result of this
Agreement or the ownership, either directly or indirectly, by the Agent, the
Company or any Bank Investor of the Transferred Interest excluding, however, (i)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of an Indemnified Party or (ii) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
or (iii) claims arising from credit losses. Without limiting the generality of
the foregoing, the Transferor shall indemnify each Indemnified Party for
Indemnified Amounts relating to or resulting from:
(i) reliance on any representation or warranty made
by the Transferor (or any officers of the Transferor) under or in
connection with this Agreement, any Investor Report or any other
information or report delivered by the Transferor pursuant hereto,
which shall have been false or incorrect in any material respect when
made or deemed made;
(ii) the failure by the Transferor to comply with
any applicable law, rule or regulation with respect to any Receivable
or
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the related Contract, or the nonconformity of any Receivable or the
related Contract with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the
Agent on behalf of the Company and/or the Bank Investors, an undivided
percentage ownership or security interest, to the extent of the
Transferred Interest, in the Receivables included in the Transferred
Interest, free and clear of any Adverse Claim;
(iv) the failure to file, or any delay in filing,
financing statements, continuation statements, or other similar
instruments or documents under the UCC of any applicable jurisdiction
or other applicable laws with respect to any of the Affected Assets;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable included in the Transferred Interest (including, without
limitation, a defense based on such Receivable or the related Contract
not being legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other
claim resulting from the sale of merchandise or services related to
such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) any failure of the Trans- feror, as Collection
Agent or otherwise, to perform its duties or obligations in accordance
with the provisions of Article VI; or
(vii) any products liability claim or personal injury
or property damage suit or other similar or related claim or action of
whatever sort arising out of or in connection with merchandise or
services which are the subject of any Receivable;
provided, however, that if the Company enters into agreements for the purchase
of interests in receivables from
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one or more Other Transferors, the Company shall allocate such Indemnified
Amounts which are in connection with the Liquidity Provider Agreement, the
Credit Support Agreement or the credit support furnished by the Credit Support
Provider to the Transferor and each Other Trans- feror.
SECTION 8.2. Indemnity for Taxes, Reserves and Expenses. (a)
If after the date hereof, the adoption of any Law or bank regulatory guideline
or any amendment or change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law):
(i) shall subject any Indemnified Party to any tax,
duty or other charge with respect to this Agreement, the Transferred
Interest, the Receivables or payments of amounts due hereunder, or
shall change the basis of taxation of payments to any Indemnified Party
of amounts payable in respect of this Agreement, the Transferred
Interest, the Receivables or payments of amounts due hereunder or its
obligation to advance funds under the Liquidity Provider Agreement or
the credit support furnished by the Credit Support Provider or
otherwise in respect of this Agreement, the Transferred Interest or the
Receivables (except for changes in the rate of general corporate,
franchise, net income or other income tax imposed on such Indemnified
Party by the jurisdiction in which such Indemnified Party's principal
executive office is located);
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System) against assets of, deposits with or for the
account of, or credit extended by, any Indemnified Party or shall
impose on any Indemnified Party or on the United States market for cer-
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tificates of deposit or the London interbank market any other condition
affecting this Agreement, the Transferred Interest, the Receivables or
payments of amounts due hereunder or its obligation to advance funds
under the Liquidity Provider Agreement or the credit support provided
by the Credit Support Provider or otherwise in respect of this
Agreement, the Transferred Interest or the Receivables; or
(iii) imposes upon any Indemnified Party any other
expense (including, without limitation, reasonable attorneys' fees and
expenses, and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Agreement, the
Transferred Interest, the Receivables or payments of amounts due
hereunder or its obligation to advance funds under the Liquidity
Provider Agreement or the credit support furnished by the Credit
Support Provider or otherwise in respect of this Agreement, the
Transferred Interests or the Receivables,
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the Transferred Interest, the
Receivables, the obligations hereunder, the funding of any purchases hereunder,
the Liquidity Provider Agreement or the Credit Support Agreement, by an amount
deemed by such Indemnified Party to be material, then, within ten (10) days
after demand by such Indemnified Party through the Agent, the Transferor shall
pay to the Agent, for the benefit of such Indemnified Party such additional
amount or amounts as will compensate such Indemnified Party for such increased
cost or reduction.
(b) If any Indemnified Party shall have
determined that 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 thereof by any Official Body, or any 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, has or would
have the effect of reducing the rate of return on capital of such Indemnified
Party (or its parent) as a conse-
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quence 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 or directive (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 Agent, the
Transferor shall pay to the 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.
(c) The Agent will promptly notify the
Transferor of any event of which it has knowledge, occurring after the date
hereof, which will entitle an Indemnified Party to compensation pursuant to this
Section. A notice by the Agent or the applicable Indemnified Party claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Agent or any applicable
Indemnified Party may use any reasonable averaging and attributing methods.
(d) Anything in this Section 8.2 to the
contrary notwithstanding, if the Company enters into agreements for the
acquisition of interests in receivables from one or more Other Transferors, the
Company shall allocate the liability for any amounts under this Section 8.2
("Section 8.2 Costs") to the Transferor and each Other Transferor; and provided,
further, that if such Section 8.2 Costs are attributable to the Transferor and
not attributable to any Other Transferor, the Trans- feror shall be solely
liable for such Section 8.2 Costs or if such Section 8.2 Costs are attributable
to Other Transferors and not attributable to the Transferor, such Other
Transferors shall be solely liable for such Section 8.2 Costs.
SECTION 8.3. Other Costs, Expenses and Related Matters. (a)
The Transferor agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Company and the Agent harmless against liability for the
payment of, all reasonable out-of-pocket expenses (including, without
limitation, attorneys', accountants' and other third parties' fees and expenses,
any filing
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fees and expenses incurred by officers or employees of the Company and the
Agent) incurred by or on behalf of the Company or the Agent (i) in connection
with the negotiation, execution, delivery and preparation of this Agreement and
any documents or instruments delivered pursuant hereto and thereto and the
transactions contemplated hereby or thereby (including, without limitation, the
perfection or protection of the Transferred Interest) and (ii) from time to time
relating to any amendments, waivers or consents under this Agreement.
(b) The Transferor agrees, upon receipt of a written invoice,
to pay or cause to be paid, and to save the Company, the Bank Investors and the
Agent harmless against liability for the payment of, all reasonable
out-of-pocket expenses (including, without limitation, attorneys', accountants'
and other third parties' fees and expenses, any filing fees and expenses
incurred by officers or employees of the Company, the Bank Investors and/or the
Agent) incurred by or on behalf of the Company, any Bank Investor or the Agent
from time to time (i) arising in connection with the Company's, any Bank
Investor's, the Agent's or the Collateral Agent's enforcement or preservation of
rights (including, without limitation, the perfection and protection of the
Transferred Interest under this Agreement), or (ii) arising in connection with
any audit, dispute, disagreement, litigation or preparation for litigation
involving this Agreement.
(c) The Transferor shall pay the Agent,
for the account of the Company and the Bank Investors, as applicable, on demand
any Early Collection Fee due on account of the reduction of a Tranche on a day
prior to the last day of its Tranche Period.
SECTION 8.4. Reconveyance Under Certain Circumstances. The
Transferor agrees to accept the recon- veyance from the Agent, on behalf of the
Company and/or the Bank Investors, of the Transferred Interest if the Agent
notifies Transferor of a material breach of any representation or warranty made
or deemed made pursuant to Article III of this Agreement and Transferor shall
fail to cure such breach within 15 days (or, in the case of the representations
and warranties in Sections 3.1(d) and 3.1(j), 3 days) of such notice. The
reconveyance price shall be paid by the Transferor to the Agent, for the account
of the Company and the Bank Investors, as
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applicable, in immediately available funds on such 15th day (or 3rd day, if
applicable) in an amount equal to the Aggregate Unpaids.
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ARTICLE IX
GUARANTEE
SECTION 9.1. Guaranty of Obligations. Tech Data
unconditionally guarantees the full and prompt payment when due of all of the
payment obligations and timely performance of all of the payment and performance
obligations ("Obligations") of the Transferor of every kind and nature now or
hereafter existing, or due or to become due, under this Agreement, to the
Transferor, the Company, the Agent or any Bank Investor. Tech Data shall pay all
reasonable costs and expenses including, without limitation, all court costs and
attorneys' fees and expenses paid or incurred by the Transferor, the Company,
the Agent or any Bank Investor in connection with the collection of all or any
part of the Obligations from Tech Data.
SECTION 9.2. Validity of Obligations; Irrevo- cability. Tech
Data agrees that its obligations under this guaranty shall be unconditional,
irrespective of (i) the validity, enforceability, discharge or disaffirmance (by
any Person, including a trustee in bankruptcy) of the Obligations or of this
Agreement, (ii) the absence of any attempt to collect the Obligations from the
Transferor or any guarantor, (iii) the waiver or consent by the Trans- feror,
Company, the Agent or any Bank Investor with respect to any provision of any
instrument evidencing the Obligations, (iv) any change of the time, manner or
place of payment or performance, or any other term of any of the Obligations,
(v) any law, regulation or order of any jurisdiction affecting any term of any
of the Obligations or rights of the Transferor, the Company, the Agent or any
Bank Investor with respect thereto, (vi) the failure by the Transferor, the
Company, the Agent or any Bank Investor to take any steps to perfect and
maintain perfected its respective interest in the Receivables or other property
acquired by the Company from the Trans- feror, or by the Transferor from Tech
Data or any security or collateral related to the Obligations or (vii) any other
circumstances which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Tech Data agrees that none of the Transferor, the
Company, the Agent or any Bank Investor shall be under any obligation to
marshall any assets in favor of or against or in payment of any or all of the
Obligations. Tech
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Data further agrees that, to the extent that the Trans- feror makes a payment or
payments to the Company, the Agent or any Bank Investor, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to the
Transferor its estate, trustee, receiver or any other party, including without
limitation, Tech Data, under any bankruptcy, insolvency or similar state or
federal law, common law or equitable cause, then to the extent of such payment
or repayment, the Obligation or part thereof which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
Tech Data waives all set-offs and counterclaims and all presentments, demands
for performance, notices of dishonor and notices of acceptance of this guaranty.
Tech Data agrees that its obligations under this guaranty shall be irrevocable.
SECTION 9.3. Rights of Set-Off. Tech Data hereby authorizes
the Transferor, the Company, the Agent or any Bank Investor at any time and from
time to time, to the fullest extent permitted by law, to set-off and apply any
and all deposits (whether general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the
Transfer- or, the Company, the Agent or any Bank Investor to or for the credit
or the account of Tech Data against any and all of the obligations of Tech Data
now or hereafter existing under this Agreement to the Transferor or the Company.
Tech Data acknowledges that the Company's rights described in this Section 9.3
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) the Transferor or the Company may have.
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ARTICLE X
THE AGENT; BANK COMMITMENT
SECTION 10.1. Authorization and Action. (a) The Company and each Bank
Investor hereby appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the other
Transaction Documents as are delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. In
furtherance, and without limiting the generality, of the foregoing, the Company
and each Bank Investor hereby appoints the Agent as its agent to execute and
deliver all further instruments and documents, and take all further action that
the Agent may deem necessary or appropriate or that the Company or a Bank
Investor may reasonably request in order to perfect, protect or more fully
evidence the interests transferred or to be transferred from time to time by the
Transferor hereunder, or to enable any of them to exercise or enforce any of
their respective rights hereunder, including, without limitation, the execution
by the Agent as secured party/assignee of such financing or continuation
statements, or amendments thereto or assignments thereof, relative to all or any
of the Receivables now existing or hereafter arising, and such other instruments
or notices, as may be necessary or appropriate for the purposes stated
hereinabove. The Company and the Majority Investors may direct the Agent to take
any such incidental action hereunder. With respect to other actions which are
incidental to the actions specifically delegated to the Agent hereunder, the
Agent shall not be required to take any such incidental action hereunder, but
shall be required to act or to refrain from acting (and shall be fully protected
in acting or refraining from acting) upon the direction of the Majority
Investors; provided, however, that Agent shall not be required to take any
action hereunder if the taking of such action, in the reasonable determination
of the Agent, shall be in violation of any applicable law, rule or regulation or
contrary to any provision of this Agreement or shall expose the Agent to
liability hereunder or otherwise. Upon the occurrence and during the continuance
of any Termination Event or Potential Termination Event, the Agent shall take no
action hereunder (other than ministerial actions or such actions as are
specifically provided for herein) without the prior
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consent of the Majority Investors (which consent shall not be unreasonably
withheld or delayed). The Agent shall not, without the prior written consent of
all Bank Investors, agree to (i) amend, modify or waive any provision of this
Agreement in any way which would (A) reduce or impair Collections or the payment
of Discount or fees payable hereunder to the Bank Investors or delay the
scheduled dates for payment of such amounts, (B) increase the Servicing Fee
(other than as permitted pursuant to Section 6.2(b)), (C) modify any provisions
of this Agreement or the Receivables Purchase Agreement relating to the timing
of payments required to be made by the Trans- feror, the Seller or the Guarantor
or the application of the proceeds of such payments, (D) permit the appointment
of any Person (other than the Agent) as successor Collection Agent, or (E)
release any property from the lien provided by this Agreement (other than as
expressly contemplated herein). The Agent shall not agree to any amendment of
this Agreement which increases the dollar amount of a Bank Investor's Commitment
without the prior consent of such Bank Investor. In addition, the Agent shall
not agree to any amendment of this Agreement not specifically described in the
two preceding sentences without the consent of the related Majority Investors
(which consent shall not be unreasonably withheld or delayed). "Majority
Investors" shall mean, at any time, the Agent and those Bank Investors which
hold Commitments aggregating in excess of 51% of the Facility Limit as of such
date. In the event the Agent requests the Company's or a Bank Investor's consent
pursuant to the foregoing provisions and the Agent does not receive a consent
(either positive or negative) from the Company or such Bank Investor within 10
Business Days of the Company's or Bank Investor's receipt of such request, then
the Company or such Bank Investor (and its percentage interest hereunder) shall
be disregarded in determining whether the Agent shall have obtained sufficient
consent hereunder.
(b) The Agent shall exercise such rights
and powers vested in it by this Agreement and the other Transaction Documents,
and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
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SECTION 10.2. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them as Agent under or in connection with
this Agreement or any of the other Transaction Documents, except for its or
their own gross negligence or willful misconduct. Without limiting the
foregoing, the Agent: (i) may consult with legal counsel (including counsel for
the Transferor or the Seller), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to the Company
or any Bank Investor and shall not be responsible to the Company or any Bank
Investor for any statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any of the other Transaction Documents on the
part of the Transferor, the Collection Agent or Tech Data or to inspect the
property (including the books and records) of the Transferor, the Collection
Agent or Tech Data (iv) shall not be responsible to the Company or any Bank
Investor for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any of the other Transaction Documents
or any other instrument or document furnished pursuant hereto or thereto; and
(v) shall incur no liability under or in respect of this Agreement or any of the
other Transaction Documents by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be by
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 10.3. Credit Decision. The Company and each Bank
Investor acknowledges that it has, independently and without reliance upon the
Agent, any of the Agent's Affiliates, any other Bank Investor or the Company (in
the case of any Bank Investor) and based upon such documents and information as
it has deemed appropriate, made its own evaluation and decision to enter into
this Agreement and the other Transaction Documents to which it is a party and,
if it so determines, to accept the trans-
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fer of any undivided ownership interest in the Affected Assets hereunder. The
Company and each Bank Investor also acknowledges that it will, independently and
without reliance upon the Agent, any of the Agent's Affiliates, any other Bank
Investor or the Company (in the case of any Bank Investor) and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under this Agreement and
the other Transaction Documents to which it is a party.
SECTION 10.4. Indemnification of the Agent. The Bank Investors
agree to indemnify the Agent (to the extent not reimbursed by the Transferor),
ratably in accordance with their Pro Rata Shares, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent, any
of the other Transaction Documents hereunder or thereunder, provided that the
Bank Investors shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, the Bank Investors agree to
reimburse the Agent, ratably in accordance with their Pro Rata Shares, promptly
upon demand for any out-of-pocket expenses (including counsel fees) incurred by
the Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
and the other Transaction Documents, to the extent that such expenses are
incurred in the interests of or otherwise in respect of the Bank Investors
hereunder and/or thereunder and to the extent that the Agent is not reimbursed
for such expenses by the Transferor.
SECTION 10.5. Successor Agent. The Agent may resign at any
time by giving written notice thereof to each Bank Investor, the Company
and the Transferor and may be removed at any time with cause by the Majority
Investors. Upon any such resignation or removal, (i) if no Termination Event
shall have occurred, the Transferor
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shall appoint a successor Agent and (ii) if a Termination Event shall have
occurred, the Company and the Majority Investors shall appoint a successor
Agent. The Transfer- or and the Company and each Bank Investor, as applicable,
each agrees that it shall not unreasonably withhold or delay its approval of the
appointment of a successor Agent. If no such successor Agent shall have been so
appointed, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Investors'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Company and the Bank Investors, appoint a successor Agent which successor Agent
shall be either (i) a commercial bank organized under the laws of the United
States or of any state thereof and have a combined capital and surplus of at
least $50,000,000 or (ii) an Affiliate of such a bank. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article IX shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 10.6. Payments by the Agent. Unless specifically
allocated to a Bank Investor pursuant to the terms of this Agreement, all
amounts received by the Agent on behalf of the Bank Investors shall be paid by
the Agent to the Bank Investors (at their respective accounts specified in their
respective Assignment and Assumption Agreements) in accordance with their
respective related pro rata interests in the Net Investment on the Business Day
received by the Agent, unless such amounts are received after 12:00 noon on such
Business Day, in which case the Agent shall use its reasonable efforts to pay
such amounts to the Bank Investors on such Business Day, but, in any event,
shall pay such amounts to the Bank Investors in accordance with their respective
related pro rata interests in the Net Investment not later than the following
Business Day.
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SECTION 10.7. Bank Commitment; Assignment to
Bank Investors.
(a) Bank Commitment. At any time on or
prior to the Commitment Termination Date, in the event that the Company does not
effect an Incremental Transfer as requested under Section 2.2(a), then at any
time, the Transferor shall have the right to require the Company to assign its
interest in the Net Investment in whole to the Bank Investors pursuant to this
Section 10.7. In addition, at any time on or prior to the Commitment Termination
Date (i) upon the occurrence of a Termination Event that results in a
Termination Date or (ii) the Company elects to give notice to the Transferor of
a Reinvestment Termination Date, the Transferor hereby requests and directs that
the Company assign its interest in the Net Investment in whole to the Bank
Investors pursuant to this Section 10.7 and the Transferor hereby agrees to pay
the amounts described in Section 10.7(d) below. Provided that the Net Asset Test
is satisfied, upon any such election by the Company or any such request by the
Transfer- or, the Company shall make such assignment and the Bank Investors
shall accept such assignment and shall assume all of the Company's obligations
hereunder. In connection with any assignment from the Company to the Bank
Investors pursuant to this Section 10.7, each Bank Investor shall, on the date
of such assignment, pay to the Company an amount equal to its Assignment Amount.
Upon any assignment by the Company to the Bank Investors contemplated hereunder,
the Company shall cease to make any additional Incremental Transfers hereunder.
(b) Assignment. No Bank Investor may
assign all or a portion of its interests in the Net Investment, the Receivables,
and Collections, Related Security and Proceeds with respect thereto and its
rights and obligations hereunder to any Person unless approved in writing by the
Agent. In the case of an assignment by the Company to the Bank Investors or by a
Bank Investor to another Person, the assignor shall deliver to the assignee(s)
an Assignment and Assumption Agreement in substantially the form of Exhibit G
attached hereto, duly executed, assigning to the assignee a pro rata interest in
the Net Investment, the Receivables, and Collections, Related Security and
Proceeds with respect thereto and the assignor's rights and obligations
hereunder and the
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assignor shall promptly execute and deliver all further instruments and
documents, and take all further action, that the assignee may reasonably
request, in order to protect, or more fully evidence the assignee's right, title
and interest in and to such interest and to enable the Agent, on behalf of such
assignee, to exercise or enforce any rights hereunder and under the other
Transaction Documents to which such assignor is or, immediately prior to such
assignment, was a party. Upon any such assignment, (i) the assignee shall have
all of the rights and obligations of the assignor hereunder and under the other
Transaction Documents to which such assignor is or, immediately prior to such
assignment, was a party with respect to such interest for all purposes of this
Agreement and under the other Transaction Documents to which such assignor is
or, immediately prior to such assignment, was a party (it being understood that
the Bank Investors, as assignees, shall (x) be obligated to effect Incremental
Transfers under Section 2.2(a) in accordance with the terms thereof,
notwithstanding that the Company was not so obligated and (y) not have the right
to elect the commencement of the amortization of the Net Investment pursuant to
the definition of "Rein- vestment Termination Date", notwithstanding that the
Company had such right) and (ii) the assignor shall relinquish its rights with
respect to such interest for all purposes of this Agreement and under the other
Transaction Documents to which such assignor is or, immediately prior to such
assignment, was a party. No such assignment shall be effective unless the
Administrative Agent, on behalf of the Company, and the Transferor shall have
consented thereto and a fully executed copy of the related Assignment and
Assumption Agreement shall be delivered to the Agent. All costs and expenses of
the Agent and the initial Bank Investor as assignor incurred in connection with
any assignment hereunder shall be borne by the Transferor and not by the Agent
or the initial Bank Investor. No Bank Investor shall assign any portion of its
Commitment hereunder without also simultaneously assigning an equal portion of
its interest in the Liquidity Provider Agreement.
(c) Effects of Assignment. By executing
and delivering an Assignment and Assumption Agreement, the assignor and
assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than as provided in such Assignment and Assump-
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tion Agreement, the assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, the other Transaction Documents or
any other instrument or document furnished pursuant hereto or thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
or this Agreement, the other Transaction Documents or any such other instrument
or document; (ii) the as- signor makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Transferor, the
Seller or the Collection Agent or the performance or observance by the
Transferor, the Seller or the Collection Agent of any of their respective
obligations under this Agreement, the Receivables Purchase Agreement, the other
Transaction Documents or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, the Receivables Purchase Agreement and such other instruments,
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Assumption Agreement and
to purchase such interest; (iv) such assignee will, independently and without
reliance upon the Agent, or any of its Affiliates, or the assignor and based on
such agreements, documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Transaction Documents; (v) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement, the other Transaction Documents
and any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto and to enforce its respective rights and
interests in and under this Agreement, the other Transaction Documents, the
Receivables, the Contracts and the Related Security; (vi) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement and the other Transaction Documents are required
to be performed by it as the assignee of the assignor; and (vii) such assignee
agrees that it will not institute against the Company any proceeding of the type
referred to in Section 11.9 prior to the date which is
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one year and one day after the payment in full of all Commercial Paper issued by
the Company.
(d) Transferor's Obligation to Pay Cer-
tain Amounts; Additional Assignment Amount. The Trans- feror shall pay to the
Agent, for the account of the Company, in connection with any assignment by the
Company to the Bank Investors pursuant to this Section 10.7, an aggregate amount
equal to all Discount to accrue through the end of each outstanding Tranche
Period plus all other Aggregate Unpaids (other than the Net Investment). To the
extent that such Discount relates to interest or discount on Related Commercial
Paper, if the Transferor fails to make payment of such amounts at or prior to
the time of assignment by the Company to the Bank Investors, such amount shall
be paid by the Bank Investors (in accordance with their respective Pro Rata
Shares) to the Company as additional consideration for the interests assigned to
the Bank Investors and the amount of the "Net Investment" hereunder held by the
Bank Investors shall be increased by an amount equal to the additional amount so
paid by the Bank Investors.
(e) Administration of Agreement After
Assignment. After any assignment by the Company to the Bank Investors pursuant
to this Section 10.7 (and the payment of all amounts owing to the Company in
connection therewith), all rights of the Administrative Agent and the Collateral
Agent set forth herein shall be deemed to be afforded to the Agent on behalf of
the Bank Investors instead of either such party.
(f) Payments. After any assignment by
the Company to the Bank Investors pursuant to this Section 10.7, all payments to
be made hereunder by the Transferor or the Collection Agent to the Bank
Investors shall be made to the Agent's account as such account shall have been
notified to the Transferor and the Collection Agent.
(g) Downgrade of Bank Investor. If at
any time prior to any assignment by the Company to the Bank Investors as
contemplated pursuant to this Section 10.7, the short term debt rating of any
Bank Investor shall be "A-2" or "P-2" from Standard & Poor's or Moody's,
respectively, with negative credit implications, such Bank Investor, upon
request of the Agent, shall,
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within 30 days of such request, assign its rights and obligations hereunder to
another financial institution (which institution's short term debt shall be
rated at least "A-2" and "P-2" from Standard & Poor's and Moody's, respectively,
and which shall not be so rated with negative credit implications). If the short
term debt rating of a Bank Investor shall be "A-3" or "P-3", or lower, from
Standard & Poor's or Moody's, respectively (or such rating shall have been
withdrawn by Standard & Poor's or Moody's), such Bank Investor, upon request of
the Agent, shall, within five (5) Business Days of such request, assign its
rights and obligations hereunder to another financial institution (which
institution's short term debt shall be rated at least "A-2" and "P-2" from
Standard & Poor's and Moody's, respectively, and which shall not be so rated
with negative credit implications). In either such case, if any such Bank
Investor shall not have assigned its rights and obligations under this Agreement
within the applicable time period described above, the Company shall have the
right to require such Bank Investor to accept the assignment of such Bank
Investor's Pro Rata Share of the Net Investment; such assignment shall occur in
accordance with the applicable provisions of this Section 10.7. Such Bank
Investor shall be obligated to pay to the Company, in connection with such
assignment, in addition to the Pro Rata Share of the Net Investment, an amount
equal to the interest component of the outstanding Commercial Paper issued to
fund the portion of the Net Investment being assigned to such Bank Investor, as
reasonably determined by the Agent. Notwithstanding anything contained herein to
the contrary, upon any such assignment to a downgraded Bank Investor as
contemplated pursuant to the immediately preceding sentence, the aggregate
available amount of the Facility Limit, solely as it relates to new Incremental
Transfers by the Company, shall be reduced by the amount of unused Commitment of
such downgraded Bank Investor; it being understood and agreed, that nothing in
this sentence or the two preceding sentences shall affect or diminish in any way
any such downgraded Bank Investor's Commitment to the Transferor or such
downgraded Bank Investor's other obligations and liabilities hereunder and under
the other Transaction Documents.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Term of Agreement. This Agreement shall
terminate on the date following the Termination Date upon which the Net
Investment has been reduced to zero, all accrued Discount and Servicing Fees
have been paid in full, and all other Aggregate Unpaids have been paid in full,
in each case, in cash; provided, however, that (i) the rights and remedies of
the Agent, the Company, the Bank Investors and the Administrative Agent with
respect to any representation and warranty made or deemed to be made by the
Transferor pursuant to this Agreement, (ii) the indemnification and payment
provisions of Article VIII, (iii) Tech Data's obligations under Article IX and
(iv) the agreement set forth in Section 11.8 hereof, shall be continuing and
shall survive any termination of this Agreement.
SECTION 11.2. Waivers; Amendments. No failure or delay on the
part of the Agent, the Company, the Administrative Agent or any Bank Investor in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other further exercise thereof or the exercise of
any other power, right or remedy. The rights and remedies herein provided shall
be cumulative and nonexclusive of any rights or remedies provided by law. Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Transferor, the Company,
the Agent and the Majority Investors.
SECTION 11.3. Notices. Except as provided below, all
communications and notices provided for hereunder shall be in writing (including
bank wire, telex, telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other party at its address or telecopy number
set forth below or at such other address or telecopy number as such party may
hereafter specify for the purposes of notice to such party. Each such notice or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this
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Section 11.3 and confirmation is received, (ii) if given by mail 3 Business Days
following such posting, postage prepaid, U.S. certified or registered, (iii) if
given by overnight courier, one (1) Business Day after deposit thereof with a
national overnight courier service, or (iv) if given by any other means, when
received at the address specified in this Section 11.3. However, anything in
this Section 11.3 to the contrary notwithstanding, the Transferor hereby
authorizes the Company to effect Transfers, Tranche Period and Tranche Rate
selections based on telephonic notices made by any Person which the Company in
good faith believes to be acting on behalf of the Transferor. The Transferor
agrees to deliver promptly to the Company a written confirmation of each
telephonic notice signed by an authorized officer of Transferor. However, the
absence of such confirmation shall not affect the validity of such notice. If
the written confirmation differs in any material respect from the action taken
by the Company, the records of the Company shall govern absent manifest error.
If to the Company:
Enterprise Funding Corporation
c/o Merrill Lynch Money Markets Inc.
World Financial Center--South Tower
225 Liberty Street
New York, New York 10080
Telephone: (212) 236-7200
Telecopy: (212) 236-7584
(with a copy to the Administrative Agent)
If to the Transferor:
Tech Data Finance, Inc.
5000 Executive Parkway
San Ramon, California 94583
Telephone: (510) 244-1641
Telecopy: (510) 244-1641
If to Tech Data:
Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Attention: Treasurer
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Telephone: (813) 539-7429
Telecopy: (813) 538-7803
(with a copy to General Counsel)
If to the Agent:
NationsBank, N.A.
NationsBank Corporate Center--10th Floor
Charlotte, North Carolina 28255
Attention: Michelle M. Heath--
Structured Finance
Telephone: (704) 386-7922
Telecopy: (704) 388-9169
If to the Administrative Agent:
NationsBank, N.A.
NationsBank Corporate Center--10th Floor
Charlotte, North Carolina 28255
Attention: Michelle M. Heath--
Structured Finance
Telephone: (704) 386-7922
Telecopy: (704) 388-9169
If to the Bank Investors, at their respective addresses set
forth on the signature pages hereto or of the Assignment and Assumption
Agreement pursuant to which it became a party hereto.
SECTION 11.4. Governing Law; Submission to
Jurisdiction; Integration.
(a) THIS AGREEMENT 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
Transferor hereby irrevocably waives, to the fullest extent it may effectively
do so, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Nothing in this Sec-
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tion 11.4 shall affect the right of the Company to bring any action or
proceeding against the Transferor or its property in the courts of other
jurisdictions.
(b) This Agreement contains the final and complete integration
of all prior expressions by the parties hereto with respect to the subject
matter hereof and shall constitute the entire Agreement among the parties hereto
with respect to the subject matter hereof superseding all prior oral or written
understandings, including but not limited to the mandate letter dated November
16, 1993.
SECTION 11.5. Severability; Counterparts. This Agreement 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
Agreement. Any provisions of this Agreement which are prohibited or unen-
forceable 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 11.6. Successors and Assigns.(a)
This Agreement shall be binding on the parties hereto and
their respective successors and assigns; provided, however, that the Transferor
may not assign any of its rights or delegate any of its duties hereunder without
the prior written consent of the Company. No provision of this Agreement shall
in any manner restrict the ability of the Company to assign, participate, grant
security interests in, or otherwise transfer any portion of the Transferred
Interest.
(b) The Transferor hereby agrees and
consents to the assignment by the Company from time to time of all or any part
of its rights under, interest in and title to this Agreement and the Transferred
Interest to any Liquidity Provider. In addition, the Transferor hereby consents
to and acknowledges the assignment by the Company of all of its rights under,
interest in and title
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to this Agreement and the Transferred Interest to the
Collateral Agent.
SECTION 11.7. Waiver of Confidentiality. The
Transferor and Tech Data hereby consent to the disclosure of any non-public
information with respect to it received by the Company, the Agent, any Bank
Investor or the Administrative Agent to any of the Company, the Agent, any
nationally recognized rating agency rating the Company's Commercial Paper, the
Administrative Agent, the Collateral Agent, any Bank Investor or potential Bank
Investor, the Liquidity Provider or the Credit Support Provider in relation to
this Agreement.
SECTION 11.8. Confidentiality Agreement. The
Transferor and Tech Data hereby agree that they will not disclose the
contents of this Agreement or any other proprietary or confidential information
of the Company, the Agent, the Administrative Agent, any Bank Investor, the
Collateral Agent, the Liquidity Provider or the Credit Support Provider to any
other Person except (i) its auditors and attorneys, employees or financial advi-
sors (other than any commercial bank) and any nationally recognized rating
agency, provided such auditors, attorneys, employees, financial
advisors or rating agencies are informed of the highly confidential nature of
such information or (ii) as otherwise required by applicable law or order of a
court of competent jurisdiction.
SECTION 11.9. No Bankruptcy Petition Against the Company. The
Transferor and Tech Data each hereby covenant and agree that, prior to the date
which is one year and one day after the payment in full of all outstanding
Commercial Paper or other indebtedness of the Company, it will not institute
against, or join any other Person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
SECTION 11.10. No Recourse Against Stockholders, Officers or
Directors. No recourse under any obligation, covenant or agreement of the
Company contained in this Agreement shall be had against Merrill Lynch Money
Markets Inc. (or any affiliate thereof), or any stockholder, officer or director
of the Company, as such, by
0104420.05-01S7a
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the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that this Agreement is solely a corporate obligation of the Company, and that no
personal liability whatsoever shall attach to or be incurred by Merrill Lynch
Money Markets Inc. (or any affiliate thereof), or the stockholders, officers or
directors of the buyer, as such, or any of them, under or by reason of any of
the obligations, covenants or agreements of the Company contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by the Company of any of such obligations, covenants or agreements,
either at common law or at equity, or by statute or constitution, of Merrill
Lynch Money Markets Inc. (or any affiliate thereof) and every such stockholder,
officer or director of the Company is hereby expressly waived as a condition of
and consideration for the execution of this Agreement.
SECTION 11.11. Characterization of the Transactions
Contemplated by the Agreement. It is the intention of the parties that the
transactions contemplated hereby constitute the sale of the Transferred
Interest, conveying good title thereto free and clear of any Adverse Claims to
the Agent, on behalf of the Company and the Bank Investors, and that the
Transferred Interest not be part of the Transferor's estate in the event of an
insolvency. If, notwithstanding the foregoing, the transactions contemplated
hereby should be deemed a financing, the parties intend that the Transferor
shall be deemed to have granted to the Agent, on behalf of the Company and the
Bank Investors, and the Transferor hereby grants to the Agent, on behalf of the
Company and the Bank Investors, a first priority perfected security interest in
all of the Transferor's right, title and interest in, to and under the
Receivables, together with Related Security and Collections with respect
thereto, and that this Agreement shall constitute a security agreement under
applicable law.
SECTION 11.12. Optional Reconveyance of All Receivables. The
Transferor shall have the option at any time to require the Agent, on behalf of
the Company and the Bank Investors, to reconvey all of it's interest in the
Receivables to the Transferor subject to the following terms and conditions: (a)
the Transferor shall give the Agent not less than 10 Business Days notice of the
0104420.05-01S7a
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Transferor's exercise of this option and (b) simultaneously with the
reconveyance by the Agent to the Trans- feror of the Agent's interest in the
Receivables, the Transferor shall pay to the Agent, for the benefit of the
Company and the Bank Investors, an amount equal to the Net Investment plus all
discount accrued and to accrue on the Company's Related Commercial Paper to
maturity, together with any other costs associated with the receipt by the
Company of the Net Investment on a day other than the last day of a Tranche
Period, along with any other amounts owing hereunder to the Company or the Bank
Investors by the Transferor.
SECTION 11.13. Mandatory Reconveyance of Certain Receivables.
The Agent, on behalf of the Company and the Bank Investors, upon each occasion
on which the Transferor shall be required to reconvey any Receivables to Tech
Data pursuant to Section 7.2(a) of the Purchase Agreement, shall be considered
to have reconveyed and does hereby reconvey to the Transferor such Receivables
(including the Transferred Interest therein) and upon such reconveyance, hereby
terminates its interest in any such Receivables; provided that no such
reconveyance by the Agent shall occur or be deemed to have occurred if (a) any
Event of Termination shall have occurred and be continuing hereunder or (b) Tech
Data shall not have contemporaneously with such reconveyance sold to the
Transferor a substitute receivable as described in Section 7.2(b) of the
Purchase Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
0104420.05-01S7a
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amended and Restated Transfer and Administration Agreement as of
the day first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /S/ STEWART L. CUTLER
Name: Stewart L. Cutler
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By: /S/ ARTHUR W. SINGLETON
Name: Arthur W. Singleton
Title: Treasurer
TECH DATA CORPORATION,
as Collection Agent and
Guarantor
By: /S/ ARTHUR W. SINGLETON
Name: Arthur W. Singleton
Title: Treasurer
NATIONSBANK, N.A., as Agent
By: /S/ BRIAN C. BLAKELY
Name: Brian C. Blakely
Title: Investment Banking Officer
0104420.05-01S7a
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<PAGE>
Commitment NATIONSBANK, N.A., as
$306,000,000.00 Bank Investor
By: /S/ BRIAN C. BLAKELY
Name: Brian C. Blakely
Title: Investment Banking Officer
0104420.05-01S7a
107
<PAGE>
AMENDMENT NUMBER 1 TO
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT
AMENDMENT NUMBER 1 TO AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated as of March 3, 1997, among TECH DATA
FINANCE, INC., a California corporation, as transferor (the "Transferor"), TECH
DATA CORPORATION, a Florida corporation ("Tech Data"), as collection agent and
as guarantor (in such capacities respectively, the "Collection Agent" and the
"Guarantor"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company"), and NATIONSBANK, N.A., a national banking association
("NationsBank"), as agent for the Company and the Bank Investors (in such
capacity, the "Agent") and as a Bank Investor, amending that certain Amended and
Restated Transfer and Administration Agreement dated as of January 21, 1997
among the Transfer-or, the Collection Agent, the Guarantor, the Company, the
Agent and the Bank Investor (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor has requested that the Company and the
Agent agree to an increase in the Facility Limit and the Maximum Net Investment
under the Original Agreement;
WHEREAS, the Agent has requested an amendment to the defini-
tion of Concentration Factor under the Original Agreement;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments; 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
"Concentration Factor" is hereby deleted and replaced with the following (solely
for convenience added language is italicized):
0111920.07-01S7a
<PAGE>
""Concentration Factor" means for any Designated Obligor (a)
2% of the Outstanding Balance of all Eligible Receivables;
provided however, that for up to three (3) Designated Obligors
at any one time, 2.5% of the Outstanding Balance of all
Eligible Receivables at such time; provided further, however,
that with respect to any Designated Obligor and its affiliates
whose long term unsecured debt obligations are rated at least
"A1" by Moody's and at least "A+" by Standard & Poor's and
with respect to which rating neither Moody's nor Standard &
Poor's shall have made a public announcement anticipating a
downgrading of such Designated Obligor's long term unsecured
debt obligations to a rating less than the aforementioned
ratings ("A1/A+ Rated Obligors") 5% of the Outstanding Balance
of all Eligible Receivables at such time, or (b) such other
greater amount determined by the Agent in the reasonable
exercise of its good faith judgment and with the consent of
the Bank Investors and disclosed in a written notice delivered
to the Transferor.
(b) The definition of "Facility Limit" is hereby amended by
deleting the amount "306,000,000" in the text thereof and replacing it with the
amount "331,500,000".
(c) The definition of "Maximum Net Investment" is hereby
amended by deleting the amount "300,000,000" in the text thereof and replacing
it with the amount "325,000,000".
(d) The definition of "Loss Reserve" is hereby amended by
deleting the amount "25,000,000" in the text of the final paragraph thereof and
replacing it with the amount "27,100,000".
SECTION 2. Amendment to Section 5.2(c). Section 5.2(c) of the
Original Agreement is hereby deleted and replaced with the following:
"(c) No Change in Business or Credit and Collection Policy.
The Transferor will not engage in any business other than
acquiring accounts receivable from Tech Data pursuant to the
Purchase Agreement, financing such acquisition pursuant
hereto, making loans to Tech Data and Subsidiaries of Tech
Data and other activities incidental thereto. The Transferor
will not make any change in
0111920.07-01S7a
2
<PAGE>
the Credit and Collection Policy, which change would impair
the collectibility of the Receivables in a material respect."
SECTION 3. Amendments
(a) Amendment to Section 10.1(a). Section 10.1(a) of the
original Agreement is hereby deleted and replaced with the following (solely for
convenience changed language is italicized):
"(a) The Company and each Bank Investor hereby appoints and
authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and
the other Transaction Documents as are delegated to the Agent
by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto. In furtherance, and without
limiting the generality, of the foregoing, the Company and
each Bank Investor hereby appoints the Agent as its agent to
execute and deliver all further instruments and documents, and
take all further action that the Agent may deem necessary or
appropriate or that the Company or a Bank Investor may
reasonably request in order to perfect, protect or more fully
evidence the interests transferred or to be transferred from
time to time by the Transferor hereunder, or to enable any of
them to exercise or enforce any of their respective rights
hereunder, including, without limitation, the execution by the
Agent as secured party/assignee of such financing or
continuation statements, or amendments thereto or assignments
thereof, relative to all or any of the Receivables now
existing or hereafter arising, and such other instruments or
notices, as may be necessary or appropriate for the purposes
stated hereinabove. The Company and/or the Majority Investors
may direct the Agent to take any such incidental action
hereunder. With respect to other actions which are incidental
to the actions specifically delegated to the Agent hereunder,
the Agent shall not be required to take any such incidental
action hereunder, but shall be required to act or to refrain
from acting (and shall be fully protected in acting or
refraining from acting) upon the direction of the Majority
Investors; provided, however, that Agent shall not be required
to take any action hereunder if the taking of such action, in
the reasonable determination of the Agent, shall be in
violation of any applicable law, rule or regulation or
contrary to any provision of this Agreement or shall expose
the
0111920.07-01S7a
3
<PAGE>
Agent to liability hereunder or otherwise. Upon the occurrence
and during the continuance of any Termination Event or
Potential Termination Event, the Agent shall take no action
hereunder (other than ministerial actions or such actions as
are specifically provided for herein) without the prior
consent of the Majority Investors (which consent shall not be
unreasonably withheld or delayed). The Agent shall not,
without the prior written consent of all Bank Investors, agree
to (i) amend, modify or waive any provision of this Agreement
in any way which would (A) reduce or impair Collections or the
payment of Discount or fees payable hereunder to the Bank
Investors or delay the scheduled dates for payment of such
amounts, (B) increase the Servicing Fee (other than as
permitted pursuant to Section 6.2(b)), (C) modify any
provisions of this Agreement or the Receivables Purchase
Agreement relating to the timing of payments required to be
made by the Transferor, the Seller or the Guarantor or the
application of the proceeds of such payments, (D) permit the
appointment of any Person (other than the Agent) as successor
Collection Agent, (E) release any property from the lien
provided by this Agreement (other than as expressly
contemplated herein) or (F) release Tech Data from any of its
obligations under the Guaranty. Notwithstanding Section 11.2
hereof, the Agent (together with the Transferor, Tech Data,
the Company and the applicable Bank Investor or financial
institution) may agree to any amendment of this Agreement
which (A) increases the dollar amount of a Bank Investor's
Commitment (and similarly increases the Facility Limit and the
Maximum Net Investment) or (B) increases the Facility Limit
(and similarly increases the Maximum Net Investment) by adding
a financial institution as a Bank Investor party hereto;
provided, that in each case after giving effect to any such
amendment the aggregate Bank Investors' Commitment at least
equals the Facility Limit, and provided, further, that no such
amendment shall increase the dollar amount of a Bank
Investor's Commitment without the prior consent of such Bank
Investor. In addition, the Agent shall not agree to any
amendment of this Agreement not specifically described in the
two preceding sentences without the consent of the related
Majority Investors (which consent shall not be unreasonably
withheld or delayed). "Majority Investors" shall mean, at any
time, the Agent and those Bank Investors which hold
Commitments aggregating in excess of 66 and 2/3% of the
Facility Limit as of such date. In the event the
0111920.07-01S7a
4
<PAGE>
Agent requests the Company's or a Bank Investor's consent
pursuant to the foregoing provisions and the Agent does not
receive a consent (either positive or negative) from the
Company or such Bank Investor within 10 Business Days of the
Company's or Bank Investor's receipt of such request, then the
Company or such Bank Investor (and its percentage interest
hereunder) shall be disregarded in determining whether the
Agent shall have obtained sufficient consent hereunder. "
(b) Amendment to Section 10.5. Section 10.5 of the original
Agreement is hereby deleted and replaced with the following (solely for
convenience additional language is italicized):
"SECTION 10.5 Successor Agent. The Agent may resign at any
time by giving written notice thereof to each Bank Investor,
the Company and the Transferor and may be removed at any time
with cause by the Majority Investors. Upon any such
resignation or removal, (i) if no Termination Event shall have
occurred, the Transferor,with the consent of the Majority
Investors, shall appoint a successor Agent and (ii) if a
Termination Event shall have occurred, the Company and the
Majority Investors shall appoint a successor Agent. The
Transferor and the Company and each Bank Investor, as
applicable, each agrees that it shall not unreasonably
withhold or delay its approval of the appointment of a
successor Agent. If no such successor Agent shall have been so
appointed, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of
resignation or the Majority Investors' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Company
and the Bank Investors, appoint a successor Agent which
successor Agent shall be either (i) a commercial bank
organized under the laws of the United States or of any state
thereof and have a combined capital and surplus of at least
$50,000,000 or (ii) an Affiliate of such a bank. Upon the
acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article IX shall
continue to inure to its benefit as to any
0111920.07-01S7a
5
<PAGE>
actions taken or omitted to be taken by it while it was Agent
under this Agreement."
(c) Amendment to Section 11.6(a). Section 11.6(a) of the
original Agreement is hereby deleted and replaced with the following (solely for
convenience additional language is italicized):
"(a) This Agreement shall be binding on the parties hereto and
their respective successors and assigns; provided, however,
that the Transferor may not assign any of its rights or
delegate any of its duties hereunder without the prior written
consent of the Company and the Majority Investors. No
provision of this Agreement shall in any manner restrict the
ability of the Company to assign, participate, grant security
interests in, or otherwise transfer any portion of the
Transferred Interest."
SECTION 4. 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;
(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 the Company, the Agent and the
Bank Investors may conclusively rely until such time as the Agent shall receive
from the Trans-feror and Tech Data a revised Certificate meeting the
requirements of this clause (b)(i)) and (ii) a copy of the Transferor's and Tech
Data's By-Laws;
(c) An opinion of David Vetter, 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;
(d) An opinion of Heller, Ehrman, White & McAuliffe,
special California counsel to the Transferor, addressing certain corporate
matters and the enforceability of the Agreement as amended hereby in form and
substance acceptable to the Agent; and
0111920.07-01S7a
6
<PAGE>
(e) A responsible officer's certificate of the
Transferor and Tech Data executed by Arthur W. Singleton, Secretary of the
Transferor and Tech Data, respectively.
SECTION 5. 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 6. Amendment and Waiver. No provision hereof may be
amended, waived, supplemented, restated, discharged or terminated without the
written consent of the Transferor, the Company, 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
assign any of its rights or delegate any of its duties under this Amendment
without the prior written consent of the Company.
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
unen-forceable 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
0111920.07-01S7a
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<PAGE>
shall not invalidate or render unenforceable such provision in any other juris-
diction.
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 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.
0111920.07-01S7a
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /S/ STEWART L. CUTLER
Name: Stewart L. Cutler
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By: /S/ JEFFERY P. HOWELLS
Name: Jeffery P. Howells
Title: President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /S/ JEFFERY P. HOWELLS
Name: Jeffery P. Howells
Title: Senior Vice President of Finance
NATIONSBANK, N.A.,
as Agent and Bank Investor
By: /S/ STAN MIEHUAS
Name: Stan Meihuas
Title: Vice President
<PAGE>
REVOLVING CREDIT AND
REIMBURSEMENT AGREEMENT
by and among
TECH DATA CORPORATION
TECH DATA FRANCE, S.N.C.,
as Multicurrency Facilities Borrowers
TECH DATA CANADA INC.,
as TD Canada
NATIONSBANK, NATIONAL ASSOCIATION,
CIBC INC.,
BARNETT BANK OF PINELLAS COUNTY,
NBD BANK,
THE BANK OF NOVA SCOTIA,
CREDIT LYONNAIS,
ROYAL BANK OF CANADA,
PNC BANK, KENTUCKY, INC.
SOUTHTRUST BANK OF ALABAMA, NATIONAL ASSOCIATION
FIRST UNION NATIONAL BANK OF FLORIDA,
DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
and
THE SAKURA BANK, LIMITED,
as Domestic Facilities Lenders
CANADIAN IMPERIAL BANK OF COMMERCE
and
THE BANK OF NOVA SCOTIA,
as Canadian Facilities Lenders
and
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Agent
May 23, 1996
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Definitions and Terms
1.01 Definitions .......................................................... 3
1.02 Rules of Interpretation .............................................. 35
ARTICLE II
The Multicurrency Facilities
2.01 Revolving Credit Facility ............................................ 37
2.02 Payment of Interest .................................................. 41
2.03 Payment of Principal ................................................. 42
2.04 Competitive Bid Loans ................................................ 43
2.05 Multicurrency Facilities Notes. ...................................... 47
2.06 Pro Rata Payments .................................................... 48
2.07 Reductions ........................................................... 48
2.08 Increase and Decrease in Amounts ..................................... 49
2.09 Conversions and Elections of Subsequent
Interest Periods ..................................................... 49
2.10 Unused Fee ........................................................... 50
2.11 Deficiency Advances .................................................. 50
2.12 Adjustments by Agent ................................................. 51
2.13 Use of Proceeds ...................................................... 51
2.14 Extension of Revolving Credit Termination Date ....................... 51
2.15 Swing Line ........................................................... 51
2.16 Additional Multicurrency Facilities Borrowers .........................53
2.17 One Loan ............................................................. 54
2.18 Letters of Credit .................................................... 55
2.19 Acceptances .......................................................... 55
2.20 Creation of Acceptance ............................................... 56
2.21 Reimbursement ........................................................ 57
2.22 Domestic Letter of Credit Fee ........................................ 62
2.23 Administrative Fees and Reserves ..................................... 62
ARTICLE III
CANADIAN FACILITIES
3.01 Revolving Credit Facility ............................................ 63
3.02 Payment of Interest .................................................. 67
3.03 Payment of Principal ................................................. 69
3.04 Evidence of Indebtedness. ............................................ 70
3.05 Pro Rata Payments .................................................... 70
3.06 Reductions ........................................................... 71
3.07 Increase and Decrease in Amounts ..................................... 71
3.08 Conversions and Elections of Subsequent
Interest Periods ..................................................... 71
3.09 Unused Fee ........................................................... 72
i
<PAGE>
3.10 Deficiency Advances .................................................. 72
3.11 Use of Proceeds ...................................................... 73
3.12 Extension of Revolving Credit Termination Date ....................... 73
3.13 Letters of Credit .................................................... 73
3.14 Acceptances .......................................................... 74
3.15 Reimbursement ........................................................ 77
3.16 Canadian Letter of Credit Fee ........................................ 81
3.17 Administrative Fees and Reserves ..................................... 82
3.18 Maximum Rate of Return ............................................... 82
3.19 Reset of Canadian Lenders, Portion on Default ........................ 82
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs ..................................................... 83
4.02 Suspension of Loans .................................................. 84
4.03 Illegality ........................................................... 85
4.04 Compensation ......................................................... 85
4.05 Alternate Loan and Lender ............................................ 86
4.06 Taxes ................................................................ 86
4.07 Restricted Lender .................................................... 88
4.08 Funding .............................................................. 88
ARTICLE V
Conditions to Making Loans, Issuing
Letters of Credit and Creating Acceptances
5.01 Conditions of Initial Advance and Issuance
of Letters of Credit and Creating Acceptances ........................ 89
5.02 Conditions of Loans .................................................. 91
ARTICLE VI
Security
6.01 Guaranties ........................................................... 93
6.02 Further Assurances ................................................... 93
6.03 New Subsidiaries ..................................................... 93
ARTICLE VII
Representations and Warranties
7.01 Representations and Warranties as to Borrowers
and Subsidiaries ..................................................... 94
7.02 Representations and Warranties of TDC ................................ 95
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<PAGE>
ARTICLE VIII
Affirmative Covenants
8.01 Financial Reports, Etc .............................................. 101
8.02 Maintain Properties ................................................. 102
8.03 Existence, Qualification, Etc ....................................... 102
8.04 Regulations and Taxes ............................................... 103
8.05 Insurance ........................................................... 103
8.06 True Books .......................................................... 103
8.07 Pay Indebtedness to Lenders and Perform
Other Covenants ..................................................... 103
8.08 Right of Inspection ................................................. 103
8.09 Observe all Laws .................................................... 103
8.10 Covenants Extending to Subsidiaries ................................. 103
8.11 Officer's Knowledge of Default ...................................... 104
8.12 Suits or Other Proceedings .......................................... 104
8.13 Environmental Reports ............................................... 104
8.14 Notice of Discharge of Hazardous Material
or Environmental Complaint .......................................... 104
8.15 Indemnification ..................................................... 104
8.16 Further Assurances .................................................. 105
8.17 ERISA Requirement ................................................... 105
8.18 Continued Operations ................................................ 105
8.19 Use of Proceeds ..................................................... 106
8.20 New Subsidiaries .................................................... 106
ARTICLE IX
Negative Covenants
9.01 Asset Coverage Ratio ................................................ 108
9.02 Net Worth ........................................................... 108
9.03 Indebtedness to Total Capital ....................................... 108
9.04 EBIT to Interest Expense. ........................................... 108
9.05 Lease Expense Ratio ................................................. 108
9.06 Indebtedness ........................................................ 108
9.07 Liens ............................................................... 109
9.08 Transfer of Assets .................................................. 109
9.09 Investments ......................................................... 110
9.10 Merger or Consolidation ............................................. 110
9.11 Transactions with Affiliates ........................................ 111
9.12 ERISA ............................................................... 111
9.13 Capital Expenditures ................................................ 112
9.14 Fiscal Year ......................................................... 112
9.15 Rate Hedging Obligations ............................................ 112
9.16 Acquisition ......................................................... 112
9.17 Transfer and Administration Agreement ............................... 112
9.18 Existing TD France Subsidiaries ..................................... 112
9.19 Lease-Backs ......................................................... 112
9.20 Dividends or Distributions .......................................... 113
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<PAGE>
9.21 Negative Pledge ..................................................... 113
ARTICLE X
Events of Default and Acceleration
10.01 Events of Default .................................................. 114
10.02 Agent to Act ....................................................... 118
10.03 Cumulative Rights .................................................. 118
10.04 No Waiver .......................................................... 118
10.05 Default ............................................................ 118
10.06 Allocation of Proceeds ............................................. 118
ARTICLE XI
The Agents
11.01 Appointment ........................................................ 120
11.02 Attorneys-in-fact .................................................. 120
11.03 Limitation on Liability ............................................ 120
11.04 Reliance ........................................................... 121
11.05 Notice of Default .................................................. 121
11.06 No Representations ................................................. 121
11.07 Indemnification .................................................... 122
11.08 Lender ............................................................. 122
11.09 Resignation ........................................................ 122
11.10 Sharing of Payments, etc ........................................... 123
11.11 Fees ............................................................... 124
ARTICLE XII
Miscellaneous
12.01 Assignments and Participations ..................................... 125
12.02 Notices ............................................................ 127
12.03 No Waiver .......................................................... 129
12.04 Setoff ............................................................. 129
12.05 Survival ........................................................... 129
12.06 Expenses ........................................................... 130
12.07 Amendments ......................................................... 130
12.08 Counterparts ....................................................... 131
12.09 Waivers by Borrowers ............................................... 132
12.10 Termination ........................................................ 132
12.11 Governing Law ...................................................... 133
12.12 Representation and Warranty of the Lenders ......................... 134
12.13 Indemnification .................................................... 134
12.14 Agreement Controls ................................................. 135
12.15 Severability ....................................................... 135
iv
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REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT, dated as of May 23, 1996
(the "Agreement"), is made by and among:
TECH DATA CORPORATION, a corporation organized and existing under the laws
of the State of Florida and having its principal place of business located in
Clearwater, Florida ("TDC"); and
TECH DATA FRANCE, S.N.C., a societe en nom collectif organized under the
laws of France with a registered capital of FF 66,867,000, having its registered
office at 26 Avenue Henri Barbusse, 93000 Bobigny, registered with the Registry
of Commerce and of Companies of Bobigny under Number B 309 910 282 ("TD France"
and, together with TDC and any other Subsidiary who shall become authorized to
borrow under the Multicurrency Facilities in accordance with Section 2.16
hereof, the "Multicurrency Facilities Borrowers"); and
TECH DATA CANADA INC., a corporation organized and existing under the laws
of Ontario, Canada, and having its principal place of business 6895 Columbus
Road, Mississauga, Ontario L5T 269 ("TD Canada" and, together with the
Multicurrency Facilities Borrowers, the "Borrowers"); and
NATIONSBANK, NATIONAL ASSOCIATION ("NATIONSBANK"), CIBC INC., BARNETT BANK
OF PINELLAS COUNTY, NBD BANK, THE BANK OF NOVA SCOTIA, CREDIT LYONNAIS, ROYAL
BANK OF CANADA, PNC BANK, KENTUCKY, INC., SOUTHTRUST BANK OF ALABAMA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK OF FLORIDA and THE SAKURA BANK, LIMITED,
the initial lenders under the Multicurrency Facilities, and each other lender
which may hereafter execute and deliver an instrument of assignment with respect
to the Multicurrency Facilities under this Agreement pursuant to Section 12.01
(hereinafter NationsBank and such other lenders may be referred to individually
as a "Multicurrency Facilities Lender" or collectively as the "Multicurrency
Facilities Lenders"); and
CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC") and THE BANK OF NOVA SCOTIA,
the initial lenders under the Canadian Facilities and each other lender which
may hereafter execute and deliver an instrument of assignment with respect to
the Canadian Facilities under this Agreement pursuant to Section 12.01
(hereafter CIBC and such other lenders may be referred to individually as a
"Canadian Facilities Lender" or collectively as the "Canadian Facilities
Lenders"; the Canadian Facilities Lenders and the Multicurrency Facilities
Lenders are sometimes referred to collectively as the "Lenders" or individually
as a "Lender");
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States of America and having its
principal place of business in
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Tampa, Florida in its capacity as agent for the Lenders (in such capacity, the
"Agent"); and
CANADIAN IMPERIAL BANK OF COMMERCE in its capacity as agent for the
Canadian Facilities Lenders (the "Canadian Agent" and together with the Agent,
collectively the "Agents").
W I T N E S S E T H:
WHEREAS, TDC, the Agent and certain lenders are parties to an Amended and
Restated Revolving Credit and Reimbursement Agreement dated July 28, 1994, as
amended, (the "Prior Domestic Facilities Agreement") pursuant to which such
lenders have agreed to make loans to TDC and issue letters of credit and create
acceptances for the benefit of TDC in an aggregate amount of up to $125,000,000
(the "Prior Domestic Facilities"); and
WHEREAS, TD France, the Agent and certain lenders are parties to a
Revolving Foreign Currency Agreement dated as of August 4, 1994, as amended (the
"Prior TD France Facilities Agreement") pursuant to which such lenders have
agreed to make available to TD France a revolving credit facility in the
aggregate amount of up to $50,000,000 (the "Prior TD France Facility"); and
WHEREAS, TD Canada and CIBC are parties to a letter agreement dated as of
July 28, 1994 (the "Prior Canadian Facilities Agreement" and, together with
Prior Domestic Facilities Agreement and the Prior TD France Facilities
Agreement, the "Prior Credit Agreements") pursuant to which CIBC agreed to make
available to TD Canada revolving credit and foreign currency facilities and to
issue letters of credit and create acceptances for the benefit of TD Canada in
an aggregate amount of up to Cdn $33,000,000 (the "Prior TD Canada Facilities"
and, together with the Prior Domestic Facilities and the Prior TD France
Facility, the "Prior Credit Facilities"); and
WHEREAS, the Borrowers desire to replace the Prior Credit Facilities with
the Credit Facilities herein provided, and the Agents and the Lenders are
willing to make the Credit Facilities available to the Borrowers subject to the
terms and conditions herein provided;
NOW, THEREFORE, the Borrowers, the Lenders and the Agents hereby agree as
follows:
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<PAGE>
ARTICLE I
Definitions and Terms
1.01 For the purposes of this Agreement, in addition to the definitions set
forth above, the following terms shall have the respective meanings set forth
below:
"Absolute Rate" shall have the meaning assigned to such term in Section
2.04(c)(ii)(C) hereof;
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.04 hereof;
"Absolute Rate Loans" means the Competitive Bid Loans the interest rates on
which are determined on the basis of Absolute Rates set at Absolute Rate
Auctions;
"Acceptance" means a Domestic Acceptance or a Canadian Acceptance, as the
case may be;
"Acceptance Addition" means that percent per annum set forth below which
percent shall be the Acceptance Addition effective as to each Acceptance created
next following the date of delivery of the certificate described in Section
8.01(a)(iii) or Section 8.01(b)(ii) (the "Compliance Date") demonstrating that
as of the end of such period (i) either the ratio of Consolidated Funded
Indebtedness to Consolidated Total Capital is less than or equal to or more
than, as the case may be, or (ii) the ratio of Consolidated EBIT to Consolidated
Interest Expense is greater than or equal to or less than, as the case may be,
the applicable ratio set forth opposite such Acceptance Addition (provided that
if such determination shall result in more than one Acceptance Addition, the
lower Acceptance Addition shall apply):
Ratios
------
EBIT to Interest Debt to Capital Acceptance Addition
---------------- --------------- -------------------
(a) Less than 3.0 to 1.00 Less than .60 to 1.00 but .55%
equal to or greater than
.55 to 1.00
(b) Greater than or equal Less than .55 to 1.00 but .45%
to 3.0 to 1.00 but less equal to or greater than
than 4.0 to 1.00 .50 to 1.00
(c) Greater than or equal Less than .50 to 1.00 but .40%
to 4.0 to 1.00 but less equal to or greater than
than 5.0 to 1.00 .45 to 1.00
3
<PAGE>
(d) Greater than or equal Less than .45 to 1.00 .375%
to 5.0 to 1.00
Notwithstanding the foregoing, if the Borrowers shall fail to deliver any
such certificate within the applicable period set forth in Section 8.01(a) or
(b), as the case may be, then the Acceptance Addition shall be .55% until the
appropriate certificate is delivered. From the Closing Date to the first
Compliance Date, the Acceptance Addition shall be .45%;
"Acceptance Discount Proceeds" means:
(i) in the case of a Canadian Acceptance accepted by a Canadian Facilities
Lender that is a Schedule I Canadian chartered bank, the discount proceeds
received by it upon its sale of such Canadian Acceptance to an arm's length
purchaser; and
(ii) in the case of a Canadian Acceptance accepted by a Canadian Facilities
Lender that is not a Schedule I Canadian chartered bank, the lesser of (a) the
discount proceeds received by such Canadian Facilities Lender upon its sale of
such Canadian Acceptance to an arm's length purchaser at approximately 10:00
a.m. Toronto time on the drawdown day, or (b) the discount proceeds that would
be received by such Canadian Facilities Lender had it sold such Canadian
Acceptance based upon the average discount rate for bankers' acceptances
appearing on the CDOR screen of Reuters at approximately 10:00 a.m. Toronto time
on the drawdown day in Section 3.01, or if such rate is not quoted on the CDOR
screen of Reuters at that time, the discount proceeds that would be received by
it if it were to sell such Canadian Acceptance at a discount rate equal to the
average discount rate expressed as a rate per annum applicable to Acceptances
sold at that time by Canadian Facilities Lenders that are Schedule I Canadian
chartered banks plus 0.07% per annum;
"Advance" means a Canadian Advance or a Domestic Advance, as the case may
be;
"Advance Date Exchange Rate" means, (i) with respect to a specified Advance
or Loan of an Alternative Currency, the Spot Rate of Exchange as of the date two
Business Days preceding the date such Advance is originally made, provided that,
if such Advance or Loan is continued for a subsequent Interest Period or
converted pursuant to Section 2.09 the Advance Date Exchange Rate with respect
to such Loan shall be the Spot Rate of Exchange two Business Days preceding the
effective date of the latest continuation or conversion of such Advance or Loan;
(ii) with respect to a specified Advance or Loan of an Alternative Currency to
TD Canada, the Advance Date Exchange Rate shall be the Spot Rate of Exchange as
4
<PAGE>
of the date of the Advance or Loan or as of the date of a continued Interest
Period or conversion; and in either case the Dollar Value of such Advance or
Loan shall be adjusted as set forth in Section 2.01(b) or Section 3.01(b), as
applicable; provided, further, that in the case of a drawing under a Letter of
Credit, the Spot Rate of Exchange shall be as of the date of such drawing;
"Alternative Currency" means, (i) with respect to Loans under the Domestic
Revolving Credit Facility, those currencies listed on Schedule 1.5 hereto and,
with the prior written consent of all Multicurrency Facilities Lenders and the
Agent, any other lawful currency other than Dollars which is freely transferable
and convertible into Dollars in the United States currency market; provided,
however, that an Alternative Currency shall only be available to the
Multicurrency Facilities Borrowers if each Multicurrency Facilities Lender shall
have access to such Alternative Currency on terms reasonably acceptable to such
Multicurrency Facilities Lender and (ii) with respect to Loans under the
Canadian Revolving Credit Facility, Canadian Dollars;
"Alternative Currency Equivalent Amount" means, with respect to a specified
Alternative Currency and a specified Dollar amount, the amount of such
Alternative Currency into which such Dollar amount would be converted, based on
the applicable Advance Date Exchange Rate;
"Alternative Currency Loan" means a Loan made in an Alternative Currency;
"Applicable Agent" means, with respect to all matters involving Article II
of this Agreement the Agent, and with respect to all matters involving Article
III of this Agreement, the Canadian Agent;
"Applicable Commitment Percentage" means, (i) for each Multicurrency
Facilities Lender, with respect to the Obligations hereunder arising in
connection with the Domestic Revolving Credit Facilities (each a type of "credit
exposure"), including its Participations and its obligations hereunder to
NationsBank to acquire Participations, a fraction (expressed as a percentage),
the numerator of which shall be the then amount of such Multicurrency Facilities
Lender's Domestic Revolving Credit Commitment and the denominator of which shall
be the Total Domestic Revolving Credit Commitment, which Applicable Commitment
Percentage for each Multicurrency Facilities Lender as of the Closing Date is as
set forth in Exhibit A attached hereto and incorporated herein by this
reference; (ii) for each Canadian Facilities Lender, with respect to the
Obligations hereunder arising in connection with the Canadian Revolving Credit
Facilities (each a type of "credit exposure"), including its Participations and
its
5
<PAGE>
obligations hereunder to CIBC to acquire Participations, a fraction
(expressed as a percentage), the numerator of which shall be the then amount of
such Canadian Facilities Lender's Canadian Revolving Credit Commitment and the
denominator of which shall be the Total Canadian Revolving Credit Commitment,
which Applicable Commitment Percentage for each Canadian Facilities Lender as of
the Closing Date is as set forth in Exhibit A attached hereto and incorporated
herein by this reference; provided that the Applicable Commitment Percentage of
each Lender shall be increased or decreased to reflect any assignments to or by
such Lender effected in accordance with Section 12.01 hereof;
"Applicable Interest Addition" means that percent per annum set forth below
in the case of each of a Floating CD Loan, Fixed CD Loan or Eurodollar Rate
Loan, which percent shall be the Applicable Interest Addition effective
beginning on the first day next following the date of delivery of the
certificate described in Section 8.01(a)(iii) or Section 8.01(b)(iii) (the
"Compliance Date") demonstrating that as of the end of such period either (i)
the ratio of Consolidated Funded Indebtedness to Consolidated Total Capital is
less than or equal to or more than, as the case may be, or (ii) the ratio of
Consolidated EBIT to Consolidated Interest Expense is greater than or equal to
or less than, as the case may be, the applicable ratio set forth opposite such
Applicable Interest Addition (provided that if such determination shall result
in more than one Applicable Interest Addition, the lower Applicable Interest
Addition shall apply):
<TABLE>
<CAPTION>
Ratios Interest Addition
------ -----------------
EBIT to Interest Debt to Capital Floating Fixed Eurodollar
CD Loan CD Loan Rate Loan
---------------- --------------- ------- ------- ---------
<S> <C> <C> <C> <C>
(a) Less than 3.0 to 1.00 Less than .60 to 1.00 but .675% .675% .55%
equal to or greater than
(b) Greater than or equal Less than .55 to 1.00 but .575% .575% .45%
to 3.0 to 1.00 but less than equal to or greater than
4.0 to 1.00 .50 to 1.00
(c) Greater than or equal Less than .50 to 1.00 but .525% .525% .40%
to 4.0 to 1.00 but less than equal to or greater than
5.0 to 1.00 .45 to 1.00
(d) Greater than or equal Less than .45 to 1.00 .500% .500% .375%
to 5.0 to 1.00
</TABLE>
Notwithstanding the foregoing, if the Borrowers shall
fail to deliver any such certificate within the applicable period set
forth in Section 8.01(a) or (b), as the case may be, then the
Applicable Interest Addition for any Loan shall be the highest
6
<PAGE>
Applicable Interest Addition for such type of Loan set forth above
until the appropriate certificate is so delivered. From the Closing
Date to the first Compliance Date, the Applicable Margin shall be .575%
for CD Loans and .45% for Eurodollar Rate Loans;
"Applicable Rate" means the Eurodollar Rate applicable to any
Alternative Currency;
"Applicable Reference Rate" means:
(i) for any Fixed CD Loan, in respect of the Interest Period
specified by the Authorized Representative in the Borrowing Notice
for such Fixed CD Loan, the per annum rate of interest (expressed
as a percentage and rounded upwards if necessary to the nearest
1/100 of 1%) (which shall be the same for each day of such Interest
Period) determined in good faith by the Agent in accordance with
the usual procedures for its customers generally (which
determination shall be conclusive absent manifest error) to be the
average of the secondary market bid rates at approximately 10:00
A.M. Charlotte, North Carolina time on the first day of such
Interest Period of at least two dealers of recognized standing in
negotiable certificates of deposit for the purchase at face value
of negotiable certificates of deposit of major money center banks
for delivery on such day in an amount approximately equal to the
principal amount of, and for a period comparable to the Interest
Period for, such Fixed CD Loan and maturing at the end of such
Interest Period, and
(ii) for any Floating CD Loan the per annum rate of interest
(expressed as a percentage and rounded upwards if necessary to the
nearest 1/100 of 1%) determined in good faith by the Agent in
accordance with the usual procedures for its customers generally to
be the average of the secondary market bid rates at approximately
10:00 A.M. Charlotte, North Carolina time on each day of such
Floating CD Loan of at least two dealers of recognized standing in
negotiable certificates of deposit for the purchase at face value
of negotiable certificates of deposit of major money center banks
for delivery on such day in an amount approximately equal to the
principal amount of such Floating CD Loan for a period of 90 days,
and
(iii) for any Eurodollar Rate Loan, in respect of the Interest
Period specified by the Authorized Representative in the Borrowing
Notice for such Eurodollar Rate Loan the average (rounded upward to
the nearest one-sixteenth (1/16th) of one percent) per annum rate
of interest determined by the office of the Applicable Agent (each
such determination to be conclusive and binding) as of two Business
Days prior to the first day of such Interest Period, as the
7
<PAGE>
effective rate at which deposits in immediately available funds in
Dollars or an Alternative Currency, as the case may be, are being,
have been, or would be offered or quoted by the Applicable Agent to
major banks in the applicable interbank market for Eurodollar
deposits or deposits of such Alternative Currency, as the case may
be, at any time during the Business Day which is the second
Business Day immediately preceding the first day of such Interest
Period, for a term comparable to such Interest Period and in the
amount of the Fixed Rate Loan. If no such offers or quotes are
generally available for such amount, the Applicable Agent shall be
entitled to determine the Eurodollar Rate by estimating in its
reasonable judgment the per annum rate (as described above) that
would be applicable if such quote or offers were generally
available;
"Applicable Reserve Requirement" means, for any CD Loan or any
Fixed Rate Loan (other than Competitive Bid Loans) with respect
thereto, the maximum aggregate rate at which reserves (including,
without limitation, any basic marginal, special, supplemental or
emergency reserves) are required to be maintained with respect thereto
under Regulation D of the Board or other applicable banking regulator
by the member banks of the Federal Reserve System against (i)
non-personal Dollar time deposits in an amount of $100,000 or more in
the case of any CD Loan or (ii) with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of a Fixed Rate Loan is determined), whether or
not the applicable Lender has any Eurocurrency liabilities subject to
such reserve requirement at that time. A Fixed Rate Loan shall be
deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for
proration, exceptions or offsets that may be available from time to
time to the applicable Lender. The Fixed Rate shall be adjusted
automatically on and as of the effective date of any change in the
Applicable Reserve Requirement;
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be the Applicable Unused Fee effective beginning on
the day next following the date of delivery of the certificate
described in Section 8.01(a)(iii) or Section 8.01(b)(iii) (the
"Compliance Date"), demonstrating that as of the end of such period
either (i) the ratio of Consolidated Funded Indebtedness to
Consolidated Total Capital is less than or equal to or more than, as
the case may be, or (ii) the ratio of Consolidated EBIT to Consolidated
Interest Expense is greater than or equal to or less than, as the case
may be, the applicable ratio set forth opposite such Applicable Unused
Fee (provided that if such determination
8
<PAGE>
shall result in more than one Applicable Unused Fee, the lower
Applicable Unused Fee shall apply:
<TABLE>
<CAPTION>
Ratios
------
EBIT to Interest Debt to Capital Applicable Unused Fee
---------------- -------------- ---------------------
<S> <C> <C> <C>
(a) Less than 3.0 to 1.00 Less than .60 to 1.00 but .175%
equal to or greater than
.55 to 1.00
(b) Greater than or equal Less than .55 to 1.00 but .15%
to 3.0 to 1.00 but less than 4.0 equal to or greater than
to 1.00 .50 to 1.00
(c) Greater than or equal Less than .50 to 1.00 but .1375%
to 4.0 to 1.00 but less than 5.0 equal to or greater than
to 1.00 .45 to 1.00
(d) Greater than or equal Less than .45 to 1.00 .1250%
to 5.0 to 1.00
</TABLE>
Notwithstanding the foregoing, if the Borrowers shall
fail to deliver any such certificate within the applicable period set
forth in Section 8.01(a) or (b), as the case may be, then the
Applicable Unused Fee shall be .175% until the appropriate certificate
is so delivered. From the Closing Date to the first Compliance Date,
the Applicable Unused Fee shall be .15%;
"Assessment Rate" means, for any day for any CD Loan, the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined in
good faith by the Agent in accordance with its usual procedures for its
customers generally (which determination shall be conclusive absent
manifest error) to be the net annual assessment rate payable by the
Agent on such day for insurance by the Federal Deposit Insurance
Corporation (or any successor) on Dollar time deposits. The CD Rate
shall be adjusted automatically as of the effective date of each change
in the Assessment Rate;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.01;
"Assumption and Consent Agreement" means each Assumption and
Consent Agreement described in Section 2.16 hereof executed and
delivered in connection with the creation of additional Multicurrency
Facilities Borrowers;
"Authorized Representative" means (i) in the case of TDC any
of the Chairman, Vice Chairman, President, Senior Vice Presidents of
9
<PAGE>
Finance and Chief Financial Officer or Treasurer of TDC or, with
respect to financial matters, the Treasurer or Chief Financial Officer
of TDC, (ii) in the case of TD France any of the managing directors
represented by their senior executive officers (President, Senior Vice
President or Chief Financial Officer), and (iii) with respect to TD
Canada, all of the Authorized Representatives of TDC and the Vice
President of Finance and Controller, or any other person expressly
designated by the Board of Directors (or the appropriate committee
thereof) of TDC as an Authorized Representative for purposes of this
Agreement, as set forth from time to time in a certificate in the form
attached hereto as Exhibit C;
"BA Rate" means with respect to Domestic Acceptances,
NationsBank, N.A. Funds Management Bankers Acceptance Funding Rate as
established by the Agent from time to time for an Acceptance having an
Interest Period and in an approximate amount equal to such Acceptance;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrowing Notice" means the telephonic request of the
Authorized Representative of a Borrower to (i) obtain an Advance or to
elect a subsequent Interest Period for or convert a Loan or Loans of
any type hereunder, as the obtaining of such Advance, such election or
conversion of such Loan or Loans shall be otherwise permitted herein or
(ii) create an Acceptance, as otherwise permitted hereunder. Any
Borrowing Notice shall be binding on and irrevocable by the Borrower,
and (a) in the case of a notice for the purposes set forth in (i)
hereof, shall be confirmed in writing within three (3) Business Days by
the Authorized Representative in the form attached hereto as Exhibit
D-1 for Domestic Revolving Loans or Exhibit D-2 for Canadian Loans and
(b) in the case of a notice for the purposes set forth in (ii) hereof,
shall be confirmed in writing not less than two (2) Business Days prior
to the creation of such Acceptance by an Authorized Representative in
the form attached hereto as Exhibit D-3 for Domestic Acceptances or
Exhibit D-4 for Canadian Acceptances;
"Business Day" means (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of the
States of New York, North Carolina or Florida or is a day on which
banking institutions located in such state are authorized or required
by law or other governmental action to close, (ii) with respect to all
notices, determinations, findings and payments in connection with
Canadian Loans, Canadian Letters of Credit and the Canadian
Acceptances, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of Canada and the Province of Ontario,
10
<PAGE>
Canada or is a day on which banking institutions located in such
Province are authorized or required by law or other governmental action
to close and (iii) (A) with respect to all notices, determinations,
fundings and payments in connection with any Eurodollar Rate Loan, any
day that is a Business Day described in clause (i) above and that is
also a day for trading by and between banks in Dollar deposits in the
applicable interbank Eurodollar market or in deposits in the applicable
Alternative Currency in the United States interbank market, as
applicable, and (B) with respect to all notices, determinations,
findings and payments in connection with any Canadian Loans, any day
that is a Business Day described in clause (ii) above and that is also
a day for trading by and between banks in Canadian Dollar deposits in
the applicable interbank Canadian Eurodollar market;
"Canadian Acceptance" means a draft which constitutes a blank
bill of exchange within the meaning of the Bills of Exchange Act
(Canada) drawn by TD Canada on, and accepted by, a Canadian Facilities
Lender and has a maturity 1, 2, 3 or 6 months after the date such
Acceptances was created and does not extend beyond the Revolving Credit
Termination Date, and shall include for purposes of computation of
Canadian Acceptance Usage the Existing Canadian Acceptances;
"Canadian Acceptance Lender" means a Lender that is a Canadian
chartered bank;
"Canadian Acceptance Usage" means, as at any date of
determination, the aggregate face amount of all completed Canadian
Acceptances which have been accepted and discounted and not been repaid
by TD Canada whether or not due and whether or not held by CIBC;
"Canadian Advance" means a borrowing under the Canadian Revol-
ving Credit Facility consisting of the aggregate principal amount of
a Domestic Base Rate Loan, Canadian Prime Rate Loan or a Fixed Rate
Loan;
"Canadian Dollars" or "Cdn $" means the lawful currency of
Canada;
"Canadian Facilities" means the revolving credit, letter of
credit and acceptance facilities made available by the Lenders pursuant
to Article III hereof;
"Canadian Letter of Credit" means a Letter of Credit issued
under the Canadian Letter of Credit Facility, and shall include for
purposes of computation of Canadian Letter of Credit Outstandings, the
Existing Canadian Letters of Credit and the related reimbursement
obligations;
11
<PAGE>
"Canadian Letter of Credit Commitment" means an amount not to
exceed Cdn $25,000,000; "Canadian Letter of Credit Facility"
means the facility described in Article III hereof
providing for the issuance by CIBC for the account of TD Canada of
Canadian Letters of Credit in an aggregate stated amount at any time
outstanding not exceeding the Canadian Letter of Credit Commitment;
"Canadian Letter of Credit Outstandings" means all undrawn
amounts of Canadian Letters of Credit plus Reimbursement Obligations
relating to Canadian Letters of Credit;
"Canadian Loans" means loans made by the Canadian Facilities
Lenders pursuant to Sections 3.01 hereof;
"Canadian Prime Rate" means on any day and with respect to all
Canadian Prime Rate Loans, the greater of:
(i) the variable rate of interest expressed as a
percentage per annum (calculated on the basis of a year of 365
days) which CIBC publishes as the reference rate of interest
in order to determine interest rates it will charge on that
day for demand loans in Canadian Dollars to its Canadian
customers and which it refers to as its "prime lending rate"
or "prime rate"; and
(ii) the average yield to maturity expressed as a
percentage per annum (calculated on the basis of a year of 365
days) quoted at 10:00 Toronto time on that day on the CDOR
page of Reuters for 30 day bankers' acceptances issued by
Canadian chartered banks, plus .50% per annum.
The Canadian Prime Rate is not necessarily intended to be the lowest
rate of interest determined by CIBC in connection with extensions of
credit in Canadian Dollars. Changes in the rate of interest on that
portion of any Loans maintained as Canadian Prime Rate Loans will take
effect simultaneously with each change in the Canadian Prime Rate. The
Canadian Agent shall give notice to the Borrower and each Canadian
Facilities Lender of the Canadian Prime Rate from time to time quoted
by CIBC and such notice shall be conclusive and binding for all
purposes absent error;
"Canadian Prime Rate Loan" or "Canadian Prime Loan" means a
Loan for which the rate of interest is determined by reference to the
Canadian Prime Rate;
"Canadian Revolving Credit Commitment" means with respect to
each Canadian Facilities Lender, the obligation of such Lender to make
Loans to TD Canada up to an aggregate principal amount at any one time
outstanding equal to the percentage set forth in Exhibit A as the same
12
<PAGE>
may be increased or decreased from time to time pursuant to this
Agreement;
"Canadian Revolving Credit Facility" means the facility
described in Article III hereof providing for Loans to TD Canada by the
Canadian Facilities Lenders in the aggregate principal amount of Total
Canadian Revolving Credit Commitment less the aggregate amount of
Canadian Letter of Credit Outstandings and Canadian Acceptance Usage;
"Capital Expenditures" means for any period the sum of (i) the
gross amount of additions to property, plant and equipment of TDC and
its Subsidiaries during such period plus (ii) with respect to any
Capital Lease entered into by TDC or any Subsidiary during such period,
the present value of the lease payments due under such Capital Lease
over the term of such Capital Lease applying a discount rate equal to
the interest rate provided in such lease or if no interest is provided,
the interest rate used in the preparation of the financial statements
referred to in Section 8.01(a) or (b) hereof;
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting Principles
as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof;
"Cash Equivalents" means
(a) marketable obligations issued or unconditionally
guaranteed by the United States government, in each case
maturing within one year after the date of acquisition
thereof;
(b) marketable direct obligations issued by any state
of the United States or any political subdivision of any such
state maturing within 180 days after the date of acquisition
thereof and, at the time of acquisition, having a rating of
A-1 or P-1, or better, from Standard & Poor's division of
McGraw-Hill, Inc. ("Standard & Poor's") or Moody's Investors
Service, Inc., respectively;
(c) commercial paper maturing no more than 270 days
after the date of acquisition thereof, issued by a corporation
organized under the laws of any state of the United States or
of the District of Columbia and, at the time of acquisition,
having a rating of A-1 or P-1, or better, from Standard &
Poor's or Moody's Investors Service, Inc., respectively;
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<PAGE>
(d) time deposits, certificates of deposit or
Eurodollar deposit maturing within 90 days after the date of
acquisition thereof, issued by any commercial bank that is
either (i) a member of the Federal Reserve System that has
capital, surplus and undivided profits (as shown on its most
recent statement of condition) aggregating not less than
$400,000,000 and is rated A or better by Moody's Investors
Service, Inc. or Standard & Poor's or (ii) a Lender;
(e) repurchase agreements entered into with any
Lender or any commercial bank of the nature referred to in
clause (d), secured by a fully perfected Lien in any
obligation of the type described in any of clauses (a) through
(d), having a fair market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation thereunder of such Lender or other
commercial bank; and
(f)money market funds not less than 75% of whose
investments are made up of securities described in clauses
(a) through (e);
"CD Loan" means a Loan for which the rate of interest is
determined by reference to the CD Rate;
"CD Rate" means, for any CD Loan, the rate of interest per
annum determined pursuant to the following formula:
Applicable Reference Rate
------------------------- Applicable
CD Rate = 1 - Applicable + Assessment Rate + Interest
Reserve Requirement Addition
"Change of Control" means, at any time:
(A) with respect to TDC:
(i) any "person" or "group" (each as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
either (A) becomes the "beneficial owner" (as defined
in Rule 13d-3 of the Exchange Act ), directly or
indirectly, of Voting Stock of TDC (or securities
convertible into or exchangeable for such Voting
Stock) representing 30% or more of the combined
voting power of all Voting Stock of TDC (on a fully
diluted basis) or (B) otherwise has the ability,
directly or indirectly, to elect a majority of the
board of directors of TDC; or
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals
who at the beginning of such 24-month period were
directors of TDC shall cease for any reason (other
14
<PAGE>
than the death, disability or retirement) to
constitute a majority of the board of directors of
TDC; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement
that, upon consummation thereof, will result in its
or their acquisition of the power to exercise,
directly or indirectly, a controlling influence on
the management or policies of TDC; and
(B)with respect to any Significant Subsidiary of TDC:
(i) which is or becomes a wholly-owned
Significant Subsidiary at or after the Closing Date,
such Person ceases for any reason to be a
wholly-owned Subsidiary of TDC (or with respect to TD
Canada or TD France, ceases to be a significant
subsidiary); or
(ii) which is or becomes a Significant Subsidiary
(other than a wholly-owned Significant Subsidiary) of
TDC at or after the Closing Date, such Person ceases
for any reason to be a Subsidiary of TDC;
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Lenders and the Agent and on which the
conditions set forth in Section 5.01 hereof have been satisfied;
"Commercial Letter of Credit" means a documentary letter of
credit issued (i) in the case of Domestic Letters of Credit, by
NationsBank for the account of the applicable Multicurrency Facilities
Borrower or (ii) in the case of Canadian Letters of Credit, by CIBC for
the account of TD Canada, to support the acquisition of Eligible
Inventory (x) in the case of Domestic Letters of Credit, of
Multicurrency Facilities Borrowers and (y) in the case of Canadian
Letters of Credit, of TD Canada which letters of credit are secured by
documents; provided that the expiry date of a Commercial Letter of
Credit (i) shall not be later than six (6) months subsequent to the
date of issuance thereof, (ii) shall not provide for payment subsequent
to the thirtieth Business Day preceding the Revolving Credit
Termination Date and (iii) shall not provide for time drafts;
"Competitive Bid Borrowing" shall have the meaning assigned to
such term in Section 2.04(b) hereof;
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<PAGE>
"Competitive Bid Loans" means the Loans provided for by
Section 2.04 hereof;
"Competitive Bid Notes" means the promissory notes of the
Multicurrency Facilities Borrowers executed and delivered to the
Multicurrency Facilities Lenders as provided in Section 2.05(c) and
Section 2.16 substantially in the form of Exhibit E-1 which shall be
delivered to evidence the Competitive Bid Loans;
"Competitive Bid Quote" means an offer in accordance with
Section 2.04(c) hereof by a Lender to make a Competitive Bid Loan with
one single specified interest rate;
"Competitive Bid Quote Request" shall have the meaning
assigned to such term in Section 2.04(b) hereof;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of TDC referred to in Section 7.02(c)(i) hereof;
"Consolidated Asset Coverage Ratio" means the ratio of (A) the
sum of, without duplication, (i) unrestricted cash and Cash Equivalents
located in each case within the United States, (ii) Remaining Accounts
Receivable, (iii) Receivables of Subsidiaries, (iv) Inventory and (v)
Prepaid Inventory to (B) the sum of, without duplication, (i) Total
Domestic Utilization, (ii) Total Canadian Utilization, (iii)
Indebtedness permitted under Section 9.06(v), and (iv) accounts payable
of TDC and its Subsidiaries, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principals applied on a
Consistent Basis;
"Consolidated EBIT" means, with respect to TDC and its
Subsidiaries for the Four-Quarter Period immediately preceding the date
of computation thereof, the sum of, without duplication, (i)
Consolidated Net Income, plus (ii) Consolidated Interest Expense during
such period, (iii) plus taxes paid on income during such period, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Funded Indebtedness" means Indebtedness for
Money Borrowed of TDC and its Subsidiaries, all determined on a
consolidated basis;
"Consolidated Indebtedness" means all Indebtedness of TDC
and its Subsidiaries, all determined on a consolidated basis;
16
<PAGE>
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of TDC and
its Subsidiaries, including without limitation (i) the amortization of
debt discounts, (ii) the amortization of all reserves and fees
(including without limitation, dealer and program fees payable under
the Transfer and Administration
<PAGE>
Agreement and fees payable in respect of a Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in interest expense and (iii) the portion of any liabilities incurred
in connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Lease Expense" means with respect to TDC and its
Subsidiaries for the Four Quarter Period immediately preceding the date
of computation, the gross amount of all lease or rental expense,
whether or not characterized as rent, excluding payments in respect of
Capital Leases constituting Indebtedness, all determined in accordance
with Generally Accepted Accounting Principles applied on a Consistent
Basis;
"Consolidated Net Income" means the gross revenues of TDC and
its Subsidiaries less all operating and non-operating expenses of TDC
and its Subsidiaries including taxes on income, all determined in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis; but excluding as income: (i) gains on the sale,
conversion or other disposition of capital assets, (ii) gains on the
acquisition, retirement, sale or other disposition of capital stock and
other securities of TDC or any Subsidiary, (iii) gains on the
collection of proceeds of life insurance policies, (iv) any write-up of
any asset, and (v) any other gain or credit of an extraordinary nature
as determined in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis;
"Consolidated Shareholders' Equity" means at any time as of
which the amount thereof is to be determined, the sum of the following
in respect of TDC and its Subsidiaries (determined on a consolidated
basis and excluding intercompany items among TDC and its Subsidiaries
and any upward adjustment after the Closing Date due to revaluation of
assets): (i) the amount of issued and outstanding share capital, plus
(ii) the amount of additional paid-in capital and retained income (or,
in the case of a deficit, minus the amount of such deficit), plus (iii)
the amount of any foreign currency translation adjustment (if positive,
or, if negative, minus the amount of such translation adjustment) minus
(iv) the absolute value of any treasury stock and the absolute value of
any stock subscription receivables, as determined in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis;
17
<PAGE>
"Consolidated Tangible Net Worth" means at any time as of
which the amount thereof is to be determined, Consolidated
Shareholders' Equity minus the sum of the following (without
duplication of deductions in respect of items already deducted in
arriving at surplus and retained earnings): (a) the net book value of
all assets which would be treated as intangible assets under Generally
Accepted Accounting Principles, such as (without limitation) goodwill
(whether representing the excess of cost over book value of assets
acquired or otherwise), capitalized expenses (other than capitalized
software expenses), unamortized debt discount and expense, consignment
inventory (to the extent not included in Inventory of the Borrower and
its Subsidiaries under Generally Accepted Accounting Principles),
patents, trademarks, trade names, copyrights, franchises and licenses;
and (b) all reserves (other than contingent reserves not allocated to
any particular purpose), including without limitation reserves for
depreciation, depletion, amortization, obsolescence, deferred income
taxes, insurance and inventory valuation;
"Consolidated Total Capital" means the sum of Consolidated
Shareholders' Equity and Consolidated Funded Indebtedness;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the consolidated financial
statements (including footnotes) of such Person in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis,
including Statement No. 5 of the Financial Accounting Standards Board,
and any obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including obligations of such Person however incurred:
(1) to purchase such Indebtedness or other
obligation or any property or assets constituting
security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
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<PAGE>
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5)otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
With respect to Contingent Obligations (such as litigation, guarantees
and pension plan liabilities), such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing
at the time, represent the amount which can reasonably be expected to
become an actual or matured liability;
"Cost of Acquisition" means the sum of (i) the market value,
as at the date of entering into any agreement to acquire any Person, of
the assets and/or the capital stock or warrant or option to be
transferred in connection therewith, (ii) any cash or face amount of
any debt instrument given as consideration, and (iii) any Indebtedness
or liabilities assumed (or taken subject to) by TDC or its Subsidiaries
in connection with such acquisition;
"Credit Margin" means, for any day, with respect to any
Canadian Acceptance accepted under the Canadian Revolving Commitment
the amount set out as the Applicable Interest Addition used for
determining the Eurodollar Rate;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Defaulted Receivable" means any Receivable which is at the
time of transfer to Enterprise pursuant to the Transfer and
Administration Agreement either (i) unpaid for 91 days or more from the
original due date, (ii) as to which an event of bankruptcy has occurred
with respect to the obligor thereunder, (iii) is deemed uncollectible
by TDC, or (iv) consistent with TDC's credit and collection policy
should be written off as uncollectible;
"Dollar Equivalent Amount" means, with respect to a specified
Alternative Currency amount, the amount of Dollars into which an
Alternative Currency amount would be converted, based on the applicable
Advance Date Exchange Rate;
"Dollar Value" of an Advance or a Loan in an Alternative
Currency means the Dollar Equivalent Amount of the principal amount of
such Advance or Loan with respect to such Advance or Loan, as recorded
19
<PAGE>
in the Agent's records pursuant to Section 2.01(b) and Section 3.01(b);
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Domestic Acceptance" means a draft drawn by TDC on, and
accepted by, a financial institution, which Acceptance is eligible for
discount by Federal Reserve Banks pursuant to paragraph 7 of Section 13
of the Federal Reserve Act (12 U.S.C. ss.372), as amended from time to
time and has a maturity date of 30, 60, 90 or 180 days after the date
such Acceptance was created and does not extend beyond the Revolving
Credit Termination Date, and shall include for purposes of computation
of Domestic Acceptance Usage the Existing Domestic Acceptances;
"Domestic Acceptance Date" means that date upon which
NationsBank creates a Domestic Acceptance pursuant to Article II
hereof;
"Domestic Acceptance Usage" means, as at any date of
determination, the aggregate face amount of all completed Domestic
Acceptances which have not been repaid by the Multicurrency Facilities
Borrowers whether or not due and whether or not held by NationsBank;
"Domestic Advance" means a borrowing under (i) the Domestic
Revolving Credit Facility consisting of the aggregate principal amount
of a Domestic Base Rate Loan or Fixed Rate Loan, as the case may be and
(ii) the Swing Line consisting of Floating CD Loans;
"Domestic Base Rate" means on any day the per annum rate of
interest equal to (A) for Loans in Article II hereof the greater of (i)
the Domestic Prime Rate or (ii) the Federal Funds Effective Rate plus
one-half of one percent (1/2%). Any change in the Domestic Base Rate
resulting from a change in the Domestic Prime Rate or the Federal Funds
Effective Rate shall become effective as of 12:01 A.M. of the Business
Day on which each such change occurs. The Domestic Base Rate is a
reference rate used by Agent in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on
any extension of credit to any debtor and (B) for Canadian Loans in
Article III hereof made by Canadian Facilities Lenders a fluctuating
rate of interest per annum (expressed on the basis of a year of 365
days) equal to the higher of:
(a) the rate of interest most recently established by
CIBC as its base rate for Dollar loans made in Canada; and
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<PAGE>
(b) the Federal Funds Effective Rate in effect on each
day as determined by the Agent plus 1/2 of 1%.
The Domestic Base Rate is not necessarily intended to be the lowest
rate of interest determined by CIBC in connection with extensions of
credit in Dollars. Changes in the rate of interest on that portion of
any Canadian Loans maintained as Domestic Base Rate Loans will take
effect simultaneously with each change in the Domestic Base Rate. The
Canadian Agent will give notice promptly to TD Canada and the Canadian
Facilities Lenders of changes in the Domestic Base Rate;
"Domestic Base Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Domestic Base Rate;
"Domestic Borrowers' Account" means a demand deposit account
with the Agent, which may be maintained at one or more offices of the
Agent, or an agent for the Agent;
"Domestic Letter of Credit" means a Letter of Credit issued
under the Domestic Letter of Credit Facility, and shall include for
purposes of computation of Domestic Letter of Credit Outstandings, the
Existing Domestic Letters of Credit and the related reimbursement
obligations;
"Domestic Letter of Credit Commitment" means an amount not to
exceed $75,000,000;
"Domestic Letter of Credit Facility" means the facility
described in Article II hereof providing for the issuance by
NationsBank for the account of the Multicurrency Facilities Borrowers
of Letters of Credit in an aggregate stated amount at any time
outstanding not exceeding the Domestic Letter of Credit Commitment;
"Domestic Letter of Credit Outstandings" means all undrawn
amounts of Domestic Letters of Credit plus Reimbursement Obligations
relating to Domestic Letters of Credit;
"Domestic Loans" means Loans made by the Multicurrency
Facilities Lenders pursuant to Sections 2.01, 2.04 and 2.15 hereof;
"Domestic Prime Rate" means the per annum rate of interest
announced publicly by the Agent as its prime rate from time to time.
The Domestic Prime Rate is not necessarily the best or the lowest rate
of interest offered by the Agent;
"Domestic Revolving Credit Commitment" means with respect to
each Domestic Lender, the obligation of such Lender to make Loans to
the Domestic Facility Borrowers up to an aggregate principal amount at
21
<PAGE>
any one time outstanding equal to the percentage set forth in Exhibit A
as the same may be increased or decreased from time to time pursuant to
this Agreement;
"Domestic Revolving Credit Facility" means the facility
described in Article II hereof providing for Loans to the Domestic
Borrowers by the Domestic Lenders in the aggregate principal amount of
the Total Domestic Revolving Credit Commitment less the aggregate
amount of outstanding Swing Line Loans, Domestic Letters of Credit
Outstandings and Domestic Acceptances Usage;
"Domestic Revolving Credit Notes" means the promissory notes
of the Multicurrency Facilities Borrowers executed and delivered to the
Multicurrency Facilities Lenders as provided in Section 2.05(a) and
Section 2.16 hereof in substantially the form attached as Exhibit E-2,
with appropriate insertions as to amounts, dates and names of
Multicurrency Facilities Lenders, which Domestic Revolving Credit Notes
shall be delivered to evidence the Domestic Revolving Loans provided
for herein;
"Domestic Revolving Loan" means Loans made by the Multicurr-
ency Facilities Lenders to the Multicurrency Facilities Borrowers
pursuant to Section 2.01 hereof;
"Domestic Subsidiary" means a Subsidiary of TDC which is
organized under the laws of the United States, Federal or state, or any
territory or instrumentality thereof;
"Eligible Receivables" means, at any time, any Receivable:
(i) which has been sold by TDC to TDF pursuant to a
purchase agreement and to which TDF has good title thereto,
free and clear of all Liens, other than a Lien in favor of
Enterprise;
(ii) the obligor of which is a United States resident, is
not a Person affiliated with Borrower or TDF, has not been
excluded as an obligor by Enterprise and is not a government
or a governmental subdivision or agency;
(iii) which is not a Defaulted Receivable;
(iv) which has not remained unpaid for more than 60 days
from the original due date;
(v) which, according to the contract, purchase order or
other agreement giving rise thereto is required to be paid in
full within 60 days of the original billing date thereof;
22
<PAGE>
(vi) which is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act of 1940, as amended;
(vii) a purchase of which with the proceeds of commercial
paper would constitute a "current transaction" within the
meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended;
(viii) which is an "account" within the meaning of
Article 9 of the Uniform Commercial Code of all applicable
jurisdictions;
(ix) which is denominated and payable only in United States
dollars in the United States;
(x) which arises under a contract, purchase order or
other agreement that together with the Receivable related
thereto, is in full force and effect and constitutes the
legal, valid and binding obligation of the related obligor
enforceable against such obligor in accordance with its terms
and, to the best knowledge of TDC or TDF is not subject to any
offset, counterclaim or other defense at such time;
(xi) which, together with the contract, purchase order or
other agreement related thereto, does not contravene in any
material respect any laws, rules or regulations applicable
thereto (including, without limitation, laws, rules and
regulations relating to truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which no
part of the contract, purchase order or other agreement
related thereto is in violation of any such law, rule or
regulation in any material respect;
(xii) which (A) satisfies in all material respects all
applicable requirements of the applicable credit and
collection policy of TDC and (B) is assignable;
(xiii) which was generated in the ordinary course of TDC's
business; and
(xiv) the obligor of which has been directed to make all
payments to a specified account of TDF;
"Enterprise" means Enterprise Funding Corporation, a Delaware
corporation;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
23
<PAGE>
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other "Superfund" or "Superlien" law or any other federal,
or applicable state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter
in effect;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974 and the regulations thereunder, all as the same
shall be in effect at such date;
"Eurodollar Rate" means, for the Interest Period for any
Eurodollar Rate Loan, the rate of interest per annum determined
pursuant to the following formula:
Eurodollar Applicable Reference Rate Applicable Interest
= --------------------------------- + Addition
Rate 1 - Applicable Reserve Requirement
"Eurodollar Rate Loan" means a Loan (including a Loan in an
Alternative Currency) for which the rate of interest is determined by
reference to the Eurodollar Rate;
"Event of Default" means any of the occurrences set forth as
such in Section 10.01 hereof and the expiration of any applicable
notice or cure period;
"Existing Canadian Acceptances" means acceptances outstanding
under the Prior TD Canada Facilities as of the Closing Date, more
particularly described on Schedule 1-1 hereto;
"Existing Canadian Letters of Credit" means standby and
commercial letters of credit outstanding under the Prior TD Canada
Facilities as of the Closing Date, more particularly described on
Schedule 1-2;
"Existing Domestic Acceptances" means acceptances outstanding
under either the Prior Domestic Facilities or the Prior TD France
Facility as of the Closing Date, more particularly described on
Schedule 1-3 hereto;
"Existing Domestic Letters of Credit" means standby and
commercial letters of credit outstanding under either the Prior
Domestic Facilities or the Prior TD France Facility as of the Closing
Date, more particularly described on Schedule 1-4;
"Existing TD France Subsidiaries" means the Subsidiaries of TD
France listed on Schedule 7.02(a);
24
<PAGE>
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor)
does not announce such rate on any day, the "Federal Funds Effective
Rate" for such day shall be the Federal Funds Effective Rate for the
last day on which such rate was announced;
"Fiscal Year" means the 12 month period of TDC ending on
January 31 of each calendar year and commencing on February 1 of each
calendar year;
"Fixed CD Loan" means a CD Loan for which a Multicurrency
Facilities Borrower elects an Interest Period of 30, 60, 90 or 180 days
pursuant to Section 2.01(b)(iii) hereof;
"Fixed Rate Loan" means a Loan which is either a Fixed CD Loan
, a Eurodollar Rate Loan or a Competitive Bid Loan;
"Floating CD Loan" means a CD Loan other than a Fixed CD Loan;
"Floating Rate Loan" means a Loan in Dollars which is a
Domestic Base Rate Loan or a Floating CD Loan;
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning any pension, retirement,
healthcare, death, disability or other employee benefit plan;
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of TDC and its Subsidiaries, taken together as one
accounting period;
"Funding Bank" means any banking institution approved by the
Agent located within a country which country's currency constitutes an
Alternative Currency and, with respect to Canadian Dollars to be made
available to TD Canada under the Canadian Revolving Credit Facility,
the Canadian Agent;
25
<PAGE>
"General Acceptance Agreement" means the General Acceptance
Agreements in the form attached hereto and marked as Exhibit F;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report, as such
principles are from time to time supplemented and amended;
"Guaranty" means, collectively or individually, as the context
may require, (i) the unconditional Guaranty and Suretyship Agreement in
favor of the Multicurrency Facilities Lenders in the form attached
hereto as Exhibit G-1 delivered to the Agent in accordance with Article
V hereof or pursuant to Section 8.20 hereof pursuant to which the
Significant Subsidiaries other than TD France guarantee the payment and
performance of all obligations to the Multicurrency Facilities Lenders
as more specifically set forth in such Guaranty, and (ii) the
unconditional Guaranty and Suretyship Agreement in favor of the
Canadian Facilities Lenders in the form attached hereto as Exhibit G-2
delivered to the Agent in accordance with Article V hereof pursuant to
which TDC and its Significant Subsidiaries (other than TD Canada)
guarantees the payment and performance of all obligations to the
Canadian Facilities Lenders as more specifically set forth in such
Guaranty;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law in effect on any date;
"Indebtedness" means with respect to any Person, all
Indebtedness for Money Borrowed, all indebtedness of such Person for
the acquisition of property, other than purchases of products and
merchandise in the ordinary course of business so long as payment
therefor is due within one year, indebtedness secured by any Lien on
the property of such Person whether or not such indebtedness is
assumed, all liability of such Person by way of endorsements (other
than for collection or deposit in the ordinary course of business); all
Contingent Obligations; all Capital Leases and other items which in
accordance with Generally Accepted Accounting Principles are classified
as liabilities on a balance sheet; provided that in no event shall the
term Indebtedness include the TDC TROL, capital stock, surplus and
retained earnings, minority interest in the common stock of
Subsidiaries, lease obligations (other than pursuant to Capital
Leases), reserves for deferred income taxes and investment credits,
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other deferred credits and reserves, and deferred compensation
obligations;
"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
sold pursuant to the Trade Receivables Purchase Facility and (iii) 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;
"Interest Period" for each Fixed Rate Loan or Acceptance means
a period commencing on the date such Fixed Rate Loan is made or
converted or such Acceptance is created and each subsequent period
commencing on the last day of the immediately preceding Interest Period
for such Fixed Rate Loan or Acceptance, as the case may be, and ending,
at the Borrower's option, (A) for any Fixed CD Loan or Acceptance, on
the date 30, 60, 90 or 180 days thereafter as notified to the
Applicable Agent by the Authorized Representative of such Borrower two
(2) Business Days prior to the beginning of such Interest Period and
(B) for any Eurodollar Rate Loan, on the date one, two, three or six
months thereafter as notified to the Agent by the Authorized
Representative of such Borrower three (3) Business Days prior to the
beginning of such Interest Period in the case of a Eurodollar Rate Loan
and five (5) Business Days prior to the beginning of such Interest
Period in the case of a Loan in an Alternative Currency other than
Canadian Dollars or French Francs; provided, that,
(i) if the Authorized Representative fails to notify the
Applicable Agent of the length of an Interest Period for any
Fixed CD Loan two (2) Business Days or for any Eurodollar Rate
Loan three (3) or five (5) (as the case may be) Business Days,
as the case may be, prior to the first day of such Interest
Period, the Loan for which such Interest Period was to be
determined shall be deemed to be a Floating Rate Loan as of
the first day thereof;
(ii) if an Interest Period for a Fixed Rate Loan or
Acceptance would end on a day which is not a Business Day,
such Interest Period shall be extended to the next Business
Day (unless in the case of any Eurodollar Rate Loan, such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
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(iii) excluding Interest Periods for Acceptances, there
shall not be more than (x) twelve (12) Interest Periods in
effect on any day in respect of Domestic Loans and (y) four
(4) Interest Periods in effect on any day in respect of
Canadian Loans;
(iv) Interest Periods shall be of such duration as to
permit the Borrowers to make the reductions or repayments
required by this Agreement;
(v) there shall not be in effect at any one time more
than an aggregate of four (4) Canadian Acceptances with
different maturity dates;
(vi) the first Interest Period for a Eurodollar Rate Loan
shall commence on the day such Canadian Loan is advanced by
the Canadian Facilities Lenders and each subsequent Interest
Period relative thereto shall commence forthwith upon the
expiry of the immediately preceding Interest Period relative
thereto; and
(vii) if any Interest Period is extended or shortened by
the application of clause (vi) above, the following Interest
Period shall (without prejudice to the application of clause
(vi) above) end on the day on which it would have ended if the
immediately preceding Interest Period had not been so extended
or shortened.
"Inventory" means and includes any and all goods, merchandise
and other personal property, including, without limitation, goods in
transit, wheresoever located and whether now owned or hereafter
acquired by TDC and its Subsidiaries which is or may at any time be
held for sale or lease, furnished under any contract of service or held
as raw materials, work-in-process, or supplies or materials used or
consumed in TDC's or its Subsidiaries' businesses;
"LC/Acceptance Account Agreement" means the LC/Acceptance
Account Agreement dated as of May 23, 1996 among the Borrowers and the
Agent, as amended or modified from time to time;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Authorized Representative and the Agent, in the case of
Multicurrency Facilities Lenders, or the Canadian Agent, in the case of
Canadian Facilities Lenders, as the office by which its Loans are to be
made and maintained;
"Letter of Credit" or "Letters of Credit" means a Commercial
Letter(s) of Credit or Standby Letter(s) of Credit issued by
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NationsBank (in the case of Domestic Letters of Credit) and CIBC (in
the case of Canadian Letters of Credit), as described in Articles II
and III hereof;
"Letter of Credit Applications" means, collectively, the
applications and agreements from the applicable Borrower to NationsBank
(in respect of Domestic Letters of Credit) or CIBC (in respect of
Canadian Letters of Credit) executed and delivered from time to time to
support the issuance of Letters of Credit;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, TDC and its Subsidiaries
shall be deemed to be the owners of any property which it or they have
acquired or hold subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes;
"Loan" or "Loans" means any of the Fixed Rate Loans, Floating
Rate Loans or Canadian Prime Loans, as the context may require, made
pursuant to Articles II and III hereof;
"Loan Documents" means this Agreement, the Notes, the
Guaranties, the LC/Acceptance Account Agreement, the Assumption and
Consent Agreements, the Letter of Credit Applications, the General
Acceptance Agreement for Acceptances, drafts and all other instruments
and documents heretofore or hereafter executed or delivered to and in
favor of any Lenders or the Agents in connection with the Loans, the
Letters of Credit or the Acceptances made, issued or created under this
Agreement as the same may be amended, modified or supplemented from
time to time;
"Multicurrency Facilities" means the revolving credit,
competitive bid, swing line, letter of credit and acceptance facilities
made available by the Lenders pursuant to Article II hereof;
"Multicurrency Facilities Notes" means, collectively,
the Domestic Revolving Credit Notes, the Competitive Bid Notes and
the Swing Line Note;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which TDC or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA,
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which is also a multi-employer plan as defined in Section 4001(a)(3) of
ERISA;
"Net Receivables Balance" means the Eligible Receivables less
all those Eligible Receivables excluded pursuant to the Transfer and
Administration Agreement due to concentration;
"Non-Acceptance Lender" means a Lender that is not a Canadian
chartered bank;
"Notes" means, collectively, the Multicurrency Facilities
Notes and the Obligations herein to the Canadian Facilities Lenders as
recorded on the records of the Canadian Agent;
"Obligations" means the obligations, liabilities and
Indebtedness of TDC and its Subsidiaries with respect to (i) the
principal and interest on the Loans as evidenced by the Notes and on
the records of the Canadian Agent as to the Obligations herein to the
Canadian Facilities Lenders, (ii) the Reimbursement Obligations, (iii)
all liabilities of TDC to any Lender which arise under a Swap
Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of TDC and its Subsidiaries
to the Lenders, the Canadian Agent or the Agent, under this Agreement,
under any one or more of the other Loan Documents or with respect to
the Loans;
"Participation" means, with respect to any Multicurrency
Facilities Lender (other than NationsBank) or any Canadian Facilities
Lender (other than CIBC), as the case may be, the extension of credit
represented by the participation of such Lender hereunder in the
liability of (i) in the case of Multicurrency Facilities Lenders,
NationsBank in respect of each Swing Line Loan made, Domestic Letter of
Credit or Domestic Acceptance issued by NationsBank in accordance with
the terms hereof and (ii) in the case of Canadian Facilities Lenders,
CIBC in respect of each Canadian Letter of Credit or Canadian
Acceptance issued by CIBC in accordance with the terms hereof;
"Percentage Factor" means that fluctuating percentage of
ownership interest in Eligible Receivables which are transferred to
Enterprise under the Transfer and Administration Agreement;
"Permitted Acquisition" means the acquisition by TDC or a
Subsidiary of a controlling equity interest in or all or substantially
all of the assets of any Person, which satisfies each of the following:
(i) such Person is in the same or similar line or lines of business as
that engaged in by TDC and its Subsidiaries; and (ii) no Default or
Event of Default occurs or is created or results from such transaction;
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"Person" means an individual, limited liability companies,
partnership, corporation, trust, unincorporated organization,
association, joint venture or a government or agency or political
subdivision thereof;
"Prepaid Inventory" means and includes any and all goods,
merchandise and other personal property of TDC and its Subsidiaries for
which payment has been made in full and which would otherwise be
Inventory but for the reason that such property is not in the
possession of TDC or its Subsidiaries;
"Principal Office" means the principal office of the
Agent at Independence Center, 15th Floor, Charlotte, North Carolina
28255, Attention: Agency Services, or such other office and address
as the Agent may from time to time designate;
"Rate Hedging Obligations" means any and all obligations of
TDC and its Subsidiaries, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (b) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing;
"Receivables" mean the short term trade receivables of TDC and
its Subsidiaries generated from the sale of merchandise or services of
TDC or its Subsidiaries;
"Regulation D" means Regulation D of the Board as the same
may be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations), Canadian
federal or provincial laws or regulations, or other foreign laws or
regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state, Canadian federal or provincial, or other foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
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administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy, including with respect to "highly
leveraged transactions," whether or not having the force of law,
whether or not failure to comply therewith would be unlawful and
whether or not published or proposed prior to the date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of any Borrower with respect to any Letter of Credit or
Acceptance to reimburse NationsBank or CIBC, as the case may be, and
the Lenders to the extent of their respective Participations (including
by the receipt by NationsBank or CIBC of proceeds of Loans pursuant to
Articles II or III) for amounts theretofore paid by NationsBank or CIBC
pursuant to a drawing under a Letter of Credit or payment of an
Acceptance;
"Remaining Accounts Receivable" means the product of (i) Net
Receivables Balance multiplied by (ii) a fraction equal to one (1)
minus the Percentage Factor;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date, without
distinction or reference as between Canadian Facilities and
Multicurrency Facilities. For purposes of the preceding sentence, the
amount of the "Credit Exposure" of each Lender shall be equal to the
aggregate principal amount of the Loans owing to such Lender plus the
sum of the aggregate unutilized amounts of such Lender's Domestic
Revolving Credit Commitment and Canadian Revolving Credit Commitment
plus the amount of such Lender's Applicable Commitment Percentage of
the aggregate undrawn face amount of the outstanding Letters of Credit
and unpaid face amount of Acceptances and of the Reimbursement
Obligations; provided that, if any Lender shall have failed to pay to
NationsBank or CIBC, as applicable, its Applicable Commitment
Percentage of any Swing Line Loan, drawing under any Letter of Credit
or payment of an Acceptance resulting in an outstanding Reimbursement
Obligation, such Lender's Credit Exposure attributable to (i) Swing
Line Loans, Domestic Letters of Credit, Domestic Acceptances,
Reimbursement Obligations relating to Domestic Letters of Credit and
the Domestic Letter of Credit Commitment shall be deemed to be held by
NationsBank for purposes of this definition, and (ii) Canadian Letters
of Credit, Canadian Acceptances, Reimbursement Obligations relating to
Canadian Letters of Credit and the Canadian Letter of Credit Commitment
shall be deemed to be held by CIBC for purposes of this definition;
"Revolving Credit Termination Date" means (i) May 31, 1999 or
(ii) such earlier date of termination of Lenders' obligations pursuant
to Section 10.01 upon the occurrence of an Event of Default, or (iii)
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such date as the Borrowers may voluntarily permanently terminate the
Multicurrency Facilities and the Canadian Facilities by payment in full
of all Obligations (including the discharge of all Obligations of
NationsBank, CIBC and the other Lenders with respect to Letters of
Credit, Acceptances and Participations) or (iv) such later date as the
Borrowers, the Agent, the Canadian Agent and the Lenders shall agree in
writing pursuant to Section 2.14 hereof with respect to Multicurrency
Facilities or Section 3.12 with respect to Canadian Facilities;
"Significant Subsidiary" means any Subsidiary which has either
(i) total assets of more than $500,000 or (ii) total revenues of more
than $500,000 during any Four-Quarter Period; provided, however, in no
event shall the sum of total revenues or total assets of Subsidiaries
not constituting Significant Subsidiaries exceed in either case
$2,000,000;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which TDC or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA,
which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay its
debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted;
"Spot Rate of Exchange" means, (i) in determining the Dollar
Equivalent Amount of a specified Alternative Currency amount as of any
date, the spot exchange rate determined by the Agent in accordance with
its usual procedures for the purchase by the Agent of Dollars with such
Alternative Currency at approximately 10:00 A.M., Charlotte, North
Carolina time on the Business Day that is two (2) Business Days prior
to such date, (ii) in determining the Alternative Currency Equivalent
Amount of a specified Dollar amount on any date, the spot exchange rate
determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of such Alternative Currency with Dollars at
approximately 10:00 A.M., Charlotte, North Carolina time on the
Business Day that is two (2) Business Days prior to such date and (iii)
for all Loans under the Total Canadian Revolving Credit Commitment in
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determining the Alternative Currency Equivalent amount of a specified
Dollar amount or the Dollar amount when converting from Canadian
Dollars, the amount in Dollars or Canadian Dollars, as the case may be,
after giving effect to a conversion of a specified amount in Dollars to
an Alternative Currency or of Alternative Currency to Dollars, as the
case may be, at the rate of exchange quoted as the Bank of Canada noon
spot rate on such date;00
"Standby Letter of Credit" means a letter of credit issued (i)
in the case of Domestic Letters of Credit, by NationsBank for the
account of the applicable Multicurrency Facilities Borrower and (ii) in
the case of Canadian Letters of Credit, by CIBC for the account of TD
Canada, in favor of a Person advancing credit or securing an obligation
on behalf of the applicable Borrower; provided that the expiry date of
a Standby Letter of Credit shall not be later than the thirtieth
Business Day preceding the Revolving Credit Termination Date;
"Subsidiary" means any corporation in which more than 50% of
its outstanding voting stock is owned directly or indirectly by TDC
and/or by one or more of TDC's Subsidiaries;
"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between one or more Borrowers and
one or more Lenders, on terms mutually acceptable to Borrower and such
Lender or Lenders, which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established
by NationsBank in favor of TDC pursuant to Section 2.15;
"Swing Line Loans" means Loans made by NationsBank to TDC
pursuant to Section 2.15;
"Swing Line Note" means the promissory note of TDC executed
and delivered to NationsBank as provided in Section 2.05(b)
substantially in the form attached as Exhibit E-3, which shall be
delivered to evidence the Swing Line Outstandings;
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of TDC on all Swing
Line Loans then outstanding;
"Syndicated Loans" shall mean the Domestic Revolving Loans
that are not Competitive Bid Loans or Swing Line Loans;
"TDC TROL" means the Tax Retention Operating Lease dated April
26, 1996 between TDC and First Security Bank of Utah in its capacity as
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owner trustee of the TD 1996 Real Estate Trust;
"TDF" means Tech Data Finance, Inc., a California corporation,
and a wholly-owned Subsidiary of the Borrower;
"Total Canadian Revolving Credit Commitment" means an amount
equal to US $40,000,000, as reduced or increased from time to time in
accordance with Section 3.07;
"Total Canadian Utilization" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all
outstanding Canadian Loans plus (ii) the Canadian Acceptance Usage plus
(iii) the Canadian Letter of Credit Outstandings, in each case at the
Dollar Value or Dollar Equivalent Amount, as the case may be;
"Total Domestic Revolving Credit Commitment" means an amount
equal to $250,000,000, as reduced or increased from time to time in
accordance with Section 2.08;
"Total Domestic Utilization" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all
outstanding Domestic Loans, plus (ii) the Domestic Acceptance Usage,
plus (iii) the Domestic Letter of Credit Outstandings, in each case at
the Dollar Value or Dollar Equivalent Amount, as the case may be;
"Trade Receivable Purchase Facility" means the facility
created for the benefit of TDF and TDC pursuant to the Transfer and
Administration Agreement;
"Transfer and Administration Agreement" means the Transfer and
Administration Agreement dated as of December 22, 1993 among TDC, TDF
and Enterprise, as amended, modified or supplemented from time to time,
providing for the purchase of Receivables of TDF by Enterprise.
1.02 Rules of Interpretation. (a) All accounting terms not
specifically defined herein shall have the meanings assigned to such terms
and shall be interpreted in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise defined
herein, except to the extent that the Uniform Commercial Code of another
jurisdiction is controlling, in which case such terms shall have the meaning
given in the Uniform Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall not
constitute a part of any such document or
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affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules are references to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules in or to this Agreement.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined term, and
all references to the masculine gender shall include reference to the feminine
or neuter gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.
(h) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request) revisions
to, the Loan Documents, and any rule of construction that ambiguities are to be
resolved against the drafting party shall be inapplicable in the construing and
interpretation of the Loan Documents and all exhibits, schedules and appendices
thereto.
(i) Any reference to an officer of any Borrower or any other Person by
reference to the title of such officer shall be deemed to refer to each other
officer of such person, however titled, exercising the same or substantially
similar functions.
(j) All references to any agreement or document as amended, modified or
supplemented, or words of similar effect, shall mean such document or agreement,
as the case may be, as amended, modified or supplemented from time to time only
as and to the extent permitted therein and in the Loan Documents.
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ARTICLE II
The Multicurrency Facilities
2.01 Revolving Credit Facility
(a) Commitment. Subject to the terms and conditions of this Agreement,
each Multicurrency Facilities Lender severally agrees to make Domestic Advances
in Dollars or an Alternative Currency (as specified in the respective Borrowing
Notice) to the Multicurrency Facilities Borrower requesting such Advance, as the
case may be, as specified in the Borrowing Notice, from time to time from the
Closing Date until the Revolving Credit Termination Date, on a pro rata basis as
to the total borrowing requested by such Multicurrency Facilities Borrower on
any day determined by its Applicable Commitment Percentage, up to but not
exceeding a Dollar Value equal to the Domestic Revolving Credit Commitment of
such Multicurrency Facilities Lender, provided, however, that the Multicurrency
Facilities Lenders will not be required and shall have no obligation to make any
Domestic Advance (i) so long as a Default or an Event of Default has occurred
and is continuing or (ii) if the Agent has accelerated the maturity of the Notes
as a result of an Event of Default; provided further, however, that immediately
after giving effect to each Domestic Advance, the Total Domestic Utilization
shall not exceed the Total Domestic Revolving Credit Commitment. Within such
limits, the Multicurrency Facilities Borrowers may borrow, repay and reborrow
hereunder, on a Business Day, from the Closing Date until, but (as to borrowings
and reborrowings) not including, the Revolving Credit Termination Date;
provided, however, that (x) no Fixed Rate Loan shall be made which has an
Interest Period that extends beyond the Revolving Credit Termination Date and
(y) each Fixed Rate Loan may, subject to the provisions of Section 2.09, be
repaid only on the last day of the Interest Period with respect thereto. The
Multicurrency Facilities Borrowers agree that if at any time the Total Domestic
Utilization shall exceed the Total Domestic Revolving Credit Commitment, the
Multicurrency Facilities Borrowers shall immediately reduce the outstanding
Domestic Revolving Loans such that, as a result of such reduction, the Total
Domestic Revolving Credit Facility shall equal or exceed the Total Domestic
Utilization.
(b) Amounts, Advances and Rate Selection. (i) Each request for a
Domestic Advance of an Alternative Currency under a Borrowing Notice shall
constitute such Multicurrency Facilities Borrower's request for a Domestic
Revolving Loan of the Dollar Value of the amount of the Alternative Currency
specified in such Borrowing Notice and for such Loan to be made available by the
Multicurrency Facilities Lenders to such Multicurrency Facilities Borrower in
the Alternative Currency Equivalent Amount of such Dollar Value (determined
based on the Advance Date Exchange Rate applicable to such Domestic Advance).
The principal amount outstanding on any Domestic Loan shall be recorded in the
Agent's records in Dollars
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(in the case of a Domestic Advance of an Alternative Currency as if the
Loan had initially been made in Dollars), based on the amount of any Domestic
Advance and on the Dollar Value of the initial Advance of an Alternative
Currency, as reduced from time to time by the Dollar Equivalent Amount (based on
the Advance Date Exchange Rate applicable to such Domestic Advance) of any
principal payments with respect to such Domestic Advance. In the event a Fixed
Rate Loan of an Alternative Currency is continued, such election to continue the
Fixed Rate Loan shall be treated as a Domestic Advance and the Agent shall
notify the applicable Borrower and the Multicurrency Facilities Lenders of the
Advance Date Exchange Rate, Interest Period and the Eurodollar Rate for such
continued Fixed Rate Loan. The Lenders shall each be deemed to have made a
Domestic Advance to such Multicurrency Facilities Borrower of its Applicable
Commitment Percentage of such Loan of an Alternative Currency and the Agent
shall apply the Advance Date Exchange Rate for such new Interest Period to such
continued Alternative Currency Equivalent Amount to determine the new Dollar
Value of such Fixed Rate Loan and shall adjust its books accordingly. In the
event that such adjustment with respect to a continued Domestic Loan would cause
the Total Domestic Utilization to exceed the Total Domestic Revolving Credit
Commitment, the Multicurrency Facilities Borrowers shall, immediately on the
effective date of such continuation, repay (a "Rate Adjustment Payment") the
portion of such converted Loan (applying the new Advance Date Exchange Rate)
necessary to ensure that the Total Domestic Utilization does not exceed the
Total Domestic Revolving Credit Commitment, provided further that the Domestic
Facility Borrowers shall not be required to pay any additional compensation
pursuant to Section 4.04(a) with respect to a prepayment of a Domestic Loan
required by this sentence if such prepayment is made immediately on the
effective date of the continuation giving rise to such prepayment. For the
purposes of determining the amount of Domestic Loans plus Domestic Letters of
Credit Outstandings plus Domestic Acceptance Usage plus Swing Line Outstandings,
it is intended by the parties that all Domestic Loans shall be the functional
equivalent of Loans made and repaid (based on the applicable Advance Date
Exchange Rate for each Advance) in Dollars. It is recognized that one or more
Lenders may elect to record Domestic Loans or Domestic Advances in Alternative
Currencies. The Agent shall maintain records sufficient to identify at any time,
(i) the Advance Date Exchange Rate with respect to each Domestic Advance, and
(ii) the portion of the outstanding Domestic Revolving Loans attributable to
each Domestic Advance. There shall be no more than eight (8) Domestic Revolving
Loans of an Alternative Currency outstanding at any one time.
(ii) The Total Domestic Utilization shall not exceed at any time an
amount equal to the Total Domestic Revolving Credit Commitment. Each Domestic
Revolving Loan and each conversion under Section 2.09 shall be (A) in the case
of Fixed CD or Eurodollar Rate Loans, in an amount not less than $3,000,000 (or
as to Eurodollar Rate Loans the equivalent thereof if in an Alternative
Currency) and if greater in integral multiples of $1,000,000 (or as to
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Eurodollar Rate Loans the equivalent thereof if in an Alternative Currency plus
accrued interest rounded upward to the nearest $10,000), and (B) in the case of
Domestic Base Rate Loans in an amount not less than $1,000,000, and, if greater,
an integral multiple of $100,000.
(iii) For each Domestic Advance an Authorized Representative shall give
the Agent at least (A) three (3) Business Days irrevocable telecopy or telex
notice of each Fixed Rate Loan in an Alternative Currency (whether representing
an additional borrowing hereunder or the conversion of borrowing hereunder)
prior to 10:30 A.M., Charlotte, North Carolina time, (B) three (3) Business Days
irrevocable telecopy or telex notice prior to 10:30 A.M., Charlotte, North
Carolina time in the case of Eurodollar Rate Loans in Dollars or two (2)
Business Days irrevocable telecopy or telex notice prior to 10:30 A.M.
Charlotte, North Carolina time in the case of Fixed CD Loans, and, (C)
irrevocable telephonic or telefacsimile notice of each Floating Rate Loan
representing a borrowing or conversion hereunder prior to 10:30 A.M. Charlotte,
North Carolina time on the day of such proposed Floating Rate Loan. Each such
Borrowing Notice, which shall be effective upon receipt by the Agent, shall
specify the type of Loan (Fixed Rate or Floating Rate), whether Dollar or
Alternative Currency, amount of the Domestic Loan for which the Domestic Advance
is to be made, the date of borrowing and the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice on the same day by
telefacsimile transmission in the form of a Borrowing Notice in the form
attached hereto as Exhibit D-1, in each case with appropriate insertions, but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. The duration of the initial Interest Period for each Domestic
Loan shall be as specified in the initial Borrowing Notice. The Multicurrency
Facilities Borrowers shall have the option to elect the duration of subsequent
Interest Periods and to convert the Domestic Loans in accordance with Section
2.09 hereof. If the Agent does not receive a notice of election of duration of
an Interest Period or to convert by the time prescribed hereby and by Section
2.09 hereof, the applicable Multicurrency Facilities Borrower shall be deemed to
have elected a Floating Rate Loan bearing interest at the Domestic Base Rate.
The Fixed CD Rate may only be elected to apply to Domestic Loans made in
Dollars. The Floating CD Rate shall apply only to Swing Line Loans.
(iv) Notice of receipt of each Borrowing Notice in respect of Domestic
Loans shall be provided by the Agent to each Multicurrency Facilities Lender by
telecopy or telex with reasonable promptness, but not later than 12:00 noon,
Charlotte, North Carolina time on the same day as Agent's receipt of such notice
from the Multicurrency Facilities Borrowers so long as such receipt is prior to
10:30 A.M. At approximately 10:00 A.M. Charlotte, North Carolina time two (2)
Business Days preceding the date specified for a Domestic Advance of an
Alternative Currency, the Agent shall determine the Advance Date Exchange Rate
and the Applicable Rate. Not later than 11:00 A.M. Charlotte, North Carolina
time two (2) Business Days preceding the date specified for each Domestic
Advance of an Alternative Currency, the Agent shall
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provide the applicable Multicurrency Facilities Borrower and each
Multicurrency Facilities Lender notice by telefacsimile transmission of the
Advance Date Exchange Rate applicable to such Domestic Advance, and the
applicable Alternative Currency Equivalent Amount of the Domestic Loan or
Domestic Loans required to be made by each Multicurrency Facilities Lender on
such date, and the Dollar Value of such Domestic Loan or Domestic Loans and the
Applicable Rate.
(v) In the case of Domestic Advances in Dollars, each Lender shall,
pursuant to the terms and conditions of this Agreement, not later than 12:00
noon, Charlotte, North Carolina time on the date specified for such Domestic
Advance, make the amount of the Domestic Advance to be made by it on such day
available to the Agent by depositing or transferring the proceeds thereof in
immediately available funds to the Agent, at the Principal Office. The amount so
received by the Agent shall, subject to the terms of this Agreement, be made
available to the applicable Multicurrency Facilities Borrower by deposit of the
proceeds to an account of such Multicurrency Facilities Borrower maintained at
the Principal Office or otherwise as shall be directed in the applicable
Borrowing Notice.
(vi) In the case of Domestic Advances of an Alternative Currency, not
later than 9:00 A.M., Charlotte, North Carolina time on the date specified for
each Domestic Advance, each Multicurrency Facilities Lender shall, pursuant to
the terms and subject to the conditions of this Agreement, make the amount of
the Domestic Loan or Domestic Loans to be made by it on such day available to
the applicable Multicurrency Facilities Borrower at the Funding Bank, to the
account of the Agent with the Funding Bank. The amount so received by the
Funding Bank shall, subject to the terms and conditions of the Loan Documents
and upon instruction from the Agent to the Funding Bank on the same day but no
later than 9:00 A.M. Charlotte, North Carolina time, be made available to the
applicable Multicurrency Facilities Borrower by delivery of the Alternative
Currency Equivalent Amount to such Multicurrency Facilities Borrower's account
with the Funding Bank.
(vii) Notwithstanding the foregoing, if a drawing is made under any
Domestic Letter of Credit or presentment is made of a Domestic Acceptance prior
to the Revolving Credit Termination Date and the applicable Multicurrency
Facilities Borrower shall not immediately reimburse NationsBank for the amount
of such draw or payment, then notice of such drawing or payment shall be
provided promptly by NationsBank to the Agent and the Agent shall provide notice
to each Multicurrency Facilities Lender by telephone or telefacsimile. If notice
to the Multicurrency Facilities Lenders of a drawing under any Letter of Credit
or payment under any Domestic Acceptance is given by the Agent at or before
12:00 noon Charlotte, North Carolina time on any Business Day, the applicable
Multicurrency Facilities Borrower shall be deemed to have requested, and each
Multicurrency Facilities Lender shall, pursuant to the conditions of this
Agreement, make a Domestic Base Rate Loan under the Domestic Revolving Credit
Facility in the amount of such Multicurrency Facilities Lender's Applicable
Commitment Percentage of such drawing or payment (and in the case of a drawing
in an Alternative Currency, a Floating Rate Loan, in an amount equal to such
Multicurrency Facilities Lender's Applicable Commitment Percentage of the Dollar
Equivalent Amount of such drawing or payment determined on the basis of the Spot
Rate of Exchange on the date of drawing under the Letter of Credit) and shall
pay such amount to the Agent for the account of NationsBank at the Principal
Office in Dollars and in immediately available funds before 2:30 P.M. Charlotte,
North Carolina time on the same Business Day. If notice to the Multicurrency
Facilities Lenders is given by the Agent after 12:00 noon
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Charlotte, North Carolina time on any Business Day, the applicable
Multicurrency Facilities Borrower shall be deemed to have requested, and each
Multicurrency Facilities Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make a Domestic Base Rate Loan under the Domestic
Revolving Credit Facility in the amount of such Multicurrency Facilities
Lender's Applicable Commitment Percentage of such drawing or payment (and in the
case of a drawing in an Alternative Currency, a Domestic Base Rate Loan, in an
amount equal to such Multicurrency Facilities Lender's Applicable Commitment
Percentage of the Dollar Equivalent Amount of such drawing or payment determined
on the basis of the Spot Rate of Exchange on the date of drawing under the
Letter of Credit) and shall pay such amount to the Agent for the account of
NationsBank at the Principal Office in Dollars and in immediately available
funds before 12:00 noon Charlotte, North Carolina time on the next following
Business Day. Such Domestic Base Rate Loan shall continue unless and until the
applicable Multicurrency Facilities Borrower converts such Floating Rate Loan in
accordance with the terms of Section 2.09 hereof.
2.02 Payment of Interest. (a) The Multicurrency Facilities Borrowers shall pay
interest to the Agent for the account of each Multicurrency Facilities
Lender on the outstanding and unpaid principal amount of each Domestic Loan made
by such Multicurrency Facilities Lender for the period commencing on the date of
such Domestic Loan until such Loan shall be due at the then applicable Floating
Rate for Floating Rate Loans or applicable Fixed Rate for Fixed Rate Loans, such
payments to be made in Dollars with respect to Loans made in Dollars, and at the
Applicable Rate in the case of Domestic Loans made in Alternative Currency, such
payments to be made in the appropriate Alternative Currency as designated by the
Authorized Representative pursuant to Section 2.01 hereof or as otherwise
provided herein; provided, however, that if any amount shall not be paid when
due (at maturity, by acceleration or otherwise), all amounts outstanding
hereunder shall bear interest thereafter (i) in the case of a Fixed Rate Loan,
until the end of
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the Interest Period with respect to such Fixed Rate Loan, at a rate of two
percent (2%) above such Fixed Rate and (ii) thereafter, and with respect to
Floating Rate Loans, at a rate of interest per annum which shall be two percent
(2%) above the Domestic Base Rate or the Floating CD Rate, as applicable, or the
maximum rate permitted by applicable law, whichever is lower, from the date such
amount was due and payable until the date such amount is paid in full.
(b) Interest on each Domestic Loan shall be computed on the basis of a
year of 360 days and calculated for the actual number of days elapsed provided
that for Alternative Currency Loans for which a 365-day basis is the only market
practice available to the Agent for such Loan, interest shall be calculated on
the basis of a year of 365-366 days, as the case may be, for the actual days
elapsed. Interest on each Domestic Loan shall be paid (a) quarterly in arrears
on the last Business Day of each fiscal quarter, commencing July 31, 1996, on
each Floating Rate Loan, (b) on the last day of the applicable Interest Period
for each Fixed Rate Loan and, if the Interest Period extends for more than three
months, at intervals of three months after the first day of the Interest Period
and (c) on the Revolving Credit Termination Date. Interest on amounts not paid
when due shall be payable on demand.
2.03 Payment of Principal. (a) The principal amount of each Domestic Loan
(other than a Competitive Bid Loan) shall be due and payable to the Agent for
the benefit of each Multicurrency Facilities Lender in full on the Revolving
Credit Termination Date. Competitive Bid Loans shall be due and payable on the
last day of the Interest Period for such Loan. The duration of the initial
Interest Period for each Domestic Loan that is a Fixed Rate Loan shall be as
specified in the initial Borrowing Notice. The Multicurrency Facilities
Borrowers shall have the option to elect the duration of subsequent Interest
Periods and to convert the Domestic Loans in accordance with Section 2.09
hereof. If the Agent does not receive a notice of election of duration of an
Interest Period or to convert by the time prescribed by Section 2.09 hereof, the
applicable Multicurrency Facilities Borrower shall be deemed to have elected to
convert such Domestic Loan to (or continue such Domestic Loan as) a Domestic
Base Rate Loan until the Multicurrency Facilities Borrower notifies the Agent in
accordance with Section 2.09.
(b) Each payment of principal (including any prepayment) and payment of
interest in respect of Domestic Loans shall be made to the Agent at the
Principal Office, for the account of each Multicurrency Facilities Lender's
applicable Lending Office, to be recorded in Dollars as set forth in Section
2.01(b). The repayment of such principal amount in respect of Loans made in an
Alternative Currency shall be made in the appropriate Alternate Currency as
follows: the portion of the outstanding Domestic Loans attributable to each
specified Domestic Advance (or the continuation or conversion thereof) (as
determined from the Agent's
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records) shall be repaid in the same Alternative Currency as such Domestic
Advance. Each such payment shall be made in immediately available funds before
12:30 P.M. Charlotte, North Carolina time on the date such payment is due. The
Agent may, but shall not be obligated to, debit the amount of any such payment
which is not made by such time to any ordinary deposit account, if any, of the
applicable Multicurrency Facilities Borrower with the Agent. The Multicurrency
Facilities Borrowers shall give the Agent prior telephonic notice of any payment
of principal, such notice to be given by not later than 11:00 A.M. Charlotte,
North Carolina time, on the date of such payment.
(c) The Agent shall deem any payment by or on behalf of the
Multicurrency Facilities Borrowers hereunder that is not made both (a) in
Dollars in the case of Domestic Loans made in Dollars and the required
Alternative Currency in the case of Domestic Loans made in Alternative
Currencies and in immediately available funds and (b) prior to 12:30 P.M.
Charlotte, North Carolina time to be a non-conforming payment. Any such payment
shall not be deemed to be received by the Agent until the time such funds become
available funds in the required currency. The Agent shall give prompt telephonic
notice to the applicable Authorized Representative and each of the Multicurrency
Facilities Lenders (confirmed in writing) if any payment is non-conforming.
Interest shall continue to accrue on any principal as to which a non-conforming
payment is made until such funds become available funds (but in no event less
than the period from the date of such payment to the next succeeding Business
Day) at a rate of interest per annum which shall be two percent (2%) above the
Domestic Base Rate or the maximum rate permitted by applicable law, whichever is
lower, from the date such amount was due and payable until the date such amount
is paid in full.
(d) In the event that any payment hereunder or under the Multicurrency
Facilities Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business Day;
provided that interest shall continue to accrue during the period of any such
extension.
2.04 Competitive Bid Loans.
(a) In addition to borrowings of Syndicated Loans, at any time prior to
the Revolving Credit Termination Date the Multicurrency Facilities Borrowers
may, as set forth in this Section 2.04, request the Multicurrency Facilities
Lenders to make offers to make Competitive Bid Loans to the Multicurrency
Facilities Borrowers in Dollars. The Multicurrency Facilities Lenders may, but
shall have no obligation to, make such offers and the Multicurrency Facilities
Borrowers may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section 2.04. Competitive Bid Loans shall be Absolute
Rate Loans, provided that:
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(i) the Total Domestic Utilization shall not exceed the Total
Domestic Revolving Credit Commitment;
(ii) there may be no more than four (4) different Interest Periods
for Competitive Bid Loans outstanding at the same time;
(iii) the aggregate amount of outstanding Competitive Bid Loans of a
Multicurrency Facilities Lender shall not exceed at any time an amount
equal to $25,000,000;
(iv) no Competitive Bid Loan shall have a maturity date subsequent
to the Revolving Credit Termination Date; and
(v) the aggregate amount of Competitive Bid Loans outstanding
at any time shall not exceed $25,000,000 in the aggregate.
(b) When a Borrower wishes to request offers to make Competitive Bid
Loans, it shall give the Agent (which shall promptly notify the Multicurrency
Facilities Lenders) notice (a "Competitive Bid Quote Request") to be received no
later than 10:00 A.M. on the Business Day next preceding the date of borrowing
proposed therein, (or such other time and date as such Multicurrency Facilities
Borrower and the Agent, with the consent of the Required Lenders, may agree).
The Multicurrency Facilities Borrowers may request offers to make Competitive
Bid Loans for up to three (3) different Interest Periods in a single notice;
provided that the request for each separate Interest Period shall be deemed to
be a separate Competitive Bid Quote Request for a separate borrowing (a
"Competitive Bid Borrowing") and there shall not be outstanding at any one time
more than four (4) Competitive Bid Borrowings. Each such Competitive Bid Quote
Request shall be substantially in the form of Exhibit H hereto and shall specify
as to each Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be at least $5,000,000 (or a larger multiple of $1,000,000) but
shall not cause the limits specified in Section 2.04(a) hereof to be
violated;
(iii) the duration of the Interest Period applicable thereto; and
(iv) the date on which the Competitive Bid Quotes are to be
submitted if it is before the proposed date of borrowing (the date on
which such Competitive Bid Quotes are to be submitted is called the
"Quotation Date").
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Except as otherwise provided in this Section 2.04(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as the applicable Multicurrency Facilities Borrower and the Agent, with the
consent of the Required Lenders, may agree) of any other Competitive Bid Quote
Request.
(c) (i) Each Multicurrency Facilities Lender may submit one or
more Competitive Bid Quotes, each containing an offer to make a
Competitive Bid Loan in response to any Competitive Bid Quote Request;
provided that, if a Multicurrency Facilities Borrower's request under
Section 2.04(b) hereof specified more than one Interest Period, such
Multicurrency Facilities Lender may make a single submission containing
one or more Competitive Bid Quotes for each such Interest Period. Each
Competitive Bid Quote must be submitted to the Agent not later than
10:00 A.M. Charlotte, North Carolina time on the Quotation Date (or
such case, such other time and date as the applicable Multicurrency
Facilities Borrower and the Agent, with the consent of the Required
Lenders, may agree); provided, that any Competitive Bid Quote may be
submitted by the Agent (or its Applicable Lending Office) only if the
Agent (or such Applicable Lending Office) notifies the Multicurrency
Facilities Borrower of the terms of the offer contained therein not
later than 9:45 A.M. Charlotte, North Carolina time on the Quotation
Date. Subject to Article IV, Article VII and X hereof, any Competitive
Bid Quote so made shall be irrevocable except with the consent of the
Agent given on the instructions of the applicable Multicurrency
Facilities Borrower.
(ii) Each Competitive Bid Quote shall be substantially in the form
of Exhibit I hereto and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Competitive Bid Loan
for which each such order is being made, which principal
amount shall be at least $5,000,000 (or a larger multiple of
$1,000,000); provided that the aggregate principal amount of
all Competitive Bid Loans for which a Lender submits
Competitive Bid Quotes (x) may not exceed $25,000,000 and (y)
may not exceed the principal amount of the Competitive Bid
Borrowing for a particular Interest Period for which offers
were requested;
(C) the rate of interest per annum (rounded upwards,
if necessary, to the nearest 1/10,000th of 1%) offered for
each such Competitive Bid Loan (the "Absolute Rate"); and
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(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the applicable Multicurrency Facilities
Borrower, no Competitive Bid Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition to those set forth
in the applicable Competitive Bid Quote Request and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance by the applicable
Multicurrency Facilities Borrower of all (or some specified minimum) of the
principal amount of the Competitive Bid Loan for which such Competitive Bid
Quote is being made.
(d) The Agent shall, as promptly as practicable after the Competitive
Bid Quote is submitted (but in any event not later than 10:30 A.M. Charlotte,
North Carolina time on the Quotation Date), notify the applicable Multicurrency
Facilities Borrower of the terms (i) of any Competitive Bid Quote submitted by a
Multicurrency Facilities Lender that is in accordance with Section 2.04(c)
hereof and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted by such
Multicurrency Facilities Lender with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by the
Agent unless such subsequent Competitive Bid Quote is submitted solely to
correct a manifest error in such former Competitive Bid Quote. The Agent's
notice to the applicable Multicurrency Facilities Borrower shall specify (A) the
aggregate principal amount of the Competitive Bid Borrowing for which orders
have been received and (B) the respective principal amounts and Absolute Rates
so offered by each Multicurrency Facilities Lender (identifying the
Multicurrency Facilities Lender that made each Competitive Bid Quote).
(e) Not later than 11:00 A.M. Charlotte, North Carolina time on the
Quotation Date (or such other time and date as the applicable Multicurrency
Facilities Borrower and the Agent, with the consent of the Required Lenders, may
agree), the applicable Multicurrency Facilities Borrower shall notify the Agent
of its acceptance or nonacceptance of the offers so notified to it pursuant to
Section 2.04(d) hereof (and the failure of the applicable Multicurrency
Facilities Borrower to give such notice by such time shall constitute
nonacceptance) and the Agent shall promptly notify each affected Multicurrency
Facilities Lender. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are accepted.
The applicable Borrower may accept any Competitive Bid Quote in whole or in part
(provided that any Competitive Bid Quote accepted in part shall be at least
$5,000,000 or a larger multiple of $1,000,000); provided that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
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(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $5,000,000 (or a larger multiple of
$1,000,000) but shall not cause the limits specified in Section 2.04(a)
hereof to be violated;
(iii) acceptance of offers may be made only in ascending order of
Absolute Rates, beginning with the lowest rate so offered; and
(iv) the Multicurrency Facilities Borrowers may not accept any
offer where the Agent has correctly advised the Multicurrency
Facilities Borrowers that such offer fails to comply with Section
2.04(c)(ii) hereof or otherwise fails to comply with the requirements
of this Agreement (including, without limitation, Section 2.04(a)
hereof).
If offers are made by two or more Lenders with the same Absolute Rates, for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period after the acceptance of all offers,
if any, of all lower Absolute Rates offered by any Multicurrency Facilities
Lender for such related Interest Period, the principal amount of Competitive Bid
Loans in respect of which such offers are accepted shall be allocated by the
applicable Multicurrency Facilities Borrower among such Multicurrency Facilities
Lenders as nearly as possible (in amounts of at least $5,000,000 or larger
multiples of $1,000,000) in proportion to the aggregate principal amount of such
offers. Determinations by the applicable Multicurrency Facilities Borrower of
the amounts of Competitive Bid Loans and the lowest bid after adjustment as
provided in Section 2.04(e)(iii) shall be conclusive in the absence of manifest
error.
(f) Any Multicurrency Facilities Lender whose offer to make any
Competitive Bid Loan has been accepted shall, not later than 1:00 P.M.
Charlotte, North Carolina time on the date specified for the making of such
Loan, make the amount of such Loan available to the Agent at the Principal
Office in Dollars and in immediately available funds, for account of the
applicable Multicurrency Facilities Borrower. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the applicable Multicurrency Facilities Borrower on such date by
depositing the same, in Dollars and in immediately available funds, in an
account of the Multicurrency Facilities Borrowers maintained at the Principal
Office or otherwise as shall be directed by the applicable Multicurrency
Facilities Borrower.
2.05 Multicurrency Facilities Notes.
(a) Syndicated Loans made by each Multicurrency Facilities Lender shall
be evidenced by the Domestic Revolving Credit Note payable to the order of such
Lender in the respective amount of its Applicable Commitment Percentage of the
Total Domestic Revolving Credit Commitment, which Domestic Revolving Credit Note
shall be dated the Closing Date and shall be
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duly completed, executed and delivered by the Multicurrency Facilities
Borrowers.
(b) Swing Line Loans made by NationsBank shall be evidenced by the
Swing Line Note payable to the order of NationsBank, which Swing Line Note shall
be dated the Closing Date and shall be duly completed, executed and delivered by
TDC.
(c) Competitive Bid Loans made by each Multicurrency Facilities Lender
shall be evidenced by the Competitive Bid Note payable to the order of such
Lender in the amount of $25,000,000, which Competitive Bid Note shall be dated
the Closing Date and shall be duly completed, executed and delivered by the
Multicurrency Facilities Borrowers.
2.06 ProRata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Syndicated Loans and
the fees described in Section 2.10 hereof shall be made to the Agent for the
account of the Lenders pro rata based on their Applicable Commitment Percentages
of the Total Domestic Revolving Credit Commitment, (b) all payments to be made
by the Multicurrency Facilities Borrowers for the account of each of the
Multicurrency Facilities Lenders on account of principal, interest and fees,
shall be made without set-off or counterclaim, and (c) the Agent will promptly
distribute payments received to the Multicurrency Facilities Lenders.
Notwithstanding the foregoing, in the event any Multicurrency Facilities Lender
shall not be able to make a Fixed Rate Loan as provided in Section 4.05,
interest shall be allocated to each Multicurrency Facilities Lender according to
the interest rate payable to such Multicurrency Facilities Lender.
2.07 Reductions. The Multicurrency Facilities Borrowers shall, by notice
from an Authorized Representative, have the right from time to time (but not
more frequently than once during each fiscal quarter), upon not less than ten
(10) Business Days written notice to the Agent to reduce the Total Domestic
Revolving Credit Commitment. The Agent shall give each Multicurrency Facilities
Lender, within one (1) Business Day, telephonic notice (confirmed in writing) of
such reduction. Each such reduction shall be in the aggregate amount of
$5,000,000 or such greater amount which is in an integral multiple of
$1,000,000, and shall permanently reduce the Total Domestic Revolving Credit
Commitment. No such reduction shall result in the payment of any Fixed Rate Loan
other than on the last day of the Interest Period of such Loan unless such
prepayment is accompanied by amounts due, if any, under Section 4.04. Each such
reduction of the Total Domestic Revolving Credit Commitment shall be accompanied
by payment of the Notes to the extent that the Total Domestic Utilization
exceeds the Total Domestic Revolving Credit Commitment, after giving effect to
such reduction, together with accrued and unpaid interest on the amounts
prepaid.
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2.08 Increase and Decrease in Amounts. The amount of the Total Domestic
Revolving Credit Commitment which shall be available to the Multicurrency
Facilities Borrowers shall be reduced by the aggregate amount of all Domestic
Letters of Credit Outstandings, Swing Line Outstandings, Domestic Acceptance
Usage and Competitive Bid Loans.
2.09 Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Sections 4.01(b), 4.02 and
4.03 hereof, the Multicurrency Facilities Borrowers may:
(a) upon notice to the Agent on or before 10:30 A.M. Charlotte, North
Carolina time on any Business Day convert all or a part of Fixed Rate Loans
(other than Competitive Bid Loans) to Floating Rate Loans under the Domestic
Revolving Credit Facility on the last day of the Interest Period for such Fixed
Rate Loans;
(b) on three (3) or in the case of conversions into or continuations
of Domestic Loans as Fixed CD Loans two (2)) Business Days' notice to the Agent
on or before 10:30 A.M. Charlotte, North Carolina time:
(i) elect a subsequent Interest Period for all or a portion of
Fixed Rate Loans (other than Competitive Bid Loans) under the Domestic
Revolving Credit Facility of Dollars or any Alternate Currency to begin
in the same currency on the last day of the current Interest Period for
such Fixed Rate Loans;
(ii) elect that any Fixed Rate Loan in Dollars (other than
Competitive Bid Loans) under the Domestic Revolving Credit Facility be
converted on the last day of the Interest Period for any Fixed Rate
Loan into another Fixed Rate Loan in Dollars; and
(iii) convert Floating Rate Loans under the Domestic Revolving
Credit Facility to Fixed Rate Loans (other than Competitive Bid Loans)
on any Business Day.
Notice of any such elections or conversions shall be effected by
receipt of an appropriate Borrowing Notice and shall specify the effective date
of such election or conversion and the Interest Period to be applicable to the
Domestic Revolving Loan as continued or converted. Each election and conversion
pursuant to this Section 2.09 shall be subject to the limitations on Fixed Rate
Loans set forth in the definition of "Interest Period" herein and in Section
2.01 and Article IV hereof. All such continuations or conversions of Domestic
Revolving Loans shall be effected pro rata based on the Applicable Commitment
Percentages of the Lenders in respect of the Total Domestic Revolving Credit
Commitment.
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2.10 Unusued Fee. For the period beginning on the Closing Date and ending
on the Revolving Credit Termination Date (or such earlier date on which the
Domestic Revolving Credit Facility has terminated), the Multicurrency Facilities
Borrowers agree to pay to the Agent, for the pro rata benefit of the
Multicurrency Facilities Lenders based on their Applicable Commitment
Percentages of the Total Domestic Revolving Credit Commitment, an unused fee
equal to the Applicable Unused Fee times the sum of the daily amount by which
the Total Domestic Revolving Credit Commitment exceeds the sum of average daily
(i) Domestic Revolving Loans, plus (ii) Domestic Letter of Credit Outstanding,
plus (ii) Domestic Acceptance Usage. Swing Line Loans and Competitive Bid Loans
shall not be outstanding Loans for purposes of determining such fee. Such
payments of fees provided for in this Section 2.10 shall be due in arrears on
the last Business Day of each July, October, January and April beginning July
31, 1996 to and on the Revolving Credit Termination Date (or such earlier date
on which the Revolving Credit Facility has terminated). Notwithstanding the
foregoing, so long as any Multicurrency Facilities Lender fails to make
available any portion of its Domestic Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive payment of its pro rata
share of such fee until such Lender shall make available such portion. Such fee
shall be calculated on the basis of a year of 360 days for the actual number of
days elapsed.
2.11 Deficiency Advances. No Multicurrency Facilities Lender shall be
responsible for any default of any other Multicurrency Facilities Lender in
respect to such other Multicurrency Facilities Lender's obligation to make any
Domestic Revolving Loan hereunder nor shall the Domestic Revolving Credit
Commitment of any Multicurrency Facilities Lender hereunder be increased as a
result of such default of any other Multicurrency Facilities Lender. Without
limiting the generality of the foregoing, in the event any Multicurrency
Facilities Lender shall fail to advance funds to a Domestic Revolving Borrower
as herein provided, the Agent may in its discretion, but shall not be obligated
to, advance under the applicable Domestic Revolving Credit Note in its favor as
a Multicurrency Facilities Lender all or any portion of such amount or amounts
(each, a "deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same manner and at
the same interest rate or rates to which such other Multicurrency Facilities
Lender would have been entitled had it made such advance under its applicable
Domestic Revolving Credit Note; provided that, upon payment to the Agent from
such other Multicurrency Facilities Lender of the entire outstanding amount of
each such deficiency advance, together with accrued and unpaid interest thereon,
from the most recent date or dates interest was paid to the Agent by the
applicable Multicurrency Facilities Borrower on each Domestic Revolving Loan
comprising the deficiency advance at the interest rate per annum for overnight
borrowing by the Agent from the Federal Reserve Bank, then such payment shall be
credited against the applicable Domestic
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Revolving Credit Note of the Agent in full payment of such deficiency
advance and the applicable Multicurrency Facilities Borrower shall be deemed to
have borrowed the amount of such deficiency advance from such other
Multicurrency Facilities Lender as of the most recent date or dates, as the case
may be, upon which any payments of interest were made by such Multicurrency
Facilities Borrower thereon.
2.12 Adjustments by Agent. Notwithstanding the construction of "pro rata"
to mean based on the Applicable Percentage Commitments and any provisions
contained herein for the advancement of funds or distribution of payments on a
pro rata basis, the Agent may, in its discretion, but shall not be obligated to,
adjust downward or upward (but not in excess of any applicable Domestic
Revolving Credit Commitment) the principal amount of any Domestic Revolving Loan
to be made by any Multicurrency Facilities Lender to the nearest amount which is
evenly divisible by $100, and make appropriate related adjustment in the
distribution of payments of principal and interest on the Loans.
2.13 Use of Proceeds. The proceeds of the Loans made pursuant to the
Domestic Revolving Credit Facility hereunder shall be used by the Multicurrency
Facilities Borrowers to repay and terminate the Prior Domestic Facilities, Prior
TD Canadian Facilities and the Prior TD France Facility, to finance Capital
Expenditures and Permitted Acquisitions and for other working capital and
general corporate needs of TDC and its Subsidiaries, to the extent permitted
under this Agreement.
2.14 Extension of Revolving Xredit Termination Date. At the request of the
Multicurrency Facilities Borrowers the Lenders may, in their sole discretion,
elect to extend the Revolving Credit Termination Date for Multicurrency
Facilities then in effect for additional periods of one year. The Borrowers
shall notify the Lenders of their request for such an extension by delivering to
the Agent notice of such request signed by an Authorized Representative not more
than one hundred and twenty (120) days nor less than sixty (60) days prior to
the second anniversary of the Closing Date. If all the Lenders shall elect to so
extend both the Domestic Facilities and the Canadian Facilities, the Agent shall
notify the Multicurrency Facilities Borrowers in writing within sixty (60) days
of its receipt of such request for extension of the decision of the Lenders of
whether to extend the Revolving Credit Termination Date for Multicurrency
Facilities. Failure by the Agent to give such notice shall constitute refusal by
the Lenders to extend the Revolving Credit Termination Date for the
Multicurrency Facilities.
2.15 Swing Line. Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Domestic Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the Agent and
the Multicurrency Facilities Lenders, NationsBank shall make available Swing
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Line Loans to TDC in Dollars prior to the Revolving Credit Termination Date.
NationsBank shall not make any Swing Line Loan pursuant hereto (i) if the
Borrowers are not in compliance with all the conditions to the making of Loans
set forth in this Agreement, (ii) if after giving effect to such Swing Line
Loan, the Swing Line Loans outstanding exceed $15,000,000, or (iii) if after
giving effect to such Swing Line Loan, the Total Domestic Utilization exceeds
the Total Domestic Revolving Credit Commitment. Loans made pursuant to this
Section 2.15 shall be limited to Floating CD Loans.
(i) TDC may borrow, repay and reborrow under this Section
2.15. Borrowings under the Swing Line may be made in amounts of
$250,000 and multiples of $250,000 in excess thereof, upon telephonic
(confirmed in writing) or telefacsimile request by an Authorized
Representative of TDC made to NationsBank not later than 12:00 noon
Charlotte, North Carolina time on the Business Day of the requested
borrowing. Each repayment of a Swing Line Loan shall be in integral
multiples of $250,000 with a minimum amount of $250,000.
(ii) If TDC instructs NationsBank to debit its demand deposit
account in an amount of any payment with respect to a Swing Line Loan,
or NationsBank otherwise receives repayment after 2:00 P.M. Charlotte,
North Carolina time, on a Business Day, such payment shall be deemed
received on the next Business Day. TDC shall pay interest on Swing Line
Loans quarterly on the last Business Day of each quarter, commencing
July 31, 1996 and continuing on each October, January, April and July
thereafter. Interest shall be calculated on the basis of a year of 360
days and calculated for the actual number of days elapsed.
(iii) The Multicurrency Facilities Borrowers and each Multicurrency
Facilities Lender which is or may become a party hereto acknowledge
that all Swing Line Loans are to be made solely by NationsBank to TDC
but that such Multicurrency Facilities Lender shall share the risk of
loss with respect to such Advances in an amount equal to such Lender's
Applicable Commitment Percentage of such Swing Line Loan. Upon demand
according to its Applicable Commitment Percentage of such Swing Line
Loan, each Multicurrency Facilities Lender shall promptly provide to
NationsBank its purchase price therefor in an amount equal to its
Participation therein, in which case such Swing Line Loan shall be
deemed from and after such date (to the extent TDC has not converted
such loan pursuant to Section 2.09) a Syndicated Loan made in
accordance with the Agreement. The obligation of each Lender to so
provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
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(iv) TDC at its option may request an Advance as a Domestic
Revolving Loan pursuant to Section 2.01 in an amount sufficient to
repay any or all Swing Line Loans on any date (subject to three (3)
Business Days prior notice in the case of Eurodollar Loans or (5)
Business Days prior notice in the case of Loans in an Alternative
Currency) and the Agent shall upon the receipt of such Advance, provide
to NationsBank the amount necessary to repay such Swing Line Loan or
Loans (which NationsBank shall then apply to such repayment) and credit
any balance of the Domestic Revolving Loan in immediately available
funds to an account of TDC at the Principal Office or as otherwise
directed by TDC. The proceeds of such Advances shall be paid to
NationsBank for application to the outstanding Swing Line Loans and the
Lenders shall then be deemed to have made Domestic Revolving Loans in
the amount of such Advances. The obligation of NationsBank to fund the
Swing Line shall cease upon the earliest of (i) the occurrence of a
Default or Event of Default, or (ii) the Revolving Credit Termination
Date, or (iii) the date of resignation by NationsBank as Agent;
provided that when a Default is no longer continuing NationsBank shall
be obligated to provide Swing Line Loans unless payment of the
Obligations has been accelerated.
2.16 Additional Multicurency Facilities Borrowers. Upon the request of the
Multicurrency Facilities Borrowers as then constituted hereunder (the "Current
Borrowers") and with the consent of the Agent and the Lenders, additional
wholly-owned Subsidiaries of TDC may be added as Multicurrency Facilities
Borrowers (each, an "Additional Borrower") as herein provided. Not later than
twenty (20) days prior to the proposed effective date of such addition, an
Authorized Representative of the Current Borrowers shall request the addition of
such Additional Borrower by notice in writing to the Agent, which notice shall
identify the proposed Additional Borrower and the proposed effective date of
such addition, and shall constitute the Current Borrowers' representation and
warranty to the Agents and the Lenders that they shall deliver or cause to be
delivered, as appropriate, the documents required by this Section 2.16 in
connection with such addition.
If the Agent and the Lenders shall consent to the addition of such
proposed Additional Borrower (which consent shall be indicated by written notice
thereof from the Agent to the Multicurrency Facilities Borrowers and the
Lenders, and which consent may be subject to additional conditions, including
payments of additional fees as may be specified by the Agent in such notice),
then such proposed Additional Borrower shall be and become a Multicurrency
Facilities Borrower for all purposes of the Loan Documents upon the satisfaction
of all of the following conditions:
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(i) no Default or Event of Default shall exist or be
continuing immediately prior to or on giving effect to such addition;
(ii) the Additional Borrower and the Current Borrowers shall
execute and deliver to the Lenders replacement Domestic Revolving
Credit Notes and Competitive Bid Notes executed by each of them;
(iii) the Additional Borrower, the Current Borrowers and all persons
who have in effect a Guaranty in respect of the Domestic Loans (the
"Domestic Credit Parties") shall execute and deliver an Assumption and
Consent Agreement in the form attached as Exhibit J hereto;
(iv) the Agent shall receive the opinion of counsel to the Domestic
Credit Parties acceptable to the Agent addressed to the Agent and the
Lenders as to the authorization, execution, delivery and enforceability
of the documents described in clauses (ii) and (iii) and as to such
other matters as it may request, such opinion to be acceptable in form
and content to the Agent and its special counsel;
(v) the Additional Borrower shall have furnished to the Agent
its certificate appointing an initial Authorized Representative; and
(vi) all additional conditions, including the payment of any fees
in connection therewith, as may be specified by the Agent, shall have
been satisfied.
Upon satisfaction of such condition, the Additional Borrower shall
thereafter be and become a Multicurrency Facilities Borrower for all purposes of
the Loan Documents.
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. Each Multicurrency Facilities Borrower shall be jointly
and severally liable to the Agent and the Multicurrency Facilities Lenders for
all Obligations hereunder in respect of Multicurrency Facilities , regardless
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 Borrowers,
and that the Multicurrency Facilities Lenders are relying on the joint and
several liability of the Multicurrency Facilities Borrowers in extending credit
under the Multicurrency Facilities.
(b) Each Multicurrency Facilities Borrower guarantees to the
Multicurrency Facilities Lenders the payment in full of all of the Obligations
of the other Multicurrency Facilities Borrowers to the
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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 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, and 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 hereunder is direct and unconditional as to all of the Obligations
hereunder in respect of the Multicurrency Facilities, and may be enforced
without requiring the Agent or the Multicurrency Facilities 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.
2.18 Letters of Credit. NationsBank agrees, subject to the terms and
conditions of this Agreement, to maintain the Existing Domestic Letters of
Credit as Letters of Credit hereunder and upon request of a Multicurrency
Facilities Borrower to issue from time to time for the account of such Borrower
Domestic Letters of Credit upon delivery to NationsBank of a Letter of Credit
Application therefor in form and content acceptable to NationsBank; provided,
that the Domestic Letter of Credit Outstandings hereunder shall not exceed the
Domestic Letter of Credit Commitment. No Domestic Letter of Credit shall be
issued by NationsBank with an expiry date or payment date occurring subsequent
to the fifth Business Day preceding the Revolving Credit Termination Date and no
Commercial Letter of Credit shall have an expiry date occurring more than six
(6) months after the date of its issuance. NationsBank shall not be required to
issue any Letter of Credit if Total Domestic Utilization when added to the face
amount of any requested Domestic Letter of Credit exceeds the Total Domestic
Revolving Credit Commitment.
2.19 Acceptances. NationsBank agrees, subject to the terms and conditions
hereof until the day prior to the Revolving Credit
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Termination Date, to maintain the Existing Domestic Acceptances as Domestic
Acceptances hereunder and, upon the request of a Multicurrency Facilities
Borrower, to create, from time to time, Domestic Acceptances for the benefit of
such Borrower. NationsBank shall create such Domestic Acceptances by accepting
and discounting drafts drawn by the Borrower under and pursuant to this
Agreement. NationsBank shall not accept any such drafts unless the resulting
Acceptance shall be a Domestic Acceptance as defined in Section 1.01 hereof.
Upon accepting a draft NationsBank may discount the resulting Domestic
Acceptance at a rate per annum (based on a year of 360 days) equal to the BA
Rate. NationsBank shall not be required to create any Domestic Acceptance if the
amount payable under such Domestic Acceptance when added to the Total Domestic
Utilization exceeds the Total Domestic Revolving Credit Commitment. The face
amount of Domestic Acceptances shall be an integral multiple of $500,000 and
shall not be less than $1,000,000. The creation date and maturity date of each
Domestic Acceptance shall be a Business Day. Notwithstanding the foregoing, the
Agent shall not be obligated to create or discount any Domestic Acceptance as
amended from time to time, (i) if creation thereof would cause the Agent to
exceed the maximum amount of outstanding bankers' acceptances permitted by
applicable law, or (ii) if, in the reasonable opinion of the Agent, general
conditions in the public market for rediscounting bankers' acceptances render it
inadvisable to do so.
2.20 Creation of Acceptance. Any request for creation of a Domestic
Acceptance shall be made at least two (2) Business Days in advance of the day
upon which such Domestic Acceptance is to be created (the "Domestic Acceptance
Date"); such request to be in writing and in the form of Borrowing Notice set
forth in Exhibit D-3. No Domestic Acceptance shall be created by NationsBank
with a maturity date occurring subsequent to the Revolving Credit Termination
Date. If NationsBank creates the requested Domestic Acceptance, then on or
before 11:00 A.M., Charlotte, North Carolina time on the Domestic Acceptance
Date, NationsBank shall notify the Borrower of the BA Rate plus Acceptance
Addition at which the Domestic Acceptance will be discounted by NationsBank, and
NationsBank shall promptly thereafter accept the draft of Multicurrency
Facilities Borrower for the amount and Interest Period requested. Upon the
discounting of each Domestic Acceptance, NationsBank shall credit Borrower's
Account with an amount equal to the net proceeds of such discounted Domestic
Acceptance. In addition, NationsBank shall promptly remit to the Agent the full
amount of the Acceptance Addition and the Agent shall promptly transfer to each
Domestic Facilities Lender its Applicable Commitment Percentage of such
Acceptance Addition. In order to enable NationsBank to create Domestic
Acceptances in the manner specified in this Section 2.20, the Multicurrency
Facilities Borrowers agree to promptly upon request furnish to NationsBank a
sufficient number of drafts conforming to NationsBank requirements. All drafts
shall be manually signed by a properly authorized officer. Each Multicurrency
Facilities Borrower will be bound by
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each draft and Domestic Acceptance bearing the signature of an individual
who may no longer be authorized or otherwise holding office of a Multicurrency
Facilities Borrower at any time. Each Multicurrency Facilities Borrower agrees
to compensate NationsBank for any loss or expense with respect to a draft or
Domestic Acceptance dealt with by NationsBank under this Agreement.
2.21 Reimbursement
(a) Each Multicurrency Facilities Borrower hereby
unconditionally agrees immediately to pay to NationsBank on demand at the
Principal Office (i) all amounts required to pay all drafts drawn or purporting
to be drawn under the Domestic Letters of Credit and (ii) the face amount of
each draft accepted by NationsBank on the maturity date of such draft, or in the
event of an Event of Default or in the event a Domestic Acceptance is determined
not to be eligible for discount, and any and all expenses of every kind incurred
by NationsBank in connection with the Domestic Letters of Credit and Domestic
Acceptances and in any event and without demand to place in the possession of
NationsBank (which shall include Domestic Advances under the Domestic Revolving
Credit Facility if permitted by Section 2.01(b)(vii) hereof) sufficient funds to
pay all debts and liabilities arising under any Domestic Letter of Credit and
Domestic Acceptance. The Multicurrency Facilities Borrowers' obligations to pay
NationsBank under this Section 2.21, and the right of NationsBank to receive the
same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever. NationsBank may charge the Borrower's Account or any
other account any Multicurrency Facilities Borrower may have with it for any and
all amounts NationsBank pays under a Domestic Letter of Credit or Domestic
Acceptance; provided that to the extent permitted by Section 2.01(b)(vii),
amounts shall be paid pursuant to Domestic Advances under the Domestic Revolving
Credit Facility. Each Multicurrency Facilities Borrower agrees that NationsBank
may, in its sole discretion, accept or pay, as complying with the terms of any
Domestic Letter of Credit or Domestic Acceptance, any drafts or other documents
otherwise in order which may be signed or issued by an administrator, executor,
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, liquidator, receiver, attorney in fact or other legal representative
of a party who is authorized under such Domestic Letter of Credit or Domestic
Acceptance to draw or issue any drafts or other documents. Each Multicurrency
Facilities Borrower agrees to pay NationsBank interest on any amounts not paid
when due hereunder at the Domestic Base Rate plus two percent (2%), or such
lower rate as may be required by law.
(b) In accordance with the provisions of Section 2.01(b)(vii)
hereof, NationsBank shall notify the Agent (and shall also notify the applicable
Multicurrency Facilities Borrower) of any drawing under any Domestic Letter of
Credit or payment of any draft, constituting a Domestic Acceptance issued for
the account
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of a Multicurrency Facilities Borrower as promptly as practicable following
the receipt by NationsBank of such drawing.
(c) Each Multicurrency Facilities Lender (other than
NationsBank) shall automatically acquire on the date of issuance thereof, a
Participation in the liability of NationsBank in respect of each Domestic Letter
of Credit or Domestic Acceptance in an amount equal to such Lender's Applicable
Commitment Percentage (determined in respect of the Total Domestic Revolving
Credit Commitment) of such liability, and to the extent that any Multicurrency
Facilities Borrower is obligated to pay NationsBank under Section 2.21(a), each
Lender (other than NationsBank) thereby shall absolutely, unconditionally and
irrevocably assume, and shall be unconditionally obligated to pay to NationsBank
as hereinafter described, its Applicable Commitment Percentage (determined in
respect of the Total Domestic Revolving Credit Commitment) of the liability of
NationsBank under such Domestic Letter of Credit or Domestic Acceptance. Prior
to the Revolving Credit Termination Date, each Multicurrency Facilities Lender
(including NationsBank in its capacity as a Multicurrency Facilities Lender)
shall, subject to the terms and conditions of this Article II, make a Domestic
Base Rate Loan to the Borrower by paying to the Agent for the account of
NationsBank at the Principal Office in Dollars and in immediately available
funds, an amount equal to its Applicable Commitment Percentage (determined in
respect of the Total Domestic Revolving Credit Commitment) of any drawing under
a Domestic Letter of Credit or payment of a Domestic Acceptance, all as
described and pursuant to Section 2.01(b)(vii). With respect to drawings under
any of the Domestic Letters of Credit or payment of a Domestic Acceptance, each
Multicurrency Facilities Lender, upon receipt from the Agent of notice of a
drawing in the manner described in Section 2.01(b)(vii), shall promptly pay to
the Agent for the account of NationsBank, prior to the applicable time set forth
in Section 2.01(b)(vii), its Applicable Commitment Percentage (determined in
respect of the Total Domestic Revolving Credit Commitment) of such drawing or
payment. Simultaneously with the making of each such payment by a Multicurrency
Facilities Lender to NationsBank, such Multicurrency Facilities Lender shall,
automatically and without any further action on the part of NationsBank or such
Multicurrency Facilities Lender, acquire a Participation in an amount equal to
such payment (excluding the portion thereof constituting interest accruing
before such Multicurrency Facilities Lender made such payment) in the related
Reimbursement Obligation of the Borrower. The Reimbursement Obligations of the
Multicurrency Facilities Borrowers shall be immediately due and payable whether
by Domestic Advances made in accordance with Section 2.01(b)(vii) or otherwise.
Each Multicurrency Facilities Lender's obligation to make payment to the Agent
for the account of NationsBank pursuant to this Section 2.21, and the right of
NationsBank to receive the same, shall be absolute and unconditional, shall not
be affected by any circumstance whatsoever and shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Multicurrency
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Facilities Lender is obligated to pay but does not pay amounts to the Agent
for the account of NationsBank in full upon such request as required by this
Section 2.21(c), such Multicurrency Facilities Lender shall, on demand, pay to
the Agent for the account of NationsBank interest on the unpaid amount for each
day during the period commencing on the date of notice given to such Lender
pursuant to Section 2.01(b)(vii) until such Multicurrency Facilities Lender pays
such amount to the Agent for the account of NationsBank in full at the interest
rate per annum for overnight borrowing by NationsBank from the Federal Reserve
Bank.
(d) Promptly following the end of each calendar month,
NationsBank shall deliver to the Agent, and the Agent shall deliver to each
Multicurrency Facilities Lender, a notice describing the aggregate undrawn
amount of all Domestic Letters of Credit and aggregate face amount of all drafts
constituting Domestic Acceptances accepted and outstanding at the end of such
month. Upon the request of any Multicurrency Facilities Lender from time to
time, NationsBank shall deliver to the Agent, and the Agent shall deliver to
such Multicurrency Facilities Lender, any other information reasonably requested
by such Multicurrency Facilities Lender with respect to each Domestic Letter of
Credit and Domestic Acceptance then outstanding.
(e) The issuance by NationsBank of each Domestic Letter of
Credit and a Domestic Acceptance shall, in addition to the conditions precedent
set forth in Section 5.01 hereof, be subject to the conditions that such
Domestic Letter of Credit and Domestic Acceptance be in such form, contain such
terms and support such transactions or obligations as shall be reasonably
satisfactory to NationsBank consistent with the then current practices and
procedures of NationsBank with respect to similar letters of credit and
acceptances. All Domestic Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto. The applicable Multicurrency
Facilities Borrower shall have executed and delivered such other instruments and
agreements relating to such Domestic Letter of Credit and Domestic Acceptance as
NationsBank shall have reasonably requested consistent with such practices and
procedures.
(f) Without duplication of Section 11.07 hereof, each
Multicurrency Facilities Borrower hereby indemnifies and holds harmless
NationsBank, each other Multicurrency Facilities Lender and the Agent from and
against any and all claims and damages, losses, liabilities, costs or expenses
which NationsBank, such other Multicurrency Facilities Lender or the Agent may
incur (or which may be claimed against NationsBank, such other Multicurrency
Facilities Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any Domestic
Letter of Credit or Domestic Acceptance; provided that the Multicurrency
Facilities Borrowers shall not be
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required to indemnify NationsBank, any other Multicurrency Facilities
Lender or the Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, (i) caused by the willful
misconduct or gross negligence of the party to be indemnified, (ii) caused by
the failure of NationsBank to pay under any Domestic Letter of Credit or
Domestic Acceptance after the presentation to it of a request strictly complying
with the terms and conditions of such Domestic Letter of Credit or Domestic
Acceptance, unless such payment or reimbursement is prohibited by any
governmental authority, law, regulation, court order or decree, or (iii) paid or
payable by any Multicurrency Facilities Lender under Sections 2.11 or 11.10
hereof.
(g) Without limiting Borrowers' rights as set forth in Section
2.21(f) above, the obligation of the Multicurrency Facilities Borrowers to
immediately reimburse Agent for drawings made under Domestic Letters of Credit
or payment of Domestic Acceptances shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Domestic Letters of Credit or Domestic Acceptances,
under all circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of the Domestic
Letter of Credit or Domestic Acceptance, the obligation supported by the
Domestic Letter of Credit or Domestic Acceptance or any other agreement or
instrument relating thereto (collectively, the "Domestic Related Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Domestic Related Documents;
(iii) the existence of any claim, setoff, defense or other
rights which any Multicurrency Facilities Borrower may have at any time
against any beneficiary or any transferee of a Domestic Letter of Credit or
Domestic Acceptance (or any persons or entities for whom any such beneficiary or
any such transferee may be acting), Agent, Multicurrency Facilities Lenders or
any other person or entity, whether in connection with the Loan Documents, the
Domestic Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between any
Multicurrency Facilities Borrower and any beneficiary or any transferee of
a Domestic Letter of Credit or Domestic Acceptance (or any persons or entities
for whom such beneficiary or any such transferee may be acting), Agent,
Multicurrency Facilities Lenders or any other person or entity;
(v) any draft, statement or any other document
presented under the Domestic Letter of Credit or Domestic Acceptance
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever;
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(vi) any delay, extension of time, renewal, compromise
or other indulgence or modification granted or agreed to by Agent, with or
without notice to or approval by any Multicurrency Facilities Borrower in
respect of any of a Multicurrency Facilities Borrower's indebtedness under this
Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release
NationsBank or any other Multicurrency Facilities Lender of any liability for
actual loss arising as a result of its gross negligence or willful misconduct.
(h) Each Multicurrency Facilities Borrower acknowledges and
agrees that the pricing for Domestic Acceptances hereunder is based upon the
assumption that such Domestic Acceptances are "eligible" for discount by the
Federal Reserve Banks and that the Multicurrency Facilities Lenders are not
required to maintain reserves for such Domestic Acceptances under the
Regulations of the Federal Reserve System. In the event the Federal Reserve
System shall conclude the Domestic Acceptances created hereunder are ineligible
or that reserves are required to be maintained in connection therewith, each
Multicurrency Facilities Borrower shall and does hereby indemnify and hold the
Agent and the Multicurrency Facilities Lenders harmless, and does hereby agree
to, pay all reasonable costs, expenses, legal fees, penalties, as well as all
retroactive, current and prospective reserve requirements arising in connection
with such Domestic Acceptances. Additionally, each Multicurrency Facilities
Borrower acknowledges and agrees that upon the Federal Reserve System reaching
such conclusion, NationsBank and the other Multicurrency Facilities Lenders
shall have no further obligation to create Domestic Acceptances and that in the
event NationsBank and the other Multicurrency Facilities Lenders agree to create
further Domestic Acceptances, those created may, at the option of NationsBank
and the other Multicurrency Facilities Lenders, be priced at a rate higher than
indicated in Section 2.19 in order to compensate NationsBank and the other
Multicurrency Facilities Lenders for additional reserve requirements and other
transactional costs.
Notwithstanding anything to the contrary contained herein or
otherwise, the Multicurrency Facilities Borrowers shall have no obligation to
indemnify NationsBank and the other Multicurrency Facilities Lenders or to pay
any extraordinary costs in connection with Domestic Acceptances which are
determined by the Federal Reserve System to be ineligible solely and directly as
a result of a mistake or error by NationsBank in performing ministerial
functions with respect to the Domestic Acceptances. Additionally, each
Multicurrency Facilities Borrower shall be entitled to dispute and contest any
determination of ineligibility which gives rise to Multicurrency Facilities
Borrowers' indemnification and promise to
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pay set forth herein, provided, however, the Multicurrency Facilities
Borrower shall diligently and expeditiously prosecute such dispute or contest.
Each Multicurrency Facilities Borrower acknowledges and agrees that the refusal
of the Federal Reserve System to recognize a dispute or contest raised by the
Multicurrency Facilities Borrower shall in no way alter, impair, diminish or
affect the obligations of the Multicurrency Facilities Borrowers set forth in
this Subsection. Should the Multicurrency Facilities Borrowers fail promptly to
pay for, dispute or contest any determination of ineligibility as herein
provided, NationsBank and the other Multicurrency Facilities Lenders shall be
entitled to pay, contest or dispute same and all sums expended by NationsBank
and the other Multicurrency Facilities Lenders in doing so shall constitute
additional Indebtedness of the Multicurrency Facilities Borrowers to the
Multicurrency Facilities Lenders and shall bear interest from the date paid
until the date repaid at the Domestic Base Rate plus two percent (2%) per annum.
2.22 Domestic Letter of Credit Fee. (a) For the period beginning on the
Closing Date and ending on the Revolving Credit Termination Date, the
Multicurrency Facilities Borrowers agree to pay to the Agent, for the pro rata
benefit of the Multicurrency Facilities Lenders based on their Applicable
Commitment Percentages determined in respect of the Total Domestic Revolving
Credit Commitment, a fee for such period at a per annum rate equal to the
Applicable Interest Addition for Eurodollar Rate Loans on the daily aggregate
amount available to be drawn under Standby Letters of Credit and fees for such
period at those rates established from time to time by the Agent.
(b) For the period beginning on the Closing Date and ending on
the Revolving Credit Termination Date, the Multicurrency Facilities Borrowers
agree to pay to the Agent for the account of NationsBank as issuer of the
Domestic Letter of Credit, a fee for such period at a per annum rate equal to
.125% on the daily aggregate amount available to be drawn under Domestic Letters
of Credit.
(c) Such payments of fees provided for in this Section 2.22
shall be due with respect to each Domestic Letter of Credit quarterly in
arrears, the first such payment to be made on the last Business Day of July 31,
1996 and on the last Business Day of each October, January, April and July
thereafter.
2.23 Administrative Fees and Reserves. The Multicurrency Facilities
Borrowers shall pay to NationsBank administrative and other fees, if any, in
connection with the Domestic Letters of Credit and Domestic Acceptances in such
amounts and at such times as NationsBank and the Multicurrency Facilities
Borrowers shall agree from time to time. In addition, the Multicurrency
Facilities Borrowers shall reimburse NationsBank for all costs or reduction in
yield occurring by reason of the issuance by NationsBank of the Domestic Letters
of Credit.
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ARTICLE III
CANADIAN FACILITIES
3.01 Revolving Credit Facility
(a) Commitment. Subject to the terms and conditions of this Agreement,
each Canadian Facilities Lender severally agrees to make Canadian Advances in
Dollars or Canadian Dollars (as specified in the respective Borrowing Notice) to
TD Canada, as specified in the Borrowing Notice, from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata basis as
to the total borrowing requested by TD Canada on any day determined by its
Applicable Commitment Percentage up to but not exceeding a Dollar Value equal to
the Canadian Credit Commitment of such Canadian Facilities Lender, provided,
however, that the Canadian Facilities Lenders will not be required and shall
have no obligation to make any Canadian Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent has
accelerated the maturity of the Obligations as a result of an Event of Default;
provided further, however, that immediately after giving effect to each Advance,
the Dollar Value of Total Canadian Utilization shall not exceed the Total
Canadian Revolving Credit Commitment. Within such limits, TD Canada may borrow,
repay and reborrow hereunder, on a Business Day, from the Closing Date until,
but (as to borrowings and reborrowings) not including, the Revolving Credit
Termination Date; provided, however, that (x) no Eurodollar Rate Loan or
Acceptance shall be made which has an Interest Period or maturity that extends
beyond the Revolving Credit Termination Date and (y) each Eurodollar Rate Loan
may, subject to the provisions of Section 3.08, be repaid only on the last day
of the Interest Period with respect thereto. TD Canada agrees that if at any
time the Total Canadian Utilization shall exceed the Total Canadian Revolving
Credit Commitment, TD Canada shall immediately reduce the outstanding Canadian
Loans such that, as a result of such reduction, the Total Canadian Revolving
Credit Commitment shall equal or exceed the Total Canadian Utilization.
CIBC agrees to establish in favor of TD Canada an overdraft facility in
the amount of U.S. $5,000,000 to be utilized by TD Canada for working capital
and general corporate needs of TD Canada. This overdraft facility may be availed
by way of Canadian Prime Rate Loans and Domestic Base Rate Loans. Utilizations
of this overdraft facility will constitute Canadian Loans and be included in
Total Canadian Utilization.
(b) Amounts, Advances and Rate Selection. (i) Each request for a
Canadian Advance of the Alternative Currency under a Borrowing Notice shall
constitute TD Canada's request for a Canadian Loan of the Dollar Value of the
amount of the Alternative Currency specified in such Borrowing Notice and for
such Canadian Loan to be made available by the Canadian Facilities Lenders to TD
Canada in the Alternative Currency Equivalent Amount of such Dollar
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Value (determined based on the Advance Date Exchange Rate applicable to
such Canadian Advance). The principal amount outstanding on any Canadian Loan
shall be recorded in the Canadian Agent's records in Dollars (in the case of a
Canadian Advance of the Alternative Currency as if the Canadian Loan had
initially been made in Dollars), based on the amount of any Canadian Advance and
on the Dollar Value of the initial Canadian Advance of the Alternative Currency,
as reduced from time to time by the Dollar Equivalent Amount (based on the
Advance Date Exchange Rate applicable to such Advance) of any principal payments
with respect to such Advance. In the event a Eurodollar Rate Loan of the
Alternative Currency is continued such election to continue the Eurodollar Rate
Loan shall be treated as a Canadian Advance and the Canadian Agent shall notify
TD Canada and the Canadian Facilities Lenders of the Advance Date Exchange Rate,
Interest Period and the Eurodollar Rate for such continued Eurodollar Rate Loan.
The Canadian Facilities Lenders shall each be deemed to have made a Canadian
Advance to TD Canada of its Applicable Commitment Percentage of such Canadian
Loan of the Alternative Currency and the Canadian Agent shall apply the Advance
Date Exchange Rate for such new Interest Period to such continued Alternative
Currency Equivalent Amount to determine the new Dollar Value of such Eurodollar
Rate Loan and shall adjust its books accordingly. In the event that such
adjustment with respect to a continued Canadian Loan would cause the total
Dollar Value of the outstanding Canadian Loans to exceed the Total Canadian
Revolving Credit Commitment, TD Canada shall, immediately on the effective date
of such continuation, repay (a "Rate Adjustment Payment") the portion of such
converted Loan (applying the new Advance Date Exchange Rate) necessary to ensure
that the total Dollar Value of the outstanding Canadian Loans does not exceed
the Total Canadian Revolving Credit Commitment, provided further that TD Canada
shall not be required to pay any additional compensation pursuant to Section
4.04 with respect to a prepayment of a Canadian Loan required by this sentence
if such prepayment is made immediately on the effective date of the continuation
giving rise to such prepayment. For the purposes of determining the maximum
amount of the outstanding Canadian Loans that may exist hereunder, it is
intended by the parties that all Loans shall be the functional equivalent of
Loans made and repaid (based on the applicable Advance Date Exchange Rate for
each Canadian Advance) in Dollars. It is recognized that Canadian Facilities
Lenders may elect to record Canadian Loans or Canadian Advances in Alternative
Currencies. The Canadian Agent shall maintain records sufficient to identify at
any time, (i) the Advance Date Exchange Rate with respect to each Canadian
Advance, and (ii) the portion of the total outstanding Canadian Loans
attributable to each Canadian Advance. Total Canadian Utilization by TD Canada
shall be permitted to exceed the Total Canadian Revolving Credit Commitment by
up to 5% by reason of changes in the Spot Rate of Exchange, calculated by CIBC
on a daily basis, however, should the Total Canadian Utilization by TD Canada
exceed the Total Canadian Revolving Credit Commitment by an amount equal to or
greater than 5% then TD Canada shall either (i) reduce the
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Canadian Loans upon the next maturity, continuance or conversion of a
Canadian Acceptance or Eurodollar Rate Loan or maturity of a Canadian Letter of
Credit and provide to the Canadian Agent funds in Dollars equal to the amount in
excess of the Total Canadian Revolving Credit Commitment, which Funds will be
held by the Canadian Agent as security for such excess or (ii) repay Canadian
Loans immediately such that, as a result of such repayment, the Total Canadian
Revolving Credit Commitment shall equal or exceed the Total Canadian
Utilization.
(ii) The aggregate unpaid amount (including with respect to Loans of
the Alternative Currency the total Dollar Value) of the Canadian Loans plus
Canadian Letter of Credit Outstandings and Canadian Acceptance Usage shall not
exceed at any time an amount equal to the Total Canadian Revolving Credit
Commitment. Each Loan and each conversion under Section 3.01 shall be (A) in the
case of Eurodollar Loans, in an amount not less than $1,000,000 and in integral
multiples of $500,000 (or the equivalent thereof in the Alternative Currency),
and (B) in the case of Canadian Prime Rate Loan or Domestic Base Rate Loan in an
amount not less than $500,000, and, if greater, an integral multiple of $100,000
(or the equivalent thereof in the Alternative Currency).
(iii) An Authorized Representative of TD Canada shall give the Canadian
Agent at least (A) three (3) Business Days irrevocable telecopy or telex notice
of each Eurodollar Rate Loan (whether representing an additional borrowing
hereunder or the conversion of borrowing hereunder) or each Canadian Acceptance
which the Borrower wants to be accepted prior to 10:30 A.M., Toronto, Canada
time and, (B) irrevocable telephonic or telefacsimile notice of each Canadian
Acceptance, Canadian Prime Rate Loan or Domestic Base Rate Loan representing a
borrowing or conversion hereunder prior to 10:30 A.M. Toronto, Canada time on
the day before such proposed Canadian Prime Rate Loan or Domestic Base Rate
Loan. Each such Borrowing Notice, which shall be effective upon receipt by the
Canadian Agent, shall specify the type of Canadian Loan (Eurodollar Rate,
Canadian Prime Rate, Canadian Acceptance or Domestic Base Rate), whether Dollar
or the Alternative Currency, the amount of the Canadian Loan for which the
Canadian Advance is to be made, the date of borrowing and where applicable the
Interest Period to be used in the computation of interest. The Authorized
Representative shall provide the Canadian Agent written confirmation of each
such telephonic notice on the same day by telefacsimile transmission in the form
of a Borrowing Notice in the form attached hereto as Exhibit D-2, in each case
with appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. The duration of the initial
Interest Period for each Canadian Loan shall be as specified in the initial
Borrowing Notice. TD Canada shall have the option to elect the duration of
subsequent Interest Periods and to convert the Loans in accordance with Section
3.08 hereof. If the Canadian Agent does not receive a notice of election of
duration of an Interest Period or to convert by the time prescribed hereby and
in accordance with
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Section 3.08 hereof, TD Canada shall be deemed to have elected a Domestic
Base Rate Loan in the case of Eurodollar Rate Loans or Canadian Prime Rate Loans
for Canadian Acceptances.
(iv) Notice of receipt of each Borrowing Notice shall be provided by
the Canadian Agent to each Canadian Facilities Lender by telecopy or telex with
reasonable promptness, but not later than 12:00 noon, Toronto, Canada time on
the same day as the Canadian Agent's receipt of such notice from TD Canada prior
to 10:30 A.M., Toronto, Canada time. At approximately 10:00 A.M. Toronto,
Ontario time two (2) Business Days preceding the date specified for an Advance
of the Alternative Currency, the Canadian Agent shall determine the Advance Date
Exchange Rate and the Applicable Rate. Not later than 11:00 A.M. Toronto, Canada
time on the date specified for each Advance of the Alternative Currency, the
Agent shall provide TD Canada and each Canadian Facilities Lender notice by
telefacsimile transmission of the Advance Date Exchange Rate applicable to such
Canadian Advance, and the Alternative Currency Equivalent Amount of the Canadian
Loan or Loans required to be made by each Canadian Facilities Lender on such
date, and the Dollar Value of such Loan or Loans and the Applicable Rate.
(v) In the case of Canadian Advances in Dollars, each Canadian
Facilities Lender shall, pursuant to the terms and conditions of this Agreement,
not later than 12:00 noon, Toronto, Canada time on the date specified for such
Advance, make the amount of the Canadian Advance to be made by it on such day
available to the Canadian Agent by depositing or transferring the proceeds
thereof in immediately available funds to the Canadian Agent, at its Funding
Bank. The amount so received by the Canadian Agent shall, subject to the terms
of this Agreement, be made available to TD Canada by deposit of the proceeds to
an account of TD Canada maintained at such Funding Bank or otherwise as shall be
directed in the applicable Borrowing Notice.
(vi) In the case of Canadian Advances of the Alternative Currency, not
later than 11:00 A.M., Toronto, Canada time on the date specified for each
Advance, each Canadian Facilities Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Canadian
Loan or Loans to be made by it on such day available to TD Canada at the
Canadian Agent, to the account of the Canadian Agent. The amount so received by
the Canadian Agent shall, subject to the terms and conditions of the Loan
Documents on the same day but no later than 12:00 noon Toronto, Canada time, be
made available to TD Canada by delivery of the Alternative Currency Equivalent
Amount to TD Canada's account with the Canadian Agent.
(vii) Notwithstanding the foregoing, if a drawing is made under any
Canadian Letter of Credit prior to the Revolving Credit Termination Date and TD
Canada shall not immediately reimburse CIBC for the amount of such draw or
payment, then notice of such drawing or payment shall be provided promptly by
CIBC to the Canadian Agent
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and the Canadian Agent shall provide notice to each Canadian Facilities
Lender by telephone or telefacsimile. If notice to the Canadian Facilities
Lenders of a drawing under any Letter of Credit is given by the Canadian Agent
at or before 12:00 noon Toronto, Canada time on any Business Day, such drawing
shall be converted to Dollars at the Spot Rate of Exchange on the date of
drawing under the Canadian Letter of Credit, TD Canada shall be deemed to have
requested, and each Canadian Facilities Lender shall, pursuant to the conditions
of this Agreement, make a Domestic Base Rate Loan under the Canadian Revolving
Credit Facility in the amount of such Canadian Facilities Lender's Applicable
Commitment Percentage of such drawing or payment (and in the case of a drawing
in the Alternative Currency, a Canadian Prime Rate Loan in an amount equal to
such Canadian Facilities Lender's Applicable Commitment Percentage of the Dollar
Equivalent Amount of such drawing or payment determined on the basis of the Spot
Rate of Exchange on the date of drawing under the Canadian Letter of Credit) and
shall pay such amount to the Canadian Agent for the account of CIBC at the
Lending Office in Dollars and in immediately available funds before 2:30 P.M.
Toronto, Canada time on the same Business Day. If notice to the Canadian
Facilities Lenders is given by the Canadian Agent after 12:00 noon Toronto,
Canada time on any Business Day, such drawing shall be converted to Dollars at
the Spot Rate of Exchange on the date of drawing under the Canadian Letter of
Credit, TD Canada shall be deemed to have requested, and each Canadian
Facilities Lender shall, pursuant to the terms and subject to the conditions of
this Agreement, make a Canadian Prime Rate Loan under the Canadian Revolving
Credit Facility in the amount of such Canadian Facilities Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such amount to
the Canadian Agent for the account of CIBC at the Principal Office in Dollars
and in immediately available funds before 12:00 noon Toronto, Canada time on the
next following Business Day. Such Domestic Base Rate Loan shall continue unless
and until TD Canada converts such Domestic Base Rate Loan in accordance with the
terms of Section 3.08 hereof.
3.02 Payment of Interest. (a) TD Canada shall pay interest to the Canadian
Agent for the account of each Canadian Facilities Lender on the outstanding and
unpaid principal amount of each Canadian Loan made by such Canadian Facilities
Lender for the period commencing on the date of such Canadian Facilities Loan
until such Canadian Loan shall be due at the then applicable Domestic Base Rate
for Domestic Base Rate Loans, the Canadian Prime Rate for Canadian Prime Rate
Loans or applicable Eurodollar Rate for Eurodollar Rate Loans, such payments to
be made in Dollars or at the Applicable Rate in the case of Canadian Loans made
in the Alternative Currency, such payments to be made in the Alternative
Currency as designated by the Authorized Representative pursuant to Section 3.01
hereof or as otherwise provided herein; provided, however, that if any amount
shall not be paid when due (at maturity, by acceleration or otherwise), all
amounts outstanding hereunder shall bear interest thereafter (i) in the case of
a
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Eurodollar Rate Loan, until the end of the Interest Period with respect to
such Eurodollar Rate Loan, at a rate of two percent (2%) above such Eurodollar
Rate and (ii) thereafter, and with respect to Domestic Base Rate Loans or
Canadian Prime Rate Loans, at a rate of interest per annum which shall be two
percent (2%) above the Domestic Base Rate or Canadian Prime Rate, as the case
may be, or the maximum rate permitted by applicable law, whichever is lower,
from the date such amount was due and payable until the date such amount is paid
in full.
The Canadian Agent's certificate as to each rate of interest payable
hereunder shall be prima facie evidence of such rate.
(b) Computation of Interest. TD Canada shall pay to the Canadian Agent
for the benefit of the Canadian Facilities Lenders interest on each Canadian
Loan, which interest shall be calculated on the outstanding principal amount
daily for the period:
(i) in the case of a Canadian Prime Rate Loan or a Domestic Base
Rate Loan, commencing on and including the day on which it is advanced
and ending on, but excluding, the day on which it is repaid; or
(ii) in the case of a Eurodollar Rate Loan, commencing on and
including the first day of the Interest Period relative to such
Eurodollar Rate Loan and ending on, but excluding, the last day of such
Interest Period,
at the rate of interest per annum equal to, in the case of:
(i) the Canadian Prime Rate for Canadian Prime Rate Loans, on the
basis of a year of 365 days;
(ii) the Domestic Base Rate for Domestic Base Rate Loans, on the
basis of a year of 365 days;
(iii) the Eurodollar Rate for Eurodollar Rate Loans, on the basis of
a year of 360 days.
For the purposes of this Agreement, whenever interest is calculated on the basis
of a year of 360 or 365 days, each rate of interest determined pursuant to such
calculation expressed as an annual rate for the purposes of the Interest Act
(Canada) is equivalent to such rate as so determined multiplied by the number of
days in the calendar year in which the same is to be ascertained and divided by
360 or 365, as appropriate. The parties further agree that for the purposes of
the Interest Act (Canada), (i) the principle of deemed reinvestment of interest
shall not apply to any interest calculation under this Agreement, and (ii) the
rates of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
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Interest on each Canadian Loan shall be paid on the last day of the
applicable Interest Period for each Eurodollar Rate Loan and, if the Interest
Period extends for more than three months, at intervals of three months after
the first day of the Interest Period and on the Revolving Credit Termination
Date.
(c) Accrual and Payment of Interest. Interest on each Canadian Loan
shall accrue from day to day but shall not compound and shall be payable:
(i) in the case of a Canadian Prime Rate Loan, Domestic Base Rate
Loan or any other amount payable hereunder other than in respect of a
Eurodollar Rate Loan, monthly in arrears on the first Banking Day of
each month; or
(ii) in the case of a Eurodollar Rate Loan, as set forth in Section
3.02(b).
3.03 Payment of Principal. (a) The principal amount of each Canadian Loan
shall be due and payable to the Agent for the benefit of each Canadian
Facilities Lenders in full on the Revolving Credit Termination Date. The
duration of the initial Interest Period for each Canadian Loan that is a
Eurodollar Rate Loan or Canadian Acceptance shall be as specified in the initial
Borrowing Notice. TD Canada shall have the option to elect the duration of
subsequent Interest Periods and to convert the Loans in accordance with Section
3.08 hereof. If the Canadian Agent does not receive a notice of election of
duration of an Interest Period or to convert by the time prescribed by Section
3.08 hereof, TD Canada shall be deemed to have elected to convert such Canadian
Loan to (or continue such Canadian Loan as) a Canadian Prime Rate Loan or
Domestic Base Rate Loan, as applicable, until TD Canada notifies the Agent in
accordance with Section 3.08.
(b) Each payment of principal (including any prepayment) shall be made
to the Canadian Agent at its Lending Office, for the account of each Canadian
Facilities Lender's applicable Lending Office, to be recorded in Dollars as set
forth in Section 3.01(b). The principal amount attributable to each specified
Advance of the Alternative Currency (or the continuation or conversion thereof)
(as determined from the Canadian Agent's records) shall be repaid in the
Alternative Currency. Each such payment shall be made in immediately available
funds before 12:30 P.M. Toronto, Canada time on the date such payment is due.
The Canadian Agent may, but shall not be obligated to, debit the amount of any
such payment which is not made by such time to any ordinary deposit account, if
any, of TD Canada with the Canadian Agent. TD Canada shall give the Canadian
Agent prior telephonic notice of any payment of principal, such notice to be
given by not later than 11:00 A.M. Toronto, Canada time, prior to the date of
such payment. Each repayment shall be effected in the currency of the
outstanding Advance.
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(c) The Canadian Agent shall deem any payment by or on behalf of TD
Canada hereunder that is not made both (a) in Dollars in the case of Eurodollar
Rate Loans made in Dollars or Domestic Base Rate Loans and the Alternative
Currency in the case of Canadian Loans in the Alternative Currency and in
immediately available funds and (b) prior to 12:30 P.M. Toronto, Canada time to
be a non-conforming payment. Any such payment shall not be deemed to be received
by the Canadian Agent until the time such funds become available funds. The
Canadian Agent shall give prompt telephonic notice to the applicable Authorized
Representative and each of the Canadian Facilities Lenders (confirmed in
writing) if any payment is non-conforming. Interest shall continue to accrue on
any principal as to which a non-conforming payment is made until such funds
become available funds (but in no event less than the period from the date of
such payment to the next succeeding Business Day) at a rate of interest per
annum which shall be two percent (2%) above the Canadian Prime Rate or Domestic
Base Rate, as the case may be, or the maximum rate permitted by applicable law,
whichever is lower, from the date such amount was due and payable until the date
such amount is paid in full.
(d) In the event that any payment hereunder or under the Canadian Loans
which bear interest at the Domestic Base Rate or Canadian Prime Rate becomes due
and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
3.04 Evidence of Indebtedness. TD Canada hereby authorizes each Canadian
Facilities Lender and the Canadian Agent to record, from time to time, in its
records, the date and amount of each Canadian Loan; the interest rates payable
by TD Canada in respect of each Canadian Loan and any Interest Period applicable
thereto; the Canadian Acceptances issued in respect of any Canadian Loan; the
dates and amounts of all payments received by such Canadian Facilities Lender on
account of principal, interest and fees; and the amount of all the Canadian
Loans which remain payable by TD Canada to such Canadian Facilities Lender. All
amounts and other information so recorded shall be prima facie evidence thereof.
The failure to record, or any error in recording, any such amount or other
information shall not limit or impair the obligations of TD Canada hereunder or
under any Loan Document.
3.05 Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Loans and the fees
described in Section 3.09 hereof shall be made to the Canadian Agent for the
account of the Canadian Facilities Lenders pro rata based on their Applicable
Commitment Percentages, (b) all payments to be made by TD Canada for the account
of each of the Canadian Facilities Lenders on account of principal, interest and
fees, shall be made without set-off or counterclaim, and (c) the Canadian Agent
in all other cases will promptly distribute payments received to the Canadian
Facilities Lenders.
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Notwithstanding the foregoing, in the event any Canadian Facilities Lender
shall not be able to make a Eurodollar Rate Loan as provided in Section 3.01,
interest shall be allocated to such Canadian Facilities Lender according to the
interest rate payable to such Canadian Facilities Lender as set forth in Section
4.05.
3.06 Reductions. TD Canada shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each fiscal quarter), upon not less than ten (10) Business Days
written notice to the Canadian Agent to reduce the Total Canadian Revolving
Credit Commitment. The Canadian Agent shall give each Canadian Facilities
Lender, within one (1) Business Day, telephonic notice (confirmed in writing) of
such reduction. Each such reduction shall be in the aggregate amount of
$5,000,000 or such greater amount which is in an integral multiple of
$1,000,000, and shall permanently reduce the Total Canadian Revolving Credit
Commitment of the Canadian Facilities Lenders pro rata. No such reduction shall
result in the payment of any Eurodollar Rate Loan other than on the last day of
the Interest Period of such Canadian Loan unless such prepayment is accompanied
by amounts due, if any, under Section 4.04. Each reduction of the Total Canadian
Revolving Credit Commitment shall be accompanied by payment of the Canadian
Facilities Notes to the extent that the Total Canadian Utilization exceeds the
Total Canadian Revolving Credit Commitment, after giving effect to such
reduction, together with accrued and unpaid interest on the amounts prepaid.
3.07 Increase and Decrease in Amounts. The amount of the Total Canadian
Revolving Credit Commitment which shall be available to TD Canada shall be
reduced by the aggregate amount of all Canadian Letters of Credit Outstandings
and Canadian Acceptance Usage.
3.08 Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Sections 4.01(b), 4.02 and
4.03 hereof, TD Canada may, by delivering the Borrowing Notice set out in
Exhibit D-2, request a conversion or continuance provided that:
(a) the proceeds are used to retire the Outstanding Loan;
(b) the notice identifies the outstanding Loan to be retired
(the "Outstanding Loan");
(c) the conversion or continuance would otherwise be a
permitted Advance hereunder and TD Canada and TDC comply with each
provision hereof relative to the obtaining of an Advance;
(d) the aggregate principal amount of the conversion or
continuance is not greater than the Outstanding Loan plus
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accrued interest in the case of Eurodollar Rate Loans rounded up to the
nearest $10,000;
(e) no conversions shall be made from one currency to another
without first satisfying the original Obligation in the currency of
their denomination;
(f) each conversion or continuance is made contemporaneously
with the retirement of the Outstanding Loan.
Notice of any such elections or conversions shall specify the effective
date of such election or conversion and the Interest Period to be applicable to
the Canadian Loan as continued or converted.
All such continuations or conversions of Canadian Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Canadian
Facilities Lenders in respect of the Total Canadian Revolving Credit Commitment.
3.09 Unusued Fee. For the period beginning on the Closing Date and ending
on the Revolving Credit Termination Date (or such earlier date on which the
Canadian Revolving Credit Facility has terminated), TD Canada agrees to pay to
the Canadian Agent, for the pro rata benefit of the Canadian Facilities Lenders
based on their Applicable Commitment Percentages, an unused fee equal to the
Applicable Unused Fee times the sum of the daily amount by which the Total
Canadian Revolving Credit Commitment exceeds the sum of average daily (i)
outstanding Canadian Loans plus (ii) Canadian Letters of Credit plus (iii)
Canadian Acceptances. Such payments of fees provided for herein shall be due in
arrears on the last Business Day of each January, April, July and October
beginning July 31, 1996 to and on the Revolving Credit Termination Date (or such
earlier date on which the Revolving Credit Facility has terminated).
Notwithstanding the foregoing, so long as any Canadian Facilities Lender fails
to make available any portion of its Canadian Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive payment of its pro rata
share of such fee until such Lender shall make available such portion. Such fee
shall be calculated on the basis of a year of 365 days for the actual number of
days elapsed.
3.10 Deficiency Advances. No Canadian Facilities Lender shall be
responsible for any default of any other Canadian Facilities Lender in respect
to such other Canadian Facilities Lender's obligation to make any Canadian Loan
hereunder nor shall the Canadian Revolving Credit Commitment of any Canadian
Facilities Lender hereunder be increased as a result of such default of any
other Canadian Facilities Lender. Without limiting the generality of the
foregoing, in the event any Canadian Facilities Lender shall fail to advance
funds to TD Canada as herein provided, the Canadian Agent may in its discretion,
but shall not be obligated to, advance in its favor as a Canadian Facilities
Lender all or any portion of
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such amount or amounts (each, a "deficiency advance") and shall thereafter
be entitled to payments of principal of and interest on such deficiency advance
in the same manner and at the same interest rate or rates to which such other
Canadian Facilities Lender would have been entitled had it made such advance
hereunder; provided that, upon payment to the Canadian Agent from such other
Canadian Facilities Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Canadian Agent by TD Canada
on each Canadian Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Canadian Agent, then such payment shall be
credited against the applicable Obligation owed to the Canadian Agent in full
payment of such deficiency advance and TD Canada shall be deemed to have
borrowed the amount of such deficiency advance from such other Canadian
Facilities Lender as of the most recent date or dates, as the case may be, upon
which any payments of interest were made by TD Canada thereon.
3.11 Use of Proceeds. The proceeds of the Canadian Loans made pursuant to
the Canadian Revolving Credit Facility hereunder shall be used by TD Canada to
repay existing Indebtedness under the Prior Canadian Facilities Agreement, to
support issuance of Canadian Letters of Credit and Canadian Acceptances, to
finance Capital Expenditures and Permitted Acquisitions and for other working
capital and general corporate needs of TD Canada, to the extent permitted under
this Agreement.
3.12 Extension of Revolving Credit Termination Date. At the request of TD
Canada the Lenders may, in their sole discretion, elect to extend the Revolving
Credit Termination Date for Canadian Facilities then in effect for additional
periods of one year. TD Canada shall notify the Lenders of its request for such
an extension by delivering to the Agent notice of such request signed by an
Authorized Representative not more than one hundred and twenty (120) days nor
less than sixty (60) days prior to the second anniversary of the Closing Date.
If all the Lenders shall elect to so extend, the Agent shall notify TD Canada in
writing within sixty (60) days of its receipt of such request for extension of
the decision of the Lenders of whether to extend the Revolving Credit
Termination Date for Canadian Facilities. Failure by the Agent to give such
notice shall constitute refusal by the Lenders to extend the Revolving Credit
Termination Date for the Canadian Facilities.
3.13 Letters of Credit. CIBC agrees, subject to the terms and conditions of
this Agreement, to maintain the Existing Canadian Letters of Credit as Canadian
Letters of Credit hereunder and, upon request of TD Canada to issue from time to
time for the account of the TD Canada Canadian Letters of Credit upon delivery
to CIBC of a Letter of Credit Application in form and content acceptable to
CIBC; provided, that the Canadian Letter of Credit Outstandings hereunder shall
not exceed the Canadian Letter of Credit Commitment. No Canadian Letter of
Credit shall be issued by CIBC
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with an expiry date or payment date occurring subsequent to the thirtieth
Business Day preceding the Revolving Credit Termination Date and no Commercial
Letter of Credit shall have an expiry date occurring more than six (6) months
after the date of its issuance. CIBC shall not be required to issue any Canadian
Letter of Credit if the Total Canadian Utilization when added to the face amount
of any requested Canadian Letter of Credit exceeds the Total Canadian Revolving
Credit Commitment.
3.14 Acceptances
(a) Creation of Canadian Acceptances. Upon receipt of a Borrowing
Notice given in accordance with this Agreement and subject to the provisions of
this Agreement, each Canadian Facilities Lender severally agrees to accept from
time to time such Canadian Dollar bills of exchange as TD Canada shall request
within the scope of the Total Canadian Revolving Credit Commitment, provided
that:
(i) Canadian Acceptances shall be issued on a Business Day
specified in the Borrowing Notice;
(ii) each Canadian Acceptance shall have a term from 30 to 180 days
(excluding days of grace), as designated by TD Canada in the relevant
Borrowing Notice, provided that each Canadian Acceptance shall mature
on a Business Day and TD Canada shall choose Canadian Acceptances of
such duration so as to ensure that TD Canada complies in all respects
with its reduction or repayment obligations under this Agreement; and
(iii) each Canadian Acceptance shall be in a form acceptable to the
Canadian Facilities Lenders acting reasonably.
The obligation of the Canadian Facilities Lenders to accept bills of exchange
shall be several and not joint, and the failure of any Canadian Facilities
Lender to accept any bills of exchange shall not relieve any other Canadian
Facilities Lender of its obligation to accept bills of exchange in accordance
with the terms hereof, and no Canadian Facilities Lender shall be responsible
for the failure by any other Canadian Facilities Lender to accept bills of
exchange to be accepted by such other Canadian Facilities Lender.
(b) Notice by Canadian Agent to Canadian Facilities Lenders. The
Canadian Agent shall give prompt written notice to the Canadian Facilities
Lenders of each Borrowing Notice requesting the issue of Canadian Acceptances
and shall notify each Canadian Facilities Lender of the face amount at maturity
of each bill of exchange to be accepted by such Canadian Facilities Lender based
upon such Canadian Facilities Lender's pro rata share based on their Applicable
Commitment Percentage of the face amount of Canadian Acceptances specified in
the Borrowing Notice, except that, if the face amount of a Canadian Acceptance
would not be Cdn $100,000 or
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a whole multiple thereof, the face amount may be increased or reduced by
the Canadian Facilities Lender in its sole discretion without thereby increasing
or reducing the aggregate face amount at maturity of the Canadian Acceptances to
be accepted by the Canadian Facilities Lenders as specified in the Borrowing
Notice.
(c) Stamping Fees. Upon tendering any bill of exchange for acceptance
by a Canadian Facilities Lender pursuant to the Canadian Revolving Credit
Facility, TD Canada shall pay to such Canadian Facilities Lender, a fee equal to
the Credit Margin then in effect relating to Canadian Acceptances to be accepted
pursuant to the Canadian Revolving Credit Facility, based on the principal
amount of such bill of exchange for the duration of its stated term calculated
on the basis of the actual number of days in the stated term, commencing on, and
including, the date such Canadian Facilities Lender accepts the bill of exchange
and ending on, but excluding, its stated payment date.
(d) Pre-Signed Acceptances. TD Canada shall deliver to the Canadian
Facilities Lenders sufficient pre-signed bills of exchange, in form acceptable
to the Canadian Facilities Lenders or such other instrument as may reasonably be
required by a Canadian Facilities Lender and acceptable to TD Canada, to enable
the Canadian Facilities Lenders to meet requests by TD Canada for Canadian
Advances by way of Canadian Acceptances from time to time. The Canadian
Facilities Lenders shall not be responsible or liable for their failure to
accept a Canadian Acceptance as required hereunder if the cause of such failure
is, in whole or in part, due to the failure of TD Canada to provide duly
executed and endorsed drafts to the Canadian Facilities Lenders on a timely
basis nor shall the Canadian Facilities Lenders be liable for any damage, loss
or other claim arising by reason of any loss or improper use of any such
instrument except the negligence or willful misconduct of the Canadian
Facilities Lenders or their employees. Each of the Canadian Facilities Lenders
shall maintain a record with respect to Canadian Acceptances (i) received by it
from TD Canada in blank hereunder, (ii) voided by it for any reason, (iii)
accepted by it hereunder, and (iv) cancelled at their respective maturities. The
Canadian Facilities Lenders further agree to retain such records in the manner
and for the statutory periods provided in the various provincial or federal
statutes and regulations which apply to the Canadian Facilities Lenders. Such
pre-signed bills of exchange shall be blank as to date of issue, date of
maturity and amount. With respect to the safekeeping of pre-signed bills of
exchange delivered to the Canadian Facilities Lenders by TD Canada, the Canadian
Facilities Lenders shall be obligated to exercise only the same degree of care
as if such Canadian Acceptances were the property of the Canadian Facilities
Lenders and the Canadian Facilities Lenders were keeping them at the place at
which they are held. The Canadian Facilities Lenders may complete and accept
pre-signed bills of exchange from time to time in accordance with the
instructions of TD Canada, provided that the Canadian Facilities Lenders shall
not incur any liability whatsoever in respect of
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instructions carried out by them in the belief that such instructions were
properly given by TD Canada.
(e) Execution of Acceptances. Bills of exchange of TD Canada to be
accepted as Canadian Acceptances hereunder shall be signed by an Authorized
Representative of TD Canada. Notwithstanding that any person whose signature
appears on any Canadian Acceptance as one of such officers may no longer be an
authorized signatory for TD Canada at the date of issuance of a Canadian
Acceptance, such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of such issuance
and any such Canadian Acceptance so signed shall be binding on TD Canada.
(f) Payment of Discount Proceeds. On the date set forth in Section
3.01, each Canadian Facilities Lender will pay to TD Canada the Acceptance
Discount Proceeds relating to the Canadian Acceptances accepted by it.
The Canadian Facilities Lenders may at any time and from time to time
hold, sell, rediscount or otherwise dispose of any or all Canadian Acceptances
purchased by them.
(g) Discharge of Acceptances. TD Canada agrees that on each date on
which a Canadian Acceptance matures (in this Section, a "maturity date"), unless
TD Canada is entitled to a Canadian Advance under Section 3.01 or TD Canada has
requested and is entitled to a conversion in the amount of the maturing Canadian
Acceptance TD Canada will provide the Canadian Agent for the benefit of the
Canadian Facilities Lenders before 10:00 a.m. (Toronto Time) with immediately
available funds (in this Section, the "discharge funds") to discharge in full
the liabilities of the Canadian Facilities Lenders in respect of such Canadian
Acceptance. TD Canada shall not claim any days of grace for the payment of
maturity of any Canadian Acceptance. If TD Canada does not in fact provide the
Canadian Agent with the discharge funds and is not entitled to an Advance or a
conversion in the amount of the maturing Canadian Acceptance, the Canadian
Facilities Lenders may (but shall not be obliged to) make a Canadian Loan to TD
Canada, which Canadian Loan TD Canada hereby requests the Canadian Facilities
Lenders to make and which, if made, shall be made on a demand basis and shall
bear interest at the Canadian Prime Rate as varied from time to time plus 2% per
annum. To the extent not inconsistent with the demand nature of this loan, the
terms and conditions of this Agreement pertinent to a Canadian Prime Rate Loan
outstanding under the Canadian Revolving Credit Facilities shall apply to such
demand loan. This provision applies whether or not a Canadian Facilities Lender
is the holder of the maturing Canadian Acceptance.
(h) Acceptances Outstanding Upon Default. If any Canadian Acceptance is
outstanding upon the occurrence of an Event of Default, TD Canada shall
forthwith upon demand by the Canadian
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Agent pay to the Canadian Agent for the benefit of the Canadian Facilities
Lenders an amount equal to the principal amount of all such Canadian Acceptances
such amount to be held by the Canadian Agent for application against the
Indebtedness owing by TD Canada to the Canadian Facilities Lenders in respect of
such Canadian Acceptances or in respect of any other amount payable under the
Canadian Loan Documents.
(i) Obligations Unconditional. The obligations of TD Canada with
respect to Canadian Acceptances under this Section 3.14 shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any bill of
exchange accepted by the Canadian Facilities Lenders as a Canadian
Acceptance; and
(ii) the existence of any claim, set off, defense or other right
which TD Canada may have at any time against the holder of a Canadian
Acceptance, or any other Person, whether in connection with this
Agreement or otherwise.
(j) Non-Acceptance Lenders. Notwithstanding any provision of this
Section 3.14 to the contrary, if a Canadian Facilities Lender is a
Non-Acceptance Lender and if TD Canada wishes to obtain an Advance by way of
Canadian Acceptances, such Canadian Facilities Lender shall, in lieu of
accepting Canadian Acceptances, pay to TD Canada on the date in Section 3.01 and
on the terms and conditions of this Agreement the same amount of money in
Canadian Dollars that it would have paid to TD Canada pursuant to Section
3.14(f) hereof if it had been a Canadian Facilities Lender that is not a
Schedule I chartered bank, and such Canadian Non-Acceptance Lender shall be
entitled to a stamping fee in respect thereof equal to the amount and at the
same time that it would be entitled to receive if it was a Canadian Acceptance
Lender. Upon such payment being made to TD Canada by such Canadian
Non-Acceptance Lender, it shall for all purposes be deemed to have accepted a
Canadian Acceptance hereunder.
3.15 Reimbursement
(a) TD Canada hereby unconditionally agrees immediately to pay
to CIBC on demand at its Lending Office all amounts required to pay all drafts
drawn or purporting to be drawn under the Canadian Letters of Credit and any and
all expenses of every kind incurred by CIBC in connection with the Canadian
Letters of Credit and in any event and without demand to place in the possession
of CIBC (which shall include Canadian Advances under the Canadian Revolving
Credit Facility if permitted by Section 3.01(b)(vii) hereof) sufficient funds to
pay all debts and liabilities arising under any Canadian Letter of Credit. TD
Canada's obligations to
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pay CIBC under this Section 3.15, and the right of CIBC to receive the
same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever. CIBC may charge any account TD Canada may have with
CIBC for any and all amounts CIBC pays under a Canadian Letter of Credit;
provided that to the extent permitted by Section 3.01(b)(vii), amounts shall be
paid pursuant to Canadian Advances under the Canadian Revolving Credit Facility.
TD Canada agrees that CIBC may, in its sole discretion, accept or pay, as
complying with the terms of any Canadian Letter of Credit, any drafts or other
documents otherwise in order which may be signed or issued by an administrator,
executor, trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, liquidator, receiver, attorney in fact or other legal
representative of a party who is authorized under such Canadian Letter of Credit
to draw or issue any drafts or other documents. TD Canada agrees to pay CIBC
interest on any amounts not paid when due hereunder at the Canadian Prime Rate
plus two percent (2%), or such lower rate as may be required by law.
(b) In accordance with the provisions of Section 3.01(b)(vii)
hereof, CIBC shall notify the Canadian Agent (and shall also notify TD Canada)
of any drawing under any Canadian Letter of Credit issued for the account of TD
Canada as promptly as practicable following the receipt by CIBC of such drawing.
(c) Each Canadian Facilities Lender (other than CIBC) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of CIBC in respect of each Canadian Letter of Credit in an amount
equal to such Canadian Facilities Lender's Applicable Commitment Percentage of
such liability, and to the extent that TD Canada is obligated to pay CIBC under
Section 3.16(a), each Canadian Facilities Lender (other than CIBC) thereby shall
absolutely, unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to CIBC as hereinafter described, its Applicable Commitment
Percentage (determined in respect of the Total Canadian Revolving Credit
Commitment) of the liability of CIBC under such Canadian Letter of Credit. Prior
to the Revolving Credit Termination Date, each Canadian Facilities Lender
(including CIBC in its capacity as a Canadian Facilities Lender) shall, subject
to the terms and conditions of this Article III, make a Canadian Prime Rate Loan
to TD Canada by paying to the Canadian Agent for the account of CIBC at the
Lending Office in Dollars and in immediately available funds, an amount equal to
its Applicable Commitment Percentage (determined in respect of the Total
Canadian Revolving Credit Commitment) of any drawing under a Canadian Letter of
Credit, all as described and pursuant to Section 3.01(b)(vii). With respect to
drawings under any of the Canadian Letters of Credit, each Canadian Facilities
Lender, upon receipt from the Canadian Agent of notice of a drawing in the
manner described in Section 3.01(b)(vii), shall promptly pay to the Canadian
Agent for the account of CIBC, prior to the applicable time set forth in Section
3.01(b)(vii), its Applicable Commitment Percentage (determined in respect of the
Total Canadian Revolving
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Credit Commitment) of such drawing or payment. Simultaneously with the
making of each such payment by a Canadian Facilities Lender to CIBC, such
Canadian Facilities Lender shall, automatically and without any further action
on the part of CIBC or such Canadian Facilities Lender, acquire a Participation
in an amount equal to such payment (excluding the portion thereof constituting
interest accruing before such Canadian Facilities Lender made such payment) in
the related Reimbursement Obligation of TD Canada. The Reimbursement Obligations
of TD Canada shall be immediately due and payable whether by Canadian Advances
made in accordance with Section 3.01(b)(vii) or otherwise. Each Canadian
Facilities Lender's obligation to make payment to the Canadian Agent for the
account of CIBC pursuant to this Section 3.16(c), and the right of CIBC to
receive the same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. If any Canadian Facilities Lender is
obligated to pay but does not pay amounts to the Canadian Agent for the account
of CIBC in full upon such request as required by this Section 3.16(c), such
Canadian Facilities Lender shall, on demand, pay to the Canadian Agent for the
account of CIBC interest on the unpaid amount for each day during the period
commencing on the date of notice given to such Canadian Facilities Lender
pursuant to Section 3.01(b)(vii) until such Canadian Facilities Lender pays such
amount to the Agent for the account of CIBC in full at the interest rate per
annum for overnight borrowing by CIBC.
(d) Promptly following the (i) issuance of each Canadian
Letter of Credit and the creation of a Canadian Acceptance, CIBC shall give the
Canadian Agent written notice of the terms and conditions thereof and (ii) end
of each calendar month, CIBC shall deliver to the Canadian Agent and the Agent,
and the Canadian Agent shall deliver to each Canadian Facilities Lender, a
notice describing the aggregate undrawn amount of all Canadian Letters of Credit
accepted and outstanding at the end of such month. Upon the request of any
Canadian Facilities Lender from time to time, CIBC shall deliver to the Canadian
Agent, and the Canadian Agent shall deliver to such Canadian Facilities Lender,
any other information reasonably requested by such Canadian Facilities Lender
with respect to each Canadian Letter of Credit then outstanding.
(e) The issuance by CIBC of each Canadian Letter of Credit and
a Canadian Acceptance shall, in addition to the conditions precedent set forth
in Section 5.01 hereof, be subject to the conditions that such Canadian Letter
of Credit and Canadian Acceptance be in such form, contain such terms and
support such transactions or obligations as shall be reasonably satisfactory to
CIBC consistent with the then current practices and procedures of CIBC with
respect to similar letters of credit and acceptances. All Canadian Letters of
Credit shall be issued pursuant to and subject to the Uniform Customs and
Practice for Documentary Credits, 1993 revision, International Chamber of
Commerce Publication No. 500 and all subsequent amendments and revisions
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thereto. TD Canada shall have executed and delivered such other instruments and
agreements relating to such Canadian Letter of Credit and Canadian Acceptance as
CIBC shall have reasonably requested consistent with such practices and
procedures.
(f) Without duplication of Section 11.07 hereof, TD Canada
hereby indemnifies and holds harmless CIBC, each other Canadian Facilities
Lender and the Canadian Agent from and against any and all claims and damages,
losses, liabilities, costs or expenses which CIBC, such other Canadian
Facilities Lender or the Canadian Agent may incur (or which may be claimed
against CIBC, such other Canadian Facilities Lender or the Canadian Agent) by
any Person by reason of or in connection with the issuance or transfer of or
payment or failure to pay under any Canadian Letter of Credit or Canadian
Acceptance; provided that TD Canada shall not be required to indemnify CIBC, any
other Canadian Facilities Lender or the Canadian Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
(i) caused by the willful misconduct or gross negligence of the party to be
indemnified, (ii) caused by the failure of CIBC to pay under any Canadian Letter
of Credit or Canadian Acceptance after the presentation to it of a request
strictly complying with the terms and conditions of such Canadian Letter of
Credit or Canadian Acceptance, unless such payment is prohibited by any law,
regulation, court order or decree, or (iii) paid or payable by any Canadian
Facilities Lender under Sections 3.10 or 11.10 hereof.
(g) Without limiting TD Canada's rights as set forth in
Section 3.15(f) above, the obligation of TD Canada to immediately reimburse the
Canadian Agent or the Canadian Lenders for drawings made under Canadian Letters
of Credit or payment of Canadian Acceptances shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Canadian Letters of Credit or Canadian Acceptances,
under all circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of the
Canadian Letter of Credit or Canadian Acceptance, the obligation supported
by the Canadian Letter of Credit or Canadian Acceptance or any other agreement
or instrument relating thereto (collectively, the "Canadian Related Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Canadian Related Documents;
(iii) the existence of any claim, setoff, defense or
other rights which TD Canada may have at any time against any beneficiary
or any transferee of a Canadian Letter of Credit or Canadian Acceptance (or any
persons or entities for whom any such beneficiary or any such transferee may be
acting), the Canadian Agent, Canadian Facilities Lenders or any other person or
entity,
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whether in connection with the Loan Documents, the Canadian Related Documents
or any unrelated transaction;
(iv) any breach of contract or other dispute between TD
Canada and any beneficiary or any transferee of a Canadian Letter of Credit
or Canadian Acceptance (or any persons or entities for whom such beneficiary or
any such transferee may be acting), the Canadian Agent, Canadian Facilities
Lenders or any other person or entity;
(v) any draft, statement or any other document presented
under the Canadian Letter of Credit or Canadian Acceptance proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or
other indulgence or modification granted or agreed to by Agent, with or
without notice to or approval by TD Canada in respect of any of TD Canada's
indebtedness under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release CIBC
or any other Canadian Facilities Lender of any liability for actual loss arising
as a result of its or their gross negligence or willful misconduct.
3.16 Canadian Letter of Credit Fee. (a) For the period beginning on the
Closing Date and ending on the Revolving Credit Termination Date, TD Canada
agree to pay to the Canadian Agent, for the pro rata benefit of the Canadian
Facilities Lenders based on their Applicable Commitment Percentages (determined
in respect of the Total Canadian Revolving Credit Commitment), a fee for such
period at a per annum rate equal to the Applicable Interest Addition for
Eurodollar Loans on the daily aggregate amount available to be drawn under
Canadian Standby Letters of Credit and fees for such period at those rates
established from time to time by the Canadian Agent and acceptable to Lenders
for Canadian Commercial Letters of Credit.
(b) For the period beginning on the Closing Date and ending on
the Revolving Credit Termination Date, TD Canada agrees to pay to the Canadian
Agent for the account of CIBC as issuer of the Canadian Letter of Credit, a fee
for such period at a per annum rate equal to .125% on the daily aggregate amount
available to be drawn under Canadian Letters of Credit.
(c) Such payments of fees provided for in this Section 3.16
shall be due in arrears, the first such payment to be made on the last Business
Day of July 31, 1996 and on the last Business Day of each October, January,
April and July thereafter.
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3.17 Administrative Fees and Reserves. TD Canada shall pay to CIBC
administrative and other fees, if any, in connection with the Canadian Letters
of Credit in such amounts and at such times as CIBC and TD Canada shall agree
from time to time. In addition, TD Canada shall reimburse CIBC for all costs or
reduction in yield occurring by reason of the issuance by CIBC of the Canadian
Letters of Credit.
3.18 Maximum Rate of Return. Notwithstanding any provision to the contrary
contained in this Agreement, in no event shall the aggregate "interest" (as
defined in Section 347 of the Criminal Code, Revised Statutes of Canada, 1985,
C. 46 as the same may be amended, replaced or re-enacted from time to time)
payable under this Agreement exceed the effective annual rate of interest on the
"credit advanced" (as defined in that section) under this Agreement lawfully
permitted under that section and, if any payment, collection or demand pursuant
to this Agreement in respect of "interest" (as defined in that section) is
determined to be contrary to the provisions of that section, such payment,
collection or demand shall be deemed to have been made by mutual mistake of TD
Canada and the Canadian Facilities Lenders and the amount of such payment or
collection shall be refunded to TD Canada; for purposes of this Agreement the
effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the term of the
applicable Credit on the basis of annual compounding of the lawfully permitted
rate of interest and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by the Canadian Agent will be
conclusive for the purposes of such determination.
3.19 Reset of Canadian Lenders, Portion on Default
Upon an Event of Default occurring hereunder, the Canadian Agent shall
determine the amount of outstanding Obligations of each of the Canadian
Facilities Lenders under the Canadian Facilities based on Applicable Commitment
Percentages (determined in respect of the Total Canadian Revolving Credit
Commitment). If at such time any Canadian Facilities Lender holds Obligations
under the Canadian Facilities in an amount less than its Applicable Commitment
Percentage, as the case may be (the "Purchasing Lender"), the Purchasing Lender
shall forthwith purchase from each Canadian Facilities Lender which holds
Obligations under the Canadian Facilities in excess of its Applicable Commitment
Percentage of the Obligations outstanding under the Canadian Facilities, as the
case may be (the "Selling Lender") the amount of the Obligations under the
Canadian Facilities from each Selling Lender required so that after such
purchase and sale, each Canadian Facilities Lender holds Obligations under the
Canadian Facilities equal to its Applicable Commitment Percentage of the Total
Canadian Revolving Credit Commitment of such Obligations. Each Selling Lender
agrees to sell such amount of such Obligations of the Canadian Facilities to the
Purchasing Lender.
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ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs. (a) Each Borrower shall promptly pay to the Agent
for the account of a Lender from time to time, such amounts as such Lender may
determine to be necessary to compensate it for any costs incurred by such Lender
which it determines are attributable to its making or maintaining any Loan or
its obligation to make any Loans, or the issuance or maintenance by NationsBank
or CIBC of or any other Lender's Participation in any Letter of Credit and
Acceptance issued hereunder, or any reduction in any amount receivable by such
Lender under this Agreement, the Notes, the Letters of Credit or the Acceptances
in respect of any of such Loans or such obligation or the Letters of Credit or
the Acceptances, including reductions in the rate of return on a Lender's
capital (such increases in costs and reductions in amounts receivable and
returns being herein called "Additional Costs"), resulting from any Regulatory
Change which: (i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or the Notes in respect of any of such Loans or
Letters of Credit or Acceptances (other than taxes imposed on the income of such
Lender by any jurisdiction in which the Principal Office or the applicable
Lending Office of such Lender is located); or (ii) imposes or modifies any
reserve, special deposit, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Lender (other than any such reserve, deposit or requirement reflected in the
Domestic Base Rate, the Domestic Prime Rate, the Canadian Prime Rate, the CD
Rate or the Eurodollar Rate, in each case computed in accordance with the
respective definitions of such terms set forth in Section 1.01 hereof); or (iii)
has or would have the effect of reducing the rate of return on capital of any
such Lender to a level below that which the Lender could have achieved but for
such Regulatory Change (taking into consideration such Lender's policies with
respect to capital adequacy); or (iv) imposes any other condition adversely
affecting the Agent or the Lenders under this Agreement, the Notes or the
issuance or maintenance of, or any Lender's Participation in, the Letters of
Credit or Acceptances (or any of such extensions of credit or liabilities). Each
Lender will notify the Authorized Representative of any event occurring after
the Closing Date which would entitle it to compensation pursuant to this Section
4.01(a) as promptly as practicable after it obtains knowledge thereof and
determines to request such compensation.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
the Lender which includes deposits by reference to which the interest rate on CD
Loans or Eurodollar Rate Loans is determined as provided in this Agreement or a
category of extensions of credit or other assets of
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any Lender which includes CD Loans or Eurodollar Rate Loans or (ii) becomes
subject to restrictions on the amount of such a category of liabilities or
assets which it may hold, then, if the Lender so elects by notice to the other
Lenders, the obligation of such Lender to make, and to convert Domestic Base
Rate Loans, Floating CD Loans or Canadian Prime Rate Loans of any other type
into, Fixed CD Loans or Eurodollar Rate Loans, as the case may be, hereunder
shall be suspended until the date such Regulatory Change ceases to be in effect
and the Borrower shall, on the last day(s) of the then current Interest
Period(s) for outstanding Fixed CD Loans or Eurodollar Rate Loans, as the case
may be, convert such Fixed CD Loans or Eurodollar Rate Loans into Domestic Base
Rate Loans, Floating CD Loans or Canadian Prime Rate Loans or Fixed CD Loans or
Eurodollar Loans, if available hereunder, in accordance with Section 2.09 or
Section 3.08 hereof, as the case may be.
(c) Determinations by any Lender for purposes of this Section 4.01 of
the effect of any Regulatory Change on its costs of making or maintaining, or
being committed to make Loans or as to NationsBank or CIBC as issuer of any
Letter of Credit and Acceptance, the issuance or maintenance of, or any other
Lender's Participation in, any Letter of Credit and Acceptance issued hereunder,
or on amounts receivable by it in respect of Loans or Letters of Credit or
Acceptances, and of the additional amounts required to compensate the Lender in
respect of any Additional Costs, shall be conclusive absent manifest error,
provided that such determinations are made on a reasonable basis. The Lender
requesting such compensation shall furnish to the Authorized Representative an
explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.02 Suspensions of Loans. Anything herein to the contrary notwithstanding,
if, on or prior to the determination of any interest rate for any Fixed CD Loan
or Eurodollar Rate Loan for any Interest Period therefor, the Agent determines
(which determination made on a reasonable basis shall be conclusive absent
manifest error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of "Fixed CD Rate" or "Eurodollar Rate"
in Section 1.01 hereof or foreign exchange agreements or contracts with
respect to an Alternative Currency are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for such Fixed CD Loan or Eurodollar
Rate Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Applicable Reference Rate" in Section 1.01 hereof upon
the basis of which the Fixed CD Rate or Eurodollar Rate for such
Interest Period is to be determined do not adequately reflect the cost
to the Lenders of making or maintaining
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such Fixed CD Loan or Eurodollar Rate Loan for such Interest
Period (which determination shall be made on a reasonable basis and
the Agent shall furnish the Borrower evidence of the facts leading to
such determination);
then the Agent shall give the Authorized Representative prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make Fixed CD Loans or Eurodollar Rate Loans, as the case may be,
or to convert Domestic Base Rate Loans, Floating CD Loans or Canadian Prime Rate
Loans into Fixed CD Loans or Eurodollar Rate Loans, as the case may be, and the
Borrower shall, on the last day(s) of the then current Interest Period(s) for
outstanding Fixed CD Loans or Eurodollar Rate Loans, as applicable, convert such
Fixed CD Loans or Eurodollar Rate Loans, into Domestic Base Rate Loans, Floating
CD Loans or Canadian Prime Rate Loans or Fixed CD Loans or Eurodollar Rate
Loans, if available hereunder, in accordance with Section 2.09 or Section 3.08
hereof, as the case may be. The Agent shall give the Authorized Representative
notice describing in reasonable detail any event or condition described in this
Section 4.02 promptly following the Agent's determination that the availability
of Fixed CD Loans or Eurodollar Rate Loans, as the case may be, is, or is to be,
suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender to honor its obligation to
make or maintain Eurodollar Rate Loans hereunder, then such Lender shall
promptly notify the Borrowers thereof (with a copy to the Agent) and such
Lender's obligation to make or continue Eurodollar Rate Loans, or convert
Domestic Base Rate Loans, Floating CD Loans or Canadian Prime Rate Loans or
Fixed CD Loans into Eurodollar Rate Loans, shall be suspended until such time as
such Lender may again make and maintain Eurodollar Rate Loans, and such Lender's
outstanding Eurodollar Rate Loans shall be converted into Domestic Base Rate
Loans, Floating CD Loans or Canadian Prime Rate Loans or Fixed CD Loans in
accordance with Section 2.09 or Section 3.08 hereof, as the case may be.
4.04 Compensation. The applicable Borrower shall promptly pay to each
Lender, upon the request of such Lender, such amount or amounts as shall be
sufficient (in the reasonable determination of Lender) to compensate it for any
loss, cost or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Fixed CD Loan
or Eurodollar Rate Loan on a date other than the last day of the
Interest Period for such Fixed CD Loan or Eurodollar Rate Loan,
including without limitation any conversion required pursuant to
Section 4.03; or
(b) any failure by the Borrower to borrow, continue or convert
into a Fixed CD Loan or Eurodollar Rate Loan on the date for such
borrowing, continuation or conversion specified
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in the relevant Borrowing Notice under Section 2.01(b) and Section
3.01(b) hereof;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount so paid, prepaid or converted or not borrowed for the period from the
date of such payment, prepayment or conversion or failure to borrow to the last
day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for such Loan which would have commenced
on the date scheduled for such borrowing) at the applicable rate of interest for
such Fixed CD Loan or Eurodollar Rate Loan provided for herein over (ii) the
Applicable Reference Rate (as reasonably determined by the Agent) for Dollar
deposits of amounts comparable to such principal amount and maturities
comparable to such period; provided, however, that the amount payable hereunder
shall be reduced by the amount of interest actually paid by the Borrower during
the remaining term of such Interest Period in excess of the amount of interest
which would have been paid on the Fixed Rate Loan. In addition and without
duplication, Borrowers shall pay to the Agent for the benefit of the Lenders any
costs associated with the earlier termination of any foreign exchange agreements
or contracts associated with an Alternative Currency. A determination of a
Lender as to the amounts payable pursuant to this Section 4.04 shall be
conclusive, provided that such determinations are made on a reasonable basis.
The Lender requesting compensation under this Section 4.04 shall furnish to the
Authorized Representative calculations in reasonable detail setting forth such
Lender's determination of the amount of such compensation.
4.05 Alternate Loan and Lender. In the event any Lender suspends the making
of any Fixed Rate Loan pursuant to this Article IV (herein a "Restricted
Lender"), the Restricted Lender's Applicable Commitment Percentage of any Fixed
Rate Loan shall bear interest at either the Domestic Base Rate or the Fixed Rate
for which the suspension does not apply, as selected by the applicable Borrower,
until the Restricted Lender once again makes available the applicable Fixed Rate
Loan. Notwithstanding the provisions of Section 2.02(b) or Section 3.02(b),
interest shall be payable to the Restricted Lender at the time and manner as
paid to those Lenders making available Fixed Rate Loans.
4.06 Taxes. All payments by each Borrower of principal of, and interest on,
the Loans and all other amounts payable hereunder shall be made free and clear
of and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between a Lender or the Agent and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the
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activities of such Lender or the Agent pursuant to or in respect of this
Agreement or any other Loan Document), (iii) any withholding taxes payable with
respect to payments hereunder or under any other Loan Document under laws
(including, without limitation, any statute, treaty, ruling, determination or
regulation), (iv) any taxes imposed on or measured by any Lender's assets, net
income, receipts or branch profits and (v) any taxes arising after the Closing
Date solely as a result of or attributable to Lender changing its designated
Lending Office after the date such Lender becomes a party hereto (such
non-excluded items being collectively called "Taxes"). In the event that any
withholding or deduction from any payment to be made by any Borrower hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the applicable Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such authority; and
(c) pay to the Agent for the account of the Lender such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Prior to the date that any Lender or participant organized under the
laws of a jurisdiction outside the United States becomes a party hereto, such
Person shall deliver to the Borrowers and the Agent such certificates, documents
or other evidence, as required by the Code or Treasury Regulations issued
pursuant thereto, properly completed, currently effective and duly executed by
such Lender or participant establishing that such payment is (i) not subject to
United States Federal backup withholding tax and (ii) not subject to United
States Federal withholding tax under the Code because such payment is either
effectively connected with the conduct by such Lender or participant of a trade
or business in the United States or totally exempt from United States Federal
withholding tax by reason of the application of the provisions of a treaty to
which the United States is a party or such Lender is otherwise exempt.
If the applicable Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for the account of
the respective Lender, the required receipts or other required documentary
evidence, the applicable Borrower shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 4.06, a
distribution hereunder by the Agent or any Lender to or for the account of any
Lender shall be deemed a payment by the applicable Borrower.
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4.07 Restricted Lender. In the event any Lender seeks additional
compensation pursuant to this Article IV or is restricted from making any Fixed
Rate Loan under this Agreement, including providing an Alternative Currency
which is made available by other Lenders (a "Restricted Lender"), TDC may cause
such Restricted Lender to be replaced by a financial institution reasonably
acceptable to the Agent which is not similarly restricted and will not seek such
additional compensation. Such Restricted Lender agrees to execute and to deliver
to the Agent an Assignment and Acceptance as provided in Section 12.01 hereof
upon payment of all amounts owed under this Agreement to such Restricted Lender.
4.08 Funding. In the event any Borrower elects to obtain any Loans as Fixed
Rate Loans pursuant to Section 2.01 or Section 3.01, or elects to continue any
Fixed Rate Loans or convert any portion of the principal amount of any Domestic
Base Rate Loans, Canadian Prime Rate Loans or Floating CD Loans to Fixed Rate
Loans pursuant to Section 2.09 or Section 3.08, each Lender may, if it so
elects, fulfill its obligation to make or continue any portion of the principal
amount of any Loan as, or to convert any portion of the principal amount of any
Loan into, a Fixed Rate Loan in accordance with any election made by such
Borrower by causing a foreign branch or affiliate of such Lender or an
international banking facility created by such Lender to make such Fixed Rate
Loan; provided that in such event such Fixed Rate Loan shall be deemed to have
been made by such Lender, and the obligation of the Borrower to repay such Fixed
Rate Loan shall nevertheless be to such Lender and shall be deemed to be held by
such Lender, to the extent of such Fixed Rate Loan, for the account of such
foreign branch, affiliate or international banking facility. In addition, the
Borrowers hereby consent and agree that, for purposes of any determination to be
made for purposes of this Agreement (including Sections 4.01, 4.02, 4.03 and
4.04), it shall be conclusively assumed that each Lender elected to fund all
Fixed Rate Loans by purchasing Dollar deposits in its eurodollar office's
interbank eurodollar market.
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ARTICLE V
Conditions to Making Loans, Issuing
Letters of Credit and Creating Acceptances
5.01 Conditions of Initial Advance and Issuance of Letters of Credit and
Creating Acceptances. The obligation of the Lenders to make the initial Domestic
Advance or Canadian Advance and of NationsBank and CIBC to issue the Letters of
Credit and create Acceptances is subject to the following conditions precedent:
(a) The Agent shall have received, on the Closing Date in form and
substance satisfactory to the Agent and the Lenders the following:
(i) executed originals of each of this Agreement and the Notes and
the other Loan Documents, together with all schedules and exhibits
thereto in form and substance satisfactory to the Agent and the
Lenders;
(ii) favorable written opinion or opinions of counsel to the
Borrowers and each Subsidiary executing a Guaranty dated the Closing
Date, addressed to the Agent and the Lenders and satisfactory to Smith
Helms Mulliss & Moore, L.L.P., special counsel to the Agent,
substantially in the form of Exhibits K-1 and K-2 attached hereto;
(iii) resolutions of the board of directors (or of the appropriate
committee thereof) of each of the Borrowers certified by its secretary
or assistant secretary as of the Closing Date, appointing the initial
Authorized Representatives and approving and adopting the Loan
Documents to be executed by such Borrower, and authorizing the
execution and delivery thereof; specimen signatures of officers of each
Borrower executing the Loan Documents, certified by the Secretary or
Assistant Secretary of such Borrower;
(iv) the charter documents of each of the Borrowers certified as of
a recent date by the Secretary of State or comparable official of its
jurisdiction of organization;
(v) the by-laws of each of the Borrowers certified as of the
Closing Date as true and correct by the secretary or assistant
secretary of such Borrower;
(vi) certificates issued as of a recent date by the Secretary of
State or comparable official of the jurisdiction of the formation of
each of the Borrowers as to the corporate good standing of such
Borrower therein;
(vii) appropriate certificates of qualification to do business and
of corporate good standing with respect to each of the Borrowers issued
as of a recent date by the Secretary
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of State or comparable official of each jurisdiction in which the
failure to be qualified to do business could materially adversely
affect the business, operations or conditions, financial or
otherwise, of such Borrower;
(viii) with respect to each Significant Subsidiary executing a
Guaranty, each of the opinions, certificates and documents described in
subsections (ii) through (vii) above;
(ix) notice(s) of appointment of the initial Authorized
Representatives;
(x) all fees payable by the Borrowers on the Closing Date to the
Agent and the Lenders;
(xi) evidence satisfactory to the Agent of the repayment in full
and termination of each of the Prior Credit Facilities substantially
simultaneously with the making of the initial Domestic Advance and the
initial Canadian Advance hereunder, and the agreement to terminate any
Liens on assets securing any obligations under any of the Prior Credit
Facilities which termination shall be effected with reasonable
promptness following the Closing Date; and
(xii) such other documents, instruments, certificates and opinions
as the Agent or any Lender may reasonably request on or prior to the
Closing Date in connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Agent or
the Lenders any material adverse change in the business, financial
condition, operations, properties or prospects of TDC and its
Subsidiaries, taken as a whole, since January 31, 1996;
(ii) no litigation shall be pending or threatened which would be
likely to materially and adversely affect the business, financial
condition, operations, properties or prospects of TDC and its
Subsidiaries, taken as a whole, or which could reasonably be expected
to restrain or enjoin, impose burdensome conditions on, or otherwise
materially and adversely (A) affect the ability of any of TDC and its
Subsidiaries to fulfill their respective obligations under the Loan
Documents, or (B) impair any interests or rights of the Agent or any
Lender under the Loan Documents; and
(iii) TDC and its Subsidiaries shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under,
conflict with or violation of
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(A) any applicable law, rule, regulation,
order or decree of any Governmental Authority or arbitral authority or
(B) any agreement, document or instrument to which any of TDC or any
Subsidiaries is a party or by which any of them or their properties is
bound, except for such approvals, consents, waivers, filings and
notices the receipt, making or giving of which is not, in the good
faith judgment of the Agent and the Lenders, material to the
enforcement of any of the Loan Documents, or the financial condition,
business or operations of TD and its Subsidiaries, taken as a whole.
5.02 Conditions of Loans. The obligations of the Lenders to make any Loans,
and of NationsBank or CIBC to issue Letters of Credit or create Acceptances
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Agent shall have received a notice of such borrowing
or request if required by Sections 2.01 or 2.15 hereof or Section 3.01;
(b) the representations and warranties of the Borrowers set
forth in Article VII hereof and in each of the other Loan Documents
shall be true and correct on and as of the date of such Advance or Loan
or issuance of such Letter of Credit or Acceptance, as the case may be,
with the same effect as though such representations and warranties had
been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 7.02(c)
shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 8.01 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrower shall have executed and delivered to NationsBank or CIBC, as
applicable, a Letter of Credit Application in form and content
acceptable to NationsBank or CIBC, as applicable, together with such
other instruments and documents as it shall request; provided that the
terms and conditions of this Agreement shall control if any conflict
should exist between the terms of such Letter of Credit Application and
this Agreement;
(d) in the case of the creation of a Domestic Acceptance, the
Multicurrency Facilities Borrower shall have executed and delivered to
NationsBank a General Acceptance Agreement for Domestic Acceptances and
a draft in form and content acceptable to NationsBank together with
such other instruments and documents as NationsBank shall reasonably
request;
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(e) at the time of each such Advance or Loan or issuance of
each Letter of Credit or Acceptance, as the case may be, no Default or
Event of Default specified in Article X hereof, shall have occurred and
be continuing;
(f) immediately after giving effect to a Domestic Advance or
Domestic Loan, a Domestic Acceptance or a Domestic Letter of Credit,
the Total Domestic Utilization shall not exceed the Total Domestic
Revolving Credit Commitment;
(g) immediately after giving effect to a Canadian Advance or
Canadian Loan, a Canadian Acceptance or a Canadian Letter of Credit,
the Total Canadian Utilization shall not exceed the Total Canadian
Revolving Credit Commitment;
(h) immediately after giving effect to a Swing Line Loan the
aggregate Swing Line Outstandings shall not exceed $15,000,000;
(i) immediately after giving effect to the issuance of any
Domestic Letter of Credit the Letter of Credit Outstandings shall not
exceed $75,000,000;
(j) immediately after giving effect to the issuance of any
Canadian Letter of Credit, the Canadian Letter of Credit Outstandings
shall not exceed $25,000,000; and
(k) immediately after giving effect to any Competitive Bid
Loan, the aggregate principal amount of outstanding Competitive Bid
Loans shall not exceed $25,000,000.
Each borrowing of Loans and each issuance of a Letter of Credit and
Acceptance shall constitute a representation and warranty by the Borrowers that
the conditions set forth in clauses (b) and (e) above have been satisfied as of
the date thereof and that as of the date of such Advance or issuance of a Letter
of Credit or Acceptance there has not been any material adverse change in the
business, operations or financial condition of TDC and its Subsidiaries.
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ARTICLE VI
Security
6.01 Guaranties. As support for the full and timely payment and performance
of all Obligations, the Borrowers shall on or before the Closing Date cause to
be delivered to the Agent (i) the unconditional guaranty of payment for the
benefit of the Multicurrency Facilities Lenders of all Obligations of the
Multicurrency Facilities Borrowers in connection with the Multicurrency
Facilities by the Significant Subsidiaries of TDC (other than TD France), and
(ii) the unconditional guaranty of payment by TDC and its Significant
Subsidiaries (other than TD Canada) for the benefit of the Canadian Facilities
Lenders of all Obligations of TD Canada in connection with the Canadian
Facilities.
6.02 Further Assurances. At the request of the Agent, each Subsidiary and
TDC will execute by its duly authorized officers, alone or with the Agent, any
certificate, instrument, statement or document and will procure any such
certificate, instrument, statement or document (and pay all connected costs)
which the Agent reasonably deems necessary to create, continue or preserve the
guaranty by such Subsidiary or TDC.
6.03 New Subsidiaries. As provided in Section 8.20 hereof, to the extent
allowed under this Agreement, if TDC acquires or forms a Significant Subsidiary,
TDC shall cause such Significant Subsidiary to execute a Guaranty of Obligations
as described in Section 6.01(i) hereof.
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ARTICLE VII
Representations and Warranties
7.01 Representations and Warranties as to Borrowers and Subsidiaries. Each
Borrower represents and warrants to and in favor of the Agents and each Lender
with respect to itself and to its Subsidiaries (which representations and
warranties shall survive the delivery of the documents mentioned herein and the
making of Loans and the issuance of Letters of Credit), that:
(a) Organization and Authority. (i) It is a corporation
duly organized and validly existing under the laws of the jurisdiction
of its incorporation;
(ii) it has the corporate power and authority to own its properties
and assets and to carry on its business as now being conducted and is
qualified to do business in every jurisdiction in which failure so to
qualify would have a material adverse effect on the business or
operations of TDC or its Subsidiaries;
(iii) it has the corporate power and authority to execute and
perform this Agreement, and to borrow hereunder (in the case of a
Borrower), and to execute and deliver each of the other Loan Documents
to which it is a party;
(iv) each Subsidiary executing a Guaranty has the power and
authority to execute, deliver and perform the Guaranty to which it is
a party; and
(v) when executed and delivered, each of the Loan Documents to
which such Borrower or any Subsidiary is a party will be valid and
binding obligations of the Borrower or such Subsidiary signatory
thereto, enforceable against the Borrower or such Subsidiary signatory
thereto, in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding at law or
in equity);
(b) Loan Documents. The execution, delivery and performance
by each Borrower and each Subsidiary of each of the Loan Documents to
which it is a party:
(i) have been duly authorized by all requisite
corporate action (including any required shareholder approval)
of such Borrower or its Subsidiaries, as the case may be,
required for the lawful execution, delivery and performance
thereof;
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(ii) do not violate any provisions of (1) applicable law,
(2) any order of any court or other agency of government
binding on the Borrower or its Subsidiaries or its or their
properties, (3) the charter documents or by-laws of the
Borrower or its Subsidiaries or (4) any provisions of any
indenture, agreement or other instrument to which the Borrower
or its Subsidiaries are a party, or by which the properties or
assets of the Borrower or its Subsidiaries are bound;
(iii) will not be in conflict with, result in a breach of
or constitute an event of default, or an event which, with
notice or lapse of time, or both, would constitute an event of
default, under any indenture, agreement or other instrument to
which the Borrower or its Subsidiaries are a party; and
(iv) will not result in the creation or imposition of any
Lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Borrower or any Subsidiary.
(c) Solvency. Each Borrower and each of its Subsidiaries
are Solven after giving effect to the transactions contemplated by this
Agreement and the other Loan Documents.
7.02 Representations and Warranties of TDC. TDC represents and warrants
with respect to itself and its Subsidiaries (which representations and
warranties shall survive the delivery of the documents mentioned herein and the
making of Loans) that:
(a) Subsidiaries and Stockholders. It has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 7.02(a)
hereto; Schedule 7.02(a) to this Agreement states as of the date hereof
the authorized and issued capitalization of each Subsidiary, the number
of shares of each class of capital stock issued and outstanding of each
such Subsidiary and the number and percentage of outstanding shares of
each such class of capital stock owned by TDC or by any such
Subsidiary; the outstanding shares of each such Subsidiary have been
duly authorized and validly issued and are fully paid and
nonassessable; and TDC and each such Subsidiary owns beneficially and
of record all the shares it is listed as owning in Schedule 7.02(a),
free and clear of any Lien.
(b) Ownership Interests. It does not own any interest in any
Person other than the Persons listed in Schedule 7.02(b) hereto;
(c) Financial Condition. (i) TDC has heretofore furnished to
each Lender an audited unqualified consolidated
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balance sheet of TDC
and its Subsidiaries as at January 31, 1996 and the notes thereto and
the related consolidated statements of income, cash flow and changes in
stockholders' equity for the Fiscal Year then ended as examined and
certified by Price Waterhouse L.L.P. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the
financial condition of TDC and the Subsidiaries as of the end of such
Fiscal Year and results of their operations and the changes in their
stockholders' equity for the Fiscal Year then ended, all in conformity
with Generally Accepted Accounting Principles applied on a Consistent
Basis. Except as disclosed therein or otherwise described or referred
to in Schedule 7.02(c), neither TDC nor any Subsidiary has, as of the
date hereof, any known and material direct liability.
(ii) since January 31, 1996, there has been no material adverse
change in the condition, financial or otherwise, of TDC and its
Subsidiaries or in the businesses, properties and operations of TDC and
its Subsidiaries, in each case, considered as a whole, nor have such
businesses or properties, taken as a whole, been materially adversely
affected as a result of any fire, explosion, earthquake, accident,
strike, lockout, combination of workers, flood, embargo or act of God;
(iii) except as set forth in Schedule 7.02(c) hereto, TDC and its
Subsidiaries have not incurred, other than in the ordinary course of
business, any material indebtedness, liabilities, obligations or
commitments, contingent or otherwise which remain outstanding or
unsatisfied;
(d) Title to Properties. TDC and its Subsidiaries have title
to all their respective real and personal properties subject to no
transfer restrictions, liens, mortgages, pledges, security interests,
encumbrances or charges of any kind, except for (i) the transfer
restrictions and liens described in Schedule 7.02(d) attached hereto,
and (ii) liens permitted under Section 9.06 hereof;
(e) Taxes. TDC and its Subsidiaries have filed or caused to be
filed all federal, state and local tax returns which are required to be
filed by them and except for taxes and assessments being contested in
good faith and against which satisfactory reserves have been
established, have paid or caused to be paid all taxes as shown on said
returns or on any assessment received by them, to the extent that such
taxes have become due;
(f) Other Agreements. Neither TDC nor any Subsidiary is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions materially
adversely affecting the business, properties
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or assets, operation or condition (financial or otherwise) of
TDC and the Subsidiaries, taken as a whole; or
(ii) in default in the performance, observance or
fulfillment of any of the material obligations, covenants or
conditions contained in any agreement or instrument to which
TDC or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could have, a
material adverse effect on the business, operations or
condition, financial or otherwise, of TDC and the Subsidiaries
taken as a whole;
(g) Litigation. Except as set forth in Schedule 7.02(g)
hereto, there is no action, suit or proceeding at law or in equity or
by or before any governmental instrumentality or agency or arbitral
body pending, or, to the best knowledge of TDC, threatened by or
against TDC or any Subsidiary or affecting TDC or any Subsidiary or any
properties or rights of TDC or any Subsidiary, which, if, determined
adversely to TDC or such Subsidiary, would materially adversely affect
the financial condition, business or operations of TDC and the
Subsidiaries taken as a whole;
(h) Margin Stock. Neither TDC nor any Subsidiary owns any
"margin stock" as such term is defined in Regulation U, as amended (12
C.F.R. Part 221), of the Board. The proceeds of the borrowings made
pursuant to Sections 2.01, 2.04, 2.15 and 3.01 hereof, the Letters of
Credit and the Acceptances will be used by TDC only for the purposes
set forth in Section 2.13 and Section 3.11 hereof. None of such
proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing
or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute
any of the Loans under this Agreement a "purpose credit" within the
meaning of said Regulation U or Regulation X (12 C.F.R. Part 224) of
the Board. Neither TDC nor any agent acting in its behalf has taken or
will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of
1934 or any state securities laws, in each case as in effect on the
date hereof;
(i) Investment Company. Neither TDC nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (15 U.S.C.
ss.80a-1, et seq.). The application of the proceeds of the Loans, the
Letters of Credit and the Acceptances and repayment thereof by TDC and
the performance by TDC of the transactions contemplated by
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this Agreement will not violate any provision of said Act, or any
rule, regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as in effect on the date hereof;
(j) Patents, Etc. TDC and its Subsidiaries own or have the
right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights,
tradenames, tradename rights, copyrights and know how necessary to the
conduct of their businesses as now conducted, without known material
conflict with any patent, license, franchise, trademark, trade secrets
and confidential commercial or proprietary information, tradename,
copyright, rights to trade secrets or other proprietary rights of any
other Person;
(k) No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or
on behalf of TDC or any Subsidiary in accordance with Section 5.01
hereof contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any
material respect;
(l) No Consents, Etc. Neither the respective businesses or
properties of TDC or any Subsidiary, nor any relationship between TDC
or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan
Documents and the transactions contemplated hereby is such as to
require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental or other authority
or any other Person on the part of TDC or any Subsidiary as a condition
to the execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan
Documents or if so, such consent, approval, authorization, filing,
registration or qualification has been obtained or effected, as the
case may be;
(m) ERISA.
(i) None of the employee benefit plans maintained at any
time by TDC or any Subsidiary or the trusts created thereunder has
engaged in a prohibited transaction which could subject any such
employee benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA or under any Foreign Benefit Law;
(ii) None of the employee benefit plans maintained at any
time by TDC or any Subsidiary which are employee
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pension benefit plans
and which are subject to Title IV of ERISA or any Foreign Benefit Law
or the trusts created thereunder has been terminated so as to result in
a material liability of TDC or any Subsidiary under ERISA or any other
Person exercising similar duties and functions under any Foreign
Benefit Law nor has any such employee benefit plan of TDC incurred any
liability to the Pension Benefit Guaranty Corporation established
pursuant to ERISA, other than for required insurance premiums which
have been paid; neither TDC nor any Subsidiary has withdrawn from or
caused a partial withdrawal to occur with respect to any Multi-employer
Plan; TDC and its Subsidiaries have made or provided for all
contributions to all such employee pension benefit plans which they
maintain and which are required as of the end of the most recent fiscal
year under each such plan; neither TDC nor any Subsidiary has incurred
any accumulated funding deficiency with respect to any such plan,
whether or not waived; nor has there been any reportable event, or
other event or condition, which presents a material risk of termination
of any such employee benefit plan by such Pension Benefit Guaranty
Corporation or other Person exercising similar duties and functions
under any Foreign Benefit Law;
(iii) The present value of all vested accrued benefits
under the employee pension benefit plans which are subject to Title IV
of ERISA or any Foreign Benefit Law, maintained by TDC or any
Subsidiary, did not, as of the most recent valuation date for each such
plan, exceed the then current value of the assets of such employee
benefit plans allocable to such benefits;
(iv) The consummation of the Loans and the issuance of the
Letters of Credit and Acceptances provided for in Article II and
Article III will not involve any prohibited transaction under ERISA or
violate any Foreign Benefit Law;
(v) To the best of TDC's knowledge, each employee pension
benefit plan subject to Title IV of ERISA or other Foreign Benefit Law,
maintained by TDC or any Subsidiary, has been administered in
accordance with its terms and is in compliance in all material respects
with all applicable requirements of ERISA and other applicable laws,
regulations and rules and any applicable Foreign Benefit Law;
(vi) There has been no withdrawal liability incurred with
respect to any Multi-employer Plan to which TDC or any Subsidiary is or
was a contributor;
(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them
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in ERISA, and the term "prohibited transaction" shall have the meaning
assigned to it in Code Section 4975 and ERISA;
(viii) Neither TDC nor any Subsidiary has any liability,
contingent or otherwise, under any plan or program or the equivalent
for unfunded post-retirement benefits, including pension, medical and
death benefits, which liability would have a material adverse effect on
the financial condition of TDC and its Subsidiaries taken as a whole;
(n) No Default. As of the date hereof, there does not exist
any Default or Event of Default hereunder;
(o) Hazardous Materials. Neither TDC nor, to the best of TDC's
knowledge, any previous owner or operator of any real property
currently owned or operated by TDC or any Subsidiary (collectively, the
"Property") or any other Person, has generated, stored, or disposed of
any Hazardous Material on any portion of the Property, or transferred
any Hazardous Material from the Property to any other location, giving
rise to any liability of TDC which would have a materially adverse
effect on TDC and the Subsidiaries taken as a whole. TDC and each
Subsidiary is in compliance with all applicable Environmental Laws and
neither TDC nor any Subsidiary has been notified of any action, suit,
proceeding or investigation which calls into question compliance by TDC
or any Subsidiary with any Environmental Laws or which seeks to
suspend, revoke or terminate any license, permit or approval necessary
for the generation, handling, storage, treatment or disposal of any
Hazardous Material.
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ARTICLE VIII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, TDC will and will cause
each Subsidiary to:
8.01 Financial Reports, Etc. (a) as soon as practical and in any event
within 120 days after the end of each Fiscal Year of TDC, deliver or cause to be
delivered to the Agents and each Lender (i) consolidated and consolidating
balance sheets of TDC and its Subsidiaries, and the notes thereto, and the
related consolidated and consolidating statements of income, cash flow and
changes in stockholders' equity and the respective notes thereto for such Fiscal
Year, setting forth in each case comparative financial statements for the
preceding Fiscal Year, all prepared in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis and containing, with respect
to the consolidated financial reports, opinions of Price Waterhouse L.L.P., or
other such independent certified public accountants selected by TDC and approved
by the Required Lenders, which are unqualified as to the scope of the audit
performed and as to the "going concern" status of TDC; (ii) a copy of TDC's Form
10K as filed with the Securities and Exchange Commission; and (iii) a
certificate of an Authorized Representative demonstrating compliance with
Sections 9.01, 9.02, 9.03, 9.04, 9.05, 9.06(iv) and (v), 9.13, 9.15 and 9.16 of
this Agreement, which certificate shall be in the form attached as Exhibit L;
(b) as soon as practical and in any event within 60 days after the end
of each quarterly period (except the last reporting period of the Fiscal Year),
deliver to the Agents and each Lender (i) consolidated and consolidating balance
sheets of TDC and its Subsidiaries, as of the end of such reporting period and
the related consolidated and consolidating statements of income, cash flow and
changes in stockholders' equity for such reporting period and for the period
from the beginning of the Fiscal Year through the end of such reporting period,
certified by an Authorized Representative as presenting fairly the financial
position of TDC and its Subsidiaries as of the end of such reporting period and
the results of their operations and the changes in their financial position for
such reporting period, in conformity with the standards set forth in Section
7.02(c)(i) with respect to interim financials, (ii) a copy of TDC's Form 10Q for
such quarterly period as filed with the Securities and Exchange Commission and
(iii) a certificate of an Authorized Representative containing computations for
such quarter similar to that required pursuant to Section 8.01(a)(iii);
(c) together with each delivery of the financial statements required by
Section 8.01(a) hereof, deliver to the Agents and each
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Lender a letter from TDC's accountants specified in Section 8.01(a) hereof
stating that in performing the examination necessary to render an opinion on the
financial statements delivered therewith, they obtained no knowledge of any
Default or Event of Default by TDC or any Subsidiary in the fulfillment of the
terms and provisions of this Agreement insofar as they relate to financial
matters (which at the date of such statement remains uncured); and if the
accountants have obtained knowledge of such Default or Event of Default, a
statement specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to TDC, TDC shall deliver to
the Agents, and each Lender, a copy of (i) all regular or special reports or
effective registration statements which TDC or any Subsidiary shall file with
the Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) all reports, proxy statements, financial statements
and other information distributed by TDC to its stockholders, bondholders or the
financial community in general, and (iii) any reports submitted to TDC or any of
its Subsidiaries by independent accountants in connection with any annual,
interim or special audit of TDC or any of its Subsidiaries;
(e) promptly, from time to time, deliver or cause to be delivered to
each Lender such other information regarding TDC's and each Subsidiary's
operations, business affairs and financial condition as such Lender may
reasonably request, including audited financial statements of any Subsidiary, to
the extent such statements exist. The Agents and the Lenders are hereby
authorized to deliver a copy of any such financial information delivered
hereunder to the Lenders (or any affiliate of any Lender) or to the Agent, to
any regulatory authority having jurisdiction over any of the Lenders pursuant to
any written request therefor, to any other Person who shall acquire or consider
the acquisition of a participation interest in or assignment of any Loan or the
Letters of Credit or Acceptances permitted by this Agreement;
8.02 Maintain Properties. Maintain all properties and other personal
property necessary to its operations in good working order and condition and
make all needed repairs, replacements and renewals as are necessary to conduct
its business in accordance with customary business practices;
8.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits and maintain
its license or qualification to do business as a foreign corporation and good
standing in each jurisdiction in which its ownership or lease of property or the
nature of its business where the failure to maintain such license or
qualification would have a material adverse effect on TDC and its Subsidiaries;
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8.04 Regulations and Taxes. Comply with or contest in good faith all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a lien against any of its properties except
liabilities being contested in good faith and against which adequate reserves
have been established;
8.05 Insurance. TDC shall, and shall cause each Subsidiary to, maintain
with financially sound and reputable insurers insurance with respect to its
properties and business and against such liabilities, casualties and
contingencies of such types and in such amounts as is customary in the case of
corporations engaged in the same or a similar business or having similar
properties similarly situated.
8.06 True Books. Keep true books of record and account in which full, true
and correct entries will be made of all of its dealings and transactions, and
set up on its books such reserves as may be required by Generally Accepted
Accounting Principles or other accounting principles applicable in the
jurisdiction of a Borrower or Subsidiaries organization or creation with respect
to all taxes, assessments, charges, levies and claims and with respect to its
business in general, and include such reserves in interim as well as year-end
financial statements.
8.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make full
and timely payment of the principal of and interest on the Notes and all other
Obligations whether now existing or hereafter arising; and (b) duly comply with
all the terms and covenants contained in all other instruments and documents
given to the Agent or any Lender pursuant to this Agreement.
8.08 Right Of Inspection. Permit any Person designated by any Lender, at
the Lender's expense, to visit and inspect any of the properties, corporate
books and financial reports of TDC and its Subsidiaries, and to discuss its
affairs, finances and accounts with its principal officers and independent
certified public accountants, all at such reasonable times, at reasonable
intervals and with reasonable prior notice. Information received by the Agent
and any Lender pursuant to such inspections shall be limited to distribution in
the same manner as described in Section 8.01(e) hereof.
8.09 Observe all Laws. Conform to and duly observe all laws, regulations
and other valid requirements of any regulatory authority with respect to the
conduct of its business, the failure of which to observe would have a material
adverse effect on its business.
8.10 Covenants Extending to Subsidiaries. Cause each of its Subsidiaries to
do with respect to itself, its business
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and its assets, each of the things required of TDC in Sections 8.02 through
8.09, inclusive.
8.11 Officer's Knowledge of Default. Upon an officer of TDC obtaining
knowledge of any Default or Event of Default hereunder or under any other
obligation of TDC or any Subsidiary, cause such officer to promptly notify the
Agents of the nature thereof, the period of existence thereof, and what action
TDC proposes to take with respect thereto.
8.12 Suits or Other Proceedings. Upon an officer of TDC obtaining knowledge
of any litigation, dispute or proceedings being instituted or threatened against
TDC or its Subsidiaries, or any attachment, levy, execution or other process
being instituted against any assets of TDC or its Subsidiaries in an amount
greater than $500,000 not otherwise covered by insurance, promptly deliver to
the Agents written notice thereof stating the nature and status of such
litigation, dispute, proceeding, levy, execution or other process.
8.13 Environmental Reports. Promptly provide to the Agents true, accurate
and complete copies of any and all documents, including reports, submissions,
notices, orders, directives, findings and correspondence made by TDC or any
Subsidiary to the United States Environmental Protection Agency ("EPA"), the
United States Occupational Safety and Health Administration ("OSHA") or to any
other federal, state or local authority pursuant to any federal, state or local
law, code or ordinance and all rules and regulations promulgated thereunder
which require informational submissions concerning environmental, health or
safety matters.
8.14 Notice of Discharge of Hazardous Material or Environmental Complaint.
Give to the Agents immediate written notice of any complaint, order, directive,
claim, citation or notice by any governmental authority or any Person to TDC,
any Subsidiary or any successor with respect to (i) air emissions, (ii) spills,
releases or discharges to soils or improvements located thereon, surface water,
groundwater or the sewer, septic system or waste treatment, storage or disposal
systems servicing the Property, (iii) noise emissions, (iv) solid or liquid
waste disposal, or (v) the use, generation, storage, transportation or disposal
of Hazardous Material. Such notices shall include, among other information, the
name of the party who filed the claim, the nature of the claim and the actual or
potential amount of the claim. TDC shall promptly comply with its obligations
under law with regard to such matters. However, TDC shall not be obligated to
give such notice to Agent of discharge or existence of any Hazardous Material
which occurs legally in accordance with and pursuant to the terms and conditions
of a valid governmental permit, license, certificate or approval therefor.
8.15 Indemnification. The Borrowers hereby jointly and severally agree to
defend, indemnify and hold the Agents and
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Lenders harmless from and against any and all claims, losses, liabilities,
damages and expenses (including, without limitation, cleanup costs and
reasonable attorneys' fees including those arising by reason of any of the
aforesaid or an action against TDC or any Subsidiary under this indemnity)
arising directly or indirectly from, out of or by reason of the handling,
storage, treatment, emission or disposal of any Hazardous Material by or in
respect of TDC or any Subsidiary or property owned or leased by TDC or any
Subsidiary. The provisions of this Section 8.16 shall survive repayment of the
Obligations, occurrence of the Revolving Credit Termination Date and expiration
or termination of this Agreement. This indemnity shall not apply to the extent
of damages caused to Agent, Lenders or others by Agent or Lenders.
8.16 Further Assurances. At its cost and expense, upon request of either of
the Agents, duly execute and deliver or cause to be duly executed and delivered,
to the Agents such further instruments, documents, certificates, and do and
cause to be done such further acts that may be reasonably necessary or advisable
in the opinion of the Agents to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
8.17 ERISA Requirement. Comply with all material requirements of ERISA, to
the extent applicable, and any Foreign Benefit Law applicable to it and furnish
to the Agents as soon as possible and in any event (i) within thirty (30) days
after TDC or duly appointed administrator of a employee benefit plan knows or
has reason to know that any reportable event or other event under any Foreign
Benefit Law with respect to any employee benefit plan has occurred, written
statement of an Authorized Representative describing in reasonable detail such
reportable event or other event under any Foreign Benefit Law and any action
which TDC proposes to take with respect thereto, together with a copy of the
notice of such reportable event given to the PBGC or a statement that said
notice will be filed with the annual report of the United States Department of
Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that TDC or any Subsidiary
may receive from the PBGC relating to the intention of the PBGC to terminate any
employee benefit plan or plans or to appoint a trustee to administer any such
plan, and (iii) within 10 days after a filing with the PBGC pursuant to Section
412(n) of the Code of a notice of failure to make a required installment or
other payment with respect to a plan, a certificate of an Authorized
Representative setting forth details as to such failure and the action that TDC
or its Subsidiary proposes to take with respect thereto, together with a copy of
such notice given to the PBGC.
8.18 Continued Operations. Continue at all times (i) to maintain the chief
executive offices and principal place of business of TDC at 5350 Tech Data
Drive, Clearwater, Florida 34620 (ii) continue to conduct and cause each
Subsidiary to conduct its
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business and engage principally in the same line or lines of business
substantially as heretofore conducted, and (iii) preserve, protect and maintain
free from liens its material patents, copyrights, licenses, trademarks,
trademark rights, trade names, trade name rights, trade secrets and know-how
necessary or useful in the conduct of its operations.
8.19 Use of Proceeds. Use the proceeds of the Loans, Letters of Credit and
Acceptances solely for the purposes specified in Articles II and III hereof, as
applicable.
8.20 New Subsidiaries. (a) Simultaneously with the formation of any
Significant Subsidiary or the acquisition of any Significant Subsidiary
permitted by the terms of this Agreement or at any time a Subsidiary becomes a
Significant Subsidiary, cause to be delivered to the Agent for the benefit of
the Lenders each of the following:
(i) a guarantee agreement of each Significant Subsidiary,
each duly executed by such Significant Subsidiary substantially in the
form of the Guaranty;
(ii) an opinion of counsel to the Borrowers and the Significant
Subsidiaries (which may be an employee of TDC) dated as of the date of
delivery of the documents provided in the foregoing clause (i) and
addressed to the Agent and the Lenders, in form and substance
reasonably acceptable to the Agent and the Lenders (which opinion may
include assumptions and qualifications of similar effect to those
contained in the opinions of counsel delivered pursuant to Section
5.01(b) hereof), to the effect that:
(A) such Significant Subsidiary is duly organized,
validly existing and in good standing in the jurisdiction of
its incorporation, has the requisite corporate power and
authority to own its properties and conduct its business as
then owned and then proposed to be conducted and is duly
qualified to transact business and is in good standing as a
foreign corporation in each other jurisdiction in which the
character of the properties owned or leased, or the business
carried on by it, requires such qualification; and
(B) the execution, delivery and performance of the
documents described in clause (i) of this Section 8.20 to
which such Significant Subsidiary or its parent is a signatory
have been duly authorized by all requisite corporate action
(including any required shareholder approval), such documents
have been duly executed and delivered and constitute valid and
binding obligations of such Significant Subsidiary or its
parent, as the case may be, enforceable against such
Subsidiary or its parent in accordance with its terms, subject
to the effect of
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any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the
effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding at
law or in equity); and
(ii) current copies of the charter and bylaws of such Significant
Subsidiary, minutes of duly called and conducted meetings (or duly
effected consent actions) of the Board of Directors (and, if required
by such charter, bylaws or by applicable laws, of the shareholders) of
such Significant Subsidiary and its parent authorizing the actions and
the execution and delivery of documents described in clauses (i) and
(ii) of this Section 8.20 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the Agent to
the Lenders) that such Significant Subsidiary is Solvent as of such
date and after giving effect to its Guaranty.
(b) If at any time the sum of the total assets or total revenues of
Subsidiaries that have not executed and delivered to the agent a Guaranty
exceeds in the aggregate $2,000,000, TDC shall promptly cause there to be
delivered to the Agent one or more additional Guaranties of Subsidiaries that do
not constitute Significant Subsidiaries in order that after giving effect to
such additional Guaranties, the sum of the total assets or total revenues, in
either or both cases, of Subsidiaries not having delivered a Guaranty does not
exceed in the aggregate $2,000,000.
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ARTICLE IX
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, TDC will not, nor will it
permit any Subsidiary to:
9.01 Asset Coverage Ratio. Permit at any time the Consolidated Asset
Coverage Ratio to be less than 1.25 to 1.00.
9.02 Net Worth. Permit at any time Consolidated Tangible Net Worth to be
less than the sum of (a) $270,000,000, plus (b) on a cumulative basis, (with no
reduction for net losses during such period) 75% of Consolidated Net Income for
each fiscal quarter beginning on April 30, 1996. In addition, after the date
hereof, such minimum level of Consolidated Tangible Net Worth shall be increased
by 100% of the net proceeds received by the Borrower from the sale of any shares
of capital stock.
9.03 Indebtedness to Total Capital. Permit the ratio of Consolidated Funded
Indebtedness to the Consolidated Total Capital to exceed .63 to 1.00 from the
Closing Date through January 31, 1997 and .60 to 1.00 at any time thereafter.
9.04 EBIT to Interest Expense. Permit the ratio of Consolidated EBIT to
Consolidated Interest Expense for the Four-Quarter Period immediately preceding
the date of computation to be less than 2.50 to 1.00 at any time.
9.05 Lease Expense Ratio. Permit at any time the ratio of the (i) sum of
Consolidated EBIT plus Consolidated Lease Expense for the Four-Quarter Period
immediately preceding the date of computation to (ii) the sum of Consolidated
Interest Expense plus Consolidated Lease Expense for the Four-Quarter Period
immediately preceding the date of computation to be less than 2.00 to 1.00.
9.06 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(i) Indebtedness existing as of the date hereof which is set forth
in Schedule 9.06 attached hereto;
(ii) Indebtedness arising in connection with this Agreement;
(iii) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iv) Indebtedness incurred to purchase personal property provided
such Indebtedness is secured only by the property so
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acquired and does not exceed the actual cost of such property;provided
that the total outstanding amount of all such Indebtedness shall not
exceed at any time $15,000,000;
(v) Indebtedness, including the Indebtedness permitted under
clause (iv) of this Section 9.06, not exceeding in the aggregate amount
at any time outstanding $50,000,000, so long as after giving effect
thereto no Default or Event of Default exists hereunder; and
(vi) any obligations arising under the Transfer and Administration
Agreement.
9.07 Liens. Incur, create or permit to exist any pledge, Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by Borrower or any of its Subsidiaries,
other than
(i) Liens existing as of the date hereof which are set forth in
Schedule 7.02(d) attached hereto;
(ii) Liens on that equipment acquired with Indebtedness permitted
under Section 9.06(iv) hereof;
(iii) Liens on Receivables arising in connection with the Trade
Receivable Purchase Facility;
(iv) any unfiled lien of materialmen, mechanics, workmen,
warehousemen, carriers, landlords or repairmen; provided that if such a
lien shall be perfected and shall not be contested in good faith, it
shall be discharged of record immediately by payment, bond or
otherwise;
(v) tax liens which are being contested in good faith, or which
constitute liens for taxes the payment of which is not yet required;
and
(vi) easements, restrictions, defects in title, covenants and
similar encumbrances in respect of real estate as do not render title
thereto uninsurable or detract from or interfere in any material
respect with the use of such property subject thereto in connection
with the business of the Borrower or any of its Subsidiaries.
9.08 Transfer of Assets. Sell, lease, transfer or otherwise dispose of any
item of property or asset except (i) sales, leases, transfers or other
dispositions in the ordinary course of business, (ii) sales and dispositions of
assets or property which are obsolete, worn out or no longer useful in
Borrower's business, (iii) sales or transfers of receivables related to the
Transfer and Administration Agreement, (iv) the inter-company transfer or sales
of receivables, inventory or other assets to Subsidiaries who have guaranteed
payment of the Obligations and (v) undeveloped real
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property located in Clearwater, Florida and a contract for the acquisition
of real property each of which shall be transferred to the Trustee and become
subject to the TDC TROL.
9.09 Investments. Purchase, own, invest in or otherwise acquire, directly
or indirectly, any stock or other securities, or make or permit to exist any
interest whatsoever in any other Person or permit to exist any loans or advances
to any Person; provided, TDC and its Subsidiaries may maintain investments or
invest in
(i) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations guaranteed by the
United States of America or any agency or instrumentality thereof,
provided that such obligations mature within one year from the date of
acquisition thereof;
(ii) demand deposits, time deposits or certificates of deposit
issued by any of the Lenders or in certificates of deposit maturing
within one year from the date of acquisition issued by a bank or trust
company organized under the laws of the United States or any state
thereof having capital surplus and undivided profits aggregating at
least $400 million and being rated A-3 or better by Standard & Poors or
A or better by Moody's Investors Services, Inc.;
(iii) commercial paper rated A-1 or better by Standard & Poors
or P-1 or better by Moody's Investors Services, Inc. (Commercial
Paper Record);
(iv) one or more Subsidiaries, all of the issued and outstanding
capital stock of which is owned beneficially and of record by TDC or by
a wholly-owned Subsidiary of TDC, created or acquired in compliance
with the provisions of Section 8.22 hereof;
(v) shares of capital stock owned by TDC and each Subsidiary as
listed on Schedule 7.02(a);
(vi) investments existing as of the date hereof which are set forth
in Schedule 7.02(b) attached hereto; and
(vii) loans by TDC or a wholly-owned Subsidiary of TDC to another
wholly-owned Subsidiary of TDC or TDC.
9.10 Merger or Consolidation. (a) Consolidate with or merge into any other
Person, or (b) permit any other Person to merge into TDC if after giving effect
to the merger of any Person into TDC (i) a Default or Event of Default would
exist under this Agreement or (ii) TDC is not the surviving entity. Any
Subsidiary of TDC may merge with and into any other entity if the survivor is a
Subsidiary of TDC.
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9.11 Transactions with Affiliates. Enter into any transaction after the
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any stockholder, officer or director of TDC or any Subsidiary (other than TDC or
another Subsidiary), except (a) that directors, shareholders, officers and
employees of TDC and the Subsidiaries may render services to TDC or the
Subsidiaries for compensation at the same rates generally paid by corporations
engaged in the same or similar businesses for the same or similar services and
(b) in the ordinary course of and pursuant to the reasonable requirements of
TDC's (or any Subsidiary's) business consistent with past practice of TDC and
its Subsidiaries and upon fair and reasonable terms no less favorable to TDC (or
any Subsidiary) than would be obtained in a comparable arm's-length transaction
with a Person not a stockholder, officer or director.
9.12 ERISA. With respect to all employee pension benefit plans maintained
by TDC or any Subsidiary:
(i) terminate any of such employee pension benefit plans so as
to incur any liability in excess of $500,000 to the Pension Benefit
Guaranty Corporation established pursuant to ERISA or to any other
Person exercising similar duties and functions under any Foreign
Benefit Law;
(ii) allow or suffer to exist any prohibited transaction involving
any of such employee pension benefit plans or any trust created
thereunder which would subject TDC or a Subsidiary to a tax or penalty
or other liability (A) on prohibited transactions in excess of $500,000
imposed under Internal Revenue Code Section 4975 or ERISA or (B) under
any Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan any
contribution which it is obligated to pay under the terms of such plan;
(iv) allow or suffer to exist any accumulated funding deficiency,
whether or not waived, with respect to any such employee pension
benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation of any such
employee pension benefit plan that is a Single Employer Plan, which
termination could result in any liability (A) to the Pension Benefit
Guaranty Corporation or (B) under any Foreign Benefit Law; or
(vi) incur any withdrawal liability with respect to any
Multi-employer Plan which is not fully funded.
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9.13 Capital Expenditures. Make or become committed to make, directly or
indirectly, for any Fiscal Year (on a non-cumulative basis, to the effect that
expenditures permitted but not made in any Fiscal Year may not be made in any
subsequent Fiscal Year) expenditures for fixed or capital assets (including,
without limitation, Capital Leases) amounting in the aggregate for TDC and its
Subsidiaries to more than $40,000,000 during any Fiscal Year.
9.14 Fiscal Year. Change its Fiscal Year.
9.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations or enter
into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except in regard to (i) Indebtedness evidenced by the
Notes, the aggregate amount of such outstanding Rate Hedging Obligation in no
event to exceed $290,000,000, provided, however, that the expiration or maturity
date of such Rate Hedging Obligation or agreement or arrangement relating
thereto, may not exceed the maturity date of the Notes; (ii) Indebtedness and
obligations arising pursuant to the Trade Receivable Purchase Facility, the
aggregate amount of such Rate Hedging Obligation not to exceed $300,000,000;
(iii) existing Indebtedness to Aetna Life and Casualty Company secured by TDC's
headquarters office building, all such Rate Hedging Obligations to be at rates,
in form and with counterparties reasonably acceptable to the Agent and (iv) up
to $55,000,000 of obligations arising under the TDC TROL.
9.16 Acquisition. (a) Enter into any agreement to acquire all or any part
of the assets or equity securities of any Person unless such acquisition
constitutes a Permitted Acquisition; and
(b) Enter into any agreement to acquire all or any part of the assets
or equity securities of any Person if the Cost of Acquisition of such assets or
Person exceeds 25% of Consolidated Tangible Net Worth.
9.17 Transfer and Administration Agreement. Amend, modify or change the
definition of Eligible Receivables as set forth in the Transfer and
Administration Agreement as it exists on the Closing Date.
9.18 Existing TD France Subsidiaries. Permit any loan or advance to or
additional investment in, the incurrence or existence of any Indebtedness or the
creation of any Lien by, or the payment of any dividend or distribution to any
shareholder or partner by, any Existing TD France Subsidiary, except TD France
may make payments for services of employees of Existing TD France Subsidiaries
rendered for the benefit of TD France.
9.19 Lease-Backs. Enter into any arrangements, directly or indirectly, with
any Person whereby any of the Borrowers or its Subsidiaries shall sell or
transfer any property, whether now owned or hereafter acquired, used or useful
in their business, in
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connection with the rental or lease of the property, so sold or transferred
or of other property which the Borrowers or their Subsidiaries intend to use for
substantially the same purpose or purposes as the property so sold or
transferred except (i) the sale of undeveloped real property located in
Clearwater, Florida, and (ii) property of the Borrowers and its Subsidiaries
having a book value of not to exceed in the aggregate $5,000,000.
9.20 Dividends or Distributions. Declare or pay dividends (other than stock
dividends) or make other stockholder distributions or purchases of its capital
stock, or make any distribution of capital, cash or property to any stockholders
or partners provided, however, that nothing in this Section 9.20 shall limit the
right of TDC to purchase shares of its common stock for the purposes of making
required contributions to its employee stock option plan so long as the
aggregate dollar amount spent for such stock in any Fiscal Year does not exceed
$5,000,000.
9.21 Negative Pledge. Except as set forth in Schedule 9.21, enter into any
agreement whereby any Borrower or a Subsidiary limits its rights to impose any
Lien or encumbrance on any of its assets.
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ARTICLE X
vents of Default and Acceleration
10.01 Evvents of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or Reimbursement Obligation or of
any fees on the date on which the same shall be due and payable; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Sections 8.07, 8.11 or
Article IX hereof; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or any
Borrower becomes aware of such default, or if a default shall be made
in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan
Documents or in any instrument or document evidencing or creating any
obligation, guaranty, lien or security interest in favor of the Agent
or Canadian Agent or delivered to any of the Lenders in connection with
or pursuant to this Agreement or any of the Obligations (beyond any
applicable grace period contained therein), or if any Loan Document
ceases to be in full force and effect (other than by reason of any
action by the Agent or any Lender), or if without the written consent
of the Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of any
action by the Agents or any Lender); or
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(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest or premium with respect to any
Indebtedness in an amount in excess of $500,000 (other than the Loans
and Reimbursement Obligations) of TDC or any Subsidiary or (ii) in the
performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by TDC or any Subsidiary, and such default shall continue for
more than the period of grace, if any, therein specified, or if such
default shall permit the holder of any such Indebtedness to accelerate
the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or in any writing, certificate, report or statement at
any time furnished to either of the Agents or any Lender by or on
behalf of TDC or any Subsidiary pursuant to or in connection with this
Agreement, or otherwise, shall be false or misleading in any material
respect when given; or
(g) if TDC or any Subsidiary shall be unable to pay its debts
generally as they become due; file a petition to take advantage of any
insolvency statute; make an assignment for the benefit of its
creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer seeking
receivership, liquidation, reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or similar law of
any other country or province thereof; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of TDC or any Subsidiary or of the whole or
any substantial part of its properties, or approve a petition filed
against TDC or any Subsidiary seeking receivership, liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state or similar law of any other country or
province thereof; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of TDC or any Subsidiary or of the whole or
any substantial part of its properties; or if there is commenced
against TDC or any Subsidiary any proceeding or petition seeking
receivership, liquidation, reorganization, arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or similar law of
any other country or province thereof, which proceeding or petition
remains undismissed for a period of 90 days; or if
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TDC or any Subsidiary takes any action to indicate its consent to or
approval of any such proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $500,000 is rendered against TDC or any Subsidiary, or
(ii) there is any attachment, injunction or execution against any of
TDC's or any Subsidiary's properties for any amount in excess of
$500,000; and such judgment, attachment, injunction or execution
remains unpaid, unstayed or undismissed for a period of sixty (60)
days; or
(j) if TDC or any Subsidiary shall, other than in the ordinary
course of business (as determined by past practices), suspend all or
any part of its operations material to the conduct of the business of
TDC and the Subsidiaries, taken as a whole; or
(k) if (i) TDC or any Subsidiary shall engage in any
prohibited transaction (as described in Section 9.12(ii) hereof)
involving any employee pension benefit plan of TDC or any Subsidiary,
(ii) any accumulated funding deficiency (as referred to in Section
9.12(iv) hereof), whether or not waived, shall exist with respect to
any Single Employer Plan, (iii) a reportable event (as referred to in
Section 9.12(v) hereof) (other than a reportable event for which the
statutory notice requirement to the Pension Benefit Guaranty
Corporation has been waived by regulation) shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed to administer or to terminate, any Single Employer
Plan, which reportable event or institution or proceedings is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Single Employer Plan for purposes of Title IV of
ERISA, and in the case of such a reportable event, the continuance of
such reportable event shall be unremedied for thirty (30) days after
notice of such reportable event pursuant to Section 4043(a), (c) or (d)
of ERISA is given, as the case may be, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) TDC or any
Subsidiary shall withdraw from a Multi-employer Plan for purposes of
Title IV of ERISA, and, as a result of any such withdrawal, TDC or any
Subsidiary shall incur withdrawal liability to such Multi-employer
Plan, or (vi) any other event or condition shall occur or exist; and in
each case in clauses (i) through (vi) of this Section 10.01(k), such
event or condition, together with all other such events or conditions,
if any, could subject TDC or any Subsidiary to any tax, penalty or
other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of TDC
and the Subsidiaries, taken as a whole, and in each such case the event
or condition is not remedied to the satisfaction of the Required
Lenders within ninety (90) days after the earlier of
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(i) receipt of notice of such event or condition by the
Authorized Representative from the Agent or (ii) TDC becomes aware of
such event or condition; or
(l) if TDC or any Subsidiary shall breach any of the terms or
conditions of any agreement under which any Rate Hedging Obligation
permitted pursuant to Section 9.15 is created and such breach shall
continue beyond any grace period, if any relating thereto pursuant to
the terms of such Obligation; or TDC shall disaffirm or seek to
disaffirm any such agreement or any of its obligations thereunder; or
(m) if a Termination Event (as defined in the Transfer and
Administration Agreement) shall occur under the Transfer and
Administration Agreement which Termination Event is not cured or
waived;
(n) if there shall occur any Change of Control of TDC or any
Significant Subsidiary; or
(o) if there shall occur any event of default under the TDC
TROL, which is not cured within any grace period;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall then be continuing,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders to make further
Loans or issue Letters of Credit or Acceptances terminated,
whereupon the obligation of each Lender to make further Loans
or issue Letters of Credit or Acceptances, hereunder shall
terminate immediately, and (ii) the Agent shall at the
direction of the Required Lenders, at their option, declare by
notice to the Borrowers any or all of the Obligations to be
immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrowers to the Lenders, shall forthwith become immediately
due and payable without presentment, demand, protest, notice
or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any
instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the
above, if there shall occur an Event of Default under clause
(g) or (h) above, then the obligation of the Lenders to lend
hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Agent or the Required Lenders
or notice to the Agent or the Lenders; and
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(B) Borrowers shall, upon demand of Agent deposit
cash with the Agent in an amount equal to the amount of any
Letters of Credit and Acceptances remaining undrawn or unpaid,
as collateral security for the repayment of any future
drawings or payments under such Letters of Credit and
Acceptances, and Borrowers shall forthwith deposit and pay
such amounts and such amounts shall be held by Agent pursuant
to the terms of the LC/Acceptance Account Agreement;
10.02 Agent to Act. In case any one or more Events of Default shall occur
and be continuing, the Agent and the Canadian Agent may, and at the direction of
the Required Lenders shall, proceed to protect and enforce their rights or
remedies either by suit in equity or by action at law, or both, whether for the
specific performance of any covenant, agreement or other provision contained
herein or in any other Loan Document, or to enforce the payment of the
Obligations or any other legal or equitable right or remedy.
10.03 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agents is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right or
remedy shall be cumulative and shall be in addition to every other such right or
remedy contained herein and therein or now or hereafter existing at law or in
equity or by statute, or otherwise.
10.04 No Waiver. No course of dealing between the Borrowers and any Lender
or the Agents or any failure or delay on the part of any Lender or the Agents in
exercising any rights or remedies hereunder shall operate as a waiver of any
rights or remedies hereunder and no single or partial exercise of any rights or
remedies hereunder shall operate as a waiver or preclude the exercise of any
other rights or remedies hereunder or of the same right or remedy on a future
occasion.
10.05 Default. The Agent and the Lenders shall have no right to accelerate
any of the Loans upon the occurrence of any Default which shall not also
constitute an Event of Default; provided, however, nothing contained in this
sentence shall in any respect impair or adversely affect the right, power and
authority of the Agent and the Lenders (i) to take any action expressly required
or permitted to be taken under the Loan Documents upon the occurrence of any
Default (and including any action or proceeding which the Agent may determine to
be necessary or appropriate in furtherance of any such expressly authorized
action) and (ii) to take any action provided under the Loan Documents or
otherwise available by statute, at law or in equity upon the occurrence of any
Default.
10.06 Allocation of Proceeds. If an Event of Default has occurred and is
continuing, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by
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the Agent or the Canadian Agent, or both, hereunder in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrowers hereunder shall be applied by the Agent or Canadian Agent in the
following order:
(i) amounts due to the Agents, the Lenders, NationsBank and
CIBC pursuant to Sections 2.10, 2.22, 3.09, 3.17, 8.16, 12.06 and 12.13 hereof;
(ii) amounts due to (A) NationsBank pursuant to Section 2.23,
(B) CIBC pursuant to Section 3.18, and (C) the Agent pursuant to Section 11.11
hereof;
(iii) payments of interest on Loans, to be applied for the ratable
benefit of the Lenders, without distinction or preference as between Canadian
Loans and Domestic Loans;
(iv) payments of principal on Loans, to be applied for the
ratable benefit of the Lenders, without distinction or preference as between
Canadian Loans and Domestic Loans;
(v) payment of cash amounts to the Agent for deposit to the
Borrower's Account pursuant to Section 10.01(B) hereof;
(vi) payment of Obligations owed Lenders pursuant to Swap
Agreements on a pro rata basis according to amounts owed; and
(vii) payments of all other amounts due under this Agreement and
the other Loan Documents, if any, to be applied in accordance with each Lender's
pro rata share of all principal due to the Lenders without distinction or
preference as between Canadian Loans and Domestic Loans.
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ARTICLE XI
The Agents
11.01 Appointment. Each Lender (including NationsBank in its capacity as
maker of Swing Line Loans and NationsBank and CIBC in their respective
capacities as issuers of the Letters of Credit and Acceptances) hereby
irrevocably designates and appoints NationsBank as the Agent of the Lenders and
CIBC as Canadian Agent for the Canadian Facilities Lenders under this Agreement,
and each of the Lenders hereby irrevocably authorizes NationsBank as the Agent
and CIBC as Canadian Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the Agent and Canadian Agent
by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Agent and Canadian Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any of the Lenders, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Agent and Canadian Agent.
11.02 Attorneys-in-fact. The Agent and Canadian Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent and Canadian Agent shall not be responsible for the gross
negligence or willful misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
11.03 Limitation on Liability. Neither of the Agents nor any of their
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither of the Agents nor any of their
affiliates shall be responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by TDC, any of its
Subsidiaries, or any officer or representative thereof contained in this
Agreement or in any of the other Loan Documents, or in any certificate, report,
statement or other document referred to or provided for in or received by either
of the Agents under or in connection with this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any of the other Loan Documents, or for any failure of any Borrower
or any Subsidiary to perform its obligations thereunder. The Agents shall not be
under any obligation to any of the Lenders to ascertain or to inquire as to the
observance or performance of any of the terms, covenants or conditions of this
Agreement or any of the other Loan Documents on the part of any Borrower or any
Subsidiary or to inspect the properties, books or records of TDC or its
Subsidiaries.
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11.04 Reliance. The Agents shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to TDC or any Subsidiary), independent accountants and other
experts selected by the Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless an Assignment and Acceptance
shall have been filed with and accepted by the Agent. Each of the Agents shall
be fully justified in failing or refusing to take any action under this
Agreement unless it shall first receive advice or concurrence of the Lenders or
the Required Lenders as provided in this Agreement or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agents shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement in accordance with a request of
the Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all present and
future holders of the Notes.
11.05 Notice of Default. The Agents shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has received notice from a Lender, an Authorized Representative or a
Borrower or any of the Subsidiaries referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such notice, the Agent shall
promptly give notice thereof to the Lenders. The Agents shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that, unless and until the Agents shall have
received such directions, the Agents may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable in the best interests of the Lenders.
11.06 No Representations. Each Lender expressly acknowledges that neither
the Agents nor any of their affiliates has made any representations or
warranties to it and that no act by either of the Agents hereafter taken,
including any review of the affairs of TDC or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by either of the Agents to
any Lender. Each Lender represents to the Agents that it has, independently and
without reliance upon either of the Agents or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the financial condition, creditworthiness,
affairs, status and nature of TDC and its Subsidiaries and made its own decision
to enter into
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this Agreement. Each Lender also represents that it will, independently and
without reliance upon either of the Agents or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and to make such investigation as it
deems necessary to inform itself as to the status and affairs, financial or
otherwise, of TDC and its Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agents
hereunder, the Agents shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of TDC or any of its Subsidiaries which may come into the
possession of the Agent or any of its affiliates.
11.07 Indemnification. The Lenders agree to indemnify the Agents in their
capacity as such (to the extent not reimbursed by TDC or any of its Subsidiaries
and without limiting any obligations of TDC or any of its Subsidiaries so to
do), ratably according to their respective Applicable Commitment Percentages as
then in effect (determined in the aggregate by treating the Domestic Revolving
Credit Facility and the Canadian Revolving Credit Facility as a single credit
facility for this purpose) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
(including without limitation at any time following the payment of the Note) be
imposed on, incurred by or asserted against either of the Agents in any way
relating to or arising out of this Agreement or any other document contemplated
by or referred to herein or the transactions contemplated hereby or any action
taken or omitted by either of the Agents under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from either of the
Agents' gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Obligations and the termination of
this Agreement.
11.08 Lender. The Agents and their affiliates may make loans to, accept
deposits from and generally engage in any kind of business with TDC and its
Subsidiaries as though it were not the Agent hereunder. With respect to its
Loans made or renewed by it and any Note issued to it, the Agents shall have the
same rights and powers under this Agreement as any Lender and may exercise the
same as though it were not the Agent, and the terms "Lender" and "Lenders"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity.
11.09 Resignation. If either of the Agents shall resign as an Agent under
this Agreement, then the Required Lenders may appoint a successor Agent or
Canadian Agent, as the case may be,
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for the Lenders (and so long as no Default or Event of Default exists, a
successor acceptable to the Borrower), which, in the case of the Agent, shall be
a commercial bank organized or licensed under the laws of the United States or
any state thereof, and, in the case of the Canadian Agent, shall be a bank
organized under the laws of Canada or a province thereof, having a combined
surplus and capital of not less than $500,000,000, whereupon such successor
Agent or Canadian Agent, as the case may be, shall succeed to the rights, powers
and duties of the former Agent and the obligations of the former Agent shall be
terminated and canceled, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement; provided, however,
that the former Agent's resignation shall not become effective until such
successor Agent has been appointed; provided, further, if the Required Lenders
(and so long as no Default or Event of Default has occurred, the Borrower)
cannot agree as to a successor Agent within ninety (90) days after such
resignation, the Agent or Canadian Agent, as the case may be, shall appoint a
successor Agent and the parties hereto agree to execute whatever documents are
necessary to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however in such event all
provisions of this Agreement and the Loan Documents, shall remain in full force
and effect. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
11.10 Sharing of Payments, etc. Subject to the provisions of Section 10.06,
each Lender agrees that if it shall, through the exercise of a right of banker's
lien, set-off, counterclaim or otherwise, obtain payment with respect to its
Obligations which results in its receiving more than its pro rata share of the
aggregate payments with respect to all of the Obligations which are to be paid
to any group of Lenders on a pro rata or ratable basis, then (A) such Lender
shall be deemed to have simultaneously purchased from the other Lenders a share
in their Obligations so that the amount of the Obligations held by each of the
Lenders shall be pro rata and (B) such other adjustments shall be made from time
to time as shall be equitable to insure that the Lenders share such payments
ratably; provided, however, that for purposes of this Section 11.10 the term
"pro rata" shall be determined with respect to both the Canadian Revolving
Credit Commitment or Domestic Revolving Credit Commitment, as applicable, of
each Lender and to the Total Canadian Revolving Credit Commitment or Total
Domestic Revolving Credit Commitment, as applicable, after subtraction in each
case of amounts, if any, by which any such Lender has not funded its share of
the outstanding Loans and Reimbursement Obligations. If all or any portion of
any such excess payment is thereafter recovered from the Lender which received
the same, the purchase provided in this Section 11.10 shall be rescinded to the
extent of such recovery, without interest. The Borrowers expressly consent to
the foregoing arrangements and agree that each Lender so purchasing a portion of
the other Lenders' Obligations may exercise
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all rights of payment (including, without limitation, all rights of
set-off, banker's lien or counterclaim) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
11.11 Fees. The Borrowers agree to pay to each of the Agents, for its
individual account, an annual Agent's fee pursuant to the terms of fee letters
dated as of the date hereof among the Borrowers and the Agents. Such fees shall
be paid in quarterly installments in advance on the last day of each January,
April, July and October, the first such installment to be paid on the Closing
Date.
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ARTICLE XII
Miscellaneous
12.01 Assignments and Participations
(a) At any time after the Closing Date each or any Lender may, with the
prior consent of the Agent and, so long as no Event of Default exists hereunder,
the Borrower, assign to one or more banks or financial institutions all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of the Notes payable to its order); provided, that
(i) each such assignment of rights and obligations in the Canadian Facilities or
the Multicurrency Facilities, respectively, shall be of a constant, and not a
varying, percentage of all of the assigning Lender's rights and obligations
(including Loans and Participations) under this Agreement with respect to the
Canadian Facilities or the Multicurrency Facilities, as applicable, (ii) for
each assignment involving the issuance and transfer of a Note, the assigning
Lender shall execute an Assignment and Acceptance and the Borrowers hereby
consent to execute as appropriate replacement Notes to give effect to the
assignment, (iii) each Canadian Facilities Lender must also be a Multicurrency
Facilities Lender after giving effect to any assignment hereunder, (iv) the
minimum Canadian Revolving Credit Commitment or Domestic Revolving Credit
Commitment which shall be assigned is $10,000,000 (together with which the
assigning Lender's applicable portion of Participations and the Canadian Letter
of Credit Commitment or Domestic Letter of Credit Commitment, as applicable,
shall also be assigned) and (v) such assignee shall have an office located in
the United States, provided, that an assignment by NationsBank shall not include
any portion of the Swing Line. Upon such execution, delivery, approval and
acceptance, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder or under such Notes have been
assigned or negotiated to it pursuant to such Assignment and Acceptance have the
rights and obligations of a Lender hereunder and a holder of such Notes and (y)
the assignor thereunder shall, to the extent that rights and obligations
hereunder or under such Notes have been assigned or negotiated by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement. No assignee shall have the right to further
assign its rights and obligations pursuant to this Section 12.01. Any Lender who
makes an assignment shall pay to the Agent a one-time administrative fee of
$3,500.00 which fee shall not be reimbursed by the Borrowers.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) the assignment made
under such Assignment and Acceptance is made under such Assignment and
Acceptance without
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recourse against the assignor; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of TDC or any Subsidiary or the performance or observance by
TDC or any Subsidiary of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements most recently made available whether pursuant to
Section 7.02(c) or Section 8.01 and such other Loan Documents and other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement, the Notes and the other Loan Documents as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of this Agreement are required to be performed by it as a Lender and a
holder of such Notes.
(c) The Agent shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Agent shall give prompt notice thereof to the Borrowers.
(e) Each Lender may sell participations to one or more banks or other
entities as to all or a portion of its rights and obligations under this
Agreement; provided, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any Note issued to it for the purpose of this
Agreement, (iv) such participations shall be in a minimum amount of $2,500,000
and shall include an allocable portion of such Lender's Participation, and (v)
the Borrowers, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and with regard to any and all payments to be
made under this Agreement; provided, that the participation agreement between a
Lender and its participants may provide that such Lender will obtain the
approval of such participant prior to such Lender's agreeing to any amendment or
waiver of any provisions of this Agreement which would (A) extend the maturity
of any Note, (B) reduce the interest rate hereunder, or (C) increase the
Canadian
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Revolving Credit Commitment or Domestic Revolving Credit Commitment of the
Lender granting the participation other than as permitted by Section 2.11 or
Section 3.10, and (vi) the sale of any such participations which require any
Borrower to file a registration statement with the United States Securities and
Exchange Commission or under the securities regulations or laws of any state
shall not be permitted.
(f) Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, any Lender may assign all or any portion of its
rights and obligations under the Loan Documents and the Notes to any affiliate
of such Lender, and any Lender may pledge all or any portion of its interest
under the Loan Documents and the Notes to the members of the Federal Reserve
Bank as security for obligations of such Lender to the Board, without the
consent of the Borrower, the Agent or any other Lender and without the payment
of the administrative fee referred to in Section 12.01(a) so long as such
assignment does not result in any withholding tax or other increased cost for
the Borrowers.
12.02. Notices Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of telephonic notice or notice by telecopy, telegram or telex (where
the receipt of such message is verified by return) expressly provided for
hereunder, when received at such telephone, telecopy or telex number as may from
time to time be specified in written or verbal notice to the other parties
hereto or otherwise received), or if sent prepaid by certified or registered
mail return receipt requested on the third Business Day after the day on which
mailed, addressed to such party at said address:
(a) if to any Borrower:
Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Attention: Chief Financial Officer
Telefacsimile: 813-538-5860
Telephone: 813-538-7825
(b) if to the Authorized Representative:
at the address set forth for
receipt of notices in the
notice of appointment thereof.
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(c) if to the Agent:
NationsBank, National Association
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Yousuf Omar/Lori Stone
Telefacsimile: 214-508-0980
Telephone: 214-508-3347
with a copy to:
NationsBank, National Association
Independence Center
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: 704-386-9923
Telephone: 800-788-7125
(d) if to NationsBank in its capacity as issuer of
the Domestic Letters of Credit or Domestic
Acceptances:
NationsBank, National Association
901 Main Street, 9th Floor
Dallas, Texas 75202
Attention: Alan Hanna,
Letter of Credit Department
Telefacsimile: 214-508-1814
Telephone: 214-508-3606
(e) if to the Canadian Agent:
Canadian Imperial Bank of Commerce
Head Office
Commerce Court West, 7th Floor
Toronto Ontario M5L 1A2
Attention: Manager Agent Administration
Telefacsimile: 416-980-5151
Telephone: 416-980-4077
(f) If to CIBC in its capacity as issuer of the Canadian
Letters of Credit or Canadian Acceptances:
Canadian Imperial Bank of Commerce
Corporate Client Support Center
Commerce Court West, 50th Floor
Toronto, Ontario M5L 1A2
Attention: Associate
Telefacsimile: 416-980-5855
Telephone: 416-214-8417
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(g) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each
Assignment and Acceptance
(h) if to any other Subsidiary signatory to a Guaranty,
at the address of such Subsidiary provided
in such Guaranty.
12.03 No Waiver. No failure or delay on the part of the Agent or any Lender
in the exercise of any right, power or privilege hereunder shall operate as a
waiver of any such right, power or privilege nor shall any such failure or delay
preclude any other or further exercise thereof. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law.
12.04 Setoff. Each Borrower agrees that the Agents and each Lender shall
have a right of setoff for all the Obligations of such Borrower against all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Agent or such Lender or otherwise in the possession or control
of the Agents or such Lender (other than for safekeeping or collateral accounts
for other Persons) for any purpose for the account or benefit of such Borrower
and including any balance of any deposit account or of any credit of such
Borrower with either of the Agents or such Lender, whether now existing or
hereafter established, hereby authorizing the Agents and each Lender at any time
or times with or without prior notice to apply such balances or any part thereof
to such of the Obligations of such Borrower to the Lenders then past due and in
such amounts as they may elect, and whether or not the collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or such Lender as
soon as the same may be put in transit to it by mail or carrier or by other
bailee.
12.05 Survival. All covenants, agreements, representations and warranties
made herein shall survive the making by the Lenders of the Loans and the
expiration of the Letters of Credit and Acceptances and the execution and
delivery to the Lenders of this Agreement and the Notes and shall continue in
full force and effect so long as any of Obligations remain outstanding or any
Lender has any commitment hereunder. Whenever in this Agreement, any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in this Agreement
and the Notes shall inure to the benefit of the successors and permitted assigns
of the
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Lenders or any of them. No Borrower shall assign any of its rights or
obligations hereunder without the consent of all Lenders.
12.06 Expenses. The Borrowers jointly and severally agree (a) to pay or
reimburse the Agents for all its reasonable and customary out-of-pocket costs
and expenses (including travel and copy expenses) incurred in connection with
the preparation, negotiation and execution of, and any amendment, supplement or
modification to, this Agreement or any of the other Loan Documents, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable and customary fees and disbursements of
counsel to the Agents, (b) to pay or reimburse the Agents and the Lenders for
all their costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, including without limitation,
the reasonable fees and disbursements of their counsel, (c) to pay, indemnify
and hold the Agents and the Lenders harmless from any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
failure to pay or delay in paying, documentary, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation of any amendment, supplement
or modification of, or any waiver or consent under or in respect of, this
Agreement, and (d) to pay, indemnify, and hold the Agents and the Lenders
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement or in any respect
relating to the transactions contemplated hereby or thereby, (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that the
Borrowers shall have no obligation hereunder with respect to indemnified
liabilities arising from (i) the willful misconduct or gross negligence of the
party seeking indemnification, (ii) legal proceedings commenced against either
of the Agents or any Lender by any security holder or creditor thereof arising
out of and based upon rights afforded any such security holder or creditor
solely in its capacity as such, (iii) any taxes imposed upon either of the
Agents or any Lender other than the documentary, stamp, excise and similar taxes
described in clause (c) above or any tax resulting from any Regulatory Change,
which tax would be payable to Lenders by any Borrower pursuant to Article IV
hereof, (iv) taxes imposed as a result of a transfer or assignment of any Note,
participation or assignment of a portion of its rights or (v) any taxes imposed
upon any transferee of any Note. The agreements in this subsection shall survive
repayment of the Notes and all other Obligations hereunder.
12.07 Amendments. No amendment, modification or waiver of any provision of
this Agreement or any of the Loan Documents and no consent by the Lenders to any
departure therefrom by any Borrower shall be effective unless such amendment,
modification or waiver
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shall be in writing and signed by the Agent, but only upon having received
the written consent of the Required Lenders, and the same shall then be
effective only for the period and on the conditions and for the specific
instances and purposes specified in such writing; provided, however, that, no
such amendment, modification or waiver
(i) which changes, extends or waives any provision of Section
11.10 or this Section 12.07, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any
Obligation, changes the definition of Required Lenders, which increases
or extends the Canadian Revolving Credit Commitment or Domestic
Revolving Credit Commitment of any Lender or which increase or extends
the Canadian Letter of Credit Facility or the Domestic Letter of Credit
Facility or the maximum amount of Competitive Bid Loans or which waives
any condition to the making of any Loan shall be effective unless in
writing and signed by each of the Lenders; provided, however, the
Required Lenders may in their sole discretion waive any Default or
Event of Default (other than any Event of Default under Section
10.01(a) or (b));
(ii) which releases a Borrower or any Subsidiary from its Guaranty
(other than in accordance with the terms of the Loan Documents) shall
be effective unless with the written consent of each of the Lenders;
(iii) which affects the rights, privileges, immunities or
indemnities of the Agent, shall be effective unless in writing and
signed by the Agent; or
(iv) which affects the rights, privileges, immunities or
indemnities of NationsBank or CIBC as maker of Swing Line Loans, issuer
of Letters of Credit and issuer of Acceptances, as applicable, shall be
effective unless with the written consent of NationsBank or CIBC, as
applicable.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on any Borrower in any case shall
entitle such Borrower to any other or further notice or demand in similar or
other circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.08 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be
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necessary in making proof of this Agreement to produce or account for more
than one such fully-executed counterpart.
12.09 Waivers by Borrowers. In any litigation in any court with respect to,
in connection with, or arising out of this Agreement, the Loans, any of the
Notes, any of the other Loan Documents, the Obligations, or any instrument or
document delivered pursuant to this Agreement, or the validity, protection,
interpretation, collection or enforcement thereof, or any other claim or dispute
howsoever arising between the Borrower and the Lenders or the Agent, (i) each
Borrower hereby waives the right to interpose any setoff, recoupment,
counterclaim or cross-claim in connection with any such litigation, irrespective
of the nature of such setoff, recoupment, counter-claim or cross-claim unless
such setoff, recoupment, counter-claim or cross-claim could not, by reason of
any applicable federal, state or province procedural laws, be interposed,
pleaded or alleged in any other action and (ii) the Borrower and each Lender and
the Agent hereby, to the maximum extent permitted by applicable law, waive trial
by jury in connection with any such litigation.
12.10 Termination. The termination of this Agreement shall not affect any
rights of the Borrowers, the Lenders or the Agents or any obligation of any
Borrower, the Lenders or either of the Agents, arising prior to the effective
date of such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Obligations arising prior to or after such termination have
been irrevocably paid in full. The rights granted to the Agents for the benefit
of the Lenders hereunder and under the other Loan Documents shall continue in
full force and effect, notwithstanding the termination of this Agreement, until
all of the Obligations have been paid in full after the termination hereof or
the Borrowers have furnished the Lenders and the Agent with an indemnification
satisfactory to the Agents and each Lender with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until payment in full of the Obligations unless
otherwise provided herein. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrowers shall be liable to, and shall indemnify and hold
such Lender harmless for, the amount of such payment surrendered until such
Lender shall have been finally and irrevocably paid in full. The provisions of
the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Lenders' rights under this
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Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
12.11 Governing Law
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE LOAN DOCUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT ANY ACTION,
SUIT OR PROCEEDING IS BROUGHT AGAINST TD CANADA WITHIN CANADA, THEN
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN.
(b) EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTIES OF
PINELLAS OR HILLSBOROUGH, STATE OF FLORIDA, UNITED STATES OF AMERICA
AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY
TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.02, ATTENTION GENERAL COUNSEL OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE ANY BORROWER OR ANY BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
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12.12 Representation and Warranty of the Lenders. Each Lender hereby
represents that no part of any funds used by such Lender to fund any Loan or
other extension of credit to the Borrowers made by it constitutes or will
constitute assets allocated to any "separate account" maintained by such Lender.
As used herein, the term "separate account" shall have the meaning assigned to
such term in Section 3 of ERISA.
12.13 Idemnification. In consideration of the execution and delivery of
this Agreement by the Agents and each Lender and the extension of the Canadian
Facilities and the Multicurrency Facilities, each Borrower hereby jointly and
severally indemnifies, exonerates and holds the Agent, the Canadian Agent and
each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan or
supported by any Letter of Credit or Acceptance;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the release by TDC or any of its
Subsidiaries of any Hazardous Material; or
(d) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by TDC or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, TDC or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of
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the Indemnified Liabilities which is permissible under applicable law.
12.14 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
12.15 Severability. If any provision of this Agreement or the other Loan
Documents shall be determined to be illegal or invalid as to one or more parties
hereto, then such provision shall remain in effect with respect to all parties,
if any, as to whom such provision is neither illegal nor invalid, and in any
event all other provisions hereof shall remain effective and binding on the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
WITNESS: TECH DATA CORPORATION
/S/ R. MALLOY MCKEITHEN
- -----------------------
/S/ WADE M. ZERREDY /S/ JEFFERY P. HOWELLS
_______________________ By:_____________________________
Name: Jeffery P. Howells
Title: Senior Vice President of
Finance and Chief Financial
Officer
WITNESS: TECH DATA FRANCE, S.N.C.
/S/ R. MALLOY MCKEITHEN
- -----------------------
/S/ WADE M ZERREDY /S/ JEFFERY P. HOWELLS
_______________________ By:_______________________________
Name: Jeffery P. Howells
Title: Managing Director
WITNESS: TECH DATA CANADA INC.
/S/ R. MALLOY MCKEITHEN
- -----------------------
/S/ WADE M. ZERREDY /S/ JEFFERY P. HOWELLS
_______________________ By:_______________________________
Name: Jeffery P. Howells
Title: Secretary and Chief Financial
Officer
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
/S/ NANCY J. PEARSON
By:______________________________
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
/S/ NANCY J. PEARSON
By:_______________________________
Name: Nancy J. Pearson
Title: Senior Vice President
Lending Office: NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Wire Transfer Instructions:
NationsBank, National Association
Dallas, Texas
ABA# 111000025
Reference Tech Data Corporation
Attention: Corporate Credit Support
Account No.: 136621-2163
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CIBC INC., as Domestic Facilities
Lender
/S/ KIM FEDERKING
By:_______________________________
Name: Kim Federking
Title: Director
Lending Office:
Corporate Client Support Center
Commerce Court West, 50th Floor
Toronto, Ontario M5L 1A2
Wire Transfer Instruction:
Corporate Client Support Centre
Canadian Imperial Bank of Commerce
Transit #00002
Swiftcode-CIBCCATT
CCSC Suspense
Account Number: Cdn$ 09-55515
US$ 05-42016
Attention: Jennie Harris
CANADIAN IMPERIAL BANK OF COMMERCE
as Canadian Agent
/S/ M. WARREN LOBO
By:_______________________________
Name: M. Warren Lobo
Title: Associate
CANADIAN IMPERIAL BANK OF COMMERCE
as Canadian Facilities Lender
/S/ MAURO SPAGNOLO
By:_______________________________
Name: Mauro Spagnolo
Title: Director
138
<PAGE>
NBD BANK
/S/ RICHARD C. ELLIS
By:________________________________
Name: Richard C. Ellis
Title: Vice President
Lending Office:
611 Woodward Avenue
Detroit, Michigan 48226
Wire Transfer Instructions:
NBD Bank
Detroit, Michigan
ABA# 072000326
Reference: Tech Data Corporation
Loan No. 2754042
Attention: Commercial Loan
Department
139
<PAGE>
THE BANK OF NOVA SCOTIA
/S/ FRANK F. SANDLER
By:_______________________________
Name: Frank F. Sandler
Title:Relationship Manager
Lending Office:
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Wire Transfer Instructions:
The Bank of Nova Scotia, New York
Agency
New York, New York 10006
ABA# 026002532
Reference: Tech Data Corporation
For further credit to:
Atlanta Agency
Attention: Cleve Bushey
Account No.: 0606634
THE BANK OF NOVA SCOTIA
/S/ P.J. ARMSTRONG
By:_______________________________
Name:P. J. Armstrong
Title:Senior Account Manager
Lending Office:
Etobicoke Commercial Banking Centre
195 The West Mall, Suite 100
Etobicoke, Ontario
Wire Transfer Instruction:
The Bank of Nova Scotia
Etobicoke, Ontario
ABA# BANK 002
Account No.: TRANSIT #22822
Reference: Tech Data Corporation
Attention: Phillip J. Armstrong
140
<PAGE>
BARNETT BANK OF PINELLAS COUNTY
/S/ MICHAEL S. CROWE
By:_______________________________
Name: Michael S. Crowe
Title: Senior Vice President
Lending Office:
One Progress Plaza
Suite 1800
St. Petersburg, Florida 33701
Wire Transfer Instructions:
Barnett Bank of Pinellas County
Clearwater, Florida 34615
ABA# 063106129
Acct. #02688534532
Reference: Tech Data Corporation
Attention: Commercial Loan
Accounting
Deborah A. Harris or
Bonita Haley
141
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
/S/ ALAIN PAPIASSE
By:_______________________________
Name: Alain Papiasse
Title: Executive Vice President
CREDIT LYONNAIS ATLANTA AGENCY
/S/ ALAIN PAPIASSE
By:_______________________________
Name: Alain Papiasse
Title: Executive Vice President
Lending Office:
303 Peachtree Street, N.E.
Suite 4400
Atlanta, Georgia 30308
Wire Transfer Instruction:
Credit Lyonnais New York Branch
New York, New York 10019
For further credit to:
Credit Lyonnais Atlanta Agency
ABA# 0260-0807-3
Account No.: 01.24173.0001.00
Reference: Tech Data
Attention: Loan Servicing
142
<PAGE>
ROYAL BANK OF CANADA
/S/ MICHAEL A. COLE
By:_______________________________
Name: Michael A. Cole
Title: Senior Manager
Lending Office:
600 Wilshire Boulevard
Suite 800
Los Angeles, California 90017
Wire Transfer Instructions:
Chase Manhattan Bank
New York, New York
ABA# 021000021
Account No. 920-01-033363
Account Name: Royal Bank of Canada
New York
For further credit to Account No.:
218-599-9
143
<PAGE>
PNCBank, KY, Inc.
/S/ JAMES D. NEIL
By:_______________________________
Name: James D. Neil
Title: Vice President
Lending Office:
500 W. Jefferson Street
Louisville, Kentucky 40202
Wire Transfer Instruction:
PNCBank, KY, Inc.
ABA# 083000108
Reference: Tech Data
Attention: Commercial Loan
Operations
Account No.: 3000991434
144
<PAGE>
SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
/S/ MARK WELLNER
By:_______________________________
Name: Mark Wellner
Title: Vice President
Lending Office:
150 2nd Avenue, North
Suite 450
St. Petersburg, Florida 33701
Wire Transfer Instruction:
SouthTrust Bank of Alabama,
National Association
Birmingham, Alabama
ABA# 062000080
Reference: for credit to Tech Data
Corporation
Customer No. 5147575
Attention: SE Banking
(205) 254-5698
145
<PAGE>
FIRST UNION NATIONAL BANK OF FLORIDA
/S/ JEFFERY E. NOLL
By:_______________________________
Name: Jeffery E. Noll
Title: Vice President
Lending Office:
214 Hogan Street
Jacksonville, Florida 32202
Wire Transfer Instruction:
First Union National Jacksonville
Jacksonville, Florida
ABA# 063-000-021
In favor of: First Union National
Bank of Florida
Reference: Tech Data Corporation
Attention: Alice Ricker
146
<PAGE>
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
/S/ RALF HOFFMANN
By:_______________________________
Name: Ralf Hoffmann
Title:Vice President
Lending Office:
31 West 52nd Street
New York, New York 10019
Wire Transfer Instruction:
Deutsche Bank AG New York Branch
New York, New York 10019
ABA# 026003780
Reference: Tech Data Corporation
Attention: John Quinn
147
<PAGE>
THE SAKURA BANK, LIMITED,
ATLANTA AGENCY
/S/ HIROYASU IMANISHI
By:_______________________________
Name: Hiroyasu Imanishi
Title: Vice President and Senior
Manager
Lending Office:
245 Peachtree Center Avenue, N.E.
Suite 2703
Atlanta, Georgia 30303
Wire Transfer Instruction:
Morgan Guaranty Trust Co. of
New York
New York, New York
ABA# 021 000 238
Account Name: The Sakura Bank, Ltd.,
New York
Account Number: 631-22-624
In favor of: MTKB, Atlanta
A/C 9000100-1
148
<PAGE>
EXHIBIT 21
----------
TECH DATA CORPORATION
SUBSIDIARIES OF THE REGISTRANT
State or other
Name of Percentage Jurisdiction of
Subsidiary Owned Incorporation
- ---------------------- ---------- ----------------
Tech Data Canada Inc. 100% Ontario, Canada
Tech Data Finance, Inc. 100% California
Tech Data France, SNC 100% France
Tech Data Brasil, Ltd. 100% Brazil
Tech Data Product Management, Inc. 100% Florida
Tech Data Pacific, Inc. 100% Florida
