Revolving Uncommitted Trade Receivables Purchase Agreement – Tech Data Corp. and BNP Paribas
REVOLVING UNCOMMITTED TRADE RECEIVABLES PURCHASE
AGREEMENT
This Revolving Uncommitted Trade Receivables Purchase Agreement (together
with all amendments, supplements, restatements, replacements, substitutions,
exhibits, and schedules hereto, this “Agreement“) is made as of this
27th day of January 2010, among TECH DATA CORPORATION, a Florida
corporation, with offices at 5350 Tech Data Drive, Clearwater, Florida 33760
(“Tech Data“) and each of its wholly owned domestic subsidiaries that
executes this Agreement or that executes a Supplement hereto substantially in
the form of Exhibit A (Tech Data and each such subsidiary, individually,
a “Company” and collectively, the “Companies“), and BNP PARIBAS, a
bank organized under the laws of France acting through its New York branch
(“Purchaser“).
RECITALS
WHEREAS, each Company solicits orders for its goods and services sold in the
ordinary course of business to customers located in the United States, which
purchases by such customers are solely for their business, commercial or
organizational purposes and use, and not for their personal, family or household
use;
WHEREAS, each Company desires to offer to sell to Purchaser, pursuant to this
Agreement, certain of such accounts receivable to certain of its customers as
approved by Purchaser as provided herein, and Purchaser may agree to purchase
certain of such accounts receivable in accordance with the terms of this
Agreement and in strict reliance upon the warranties, representations, covenants
and indemnities of the Companies as provided herein;
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
Section 1. Definitions.
In addition to the other terms defined in this Agreement, the following terms
whenever used in this Agreement shall have the respective meanings herein
specified (such meanings to be equally applicable to both the singular and
plural forms of such defined terms):
“Actions” shall mean any Commercial Dispute or any demand, suit, legal
action or proceeding, summons, subpoena, inquiry or investigation of any nature,
civil, criminal, regulatory or otherwise.
“Adjustment(s)” means, with respect to each Eligible Receivable
offered for purchase, as of each Purchase Date, the aggregate of:
(i) all discounts and allowances to which each Obligor would be entitled if
it made full payment on such Eligible Receivable on the most expeditious basis
or in the shortest term or satisfied any other conditions or requirements for
such discounts and allowances;
(ii) all returns, replacements and credits relating to or regarding such
Eligible Receivable, known at the Purchase Date; and
(iii) all partial payments received or collected on or prior to any date of
determination of such Adjustment with respect to the Eligible Receivables.
“Affiliate” of a party shall mean any entity that is owned by, owns or
is under common control with such party or its ultimate parent.
“Applicable Margin” shall initially be 1.35% per annum, or otherwise
as agreed in writing by Tech Data and Purchaser with respect to each Obligor.
“Bankruptcy Exception” shall mean, in respect of any agreement,
contract or commitment, any limitation thereon with respect to enforceability
imposed by any bankruptcy, conservatorship, receivership, insolvency,
moratorium, or similar laws affecting creditors153 rights generally, and any
limitation imposed on the remedies of specific performance and injunction and
other forms of equitable relief applied at the discretion of the court before
which any proceedings therefor may be brought.
“Books and Records” shall mean any Company153s books and records
relating to its Receivables, including all Eligible Receivables offered for
purchase pursuant to this Agreement and all Purchased Receivables, and all
associated Invoices and all related documents and information.
“Business Day” shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York, are authorized or
required by law to close.
“Change in Law” shall mean the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation or
treaty or in the administration, interpretation or application thereof by any
Governmental Authority, or (c) the making or issuance of any request, guideline
or directive (whether or not having the force of law) by any Governmental
Authority.
“Change of Control” shall have the meaning given to such term in the
Credit Agreement.
“Collections” shall refer to all monies collected with respect to the
Purchased Receivables.
“Commercial Dispute” shall mean (i) any returns, replacements,
chargebacks, credits and any other Adjustments relating to any Purchased
Receivable, (ii) any disputes or claims (including, without limitation, any
dispute alleged as to price, invoice terms, quantity, or quality, breach of
contract, warranty, representation, or covenant by any Company in respect of any
Purchased Receivable, or late or wrongful delivery and related claims of release
from liability, counterclaim or any alleged claim of deduction, offset, set-off,
recoupment, counterclaim or otherwise) arising out of, or in connection with,
all or any portion of a Purchased Receivable or any other transaction related
thereto, or (iii) non-payment, in whole or in part, within one hundred twenty
(120) days past the Due Date for such Purchased Receivable for any other reason
or cause other than Financial Inability to Pay.
“Company Guaranty” shall mean the agreement of each Company to
guaranty the payment and performance of the obligations of each other Company
pursuant to this Agreement under the provisions of Section 14.
“Confidential Information” shall mean confidential or proprietary
information about any party, including but not limited to such party153s marketing
philosophy and objectives, competitive advantages and disadvantages, pricing,
accountholder and customer names and addresses, financial results, systems
(including computer systems, owned or licensed software, and systems153 screens,
capabilities, outputs and functions), operating procedures, manuals and
practices, sales volume(s), Goods mix or other information regarding the
business or affairs of each party and its Affiliates, which such party
reasonably identifies to the other party in writing as being confidential and/or
proprietary; provided, however, that in no event shall “Confidential
Information” constitute information of one party (the “first party”): (i) known
to the other party prior to the commencement of discussions between the parties
hereto leading up to the execution of this Agreement and from a source other
than the first party hereto, free of any obligation to keep it confidential;
(ii) in the public domain or made available publicly on a non-confidential basis
from a third party source other than through disclosure known to the other party
to be unauthorized; or (iii) independently developed by or lawfully known to
such other party prior to the date of disclosure of such information by the
first party hereto.
“Control Agreement” shall mean a deposit account control agreement, a
blocked account agreement, or an investment account control agreement, in form
and substance satisfactory to Purchaser with respect to the
Purchaser Deposit Account and the Purchaser Proceeds Investment Account by
and among the Purchaser, each Company, and the financial institution or
securities intermediary with which the Purchaser Deposit Account or the
Purchaser Proceeds Investment Account is maintained.
“Cost of Funds” shall mean the Purchaser153s cost of funds as of the
applicable Purchase Date.
“Credit Agreement” shall mean that certain Third Amended and Restated
Credit Agreement dated as of March 20, 2007, by and among Tech Data Corporation,
Bank of America, N.A., as Administrative Agent, and the Lenders party thereto,
as the same may be amended or replaced from time to time.
“Credit and Collection Policies and Procedures” shall mean those
credit and collection policies and procedures delivered and certified to
Purchaser by Tech Data as of the date of this Agreement.
“Dilution” shall mean, for any Period, the aggregate amount of all
Purchased Receivables not paid when due by the Obligors for any reason other
than their respective Financial Inability to Pay.
“Discount Percentage” shall mean the percentage calculated as set
forth in Schedule 2.
“Dollar” or “$” shall refer to the lawful currency of the
United States of America.
“Due Date” shall mean the date indicated on the Invoice for any
Receivable as the date when final payment in full is due to be made with respect
to such Receivable.
“Eligible Receivables” shall mean Receivables that meet the following
eligibility criteria:
|
(1) |
Obligors on such Receivables at the time of purchase must: |
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(a) |
not have (i) filed a petition for relief, or have filed against them a |
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(b) |
not be the subject of any threatened or pending Actions (other than |
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(2) |
Receivables at the time of purchase must: |
|
(a) |
be an “account” or “payment intangible” (within the meaning of Article 9 of |
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lending or the extension of credit by any Company to an Obligor for personal, |
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(b) |
provide for repayment in full of the unpaid balance thereof not later than |
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(c) |
not be charged off by any Company; |
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(d) |
not be past due; |
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(e) |
not be subject to any security interests, liens, security filings, rights of |
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(f) |
be a United States transaction and be denominated in Dollars; |
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(g) |
not constitute, in whole or in part, any interest, late charges or late fees |
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(h) |
neither contravene any Law nor be the subject of any pending or threatened |
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(i) |
be established and documented pursuant to the selling Company153s policies and |
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(j) |
be Receivables for which the selling Company is in possession of the related |
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(k) |
be Receivables for which Purchaser153s ownership interest in such Receivables |
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(l) |
be Receivables that are in full force and effect and as to which the selling |
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(m) |
be Receivables that satisfy all applicable requirements, if any, of the |
“Excluded Taxes” shall mean, with respect to the Purchaser or any
other recipient of any payment to be made by or on account of any obligation of
any Company hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of Purchaser, in which its applicable office of the
purchase of Eligible Receivables is located, (b) any branch profits or taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which any Company is located, and (c) except as provided in the
following sentence, any withholding tax that is imposed on amounts payable to
the Purchaser that is attributable to the Purchaser153s failure or inability
(other than as a result of a Change in Law) to comply with Section 17.5,
except to the extent that the Purchaser was entitled to receive additional
amounts from any Company with respect to such withholding tax pursuant to
Section 17.1. Notwithstanding anything to the contrary contained in this
definition, “Excluded Taxes” shall not include any Florida documentary tax.
“Federal Funds Rate” shall mean, for any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (i) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of
1.00%) charged to Purchaser on such day on such transactions as determined by
the Purchaser.
“Financial Inability to Pay” shall mean the failure of any Obligor to
make a payment with respect to any Purchased Receivable as a consequence of the
Obligor: (1) instituting a proceeding seeking a judgment of insolvency or
bankruptcy or other similar relief under any bankruptcy or insolvency law, (2)
having instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or other similar relief under any bankruptcy or insolvency law, which
proceeding results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or for the making of an order for its winding-up or
liquidation, or such proceeding is not dismissed, discharged or stayed within
ninety (90) days following the institution thereof, or (3) becoming subject to
the appointment of a receiver, trustee, custodian, or other similar official for
it or for all or substantially all of its assets and as a result thereof the
Obligor is no longer paying its debts generally as they become due.
“Goods” shall mean goods or services sold in the ordinary course of
business by a Company to an Obligor, which purchases are solely for business,
commercial or organizational purposes and use, and not for personal, family or
household use.
“Governmental Authority” shall mean any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.
“Guarantor” shall mean the guarantor who is obligated under a
Guaranty.
“Guaranty” shall mean any guaranty required with respect to an
Obligor, pursuant to which the Guarantor agrees to guaranty the payment and
performance of the obligations of such Obligor to the Companies, or any of them,
and which is either in favor of Purchaser, or is assignable to Purchaser without
notice or consent of such guarantor and which is in form and substance
satisfactory to Purchaser, as the same may be amended, supplemented and restated
from time to time.
“Indemnified Taxes” shall mean all Taxes other than Excluded Taxes.
“Invoice Amount” means, as of each Purchase Date, the total dollar
amount relating to each Eligible Receivable to be purchased by Purchaser as set
forth on the applicable Invoices.
“Invoices” shall mean all sales and purchase orders, invoices, bills
of lading and other contractual rights relating to Receivables generated by the
bona fide sale of Goods to the respective Obligors.
“IRS” shall mean the United States Internal Revenue Service.
“Laws” shall mean all applicable federal, state and local laws, rules
and regulations, including, but not limited to, all statutes, laws, rules,
regulations, ordinances, codes, orders, decisions, injunctions, judgments, and
decrees of any governmental, judicial or administrative authority.
“Lien” shall mean any lien, claim, encumbrance, pledge, charge,
security interest, title retention, assignment, financing statement, preference,
priority or any other rights, restrictions, or interests of any kind, or inuring
to the benefit or preference of any Person with respect to any asset.
“New Invoice Amounts” shall mean, in the calculation of the Discount
Percentage for any Settlement Date, the aggregate amount of the Eligible
Receivables being purchased by Purchaser on such Settlement Date as reflected on
the Invoices for such Eligible Receivables.
“Obligor” shall mean any customer to which a Company sells Goods and
which is approved as an Obligor by Purchaser.
“Other Taxes” shall mean all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or under any other agreement related hereto, or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other agreement related thereto.
“Period” shall refer to the period between Purchase Dates or
Settlement Dates.
“Person” shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any governmental authority.
“Program Fee” shall mean a fee equal to the Receivables Balance on any
given Settlement Date multiplied by the Program Fee Percentage on such
Settlement Date.
“Program Fee Percentage” shall be the percentage calculated as set
forth in Schedule 2 attached hereto.
“Purchase Date” shall mean each date on which any Eligible Receivable
and the related Purchased Assets are purchased from any Company pursuant to this
Agreement which, unless otherwise agreed, shall be a date listed on Schedule
1, as amended and supplemented from time to time.
“Purchase Price” shall mean the purchase price paid to Tech Data for
the account of the selling Company in Dollars for the Receivables being
purchased pursuant to this Agreement, which shall be in an amount computed
according to the following formula:
(1.000 – Discount Percentage (expressed as a decimal))
x (Invoice Amounts – Adjustments)
“Purchased Assets” shall mean, with respect to each Eligible
Receivable sold by any Company pursuant to this Agreement, all of the selling
Company153s rights, title and interests in and to such Receivable (absolutely and
without reservation by such Company of any ownership or other interests),
including without limitation, all Invoices evidencing such Receivable and all
related rights, claims, supporting obligations, remedies, benefits and other
rights and interests as described in the definition of “Receivables.”
“Purchased Receivables” shall mean the Receivables that have been
purchased, or deemed to have been purchased, from a Company pursuant to the
provisions of this Agreement.
“Purchaser Deposit Account” shall refer, individually and
collectively, to any bank account established for the purpose of receiving
payments and other monies and proceeds collected with respect to Receivables,
which shall be maintained with a bank satisfactory to Purchaser, and shall be
subject to a Control Agreement in favor of Purchaser in form and substance
satisfactory to Purchaser.
“Purchaser Indemnitees” shall mean, collectively, Purchaser and its
affiliates, and their respective officers, employees, directors and agents.
“Purchaser Proceeds Investment Account” shall refer, individually and
collectively, to any investment account established for the purpose of investing
proceeds of Receivables, which shall be approved by Purchaser in writing in
advance, shall be established with a bank or other financial institution
satisfactory to Purchaser, and shall be subject to a Control Agreement in favor
of Purchaser, in form and substance satisfactory to Purchaser.
“Purchasing Office” shall mean the office or offices of Purchaser
located in the United States described as such in this Agreement, or such other
office or offices located in the United States as Purchaser may from time to
time notify Tech Data.
“Receivable Adjustment” shall mean the Dollar amount which may be
properly deducted from the amount due under a Purchased Receivable as the result
of the settlement of a Commercial Dispute.
“Receivables” shall mean any account, receivable, account receivable,
indebtedness, other receivable, contract right, chose in action, and general
intangible arising out of and related to accounts and related inventory, chattel
paper, documents and proceeds thereof, wherever located, arising out of the sale
of Goods to an Obligor by any Company; all Invoices; all rights to payment of
any interest, finance, returned check or late charges, if any, in respect of
amounts due under any Invoices; all indebtedness and other obligations owed to
such Company as a result of the sale of such Goods pursuant to the Invoice; any
and all rights and remedies as to stoppage in transit, reclamation, return and
repossession and rights of an unpaid seller, and all returned, reclaimed, and
repossessed Goods sold or financed pursuant thereto; all rights as to any Goods
or other property, contracts of indemnity, letters of credit, guaranties or
sureties, (including without limitation, all Guaranties), pledges,
hypothecations, mortgages, chattel mortgages, security agreements, deeds of
trust, proceeds of insurance, and other collateral, liens or proceeds thereof at
any time constituting supporting obligations for the Receivables; any proceeds
of the foregoing; and any and all other rights, remedies, benefits and
interests, both legal and equitable, to which such Company may be entitled in
respect of any of the foregoing, including, but not limited to, any rights,
remedies, benefits, and interests set forth in the UCC with respect to
“accounts”, “payment intangibles” and “supporting obligations.”
“Receivables Balance” means the total net outstanding balance of all
Purchased Receivables previously purchased by Purchaser from a Company as of any
applicable Purchase Date.
“Receivables List” shall mean a list of Eligible Receivables of Tech
Data and/or any other Company to be delivered to Purchaser pursuant to the terms
of this Agreement (which list may be in the form of hard copy, facsimile or
electronic transmission) identifying such offered Eligible Receivables in a form
satisfactory to Purchaser, together with a summary receivable aging report for
the Eligible Receivables included on such Receivables List, and which shall
include the following information regarding the Eligible Receivables:
(a) a summary of the Eligible Receivables offered to be sold by each Company
on such Purchase Date;
(b) the original terms on which the Eligible Receivables offered to be sold
on such Purchase Date are owed, including the Due Dates;
(c) the respective Obligors by whom they are payable;
(d) a preliminary funding summary estimating the amounts to be paid by
Purchaser for such Eligible Receivables; and
(e) all other data or information otherwise requested by Purchaser in
connection with such Eligible Receivables.
“Receivables Report” shall mean each report which is required to be
delivered to Purchaser under Section 4.3(1).
“Removal Letter” shall mean a letter agreement substantially in the
form of Exhibit B hereto, pursuant to which a Person which is an Obligor
is removed from this Agreement as an “Obligor.”
“Removed Obligor” shall mean a Person which has been an Obligor but
which has been removed from this Agreement as an Obligor pursuant to the terms
of a Removal Letter.
“Repurchase Receivable” shall mean a Purchased Receivable which has
been repurchased by the selling Company in accordance with the provisions of
Section 5.3 or 5.6.
“Sales Report” shall mean each report which is required to be
delivered to Purchaser under Section 8.6.
“SPV” shall mean Tech Data Finance SPV, Inc., a Delaware corporation.
“SPV Receivables Purchase Agreement” shall mean the Receivables
Purchase and Servicing Agreement dated as of May 19, 2000, between Tech Data and
SPV, as the same has been, and may hereafter be, amended, supplemented, restated
and otherwise modified from time to time.
“Servicer” shall have the meaning set forth in Section 11.
“Settlement Date” shall mean each date on which the parties effectuate
the settlement procedures set forth in Section 4.3, which, unless
otherwise agreed, shall be a date listed on Schedule 1, as amended and
supplemented from time to time.
“Settlement Date Discount Percentage” shall have the meaning set forth
in Schedule 2 attached hereto.
“Supplement” shall mean a supplement substantially in the form of
Exhibit A attached hereto, executed by each Person becoming a Company
hereunder and a party to this Agreement.
“Taxes” shall mean all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“Transactions” shall mean the sales and purchases of such accounts
receivable, and all related transactions, contemplated by this Agreement.
“UCC” shall mean the Uniform Commercial Code, as in effect in the
applicable jurisdiction from time to time.
“Unpaid Balance” shall mean, with respect to any Receivable, the
aggregate amount required to prepay in full the principal of, and all interest,
finance, prepayment and other fees or charges of any kind payable in respect of,
such Receivable.
“Unresolved Dispute Amount” shall mean that portion of a Purchased
Receivable which is subject to a Commercial Dispute.
Section 2. Purchase and Sale of Receivables; Uncommitted
Arrangement.
2.1 Each Company may from time to time during the term of this Agreement
offer for sale to Purchaser, and Purchaser may, purchase, upon the terms and
subject to the conditions contained herein, all rights, title and interests in
and to Eligible Receivables, including but not limited to all Invoices relating
to such Eligible Receivables. Receivables to be so purchased shall not represent
any late charges or late fees either to which any Company is contractually
entitled or which have been billed to any Obligor as of any Purchase Date, and
all of such amounts shall be excluded from the Receivables to be so purchased.
The purchase and sale of Receivables pursuant to this Agreement shall be
promptly notified to the Obligors. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, EACH COMPANY EXPRESSLY AGREES
THAT
PURCHASER SHALL NOT BE OBLIGATED TO PURCHASE RECEIVABLES FROM ANY
COMPANY, AND PURCHASER MAY REFUSE, FOR ANY REASON OR FOR NO REASON, TO PURCHASE
RECEIVABLES OFFERED FOR PURCHASE BY ANY COMPANY WHETHER OR NOT THE VARIOUS
CONDITIONS TO PURCHASE SET FORTH IN THIS AGREEMENT HAVE BEEN SATISFIED.
PURCHASER EXPRESSLY AGREES THAT NO COMPANY SHALL BE OBLIGATED TO SELL
RECEIVABLES TO PURCHASER HEREUNDER.
2.2 Eligible Receivables to be purchased and sold will be those specified in
accordance with the procedure set forth in Section 3 below.
2.3 In connection with each sale of Eligible Receivables to Purchaser, each
Company shall sell, transfer, and assign to Purchaser an undivided one hundred
percent (100%) interest to in all of such Company153s rights, title and interests
in and to such Receivables, absolutely and without reservation by such Company
of any ownership or other interests, including without limitation, all Invoices
evidencing or otherwise relating to such Receivables and Purchased Assets.
2.4 Eligible Receivables shall be offered for sale by the Companies pursuant
to this Agreement not more frequently than twice each calendar month after the
date hereof unless otherwise agreed by Purchaser. Unless otherwise agreed by
Tech Data and Purchaser, the Purchase Date[s] for each calendar month shall be
the date[s] set forth on Schedule 1 (unless any such date does not fall
on a Business Day, in which event such Purchase Date shall occur on the
immediately following Business Day). The aggregate amount of the Purchase Price
of all Receivables sold on any Purchase Date shall be not less than $2,000,000.
2.5 Each Company shall offer for sale to Purchaser only those Receivables
that are Eligible Receivables.
2.6 In addition to the other provisions of this Agreement and applicable
Laws, each Company hereby assigns all of its rights under each Guaranty to
Purchaser. Upon request from Purchaser, each Company will execute and deliver a
written confirmation of such assignment of any such Guaranty, in form and
substance satisfactory to Purchaser.
Section 3. Transmission of Receivables Information and Purchase
Procedure.
3.1 Tech Data, on behalf of itself and each other Company offering Eligible
Receivables for purchase, shall deliver to Purchaser before 2:00 p.m. (New York,
New York time) not later than one Business Day immediately preceding each
proposed Purchase Date, or at mutually agreed upon intervals, a Receivables
List. If agreed to by Purchaser, delivery of the Receivables List may be
satisfied in whole or in any part through direct electronic or Internet access
by Purchaser to each selling Company153s systems and databases (or that of such
Company153s third party provider of Receivables services, if such access is
approved by the third party provider) to view or retrieve the information
specified above, at no cost to Purchaser. Each Company shall timely deliver to
Purchaser, in a mutually acceptable form, all other data or information
otherwise requested by Purchaser, in order to purchase such Eligible Receivables
under this Agreement.
3.2 Purchaser shall have the right to inspect, during each Company153s normal
business hours upon at least one (1) Business Day153s prior notice, and to request
and obtain copies of, each Company153s Books and Records relating to Eligible
Receivables.
3.3 The Books and Records maintained by each Company relating to Purchased
Receivables and the collection by each Company of Purchased Receivables shall be
clearly identifiable for all purposes (including audit purposes) and shall
clearly reflect that all rights, title and interests in the Purchased
Receivables have been sold, transferred and assigned. Such Books and Records
shall include information sufficient to permit identification of the interest
owned by the Purchaser in the Purchased Receivables and the particular Purchased
Receivables to which amounts collected in respect of the Purchased Receivables
and other Purchased Assets are attributable. Purchaser (including its auditors,
legal counsel or accountants retained by Purchaser) may inspect and request
copies of such Books and Records relating to Purchased Receivables at any time
at each Company153s offices during normal business
hours and upon notice given by Purchaser, at least one (1) Business Day in
advance to such Company. Each Company shall (i) bear responsibility for ensuring
that Purchaser has the right to inspect, obtain copies, and gain access to any
such Books and Records held or maintained by any third party, and (ii) bear any
loss occasioned by Purchaser153s inability to obtain access to information with
respect to such Purchased Receivables from the Books and Records.
3.4 The payment for the purchase and sale of the Purchased Receivables shall
occur pursuant to Section 4 hereof. The Purchase Date for each sale of
Eligible Receivables shall be deemed to occur on the date Purchaser enters the
purchase of such Eligible Receivables in its books and records (including
entries which may be made electronically to books and records kept on
Purchaser153s computer systems). If any Company fails to deliver to Purchaser any
documents evidencing any of the Purchased Receivables, including documentation
of the Invoice and delivery tracking numbers with respect to any such Purchased
Receivables (and which each such Company shall hold as bailee for Purchaser),
immediately upon request (or, in the case of documentation evidencing the actual
delivery of Goods giving rise to such Eligible Receivables, as soon as
practicable following such request by Purchaser, but in any event not later than
15 days following such request), then Purchaser may require such Company to
repurchase such Receivables in accordance with the procedures set forth in
Section 5.
Section 4. Payment and Purchase Price.
4.1 The purchase of Receivables by Purchaser pursuant to this Agreement on
each Purchase Date shall vest in Purchaser full legal, equitable and beneficial
title in and to each Receivable purchased on such Purchase Date on the terms and
subject to the terms and conditions of this Agreement. The entry of the purchase
of such Receivables by Purchaser in its books and records shall constitute
conclusive evidence of the transfer of ownership of such Receivables to the
Purchaser as provided in this Agreement.
4.2 Purchaser shall pay the Purchase Price in Dollars, as set forth in
Section 4.3, to Tech Data for the account of the selling Company for the
Receivables being purchased. Tech Data shall, on behalf of each of the
Companies, pay the Program Fee in Dollars directly to Purchaser, as set forth in
Section 4.3, on each Settlement Date when (i) no Eligible Receivables are
offered by any Company for sale to Purchaser hereunder, or (ii) the aggregate
amount of Eligible Receivables offered by all Companies for sale to Purchaser is
less than $1,000,000.
4.3 The parties shall adhere to the following settlement procedures, unless
otherwise agreed by Purchaser, for so long as this Agreement remains in effect
or any Receivables Balance remains outstanding, as follows with respect to the
Purchase Price, Program Fee, Repurchase Receivables, and Commercial Disputes:
|
(1) |
The Servicer shall deliver to Purchaser, at least one Business Day prior to |
|
(2) |
The Servicer shall pay to Purchaser, on or before each Settlement Date, (i) |
|
(3) |
Each Company shall identify and hold in trust for Purchaser all amounts |
|
(4) |
Upon satisfaction of the applicable conditions to such purchase, the |
|
(5) |
Except as otherwise expressly provided herein, all payments by any Company |
|
(6) |
The obligations owed by the parties to one another as of each Settlement Date |
|
(7) |
Whenever any payment to be made by one party to the other shall become due on |
Section 5. Risk of Loss.
5.1 Except as specified herein below, Purchaser is assuming the risk of loss
or non-payment, relative to Purchased Receivables, which is due solely to the
respective Obligors153 Financial Inability to Pay on the date payment is due. Each
Company retains all risk of loss or non-payment due in whole or in part to any
Commercial Dispute.
5.2 If an Obligor does not pay all or any portion of a Purchased Receivable
when such Purchased Receivable is due and payable on account of a Commercial
Dispute (other than on account of a Commercial Dispute described in clause (iii)
of the definition of “Commercial Dispute”), the selling Company may attempt to
resolve with such Obligor the non-payment during the sixty (60) day period
immediately following the earlier of (i) the date such Company became aware of
the Commercial Dispute, and (ii) the Due Date for such Purchased Receivable. The
selling Company shall notify Purchaser of any settlement of Commercial Disputes
known to it after reasonable investigation and the applicable Receivable
Adjustments, if any. The selling Company shall pay to Purchaser, the amount of
any such Receivable Adjustment in Dollars on the next Settlement Date. In the
event that such Company pays to Purchaser the Receivable Adjustment or Purchaser
receives payment in full of the remaining unpaid portion of such Purchased
Receivable, then any further payments received by Purchaser on such Purchased
Receivable (but not to exceed the amount of Receivable Adjustment actually paid
by such Company to Purchaser) shall be remitted to such Company and such
Receivable Adjustment shall not be considered as an Adjustment for any further
purpose under this Agreement. Purchaser shall have no duty to investigate the
bona fide nature or the validity of any Commercial Dispute.
5.3 If a Purchased Receivable subject to a Commercial Dispute (other than a
Commercial Dispute limited to the type described in clause (iii) of the
definition of “Commercial Dispute”) has been outstanding for more than sixty
(60) days past the applicable Due Date, then Purchaser may require the selling
Company to repurchase the Unresolved Dispute Amount. For Commercial Disputes
limited to the type described in clause (iii) of the definition of “Commercial
Dispute”, Purchaser may require the selling Company to repurchase the Unresolved
Dispute Amount after it has been outstanding for more than one hundred twenty
(120) days past the Due Date. Subject to this Section 5.3, such Company
shall repay to Purchaser the Unresolved Dispute Amount in Dollars on the next
Settlement Date and upon such repurchase such Unresolved Dispute Amount shall
not be considered as an Adjustment for any further purpose under this Agreement.
If the Unresolved Dispute Amount is paid by such Company, Purchaser receives
further payments of the remaining unpaid portion of such Purchased Receivable
which, combined with the Unresolved Dispute Amount paid by such Company to
Purchaser for such Purchased Receivable, equal to or exceeds the Invoice Amount
(less applicable Adjustments) with respect to such Purchased Receivable, then
further payments received by Purchaser on such Purchased Receivable (but not to
exceed the Unresolved Dispute Amount actually paid by such Company to Purchaser)
shall be remitted to such
Company or to Tech Data on behalf of such Company. If the entire Purchased
Receivable balance is repaid by such Company, it becomes a Repurchase Receivable
(as provided below), and Purchaser, upon payment, shall transfer its undivided
interest in the Repurchase Receivable and the rights appurtenant thereto to such
Company without any warranties, representations, or recourse whatsoever, other
than a representation and warranty that Purchaser has not transferred its
undivided interest in the Repurchase Receivable to any other third party and
that such Repurchase Receivable is not subject to any security interest, lien or
encumbrance granted or created by Purchaser; provided, however,
that such transfer shall not affect, and any Repurchase Receivable so
transferred shall continue to be subject to, the security interest granted
pursuant to Section 8.3 of this Agreement. In the event such Company pays
Purchaser, the amount necessary when added to other sums received for such
Repurchase Receivable, equal to the Invoice Amount (less applicable Adjustments)
of the Repurchase Receivable, then any further payments received by Purchaser
thereafter on such Receivable shall be remitted to such Company or to Tech Data
on behalf of such Company. This repayment obligation shall apply only as set
forth in this Section 5.3. In the event that such Company repays
Purchaser, the entire balance owing under the Purchased Receivable as provided
in this paragraph, or Purchaser receive further payments of the remaining unpaid
portion of such Purchased Receivable from the Obligor, then further payments
received by Purchaser on such Receivable shall be remitted to such Company or to
Tech Data on behalf of such Company. Purchaser shall cooperate with such
Company153s efforts to resolve and obtain payment of an Unresolved Dispute Amount.
5.4 The Servicer will direct the collection process to collect or resolve all
Unresolved Dispute Amounts in accordance with the Credit and Collection Policies
and Procedures.
5.5 If any Purchased Receivable shall be an amount less than that specified
in the Receivables List (after giving effect to any Adjustments known on the
Purchase Date) by reason of a credit issued by the selling Company or a
reduction taken by an Obligor in respect of a discount or other claim, then such
Company shall pay such difference to Purchaser, on the next Settlement Date, or
Purchaser may, at its option, deduct such payment from any payment due from
Purchaser under this Agreement.
5.6 If any warranty made by any Company pursuant to this Agreement (including
the warranties set forth in Section 7 below) in respect of any Purchased
Receivables proves to have been inaccurate or false when deemed made hereunder,
then without limiting Purchaser153s rights and remedies under this Agreement, such
Purchased Receivables shall be repurchased by the selling Company on the next
Settlement Date for the full amount thereof then owing to Purchaser in respect
thereof.
5.7 If any Company owes Purchaser any amount under this Agreement, Purchaser
may, in its sole discretion, deduct, offset or recoup the amount due and payable
from any amount due or to become due under this Agreement from Purchaser,
including without limitation, the payment of the Purchase Price of any Purchased
Receivables thereafter purchased by Purchaser, in its sole discretion, without
any form of prior notice, and such action shall constitute payment of the such
Purchase Price for purposes of this Agreement.
Section 6. Conditions to Purchase of Receivables.
6.1 Conditions to Purchases. The purchase by Purchaser of any Eligible
Receivables identified to Purchaser on the date hereof, and of any additional
Eligible Receivables on any Settlement Date thereafter, is subject to the
fulfillment, to the satisfaction of Purchaser, of each of the conditions
precedent set forth below:
|
(1) |
Purchaser shall have received a counterpart of this Agreement (and, if |
|
(2) |
Purchaser shall have received each original Guaranty required by the |
|
(3) |
Purchaser shall have received satisfactory results of such UCC, judgment, |
|
(4) |
Purchaser shall have received (i) a Control Agreement with respect to the |
|
(5) |
Purchaser shall have received evidence satisfactory to it that written notice |
|
(6) |
Purchaser shall have received a certificate from the Secretary of State of |
|
(7) |
Purchaser shall have received certificates from the state of incorporation or |
|
(8) |
Purchaser shall have received certificates from the secretary or assistant |
|
(9) |
Each Company shall have furnished to Purchaser copies of such governmental or |
|
(10) |
Purchaser shall have received favorable opinions of counsel for the Company, |
|
(11) |
Purchaser shall have received a certificate from Tech Data153s chief executive |
|
(12) |
No material adverse change shall have occurred in the financial condition, |
|
(13) |
Purchaser shall have received payment of all of its reasonable out-of-pocket |
|
(14) |
Each of the representations and warranties set forth in the Agreement shall |
6.2 Additional Conditions to Each Subsequent Purchase. The purchase by
Purchaser of Eligible Receivables after the date hereof is subject to the
fulfillment, to the satisfaction of Purchaser, of each of the additional
conditions precedent set forth below:
|
(1) |
The aging percent current plus 1 to 30 days past due must be above 80% for |
|
(2) |
The Dilution rate shall be less than or equal to six percent (6.0%) for all |
6.3 Uncommitted Arrangement. Each of Tech Data and each Company
acknowledges that this is an uncommitted arrangement, that neither Tech Data nor
any Company is required to pay a commitment fee or comparable fee to Purchaser,
and that Purchaser has no obligation to purchase receivables from Tech Data or
any Company, even if the conditions set forth in this Article 6 are satisfied.
If Purchaser shall decline a request from Tech Data or any Company to purchase
receivables on the terms set forth in this Agreement, Purchaser may : but shall
not be obligated to : propose alternate terms and conditions (including pricing
terms) under which Purchaser would purchase the proffered receivables.
Specifically and without limiting the terms of this Section, payment by Tech
Data of the Program Fee and of any other fees referred to in this Agreement
shall not cause or result in an obligation on the part of Purchaser to purchase
any receivables subsequently offered by Tech Data or any Company.
Section 7. Warranties. At each
time a Receivables List is delivered to Purchaser or on each Purchase Date, and
at each time Purchaser pays the Purchase Price for any Receivables, each of Tech
Data and the other Companies warrants, and shall be deemed to warrant, to
Purchaser, and upon which Purchaser shall be entitled to rely strictly as a
material inducement to purchase the Receivables and to enter into this
Agreement, and all of which shall survive the termination of this Agreement
along with the indemnification provisions provided hereunder, as follows:
7.1 Authorization. Each Company has all power and authority to execute
and deliver this Agreement, to perform fully its obligations hereunder, and to
consummate the Transactions. This Agreement constitutes a legal, valid and
binding obligation of each Company enforceable in accordance with its terms,
subject to the Bankruptcy Exception as to enforceability.
7.2 Purchased Receivables. The information in the Receivables List and
otherwise provided to Purchaser in accordance with the procedures described in
Section 3 is true and accurate, and, as supplemented from time to time,
identifies and sets forth accurate and complete financial information with
respect to each of the Receivables to be purchased as of the Purchase Date. All
names, account numbers, addresses, phone numbers, key contact information and
other non-financial information in the Receivables List or in any written or
electronic format previously approved by Purchaser that is delivered to
Purchaser on its behalf will be true, complete and correct in all respects as of
the applicable Purchase Date as relates to each such Receivable and the
applicable Obligor. The true and correct amount of the principal indebtedness,
excluding any late charges or late fees, lawfully owing under each of such
Receivables as of the Purchase Date is set forth in the Receivables List and in
such other information and said amount represents the balance that is lawfully
owing under such Receivable, net of any credits or returns owing to such Obligor
or any late charges or late fees. Each Purchased Receivable has a positive
balance as of the Purchase Date. No Purchased Receivable has been settled or
discharged in bankruptcy or otherwise. No Purchased Receivable shall represent
or include any interest charges, late fees or late charges.
7.3 Title to the Purchased Receivables. There has been no prior sale,
assignment or transfer of any rights or interest in any of the Receivables to be
purchased as of such Purchase Date or other Purchased Assets related thereto.
Each Company is the sole owner and has good, valid, complete and freely
marketable title in and to the Receivables and Purchased Assets related thereto
(including, but not limited to, the related obligations thereunder) which are
purchased from it by Purchaser, and none of such Receivables or Purchased Assets
are subject to any Lien, other than the rights and interests of Purchaser
pursuant to this Agreement. The execution and delivery of this Agreement is
sufficient to transfer all rights, title and interests in and to such
Receivables and other Purchased Assets related thereto (and the related
obligations thereunder), and as of such Purchase Date, the Purchaser will be
vested with good, valid and freely assignable and marketable title in and to
such Receivables and Purchased Assets related thereto (including the related
obligations), free and clear of any Liens. Each Company has full right and
authority to sell and assign each of such Receivables and other Purchased Assets
to Purchaser pursuant to this Agreement, without the approval or consent of any
Obligor or other Person.
7.4 Enforceability. For each Receivable to be purchased as of such
Purchase Date, the Obligor on such Receivable (i) shall have accepted the Goods,
or (ii) shall be deemed to have accepted the obligation to pay for the Goods
invoiced to such Obligor and shipped to such Obligor or to such Obligor153s
customers pursuant to the terms of any applicable purchase and distribution
agreement. Each such Receivable and the transactions in connection with which it
was created comply with all of the terms and conditions of any agreement between
the selling Company and such Obligor. Each such Receivable and related Purchased
Assets (and the obligations and balances owing thereunder) are the legal, valid
and binding obligations of each Obligor and any surety, guarantor or other
third-party credit support provider thereunder, are absolute and unconditional,
arose out of a bona fide credit and business transaction entered into in the
ordinary course of the business of such Company, and are duly enforceable by
such Company, and as of the Purchase Date will be duly enforceable by Purchaser,
in accordance with the terms of the related documents, and is not subject to any
setoffs, adjustments, rescission, claims or counterclaims, except only as
enforcement may be limited by a Commercial Dispute or the Bankruptcy Exception.
There are no other agreements or understandings between any Company and any such
Obligor or related surety, guarantor or other third-party credit support
provider with respect to any of the Receivables to be purchased as of such
Purchase Date (and the related obligations) except as set forth in the Purchased
Assets related thereto. None of the obligations under any of such Receivables
relates to any credit insurance, insurance or extended warranty programs.
7.5 Receivables. Each Receivable to be purchased by Purchaser as of
such Purchase Date constitutes an Eligible Receivable as of such Purchase Date.
7.6 Compliance with Law. As relates to the Receivables to be purchased
as of the Purchase Date, each Company has entered into sale transactions,
extended and denied credit, created such Receivables and other Purchased Assets
related thereto, and managed and used such Receivables and other Purchased
Assets, in accordance with all applicable Laws. Each of the documents relating
to such Receivables, in all particulars, and any acts or omissions relating to
such Receivables, including, but not limited to, any credit approvals,
rejections or counteroffers, disclosures, extensions of credit, application of
payments, assessment and billing of indebtedness, charges or fees, account
administration, collections, communications, billings, invoices, statements,
notices and all other acts by each Company, with respect to such Receivables,
is, and has been at all times, in compliance with all such applicable laws,
rules and regulations.
7.7 Disclosure. Each Company has disclosed to Purchaser all facts or
documents relating to the Receivables to be purchased as of the Purchase Date,
and the other Purchased Assets related thereto that are material thereto. No
representation or warranty made by any Company as provided in this Agreement, or
any certificates, statements, reports or other documents or information
furnished or to be furnished to Purchaser pursuant hereto, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact required to be stated to make the statements herein or therein
not misleading in the light of the circumstances in which they are made. There
are no facts known to any Company that have not been disclosed to Purchaser that
may materially affect the enforceability or collectibility of such Receivables.
No due diligence or investigation by or on behalf of Purchaser, or information
known or imputed to Purchaser, shall in any way amend, reduce, discharge or
alter any of the warranties, representations or indemnities of any Company in
this Agreement or diminish, reduce, release or waive any of the rights, remedies
or damages afforded to Purchaser.
7.8 Financial Statements. All financial statements and other factual
information furnished to Purchaser by each Company are true and correct and do
not fail to disclose any fact necessary to make such statements or information
not misleading in any respect.
7.9 Litigation. As of the Purchase Date for any given Receivable,
there is no Action pending or threatened against any Company relating to such
Receivable to be purchased as of the Purchase Date, or the other Purchased
Assets related thereto, or any collection, enforcement or use of the foregoing,
and each Company does not know, or have reason to be aware, of any basis for the
same. As of any date after the Purchase Date for any given Purchased Receivable,
there is no Action pending or threatened against any Company relating to such
Purchased Receivable or the other Purchased Assets related thereto or any
collection, enforcement or use of the foregoing (other than Commercial Disputes
arising in the ordinary course of business which alone or in the aggregate do
not constitute a material portion of the Receivables), and each Company does not
know, or have reason to be aware, of any basis for the same. No judgments,
citations, fines or penalties have been entered, asserted or assessed against
any Company with respect to such Receivables or other Purchased Assets related
thereto. None of the Obligors or related sureties, guarantors or other
third-party credit support providers have filed for protection, or been made the
subject of, any voluntary or involuntary petition or filing for protection under
the laws of bankruptcy, receivership or insolvency.
7.10 Absence of Default. No Event of Default has occurred under the
Credit Agreement.
7.11 Advice of Counsel and Accountants. Each Company has sought legal,
accounting and tax advice, independent of Purchaser, regarding the nature of the
Transactions and has not relied on any statement, writing, behavior, omission,
or other action by Purchaser, or legal counsel for Purchaser, in its evaluation
of this Agreement, including, but not limited to, the tax or accounting
treatment for any of the Transactions.
7.12 SPV Receivables Purchase Agreement. Tech Data has previously
designated each Obligor with respect to the Purchased Receivables as to which
such Obligor is liable, pursuant to Section 2.1(a) of the SPV Receivables
Purchase Agreement, so as to exclude such Purchased Receivables from the
“Receivables” being sold and transferred by Tech Data to SPV pursuant to the SPV
Receivables Purchase Agreement. Each such designation remains in full force and
effect and no notice has been given by Tech Data to make such designation
non-effective, except as may otherwise be expressly agreed in writing after the
date hereof by Purchaser.
Section 8. Covenants.
8.1 Liability for Transfer Taxes. Each Company shall be responsible
for the timely payment of, and shall indemnify and hold harmless Purchaser
against, all sales, use, value added, documentary, stamp, gross receipts,
registration, transfer, conveyance, license and other similar taxes, assessments
and fees, arising out of or attributable to the Transactions; provided,
however, that Purchaser shall be responsible for payment of its own state
and federal income taxes and franchise taxes that are in the nature of income
taxes.
8.2 Deliverables. At or before the date of this Agreement, each
Company shall deliver to Purchaser (i) executed acknowledgements and consents
from any Persons purporting to hold any interests in the Receivables of such
Company, in form and substance satisfactory to Purchaser, together with
terminations, or partial releases and authorizations for the filing of such
documents in respect of any such interests, and (ii) such certificates and
opinions of counsel as Purchaser may reasonably require with respect to such
Company, the due authorization, execution, delivery, validity and enforceability
of this Agreement and related documents, and the Transactions. Thereafter, each
Company shall execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be necessary, or
otherwise requested by Purchaser to render effective the consummation of the
Transactions, and to protect Purchaser153s interest in all Receivables.
8.3 Grant of Precautionary Security Interest; UCC Filing. The parties
intend that the Transactions shall constitute a purchase and sale of the
Purchased Receivables and other Purchased Assets as provided above for all
purposes, and not lending transactions, and Purchaser is hereby authorized to
file such UCC financing statements or comparable statements as it determines to
be necessary or appropriate in order to perfect its rights, title and interests
therein. Notwithstanding the foregoing, if for any reason the Transactions are
deemed not to constitute
such a purchase and sale transaction, then each Company intends to and does
hereby grant to Purchaser a continuing first priority security interest in and
to Purchaser153s interests in the following: (A) all Purchased Receivables and
obligations of any kind arising thereunder from and after the Purchase Date
thereof; (B) all other Purchased Assets; (C) all Purchaser Deposit Accounts and
all Purchaser Proceeds Investment Accounts, and all deposits, funds, financial
assets, and investment property deposited to, held in or credited thereto; and
(D) all proceeds of the foregoing. In addition, each Company hereby grants to
Purchaser a continuing first priority security interest in and to such Company153s
interest in and to all Receivables on which any Obligor is the account debtor,
whether or not such Receivables are Purchased Receivables or Purchased Assets;
provided, however, that Purchaser shall release its interest in
any Receivables of an Obligor which becomes a Removed Obligor in accordance with
Section 16 hereof and shall file such releases in respect of UCC
financing statements as may be necessary to evidence such release. The
obligations secured by such precautionary grant of a security interest and by
such other grant of a security interest shall be all of the obligations
whatsoever owing or deemed, after such recharacterization, to be owing by each
Company to Purchaser whether now existing or hereafter created or acquired, and
arising under or in connection with this Agreement or the transactions described
herein or contemplated hereby, but shall not include obligations owed by any
Company to Purchaser under the Credit Agreement and no proceeds of any
Receivable shall be applied to repay any obligation of any Company to Purchaser
under the Credit Agreement. Each Company agrees to cooperate fully with
Purchaser as Purchaser may reasonably request in order to give effect to and to
maintain the first priority status of the security interest granted by this
Section 8.3, including, without limitation, obtaining any and all lien
terminations and releases and UCC financing statement terminations and releases
(containing terms acceptable to Purchaser) necessary to provide Purchaser with
first lien priority with respect to Purchaser153s interest in and to the subject
Receivables from and after the Closing Date. Each Company hereby authorizes
Purchaser to file any UCC financing statements it deems necessary or appropriate
in order to perfect the interest of Purchaser in respect of the Purchased
Receivables and other Purchased Assets and all proceeds thereof. Each Company
agrees to take or refrain from taking, as the case may be, any and all actions
as may be necessary to preserve the continuing interests in favor of Purchaser
conveyed and granted hereunder. Each Company agrees to provide Purchaser with a
duly executed Control Agreement with respect to the Purchaser Deposit Account
and agrees to direct each Obligor to make all payments on each of the
Receivables owed by it either to Purchaser or to the Purchaser Deposit Account
for which a Control Agreement is in effect. Each Company agrees to provide
Purchaser with prior written notice of any proposed change in (i) its
jurisdiction of incorporation or its chief executive office or principal place
of business, (ii) its corporate name, (iii) any dissolution, merger,
consolidation or other corporate reorganization, or (iv) the Purchaser Deposit
Account and the Purchaser Proceeds Investment Account; provided,
however, that no such change shall be effected before such Company has
supplied Purchaser with all requested diligence items such as searches and
signed copies of all releases, authorizations for filings and other documents
and actions as Purchaser may reasonably determine to be necessary or appropriate
to preserve and maintain at all times the perfection and priority of the rights,
title and interests granted or purported to be granted to Purchaser hereunder.
Each Company hereby grants to Purchaser a limited power of attorney, coupled
with an interest, for the purpose of endorsing in the name of such Company any
instruments or checks received by Purchaser with respect to Purchased
Receivables and made payable to such Company.
8.4 Servicing and Setoff. For every Purchased Receivable, except as
otherwise effected in connection with resolution of any Commercial Dispute
pursuant to Section 5.2 and Section 5.3, no Company will, without
the prior written consent of Purchaser, (a) permit any setoff, offset,
counterclaim or right to a deduction or recoupment to arise at any time, (b)
assign, modify, pledge or deal with such Purchased Receivable except as
expressly provided for in this Agreement, nor (c) grant any waiver, release or
other indulgence, except as in accordance with the Credit and Collection
Policies and Procedures to be applied by the Servicer (which procedures have
been delivered and certified to Purchaser as of the date hereof) and agreed to
by the parties. If any Company intends to enter into any contractual arrangement
with any Obligor, other than with respect to the sale of Goods by such Company
to such Obligor, or if any Obligor asserts, or has grounds to assert, any claim
against any Company for any matter unrelated to the sale of Goods by such
Company, such Company shall immediately notify Purchaser in writing of such
matters, giving such detail as Purchaser may request.
8.5 Sale. Each Company shall properly and accurately reflect the sale
of the Purchased Receivables and other Purchased Assets and the sale and
transfer of their ownership to Purchaser in such Company153s Books and Records.
8.6 Sales Report. Each Company, or Tech Data acting on behalf of such
Company, shall deliver to Purchaser a report (“Sales Report“), at least
one Business Day prior to each Settlement Date (and at such other times as may
be requested by Purchaser), describing new credit sales to the Obligors,
collections with respect to Receivables, and Dilution with respect to
Receivables (with sufficient detail to permit Purchaser to monitor and assess
actual Dilution against historic and projected levels as determined by
Purchaser), and such other information as Purchaser may reasonably request to be
included in the Sales Report, all in such form and with such detail as approved
by Purchaser.
8.7 Expenses and Fees. Tech Data shall pay all reasonable
out-of-pocket costs and expenses of Purchaser in connection with any amendment
or waiver with respect hereto which is requested by Tech Data or by any other
Company and shall pay all costs of collection, including reasonable attorneys153
fees, in connection with the enforcement by Purchaser of the obligations of any
Company hereunder.
8.8 Financial Reporting Requirements. Tech Data shall deliver to
Purchaser copies of the financial statements described in, and at the times
required under, the provisions of Article VII of the Credit Agreement, or under
any successor provisions of the Credit Agreement (as amended or replaced) with
respect of reporting of financial statements and other financial information. If
the Credit Agreement is terminated and no replacement Credit Agreement is
entered into, then Tech Data shall thereafter provide such copies of financial
statements and other financial information as would have been required under the
Credit Agreement as in effect immediately prior to such termination. All such
financial statements shall be certified as to accuracy and completeness and
conformity to generally accepted accounting principles by Tech Data153s chief
executive officer, chief financial officer, controller or treasurer.
8.9 Other Reporting Requirements. Tech Data shall notify Purchaser
immediately upon the occurrence of any of the following:
|
(1) |
The revocation, cancellation or other termination or expiration, or purported |
|
(2) |
With respect to any Guaranty required by the Purchaser to be in effect with |
|
(3) |
The occurrence of any “Default” or “Event of Default” as defined in the |
8.10 SPV Receivables Purchase Agreement. Tech Data shall not give any
notice or take any other action to render non-effective any designation,
pursuant to Section 2.1(a) of the SPV Receivables Purchase Agreement, previously
made by it to have the Purchased Receivables of any Obligor excluded from the
“Receivables” being sold and transferred by Tech Data to SPV pursuant to the SPV
Receivables Purchase Agreement, except as may otherwise be expressly agreed in
writing after the date hereof by Purchaser.
Section 9. Indemnification.
Each Company agrees to indemnify and hold harmless Purchaser Indemnitee from
any losses, damages, claims or complaints incurred by Purchaser Indemnitees
(including reasonable attorneys153 fees and expenses of Purchaser Indemnitees) to
the extent of and arising out of third party claims or actions due to: (i) any
Company153s breach of any representations or warranties in this Agreement or its
failure to comply with this Agreement; (ii) any wrongful acts or omissions by
any Company or such Company153s affiliates with respect to the Purchased
Receivables or other Purchased Assets; (iii) any Company153s negligence, unlawful
conduct, or willful misconduct with respect to the Purchased Receivables or
other Purchased Assets; (iv) the death or injury to any Person or the loss,
destruction or damage to any property arising out of the design, manufacture,
distribution or furnishing by any Company of any
goods or services, or related warranties or services, that were the subject
of the Purchased Receivables; (v) with respect to any Purchased Receivables or
other Purchased Assets, any claim or complaint of a third party that any Company
has breached any contract with such party or violated any laws or equitable
principles, or otherwise with respect to Purchaser153s execution, delivery or
performance of this Agreement. Notwithstanding the foregoing, no such
indemnification shall apply with respect to Purchaser Indemnitee to the extent
that any such losses, damages, claims or complaints are the result of the gross
negligence or willful misconduct of Purchaser Indemnitee. Each Company agrees to
pay all reasonable costs and expenses of Purchaser (including reasonable
attorneys153 fees and expenses) incurred in connection with the enforcement of
this Agreement against any Company (including in any bankruptcy or insolvency
proceedings) and any applicable sales taxes, intangibles taxes, documentary
stamp taxes and recording costs in respect of the Transactions.
Section 10. [Reserved]
Section 11. Servicing and Management of Purchased
Receivables.
11.1 Subject to Section 11.3 below, Tech Data (when acting in such capacity,
herein referred to as “Servicer“) shall act as “Servicer” hereunder and
shall service the Purchased Receivables purchased by Purchaser hereunder. The
servicing of such Purchased Receivables shall include, but not be limited to:
(1) managing the collection of the Purchased Receivables and undertaking all
action or all legal or other proceedings to enforce payment, (2) taking all
actions necessary to request or demand that the Obligors pay Purchased
Receivables if such Purchased Receivables are due and payable; and (3)
administering, servicing and managing the collection and servicing of the
Purchased Receivables (including the identification and application of payments
received or collected by Servicer in respect of particular Receivables) in the
ordinary course of business with at least the same standard of care and
procedures as Tech Data uses in the servicing and management of Receivables
owned by Tech Data.
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(1) |
The Servicer shall implement and comply in all respects with the Credit and |
|
(2) |
The Servicer shall administer, service and manage the collection and |
|
(3) |
The Servicer shall arrange to have all payments from each Obligor sent by |
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(4) |
Tech Data shall be responsible for all of the fees, costs and expenses |
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(5) |
The Servicer agrees that, except as historically applied in the normal, |
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(6) |
Upon request by Purchaser, Servicer shall provide information identifying the |
11.2 In partial consideration for its performance of its duties as Servicer,
Purchaser shall assign to Tech Data, and Tech Data shall be entitled to receive
and retain, all amounts from time to time paid by the bank where the Purchaser
Deposit Account is maintained as interest or other investment return on the
funds from time to time held in the Purchaser Deposit Account. Tech Data agrees
that it will report all such amounts as its income and be responsible for paying
all income and other taxes in respect thereof. Amounts shall be payable monthly
to Tech Data upon receipt and review by Purchaser and Tech Data of the
applicable periodic statements for the Purchaser Deposit Account following the
actual crediting of such amounts to the Purchaser Deposit Account.
11.3 Purchaser may, but shall not be obligated to, remove Tech Data as
Servicer and/or direct the Obligors to make payments with respect to Receivables
directly to the Purchaser Deposit Account (or as otherwise directed by
Purchaser) if (i) the Purchaser has given Tech Data at least 30 days prior
written notice that Purchaser has made a good faith determination that Tech Data
is unable to perform its duties as Servicer or is not adequately performing such
duties, (ii) amounts payable by the Obligors with respect to any Purchased
Receivables have not been received by Purchaser within seventy (70) days after
the Purchase Date for such Purchased Receivables (other than amounts in respect
of a Receivable which is repurchased by any Company pursuant to Section 5.3 or
5.6), or (iii) Purchaser shall determine in its reasonable discretion that
Purchaser153s funds are not adequately protected or secure in the possession of
Tech Data. Purchaser shall contemporaneously provide to Tech Data a copy of any
such direction given to any Obligor. Prior to such direction, the Obligors may
continue to make all payments with respect to Purchased Receivables to Tech
Data.
Section 12. Final Payment;
Release. Upon written request from any Company and final payment
of all amounts due to Purchaser from all Obligors and each Company, Purchaser
will (i) release its UCC financing statements with respect to its ownership
interest and precautionary security interest in the Purchased Receivables and
with respect to its security interest in any other Receivables, (ii) terminate
any Control Agreement to which it is a party with respect to the Purchaser
Deposit Account or the Purchaser Proceeds Investment Account into which proceeds
of Receivables have been deposited or are held, and (iii) return to Tech Data,
for the account of Tech Data and each other Company, or will deliver to any
other Person entitled thereto, any proceeds of any Receivables, other than
Purchased Receivables, in its possession.
Section 13. Confidentiality. In
performing its obligations pursuant to this Agreement, each party may receive
from the other or have access to certain Confidential Information. All parties
agree that they will reveal such Confidential Information only to those of their
directors, officers, or employees (and the directors, officers or employees of
any of their Affiliates) with a need to know or who are engaged in the
development or maintenance of the program under this Agreement. Each party
agrees not to disclose Confidential Information to any third party, except as
may be necessary for that party to perform its obligations pursuant to this
Agreement, including but not limited to disclosure of Confidential Information
to such party153s legal counsel, accountants, and financial advisors and except to
any credit rating agency on a confidential basis or as may be agreed to by the
parties or as required by law or compelled by judicial process. If any party
should disclose Confidential Information to a third party, such disclosing party
shall cause said third party to agree to the confidentiality provisions set
forth in this Section 13, unless, after the giving of reasonable prior
written notice, as otherwise required or compelled by law, court order or
judicial process. This Section 13 shall survive the termination of this
Agreement for a period of three (3) years.
Section 14. Company Guaranty. In
consideration of the benefit, directly and indirectly, to each Company
hereunder, each Company hereby guaranties to Purchaser the full and timely
payment of, and shall be jointly and severally liable for, the obligations of
each other Company hereunder, whether or not it, or one of the other Companies,
is the originator of a given Receivable with respect to which such obligations
have arisen, and shall include without limitation, interest accruing or that
would have accrued thereon after the filing of a petition in bankruptcy or other
insolvency proceeding. The obligations of each Company under its respective
Company
Guaranty in this Section 14 shall be unconditional and absolute,
enforceable against each such Company to the full extent of its properties and
assets, irrespective of the validity, regularity or enforceability of this
Agreement, and without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by, and each Company hereby consents
to, the taking, or failure to take, of each of the following actions by
Purchaser; and waives notice of any thereof: (i) acceptance of its guaranty
obligations with respect to obligations of the other Companies hereunder, (ii)
any purchase of any Receivables under this Agreement, (iii) demand for payment,
waiver of any default or any other term or condition of this Company Guaranty or
this Agreement, any extension, acceptance of payment or partial payment,
renewal, settlement, or compromise, (iv) any amendment, modification or
supplement to this Agreement or any document or agreement related to this
Agreement, the Purchased Receivables, the Transactions, or any document or
agreement relating thereto; (v) release of any Company or any Guarantor, release
of any security, nonperfection or invalidity of any direct or indirect security
for any obligation guarantied hereunder, (vi) the invalidity or unenforceability
relating to any obligation of any other Company guarantied hereunder, and (vii)
any other waiver, consent or other action or inaction or circumstance which
might, but for the provisions of this Section, constitute a legal or equitable
discharge of any Company153s obligations hereunder. If at any time any payment on
the obligations guarantied hereby is rescinded or must be otherwise restored or
returned upon the insolvency or bankruptcy of a Company, each other Company153s
obligations hereunder with respect to such payment shall be reinstated as though
such payment had been due but not made at such time. Each Company represents
that it is familiar with the financial condition of each of the other Companies
and covenants that it will keep itself so informed. Each Company hereby agrees
that it will not enforce any right of contribution or subrogation against any
other Company until all obligations of all of the Companies hereunder are fully
satisfied and paid in full. Each Company hereby consents to the addition of any
other Company pursuant to the terms of Section 15 hereof from time to
time and consents to the removal of any Obligors pursuant to the terms of
Section 16 hereof from time to time. Notwithstanding any provision of
this Company Guaranty to the contrary, it is intended that this Company Guaranty
not constitute a “fraudulent conveyance” under any applicable insolvency laws
and it shall be valid and enforceable only to the maximum extent that would not
cause this Company Guaranty, or any Lien securing this Company Guaranty, to
constitute a “fraudulent conveyance” and this Company Guaranty shall
automatically be deemed to have been amended with respect to each affected
Company accordingly at all relevant times.
Section 15. Additional Companies.
From time to time Tech Data may request that an additional subsidiary be
permitted to become a Company hereunder and such subsidiary shall become a
Company hereunder upon satisfaction of each of the following conditions: (i)
such subsidiary shall (a) be a wholly-owned subsidiary of Tech Data and shall be
engaged only in the business in which Tech Data is engaged as of the date
hereof, (b) be organized under the laws of a state of the United States of
America, (c) be in good standing in the state of its formation and in each other
jurisdiction in which it is required to be qualified to do business, (d) be the
owner of each of its Receivables, free and clear of all liens and encumbrances
of any nature whatsoever, (e) be solvent, (f) not be subject to any material
Actions, (g) be in compliance with all laws, (h) have the power and authority to
enter into this Agreement and perform its obligations hereunder without
restriction and without any conflict with any agreement or law applicable to it,
(i) be in compliance with each of its material agreements both before and after
becoming a Company hereunder, and (j) provide Purchaser with its most recent
financial statements and have had no material adverse change in its financial
condition, operations, business, prospects or properties since the date of such
statements; (ii) such subsidiary shall certify each of the foregoing items (a)
through (j) to Purchaser and shall provide such information and copies of
documents as Purchaser shall require in connection with each of the foregoing;
(iii) such subsidiary shall duly authorize, execute and deliver a Supplement and
shall duly authorize, execute and deliver such other documents, agreements,
certificates and opinions as to organizational matters, authority,
enforceability, and true sale as Purchaser shall require; and (iv) each of the
other conditions set forth in Section 6.1 shall have been met to the
satisfaction of Purchaser. Upon execution and delivery of such items, including
such Supplement, such subsidiary shall become a Company hereunder with the same
force and effect as if originally named as a Company herein. The execution and
delivery of any Supplement adding an additional Company as a party to this
Agreement and the acceptance thereof by Purchaser shall not require the consent
of any other Company hereunder whether or not such additional Company meets each
of the foregoing requirements. The rights and obligations of each Company
hereunder shall remain in full force and effect notwithstanding the addition of
any new Company as a party to this Agreement, and each Company, together with
each such additional Company shall be and remain jointly and severally liable
hereunder for the obligations of all Companies.
Section 16. Removed Obligors. Any
Obligor hereunder may be removed as an Obligor hereunder with respect to a given
Company by letter agreement in the form of Exhibit B (“Removal
Letter“) and, upon the satisfaction of each of the following conditions,
shall become a “Removed Obligor” hereunder: (i) Purchaser shall have
received a duly authorized and executed Removal Letter from each Company
requesting that such Obligor be removed as an Obligor hereunder with respect to
such Company, (ii) all Purchased Receivables on which such Obligor is the
account debtor and which were purchased from such Company shall have been repaid
in full, and (iii) no Default or Event of Default under, and as defined in, the
Credit Agreement shall have occurred and be continuing. Purchaser agrees to (i)
release any ongoing interest hereunder in other Receivables owing by a Removed
Obligor, and (ii) release or reassign to the respective Company any Guaranty (or
the applicable rights and interests thereunder) in respect of the Receivables of
such Removed Obligor.
Section 17. Taxes and Other Claims.
17.1 Payments Free of Taxes and Other Claims. Any and all payments by
or on account of any obligation of any Company hereunder shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff, and
without limiting the foregoing, shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes (including any Other Taxes),
provided that if any Company should be required by applicable law to
deduct any Indemnified Taxes (including any Other Taxes) from such payments,
then (i) the sum payable hereunder shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) Purchaser receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the applicable
Company shall make such deductions, and (iii) the applicable Company shall
timely pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
17.2 Payment of Other Taxes by the Companies. Without limiting the
provisions of Section 17.1 above, each Company shall timely pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
17.3 Indemnification by Tech Data. Tech Data shall indemnify the
Purchaser within ten (10) days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Purchaser and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes are correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to Tech Data by Purchaser, shall be conclusive absent
manifest error.
17.4 Evidence of Payment. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Company to a Governmental Authority,
Tech Data shall deliver to the Purchaser the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment, or other evidence of such payment reasonable
satisfactory to Purchaser.
17.5 Status of Purchasers. If the Purchaser is entitled to an
exemption from or reduction of withholding tax under the law of the jurisdiction
in which any Company is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder, it shall deliver to
Tech Data, at the time or times prescribed by applicable law or reasonably
requested by Tech Data, such properly completed and executed documentation
prescribed by applicable law as will permit such payment to be made without
withholding or at a reduced rate of withholding. In addition, the Purchaser, if
requested by Tech Data, shall deliver such other documentation prescribed by
applicable law or reasonably requested by Tech Data as will enable Tech Data to
determine whether or not the Purchaser is subject to backup withholding or
information reporting requirements.
17.6 Treatment of Certain Refunds. If Purchaser determines that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by Tech Data or with respect to which Tech Data has paid additional
amounts pursuant to this Section, it shall pay to Tech Data an amount equal to
such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by Tech Data under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of
Purchaser, and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund), provided that Tech Data, upon the request
of Purchaser, agrees to repay the amount paid over to Tech Data (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to Purchaser in the event Purchaser is required to repay such refund
to such Governmental Authority. This subsection shall not be construed to
require Purchaser to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to Tech Data or any other
Person.
Without limiting the obligations of the Purchaser set forth above regarding
delivery of certain forms and documents to establish Purchaser153s status for
United States withholding tax purposes, Purchaser agrees promptly to deliver to
Tech Data, as Tech Data shall reasonably request, on or prior to the date hereof
and in a timely fashion thereafter, such other documents and forms required by
any relevant taxing authorities under the laws of any other jurisdiction, duly
completed and executed by Purchaser as are required under such laws to confirm
Purchaser153s entitlement to any available exemption from, or reduction of
applicable withholding taxes in respect of all payments to be made to Purchaser
outside of the United States by any Company pursuant to this Agreement or
otherwise to establish Purchaser153s status for withholding tax purposes in such
jurisdiction. Purchaser shall promptly take such steps as shall not be
materially disadvantageous to it, in its reasonable judgment, and as may be
reasonably necessary to avoid any requirement of applicable laws of any such
jurisdiction that any Company make any deduction or withholding for taxes from
amounts payable to Purchaser. Additionally, each Company shall promptly deliver
to Purchaser, as Purchaser shall reasonably request, on or prior to the date
hereof, and in a timely fashion thereafter, such documents and forms required by
any relevant taxing authorities under the laws of any jurisdiction, duly
completed and executed by the applicable Company as are required to be furnished
by Purchaser under such laws in connection with any payment by Purchaser of
Taxes or Other Taxes, or otherwise in connection with this Agreement, with
respect to such jurisdiction.
Section 18. Miscellaneous.
18.1 Each Company will execute whenever requested by Purchaser all documents
and take such actions as Purchaser may reasonably require to vest full legal
title to the undivided interest in the Purchased Receivables and other Purchased
Assets in Purchaser, including, without limitation, the filing of any UCC
financing statements and a written assignment of any Guaranty. On and after each
Purchase Date, each Company shall take such other actions as shall be necessary,
or reasonably requested by Purchaser, to confirm and assure the rights and
obligations provided for in this Agreement and render effective the consummation
of the Transactions.
18.2 Except with respect to the payment of the Purchase Price as provided in
Section 3.2, the sole liability of Purchaser for a non-monetary default
hereunder shall be limited to correction (to the extent reasonably correctable)
of such actions, errors or omissions within the applicable cure period as
provided in this Agreement. No party shall have any liability to any other party
hereunder for indirect, punitive, consequential or incidental damages of any
kind or nature, including, without limitation, loss of profits or damage to or
loss of use of any property, any interruption or loss of service or any loss of
business, howsoever caused.
18.3 This Agreement, together with exhibits, schedules and documents
incorporated by reference in this Agreement, constitutes the entire agreement
between the parties in connection with the purchase and sale of the Purchased
Receivables, and supersedes all prior agreements, negotiations and
communications on such subject matter, whether written or oral.
18.4 The Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns. The
captions in this Agreement are for convenient reference only and are not
intended as a summary of such Sections or subparts, and shall not be considered
a part of this Agreement and shall not affect, limit or modify the construction
or interpretation of the contents of this Agreement. All of the obligations and
responsibilities of the parties as set forth in this Agreement that accrue or
arise on or before the termination of this Agreement shall survive termination,
together with all obligations and responsibilities pursuant to Sections
9, 13, and 14 hereof.
18.5 Neither Tech Data nor any other Company may assign or otherwise transfer
any of its rights or obligations under this Agreement without the prior written
consent of Purchaser. Purchaser may not assign or
otherwise transfer any of its rights or obligations under this Agreement,
except with the prior written consent of Tech Data (which consent shall not be
unreasonably withheld or delayed, but no such consent from Tech Data shall be
required in connection with any such assignment or transfer made by Purchaser to
its subsidiary or other Affiliate), and any such assignment or transfer by
Purchaser shall be made with respect to all of Purchaser153s rights and
obligations under this Agreement and not in part. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto and their respective successors and assigns permitted hereby)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
18.6 If any provision or portion of this Agreement is held to be invalid,
illegal, void or unenforceable by reason of any rule or law, administrative
order, judicial decision, public policy, or otherwise, all other provisions of
this Agreement shall nevertheless remain valid and in full force and in effect,
and this Agreement shall be construed as if such invalid provision was never
part of this Agreement.
18.7 The Agreement and all rights and obligations hereunder, including,
without limitation, matters of construction, validity and performance, shall be
governed by and construed and interpreted in accordance with applicable federal
law and the internal laws of the State of New York without regard to its
principles of conflict of laws. It is expressly understood that changes in the
performance of any party153s obligations under this Agreement necessitated by a
change in interpretation of any applicable federal or state statute or
regulation will not constitute a breach of this Agreement. Purchaser and each
Company hereby irrevocably submit to the non-exclusive jurisdiction of the state
and federal courts located in New York, New York in respect of the
interpretation and enforcement of the provisions of this Agreement.
18.8 TO THE EXTENT PERMITTED BY APPLICABLE LAW, PURCHASER AND EACH COMPANY
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION, CAUSE OF
ACTION OR COUNTERCLAIM ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT,
AND UNDER ANY THEORY OF LAW OR EQUITY, WHETHER NOW EXISTING OR HEREAFTER
ARISING.
18.9 No amendment, modification or discharge of this Agreement, and no waiver
hereunder, shall be valid or binding unless set forth in writing and duly
executed by the party against whom enforcement of the amendment, modification,
discharge or waiver is sought. No delay by any party hereto in exercising any of
its rights hereunder or partial or single exercise of such rights, shall operate
as a waiver of that or any other right. The exercise of one or more of any
party153s rights hereunder shall not be a waiver of, nor preclude the exercise of,
any rights or remedies available to such party under this Agreement, in law or
equity, or otherwise. Any waiver by any party of any breach or default of any
provision of this Agreement shall not be construed as a waiver of any continuing
or succeeding breach or default of any such provision, or a waiver of any right
or rights under this Agreement.
18.10 Whenever notice or demand under the Agreement is given to or made upon
any party by any other party, such notice or demand shall be given in writing,
by courier, fax, or similar method, and such notice or demand shall be deemed to
have been given when the fax, writing, or other form of notice or demand is
either personally delivered to the party or delivered to the address set forth
below. Any party may give notice of a change of address to which notices under
this Agreement are to be sent by giving written notice thereof in the manner
provided in this Section 18.10. Notwithstanding the foregoing, notice of
intent to terminate the Agreement and notice of default shall be sent by
certified mail, return receipt requested, by hand delivery, or by an overnight
courier.
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If to Purchaser: |
BNP Paribas San Francisco Branch One Front Street Post Office Box 26809 San Francisco, CA 94111 Attn: Deborah Scholl Tel: (415) 772-1353 Fax: (415) 291-0563 and |
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BNP Paribas New York Branch 787 Seventh Avenue, 31st Floor New York, NY 10019 Attn: Rolando Perez-Elorza Tel: (917) 472-4376 Fax: (212) 841-2904 |
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If to any Company: |
Tech Data Corporation 5350 Tech Data Drive Clearwater, FL 33760 Attn: Charles V. Dannewitz, Senior Vice President, Tax and Treasurer |
18.11 This Agreement may be executed in any number of separate counterparts,
each of which taken together shall constitute an original and shall constitute
one and the same Agreement, but it shall not be necessary to produce or account
for more than one such counterpart. The signatures of duly authorized
representatives of the parties executed on behalf of the parties hereto
transmitted by facsimile shall constitute original signatures of the parties for
all purposes. The warranties and representations of each Company and each
Company153s obligations with respect to Commercial Disputes, to repurchase any
Repurchase Receivables, to pay any other amount owed to Purchaser, to indemnify
Purchaser and to remit any amounts due to Purchaser hereunder shall survive the
termination of this Agreement.
18.12 Nothing expressed or implied in this Agreement is intended nor shall be
construed to confer upon or give any person other than the parties hereto or
their permitted successors or assigns any rights or remedies under or by reason
of this Agreement.
18.13 Nothing in this Agreement shall be deemed to create a partnership or
joint venture between Purchaser and any of the Companies. Except as expressly
set forth herein, none of the Companies, on the one hand, nor Purchaser, on the
other hand, shall have any authority to bind or commit the other.
18.14 Each of the Companies (other than Tech Data) acknowledges and agrees
that it has appointed and authorized Tech Data to act as its agent and otherwise
to act on its behalf with respect to all matters hereunder, including all
actions to be taken by it under this Agreement, including payments to be made or
received by it and notices or information to be furnished by it and Tech Data
accepts such appointment. Each such Company hereby consents to and ratifies all
such actions that may at any time be taken by Tech Data pursuant to the
foregoing appointment and authorization. Whenever any provision of this
Agreement provides for payments to be made or received, notices to be given or
received, or any other action to be taken under this Agreement, all such
payments, notices and other actions shall be undertaken through Tech Data,
acting on behalf of, and for the benefit of, itself and each of the other
Companies, and each of such other Companies hereby agrees to cooperate with Tech
Data by providing information, payments, or notices, or to otherwise provide
such assistance as is required for Tech Data to comply herewith.
18.15 Purchaser hereby notifies Tech Data and each other Company that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), it is required to obtain, verify and record
information that identifies Tech Data and each other Company, which information
includes the name and address of each of Tech Data and such Company and such
other information as will allow Purchaser to identify Tech Data and each other
Company in accordance with such Act.
Section 19. Purchaser Proceeds Investment Accounts.
Any Company may establish a Purchaser Proceeds Investment Account with a
securities intermediary acceptable to Purchaser for the purpose of investing
proceeds of Receivables subject to the terms of this Section 19.
The Servicer may transfer funds directly from the Purchaser Deposit Account
to the Purchaser Proceeds Investment Account at any time and from time to time,
subject to the provisions of the Control Agreement with respect to Purchaser
Deposit Account; provided, however that neither the Servicer nor
any Company shall at any time deliver or permit to be delivered any funds or
other items to Purchaser Investment Account which are not delivered as a direct
transfer from the Purchaser Deposit Account and which do not constitute
identifiable proceeds of Purchased Receivables or identifiable proceeds of other
Receivables in which Purchaser has a security interest. The funds held in the
Purchaser Proceeds Investment Account may not be invested in any investments
which have not been approved in advance in writing by Purchaser. All dividends,
interest income and other investment return on the funds from time to time held
in the Purchaser Proceeds Investment Account shall be and are hereby assigned by
Purchaser to the Servicer and shall be paid to the Servicer as additional
consideration for its performance of its duties as Servicer. Servicer agrees
that it will report all such amounts as its income and be responsible for paying
all income and other taxes in respect thereof and shall reimburse Purchaser for
any losses occurring with respect to such investments to the extent such losses
result in a reduction in principal or other original investment amounts. Amounts
shall be payable to the Servicer from time to time upon receipt and review by
Purchaser and the Servicer of the applicable periodic statements for the
Purchaser Proceeds Investment Account following the actual crediting of such
amounts to the Purchaser Proceeds Investment Account.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Trade Receivables
Purchase Agreement to be executed as of the day and year first above written.
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TECH DATA CORPORATION |
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By: |
/s/ Charles V. Dannewitz |
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Name: |
Charles V. Dannewitz |
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Title: |
Senior Vice President and Treasurer |
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BNP PARIBAS, |
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as Purchaser |
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By: |
/s/ Deborah Scholl |
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Name: |
Deborah Scholl |
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Title: |
Director |
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By: |
/s/ Beatrice Dubroca |
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Name: |
Beatrice Dubroca |
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Title: |
Director, |
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Global Trade Solutions Americas |
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Schedule 1
Purchase Dates and Settlement Dates
TECH DATA CORPORATION
RECEIVABLE SALE CUT OFF SCHEDULE
(Amended)
|
First Invoice Date |
Last Invoice Date |
Report Due Date |
Purchase Date and Settlement Date |
Schedule 2
The Discount Percentage (expressed as a percentage) for each Settlement Date
after the date hereof (“Settlement Date Discount Percentage“) shall be
calculated as follows:
(Receivables Balance + (New Invoice Amounts-Adjustments)) x
((Cost of Funds + Applicable Margin) x (number of days in the respective
period – 360)
(New Invoice Amounts-Adjustments)
The Program Fee Percentage (expressed as a percentage) shall be calculated as
follows:
(Cost of Funds + Applicable Margin) x (number of days in the respective
period – 360)
Exhibit A
to Trade Receivables Purchase Agreement
Form of Supplement
SUPPLEMENT NO. [ ] dated as of [ ] to the Trade Receivables Purchase
Agreement (as the same may have been previously amended, supplemented or
restated, the “Agreement“) dated as of January 27, 2010, among Tech Data
Corporation (“Tech Data“) and each of its subsidiaries parties thereto
from time to time (Tech Data and each such subsidiary, individually, a
“Company” and collectively, the “Companies“) and BNP Paribas, a
bank organized under the laws of France acting through its New York branch (
“Purchaser“).
A. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Agreement.
B. Purchaser and Tech Data have entered into the Agreement in order to set
forth the terms and conditions applicable to the purchase by Purchaser of
Eligible Receivables as described in the Agreement. Pursuant to Section
15 of the Agreement, each subsidiary of Tech Data which is approved by
Purchaser, which provides such documents, certificates and opinions as may be
requested by Purchaser and which otherwise meets the requirements necessary to
become a “Company,” may elect to enter into the Agreement as an additional
Company (the “New Company“) by executing this Supplement.
Accordingly, Purchaser and the New Company agree as follows:
1. In accordance with Section 15 of the Agreement, the New Company by
its signature below becomes a Company under the Agreement with the same force
and effect as if originally named therein as a Company, and the New Company
hereby (a) agrees to all the terms and provisions of the Agreement applicable to
it as Company thereunder, including without limitation, the guaranty set forth
in Section 14, and (b) represents and warrants that the representations
and warranties made by each Company thereunder are true and correct with respect
to it on and as of the date hereof. Each reference to a Company in the Agreement
shall be deemed to include the New Company. The Agreement is hereby incorporated
herein by reference. The New Company hereby gives its authorization, and
confirms the authorization contained in the Agreement, to Purchaser to file such
Uniform Commercial Code financing statements as Purchaser shall determine to be
necessary or appropriate as provided in the Agreement.
2. The new Company represents and warrants to Purchaser that this Supplement
has been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms. This Supplement may be executed in counterparts each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when Purchaser shall
have received counterparts of this Supplement that, when taken together, bear
the signatures of the New Company and Purchaser. Delivery of an executed
signature page to this Supplement by facsimile transmission, pdf, or other
electronic means shall be as effective as delivery of a manually signed
counterpart of this Supplement.
3. Except as expressly supplemented hereby, the Agreement shall remain in
full force and effect.
4. This Supplement shall be governed by, and construed in accordance with,
the laws of the State of New York.
5. In case any one or more of the provisions contained in this Supplement
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and in
the Agreement shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision hereof in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties hereto shall
A-1
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
6. All communications and notices hereunder shall be in writing and given as
provided in the Agreement. All communications and notices hereunder to the New
Company shall be given to it in care of Tech Data at the address set forth for
Tech Data in the Agreement.
7. The New Company agrees to reimburse Purchaser for its out-of-pocket
expenses in connection with this Supplement, including the fees, disbursements
and other charges of counsel for Purchaser.
[signature page follows]
A-2
IN WITNESS WHEREOF, the New Company and Purchaser have duly executed this
Supplement to the Agreement as of the day and year first above written.
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[NAME OF NEW COMPANY] |
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By: |
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Name: |
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Title: |
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BNP PARIBAS, as Purchaser |
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|
By: |
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Name: |
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Title: |
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By: |
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Name: |
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|
Title: |
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A-3
Exhibit B
to Trade Receivables Purchase Agreement
Form of Removal Letter
BNP Paribas
[ ]
Attn: [ ]
|
Re: |
Obligors under the Trade Receivables Purchase Agreement dated as of January |
Ladies/Gentlemen:
This letter will evidence our agreement regarding one of our customers which
was named as an Obligor under the Facility Agreement and which we now request
that you remove as an Obligor under the Facility Agreement with respect to the
undersigned Company. All capitalized terms used herein and not defined herein,
shall have the meanings set forth in the Facility Agreement. In connection with
the foregoing request, we hereby represent, warrant, covenant, and certify to
you each of the following:
1. The exact legal name of the Obligor to be removed is . It is a
corporation/limited liability company/partnership/other, formed under the laws
of the state of .
2. All Purchased Receivables sold by us to you with respect to such Obligor
have been paid to you in full. We agree to reimburse you for any amounts which
you may subsequently be required to repay with respect to any payments on such
Purchased Receivables.
3. No Default or Event of Default has occurred and is continuing under, and
as defined in, the Credit Agreement.
4. All conditions described in Section 16 of the Facility Agreement
for an Obligor to become a “Removed Obligor” have been satisfied in full as to
such Obligor.
1
If you are in agreement with the foregoing, please sign this letter agreement
and return it to us.
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Sincerely, |
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TECH DATA CORPORATION or [other Company] |
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By: |
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Name: |
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Title: |
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ACKNOWLEDGED AND AGREED TO: |
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BNP PARIBAS, as Purchaser |
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By: |
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Name: |
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Title: |
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By: |
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|
Name: |
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Title: |
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2
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