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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(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)
FOR THE FISCAL YEAR ENDED JANUARY 31, 1999
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 33760
(Address of principal executive offices) (Zip Code)
---------------------------------------------
REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (727) 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. [X]
Aggregate market value of the voting stock held by non-affiliates of
the registrant as of March 31, 1999: $1,080,900,000
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, 1999
----- -----------------------------
Common stock, par value $.0015 per share 51,139,048
DOCUMENTS INCORPORATED BY REFERENCE
None
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<PAGE>
NOTE: The purpose of this amendment is to file exhibits previously indicated as
"to be filed by amendment" within the Tech Data Corporation Form 10-K
for the period ended January 31, 1999, filed on May 3, 1999.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON FORM 8-K
(a) See index to financial statements and schedules included in Item
8 of the Tech Data Corporation Form 10-K for the period ended
January 31, 1999 filed on May 3, 1999.
(b) The Company filed the following reports on Form 8-K during the
fiscal year ended January 31, 1999:
Current Report on Form 8-K dated July 1, 1998
Current Report on Form 8-K dated July 28, 1998
(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.
3-F(9) -- Articles of Amendment to Articles of Incorporation of the
Company filed on July 15, 1993.
4-E(15) -- Articles of Amendment to Articles of Incorporation of the
Company filed on June 25, 1997.
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 as
amended.
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.
38
<PAGE>
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(14)-- Amended and Restated Transfer and Administration Agreement
dated January 21, 1997.
10-RR(14)-- Amendment Number 1 to the Amended and Restated Transfer
and Administration Agreement dated January 21, 1997, as
amended.
10-SS(14)-- Revolving Credit and Reimbursement Agreement dated May 23,
1996.
10-TT(15)-- Amendment Number 2 to the Amended and Restated Transfer and
Administration Agreement dated January 21, 1997, as
amended.
10-UU(15)-- Revolving Credit and Reimbursement Agreement dated August
28, 1997.
10-VV(16)-- Amendment Number 3 to the Amended and Restated Transfer and
Administration Agreement dated January 21, 1997, as
amended.
10-WW(3) -- Amendments (Nos. 1-2) to the Revolving Credit and
Reimbursement Agreement dated August 28, 1997, as amended.
10-XX(3) -- Amendments (Nos. 4-6) to the Amended and Restated Transfer
and Administration Agreement dated January 21, 1997, as
amended.
21(3) -- Subsidiaries of Registrant.
27(17) -- Financial Data Schedule (included in the electronic version
only.)
99-A(17) -- 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.
39
<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.
(14) Incorporated by reference to the Exhibits included in the Company's Form
10-K for the year ended January 31, 1997, File No. 0-14625.
(15) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-3, File No. 333-36999.
(16) Incorporated by reference to the Exhibits included in the Company's Form
10-K for the year ended January 31, 1998, File No. 0-14625.
(17) Incorporated by reference to the Exhibits included in the Company's Form
10-K for the year ended January 31, 1999, File No. 0-14625.
40
<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 1st day of June,
1999.
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 Annual Report on Form 10-K 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 all amendments and post-effective amendments
to this Annual Report on Form 10-K, and any and all instruments or documents
filed as a part of or in connection with this Annual Report on Form 10-K or the
amendments thereto, and the attorney-in-fact, or either of them, may make such
changes and additions to this Annual Report on Form 10-K 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; June 1, 1999
- ----------------------------- Chief Executive Officer
Steven A. Raymund
/s/ ANTHONY A. IBARGUEN President and Chief Operating June 1, 1999
- ----------------------------- Officer; Director
Anthony A. Ibarguen
/s/ JEFFERY P. HOWELLS Executive Vice President and June 1, 1999
- ----------------------------- Chief Financial Officer; Director
Jeffery P. Howells (principal financial officer)
/s/ JOSEPH B. TREPANI Senior Vice President and Corporate June 1, 1999
- ----------------------------- Controller (principal accounting officer)
Joseph B. Trepani
/s/ ARTHUR W. SINGLETON Vice President, Treasurer and Secretary June 1, 1999
- -----------------------------
Arthur W. Singleton
/s/ CHARLES E. ADAIR Director June 1, 1999
- -----------------------------
Charles E. Adair
/s/ MAXIMILIAN ARDELT Director June 1, 1999
- -----------------------------
Maximilian Ardelt
/s/ DANIEL M. DOYLE Director June 1, 1999
- -----------------------------
Daniel M. Doyle
/s/ DONALD F. DUNN Director June 1, 1999
- -----------------------------
Donald F. Dunn
/s/ EDWARD C. RAYMUND Director; Chairman Emeritus June 1, 1999
- -----------------------------
Edward C. Raymund
/s/ DAVID M. UPTON Director June 1, 1999
- -----------------------------
David M. Upton
/s/ JOHN Y. WILLIAMS Director June 1, 1999
- -----------------------------
John Y. Williams
</TABLE>
43
<PAGE>
EXHIBIT INDEX
EXHIBIT DESCRIPTION
- ------- -----------
10-WW Amendments (Nos. 1-2) to the Revolving Credit and Reimbursement
Agreement dated August 28, 1997, as amended.
10-XX Amendments (Nos. 4-6) to the Amended and Restated Transfer and
Administration Agreement dated January 21, 1997, as amended.
21(3) Subsidiaries of Registrant
EXHIBIT 10.ww
AMENDMENT AGREEMENT NO. 1
TO THE REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 1 (the "Amendment Agreement"), dated as of
June 29, 1998 to the REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT dated as of
August 28, 1997 (the "Credit Agreement"), made by and among TECH DATA
CORPORATION ("TDC") and TECH DATA FRANCE, S.N.C., as Multicurrency Facilities
Borrowers, TECH DATA CANADA INC., as Canadian Facilities Borrower (collectively,
the "Borrowers"), the financial institutions from time to time party to the
Credit Agreement (collectively, the "Lenders"), NATIONSBANK, NATIONAL
ASSOCIATION, as agent for the Lenders (in such capacity, the "Agent") and
CANADIAN IMPERIAL BANK OF COMMERCE, as Canadian Agent. Capitalized terms which
are used herein without definition shall have the meaning set forth in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Agent and the Canadian Agent
have entered into the Credit Agreement; and
WHEREAS, TDC has entered into an agreement to acquire a controlling
interest in Computer 2000 AG which Acquisition requires the consent of the
Required Lenders; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to the Acquisition of Computer 2000 AG and amend the Credit Agreement as
provided herein; and
WHEREAS, upon the terms and conditions contained herein the Agent and
the Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective upon the acquisition of Computer
2000 AG, as follows:
(a) Notwithstanding the provisions of the Credit Agreement to
the contrary, in light of the acquisition of Computer 2000 AG and the
continued existence of certain existing indebtedness of Computer 2000
AG as permitted by this Amendment Agreement, effective upon the date of
acquisition of Computer 2000 AG and until the delivery of the
certificate described in SECTION 8.01(B)(III) for the period ending
January 31, 1999, the "Applicable Interest Addition" shall be
determined solely on the basis of the ratio of Consolidated Senior
Indebtedness to Consolidated Total Capital and, for a Floating CD Loan
and Fixed CD Loan, shall not be less than .525% and, for a Eurodollar
Rate Loan,
<PAGE>
shall not be less than .40% and the "Applicable Unused Fee" shall not
be less than .1375%;
(b) The definition of Consolidated Current Liabilities is
hereby amended by deleting the reference "Section 9.07(vii)" in clause
(c) and inserting in lieu thereof the reference "Section 9.07(vii) and
(ix)."
(c) The definition of Indebtedness for Money Borrowed is
hereby amended by deleting such definition in its entirety and
inserting in lieu thereof the following:
"'Indebtedness for Money Borrowed' means, for any
Person, (i) all indebtedness, obligations and liabilities of
such Person for money borrowed which are evidenced by bonds,
debentures, notes or other similar instruments, (ii) the
purchase price of Eligible Receivables (as defined in the
Transfer and Administration Agreement) sold pursuant to the
Trade Receivables Purchase Facility, (iii) the proceeds
derived from any transfer of assets permitted under SECTION
9.09(VI) and (iv) all Capital Leases which have been
capitalized in accordance with Generally Accepted Accounting
Principles; provided, however, the term "Indebtedness for
Money Borrowed" shall specifically exclude payroll
indebtedness and trade indebtedness incurred in the ordinary
course of business (including trade indebtedness through
financial intermediaries) provided such trade indebtedness has
a maturity of less than one year;"
(d) SECTION 9.07 is hereby amended by deleting clauses (vi),
(vii) and (viii) and inserting in lieu thereof the following five
clauses:
"(vi) Indebtedness not otherwise permitted under this
Section 9.07 which does not exceed the aggregate amount at any
time outstanding of $300,000,000, so long as after giving
effect thereto no Default or Event of Default exists
hereunder;
(vii) any obligations arising under the Transfer and
Administration Agreement;
(viii) any Indebtedness permitted under SECTION
9.10(vii);
(ix) Indebtedness of up to an aggregate principal
amount of $200,000,000 of Computer 2000 AG and its
Subsidiaries secured by accounts receivable of such entities;
PROVIDED, however, that the proceeds derived from any transfer
of assets permitted under SECTION 9.09(vi) shall be deemed to
be Indebtedness for purposes of this SECTION 9.07(ix); and
(x) Indebtedness of Computer 2000 AG and its
Subsidiaries that may be outstanding from time to time under
credit facilities existing as of the date of acquisition of a
controlling interest in Computer 2000 AG by TDC or a
Subsidiary
2
<PAGE>
of TDC (the "Existing Indebtedness"); PROVIDED, however, that
such Existing Indebtedness must be reduced to an amount on or
before November 30, 1998, which, when combined with
Indebtedness incurred pursuant to SECTION 9.07(vi), does not
exceed $300,000,000 at such time and at all times thereafter."
(e) SECTION 9.08 is hereby amended by (a) deleting the word
"and" at the end of clause (vi), (b) deleting the period at the end of
clause (vii) and inserting in lieu thereof a semi-colon and (c) adding
two new clauses (viii) and (ix) which clauses shall read as follows:
"(viii) Liens on accounts receivable of Computer 2000
AG and its Subsidiaries securing Indebtedness permitted under
SECTION 9.07(ix); and
(ix) Liens on assets of Computer 2000 AG and its
Subsidiaries securing Existing Indebtedness; PROVIDED,
however, that commencing December 1, 1998, such Liens shall be
permitted to secure an aggregate maximum amount of
$150,000,000 in Existing Indebtedness; PROVIDED FURTHER, that
such Liens shall not encumber assets located in the United
States of America and that the Existing Indebtedness secured
by such Liens must be incurred by such borrowers, and be
funded by lending offices of financial institutions, located
outside of the United States of America."
(f) SECTION 9.09 is hereby amended by (a) deleting the word
"and" at the end of clause (iv), (b) deleting the period at the end of
clause (v) and inserting in lieu thereof a semi-colon and the word
"and" and (c) adding a new clause (vi) which clause shall read as
follows:
"(vi) sales, dispositions, or transfers of accounts
receivable of Computer 2000 AG; PROVIDED, however, that the
proceeds derived from any transfer of assets described in this
SECTION 9.09(vi) shall be deemed to be Indebtedness for
purposes of SECTION 9.07(ix)."
(g) SCHEDULE 7.02(a) to the Credit Agreement is hereby deleted
in its entirety and replaced in lieu thereof with SCHEDULE 7.02(a)
attached hereto.
2. Each Lender by its execution of this Amendment Agreement consents to
the acquisition by TDC or a Subsidiary of TDC of a controlling interest in
Computer 2000 AG upon the terms and conditions described on EXHIBIT 1 attached
hereto. Notwithstanding SECTION 8.20 to the contrary, TDC shall have a period of
90 days to provide to the Agent, in form and substance satisfactory to the
Agent, a pledge of 65% of the capital stock or ownership interest in the first
tier foreign subsidiary of TDC which is the owner, either directly or
indirectly, of Computer 2000 AG.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrowers hereby represent
and warrant that the Credit
3
<PAGE>
Agreement has been re-examined by the Borrowers and that except as disclosed by
any Borrower in writing to the Lenders as of the date hereof:
a. The representations and warranties made by the Borrowers in
Article VII thereof are true on and as of the date hereof except that
the financial statements referred to in SECTION 7.01 shall be those
most recently furnished to the Agent pursuant to SECTION 8.01;
b. There has been no material adverse change in the condition,
financial or otherwise, of the Borrowers and their Subsidiaries since
the date of the most recent financial reports of the Borrowers
delivered to the Agent under SECTION 8.01 thereof, other than changes
in the ordinary course of business, none of which has been a material
adverse change;
c. The business and properties of the Borrowers and their
Subsidiaries are not, and since the date of the most recent financial
reports of the Borrowers delivered to the Agent under SECTION 8.01
thereof, have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation
or loss of any major contracts; and
d. After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrowers under the Credit Agreement or the Notes,
either immediately or with the lapse of time or the giving of notice,
or both.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
a. twenty-four (24) counterparts of this Amendment Agreement
duly executed by the Borrowers, the Guarantors, the Agent and the
Required Lenders; and
b. copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrowers relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty.
4
<PAGE>
Each of the parties hereto acknowledges that, except as in this Amendment
Agreement otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach thereof.
6. CONSENT OF GUARANTORS. The Guarantors have joined in the execution
of this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of Obligations of the Borrowers as
provided in the Guaranties.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. EACH BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Lenders, the Agent and their
respective successors, assigns and legal representatives; PROVIDED, HOWEVER,
that the Borrower, without the prior consent of the Lenders, may not assign any
rights, powers, duties or obligations hereunder.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: TECH DATA CORPORATION
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
WITNESS: Managing Director
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: President
TECH DATA CANADA INC.
WITNESS:
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: Secretary and Chief Financial Officer
6
<PAGE>
MULTICURRENCY FACILITIES GUARANTORS:
TECH DATA WORLDWIDE PARTNERS, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
TECH DATA PRODUCT MANAGEMENT, INC.
WITNESS:
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
WITNESS: TECH DATA FINANCE, INC.
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ ELLEN HERMAN Name: Jeffery P. Howells
- ---------------------------- Title: President
7
<PAGE>
CANADIAN FACILITIES GUARANTORS:
TECH DATA CORPORATION
TECH DATA WORLDWIDE PARTNER, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
WITNESS: TECH DATA PRODUCT MANAGEMENT, INC.
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
WITNESS: TECH DATA FINANCE, INC.
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ ELLEN HERMAN Name: Jeffery P. Howells
- ---------------------------- Title: President
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
Managing Director
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- --------------------------- -----------------------------------
/s/ DAVID R. VETTER Name: Jeffery P. Howells
- ---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
8
<PAGE>
NATIONSBANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By: /s/ TIMOTHY M. O'CONNOR
-------------------------------------------
Name: TIMOTHY M. O'CONNOR
Title: VICE PRESIDENT
9
<PAGE>
CIBC, INC., as Domestic Facilities Lender
By: /s/ ELIZABETH FISCHER
-------------------------------------------
Name: ELIZABETH FISCHER
Title: EXECUTIVE DIRECTOR
CIBC Oppenheimer Corp., AS AGENT
10
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Facilities Lender
By: /s/ MAURO SPAGNOLO
-------------------------------------------
Name: MAURO SPAGNOLO
Title: EXECUTIVE DIRECTOR
By:
-------------------------------------------
Name:
Title:
11
<PAGE>
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ A. BABCOCK
-------------------------------------------
Name: A. BABCOCK
Title: EXECUTIVE VICE PRESIDENT
By: /s/ PAMELA J. GILLONS
-------------------------------------------
Name: PAMELA J. GILLONS
Title: ASSISTANT TREASURER
12
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ DAVID M. CAWRSE
-------------------------------------------
Name: DAVID M. CAWRSE
Title: FIRST VICE PRESIDENT & MANAGER
13
<PAGE>
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ ANDRE HEITBAUM
-------------------------------------------
Name: ANDRE HEITBAUM
Title: ASST. VICE PRESIDENT
By: /s/ WILLIAM W. MCGINTY
-------------------------------------------
Name: WILLIAM W. MCGINTY
Title: DIRECTOR
14
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ GAYE C. PLUNKETT
-------------------------------------------
Name: GAYE C. PLUNKETT
Title: VICE PRESIDENT
15
<PAGE>
ROYAL BANK OF CANADA
By: /s/ MICHAEL A. COLE
-------------------------------------------
Name: MICHAEL A. COLE
Title: SENIOR MANAGER
16
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ W.J. BROWN
-------------------------------------------
Name: W.J. BROWN
Title: VICE PRESIDENT
17
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ CHARLIE S. BEVERLY, JR.
-------------------------------------------
Name: CHARLIE S. BEVERLY, JR.
Title: SVP
18
<PAGE>
BANQUE NATIONAL DE PARIS,
HOUSTON AGENCY
By: /s/ JOHN STACY
-------------------------------------------
Name: JOHN STACY
Title: VICE PRESIDENT
19
<PAGE>
SUNTRUST BANK, TAMPA BAY
By: /s/ FRANK A. COE
-------------------------------------------
Name: FRANK A. COE
Title: VICE PRESIDENT
20
<PAGE>
NATEXIS BANQUE
(formerly BFCE, New York Branch)
By: /s/ PIETER J. VAN TULDER
-------------------------------------------
Name: PIETER J. VAN TULDER
Title: VICE PRESIDENT AND MANAGER
MULTINATIONAL GROUP
By: /s/ JOHN RIGO
-------------------------------------------
Name: JOHN RIGO
Title: AVP
21
<PAGE>
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By: /s/ TATSUJI NOGUCHI
-------------------------------------------
Name: TATSUJI NOGUCHI
Title: CHIEF REPRESENTATIVE
22
<PAGE>
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ A.R. MORRIS
-------------------------------------------
Name: A.R. MORRIS
Title: FIRST VP
By: /s/ DEBORAH SLUSARCZYK
-------------------------------------------
Name: DEBORAH SLUSARCZYK
Title: VICE PRESIDENT
23
<PAGE>
MELLON BANK, N.A.
By: /s/ CHRISTINE PLUMB
-------------------------------------------
Name: CHRISTINE PLUMB
Title: FIRST VICE PRESIDENT
24
<PAGE>
PNC BANK, N.A. (FORMERLY KNOWN AS PNC
BANK, KENTUCKY, INC.)
By: /s/ JAMES D. NEIL
-------------------------------------------
Name: JAMES D. NEIL
Title: VICE PRESIDENT
25
<PAGE>
AMSOUTH BANK
By: /s/ MARIE B. EADDY
-------------------------------------------
Name: MARIE B. EADDY
Title: VICE PRESIDENT
26
<PAGE>
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ ROBERT B. SAMMARTINO
-------------------------------------------
Name: ROBERT B. SAMMARTINO
Title: VICE PRESIDENT
27
<PAGE>
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: /s/ J.L. YAGER
-------------------------------------------
Name: J.L. YAGER
Title: AVP
By: /s/ BOBBY RYAN OLIVER, JR.
-------------------------------------------
Name: BOBBY RYAN OLIVER, JR.
Title: VICE PRESIDENT
28
<PAGE>
AMENDMENT AGREEMENT NO. 2
TO THE REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 2 (the "Amendment Agreement"), dated as of
June 29, 1998 to the REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT dated as of
August 28, 1997 (as amended by Amendment Agreement No. 1 to the Revolving Credit
and Reimbursement Agreement dated as of June 29, 1998 and as the same may be
amended or modified from time to time, the "Credit Agreement"), made by and
among TECH DATA CORPORATION ("TDC") and TECH DATA FRANCE, S.N.C., as
Multicurrency Facilities Borrowers, TECH DATA CANADA INC., as Canadian
Facilities Borrower (collectively, the "Borrowers"), the financial institutions
from time to time party to the Credit Agreement (collectively, the "Lenders"),
NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders (in such capacity,
the "Agent") and CANADIAN IMPERIAL BANK OF COMMERCE, as Canadian Agent.
Capitalized terms which are used herein without definition shall have the
meaning set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Agent and the Canadian Agent
have entered into the Credit Agreement; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to a limitation of liability of TD France under the Credit Agreement such that
TD France is liable only for Obligations arising as a result of Domestic Loans
and Domestic Advances made directly to TD France, and for TD France to change
its organizational form and become Tech Data France, S.A. and amend the Credit
Agreement as provided herein; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to the disposition of any one or all of Tech Data Europe Gmbh, Tech Data
Acquisition Gmbh or Macrotron AG as may be determined by the Borrowers (as so
determined, the "German Entity Disposition") and amend the Credit Agreement as
provided herein; and
WHEREAS, upon the terms and conditions contained herein the Agent and
the Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended as follows:
<PAGE>
(a) Section 2.17 is hereby amended by deleting such section in
its entirety and inserting in lieu thereof the following:
"Section 2.17 ONE LOAN. (a) All Domestic Loans and
Domestic Advances by the Multicurrency Facilities Lenders to
any Multicurrency Facilities Borrower shall constitute the
joint and several general obligation of each of the
Multicurrency Facilities Borrowers other than TD France. Each
Multicurrency Facilities Borrower other than TD France shall
be jointly and severally liable to the Agent and the
Multicurrency Facilities Lenders for all Obligations hereunder
in respect of Multicurrency Facilities, regardless of whether
such Obligations arise as a result of Domestic Advances to
such Borrower, it being stipulated and agreed that Domestic
Advances hereunder to any Multicurrency Facilities Borrower
inure to the benefit of each of the Multicurrency Facilities
Borrowers, and that the Multicurrency Facilities Lenders are
relying on the joint and several liability of the
Multicurrency Facilities Borrowers, other than TD France, in
extending credit under the Multicurrency Facilities.
Notwithstanding any other provision contained herein to the
contrary, TD France shall be liable only for Obligations
arising as a result of Domestic Loans and Domestic Advances
made directly to TD France.
(b) Each Multicurrency Facilities Borrower other than
TD France guarantees to the Multicurrency Facilities Lenders
the payment in full of all of the Obligations of the other
Multicurrency Facilities Borrowers to the Multicurrency
Facilities Lenders in respect of Multicurrency Facilities and
further guarantees the due performance by each other
Multicurrency Facilities Borrower of its respective duties and
covenants made in favor of the Agent and the Multicurrency
Facilities Lenders hereunder. Each Multicurrency Facilities
Borrower agrees that the joint and several liability of the
Multicurrency Facilities Borrowers other than TD France shall
not be impaired or affected by any modification, supplement,
extension or amendment of any contract or agreement to which
the parties thereto may hereafter agree, nor by any
modification, release or other alteration of any of the rights
of the Agent and the Multicurrency Facilities Lenders with
respect to any collateral, nor by any delay, extension of
time, renewal, compromise or other indulgence granted by the
Agent and the Multicurrency Facilities Lenders with respect to
any of the Obligations, nor by any other agreements or
arrangements whatever with any other Multicurrency Facilities
Borrower, any guarantor or any other Person, each
Multicurrency Facilities Borrower hereby waiving all notice of
any such delay, extension, release, substitution, renewal,
compromise or other indulgence, and hereby consenting to be
bound thereby as fully and effectually as if it had expressly
agreed thereto in advance. The liability of each Multicurrency
Facilities Borrower, other than TD France, hereunder is direct
and unconditional as to all of the Obligations hereunder in
respect of the Multicurrency Facilities, and the liability of
TD France hereunder is direct and unconditional as to only the
Obligations arising as a result of Domestic Loans and Domestic
Advances made directly to TD France, and any such liability
may be enforced without requiring the Agent or the
Multicurrency Facilities
2
<PAGE>
Lenders first to resort to any other right, remedy or
security; no Multicurrency Facilities Borrower shall have any
right of subrogation, reimbursement or indemnity whatsoever,
nor any right of recourse to security for any of the
Obligations in respect of the Multicurrency Facilities, unless
and until all of said Obligations have been paid in full."
2. Each Lender by its execution of this Amendment Agreement consents
to, and waives any Default or Event of Default under Sections 9.09, 10.01(d) or
10.01 (n) of the Credit Agreement as a result of, each of the following events:
(a) The German Entity Disposition by TDC or a Subsidiary of
TDC;
(b) Upon the effectiveness of the German Entity Disposition in
the event such disposed entity is Tech Data Europe Gmbh, the release by
the Agent of certain capital stock of Tech Data Europe Gmbh presently
pledged to the Agent, for itself and for the benefit of the Lenders, by
TDC pursuant to that certain Pledge of Shares dated as of August 28,
1997, by TDC in favor of the Agent for the benefit of the Lenders; and
(c) The change in organizational form of Tech Data France,
S.N.C., to become Tech Data France, S.A., provided that Tech Data
France, S.A. is the successor as a matter of law or by written
agreement satisfactory to the Agent, to all Obligations of Tech Data
France, S.N.C. existing immediately prior to such change and provided
further, that Borrowers shall deliver to the Agent an opinion of
counsel to the Borrowers satisfactory in form and substance to the
Agent as to the validity of such succession or assumption of
Obligations, as the case may be.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrowers hereby represent
and warrant that the Credit Agreement has been re-examined by the Borrowers and
that except as disclosed by any Borrower in writing to the Lenders as of the
date hereof:
(a) The representations and warranties made by the Borrowers
in Article VII thereof are true on and as of the date hereof except
that the financial statements referred to in SECTION 7.01 shall be
those most recently furnished to the Agent pursuant to SECTION 8.01;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrowers and their
Subsidiaries since the date of the most recent financial reports of the
Borrowers delivered to the Agent under SECTION 8.01 thereof, other than
changes in the ordinary course of business, none of which has been a
material adverse change;
(c) The business and properties of the Borrowers and their
Subsidiaries are not, and since the date of the most recent financial
reports of the Borrowers delivered to the
3
<PAGE>
Agent under SECTION 8.01 thereof, have not been, adversely affected in
any substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrowers under the Credit Agreement or the Notes,
either immediately or with the lapse of time or the giving of notice,
or both.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(a) twenty-four (24) counterparts of this Amendment Agreement
duly executed by all signatories hereto; and
(b) copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrowers relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel, which
satisfaction shall be evidenced by the execution and delivery of the applicable
signature page for such Lender or the Agent.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any preceding or succeeding
breach thereof.
6. CONSENT OF GUARANTORS. The Guarantors have joined in the execution
of this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of Obligations of the Borrowers as
provided in the Guaranties.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
4
<PAGE>
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. EACH BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Lenders, the Agent and their
respective successors, assigns and legal representatives; PROVIDED, HOWEVER,
that the Borrower, without the prior consent of the Lenders, may not assign any
rights, powers, duties or obligations hereunder.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: TECH DATA CORPORATION
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
TECH DATA FRANCE, S.N.C.
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
TECH DATA CANADA INC.
WITNESS:
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: SECRETARY AND CHIEF FINANCIAL OFFICER
6
<PAGE>
MULTICURRENCY FACILITIES GUARANTORS:
TECH DATA WORLDWIDE PARTNERS, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
TECH DATA PRODUCT MANAGEMENT, INC.
WITNESS:
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
WITNESS: TECH DATA FINANCE, INC.
/s/ ARTHUR W. SINGLETON By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ ELLEN HERMAN Name: JEFFERY P. HOWELLS
- -------------------------- Title: PRESIDENT
7
<PAGE>
CANADIAN FACILITIES GUARANTORS:
TECH DATA CORPORATION
TECH DATA WORLDWIDE PARTNER, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
WITNESS: TECH DATA PRODUCT MANAGEMENT, INC.
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
WITNESS: TECH DATA FINANCE, INC.
/s/ ARTHUR W. SINGLETON By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ ELLEN HERMAN Name: JEFFERY P. HOWELLS
- -------------------------- Title: PRESIDENT
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
Managing Director
/s/ HEIDI S. LLOYD By: /s/ JEFFERY P. HOWELLS
- -------------------------- -------------------------------------------
/s/ DAVID R. VETTER Name: JEFFERY P. HOWELLS
- -------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
8
<PAGE>
NATIONSBANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By: /s/ TIMOTHY M. O'CONNOR
-------------------------------------------
Name: TIMOTHY M. O'CONNOR
Title: VICE PRESIDENT
9
<PAGE>
CIBC, INC., as Domestic Facilities Lender
By: /s/ ELIZABETH FISCHER
-------------------------------------------
Name: ELIZABETH FISCHER
Title: EXECUTIVE DIRECTOR
CIBC Oppenheimer Corp., AS AGENT
10
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Facilities Lender
By: /s/ MAURO SPAGNOLO
-------------------------------------------
Name: MAURO SPAGNOLO
Title: EXECUTIVE DIRECTOR
By:
-------------------------------------------
Name:
Title:
11
<PAGE>
BAYERISCHE VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ A. BABCOCK
-------------------------------------------
Name: A.BABCOCK
Title: EVP
By: /s/ PAMELA J. GILLONS
-------------------------------------------
Name: PAMELA J. GILLONS
Title: ASSISTANT TREASURER
12
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ DAVID M. CAWRSE
-------------------------------------------
Name: DAVID M. CAWRSE
Title: FIRST VICE PRESIDENT & MANAGER
13
<PAGE>
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ ANDRE HEITBAUM
-------------------------------------------
Name: ANDRE HEITBAUM
Title: ASST. VICE PRESIDENT
By: /s/ WILLIAM W. MCGINTY
-------------------------------------------
Name: WILLIAM W. MCGINTY
Title: DIRECTOR
14
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ GAYE C. PLUNKETT
-------------------------------------------
Name: GAYE C. PLUNKETT
Title: VICE PRESIDENT
15
<PAGE>
ROYAL BANK OF CANADA
By: /s/ MICHAEL A. COLE
-------------------------------------------
Name: MICHAEL A. COLE
Title: SENIOR MANAGER
16
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ W.J. BROWN
-------------------------------------------
Name: W.J. BROWN
Title: VICE PRESIDENT
17
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ CHARLIE S. BEVERLY, JR.
-------------------------------------------
Name: CHARLIE S. BEVERLY, JR.
Title: SVP
18
<PAGE>
BANQUE NATIONAL DE PARIS,
HOUSTON AGENCY
By: /s/ JOHN STACY
-------------------------------------------
Name: JOHN STACY
Title: VICE PRESIDENT
19
<PAGE>
SUNTRUST BANK, TAMPA BAY
By: /s/ FRANK A. COE
-------------------------------------------
Name: FRANK A. COE
Title: VICE PRESIDENT
20
<PAGE>
NATEXIS BANQUE
(formerly BFCE, New York Branch)
By: /s/ PIETER J. VAN TULDER
-------------------------------------------
Name: PIETER J. VAN TULDER
Title: VICE PRESIDENT AND MANAGER
MULTINATIONAL GROUP
By: /s/ JOHN RIGO
-------------------------------------------
Name: JOHN RIGO
Title: AVP
21
<PAGE>
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By: /s/ TATSUJI NOGUCHI
-------------------------------------------
Name: TATSUJI NOGUCHI
Title: CHIEF REPRESENTATIVE
22
<PAGE>
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ A.R. MORRIS
-------------------------------------------
Name: A.R. MORRIS
Title: FIRST VP
By: /s/ DEBORAH SLUSARCZYK
-------------------------------------------
Name: DEBORAH SLUSARCZYK
Title: VICE PRESIDENT
23
<PAGE>
MELLON BANK, N.A.
By: /s/ CHRISTINE PLUMB
-------------------------------------------
Name: CHRISTINE PLUMB
Title: FIRST VICE PRESIDENT
24
<PAGE>
PNC BANK, N.A. (FORMERLY KNOWN AS PNC
BANK, KENTUCKY, INC.)
By: /s/ JAMES D. NEIL
-------------------------------------------
Name: JAMES D. NEIL
Title: VICE PRESIDENT
25
<PAGE>
AMSOUTH BANK
ATLANTA AGENCY
By: /s/ MARIE B. EADDY
-------------------------------------------
Name: MARIE B. EADDY
Title: VICE PRESIDENT
26
<PAGE>
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ ROBERT V. SAMMARTINO
-------------------------------------------
Name: ROBERT V. SAMMARTINO
Title: VICE PRESIDENT
27
<PAGE>
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: /s/ J.L. YAGER
-------------------------------------------
Name: J.L. YAGER
Title: AVP
By: /s/ BOBBY RYAN OLIVER, JR.
-------------------------------------------
Name: BOBBY RYAN OLIVER, JR.
Title: VICE PRESIDENT
28
EXHIBIT 10.xx
AMENDMENT NUMBER 4 TO
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 4 TO AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "AMENDMENT"), dated as of June 28, 1998, 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 Transferor, the Collection Agent, the Guarantor, the Company,
the Agent and the Bank Investor, as amended to the date hereof (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, and to make certain other amendments;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, the Original Agreement requires that the consent of
those Bank Investors which hold Commitments aggregating in excess of 66 and 2/3%
of the Facility Limit as of the date hereof be obtained, and the consent of any
Bank Investor whose Commitment is increased hereby;
WHEREAS, the only Bank Investor whose Commitment is being
increased hereby is NationsBank, N.A.; and
<PAGE>
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 "Facility Limit" is hereby amended to
read as follows:
""Facility Limit" shall mean $510,000,000 through
November 30, 1998 and thereafter shall mean $331,500,000."
(b) The definition of "Maximum Net Investment" is hereby
amended to read as follows:
""Maximum Net Investment" shall mean $500,000,000
through November 30, 1998 and thereafter shall mean
$325,000,000."
(c) The definition of "Loss Reserve" is hereby amended by
deleting the amount "27,100,000" in the text of the final paragraph thereof and
replacing it with the following:
"$40,000,000 through November 30, 1998 and thereafter
$27,100,000."
SECTION 2. 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;
2
<PAGE>
(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 Transferor 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; and
(d) 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 3. 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 4. 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 5. SUCCESSORS AND ASSIGNS. This Amendment shall bind,
and the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; 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.
3
<PAGE>
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 7. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 8. 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
4
<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/ [ILLEGIBLE]
-------------------------------------------
Name:
Title:
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: Executive Vice President and
Chief Finnacial Officer
NATIONSBANK, N.A.,
as Agent
By: /s/ MICHELLE M. HEATH
-------------------------------------------
Name: MICHELLE M. HEATH
Title: SENIOR VICE PRESIDENT
5
<PAGE>
Consented and agreed to this 28
day of June, 1998
NATIONSBANK, N.A.,as Bank
Investor
Old Commitment:
$156,500,000
New Commitment (through November 30, 1998):
$335,000,000
New Commitment (after November 30, 1998):
$156,500,000
By: /s/ MICHELLE M. HEATH
----------------------------------
Name: MICHELLE M. HEATH
Title: SENIOR VICE PRESIDENT
6
<PAGE>
PNC BANK, N.A.,
as Bank Investor
Commitment:
$20,000,000 By: /s/ JAMES NEIL
----------------------------------
Name: JAMES NEIL
Title: VICE PRESIDENT
7
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH,
as Bank Investor
Commitment:
$30,000,000 By: /s/ KOSTANTINA KOURMPETIS
----------------------------------
Name: KOSTANTINA KOURMPETIS
Title: VICE PRESIDENT
8
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
as Bank Investor
Commitment:
$15,000,000 By: /s/ TATSUJI NOGUCHI
----------------------------------
Name: TATSUJI NOGUCHI
Title: CHIEF REPRESENTATIVE
9
<PAGE>
THE FUJI BANK, LIMITED,
as Bank Investor
Commitment:
$15,000,000 By: /s/ RAYMOND VENTURA
----------------------------------
Name: RAYMOND VENTURA
Title: VICE PRESIDENT & MANAGER
10
<PAGE>
ROYAL BANK OF CANADA,
as Bank Investor
Commitment:
$50,000,000 By: /s/ TOM DEAN
----------------------------------
Name: TOM DEAN
Title: SENIOR MANAGER
By: /s/ DANIELLE BONICA
----------------------------------
Name: DANIELLE BONICA
Title: ASSISTANT
11
<PAGE>
THE BANK OF NOVA SCOTIA,
as Bank Investor
Commitment:
$30,000,000 By: /s/ W.J. BROWN
----------------------------------
Name: W.J. BROWN
Title: VICE PRESIDENT
12
<PAGE>
THE SUMITOMO BANK, LIMITED
as Bank Investor
Commitment:
$15,000,000 By: /s/ YASUO MIYAZAWA
----------------------------------
Name: YASUO MIYAZAWA
Title: JOINT GENERAL MANAGER
13
<PAGE>
AMENDMENT NUMBER 5 TO
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "AMENDMENT"), dated as of December 30, 1998,
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 Transferor, the Collection Agent, the Guarantor, the Company,
the Agent and the Bank Investor, as amended to the date hereof (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, and to make certain other amendments;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, the Original Agreement requires that the consent of
those Bank Investors which hold Commitments aggregating in excess of 66 and 2/3%
of the Facility Limit as of the date hereof be obtained, and the consent of any
Bank Investor whose Commitment is increased hereby;
WHEREAS, 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:
<PAGE>
SECTION 1. AMENDMENT TO DEFINITIONS.
(a) The definition of "Facility Limit" is hereby amended to
read as follows:
""Facility Limit" shall mean $336,000,000."
(b) The definition of "Maximum Net Investment" is hereby
amended to read as follows:
""Maximum Net Investment" shall mean $329,411,765."
(c) The definition of "Loss Reserve" is hereby amended by
deleting the amount "27,100,000" in the text of the final
paragraph thereof and replacing it with "$28,000,000."
(d) The definition of "Commitment Termination Date" is hereby
amended by deleting the date "December 30, 1998" in the text
thereof and replacing it with the date "February 28, 1999."
SECTION 2. 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 Transferor 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; and
(d) A responsible officer's certificate of the
Transferor and
2
<PAGE>
Tech Data executed by Arthur W. Singleton, Secretary of the Transferor and Tech
Data, respectively.
SECTION 3. 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 4. 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 5. SUCCESSORS AND ASSIGNS. This Amendment shall bind,
and the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; 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 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 7. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
3
<PAGE>
SECTION 9. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 8. 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
4
<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/ ANDREW L. STIDD
---------------------------------------------
Name: Andrew L. Stidd
Title: President
TECH DATA FINANCE, INC.,
as Transferor
By: /s/ ARTHUR W. SINGLETON
---------------------------------------------
Name: Arthur W. Singleton
Title: Vice President, Chief Financial
Officer & Secretary
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ ARTHUR W. SINGLETON
---------------------------------------------
Name: Arthur W. Singleton
Title: Vice President, Treasurer
and Secretary
NATIONSBANK, N.A.,
as Agent
By: /s/ STAN MEIHAUS
---------------------------------------------
Name: Stan Meihaus
Title: Vice President
5
<PAGE>
Consented and agreed to this 30
day of December, 1998
NATIONSBANK, N.A.,as Bank
Investor
Old Commitment:
$156,500,000
New Commitment:
$154,000,000 By: /s/ STAN MEIHAUS
----------------------------------
Name: STAN MEIHAUS
Title: VICE PRESIDENT
6
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH,
as Bank Investor
Old Commitment:
$30,000,000
New Commitment:
$102,000,000 By: /s/ DAVID C. FINK
----------------------------------
Name: DAVID C. FINK
Title: MANAGING DIRECTOR
7
<PAGE>
ROYAL BANK OF CANADA,
as Bank Investor
Commitment:
$50,000,000 By: /s/ TOM DEAN
----------------------------------
Name: TOM DEAN
Title: SR MGR
8
<PAGE>
THE BANK OF NOVA SCOTIA,
as Bank Investor
Commitment:
$30,000,000 By: /s/ WILLIAM E. ZARRETT
----------------------------------
Name: WILLIAM E. ZARRETT
Title: SENIOR RELATIONSHIP MANAGER
9
<PAGE>
AMENDMENT NUMBER 6 TO
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 6 TO AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "AMENDMENT"), dated as of January 8, 1999, 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 Transferor, the Collection Agent, the Guarantor, the Company,
the Agent and the Bank Investor, as amended to the date hereof (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, and to make certain other amendments;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments;
WHEREAS, the Original Agreement requires that the consent of
those Bank Investors which hold Commitments aggregating in excess of 66 and 2/3%
of the Facility Limit as of the date hereof be obtained, and the consent of any
Bank Investor whose Commitment is increased hereby;
WHEREAS, 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:
<PAGE>
SECTION 1. AMENDMENT TO DEFINITIONS.
(a) The definition of "Facility Limit" is hereby amended to
read as follows:
""Facility Limit" shall mean $510,000,000."
(b) The definition of "Maximum Net Investment" is hereby
amended to read as follows:
""Maximum Net Investment" shall mean $500,000,000."
(c) The definition of "Loss Reserve" is hereby amended by
deleting the amount "28,000,000" in the text of the final
paragraph thereof and replacing it with "$40,000,000."
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become
effective when NationsBank has executed this amendment and has received
counterparts of this Amendment executed by the Company, the Transferor, the
Collection agent and Guarantor and the Bank Investors.
SECTION 3. 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 4. 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 5. SUCCESSORS AND ASSIGNS. This Amendment shall bind,
and the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; 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 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS
2
<PAGE>
OF THE STATE OF NEW YORK. THE TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7. SEVERABILITY; COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 8. 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
<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/ ANDREW L. STIDD
----------------------------------------
Name: Andew L. Stidd
Title: President
TECH DATA FINANCE, INC.,
as Transferor
By: /s/ ARTHUR W. SINGLETON
----------------------------------------
Name: Arthur W. Singleton
Title: Vice President, CFO and Secretary
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ ARTHUR W. SINGLETON
----------------------------------------
Name: Arthur W. Singleton
Title: Vice President, Treasurer and
Secretary
NATIONSBANK, N.A.,
as Agent
By: /s/ STAN MEIHAUS
----------------------------------------
Name: Stan Meihaus
Title: Vice President
4
<PAGE>
Consented and agreed to this 8
day of January, 1999
NATIONSBANK, N.A.,as Bank
Investor
Old Commitment:
$154,000,000
New Commitment:
$205,000,000 By: /s/ STAN MEIHAUS
----------------------------------
Name: STAN MEIHAUS
Title: VICE PRESIDENT
5
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH,
as Bank Investor
Commitment:
$102,000,000 By: /s/ DAVID C. FINK
----------------------------------
Name: DAVID C. FINK
Title: MANAGING DIRECTOR
6
<PAGE>
ROYAL BANK OF CANADA,
as Bank Investor
Commitment:
$50,000,000 By: /s/ TOM DEAN
----------------------------------
Name: TOM DEAN
Title: SR MANAGER
7
<PAGE>
THE BANK OF NOVA SCOTIA,
as Bank Investor
Old Commitment:
$30,000,000
Commitment:
$153,000,000 By: /s/ W. BROWN
----------------------------------
Name:
Title:
8
EXHIBIT 21(3)
TECH DATA CORPORATION
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
STATE OR OTHER
NAME OF PERCENTAGE JURISDICTION OF
SUBSIDIARY OWNED INCORPORATION
- ----------------------------------- --------------- ---------------------------
<S> <C> <C>
Computer 2000 AG 99% Germany
Tech Data Canada Inc. 100% Ontario, Canada
Tech Data Education, Inc. 100% Florida
Tech Data Finance, Inc. 100% California
Tech Data France, SNC 100% France
Tech Data Latin America, Inc. 100% Florida
Tech Data Pacific, Inc. 100% Florida
Tech Data Product Management, Inc. 100% Florida
</TABLE>
