TRANSFER AND ADMINISTRATION AGREEMENT

Exhibit 10-AAaa

 

TRANSFER AND ADMINISTRATION AGREEMENT

 

among

 

YC SUSI TRUST,

 

LIBERTY STREET FUNDING CORP.,

 

AMSTERDAM FUNDING CORPORATION,

 

FALCON ASSET SECURITIZATION CORPORATION,

 

TECH DATA FINANCE SPV, INC.,

 

as Transferor

 

and

 

TECH DATA CORPORATION,

 

as Collection Agent

 

THE BANK OF NOVA SCOTIA,

 

as a Liberty Bank Investor

 

ABN AMRO BANK N.V.,

 

as an AFC Bank Investor

 

BANK ONE, NA,

 

as a Falcon Bank Investor

 

and

 

BANK OF AMERICA, NATIONAL ASSOCIATION,

 

as Administrative Agent, an SUSI Issuer Bank Investor and Lead Arranger

 

Dated as of May 19, 2000

(composite through Amendment 8, dated as of December 13, 2004)

 

TABLE OF CONTENTS

 

 

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Exhibit 10-AAaa

 

AMENDMENT NUMBER 8 TO

TRANSFER AND ADMINISTRATION AGREEMENT

 

AMENDMENT NUMBER 8 TO TRANSFER AND ADMINISTRATION AGREEMENT (this “ Amendment ”), dated as of December 13, 2004 among TECH DATA CORPORATION, a Florida corporation (“Tech Data”), as collection agent (in such capacity, the “ Collection Agent ”), TECH DATA FINANCE SPV, INC., a Delaware corporation headquartered in California, as transferor (in such capacity, the “ Transferor ”), YC SUSI TRUST, a Delaware statutory trust (“ SUSI Issuer ” (assignee of RECEIVABLES CAPITAL CORPORATION, a Delaware corporation (“ RCC ”)), LIBERTY STREET FUNDING CORP., a Delaware corporation, (“ Liberty ”), AMSTERDAM FUNDING CORPORATION, a Delaware corporation (“ AFC ”), FALCON ASSET SECURITIZATION CORPORATION, a Delaware corporation, (“ Falcon ” and collectively with the SUSI Issuer, Atlantic, Liberty, and AFC, the “ Class Conduits ”), THE BANK OF NOVA SCOTIA, a banking corporation organized and existing under the laws of Canada, acting through its New York Agency (“ Scotia Bank ”), as a Liberty Bank Investor and as agent for Liberty and the Liberty Bank Investors (in such capacity, the “ Liberty Agent ”), ABN AMRO BANK N.V., a banking corporation organized and existing under the laws of the Netherlands and acting through its Chicago Branch (“ ABN AMRO ”), as an AFC Bank Investor and as agent for AFC and the AFC Bank Investors (in such capacity, the “ AFC Agent ”), JPMORGAN CHASE BANK, N.A. (successor by merger to Bank One, N.A.), a national banking association (“ JPMorgan Chase ”), as a Falcon Bank Investor and as agent for Falcon and the Falcon Bank Investors (in such capacity, the “ Falcon Agent ”) and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“ Bank of America ”), as agent for the SUSI Issuer, Liberty, AFC, Falcon, the SUSI Issuer Bank Investors, the Liberty Bank Investors, the AFC Bank Investors and the Falcon Bank Investors (in such capacity, the “ Administrative Agent ”), as a SUSI Issuer Bank Investor, as agent for the SUSI Issuer and the SUSI Issuer Bank Investors (in such capacity, the “ RCC Agent ”) and Lead Arranger, amending that certain Transfer and Administration Agreement dated as of May 19, 2000, among the Transferor, the Collection Agent, the Class Conduits (as defined thereunder) and the Bank Investors (as amended to the date hereof, the “ Original Agreement ” and said agreement as amended hereby, the “ Agreement ”).

 

WHEREAS, the Transferor has requested certain amendments be made to the Original Agreement in respect of, among other things, certain concentration limits;

 

WHEREAS, the Agent, the Class Conduits, the Class Agents and the Bank Investors on the terms and conditions set forth herein, consent to such amendments; and

 

WHEREAS, capitalized terms used herein shall have the meanings assigned to such terms in the Original Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:

 

SECTION 1. Amendment to Original Agreement . The Original Agreement is hereby amended, effective as of the Effective Date, to incorporate the changes set forth in Exhibit A hereto, wherein deletions to the Original Agreement are marked as stricken text and additions are marked as double-underscored text. No exhibits or schedules or the like are attached to Exhibit A hereto.

 

SECTION 2. Amendment to Exhibit E . Exhibit E to the original Agreement is hereby deleted and replaced with Exhibit E attached hereto.

 

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SECTION 3. Affirmations . All parties hereto agree and acknowledge that with respect to each Bank Investor party hereto, each Bank Investor has a Commitment and such Commitment of such Bank Investor shall be the dollar amount set forth opposite such Bank Investor’s signature on the signature page hereto, which may be different from the Original Agreement.

 

SECTION 4. Conditions Precedent . This Amendment shall not become effective until the later of (i) December 31, 2004 and (ii) the day on which the Administrative Agent shall have received the following:

 

(a) A copy of this Amendment executed by each party hereto;

 

(b) A copy of the Resolutions of the Board of Directors of the Transferor and Tech Data certified by its Secretary approving this Amendment and the other documents to be delivered by the Transferor and Tech Data hereunder;

 

(c) A Certificate of the Secretary of the Transferor and Tech Data certifying (i) the names and signatures of the officers authorized on its behalf to execute this Amendment and any other documents to be delivered by it hereunder (on which Certificates the Class Conduits, the Class Agents, the Administrative Agent and the Bank Investors may conclusively rely until such time as the Administrative Agent shall receive from the Transferor and Tech Data a revised Certificate meeting the requirements of this clause (b)(i)) and (ii) a copy of the Transferor’s and Tech Data’s By-Laws.

 

SECTION 5. Representations and Warranties . The Transferor hereby makes to the Class Investors, the Class Agents and the Administrative Agent, on and as of the date hereof, all of the representations and warranties set forth in Section 3.1 of the Original Agreement. In addition, the Collection Agent and the Guarantor hereby make to the Class Investors, the Class Agents and the Administrative Agent, on the date hereof, all the representations and warranties set forth in Section 3.3 of the Original Agreement.

 

SECTION 6. Successors and Assigns . This Amendment shall bind, and the benefits hereof shall inure to the parties hereof and their respective successors and permitted assigns;

 

SECTION 7. Governing Law . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

SECTION 8. Severability; Counterparts . This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. Any provisions of this Amendment which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 9. Captions . The captions in this Amendment are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.

 

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SECTION 10. Ratification . Except as expressly affected by the provisions hereof, the Original Agreement as amended by this Amendment shall remain in full force and effect in accordance with its terms and ratified and confirmed by the parties hereto. On and after the date hereof, each reference in the Original Agreement to “this Agreement”, “hereunder”, “herein” or words of like import shall mean and be a reference to the Original Agreement as amended by this Amendment.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first written above.

 

 

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Commitment $117,300,000		BANK OF AMERICA, NATIONAL ASSOCIATION, as Administrative Agent, SUSI Issuer Agent and as a SUSI Issuer Bank Investor
		By:		/s/ Diane Sonnenstein
		Name:		Diane Sonnenstein
		Title:		Principal

 

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Exhibit A to Amendment Number 8

 

TRANSFER AND ADMINISTRATION AGREEMENT

 

TRANSFER AND ADMINISTRATION AGREEMENT (this “ Agreement ”), dated as of May 19, 2000 among TECH DATA CORPORATION, a Florida corporation (“ Tech Data ”), as collection agent (in such capacity, the “ Collection Agent ”), TECH DATA FINANCE SPV, INC., a Delaware corporation headquartered in California, as transferor (in such capacity, the “ Transferor ”), YC SUSI TRUST, a Delaware statutory trust (“ SUSI Issuer ” (assignee of RECEIVABLES CAPITAL CORPORATION, a Delaware corporation (“ RCC ”)), LIBERTY STREET FUNDING CORP., a Delaware corporation, (“ Liberty ”), AMSTERDAM FUNDING CORPORATION, a Delaware corporation (“ AFC ”), FALCON ASSET SECURITIZATION CORPORATION, a Delaware corporation, (“ Falcon ” and collectively with SUSI Issuer, Liberty, and AFC, the “ Class Conduits ”), THE BANK OF NOVA SCOTIA, a banking corporation organized and existing under the laws of Canada, acting through its New York Agency (“ Scotia Bank ”), as a Liberty Bank Investor and as agent for Liberty and the Liberty Bank Investors (in such capacity, the “ Liberty Agent ”), ABN AMRO BANK N.V., a banking corporation organized and existing under the laws of the Netherlands and acting through its Chicago Branch (“ ABN AMRO ”), as an AFC Bank Investor and as agent for AFC and the AFC Bank Investors (in such capacity, the “ AFC Agent ”), BANK ONE, NA (having its main office in Chicago, Illinois), a national banking association (“ Bank One ”), as a Falcon Bank Investor and as agent for Falcon and the Falcon Bank Investors (in such capacity, the “ Falcon Agent ”) and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking association (“ Bank of America ”), as agent for SUSI Issuer, Liberty, AFC, Falcon, the SUSI Issuer Bank Investors, the Liberty Bank Investors, the AFC Bank Investors and the Falcon Bank Investors (in such capacity, the “ Administrative Agent ”), as an SUSI Issuer Bank Investor, as agent for SUSI Issuer and the SUSI Issuer Bank Investors (in such capacity, the “ SUSI Issuer Agent ”) and Lead Arranger,

 

PRELIMINARY STATEMENTS

 

WHEREAS, Tech Data Finance, Inc., the Collection Agent, Enterprise Funding Corporation, Atlantic, Liberty and Bank of America, Credit Lyonnais and Scotia Bank, as agents and bank investors, have terminated that certain Second Amended and Restated Transfer and Administration Agreement, dated as of February 10, 1999, among Tech Data, as collection agent, Tech Data Finance, Inc., a California corporation, as transferor, Enterprise, Atlantic, Liberty, Bank of America, Credit Lyonnais and Scotia Bank, as amended to the date hereof (the “ Existing Agreement ”);

 

WHEREAS, the parties hereto desire to enter into this Agreement to provide, among other things, for the transfer of certain accounts receivable from the Transferor to the Administrative Agent on behalf of the Class Conduits and the Bank Investors, as applicable;

 

NOW, THEREFORE, the parties hereby agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.1. Certain Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

 

“ ABN AMRO ” means ABN AMRO Bank N.V., a banking corporation organized and existing under the laws of the Netherlands and acting through its Chicago branch, and its successors and assigns.

 

“ Administrative Agent ” means Bank of America, National Association, in its capacity as agent for the Class Investors, and any successors thereto and permitted assigns appointed pursuant to Article X.

 

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“ Adverse Claim ” means a lien, security interest, charge or encumbrance, or other right or claim in, of or on any Person’s assets or properties in favor of any other Person (including any UCC financing statement or any similar instrument filed against such Person’s assets or properties).

 

“ AFC ” means Amsterdam Funding Corporation, and its successors and assigns.

 

“ AFC Agent ” means ABN AMRO Bank, in its capacity as agent for AFC and the AFC Bank Investors, and any successor thereto appointed pursuant to Article IX.

 

“ AFC Bank Investors ” shall mean ABN AMRO and its successors and assigns who are or become parties to this Agreement as such pursuant to an Assignment and Assumption Agreement.

 

“ Affected Assets ” means, collectively, the Receivables and the Related Security, Collections and Proceeds relating thereto.

 

“ Affiliate ” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of voting stock, by contract or otherwise.

 

“ Affiliated Obligor ” means any Obligor which is an Affiliate of another Obligor.

 

“ Aggregate Facility Limit ” means the sum of the Facility Limits for each Class, which shall not exceed $408,000,000.

 

“ Aggregate Maximum Net Investment ” means the sum of the Maximum Net Investments for each Class, which shall not exceed $400,000,000.

 

“ Aggregate Net Investment ” means the sum of the Net Investments for each Class.

 

“ Aggregate Percentage Factor ” means the sum of the Percentage Factors for each Class.

 

“ Aggregate Unpaids ” means, with respect to each Class Investor, as applicable, at any time, an amount equal to the sum of (i) the aggregate accrued and unpaid Discount payable to such Class Investor with respect to all Tranche Periods of such Class Investor at such time, (ii) such Class Investor’s Net Investment at such time and (iii) all other amounts owed (whether due or accrued) hereunder by the Transferor (or the Collection Agent) to the Class Investors at such time.

 

“ Assignment Amount ” means with respect to each Class and with respect to each Bank Investor in such Class at any time an amount equal to the lesser of (i) such Bank Investor’s Pro Rata Share of the Net Investment for the related Class at such time, (ii) such Bank Investor’s unused Commitment and (iii) such other amount as may be separately agreed by a Conduit Investor and each applicable Bank Investor, pursuant to a Liquidity Provider Agreement.

 

“ Assignment and Assumption Agreement ” means an Assignment and Assumption Agreement substantially in the form of Exhibit G attached hereto.

 

“ Average Collection Period ” means at any time a period of days equal to the product of (i) a fraction the numerator of which shall be the amount set forth in the most recent Investor Report as the “Beginning Balance” of the Receivables and the denominator of which shall be the Collections as set forth in the most recent Investor Report and (ii) thirty (30).

 

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“ Bank Investor ” means (i) with respect to the Class of which SUSI Issuer is a member, the SUSI Issuer Bank Investors, (ii) with respect to the Class of which Liberty is a member, the Liberty Bank Investors, (iii) with respect to the Class of which AFC is a member, the AFC Bank Investors, (iv) with respect to the Class of which Falcon is a member, the Falcon Bank Investors, and (v) with respect to any other Class, the financial institutions specified as such in any supplement hereto and their respective successors and permitted assigns.”

 

“ Bank One ” means Bank One, NA (having its main office in Chicago, Illinois), a national banking association, and its successors and assigns.

 

“ Base Rate ” or “ BR ” means, a rate per annum equal to the greater of (i) the prime rate of interest announced by the Administrative Agent from time to time, changing when and as said prime rate changes (such rate not necessarily being the lowest or best rate charged by the Administrative Agent) and (ii) sum of (a) 1.50% and (b) the rate 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, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

“ Benefit Plan ” means any employee benefit plan as defined in Section 3(3) of ERISA in respect of which the Transferor or any ERISA Affiliate of the Transferor, is or at any time during the immediately preceding six years was, an “employer” as defined in Section 3(5) of ERISA.

 

“ BR Tranche ” means, with respect to a Class, a Tranche of such Class as to which Discount is calculated at the Base Rate.

 

“ BR Tranche Period ” means, with respect to a BR Tranche, either (i) prior to the Termination Date for the applicable Class, a period of up to 30 days requested by the Transferor and agreed to by the applicable Class Agent commencing on a Business Day requested by the Transferor and agreed to by such Class Agent, or (ii) after such Termination Date, a period of one day. If such BR Tranche Period would end on a day which is not a Business Day, such BR Tranche Period shall end on the next succeeding Business Day.

 

“ Business Day ” means any day excluding Saturday, Sunday and any day on which banks in New York, New York, Charlotte, North Carolina, San Francisco, California, Clearwater, Florida or Chicago, Illinois are authorized or required by law to close, and, when used with respect to the determination of any Eurodollar Rate or any notice with respect thereto, any such day which is also a day for trading by and between banks in United States dollar deposits in the London interbank market.

 

“ Capitalized Lease ” of a Person means any lease of property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with generally accepted accounting principles.

 

“ Certificate ” means the certificate issued to the Administrative Agent for the benefit of the Class Investors pursuant to Section 2.2(d) hereof.

 

“ Class ” means each of the following groups of Class Investors: (i) SUSI Issuer and the SUSI Issuer Bank Investors, (ii) Liberty and the Liberty Bank Investors, (iii) AFC and the AFC Bank Investors, (iv) Falcon and the Falcon Bank Investors, or (v) any other Class consisting of a multi-seller commercial paper conduit, its related Bank Investors and its respective assigns and participants, as added from time to time with the consent of the Administrative Agent and the Transferor as set forth in Section 11.2(b).

 

“ Class Agent ” means (i) with respect to the Class of which SUSI Issuer is a member, the SUSI Issuer Agent, (ii) with respect to the Class of which Liberty is a member, the Liberty Agent, (iii) with respect to the Class of which AFC is a member, the AFC Agent, (iv) with respect to the Class of which Falcon is a member, the Falcon Agent, and (v) with respect to any other Class, the financial institution or other Person specified as such in any amendment or supplement hereto for such Class.

 

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“ Class Conduit ” shall mean, with respect to any Class, the member in such Class which is a multi-seller commercial paper conduit (and if more than one member in such Class is a multi-seller commercial paper conduit, “ Class Conduit ” shall mean such members collectively).

 

“ Class Investors ” means (i) with respect to the Class of which SUSI Issuer is a member, SUSI Issuer and the SUSI Issuer Bank Investors, (ii) with respect to the Class of which Liberty is a member, Liberty and the Liberty Bank Investors, (iii) with respect to the Class of which AFC is a member, AFC and the AFC Bank Investors, (iv) with respect to the Class of which Falcon is a member, Falcon and the Falcon Bank Investors, and (v) with respect to any other Class, the related Class Conduit and the related Bank Investors.

 

“ Class Percentage ” means, with respect to any Class and at any time of determination, the Net Investment with respect to such Class expressed as a percentage of the aggregate Net Investment with respect to all Classes, each as of such time of determination.

 

“ Closing Date ” means May 19, 2000.

 

“ Collateral Agent ” means with respect to any Class, the Class Agent for such Class, as collateral agent for any Liquidity Provider, any Credit Support Provider, the holders of Commercial Paper and certain other parties.

 

“ Collection Account ” means the account, established by the Administrative Agent, for the benefit of the Class Investors pursuant to Section 2.12.

 

“ Collection Agent ” means at any time the Person then authorized pursuant to Section 6.1 to service, administer and collect Receivables.

 

“ Collection Agent Account ” means the account, established by the Collection Agent, for the benefit of the Class Investors pursuant to Section 2.8(b).

 

“ Collection Agent Default ” shall mean the Collection Agent shall violate any of the covenants set forth in Section 5.5.

 

“ Collections ” means, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including, without limitation, all Finance Charges, if any, insurance proceeds, and cash proceeds of Related Security with respect to such Receivable and any Deemed Collections of such Receivable.

 

“ Commercial Paper ” means the promissory notes issued by one or all, as applicable, of the Class Conduits (or by such Class Conduit’s related commercial paper issuer if the Class Conduit does not itself issue commercial paper) in the commercial paper market.

 

“ Commitment ” means (i) with respect to each Bank Investor party hereto, the commitment of such Bank Investor to make acquisitions from the Transferor or its related Class Conduit in accordance herewith in an amount not to exceed the dollar amount set forth opposite such Bank Investor’s signature on the signature page hereto under the heading “ Commitment ”, minus the dollar amount of any Commitment or portion thereof assigned pursuant to an Assignment and Assumption Agreement plus the dollar amount of any increase to such Bank Investor’s Commitment consented to by such Bank Investor prior to the time of determination, (ii) with respect to any assignee of each Bank Investor party hereto taking pursuant to an Assignment and Assumption Agreement, the commitment of such assignee to make acquisitions from the Transferor or the related Class Conduit, as applicable, not to exceed the amount set forth in such Assignment and Assumption Agreement minus the dollar amount of any Commitment or portion thereof assigned pursuant to an Assignment and Assumption Agreement prior to such time of determination plus the dollar amount of any increase to such assignee’s Commitment consented to by such assignee prior to the time of determination and (iii) with respect to any assignee of an assignee referred to in clause (ii), the commitment of such assignee to make acquisitions from the Transferor or the related Class Conduit not to

 

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exceed the amount set forth in an Assignment and Assumption Agreement between such assignee and its assign minus the dollar amount of any Commitment or portion thereof assigned pursuant to an Assignment and Assumption Agreement plus the dollar amount of any increase to such assignee’s Commitment consented to by such assignee prior to the time of determination.

 

“ Commitment Termination Date ” means, with respect to each Class, August 26, 2005, or such later date to which such Commitment Termination Date may be extended by Transferor, the related Class Agent and the related Bank Investors not later than 60 days prior to the then current Commitment Termination Date for such Class, provided, however, that the Transferor hereby agrees that unless it notifies each Class Agent and all related Bank Investors to the contrary prior to the commencement of such 60-day period in each year, it shall automatically be deemed to have requested an extension of the then current Commitment Termination Date to the date 364 days following the then current Commitment Termination Date, and if such consent is given the Transferor shall be deemed to have agreed, without any further acts or amendments, to an extension of the Commitment Termination Date to the date 364 days from the then current Commitment Termination Date, provided always that such date as extended shall not be later than December 31, 2007.

 

“ Concentration Factor ” means (I) for any Designated Obligor (a) 3% of the Outstanding Balance of all Eligible Receivables; provided further, however, that with respect to any Designated Obligor and its affiliates whose long term unsecured debt obligations are rated at least “A1” by Moody’s, at least “A+” by Standard & Poor’s and at least “A+” by Fitch and with respect to which rating neither Moody’s, Standard & Poor’s nor Fitch shall have made a public announcement anticipating a downgrading of such Designated Obligor’s long term unsecured debt obligations to a rating less than the aforementioned ratings (“ A1/A+ Rated Obligors ”) 5% of the Outstanding Balance of all Eligible Receivables at such time, or (b) such other greater amount determined by the Administrative Agent in the reasonable exercise of its good faith judgment and with the consent of all of the Class Agents and disclosed in a written notice delivered to the Transferor and the Collection Agent, and (II) for each Special Obligor, the Special Concentration Limit (which is expressed as a percentage) applicable to such Special Obligor of the Outstanding Balance of all Eligible Receivables at such time, provided, however, that any such Special Concentration Limit may be revoked at any time effective upon five Business Days written notice from the Agent or any Class Agent to the Transferor, the Collection Agent, the Agent (if the Agent did not deliver such notice) and the Class Agents, such notice to be given in good faith and based on reasonable criteria.

 

“ Conduit Assignee ” means, with respect to a Conduit Investor, any commercial paper conduit that finances its activities directly or indirectly through asset backed commercial paper and is administered by the Class Agent with respect to such Conduit Investor or any of its Affiliates and designated by such Class Agent from time to time to accept an assignment from such Conduit Investor of all or a portion of the Net Investment held by such Conduit Investor.

 

“ Contract ” means an agreement or invoice in substantially the form of one of the forms set forth in Exhibit A attached hereto or otherwise approved by the Administrative Agent, pursuant to or under which an Obligor shall be obligated to pay for merchandise purchased or services rendered.

 

“ Contractual Dilution Ratio ” means the ratio (expressed as a percentage) computed as of the last day of each calendar month by dividing (i) the aggregate amount of contractual rebates granted to any Obligor during such month as required under the terms of any Contract or any other written agreement or exchange of writings evidencing an agreement between the Seller and the applicable Obligor, by (ii) the aggregate amount of sales by the Seller giving rise to Receivables in the month that occurs two months prior to the month of determination.

 

“ Corporate Services Provider ” means, (i) with respect to SUSI Issuer, Amacar Investments LLC, (ii) with respect to Liberty, Global Securitization Services, LLC, and (iii) with respect to AFC, Global Securitization Services, LLC.

 

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“ CP Rate ” for each Class Conduit listed below, shall have the meaning specified in the Annex set forth below for such Class Conduit:

 

 

“ CP Tranche ” means, with respect to a Class, a Tranche of such Class as to which Discount is calculated at the CP Rate.

 

“ CP Tranche Period ” means, with respect to a CP Tranche, a period of days not to exceed 90 days commencing on a Business Day requested by the Transferor and agreed to by the applicable Class Agent pursuant to Section 2.3, or if applicable, such a period selected by the applicable Class Agent. If a CP Tranche Period would end on a day which is not a Business Day, such CP Tranche Period shall end on the next succeeding Business Day.

 

“ Credit Agreement ” means that certain Credit Agreement, dated as of May 19, 2000, between Tech Data and the Transferor.

 

“ Credit and Collection Policy ” shall mean Tech Data’s and the Transferor’s credit and collection policy or policies and practices, relating to Contracts and Receivables existing on the date hereof and referred to in Exhibit B attached hereto, as modified from time to time in compliance with Section 5.2(c).

 

“ Credit Support Agreement ” means with respect to each Class Conduit, any agreement between such Class Conduit (or any related commercial paper issuer that finances the Class Conduit) and a Credit Support Provider evidencing the obligation of such Credit Support Provider to provide credit support to such Class Conduit (or such related issuer) in connection with the issuance by such Class Conduit (or such related issuer) of its Commercial Paper.

 

“ Credit Support Provider ” means, with respect to each Class, the Person or Persons who provides credit support to the related Class Conduit (or any related commercial paper issuer that finances the Class Conduit), in connection with the issuance by such Class Conduit (or such related issuer) of Commercial Paper.

 

“ Current Receivable ” means any Receivable with respect to which no payment is outstanding beyond the date on which such payment was due.

 

“ Dealer Fee ” means, with respect to each Class, the fee payable by the Transferor to the Administrative Agent on behalf of the related Class Conduit, pursuant to Section 2.4 hereof, the terms of which are set forth in the Fee Letter.

 

“ Deemed Collections ” means any Collections on any Receivable deemed to have been received pursuant to Section 2.9(a) or (b) hereof.

 

“Default Ratio” for any calendar month means the quotient, calculated as of the last day of each month and expressed as a percentage, of (a) the aggregate Outstanding Balance of all Receivables which became Defaulted Receivables during such month (such amount shall exclude credits), divided by (b) the aggregate amount of sales by the Seller giving rise to Receivables in the month that occurs four months prior to the month of determination.

 

“ Defaulted Receivable ” means a Receivable: (i) as to which any payment, or part thereof, remains unpaid for 91 days or more from the original due date for such Receivable; (ii) as to which an Event of Bankruptcy has occurred with respect to the Obligor thereof; (iii) which has been identified by the Collection Agent as uncollectible; or (iv) which, consistent with the Credit and Collection Policy, has been or should be written off the Transferor’s books as uncollectible.

 

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“ Defaulting Bank Investor ” shall have the meaning set forth in Section 2.2 hereof.

 

“ Deficit ” shall have the meaning set forth in Section 2.2 hereof.

 

“ Delinquency Ratio ” for any calendar month means the quotient, calculated as of the last day of each month and expressed as a percentage, of (a) the aggregate Outstanding Balance of all outstanding Receivables as to which on the date of determination, any payment or part thereof, remains unpaid for more than 30 days from the original due date for such Receivable and which is not a Defaulted Receivable, divided by (b) the aggregate Outstanding Balance of all Receivables as of such date less Defaulted Receivables as of such date. For purposes of this calculation, any credits shall be excluded.

 

“ Delinquent Receivable ” means a Receivable: (i) as to which any payment, or part thereof, remains unpaid for more than 60 days from the original due date for such Receivable and (ii) which is not a Defaulted Receivable.

 

“ Designated Obligor ” means, at any time, each Obligor; provided , however , that any Obligor shall cease to be a Designated Obligor upon notice from the Administrative Agent to the Transferor and the Collection Agent, delivered at any time in good faith and based upon reasonable criteria.

 

“ Dilution Horizon Ratio ” means, at any time, the quotient, expressed as a percentage, of (a) the aggregate amount of sales by the Seller giving rise to Receivables in the two month period ending on the last day of the most recent month, divided by (b) the aggregate initial Outstanding Balance of Eligible Receivables at the last day of the most recent month.

 

“ Dilution Ratio ” means, the ratio (expressed as a percentage) computed as of the last day of each calendar month by dividing (i) the aggregate amount of credits, rebates, discounts, disputes, warranty claims, repossessed or returned goods, charge back allowances and other dilutive factors, and any other billing or other adjustment by the Transferor or the Collection Agent, provided to Obligor in respect of Receivables during the current month, by (ii) the aggregate amount of sales by the Seller giving rise to Receivables in the month that occurs two months prior to the month of determination.

 

“ Dilution Reserve Percentage ” means the percentage computed as of the last day of each calendar month as:

 

[(2.0 x EDR) - ECDR] + [(DS - EDR) x (DS /EDR)] x DHR

 

Where

 

 

“ Dilution Spike ” means, at any time, the highest average of the Dilution Ratios for any two consecutive months occurring in the twelve months ending on the last day of the most recent calendar month.

 

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“ Discount ” means, with respect to any Tranche Period:

 

(TR x TNI x AD )

                    360

 

Where:

 

 

provided , however , that no provision of this Agreement shall require the payment or permit the collection of Discount in excess of the maximum amount permitted by applicable law; and provided , further , that Discount shall not be considered paid by any distribution if at any time such distribution is rescinded or must be returned for any reason. For any Discount computed by reference to the CP Rate with respect to any Class Conduit that utilizes “pool” funding, the applicable Tranche Rate shall be determined by the applicable Class Agent on or prior to the fifth Business Day of the calendar month following the applicable Tranche Period.

 

“ Early Collection Fee ” means, with respect to any Tranche and for any Tranche Period (such Tranche Period to be determined without regard to the last sentence in Section 2.3(a) hereof) during which the portion of the Net Investment that was allocated to such Tranche Period is reduced for any reason whatsoever, the excess, if any, of (i) the additional Discount that would have accrued during such Tranche Period if such reductions had not occurred, minus (ii) the income, if any, received by the recipients of such reductions from investing the proceeds of such reductions.

 

“ Eligible Investments ” means any of the following: (a) negotiable instruments or securities represented by instruments in bearer or registered or in book-entry form which evidence (i) obligations fully guaranteed by the United States of America; (ii) time deposits in, or bankers acceptances issued by, any depositary institution or trust company incorporated under the laws of the United States of America or any state thereof and subject to supervision and examination by Federal or state banking or depositary institution authorities; provided , however , that at the time of investment or contractual commitment to invest therein, the certificates of deposit or short-term deposits, if any, or long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depositary institution or trust company shall have a credit rating from Moody’, S&P and Fitch of at least “P-1”, “A-1” and “F-1”, respectively, in the case of the certificates of deposit or short-term deposits, or a rating not lower than one of the two highest investment categories granted by Moody’s, S&P and by Fitch; (iii) certificates of deposit having, at the time of investment or contractual commitment to invest therein, a rating from Moody’s, S&P, and Fitch of at least “P-1”, “A-1” and “F-1”, respectively; or (iv) investments in money market funds rated in the highest investment category or otherwise approved in writing by the applicable rating agencies, (b) demand deposits in any depositary institution or trust company referred to in (a)(ii) above; (c) commercial paper (having original or remaining maturities of no more than 30 days) having, at the time of investment or contractual commitment to invest therein, a credit rating from Moody’s, S&P and Fitch of at least “P-1”, “A-1” and “F-1”, respectively; (d) Eurodollar time deposits having a credit rating from Moody’s, S&P and Fitch of at least “P-1”, “A-1” and “F-1”, respectively; and (e) repurchase agreements involving any of the Eligible Investments described in clauses (a)(i), (a)(iii) and (d) hereof so long as the other party to the repurchase agreement has at the time of investment therein, a rating from Moody’s, S&P and Fitch of at least “P-1”, “A-1” and “F-1”, respectively.

 

“ Eligible Receivable ” means, at any time, any Receivable:

 

(i) which has been transferred by Tech Data to the Transferor pursuant to the Purchase Agreement and to which the Transferor has good title thereto, free and clear of all Adverse Claims;

 

(ii) the Obligor of which is a United States resident, is a Designated Obligor at the time of the initial creation of an interest therein hereunder, is not an Affiliate or employee of any of the parties hereto, and is not a government or a governmental subdivision or agency;

 

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(iii) which is not a Defaulted Receivable at the time of the initial creation of an interest of the Administrative Agent therein hereunder;

 

(iv) which is not a Delinquent Receivable at the time of the initial creation of an interest of the Administrative Agent therein;

 

(v) which, (A) arises pursuant to a Contract with respect to which each of the Seller and the Transferor has performed all obligations required to be performed by it thereunder, including without limitation shipment of the merchandise and/or the performance of the services purchased thereunder; (B) has been billed; and (C) according to the Contract related thereto, is required to be paid in full within either (x) 60 days of the original billing date therefor or (y) for Receivables with respect to which the Obligor has been designated as a Special Obligor and until five (5) Business Days after such designation may be revoked by the Agent or any Class Agent, such longer period approved by the Agent and the Class Agents at the time such Obligor was designated a Special Obligor;

 

(vi) which is an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act of 1940, as amended;

 

(vii) a purchase of which with the proceeds of Commercial Paper would constitute a “current transaction” within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended;

 

(viii) which is an “account” or “chattel paper” within the meaning of Article 9 of the UCC of all applicable jurisdictions;

 

(ix) which is denominated and payable only in United States dollars in the United States;

 

(x) which, arises under a Contract that together with the Receivable related thereto, is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms and, to the best knowledge of the Collection Agent or the Transferor is not subject to any litigation, dispute, offset, counterclaim or other defense at such time;

 

(xi) which, together with the Contract related thereto, does not contravene in any material respect any laws, rules or regulations applicable thereto (including, without limitation, laws, rules and regulations relating to truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) and with respect to which no part of the Contract related thereto is in violation of any such law, rule or regulation in any material respect;

 

(xii) which (A) satisfies, in all material respects, all applicable requirements of the applicable Credit and Collection Policy and (B) is assignable without the consent of, or notice to, the Obligor thereunder unless such consent has been obtained and is in effect or such notice has been given;

 

(xiii) which was generated in the ordinary course of Tech Data’s business;

 

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(xiv) the Obligor of which has been directed to make all payments to a specified account of the Collection Agent with respect to which there shall be a Lock-Box Agreement in effect;

 

(xv) which has not been compromised, adjusted or modified (including by the extension of time for payment or the granting of any discounts, allowances or credits); provided , however , that only such portion of such Receivable that is the subject of such compromise, adjustment or modification shall be deemed to be ineligible pursuant to the terms of this clause (xv);

 

(xvi) the assignment of which under the Purchase Agreement by the Seller to the Transferor and hereunder by the Transferor to the Administrative Agent does not violate, conflict or contravene any applicable Law or any contractual or other restriction, limitation or encumbrance; and

 

(xvii) which is not subject to any Adverse Claim and with respect to which no financing statement has been filed except as permitted by this Agreement or any other Transaction Document.

 

“ ERISA ” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

 

“ ERISA Affiliate ” means, with respect to any Person, (i) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code (as in effect from time to time, the “Code”)) as such Person; (ii) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with such Person; or (iii) a member of the same affiliated service group (within the meaning of Section 414(n) of the Code) as such Person, any corporation described in clause (i) above or any trade or business described in clause (ii) above.

 

“ Eurodollar Rate ” means, with respect to any Eurodollar Tranche Period, a rate which is 1.125% in excess of a rate per annum equal to the sum (rounded upwards, if necessary, to the next higher 1/100 of 1%) of (A) the rate obtained by dividing (i) the applicable LIBOR Rate by (ii) a percentage equal to 100% minus the reserve percentage used for determining the maximum reserve requirement as specified in Regulation D (including, without limitation, any marginal, emergency, supplemental, special or other reserves) that is applicable to the Administrative Agent during such Eurodollar Tranche Period in respect of eurocurrency or eurodollar funding, lending or liabilities (or, if more than one percentage shall be so applicable, the daily average of such percentage for those days in such Eurodollar Tranche Period during which any such percentage shall be applicable) plus (B) the then daily net annual assessment rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as estimated by the Administrative Agent for determining the current annual assessment payable by the Administrative Agent to the Federal Deposit Insurance Corporation in respect of eurocurrency or eurodollar funding, lending or liabilities.

 

“ Eurodollar Tranche ” means, with respect to a Class, a Tranche of such Class as to which Discount is calculated at the Eurodollar Rate.

 

“ Eurodollar Tranche Period ” means, with respect to a Eurodollar Tranche, prior to the applicable Termination Date, a period of up to one month requested by the Transferor and agreed to by the applicable Class Agent, commencing on a Business Day requested by the Transferor and agreed to by such Class Agent; provided, however, that if such Eurodollar Tranche Period would expire on a day which is not a Business Day, such Eurodollar Tranche Period shall expire on the next succeeding Business Day; provided, further, that if such Eurodollar Tranche Period would expire on (a) a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Eurodollar Tranche Period shall expire on the next preceding Business Day or (b) a Business Day for which there is no numerically corresponding day in the applicable subsequent calendar month, such Eurodollar Tranche Period shall expire on the last Business Day of such month.

 

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“ Event of Bankruptcy ”, means, with respect to any Person, (i) that such Person (a) shall generally not pay its debts as such debts become due or (b) shall admit in writing its inability to pay its debts generally or (c) shall make a general assignment for the benefit of creditors; (ii) any proceeding shall be instituted by or against such Person seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or any substantial part of its property or (iii) if such Person is a corporation, such Person or any Subsidiary shall take any corporate action to authorize any of the actions set forth in the preceding clauses (i) or (ii).

 

“ Expected Contractual Dilution Ratio ” means, at any time, the average of the Contractual Dilution Ratios for the twelve consecutive months ending on the last day of the most recent calendar month.

 

“ Expected Dilution Ratio ” means, at any time, the average of the Dilution Ratios for the twelve consecutive months ending on the last day of the most recent calendar month.

 

“ Facility Fee ” means, with respect to each Class, the fee payable by the Transferor to the Administrative Agent, for distribution to the Class Investors, pursuant to Section 2.7 hereof, the terms of which are set forth in the Fee Letter.

 

“ Facility Limit ” means (i) with respect to the Class of which SUSI Issuer is a member, $117,300,000; provided that such amount may not at any time exceed the aggregate Commitments with respect to the SUSI Issuer Bank Investors, (ii) with respect to the Class of which Liberty is a member, $96,900,000; provided that such amount may not at any time exceed the aggregate Commitments with respect to the Liberty Bank Investors, in each case, at any time in effect, (iii) with respect to the Class of which AFC is a member, $96,900,000; provided that such amount may not at any time exceed the aggregate Commitments with respect to the AFC Bank Investors, in each case, at any time in effect, (iv) with respect to the Class of which Falcon is a member, $96,900,000; provided that such amount may not at any time exceed the aggregate Commitments with respect to the Falcon Bank Investors, in each case, at any time in effect, and (v) with respect to any other Class, the amount specified as such in any supplement hereto for such Class; provided that, with respect to any other Class, the Facility Limit for such Class shall not at any time exceed the aggregate Commitments for the Bank Investors in such Class.

 

“ Falcon ” means Falcon Asset Securitization Corporation, and its successors and assigns.

 

“ Falcon Agent ” means Bank One, in its capacity as agent for Falcon and the Falcon Bank Investors, and any successor thereto appointed pursuant to Article IX.

 

“ Falcon Bank Investors ” shall mean Bank One and its successors and assigns who are or become parties to this Agreement as such pursuant to an Assignment and Assumption Agreement.

 

“ Fee Letter ” means the letter agreement dated the date hereof between the Transferor, the Collection Agent, the Class Conduits, the Administrative Agent, and the Class Agents with respect to the fees to be paid by the Transferor hereunder, as amended, modified or supplemented from time to time.

 

“ Finance Charges ” means, with respect to a Contract, any finance, interest, late or similar charges owing by an Obligor pursuant to such Contract.

 

“ Fitch ” means Fitch, Inc.

 

“ Fluctuation Factor ” means 1.2.

 

“ Incremental Transfer ” means a Transfer which is made pursuant to Section 2.2(a) hereof.

 

“ Indebtedness ” means, with respect to any Person, such Person’s (i) obligations for borrowed money, (ii) obligations representing the deferred purchase price of property other than accounts payable arising in

 

23

the ordinary course of such Person’s business on terms customary in the trade, (iii) obligations, whether or not assumed, secured by liens or payable out of the proceeds or production from property now or hereafter owned or acquired by such Person, (iv) obligations which are evidenced by notes, acceptances, or other instruments, (v) Capitalized Lease obligations and (vi) obligations for which such Person is obligated pursuant to a Guaranty.

 

“ Indemnified Amounts ” has the meaning specified in Section 8.1 hereof.

 

“ Indemnified Parties ” has the meaning specified in Section 8.1 hereof.

 

“ Interest Component ” shall mean, (A) with respect to any Class Conduit (or any related commercial paper issuer that finances the Class Conduit) not utilizing “pool” funding (i) with respect to any Commercial Paper issued on an interest-bearing basis, the interest payable on such Commercial Paper at its maturity (including any dealer commissions) and (ii) with respect to any Commercial Paper issued on a discount basis, the portion of the face amount of such Commercial Paper representing the discount incurred in respect thereof (including any dealer commissions) and (B) with respect to any Class Conduit (or any related commercial paper issuer that finances the Class Conduit) utilizing “pool funding,” the aggregate Discount accrued and to accrue through the end of the current Tranche Period for the portion of Net Investment accruing Discount calculated by reference to the CP Rate at such time (determined for such purpose using the CP Rate most recently determined by the applicable Class Agent, multiplied by the Fluctuation Factor).

 

“ Investor Report ” means a report, in substantially the form attached hereto as Exhibit E or in such other form as is mutually agreed to by the Transferor and the Administrative Agent, furnished by the Collection Agent pursuant to Section 2.11.

 

“ Law ” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Official Body.

 

“ Lease Agreement ” means the Sublease Agreement, effective as of the date of the effectiveness of this Agreement, between the Transferor, David G. Cartwright and David R. Kelly.

 

“ Liberty Agent ” means The Bank of Nova Scotia, a banking corporation organized and existing under the laws of Canada, acting through its New York Agency, in its capacity as agent for Liberty and the Liberty Bank Investors, and any successor thereto appointed pursuant to Article IX.

 

“ Liberty Bank Investors ” shall mean The Bank of Nova Scotia, and its successors and assigns who are or become parties to this Agreement as such pursuant to an Assignment and Assumption Agreement.

 

“ LIBOR Rate ” means, with respect to any Eurodollar Tranche Period, the rate at which deposits in dollars are offered to the Administrative Agent in the London interbank market at approximately 11:00 a.m. (London time) two Business Days before the first day of such Eurodollar Tranche Period in an amount approximately equal to the Eurodollar Tranche to which the Eurodollar Rate is to apply and for a period of time approximately equal to such Eurodollar Tranche Period.

 

“ Liquidity Provider ” means, with respect to each Class Conduit (or its related commercial paper issuer if the Class Conduit does not itself issue commercial paper), the Person or Persons who will provide liquidity support to such Class Conduit (or such related commercial paper issuer), in connection with the issuance by such Class Conduit (or such related commercial paper issuer) of its Commercial Paper.

 

“ Liquidity Provider Agreement ” means the agreement between each Class Conduit (or, if the Class Conduit does not itself issue commercial paper, either such Class Conduit or its related commercial paper issuer) and the related Liquidity Provider(s) evidencing the obligation of such Liquidity Provider(s) to provide liquidity support to such Class Conduit (or its related commercial paper issuer) in connection with the issuance by such Class Conduit (or such related commercial paper issuer) of its Commercial Paper.

 

24

“ Lock-Box Account ” means an account maintained by the Collection Agent at a Lock-Box Bank for the purpose of receiving Collections from Receivables.

 

“ Lock-Box Agreement ” means an agreement between the Collection Agent and a Lock-Box Bank in substantially the form of Exhibit D hereto.

 

“ Lock-Box Bank ” means each of the banks set forth in Exhibit C hereto and such banks as may be added thereto or deleted there from pursuant to Section 2.8 hereof.

 

“ Loss and Dilution Reserve ” means, with respect to each Class, at any time, an amount equal to the product of (i) the greater of (x) the sum of the Loss Reserve Percentage and the Dilution Reserve Percentage and (y) the Reserve Floor Percentage and (ii) the Net Receivables Balance at such time and (iii) the Class Percentage with respect to such Class at such time.

 

“ Loss Horizon Ratio ” means, as of the last day of any month, the quotient, expressed as a percentage, of (a) the aggregate amount of sales by the Seller giving rise to Receivables in the three month period ending on such day, divided by (b) the aggregate initial Outstanding Balance of Eligible Receivables at such day.

 

“Loss Reserve Percentage ” means on any day the product of (i) 2.0, (ii) the highest three-month average of the Default Ratio occurring during the twelve-month period ending on the last day of the most recent month, and (iii) the Loss Horizon Ratio

 

“ Majority Investors ” shall have the meaning specified in Section 10.1(a) hereof.

 

“ Maximum Net Investment ” means )(i) with respect to the Class of which SUSI Issuer is a member, $115,000,000, (ii) with respect to the Class of which Liberty is a member, $95,000,000, (iii) with respect to the Class of which AFC is a member, $95,000,000, (iv) with respect to the Class of which Falcon is a member, $95,000,000, and (v) with respect to any other Class, the amount set forth pursuant to Section 11.2(b).

 

“ Maximum Percentage Factor ” means 98%.

 

“ Moody’s ” means Moody’s Investors Service, Inc.

 

“ Multiemployer Plan ” means a “Multi employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to by the Transferor, or any ERISA Affiliate of the Transferor on behalf of its employees.

 

“ Net Investment ” means, with respect to each Class, the sum of the cash amounts paid to the Transferor by or on behalf of the Class Investors of such Class for each Incremental Transfer less the aggregate amount of Collections received and applied by the Administrative Agent to reduce such Net Investment pursuant to Sections 2.5, 2.6 or 2.9 hereof; provided that such Net Investment shall be restored and reinstated in the amount of any Collections so received and applied if at any time the distribution of such Collections is rescinded or must otherwise be returned for any reason; and provided further that such Net Investment may be increased by the amount described in Section 10.7(d) as described therein.

 

“ Net Receivables Balance ” means at any time the Outstanding Balance of the Eligible Receivables at such time reduced by the sum of (i) the aggregate amount by which the Outstanding Balance of all Eligible Receivables of each Designated Obligor exceeds the Concentration Factor for such Designated Obligor, plus (ii) the aggregate Outstanding Balance of all Eligible Receivables which are Defaulted Receivables, plus (iii) the aggregate Outstanding Balance of all Eligible Receivables which are Delinquent Receivables.

 

“ Non-Defaulting Bank Investor ” shall have the meaning set forth in Section 2.2 hereof.

 

“ Obligor ” means a Person obligated to make payments for the provision of goods and services pursuant to a Contract.

 

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“ Official Body ” means any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not a part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic.

 

“ Other Transferor ” means any Person other than the Transferor that has entered into a receivables purchase agreement or transfer and administration agreement with any Class Conduit.

 

“ Outstanding Balance ” means, with respect to any Receivable at any time, the then outstanding principal amount thereof including any accrued and outstanding Finance Charges related thereto.

 

“ Percentage Factor ” shall mean, with respect to each Class, the fraction (expressed as a percentage) computed at any time of determination as follows:

 

 

Where:

 

 

Notwithstanding the foregoing the calculation of Percentage Factor is subject to the last sentence of Section 2.2(e).

 

“ Person ” means any corporation, limited liability company, natural person, firm, joint venture, partnership, trust, unincorporated organization, enterprise, government or any department or agency of any government.

 

“ Potential Termination Event ” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Termination Event.

 

“ Program Fee ” with respect to each Class, means the fee payable by the Transferor to the Administrative Agent, for distribution to the Class Investors, pursuant to Section 2.7 hereof, the terms of which are set forth in the Fee Letter.

 

“ Promissory Note ” means that certain Promissory Note, dated as of May 19, 2000, between Tech Data and the Transferor.

 

“ Pro Rata Share ” means, (A) for an SUSI Issuer Bank Investor, the Commitment of such SUSI Issuer Bank Investor divided by the sum of the Commitments of all the SUSI Issuer Bank Investors, (B) for a Liberty Bank Investor, the Commitment of such Liberty Bank Investor divided by the sum of the Commitments of all Liberty Bank Investors, (c) for an AFC Bank Investor, the Commitment of such AFC Bank Investor divided by the sum of the Commitments of all AFC Bank Investors, (D) for a Falcon Bank Investor, the Commitment of such Falcon Bank Investor divided by the sum of the Commitments of all Falcon Bank Investors, and (E) with respect to any other Class, for each Bank Investor of such Class, the Commitment of such Bank Investor divided by the sum of the Commitments of all Bank Investors of such Class.

 

“ Proceeds ” means “proceeds” as defined in Section 9-306(1) of the UCC.

 

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“ Purchase Agreement ” means the Receivables Purchase Agreement dated as of May 19, 2000, between Tech Data and the Transferor, as the same may be amended, supplemented or otherwise modified.

 

“ Purchase Termination Date ” means the date upon which the Transferor shall cease, for any reason whatsoever, to make purchases of Receivables from Tech Data under the Purchase Agreement or the Purchase Agreement shall terminate for any reason whatsoever.

 

“ Purchased Interest ” means the interest in the Receivables acquired by a Liquidity Provider through purchase pursuant to the terms of a Liquidity Provider Agreement.

 

“ Receivable ” means the indebtedness owed to the Transferor or Tech Data by any Obligor (without giving effect to any purchase hereunder by any Class Investor at any time) under a Contract whether constituting an account, chattel paper, instrument or general intangible, arising in connection with the sale of merchandise or services by Tech Data and thereafter transferred to the Transferor by Tech Data pursuant to the Purchase Agreement, and includes the right to payment of any Finance Charges and other obligations of such Obligor with respect thereto. Notwithstanding the foregoing, once a Receivable has been deemed collected pursuant to Section 2.9 hereof, it shall no longer constitute a Receivable hereunder with respect to such portion which has been deemed collected.

 

“ Receivables Systems ” means the computer applications involved in the origination, collection, management or servicing of the Receivables.

 

“ Records ” means all Contracts and other documents, books, records and other information (including, without limitation, computer programs, tapes, discs, punch cards, data processing software and related property and rights) maintained with respect to Receivables and the related Obligors.

 

“ Reinvestment Termination Date ” means, with respect to each Class, the second Business Day after the delivery by the related Class Agent to the Transferor of written notice that the related Class Conduit elects to commence the amortization of the Net Investment for such Class or otherwise liquidate its interest in the Transferred Interest.

 

“ Related Commercial Paper ” shall mean, with respect to Commercial Paper issued by the Class Conduits (or their related commercial paper issuer(s) if the Class Conduits do not themselves issue commercial paper) the proceeds of which were used to acquire, or refinance the acquisition of, an interest in Receivables with respect to the Transferor.

 

“ Related Security ” means with respect to any Receivable, all of the Transferor’s and the Seller’s rights, title and interest in, to and under:

 

(i) the merchandise (including returned or repossessed merchandise), if any, the sale of which by the Seller gave rise to such Receivable;

 

(ii) all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the Contract related to such Receivable or otherwise, together with all financing statements signed by an Obligor describing any collateral securing such Receivable;

 

(iii) all guarantees, indemnities, warranties, insurance (and proceeds and premium refunds thereof) or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise;

 

(iv) all Records related to such Receivable; and

 

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(v) all rights and remedies of the Transferor under the Purchase Agreement, together with all financing statements filed by the Transferor against the Seller in connection therewith; and

 

(vi) all Collections on and Proceeds of any of the foregoing.

 

“ Required Reserves ” means as of the last day of each month an amount equal to the sum of (i) the Loss and Dilution Reserve for all Classes at such time and (ii) the Yield and Servicing Fee Reserve for all Classes at such time.

 

“ Reserve Floor Percentage ” means the percentage calculated as of the last day of each month equal to the greater of (i) 12.0% and (ii) the highest Special Concentration Limit in effect at any time during such month.

 

“ Revolving Subordinated Note ” has the meaning specified in the Purchase Agreement.

 

“ Scotia Bank ” means The Bank of Nova Scotia, a banking corporation organized and existing under the laws of Canada, acting through its New York Agency.

 

“ Section 8.2 Costs ” has the meaning specified in Section 8.2(d) hereof.

 

“ Seller ” means Tech Data Corporation, a Florida corporation and its successors and permitted assigns.

 

“ Servicing Fee ” means, with respect to each Class, the fees payable by the Class Investors of such Class to the Collection Agent, with respect to a Tranche in an amount equal to 0.75% per annum on the amount of the Net Investment for such Class, allocated to such Tranche pursuant to Section 2.3. Such fee shall accrue from the date of the initial purchase of an interest in the Receivables to the later of the Termination Date for such Class or the date on which the Net Investment for such Class is reduced to zero. On or prior to such Termination Date such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in, Section 2.5 hereof. After such Termination Date, such fee shall be payable only from Collections pursuant to, and subject to the priority of payments set forth in, Section 2.6 hereof.

 

“ Special Concentration Limit ” means, for any Obligor while such Obligor is a Special Obligor, the percentage applicable to such Special Obligor and designated as the “Special Concentration Limit” in the written approval of such Obligor as a Special Obligor by the Agent and the Class Agents.

 

“ Special Obligor ” means an Obligor which upon the request of the Transferor is approved in writing by the Agent and each Class Agent as a Special Obligor and with respect to which none of the Agent or any Class Agent shall have revoked such designation, such revocation to be effective upon 5 Business Days written notice from the Agent or a Class Agent, as applicable, to the Collection Agent, the Transferor, the Agent (if such notice is not given by the Agent) and each Class Agent and which revocation shall be given in good faith and based upon reasonable criteria.

 

“ Standard & Poor’s ” or “ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

 

“ Subsidiary ” of a Person means any corporation more than 50% of the outstanding voting interests of which shall at any time be owned or controlled, directly or indirectly, by such Person or by one or more Subsidiaries of such Person or any similar business organization which is so owned or controlled.

 

“ Supplemental Fee Letter ” means that certain fee letter, dated as of May 19, 2000, between the Collection Agent, the Transferor and the Administrative Agent.

 

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“ SUSI Issuer ” means YC SUSI Trust, a Delaware statutory trust, and its successors and assigns.

 

“ SUSI Issuer Agent ” means Bank of America, National Association, in its capacity as agent for SUSI Issuer and the SUSI Issuer Bank Investors, and any successor thereto appointed pursuant to Article IX.

 

“ SUSI Issuer Bank Investors ” shall mean Bank of America, National Association and its successors and assigns who are or become parties to this Agreement as such pursuant to an Assignment and Assumption Agreement.

 

“ Tech Data ” means Tech Data Corporation, a Florida corporation, and its successors and assigns.

 

“ Termination Date ” means, with respect to each Class, the earliest of (i) the Business Day designated by the Transferor to the Administrative Agent and the related Class Agent as the Termination Date for such Class at any time following 60 days’ written notice to the Administrative Agent and such Class Agent, (ii) the date of termination of the commitment of all related Liquidity Providers under the related Liquidity Provider Agreement for the related Class Conduit for such Class, (iii) the date of termination of the commitment of the related Credit Support Provider under the related Credit Support Agreement for the related Class Conduit, (iv) the day upon which a Termination Date for such Class is declared or automatically occurs pursuant to Section 7.2(a) hereof, (v) two Business Days prior to the Commitment Termination Date for such Class, (vi) the day on which a Reinvestment Termination Date for such Class shall occur (provided, that this clause (vi) shall not cause a Termination Date if the applicable Class Conduit assigns its interest in whole to its related Bank Investors pursuant to Section 10.7), and (vii) the Purchase Termination Date.

 

“ Termination Event ” means an event described in Section 7.1 hereof.

 

“ Tranche ” means, with respect to each Class, a portion of the Net Investment for such Class allocated to a Tranche Period for such Class pursuant to Section 2.3 hereof.

 

“ Tranche Period ” means a CP Tranche Period, a Eurodollar Tranche Period or a BR Tranche Period.

 

“ Tranche Rate ” means either (i) the CP Rate quoted for the CP Tranche; (ii) the Eurodollar Rate for a Eurodollar Tranche; or (iii) the Base Rate for a BR Tranche.

 

“ Transaction Documents ” means, collectively, this Agreement, the Purchase Agreement, the Fee Letter, the Supplemental Fee Letter, the Lock-Box Agreements, the Certificate, the Transfer Certificate, the Credit Agreement, the Promissory Note, the Revolving Subordinated Note and all of the other instruments, documents and other agreements executed and delivered by Tech Data or the Transferor in connection with any of the foregoing, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.

 

“ Transfer ” means a conveyance, transfer and assignment by the Transferor to the Class Investors, as applicable, of an undivided percentage ownership interest in Receivables and Related Security hereunder (including, without limitation, as a result of any reinvestment of Collections in the Transferred Interest pursuant to Section 2.2(b) and 2.5 hereof).

 

“ Transfer Certificate” has the meaning specified in Section 2.2(a) hereof.

 

“ Transfer Date ” means, with respect to each Transfer, the Business Day on which such Transfer is made.

 

“ Transfer Price ” means with respect to any Incremental Transfer, the amount paid to the Transferor by the applicable Class Investors as described in the applicable Transfer Certificate.

 

“ Transferor ” means Tech Data Finance SPV, Inc., a Delaware corporation, and its successors and permitted assigns.

 

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“ Transferred Interest ” means, at any time of determination, an undivided percentage ownership interest in (i) each and every then outstanding Receivable, (ii) all Related Security with respect to each such Receivable, (iii) all Collections with respect thereto, and (iv) other Proceeds of the foregoing, which undivided ownership interest shall be equal to the Aggregate Percentage Factor at such time, and only at such time (without regard to prior calculations). The Transferred Interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, shall at all times be equal to the Transferred Interest in each other Receivable, together with Related Security, Collections and Proceeds with respect thereto. To the extent that the Transferred Interest shall decrease as a result of a recalculation of the Aggregate Percentage Factor, the Administrative Agent on behalf of the applicable Class Investors shall be considered to have reconveyed to the Transferor an undivided percentage ownership interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, in an amount equal to such decrease such that in each case the Transferred Interest in each Receivable shall be equal to the Transferred Interest in each other Receivable.

 

“ UCC ” means, with respect to any state, the Uniform Commercial Code as from time to time in effect in such state.

 

“ Unpaid Balance ” means, at any time, with respect to any Receivable, the outstanding principal amount of the indebtedness of the related Obligor incurred in connection with a particular purchase under or evidenced by such Receivable, exclusive of any sales or other tax, if any, included in or payable with respect to such purchase.

 

“Yield and Servicing Fee Reserve” means, with respect to each Class, at any time the product of (i) 2.0%, (ii) the Net Receivables Balance at such time, and (iii) the Class Percentage with respect to such Class.

 

SECTION 1.2. Other Terms . All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles. All terms used in Article 9 of the UCC in the State of New York, California or Delaware, as applicable, and not specifically defined herein, are used herein as defined in such Article 9.

 

SECTION 1.3. Computation of Time Periods . Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including”, the words “to” and “until” each means “to but excluding” and the word “within” means “from and excluding a specified date and to and including a later specified date”.

 

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ARTICLE II

 

PURCHASES AND SETTLEMENTS

 

SECTION 2.1. Facility . With respect to each Class, upon the terms and subject to the conditions herein set forth and provided that the Termination Date for such Class shall not have occurred, (x) the Transferor may, at its option, convey, transfer and assign to the Administrative Agent, on behalf of the applicable Class Investors for such Class and (y) the Administrative Agent, on behalf of the Class Conduit for such Class may, at the option of such Class Conduit, or the Administrative Agent on behalf of the Bank Investors for such Class, provided that such Bank Investors shall have previously accepted the assignment by the related Class Conduit of all of such Class Conduit’s interest in the Affected Assets, shall, if so requested, accept such conveyance, transfer and assignment from the Transferor of, without recourse except as provided herein, undivided percentage ownership interests in the Receivables, together with Related Security, Collections and Proceeds with respect thereto, from time to time. By accepting any conveyance, transfer and assignment hereunder, neither any Class Investor, Class Agent nor the Administrative Agent assumes or shall have any obligations or liability under any of the Contracts, all of which shall remain the obligations and liabilities of the Transferor and the Seller.

 

SECTION 2.2. Transfers; Certificates; Eligible Receivables .

 

(a) Incremental Transfers . With respect to each Class, upon the terms and subject to the conditions herein set forth and provided that a Termination Event or a Potential Termination Event or the Termination Date for such Class shall not have occurred and be continuing, the Transferor may, at its option, convey, transfer and assign to the Administrative Agent on behalf of the applicable Class Investors for such Class and the Administrative Agent, on behalf of the Class Conduit for such Class may, at the option of such Class Conduit, or the Administrative Agent on behalf of the Bank Investors for such Class provided that such Bank Investors shall have previously accepted the assignment by the related Class Conduit of all of such Class Conduit’s interest in the Affected Assets, shall, if so requested by the Transferor, accept such conveyance, transfer and assignment from the Transferor, without recourse except as provided herein, undivided percentage ownership interests in the Receivables, together with Related Security, Collections and Proceeds with respect thereto (each, an “ Incremental Transfer ”); provided that after giving effect to the payment to the Transferor of the Transfer Price therefor (i) the Net Investment for such Class shall not exceed the Maximum Net Investment for such Class, (ii) the sum of the Net Investment for such Class plus , in the case where the Class Conduit for such Class holds a portion of the Transferred Interest, the Interest Component of all outstanding Related Commercial Paper issued by such Class Conduit (or its related commercial paper issuer if the Class Conduit does not itself issue commercial paper) shall not exceed the Facility Limit for such Class and (iii) the Aggregate Percentage Factor shall not exceed the Maximum Percentage Factor; and, provided , that the representations and warranties set forth in Section 3.1 shall be true and correct both immediately before and immediately after giving effect to any such Transfer. All Incremental Transfers shall be made on a pro rata basis to each Class (based upon the relation of the Maximum Net Investment for such Class to the Aggregate Maximum Net Investment).

 

The Transferor shall, by notice to the Administrative Agent given by telecopy, offer to convey, transfer and assign to the Administrative Agent, on behalf of any of the applicable Class Investors, undivided percentage ownership interests in the Receivables and the other Affected Assets relating thereto at least two (2) Business Days prior to the proposed date of any Incremental Transfer. With respect to each Class, each such notice shall specify (w) whether such request is made to the Administrative Agent on behalf of the Class Conduit for such Class or the related Bank Investors for such Class (it being understood and agreed that once any of such Bank Investors acquire any interest in the Transferred Interest hereunder, such Bank Investors shall be required to purchase all of the portion of the Transferred Interest held by the related Class Conduit in accordance with Section 10.7 and thereafter such Class Conduit shall no longer accept any additional Incremental Transfers hereunder), (x) the desired Transfer Price (which shall be at least $5,000,000 per Class or integral multiples of $1,000,000 in excess thereof) or, to the extent that the then available unused portion of the Aggregate Maximum Net Investment is less than such amount, such lesser amount equal to such available portion of such Aggregate Maximum Net Investment), (y) the desired date of such Incremental Transfer and (z) the desired Tranche Period(s) and allocations of the Net

 

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Investment for such Class of such Incremental Transfer thereto as required by Section 2.3. The Administrative Agent will promptly notify each Class Agent and each Class Conduit or related Bank Investors for such Class, as applicable, of the Administrative Agent’s receipt of any request for an Incremental Transfer to be made to such Person. To the extent that any such Incremental Transfer is requested of a Class Conduit, such Class Conduit shall accept or reject such offer by notice given to the Transferor and the Administrative Agent by telephone or telecopy by no later than the close of its business on the Business Day following its receipt of any such request. Each notice of proposed Transfer shall be irrevocable and binding on the Transferor and the Transferor shall indemnify each Class Investor against any loss or expense incurred by such Class Investor, either directly or through a Liquidity Provider Agreement, as a result of any failure by the Transferor to complete such Incremental Transfer including, without limitation, any loss (including loss of anticipated profits) or expense incurred by such Class Investor, either directly or pursuant to a Liquidity Provider Agreement by reason of the liquidation or reemployment of funds acquired by such Class Investor (or a related Liquidity Provider) (including, without limitation, funds obtained by issuing commercial paper or promissory notes or obtaining deposits as loans from third parties) to fund such Incremental Transfer.

 

On the date of the initial Incremental Transfer to the Class Investors, the related Class Agent on behalf of such Class shall deliver written confirmation to the Transferor of the Transfer Price, the Tranche Period(s) and the Tranche Rate(s) relating to such Transfer and the Transferor shall deliver to the Administrative Agent the Transfer Certificate in the form of Exhibit F hereto (the “ Transfer Certificate ”). The Administrative Agent shall indicate the amount of the initial Incremental Transfer together with the date thereof on the grid attached to the Transfer Certificate. On the date of each subsequent Incremental Transfer, the applicable Class Agent shall send written confirmation to the Transferor of the Transfer Price, the Tranche Period(s), the Transfer Date and the Tranche Rate(s) applicable to such Incremental Transfer. The Administrative Agent shall indicate the amount of the Incremental Transfer together with the date thereof as well as any decrease in each Net Investment, on the grid attached to the Transfer Certificate. The Transfer Certificate shall evidence the Incremental Transfers.

 

By no later than 11:00 a.m. (New York time) on any Transfer Date, each Class Investor participating in the Incremental Transfer occurring on such date shall remit its share (which, in the case of an Incremental Transfer to the Bank Investors for any Class shall be equal to each such Bank Investor’s Pro Rata Share) of the aggregate Transfer Price for such Transfer to the account of the Administrative Agent specified therefor from time to time by the Administrative Agent by notice to such Persons. The obligation of each Bank Investor of any Class to remit its Pro Rata Share of any such Transfer Price shall be several from that of each other Bank Investor of such Class and the failure of any such Bank Investor to so make such amount available to the Administrative Agent shall not relieve any other Bank Investor of such Class of its respective obligation hereunder. Following each Incremental Transfer and the Administrative Agent’s receipt of funds from the applicable Class Investors, as aforesaid, the Administrative Agent shall remit to the Transferor’s account at the location indicated in Section 11.3 hereof, in immediately available funds, an amount equal to the Transfer Price for such Incremental Transfer. Unless the Administrative Agent shall have received notice from a Class Investor that such Person will not make its share of any Transfer Price relating to any Incremental Transfer available on the applicable Transfer Date therefor, the Administrative Agent may (but shall have no obligation to) make such Person’s share of any such Transfer Price available to the Transferor in anticipation of the receipt by the Administrative Agent of such amount from such Person. To the extent any Class Investor fails to remit any such amount to the Administrative Agent after any such advance by the Administrative Agent on such Transfer Date, such Class Investor, on the one hand, and the Transferor on the other hand, shall be required to pay such amount, together with interest thereon at a per annum rate equal to the Federal funds rate (as determined in accordance with clause (ii) of the definition of “Base Rate”), in the case of such Class Investor, or the Base Rate, in the case of the Transferor, to the Administrative Agent upon its demand therefor (provided that no Class Conduit shall have any obligation to pay such interest amounts except to the extent that it shall have sufficient funds to pay the face amount of its Commercial Paper (or the commercial paper of its related issuer if the Class Conduit does not itself issue commercial paper) in full). Until such amount shall be repaid, such amount shall be deemed to be Aggregate Net Investment paid by the Administrative Agent and the Administrative Agent shall be deemed to be the owner of a Transferred Interest hereunder. Upon the payment of such amount to the Administrative Agent (x) by the Transferor, the amount of the Aggregate Net Investment shall be reduced by such amount or (y) by such Class Investor, such payment shall constitute such Class Investor’s payment of its share of the applicable Transfer Price for such Transfer.

 

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(b) Reinvestment Transfers . With respect to each Class, on each Business Day occurring after the initial Incremental Transfer hereunder and prior to the Termination Date for such Class, and provided that no Termination Event or Potential Termination Event for such Class shall have occurred and be continuing, the Transferor hereby agrees to convey, transfer and assign to the Administrative Agent, on behalf of the Class Investors of such Class then owning any portion of the Transferred Interest, and in consideration of the Transferor’s agreement to maintain at all times prior to such Termination Date a Net Receivables Balance in an amount at least sufficient to maintain the Aggregate Percentage Factor at an amount not greater than the Maximum Percentage Factor, the Administrative Agent on behalf of the applicable Class Conduit may (at the option of such Class Conduit), and the Administrative Agent on behalf of the applicable Bank Investors shall (in either case, to the extent such Persons then own any portion of the Transferred Interest), purchase from the Transferor undivided percentage ownership interests in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, to the extent that Collections are available for such Transfer in accordance with Section 2.5 hereof, such that after giving effect to such Transfer, (i) the amount of the Net Investment for such Class at the close of business on such Business Day shall be equal to the amount of the Net Investment for such Class at the close of business on the Business Day immediately preceding such Business Day plus the Transfer Price of any Incremental Transfer made by or on behalf of such Class Investors, as applicable, on such day, if any, and (ii) the Transferred Interest in each Receivable, together with Related Security, Collections and Proceeds with respect thereto, shall be equal to the Transferred Interest in each other Receivable, together with Related Security, Collections and Proceeds with respect thereto provided , that the representations and warranties set forth in Section 3.1 shall be true and correct both immediately before and immediately after giving effect to any such Transfer.

 

(c) All Transfers . With respect to each Class, each Transfer shall constitute a purchase by the Administrative Agent, on behalf of the applicable Class Investors for such Class, of an undivided percentage ownership interest in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, then existing, as well as in each and every Receivable, together with Related Security, Collections and Proceeds with respect thereto, which arises at any time after the date of such Transfer. The Administrative Agent’s aggregate undivided percentage ownership interest in the Receivables, together with the Related Security, Collections and Proceeds with respect thereto, held on behalf of all Class Investors, shall equal the Aggregate Percentage Factor in effect from time to time. With respect to each Class, so long as the Administrative Agent on behalf of either the Class Conduit for such Class, on the one hand, or the Bank Investors for such Class, on the other hand, owns all of the Transferred Interest related to the Net Investment for such Class at such time, each of such Class Conduit’s and each such Bank Investor’s undivided percentage ownership interest in the Affected Assets shall equal such Person’s ratable share (determined on the basis of the relationship that such Person’s portion of Net Investment for such Class bears to the Aggregate Net Investment for all Classes at such time) of the Aggregate Percentage Factor at such time.

 

(d) Certificate . The Transferor shall issue to the Administrative Agent the Certificate, in the form of Exhibit M, on or prior to the date hereof.

 

(e) Aggregate Percentage Factor . The Aggregate Percentage Factor shall be initially computed as of the opening of business on May 19, 2000. Thereafter, with respect to each Class, until the Termination Date for such Class, the Percentage Factor for such Class shall be automatically recomputed as of the close of business of the Collection Agent on each day. The Percentage Factor for each Class shall remain constant from the time as of which any such computation or recomputation is made until the time as of which the next such recomputation, if any, shall be made. The Percentage Factor with respect to each Class, as computed as of the day immediately preceding the Termination Date for such Class, shall remain constant at all times on and after such Termination Date, until the date on which the Net Investment for such Class has been reduced to zero, and all accrued Discounts and Servicing Fees for such Class have been paid in full and all other Aggregate Unpaids owing to the applicable Class Investor(s) for such Class have been paid in full to such Class Investors.

 

At no time shall the Aggregate Percentage Factor exceed one hundred percent (100%). Notwithstanding anything to the contrary contained herein, should the Aggregate Percentage Factor exceed one hundred percent (100%) at any time, the Percentage Factor for each Class shall be calculated pro rata , based upon the relationship of the Net Investment for such Class to the Aggregate Net Investment.

 

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(f) Defaulting Bank Investor . If, by 2:00 p.m. (New York City time), one or more Bank Investors in any Class (each, a “ Defaulting Bank Investor ,” and each Bank Investor in such class other than any Defaulting Bank Investor being referred to as a “ Non-Defaulting Bank Investor ”) fails to make its Pro Rata Share of the Transfer Price available to the Administrative Agent pursuant to Section 2.2(a), or any Assignment Amount payable by it to its related Class Conduit pursuant to Section 10.7(a) (the aggregate amount not so made available being herein called in either case the “ Deficit ”), then the Administrative Agent shall, by no later than 2:30 p.m. (New York City time) on the applicable Transfer Date or the applicable date that such Assignment Amount is payable (the “ Assignment Date ”), as the case may be, instruct each Non-Defaulting Bank Investor to pay or deposit, by no later than 3:00 p.m. (New York City time), in immediately available funds, to the Administrative Agent or such Class Conduit, an amount equal to the lesser of (i) such Non-Defaulting Bank Investor’s proportionate share (based upon the relative Commitments of the Non-Defaulting Bank Investors) of the Deficit and (ii) its unused Commitment. A Defaulting Bank Investor shall forthwith, upon demand, pay to the Administrative Agent for the ratable benefit of the Non-Defaulting Bank Investors all amounts paid by each Non-Defaulting Bank Investor on behalf of such Defaulting Bank Investor, together with interest thereon, for each day from the date a payment was made by a Non-Defaulting Bank Investor until the date such Non-Defaulting Bank Investor has been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate, plus 2.00% per annum . In addition, if, after giving effect to the provisions of the immediately preceding sentence, any Deficit with respect to any Assignment Amount continues to exist, each such Defaulting Bank Investor shall pay interest to the Administrative Agent, for the account of the related Class Conduit, on such Defaulting Bank Investor’s portion of such remaining Deficit, at a rate per annum , equal to the sum of the Base Rate, plus 2.00% per annum , for each day from the applicable Assignment Date until the date such Defaulting Bank Investor shall pay its portion of such remaining Deficit in full to such Class Conduit. For the avoidance of doubt, no Bank Investor shall be obligated pursuant to this paragraph (f) with respect to any Deficit created by a Bank Investor which is not a member of the same Class.

 

SECTION 2.3. Selection of Tranche Periods and Tranche Rates .

 

(a) Transferred Interest held by a Class Conduit Prior to a Termination Event . With respect to each Class, at all times hereafter, but prior to the occurrence of a Termination Event for such Class and not with respect to any portion of the Transferred Interest held by the Bank Investors for such Class (or any of them), the Transferor may, subject to the applicable Class Conduit’s approval and the limitations described below, request Tranche Periods with respect to such Class and allocate a portion of the Net Investment for such Class to each such selected Tranche Period, so that the aggregate amounts allocated to such outstanding Tranche Periods at all times shall equal the Net Investment held by such Class Conduit. The Transferor shall give the Administrative Agent irrevocable notice (which notice the Administrative Agent shall forward to the applicable Class Agent) by telephone of the new requested Tranche Period(s) and whether the requested Tranche Rate applicable thereto shall be the applicable CP Rate, the Base Rate or the Eurodollar Rate at least (i) three (3) Business Days prior to the expiration of any then existing Tranche Period if the Tranche Rate to be applicable to the new requested Tranche Period shall be the applicable Eurodollar Rate, (ii) two (2) Business Days prior to the expiration of any then existing Tranche Period if the Tranche Rate to be applicable to the new requested Tranche Period shall be the Base Rate, and (iii) two (2) Business Days prior to the expiration of any then existing Tranche Period if the Tranche Rate to be applicable to the new requested Tranche Period shall be the CP Rate; provided , however , that such Class Agent may select, in its reasonable discretion, any such new Tranche Period and the Tranche Rate if (i) the Transferor fails to provide such notice on a timely basis or (ii) such Class Agent determines, in its reasonable discretion, that the Tranche Rate or the Tranche Period requested by the Transferor is unavailable or for any reason commercially undesirable. Each Class Conduit confirms that it is its intention to allocate all or substantially all of the Net Investment held by it to one or more of its CP Tranche Periods; provided that such Class Conduit may determine from time to time, in its sole discretion, that funding such Net Investment by means of one or more of its CP Tranche Periods is not desirable for any reason. If a Liquidity Provider acquires from any Class Conduit a Purchased Interest with respect to the Receivables pursuant to the terms of the applicable Liquidity Provider Agreement, the applicable Class Agent, on behalf of such Liquidity Provider, may exercise the right of selection granted to such Class Conduit hereby. The initial Tranche Period applicable to any such Purchased Interest shall be a period of not greater than 14 days. In the case of any Tranche Period selected pursuant to this paragraph that is outstanding upon the occurrence of a Termination Event, such Tranche Period shall end on such date. Notwithstanding the foregoing, with respect to any portion of the Transferred Interest held by a Class Conduit which utilizes “pool” funding, such Class Conduit or its Class Agent shall select, in its sole discretion, all Tranche Periods

 

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and shall allocate a portion of the Net Investment for such Class to such Tranche Periods so that the aggregate amounts allocated to such outstanding Tranche Periods at all times shall equal the Net Investment held by such Class Conduit.

 

(b) Transferred Interest Held by a Class Conduit After a Termination Event . With respect to each Class, at all times on and after the occurrence of a Termination Event for such Class, with respect to any portion of the Transferred Interest held by a Class Conduit which shall not have been transferred to the related Bank Investors (or any of them), subject to Section 7.2(b) such Class Conduit or its Class Agent shall select all Tranche Periods and Tranche Rates applicable thereto.

 

(c) Transferred Interest Held by the Bank Investors Prior to a Termination Event . With respect to each Class, at all times with respect to any portion of the Transferred Interest held by the related Bank Investors (or any of them), but prior to the occurrence of a Termination Event for such Class, the initial Tranche Period applicable to such portion of the Net Investment for such Class allocable thereto shall be a period of not greater than 14 days and such Tranche shall be a BR Tranche. Thereafter, with respect to such portion, and with respect to any other portion of the Transferred Interest held by such Bank Investors (or any of them), provided that the Termination Date shall not have occurred, the Tranche Period applicable thereto shall be, at the Transferor’s option, either a BR Tranche Period or a Eurodollar Tranche Period. The Transferor shall give the Administrative Agent irrevocable notice by telephone of the new requested Tranche Period at least two (2) Business Days prior to the expiration of any then existing Tranche. In the case of any Tranche Period selected pursuant to this paragraph that is outstanding upon the occurrence of a Termination Event, the related Tranche Period shall end on the date of such occurrence.

 

(d) Transferred Interest Held by the Bank Investors After a Termination Date . With respect to each Class, at all times on and after the occurrence of a Termination Event for such Class and with respect to any portion of the Transferred Interest held by the related Bank Investors for such Class (or any of them), subject to Section 7.2(b), the applicable Class Agent shall select all Tranche Periods and Tranche Rates applicable thereto.

 

(e) Eurodollar Rate Protection; Illegality . (i) If the applicable Class Agent is unable to obtain on a timely basis the information necessary to determine the Eurodollar Rate for any proposed Eurodollar Tranche, then:

 

(A) the Administrative Agent shall forthwith notify the applicable Class Investors and the Transferor that the Eurodollar Rate cannot be determined for such Eurodollar Tranche, as applicable; and

 

(B) while such circumstances exist, neither any Class Investor nor the Administrative Agent shall allocate any portion of the Net Investment purchased by such Person during such period or reallocate the Net Investment allocated to any then existing Tranche ending during such period, to a Eurodollar Tranche.

 

(ii) If, with respect to any outstanding Eurodollar Tranche, any Class Investor owning any portion of the Transferred Interest therein notifies the Administrative Agent that it is unable to obtain matching deposits in the London interbank market to fund its purchase or maintenance of such portion of the Transferred Interest or that the Eurodollar Rate applicable to such portion of the Transferred Interest will not adequately reflect the cost to such Class Investor of funding or maintaining its respective portion of the Transferred Interest for such Tranche Period then the Administrative Agent shall forthwith so notify the Transferor, whereupon neither the Administrative Agent nor any of the Class Investors, as applicable, shall, while such circumstances exist, allocate any portion of the Net Investment with respect to such Class of any additional Transferred Interest purchased during such period or reallocate the Net Investment with respect to such Class allocated to any Tranche Period ending during such period, to an applicable Eurodollar Tranche.

 

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(iii) Notwithstanding any other provision of this Agreement, if any Class Investor, as applicable, shall notify the Administrative Agent that such Class Investor has determined (or has been notified by any related Liquidity Provider) that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful (for such Class Investor or such related Liquidity Provider, as applicable), or any central bank or other governmental authority asserts that it is unlawful, for such Class Investor or Liquidity Provider, as applicable, to fund the purchases or maintenance of the Transferred Interest at the Eurodollar Rate, then (x) as of the effective date of such notice from such Person to the Administrative Agent, the obligation or ability of such Class Investor to fund its purchase or maintenance of the Transferred Interest at the Eurodollar Rate shall be suspended until such Person notifies the Administrative Agent that the circumstances causing such suspension no longer exist and (y) the Net Investment of each Eurodollar Tranche in which such Person owns an interest shall either (1) if such Person may lawfully continue to maintain such Transferred Interest at the Eurodollar Rate until the last day of the applicable Tranche Period be reallocated on the last day of such Tranche Period to another Tranche Period in respect of which such Net Investment allocated thereto accrues Discount at the applicable Tranche Rate other than the Eurodollar Rate or (2) if such Person shall determine that it may not lawfully continue to maintain such Transferred Interest at the Eurodollar Rate until the end of the applicable Tranche Period such Person’s share of the Net Investment allocated to such Eurodollar Tranche shall be deemed to accrue Discount at the Base Rate from the effective date of such notice until the end of such Tranche Period.

 

SECTION 2.4. Discount, Fees and Other Costs and Expenses . The Transferor shall pay, as and when due in accordance with this Agreement, all fees hereunder, all amounts payable pursuant to Article VIII hereof, if any, and the Servicing Fees. With respect to each Class, on the last day of each Tranche Period or, for any Conduit (or its related commercial paper issuer if the Conduit does not itself issue commercial paper) that utilizes “pool funding” on or prior to the fifth Business Day of the calendar month following the applicable Tranche Period, the Transferor shall pay to the Administrative Agent on behalf of the related Class Conduit (or its related commercial paper issuer), and the Administrative Agent shall pay such payment to such Class Conduit (or its related commercial paper issuer), in the event any portion of the Transferred Interest is held by such Class Conduit (or its related commercial paper issuer), an amount equal to the Discount accrued on such Class Conduit’s (or its related commercial paper issuer’s) Commercial Paper to the extent such Commercial Paper was issued in order to fund such portion of the Transferred Interest in an amount in excess of the Transfer Price of an Incremental Transfer, which excess amount shall not exceed $5,000. The Transferor shall pay to the Administrative Agent on behalf of the applicable Class Conduit (or its related commercial paper issuer) each day on which Commercial Paper is issued by such Class Conduit (or its related commercial paper issuer), the applicable Dealer Fee, and the Administrative Agent shall pay such Dealer Fee to such Class Conduit; provided , however , that at the election of a Class Conduit, Dealer Fees accrued over the course of any calendar month in respect of Related Commercial Paper may be payable by the Transferor on the last day of one or more Tranche Periods ending during the succeeding calendar month. The applicable Discount shall accrue with respect to each respective Tranche on each day occurring during the Tranche Period related thereto. Nothing in this Agreement shall limit in any way the obligations of the Transferor to pay the amounts set forth in this Section 2.4.

 

SECTION 2.5. Non-Liquidation Settlement and Reinvestment Procedures . With respect to each Class, on each day after the date of any Incremental Transfer but prior to the Termination Date for such Class and provided in each case that no Termination Event or Potential Termination Event for which there is no grace period shall have occurred and be continuing for such Class, the Collection Agent shall out of the Percentage Factor for such Class of Collections received on or prior to such day and not previously applied or accounted for: (i) set aside and hold in trust for the applicable Class Investors for such Class (or deposit into the Collection Account if so required pursuant to Section 2.12 hereof), an amount equal to all Discount (which, in the case of Discount computed by reference to the CP Rate with respect to any Class Conduit that utilizes “pool” funding, shall be determined for such purpose using the CP Rate most recently determined by the related Class Agent, multiplied by the Fluctuation Factor) for such Class and the Servicing Fee accrued through such day and not so previously set aside or paid and (ii) apply the balance of the Aggregate Percentage Factor of Collections remaining after application of Collections as provided in clause (i) of this Section 2.5 to the Transferor, for the benefit of the Class Investors, as applicable, to the purchase of additional undivided percentage interests in each Receivable pursuant to Section 2.2(b) hereof. On

 

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the last day of each Tranche Period for each Class from the amounts set aside as described in clause (i) of the first sentence of this Section 2.5, the Collection Agent shall deposit to the Administrative Agent’s account, for the benefit of the applicable Class Investors for such Class, an amount equal to the accrued and unpaid Discount for such Class and for such Tranche Period and shall deposit to its own account an amount equal to the accrued and unpaid Servicing Fee for such Tranche Period. The Administrative Agent, upon its receipt of such amounts in the Administrative Agent’s account, shall distribute such amounts to the Class Investors entitled thereto as set forth above; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts ratably (based on the amounts owing to each such Class Investor) to all such Class Investors entitled to payment thereof. In addition, the Collection Agent shall remit to the Transferor at the end of each Tranche Period, as provided in Section 6.2(b), such portion of Collections not allocated to the Class Investors.

 

SECTION 2.6. Liquidation Settlement Procedures . If at any time on or prior to the Termination Date for such Class the Aggregate Percentage Factor is greater than the Maximum Percentage Factor, then the Transferor shall immediately pay to the Administrative Agent, for the benefit of the Class Investors from previously received Collections, an amount equal to the amount such that, when applied in reduction of the Aggregate Net Investment, will result in an Aggregate Percentage Factor less than or equal to the Maximum Percentage Factor. Such amounts shall be applied pro rata to the reduction of the Net Investment for each Class of the Tranche Periods selected by the Class Agent for such Class. With respect to each Class, on the Termination Date for such Class and on each day thereafter, and on each day on which a Termination Event or Potential Termination Event has occurred and is continuing for such Class, the Collection Agent shall set aside and hold in trust for the applicable Class Investors for such Class (or deposit into the Collection Account if so required pursuant to Section 2.12 hereof) the Percentage Factor for such Class of all Collections received on such day and shall set aside and hold in trust for the Transferor such portion of Collections not allocated to the Class Investors. On each such Termination Date or the day on which a Termination Event or Potential Termination Event for such Class for which there is no grace period occurs, the Collection Agent shall deposit to the Administrative Agent’s account, for the benefit of the applicable Class Investors for such Class, any amounts set aside pursuant to Section 2.5 above. With respect to each Class, on the last day of each Tranche Period to occur on or after such Termination Date for such Class or during the continuance of a Termination Event or Potential Termination Event for such Class, the Collection Agent shall deposit to the Administrative Agent’s account to the extent not already so deposited, for the benefit of the Class Investors for such Class, the amounts so set aside for such Class Investors, pursuant to the second preceding sentence, but not to exceed the sum of (i) the accrued Discount (which, in the case of Discount computed by reference to the CP Rate with respect to any Class Conduit that utilizes “pool” funding, shall be determined for such purpose using the CP Rate most recently determined by the related Class Agent, multiplied by the Fluctuation Factor) for such Tranche Period (ii) the portion of the Net Investment allocated to such Tranche Period and (iii) all other Aggregate Unpaids owing to such Class Investors. On such day, the Collection Agent shall deposit to its account, from the amounts set aside for such Class, pursuant to the preceding sentence which remain after payment in full of the aforementioned amounts, the accrued Servicing Fee for such Tranche Period. If there shall be insufficient funds on deposit for the Collection Agent to distribute funds in payment in full of the aforementioned amounts, the Collection Agent shall distribute funds first , in payment of the accrued Discount to each Class, second , in payment of all fees payable by the Transferor to the Administrative Agent or any of the Class Investors, third , if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is not then the Collection Agent, to the Collection Agent’s account, in payment of the Servicing Fee payable to the Collection Agent, fourth , in reduction of the Net Investment allocated to any Tranche Period ending on such date, fifth , in payment of all other Aggregate Unpaids owing to the Class Investors, as applicable, and sixth , if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is the Collection Agent, to its account as Collection Agent, in payment of the Servicing Fee payable to such Person as Collection Agent. The Administrative Agent, upon its receipt of such amounts in the Administrative Agent’s account, shall distribute such amounts to the Class Investors, each as entitled thereto as set forth above; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts in the order of priority set forth above and, with respect to any such category above for which the Administrative Agent shall have insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to such Persons) among all such Persons entitled to payment thereof.

 

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Following the date after all Termination Dates on which the Aggregate Net Investment has been reduced to zero, all accrued Discount and Servicing Fees have been paid in full and all other Aggregate Unpaids have been paid in full, (i) the Collection Agent shall recompute the Percentage Factor for each Class, (ii) the Administrative Agent, on behalf of the Class Investors, shall be considered to have reconveyed to the Transferor all of the Class Investors’ right, title and interest in and to the Affected Assets (including the Transferred Interest), (iii) the Collection Agent shall pay to the Transferor any remaining Collections set aside and held by the Collection Agent pursuant to the third sentence of this Section 2.6 and (iv) the Administrative Agent, on behalf of the applicable Class Investor(s), shall execute and deliver to the Transferor, at the Transferor’s expense, such documents or instruments as are necessary to terminate the Class Investors’ respective interests in the Affected Assets. Any such documents shall be prepared by or on behalf of the Transferor. On the last day of each Tranche Period, the Collection Agent shall remit to the Transferor such portion of Collections set aside for the Transferor pursuant to this Section 2.6.

 

SECTION 2.7. Fees . Notwithstanding any limitation on recourse contained in this Agreement, the Transferor shall pay, on the last day of each month, to the Administrative Agent, for distribution to the Class Investors, in each case as agreed between themselves, all of the applicable Program Fee and the applicable Facility Fee. In addition, the Transferor shall pay to the Administrative Agent an administrative fee as set forth in the Supplemental Fee Letter. The Transferor acknowledges that the foregoing fees are non-refundable.

 

SECTION 2.8. Protection of Ownership Interest of the Class Investors . (a) The Transferor agrees that it will, and will cause the Seller to, from time to time, at its expense, promptly execute and deliver all instruments and documents and take all actions as may be necessary or as the Administrative Agent or any Class Agent may reasonably request in order to perfect or protect the Transferred Interest or to enable the Administrative Agent or any of the Class Investors to exercise or enforce any of their respective rights hereunder. Without limiting the foregoing, the Transferor will, and will cause the Seller to, upon the reasonable request of the Administrative Agent or any of the Class Investors, in order to accurately reflect this purchase and sale transaction, (x) execute and file such financing or continuation statements or amendments thereto or assignments thereof (as permitted pursuant to Section 11.6 hereof) as may be requested by the Administrative Agent or any of the Class Investors and (y) mark its and the Seller’s respective master data processing records and other documents with a legend describing the conveyance to the Transferor and the conveyance to the Administrative Agent, for the benefit of the Class Investors, of the Transferred Interest in the manner required by