EXHIBIT 10-AAl
AMENDMENT AGREEMENT NO. 1
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment Agreement"), dated as of November
21, 2002 is made by and among TECH DATA CORPORATION, a Florida corporation, BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States, and each other lender party to the Credit
Agreement (as defined below) (hereinafter Bank of America and such other lenders
may be referred to individually as a "Lender" or collectively as the "Lenders"),
and BANK OF AMERICA, N.A., in its capacity as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of May 8, 2000 (as the same
may be amended, modified, supplemented, or restated, the "Credit Agreement");
and
WHEREAS, the Borrower has requested that the Requisite Lenders amend the
Credit Agreement as hereinafter set forth; and
WHEREAS, upon the terms and conditions contained herein, the Administrative
Agent and the Requisite 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. Definitions. Capitalized terms not otherwise defined in this Amendment
Agreement have the respective meanings assigned thereto in the Credit Agreement.
2. Amendment. Subject to the terms and conditions set forth herein,
Section 8.07 of the Credit Agreement is hereby amended in its entirety so that
as amended it shall read as follows:
"8.07. Restricted Payments. Make any Restricted Payments, provided,
however, that (i) the Borrower may purchase shares of its common stock for
the purpose of making required contributions to its employee stock option
plan so long as the aggregate dollar amounts spent for such stock in any
fiscal year of Borrower does not exceed $10,000,000, (ii) Tech Data
Germany, AG may pay dividends to its shareholders so long as the amount of
such dividend paid in any fiscal year does not exceed $1,000,000, and (iii)
the Borrower may purchase shares of its common stock in one or more series
of open market purchases for an aggregate purchase price of not to exceed
$200,000,000."
3. Consent. Each Lender by its execution of this Amendment Agreement
consents to the redemption by the Borrower of $300,000,000 principal amount of
its 5% Convertible Subordinated Note at a price of 101% plus interest prior to
its July 1, 2003 maturity date, notwithstanding the limitation set forth in
Section 8.16 of the Credit Agreement.
4. Consent of Guarantors. The Guarantors have joined in the execution of
this Amendment Agreement solely for the purpose of (i) agreeing to the amendment
of the Credit Agreement and (ii) confirming their guarantees of payment of all
the Obligations.
5. Representations and Warranties. In order to induce the Administrative
Agent and the Lenders to enter into this Amendment Agreement, the Borrower
hereby represents and warrants that the Credit Agreement has been re-examined by
the Borrower and that:
(a) The representations and warranties made by Borrower in Article VI
of the Agreement are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the date
of the most recent financial reports of the Borrower
received by each Lender under Section 6.04 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 Borrower and its Subsidiaries
are not and 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) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a Default
or an Event of Default on the part of the Borrower under the Agreement, the
Notes or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
6. Conditions Precedent. This Amendment Agreement shall become effective
upon the Borrower delivering to the Administrative Agent the following:
(a) twenty (20) counterparts of this Amendment Agreement duly executed
by the Borrower, each Guarantor, the Administrative Agent and at least the
Requisite Lenders; and
(b) receipt by the Agent on behalf of itself and each undersigned
Lender of an amendment fee of three (3) basis points times the amount of
each Lender's Commitment and all other fees and expenses due in connection
with this Amendment Agreement; and
(c) such other certificates, instruments and documents as the Agent
shall reasonably request.
7. 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 proceeding or succeeding
breach thereof.
8. 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.
9. 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.
10. 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. THE BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA SITTING IN
THE COUNTIES OF HILLSBOROUGH AND PINELLAS 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.
11. 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.
12. Credit Agreement. All references in any of the Loan Documents to the
Credit Agreement shall mean and include the Credit Agreement as amended hereby.
13. Successors and Assigns. This Amendment Agreement shall be binding upon
and inure to the benefit of each of the Borrower, the Lender, the Agent and
their respective successors, assigns and legal representatives; provided,
however, that the Borrower, without the prior consent of the Lender, may not
assign any rights, powers, duties or obligations hereunder.
[Signatures on following pages.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
TECH DATA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Vice President, Treasurer
and Secretary
GUARANTORS:
TECH DATA PRODUCT MANAGEMENT, INC.
TECH DATA INTERNATIONAL FINANCE
HOLDING, INC.
TECH DATA WORLDWIDE PARTNER, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Treasurer and Secretary
TD FULFILLMENT SERVICES LLC
By: TECH DATA CORPORATION, its Member
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Treasurer and Secretary
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Principal
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Principal
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Associate Director
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxx III
------------------------------------------
Name: Xxxxxxx X. Xxxx III
Title: Vice President
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG,
CAYMAN ISLAND BRANCH
By: (not signed)
------------------------------------------
Name:________________________________________
Title:_______________________________________
CITICORP USA, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANK HAPOALIM, B.M.
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxx Xxxxx
------------------------------------------
Name: Xxxxx Xxx Xxxxx
Title: Senior Vice President & Corporate
Manager
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ X. Xxxxxxxxxx
------------------------------------------
Name: X. Xxxxxxxxxx
Title: Senior Vice President
MIZUHO CORPORATE BANK (successor to
The Industrial Bank of Japan, Limited)
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
BAYERISCHE HYPO-UND VEREINSBANK
AG, NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
NATEXIS BANQUE POPULAIRES
By: /s/ Nicolas Regent
------------------------------------------
Name: Nicolas Regent
Title: VP Multinational
By: /s/ Xxxxxx X. xxx Xxxxxx
------------------------------------------
Name: Xxxxxx X. xxx Xxxxxx
Title: Vice President and Manager
Multinational Group
BANCA COMMERCIALE ITALIANA-
NEW YORK BRANCH
By: (not signed)
------------------------------------------
Name:________________________________________
Title:_______________________________________
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: (not signed)
-----------------------------------------
Name:________________________________________
Title:_______________________________________
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxxx X. XxXxxxx
------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Director
ABN AMRO BANK N.V.
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and Manager
U.S. BANCORP
By: (not signed)
------------------------------------------
Name:________________________________________
Title:_______________________________________