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EXHIBIT 10-TT
AMENDMENT NUMBER 2 TO
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT
AMENDMENT NUMBER 2 TO AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated as of July 29, 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 Transferor, the Collection Agent, the Guarantor, the Company, the
Agent and the Bank Investor, as amended by Amendment Number 1 thereto, dated as
of March 3, 1997 (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, 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 "Facility
Limit" is hereby amended by deleting the amount "331,500,000" in the text
thereof and replacing it with the amount "408,000,000".
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(b) The definition of "Maximum Net Investment" is hereby amended by
deleting the amount "325,000,000" in the text thereof and replacing it with the
amount "400,000,000".
(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 amount "33,000,000".
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;
(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 Xxxxx Xxxxxx, 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 & XxXxxxxxx, 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
(e) A responsible officer's certificate of the Transferor and Tech
Data executed by Xxxxxx X. Xxxxxxxxx, 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
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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.
SECTION 8. Captions. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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SECTION 9. Ratification. Except as expressly affected by the
provisions hereof, the Original Agreement as amended by this Amendment shall
remain in full force and effect in accordance with its terms and ratified and
confirmed by the parties hereto. On and after the date hereof, each reference
in the Original Agreement to "this Agreement", "hereunder", "herein" or words
of like import shall mean and be a reference to the Original Agreement as
amended by this Amendment.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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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/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
NATIONSBANK, N.A.,
as Agent and Bank Investor
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President