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AMENDMENT NUMBER 3 TO
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT
AMENDMENT NUMBER 3 TO AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "Amendment"), dated as of December 18, 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 2 thereto, dated
as of July 29, 1997 (the "Original Agreement" and said agreement as amended by
this Amendment, the "Agreement").
WHEREAS, the Transferor has requested certain amendments to
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 "408,000,000" in the
text thereof and replacing it with the amount "331,500,000".
(b) The definition of "Maximum Net Investment" is hereby
amended by deleting the amount "400,000,000" in the text thereof and replacing
it with the amount "325,000,000".
(c) The definition of "Loss Reserve" is hereby amended by
deleting the amount "33,000,000" in the text of the final paragraph thereof and
replacing it with the amount "27,100,000".
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(d) The definition of "Commitment Termination Date" is hereby
amended by deleting the date "December 31, 1997" in the text thereof and
replacing it with the date "December 30, 1998"
SECTION 2. Conditions to Effectiveness. This amendment shall
become effective when the Company has executed this Amendment and has received
counterparts of this Amendment executed by the Transferor, the Agent 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 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.
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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.
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
Title:
TECH DATA FINANCE, INC.,
as Transferor
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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The undersigned hereby consent to the foregoing Amendment:
NATIONSBANK, N.A.
as Agent and Bank Investor
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
CREDIT LYONNAIS
as Bank Investor
By: /S/KOSTANTINA KOURMPETIS
Name: Kostantina Kourmpetis
Title: Vice President
THE DAI-ICHI KANGYO, BANK, LTD
as Bank Investor
By: /S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Joint General Manager
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
as Bank Investor
By: /S/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
AGENCY
as Bank Investor
By: /S/ ▇.▇. ▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President
PNC BANK, KENTUCKY, INC.
as Bank Investor
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ROYAL BANK OF CANADA
as Bank Investor
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
SUMITOMO BANK, LTD
as Bank Investor
By: /S/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Vice President & Mgr
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