tdtermloanrefi2019wexhib






                                 EXECUTION VERSION                                                                                                                                                                                          TERM LOAN CREDIT AGREEMENT                         Dated as of August 2, 2019                                 among      TECH DATA CORPORATION,            as the Borrower         MIZUHO BANK, LTD.,          as Administrative Agent                                  and                        The Other Lenders Party Hereto         MIZUHO BANK, LTD.                and   as Sole Lead Arranger and Bookrunner                                                                                                                                   





 






                                TABLE OF CONTENTS   Article I  DEFINITIONS AND ACCOUNTING TERMS ........................................................................... 1        1.01  Defined Terms .................................................................................................................... 1        1.02  Other Interpretive Provisions ............................................................................................ 22        1.03  Accounting Terms ............................................................................................................. 23        1.04  Times of Day .................................................................................................................... 23        1.05  Divisions ........................................................................................................................... 23   Article II  THE COMMITMENTS AND BORROWINGS ........................................................................ 23        2.01  Loans ................................................................................................................................. 23        2.02  Borrowings, Conversions and Continuations of Loans .................................................... 24        2.03  [Reserved] ......................................................................................................................... 25        2.04  [Reserved] ......................................................................................................................... 25        2.05  Prepayments ...................................................................................................................... 25        2.06  Termination or Reduction of Commitments ..................................................................... 25        2.07  Repayment of Loans ......................................................................................................... 25        2.08  Interest .............................................................................................................................. 26        2.09  Fees ................................................................................................................................... 26        2.10  Computation of Interest and Fees ..................................................................................... 26        2.11  Evidence of Debt .............................................................................................................. 27        2.12  Payments Generally; Administrative Agent’s Clawback .................................................. 27        2.13  Sharing of Payments by Lenders ...................................................................................... 29        2.14  Extension of Maturity Date ............................................................................................... 29        2.15  Increase in Commitments. Borrower Request .................................................................. 31        2.16  Defaulting Lenders ........................................................................................................... 32   Article III  TAXES, YIELD PROTECTION AND ILLEGALITY ............................................................ 33        3.01  Taxes ................................................................................................................................. 33        3.02  Illegality ............................................................................................................................ 38        3.03  Inability to Determine Rates ............................................................................................. 38        3.04  Increased Costs; Reserves on Loans ................................................................................. 41        3.05  Compensation for Losses .................................................................................................. 42        3.06  Mitigation Obligations; Replacement of Lenders ............................................................. 43        3.07  Survival ............................................................................................................................. 43   Article IV  GUARANTY ............................................................................................................................ 43        4.01  Facility Guaranty .............................................................................................................. 43   Article V  CONDITIONS PRECEDENT ................................................................................................... 44        5.01  Conditions of Closing ....................................................................................................... 44   Article VI  REPRESENTATIONS AND WARRANTIES ........................................................................ 45        6.01  Existence, Qualification and Power; Compliance with Laws ........................................... 46        6.02  Authorization; No Contravention ..................................................................................... 46        6.03  Governmental Authorization; Other Consents .................................................................. 46        6.04  Binding Effect ................................................................................................................... 46        6.05  Financial Statements; No Material Adverse Effect........................................................... 46        6.06  Litigation ........................................................................................................................... 47        6.07  No Default......................................................................................................................... 47        6.08  Ownership of Property; Liens ........................................................................................... 47                                          i 





 






         6.09  Environmental Compliance .............................................................................................. 47        6.10  Insurance ........................................................................................................................... 47        6.11  Taxes ................................................................................................................................. 47        6.12  ERISA Compliance ........................................................................................................... 48        6.13  Subsidiaries ....................................................................................................................... 48        6.14  Margin Regulations; Investment Company Act................................................................ 48        6.15  Disclosure ......................................................................................................................... 49        6.16  Compliance with Laws ..................................................................................................... 49        6.17  Intangible Assets ............................................................................................................... 49        6.18  Off-Balance Sheet Liabilities ............................................................................................ 49        6.19  Solvency............................................................................................................................ 49        6.20  OFAC ................................................................................................................................ 49        6.21  Anti-Corruption Laws ....................................................................................................... 50        6.22  PATRIOT Act ................................................................................................................... 50   Article VII  AFFIRMATIVE COVENANTS ............................................................................................. 50        7.01  Financial Statements ......................................................................................................... 50        7.02  Certificates; Other Information ......................................................................................... 51        7.03  Notices .............................................................................................................................. 52        7.04  Payment of Obligations .................................................................................................... 52        7.05  Preservation of Existence, Etc .......................................................................................... 52        7.06  Maintenance of Properties ................................................................................................ 53        7.07  Maintenance of Insurance ................................................................................................. 53        7.08  Compliance with Laws ..................................................................................................... 53        7.09  Books and Records ........................................................................................................... 53        7.10  Inspection Rights .............................................................................................................. 53        7.11  Use of Proceeds ................................................................................................................ 53        7.12  New Subsidiaries .............................................................................................................. 53        7.13  Compliance with Agreements ........................................................................................... 54        7.14  Compliance with ERISA .................................................................................................. 54        7.15  Anti-Corruption Laws ....................................................................................................... 55   Article VIII  NEGATIVE COVENANTS .................................................................................................. 55        8.01  Liens ................................................................................................................................. 55        8.02  Investments ....................................................................................................................... 56        8.03  Indebtedness...................................................................................................................... 57        8.04  Fundamental Changes ....................................................................................................... 58        8.05  Dispositions ...................................................................................................................... 59        8.06  Restricted Payments .......................................................................................................... 60        8.07  Change in Nature of Business ........................................................................................... 60        8.08  Transactions with Affiliates .............................................................................................. 60        8.09  Burdensome Agreements .................................................................................................. 61        8.10  Use of Proceeds ................................................................................................................ 61        8.11  [Reserved] ......................................................................................................................... 61        8.12  Acquisitions ...................................................................................................................... 61        8.13  Financial Covenants .......................................................................................................... 61        8.14  Off-Balance Sheet Liabilities ............................................................................................ 61        8.15  Sanctions ........................................................................................................................... 62        8.16  Anti-Corruption Laws ....................................................................................................... 62   Article IX  EVENTS OF DEFAULT AND REMEDIES ........................................................................... 62                                         ii 





 






         9.01  Events of Default .............................................................................................................. 62        9.02  Remedies Upon Event of Default ..................................................................................... 64        9.03  Application of Funds ........................................................................................................ 65   Article X  ADMINISTRATIVE AGENT ................................................................................................... 65        10.01  Appointment and Authority .............................................................................................. 65        10.02  Rights as a Lender ............................................................................................................. 65        10.03  Exculpatory Provisions ..................................................................................................... 66        10.04  Reliance by Administrative Agent .................................................................................... 67        10.05  Delegation of Duties ......................................................................................................... 67        10.06  Resignation of Administrative Agent ............................................................................... 67        10.07  Non-Reliance on Administrative Agent and Other Lenders ............................................. 68        10.08  No Other Duties, Etc ......................................................................................................... 68        10.09  Administrative Agent May File Proofs of Claim .............................................................. 68        10.10  Guaranty Matters .............................................................................................................. 69        10.11  Certain ERISA Matters ..................................................................................................... 70   Article XI  MISCELLANEOUS ................................................................................................................. 71        11.01  Amendments, Etc .............................................................................................................. 71        11.02  Notices; Effectiveness; Electronic Communication ......................................................... 73        11.03  No Waiver; Cumulative Remedies; Enforcement ............................................................. 75        11.04  Expenses; Indemnity; Damage Waiver ............................................................................. 75        11.05  Payments Set Aside .......................................................................................................... 77        11.06  Successors and Assigns .................................................................................................... 77        11.07  Treatment of Certain Information; Confidentiality ........................................................... 81        11.08  Right of Setoff .................................................................................................................. 82        11.09  Interest Rate Limitation .................................................................................................... 82        11.10  Counterparts; Integration; Effectiveness ........................................................................... 83        11.11  Survival of Representations and Warranties ..................................................................... 83        11.12  Severability ....................................................................................................................... 83        11.13  Replacement of Lenders ................................................................................................... 83        11.14  Governing Law; Jurisdiction; Etc ..................................................................................... 84        11.15  Waiver of Jury Trial .......................................................................................................... 85        11.16  PATRIOT Act Notice ....................................................................................................... 85        11.17  No Advisory or Fiduciary Responsibility ......................................................................... 86        11.18  Electronic Execution of Assignments and Certain Other Documents .............................. 86        11.19  [Reserved] ......................................................................................................................... 86        11.20  Acknowledgement and Consent to Bail-In of EEA Financial Institutions ....................... 86                                            iii  





 






   SCHEDULES         1.01-C           Existing Synthetic Lease Facilities        1.01-D           Existing Trade Receivables Facilities        2.01             Commitments and Pro Rata Shares          6.13             Borrower and Subsidiaries        6.18             Off-Balance Sheet Liabilities        8.01             Existing Liens        8.02             Investments        8.03             Existing Indebtedness        8.09             Existing Burdensome Agreements        11.02            Administrative Agent’s Office, Certain Addresses for Notices   EXHIBITS                           Form of:        A                 Loan Notice        B                Note        C                Compliance Certificate        D                 Assignment and Assumption        E                U.S. Tax Compliance Certificates        F                Beneficial Ownership Certification                                                  iv 





 






         This  TERM  LOAN  CREDIT  AGREEMENT  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise  modified  from  time  to  time,  this  “Agreement”)  is  entered  into  as  of  August  2,  2019,  among  TECH  DATA  CORPORATION,  a  Florida  corporation  (the  “Borrower”),  each  lender  from  time  to  time  party  hereto  (collectively,  the  “Lenders”  and  individually, a “Lender”), and MIZUHO BANK, LTD., as Administrative Agent.         The Borrower has requested that the Lenders establish the term loan facility provided for  herein  in  an  aggregate  principal  amount  of  $300,000,000.   The  proceeds  of  the  Loans  made  hereunder will be used to refinance the aggregate principal amount of the term loans outstanding  under that certain Term Loan Credit Agreement, dated as of November 2, 2016 (as amended by  that certain Amendment No. 1 to Term Loan Credit Agreement dated as of February 15, 2017, as  further amended by that certain Amendment No. 2 to Term Loan Credit Agreement dated as of  January 24, 2019 and as further amended, restated, supplemented or otherwise modified prior to  the date hereof (the “Existing Credit Agreement”) by and among the Borrower, Bank of America,  N.A. as administrative agent and the lenders party thereto.         In  connection  of  the  mutual  covenants  and  agreements  contained  herein,  the  parties  hereto agree and covenant as follows:                                  ARTICLE I                                                         DEFINITIONS AND ACCOUNTING TERMS            1.01     Defined Terms.         As used in this Agreement, the following terms shall have the meanings set forth below:         “Acquisition” means the acquisition of (a) a controlling equity interest in another Person  (including the purchase of an option, warrant  or convertible or similar type security to acquire  such a controlling interest at the time it becomes exercisable by the holder thereof), whether by  purchase of such equity interest or upon exercise of an option or warrant for, or conversion of  securities  into,  such  equity  interest,  or  (b)  assets  of  another  Person  which  constitute  all  or  substantially all of the assets of such Person or of a line or lines of business conducted by such  Person.         “Additional Commitment Lender” has the meaning specified in Section 2.14.         “Administrative Agent” means Mizuho Bank, Ltd. in its capacity as administrative agent  under any of the Loan Documents, or any successor administrative agent in accordance with the  terms hereof.         “Administrative Agent’s Office” means, with respect to any currency, the Administrative  Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address  or  account  as  the  Administrative  Agent  may  from  time  to  time  notify  the  Borrower  and  the  Lenders.         “Administrative  Questionnaire”  means  an  Administrative  Questionnaire  in  a  form  supplied by the Administrative Agent.         “Affiliate” means, with respect to any Person, another Person that directly, or indirectly  through  one  or  more  intermediaries,  Controls or is Controlled  by  or  is  under common  Control                                            





 






   with the Person specified.  “Control” means the possession, directly or indirectly, of the power to  direct  or  cause  the  direction  of  the  management  or  policies  of  a  Person,  whether  through  the  ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have  meanings correlative thereto.         “Agent Party” has the meaning specified in Section 11.02(c).         “Agreement” means this Credit Agreement.         “Applicable Rate” means, from time to time, a percentage per annum equal to (a) 1.050%  for Loans that are Eurocurrency Rate Loans and (b) 0.050% for Loans that are Base Rate Loans.         “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b)  an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a  Lender.         “Arranger”  means  Mizuho  Bank,  Ltd.,  in  its  capacity  as  sole  lead  arranger  and  bookrunner.         “Assignment and Assumption” means an assignment  and assumption entered into by a  Lender  and  an  Eligible  Assignee  (with  the  consent  of  any  party  whose  consent  is  required  by  Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit  D  or  any  other  form  (including  electronic  documentation  generated  by  use  of  an  electronic  platform) approved by the Administrative Agent.         “Attorney Costs” means and includes all reasonable fees, expenses and disbursements of  any  law  firm  or  other  external  counsel  and,  without  duplication,  the  allocated  cost  of  internal  legal services and all expenses and disbursements of internal counsel.         “Attributable Indebtedness” means, on any date:               (a)  in  respect  of  any  capital  lease  of  any  Person,  the  capitalized  amount        thereof that would appear on a balance sheet of such Person prepared as of such date in        accordance with GAAP;               (b)   in respect of any Real Estate Financing Facility that is characterized as a        lease, the capitalized  amount  of  the remaining  lease payments  under  the  relevant lease        that would appear on a balance sheet of such Person prepared in accordance with GAAP        if such lease were accounted for as a capital lease, calculated as of the Closing Date, with        respect to any Real Estate Financing Facility outstanding on the Closing Date, or the date        of  the  closing  of  any  Real  Estate  Financing  Facility  entered  into  subsequent  to  the        Closing  Date,  and  recalculated  at  the  time  of  any  refinancing,  renewal,  increase  or        repayment of any Real Estate Financing Facility; and               (c)  in  respect  of  any  asset  securitization  transaction  of  any  Person,  (i)  the        actual  amount  of  any  unrecovered  investment  of  purchasers  or  transferees  of  assets  so        transferred,  plus  (ii)  in  the  case  of  any  other  payment,  recourse,  repurchase,  hold        harmless, indemnity or similar obligation described in clause (a)(ii) of the definition of        “Off-Balance  Sheet  Liabilities,”  the  capitalized  amount  of  such  obligation  that  would        appear  on  a  balance  sheet  of  such  Person  prepared  on  such  date  in  accordance  with        GAAP if such sale or transfer or assets were accounted for as a secured loan.                                      2    





 






         “Audited  Financial  Statements”  means  the  audited  consolidated  balance  sheet  of  the  Borrower  and  its  Subsidiaries  for  the  fiscal  year  ended  January  31,  2019,  and  the  related  consolidated  statements  of  income  or  operations,  shareholders’  equity  and  cash  flows  for  such  fiscal year of the Borrower and its Subsidiaries, including the notes thereto.          “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.         “Bail-In  Legislation”  means,  with  respect  to  any  EEA  Member  Country  implementing  Article  55  of  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council  of  the  European Union, the implementing law for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule.          “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)  the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly  announced from time to time by Mizuho as its “prime rate” and (c) the Eurocurrency Rate plus  1.0%.  The “prime rate” is a rate set by Mizuho based upon various factors including Mizuho’s  costs and desired return, general economic conditions and other factors, and is used as a reference  point for pricing some loans, which may be priced at, above, or below such announced rate.  Any  change in such rate announced by Mizuho shall take effect at the opening of business on the day  specified  in  the  public  announcement  of  such  change.   If  the  Base  Rate  is  being  used  as  an  alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of  clauses (a) and (b) above and shall be determined without reference to clause (c) above.         “Base Rate Loan” means a Loan that bears interest based on the Base Rate.         “Beneficial  Ownership  Certification”  means  a  certification  regarding  beneficial  ownership  to  the  extent  required  by  the  Beneficial  Ownership  Regulation,  substantially  in  the  form of Exhibit F.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is  subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person  whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of  ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.         “Borrower” has the meaning specified in the introductory paragraph hereto.         “Borrower Materials” has the meaning specified in Section 7.02.         “Borrowing” means a borrowing consisting of Loans of the same Type and, in the case of  Eurocurrency Rate Loans, having the same Interest Period, made by the Lenders to the Borrower  pursuant to Section 2.01.          “Business  Day”  means  any  day  other  than  a  Saturday,  Sunday  or  other  day  on  which  commercial banks are authorized to close under the Laws of, or are in fact closed in, the state  where the Administrative Agent’s Office is located and:               (a)  if such day relates to any interest rate settings as to a Eurocurrency Rate        Loan denominated in Dollars, any fundings, disbursements, settlements and payments in                                      3    





 






         Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars        to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate        Loan, means any such day that is also a London Banking Day; and               (b)   any day other than a Saturday, Sunday or other day on which commercial        banks are authorized to close under the Laws of, or are in fact closed in, the state of New        York.         “Change in Law” means the occurrence, after the date of this Agreement, of any of the  following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in  any  law,  rule,  regulation  or  treaty  or  in  the  administration,  interpretation,  implementation  or  application thereof by any Governmental Authority or (c) the making or issuance of any request,  rule,  guideline  or  directive  (whether  or  not  having  the  force  of  law)  by  any  Governmental  Authority;  provided,  that,  notwithstanding  anything  herein  to  the  contrary,  (i)  the  Dodd-Frank  Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives  thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives  promulgated  by  the  Bank  for  International  Settlements,  the  Basel  Committee  on  Banking  Supervision  (or  any  successor  or  similar  authority)  or  the  United  States  or  foreign  regulatory  authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in  Law”, regardless of the date enacted, adopted or issued.         “Change of Control” means, with respect to any Person, an event or series of events by  which:               (a)  any “person” or “group” (as such terms are used in Sections 13(d) and        14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan        of such person or its subsidiaries, and any person or entity acting in its capacity as trustee,        agent  or  other  fiduciary  or  administrator  of  any  such  plan)  becomes  the  “beneficial        owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,        except  that  a  person  or  group  shall  be  deemed  to  have  “beneficial  ownership”  of  all        securities  that  such  person  or  group  has  the  right  to  acquire  (such  right,  an  “option        right”), whether such right is exercisable immediately or only after the passage of time),        directly or indirectly, of 30% or more of the equity securities of such Person entitled to        vote for members of the board of directors or equivalent governing body of such Person        on a fully-diluted basis (and taking into account all such securities that such person or        group has the right to acquire pursuant to any option right); or               (b)   during any period of 12 consecutive months, a majority of the members        of the board of directors or other equivalent governing body of such Person cease to be        composed  of  individuals  (i)  who  were  members  of  that  board  or  equivalent  governing        body on the first day of such period, (ii) whose election or nomination to that board or        equivalent  governing  body  was  approved  by  individuals  referred to in  clause (i)  above        constituting at the time of such election or nomination at least a majority of that board or        equivalent  governing  body  or  (iii)  whose  election  or nomination  to that  board  or  other        equivalent governing body was approved by individuals referred to in clauses (i) and (ii)        above constituting at the time of such election or nomination at least a majority of that        board or equivalent governing body.         “Closing  Date”  means  August  2,  2019,  the  date  the  conditions  precedent  to  the  effectiveness of this Agreement are satisfied or waived in accordance with Section 5.01 hereof.                                       4    





 






         “Code” means the Internal Revenue Code of 1986, as amended.         “Commitment” means, as to each Lender, the commitment of such Lender to make Loans  hereunder in an amount that does not exceed the amount set forth opposite such Lender’s name  on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes  a party hereto, as applicable, as such amount may be adjusted from time to time in accordance  with this Agreement.  The total Commitment on the date hereof shall be $300,000,000         “Compliance Certificate” means a certificate substantially in the form of Exhibit C.         “Connection  Income  Taxes”  means  Other  Connection  Taxes  that  are  imposed  on  or  measured  by  net  income  (however  denominated)  or  that  are  franchise  Taxes  or  branch  profits  Taxes.         “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on  a  consolidated  basis,  an  amount  equal  to  Consolidated  Net  Income  for  such  period  plus  the  following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated  Interest  Charges  for  such  period,  (b)  the  provision  for  federal,  state,  local  and  foreign  income  taxes payable by the Borrower and its Subsidiaries for such period, (c) the amount of depreciation  and  amortization  expense  for  such  period,  (d)  cash  extraordinary  or  nonrecurring  losses,  expenses,  fees  and  charges  (including  cash  losses,  expenses,  fees  and  charges  incurred  in  connection with any issuance of debt or equity, acquisitions, investments, restructuring activities,  asset  sales  or divestitures permitted  hereunder)  not to  exceed  $50,000,000  in  the  aggregate for  any four consecutive fiscal quarter period, (e) non-cash stock based compensation expense, and  (f) other non-recurring expenses of the Borrower and its Subsidiaries reducing such Consolidated  Net Income which do not represent a cash item.         “Consolidated  Funded  Indebtedness”  means,  as  of  any  date  of  determination,  for  the  Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal  amount  of  all  obligations,  whether  current  or  long-term,  for  borrowed  money  (including  Obligations  hereunder)  and  all  obligations  evidenced  by  bonds,  debentures  (including  all  Convertible Debentures), notes, loan agreements or other similar instruments (which amount, for  the avoidance of doubt, includes only the drawn portion of any line of credit or revolving credit  facility), (b) all purchase money  Indebtedness, (c) all direct obligations arising under letters of  credit (including standby and commercial) only to the extent of unreimbursed amounts, bankers’  acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect  of the deferred purchase price of property or services (other than trade accounts payable in the  ordinary  course  of  business),  (e)  all  Attributable  Indebtedness  in  respect  of  capital  leases,  obligations  under  the  Real  Estate  Financing  Facilities  and  asset  securitization  transactions,  (f)  without  duplication,  all  Guarantees  with  respect  to  outstanding  Indebtedness  of  the  types  specified in clauses (a) through (e) above of Persons other than the Borrower or any Subsidiary,  and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership  or joint venture (other than a joint venture that is itself a corporation or limited liability company)  in  which  the  Borrower  or  a  Subsidiary  is  a  general  partner  or  joint  venturer,  unless  such  Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.  “Consolidated  Funded Indebtedness” of a Person shall not include (x) any true sale by such Person of accounts  receivable,  as  determined  in  accordance  with  GAAP,  which  sale  is  not,  and  is  not  made  in  connection with, an obligation under any Real Estate Financing Facility or an asset securitization  transaction  and  (y)  any  obligation  arising  under  a  sale  and  lease  back  transaction  that  is  an  operating lease.                                       5    





 






         “Consolidated  Interest  Charges”  means,  for  any  period,  for  the  Borrower  and  its  Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,  fees,  charges  and  related  expenses  of  the  Borrower  and  its  Subsidiaries  in  connection  with  borrowed money or in connection with the deferred purchase price of assets, in each case to the  extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of the  Borrower and its Subsidiaries with respect to such period under capital leases that is treated as  interest in accordance with GAAP.         “Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio  of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to  (b) Consolidated Interest Charges for such four fiscal quarter period; provided, notwithstanding  anything to the contrary herein or in any other Loan Document (including Section 1.03(c)), for  purposes of calculating the Consolidated Interest Coverage Ratio, Consolidated EBITDA will not  be calculated on a Pro Forma Basis.         “Consolidated  Net  Income”  means  the  consolidated  net  income  of  Borrower  and  its  Subsidiaries, plus or minus minority interest of a Person, and excluding any other gain or loss or  credit of an extraordinary nature, all as determined in accordance with GAAP.         “Consolidated Total Leverage Ratio” means, with respect to any Test Period, the ratio of  (a)  Consolidated  Funded  Indebtedness  as  of  the  last  date  of  the  applicable  Test  Period  to  (b)  Consolidated EBITDA for such Test Period.         “Contractual Obligation” means, as to any Person, any provision of any security issued  by such Person or of any agreement, instrument or other undertaking to which such Person is a  party or by which it or any of its property is bound.         “Control” has the meaning specified in the definition of “Affiliate.”         “Convertible Debentures” means convertible debentures issued pursuant to a Tech Data  Indenture, which may be offered in a single transaction, a series of transactions, or in separate  transactions.  The Convertible Debentures may be either senior or subordinated debentures.          “Debenture  Put  Option” means  the option  of  any  holder  of  Convertible  Debentures to  require the Borrower to repurchase such debentures in accordance with the terms of a Tech Data  Indenture.         “Debt Rating” means, as of any date of determination, the rating as determined by any of  S&P, Moody’s or Fitch (collectively, the “Debt Ratings”) of the Borrower’s non-credit-enhanced,  senior unsecured long-term debt.          “Debtor  Relief  Laws”  means  the  Bankruptcy  Code  of  the  United  States,  and  all  other  liquidation,  conservatorship,  bankruptcy,  assignment  for  the  benefit  of  creditors,  moratorium,  rearrangement,  receivership,  insolvency,  reorganization,  or  similar  debtor  relief  Laws  of  the  United States or other applicable jurisdictions from time to time in effect and affecting the rights  of creditors generally.                  “Default” means any event or condition that constitutes an Event of Default or that, with  the giving of any notice, the passage of time, or both, would be an Event of Default.                                       6    





 






         “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable  Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with  respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest  rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in  each case to the fullest extent permitted by applicable Laws.         “Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of  its  Loans  on  the  date  such  Loans  were  required  to  be  funded  hereunder  unless  such  Lender  notifies the Administrative Agent and the Borrower in writing that such failure is the result  of  such  Lender’s  determination  that  one  or  more  conditions  precedent  to  funding  (each  of  which  conditions precedent, together with any applicable default, shall be specifically identified in such  writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any  other  amount  required  to  be  paid  by  it  hereunder  on  the  date  when  due,  (b)  has  notified  the  Borrower or the Administrative Agent in writing that it does not intend to comply with its funding  obligations hereunder, or has made a public statement to that effect (unless such writing or public  statement  relates  to  such  Lender’s  obligation  to  fund  a  Loan  hereunder  and  states  that  such  position is based  on  such Lender’s  determination that  a  condition  precedent  to funding  (which  condition precedent, together with any applicable default, shall be specifically identified in such  writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days  after written request by the Administrative Agent or the Borrower, to confirm in writing to the  Administrative  Agent  and  the  Borrower  that  it  will  comply  with  its  prospective  funding  obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant  to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the  Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject  of  a  proceeding  under  any  Debtor  Relief  Law,  (ii)  had  appointed  for  it  a  receiver,  custodian,  conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged  with  reorganization  or  liquidation  of  its  business  or  assets,  including  the  Federal  Deposit  Insurance Corporation or any other state or federal regulatory authority acting in such a capacity  or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting  Lender solely by virtue of the ownership or acquisition of any equity interests in that Lender or  any  direct  or  indirect  parent  company  thereof  by  a  Governmental  Authority  so  long  as  such  ownership interest does not result in or provide such Lender with immunity from the jurisdiction  of courts within the United States or from the enforcement of judgments or writs of attachment on  its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or  disaffirm  any  contracts  or  agreements  made  with  such  Lender.   Any  determination  by  the  Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)  through (d) above, and of the effective date of such status, shall be conclusive and binding absent  manifest  error,  and  such  Lender  shall  be  deemed  to  be  a  Defaulting  Lender  as  of  the  date  established therefor by the Administrative Agent in a written notice of such determination, which  shall  be  delivered  by  the  Administrative  Agent  to  the  Borrower  and  all  Lenders  promptly  following such determination.         “Delaware  LLC”  means  any  limited  liability  company  organized  or  formed  under  the  laws of the State of Delaware.         “Delaware  Divided  LLC”  means  any  Delaware  LLC  which  has  been  formed  upon  consummation of a Delaware LLC Division.         “Delaware LLC Division” means the statutory division of any Delaware LLC into two or  more  Delaware  LLCs  pursuant  to  Section  18-217  of  the  Delaware  Limited  Liability  Company  Act.                                      7    





 






         “Designated Lender” has the meaning set forth in Section 2.12(e).         “Designated Jurisdiction” means any country, region or territory to the extent that such  country, region or territory itself is the subject of Sanctions that broadly prohibit dealings with  such country, region or territory (as of the Closing Date, the Crimea region of Ukraine, Cuba,  Iran, North Korea, Sudan and Syria).         “Disposition”  or  “Dispose”  means  the  sale,  transfer,  license,  lease  or  other  disposition  (including any sale and leaseback transaction) of any property by any Person, including any sale,  assignment,  transfer  or  other  disposal,  with  or  without  recourse,  of  any  notes  or  accounts  receivable or any rights and claims associated therewith and including any disposition of property  to a Delaware Divided LLC pursuant to a Delaware LLC Division.         “Dollar” and “$” mean lawful money of the United States.         “Domestic  Subsidiary”  means  any  Subsidiary  that  is  organized  under  the  laws  of  any  political subdivision of the United States.         “EEA  Financial  Institution”  means  (a)  any  credit  institution  or  investment  firm  established  in  any  EEA  Member  Country  which  is  subject  to  the  supervision  of  an  EEA  Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of  an institution described in clause (a) of this definition, or (c) any financial institution established  in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b)  of this definition and is subject to consolidated supervision with its parent.         “EEA  Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland, Liechtenstein, and Norway.         “EEA  Resolution  Authority”  means  any  public  administrative  authority  or  any  person  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.         “Eligible  Assignee”  means  any  Person  that  meets  the  requirements  to  be  an  assignee  under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under  Section 11.06(b)(iii)).         “Environmental Laws” means any and all federal, state, local, and foreign statutes, laws,  regulations,  ordinances,  rules,  judgments,  orders,  decrees,  permits,  concessions,  grants,  franchises,  licenses,  agreements  or  governmental  restrictions  relating  to  pollution  and  the  protection  of  the  environment  or  the  release  of  any  materials  into  the  environment,  including  those related to hazardous substances or wastes, air emissions and discharges to waste or public  systems.         “Environmental  Liability”  means  any  liability,  contingent  or  otherwise  (including  any  liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the  Borrower,  any  other  Loan  Party  or  any  of  their  respective  Subsidiaries  directly  or  indirectly  resulting  from  or  based  upon  (a)  violation  of  any  Environmental  Law,  (b)  the generation,  use,  handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure  to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into  the  environment  or  (e)  any  contract,  agreement  or  other  consensual  arrangement  pursuant  to  which liability is assumed or imposed with respect to any of the foregoing.                                      8    





 






         “ERISA”  means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended,  and the rules and regulations promulgated thereunder.         “ERISA  Affiliate”  means  any  trade  or  business  (whether  or  not  incorporated)  under  common control with a Loan Party within the meaning of Section 414(b) or (c) of the Code (and  Sections  414(m)  and  (o) of  the  Code  for  purposes  of  provisions  relating  to  Section  412 of the  Code).         “ERISA  Event”  means  (a)  a  Reportable  Event  with  respect  to  a  Pension  Plan;  (b)  the  withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063  of  ERISA  during  a  plan  year  in  which  such  entity  was  a  “substantial  employer”  as  defined  in  Section  4001(a)(2)  of  ERISA  or  a  cessation  of  operations  that  is  treated  as  such  a  withdrawal  under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any  ERISA  Affiliate  from  a  Multiemployer  Plan  or  notification  that  a  Multiemployer  Plan  is  in  reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or  Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA; (e)  the institution by the PBGC of proceedings to terminate a Pension Plan or Multiemployer Plan;  (f)  any  event  or  condition  which  constitutes  grounds  under  Section  4042  of  ERISA  for  the  termination  of,  or  the  appointment  of  a  trustee  to  administer,  any  Pension  Plan;  (g)  the  determination that any Pension Plan is considered an at-risk plan or receipt of notification by the  Borrower that any Multiemployer Plan is in endangered or critical status within the meaning of  Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA;  or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums  due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.         “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published  by the Loan Market Association (or any successor person), as in effect from time to time.         “Euro” and “EUR” mean the single currency of the Participating Member States.         “Eurocurrency Rate” means,         (a)   with  respect  to  any  Eurocurrency  Rate  Loan,  the  rate  per  annum  equal  to  the  London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other  Person that takes over the administration of such rate) (“LIBOR”), as published on the applicable  Bloomberg screen page (or such other commercially available source providing such quotations  as  may  be  designated  by  the  Administrative  Agent  from  time  to  time)  at  approximately  11:00  a.m., London time, two Business Days prior to the commencement of such Interest Period, for  Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to  such Interest Period;         (b)   for any rate calculation with respect to a Base Rate Loan on any date, the rate per  annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior  to such date for Dollar deposits with a term of one month commencing that day;   provided that to the extent a comparable or successor rate is approved by the Administrative  Agent in connection with any rate set forth in this definition, the approved rate shall be applied in  a manner consistent with market practice; provided, further that to the extent such market practice  is not administratively feasible for the Administrative Agent, such approved rate shall be applied  in a manner as otherwise reasonably determined by the Administrative Agent; and if the                                       9    





 






   Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this  Agreement.         “Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a)  of the definition of the Eurocurrency Rate.         “Event of Default” has the meaning specified in Section 9.01.         “Exchange Act Reports” shall mean the Annual Report of the Borrower on Form 10-K  for the year ended January 31, 2019, the Quarterly Report of the Borrower on Form 10-Q for the  quarter  ended  April  30,  2019,  and  all  Current  Reports  of  the  Borrower  on  Form  8-K  dated  February 1, 2019 to five (5) Business Days prior to the Closing Date.         “Excluded  Subsidiary”  means  (a)  Tech  Data  Finance  SPV,  Inc.,  (b)  any  Domestic  Subsidiary  that  is  a  Special  Purpose  Finance  Subsidiary,  (c)  any  Domestic  Subsidiary  all  or  substantially all of the assets of which consist of one or more controlled foreign corporations and  (d) any Domestic Subsidiary that is a pass-through entity for U.S. federal income tax purposes  and is directly or indirectly owned by one or more controlled foreign corporations.         “Excluded Taxes” means any of the following Taxes imposed on or with respect to any  Recipient   or  required  to  be  withheld  or  deducted  from  a  payment  to  a  Recipient,  (a)  Taxes  imposed  on  or  measured  by  net  income  (however  denominated),  franchise  Taxes,  and  branch  profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the  laws of, or having its principal office or, in the case of any Lender, its Lending Office located in,  the  jurisdiction  imposing  such  Tax  (or  any  political  subdivision  thereof)  or  (ii)  that  are  Other  Connection  Taxes,  (b)  in  the  case  of  a  Lender,  U.S.  federal  withholding  Taxes  imposed  on  amounts payable to or for the account of such Lender with respect to an applicable interest in a  Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires  such interest in the Loan or Commitment (other than pursuant to an assignment request by the  Borrower  under  Section  11.13)  or  (ii)  such  Lender  changes  its  Lending  Office,  except  in  each  case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such  Taxes were payable either to such Lender’s assignor immediately before such Lender became a  party  hereto  or  to  such  Lender  immediately  before  it  changed  its  Lending  Office,  (c)  Taxes  attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal  withholding  Taxes  imposed  pursuant  to  FATCA.   Notwithstanding  anything  to  the  contrary  contained in this definition, “Excluded Taxes” shall not include any Florida documentary tax.         “Existing  Credit  Agreement”  has  the  meaning  given  to  such  term  in  the  introductory  paragraph to this Agreement.          “Existing Maturity Date” has the meaning specified in Section 2.14.         “Existing Synthetic Lease Facility” means those facilities listed on Schedule 1.01-C, as  each of such facilities may be amended, modified, supplemented or amended and restated from  time to time.         “Existing Trade Receivables Facilities” means those facilities listed on Schedule 1.01-D,  as each of such facilities may be amended, modified, supplemented or amended and restated from  time to time.         “Extending Lender” has the meaning specified in Section 2.14.                                      10    





 






         “Facility Guaranty” means, individually or collectively as the context may require, (a) the  Guaranty Agreement, dated as of the date hereof, among the Guarantors and the Administrative  Agent  and  (b)  any  other  guaranty  agreement  executed  and  delivered  by  a  Guarantor  to  the  Administrative Agent pursuant to Section 7.12, in each case as supplemented from time to time  by the execution and delivery of Guaranty Joinder Agreements pursuant to the Facility Guaranty.         “FATCA”  shall  mean  Sections  1471  through  1474  of  the  Code,  as  of  the  date  of  this  Agreement  (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous  to  comply  with),  and  any  current  or  future  regulations  or  official  interpretations  thereof,  any  intergovernmental  agreement  entered  into  in  connection  therewith,  any  legislation,  rules  or  guidance  implementing  such  intergovernmental  agreement,  and  any  agreements entered into pursuant to Section 1471(b)(1) of the Code.         “Federal  Funds  Rate”  means,  for  any  day,  the  rate  per  annum  equal  to  the  weighted  average of the rates on overnight Federal funds transactions with members of the Federal Reserve  System,  as  published  by  the  Federal  Reserve  Bank  of  New  York  on  the  Business  Day  next  succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate  for such day shall  be such rate on such transactions on the next preceding Business Day as so  published on the next succeeding Business Day, and (b) if no such rate is so published on such  next  succeeding  Business  Day,  the  Federal  Funds  Rate  for  such  day  shall  be  the  average  rate  (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Mizuho on such  day on such transactions as determined by the Administrative Agent.         “Fee Letter” means, collectively, (x) that certain fee letter, dated August 2, 2019 among  the Borrower and Mizuho Bank, Ltd. and (y) each other fee letter among the Borrower and the  Arranger  (or  its  applicable  lending  Affiliates)  relating  to  fees  payable  in  respect  of  this  Agreement.         “Fitch” means Fitch, Inc.         “Foreign Lender” means, with respect to the Borrower, a Lender that is not a U.S. Person.           “Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.         “FRB”  means  the  Board  of  Governors  of  the  Federal  Reserve  System  of  the  United  States.         “Fund”  means  any  Person  (other than  a natural  person)  that is (or  will  be) engaged  in  making, purchasing, holding or otherwise investing in commercial loans and similar extensions of  credit in the ordinary course of its activities.          “GAAP”  means  with  respect  to  any  computation  required  or  permitted  hereunder,  generally accepted accounting principles in the United States as in effect from time to time.         “Governmental  Authority”  means  the  government  of  the  United  States  or  any  other  nation, or of any political subdivision thereof, whether state or local, and any agency, authority,  instrumentality,  regulatory  body,  court,  central  bank  or  other  entity  exercising  executive,  legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to  government  (including  any  supra-national  bodies  such  as  the European  Union or the  European  Central Bank).                                       11    





 






         “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such  Person  guaranteeing  or  having  the  economic  effect  of  guaranteeing  any  Indebtedness  or  other  obligation  payable  or  performable  by  another  Person  (the  “primary  obligor”)  in  any  manner,  whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i)  to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness  or  other  obligation,  (ii)  to  purchase  or  lease  property,  securities  or  services  for  the  purpose  of  assuring  the  obligee  in  respect  of  such  Indebtedness  or  other  obligation  of  the  payment  or  performance of such Indebtedness or other obligation, or (iii) to maintain working capital, equity  capital or any other financial statement condition or liquidity or level of income or cash flow of  the  primary  obligor  so  as  to  enable  the  primary  obligor  to  pay  such  Indebtedness  or  other  obligation,  or  (b)  any  Lien  on  any  assets  of  such  Person  securing  any  Indebtedness  or  other  obligation of any other Person, whether or not such Indebtedness or other obligation is assumed  by such Person.  The amount of any Guarantee shall be deemed to be an amount  equal to the  stated or determinable amount of the related primary obligation, or portion thereof, in respect of  which  such  Guarantee  is  made  or,  if  not  stated  or  determinable,  the  maximum  reasonably  anticipated  liability  in  respect  thereof  as  determined  by  the  guaranteeing  Person  in  good  faith.   The term “Guarantee” as a verb has a corresponding meaning.         “Guarantors”  means,  collectively,  all  Significant  Subsidiaries  that  are  Domestic  Subsidiaries  of  the  Borrower  (excluding,  however,  any  Excluded  Subsidiaries)  and  each  other  Person  that  joins  as  a  Guarantor  pursuant  to  Section  7.12  or  otherwise,  together  with  their  successors and assigns.         “Guaranty Joinder Agreement” means each Guaranty Joinder Agreement, substantially in  the  form  attached  to  the  Facility  Guaranty,  executed  and  delivered  by  a  Guarantor  to  the  Administrative Agent pursuant to the Facility Guaranty.         “Hazardous Materials”  means  all  explosive  or radioactive  substances  or  wastes  and  all  hazardous  or  toxic  substances,  wastes  or  other  pollutants,  including  petroleum  or  petroleum  distillates,  asbestos  or  asbestos-containing  materials,  polychlorinated  biphenyls,  radon  gas,  infectious or medical wastes and all other substances or wastes of any nature regulated pursuant  to any Environmental Law.         “Increase Effective Date” has the meaning assigned to such term in Section 2.15(a).         “Increase Joinder” has the meaning assigned to such term in Section 2.15(c).         “Incremental Commitments” has the meaning assigned to such term in Section 2.15(a).         “Incremental Loans” means any loans made pursuant to any Incremental Commitments.         “Incremental Maturity Date” has the meaning assigned to such term in Section 2.15(c).         “Indebtedness” means, as to any Person at a particular time, without duplication, all of  the following, whether or not included as indebtedness or liabilities in accordance with GAAP:               (a)  all obligations of such Person for borrowed money and all obligations of        such  Person  evidenced  by  bonds,  debentures,  notes,  loan  agreements  or  other  similar        instruments;                                       12    





 






               (b)   all direct or contingent obligations of such Person arising under letters of        credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety        bonds and similar instruments;               (c)  the net obligations of such Person under any Swap Contract;               (d)   all  obligations  of  such  Person  to  pay  the  deferred  purchase  price  of        property  or  services  (other  than  trade  accounts  payable  in  the  ordinary  course  of        business);               (e)  indebtedness  (excluding  prepaid  interest thereon)  secured by  a  Lien  on        property owned or being purchased by such Person (including indebtedness arising under        conditional sales or other title retention agreements), whether or not such indebtedness        shall have been assumed by such Person or is limited in recourse;               (f)   Attributable  Indebtedness with  respect to  capital  leases  and  obligations        under the Real Estate Financing Facilities; and               (g)   all Guarantees of such Person in respect of any of the foregoing.         For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of  any partnership or joint venture (other than a joint venture that is itself a corporation or limited  liability  company)  in  which  such  Person  is  a  general  partner  or  a  joint  venturer,  unless  such  Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation  under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof  as of such date.         The term “Indebtedness” shall not include payroll indebtedness, or trade indebtedness or  Guarantee  thereof  incurred  in  the  ordinary  course  of  business  (including  trade  indebtedness  through financial intermediaries) provided such trade indebtedness has a maturity of less than one  year, capital stock, surplus and retained earnings, minority interests in the stock of Subsidiaries,  operating  lease  obligations,  reserves  for  deferred  taxes  or  investment  credits,  or  deferred  compensation obligations.           “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with  respect to any payment made by or on account of any obligation of any Loan Party under any  Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.         “Indemnitees” has the meaning specified in Section 11.04(b).         “Information” has the meaning specified in Section 11.07.         “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last  day of each Interest Period applicable to such Loan and the Maturity Date; provided, however,  that  if  any  Interest  Period  for  a  Eurocurrency  Rate  Loan  exceeds  three  months,  the  respective  dates that fall every three months after the beginning of such Interest Period shall also be Interest  Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each February, May,  August and November and the Maturity Date.         “Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on  the  date  such  Eurocurrency  Rate  Loan  is  disbursed  or  converted  to  or  continued  as  a                                      13    





 






   Eurocurrency  Rate  Loan  and  ending  on  the  date  one  week,  or  one,  two,  three  or  six  months  thereafter, as selected by the Borrower in its Loan Notice; provided that:               (i)   any  Interest  Period  that  would  otherwise  end  on  a  day  that  is  not  a        Business  Day  shall  be  extended  to  the  next  succeeding  Business  Day  unless  such        Business Day  falls in another calendar month, in which case such Interest Period shall        end on the next preceding Business Day;               (ii)  any  Interest  Period  that  begins  on  the  last  Business  Day  of  a  calendar        month (or on a day for which there is no numerically corresponding day in the calendar        month  at  the  end  of  such  Interest  Period)  shall  end  on  the  last  Business  Day  of  the        calendar month at the end of such Interest Period; and               (iii)  no Interest Period shall extend beyond the Maturity Date.         “Investment” means, as to any Person, any direct or indirect acquisition or investment by  such Person, whether by means of (a) the purchase or other acquisition of capital stock or other  securities  of  another  Person,  (b)  a  loan,  advance  or  capital  contribution  to,  Guarantee  or  assumption of debt of, or purchase or other acquisition of any other debt or equity participation or  interest  in,  another  Person,  including  any  partnership  or  joint  venture  interest  in  such  other  Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of  assets of another Person that constitute a business unit.  For purposes of covenant compliance, the  amount  of  any  Investment  shall  be  the  amount  actually  invested,  without  adjustment  for  subsequent increases or decreases in the value of such Investment.         “Investment  Policy”  means  the  Borrower’s investment  policy  as  in  effect  from  time  to  time as approved by the chief financial officer or treasurer of the Borrower.         “IRS” means the United States Internal Revenue Service.         “Laws”  means,  collectively,  all  international,  foreign,  federal,  state  and  local  statutes,  treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents  or  authorities,  including  the  interpretation  or  administration  thereof  by  any  Governmental  Authority  charged  with  the  enforcement,  interpretation  or  administration  thereof,  and  all  applicable administrative orders, directed duties, requests, licenses, authorizations and permits of,  and agreements with, any Governmental Authority, in each case whether or not having the force  of law.         “Latest  Maturity  Date”  means  the  latest  of  the  Maturity  Date  and  any  Incremental  Maturity Date applicable to existing Incremental Loans, as of any date of determination.         “Lender” has the meaning specified in the introductory paragraph hereto.         “Lending Office” means, as to any Lender, the office or offices of such Lender described  as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender  may  from  time  to  time  notify  the  Borrower  and  the  Administrative  Agent,  which  office  may  include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such  Affiliate.   Unless  the  context  otherwise  requires  each  reference  to  a  Lender  shall  include  its  applicable Lending Office.         “LIBOR” has the meaning specified in the definition of Eurocurrency Rate.                                      14    





 






         “LIBOR  Screen  Rate”  means  the  LIBOR  quote  on  the  applicable  screen  page  the  Administrative  Agent  designates  to  determine  LIBOR  (or  such  other  commercially  available  source providing such quotations as may be designated by the Administrative Agent from time to  time).         “LIBOR Successor Rate” has the meaning specified in Section 3.03.         “LIBOR  Successor  Rate  Conforming  Changes”  has  the  meaning  specified  in  Section  3.03.         “Lien”  means  any  mortgage,  pledge,  hypothecation,  assignment,  deposit  arrangement,  encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or  preferential  arrangement  in  the  nature  of  a  security  interest  of  any  kind  or  nature  whatsoever  (including any conditional sale or other title retention agreement, any easement, right of way or  other encumbrance on title to real property, and any financing lease having substantially the same  economic effect as any of the foregoing).         “Loan” means any extension of credit by a Lender to the Borrower under Section 2.01.            “Loan  Documents”  means  this  Agreement,  each  Note,  the  Fee  Letter  and  the  Facility  Guaranty.         “Loan Notice” means (a) a notice of a Borrowing or (b) a conversion of Loans from one  Type to another, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A  or such other form as may be approved by the Administrative Agent (including any form on an  electronic platform or electronic transmission system as shall be approved by the Administrative  Agent), appropriately completed and signed by a Responsible Officer of the Borrower.         “Loan Parties” means, collectively, the Borrower and each Guarantor.         “London  Banking  Day”  means  any  day  on  which  dealings  in  Dollar  deposits  are  conducted by and between banks in the London interbank Eurodollar market.         “Material Adverse Effect” means (a) a material adverse change in, or a material adverse  effect upon, the operations, business, properties, liabilities, financial condition or prospects of the  Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any  Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a  material  adverse  effect  upon  the  legality,  validity,  binding  effect  or  enforceability  against  any  Loan Party of any Loan Document to which it is a party.         “Maturity  Date”  means  August  2,  2021,  or if  maturity  is  extended  pursuant to  Section  2.14,  such  extended  maturity  date  as  determined  pursuant to  such  Section;  provided,  however,  that  with  respect  to  any  Non-Extending  Lender,  the  Maturity  Date  with  respect  to  such  Non- Extending Lender shall be the applicable Existing Maturity Date.         “Mizuho” means Mizuho Bank, Ltd.         “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.         “Multiemployer Plan” means any employee benefit plan of the type described in Section  4001(a)(3)  of  ERISA,  to  which  a  Loan  Party  or  any  ERISA  Affiliate  makes  or  is  obligated  to                                      15    





 






   make contributions, or during the preceding five plan years, has made or been obligated to make  contributions.         “Multiple  Employer  Plan”  means  a  Plan  which  has  two  or  more  contributing  sponsors  (including a Loan Party or any ERISA  Affiliate) at least two of whom are not under common  control, as such a plan is described in Section 4064 of ERISA.         “Non-Consenting Lender” means any Lender that does not approve any consent, waiver  or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance  with the terms of Section 11.01 and (ii) has been approved by the Required Lenders.         “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender  at such time.         “Non-Extending Lender” has the meaning specified in Section 2.14.         “Note” means a promissory note made by the Borrower in favor of a Lender evidencing  Loans made by such Lender, substantially in the form of Exhibit B.         “Notice Date” has the meaning specified in Section 2.14.         “Obligations”  means  all  advances  to,  and  debts,  liabilities,  obligations,  covenants  and  duties  of,  any  Loan  Party  arising  under  any  Loan  Document  or  otherwise  with  respect  to  any  Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent,  due or to become due, now existing or hereafter arising and including interest and fees that accrue  after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding  under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of  whether such interest and fees are allowed claims in such proceeding.         “OFAC” means the Office of Foreign Assets Control of the United States Department of  the Treasury.         “Off-Balance  Sheet  Liabilities”  means,  with  respect  to  any  Person  as  of  any  date  of  determination  thereof,  without  duplication  and  to  the  extent  not  included  as  a  liability  on  the  consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP: (a) with  respect  to  any  asset  securitization  transaction  (including  any  accounts  receivable  purchase  facility) (i) the unrecovered investment of purchasers or transferees of assets so transferred, and  (ii)  any  other  payment,  recourse, repurchase,  hold harmless, indemnity  or similar obligation  of  such Person or any of its Subsidiaries in respect of assets transferred or payments made in respect  thereof, other than limited recourse provisions that are customary for transactions of such type  and  that  neither  (x)  have  the  effect  of  limiting  the  loss  or  credit  risk  of  such  purchasers  or  transferees with respect to payment or performance by the obligors of the assets so transferred nor  (y) impair the characterization of the transaction as a true sale under applicable Laws (including  Debtor  Relief  Laws);  (b)  the  monetary  obligations  under  any  financing  lease  or  so-called  “synthetic,” tax retention or off-balance sheet lease transaction which, upon the application of any  Debtor  Relief  Law  to  such  Person  or  any  of  its  Subsidiaries,  would  be  characterized  as  indebtedness; (c) the monetary obligations under any sale and leaseback transaction which does  not create a liability on the consolidated balance sheet of such Person and its Subsidiaries; or (d)  any other “off-balance sheet arrangement” as defined in (i) Item 303, part (a)(4) of Regulation S- K  of  the  SEC,  or  (ii)  any  successor  regulation  of  the  SEC  defining  “off-balance  sheet  arrangement.”                                      16    





 






         “Organization  Documents”  means,  (a)  with  respect  to  any  corporation,  the  charter  or  certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive  documents  with  respect  to  any  non-U.S.  jurisdiction);  (b)  with  respect  to  any  limited  liability  company, the certificate or articles of formation or organization and operating or limited liability  agreement; and (c) with respect to any partnership, joint venture, trust or other form of business  entity, the partnership, joint venture or other applicable agreement of formation or organization  and any agreement, instrument, filing or notice with respect thereto filed in connection with its  formation or organization with the applicable Governmental Authority in the jurisdiction of its  formation  or  organization  and,  if  applicable,  any  certificate  or  articles  of  formation  or  organization of such entity.         “Other  Connection  Taxes”  means,  with  respect  to  any  Recipient,  Taxes  imposed  as  a  result  of  a  present  or  former  connection  between  such  Recipient  and  the jurisdiction  imposing  such Tax (other than connections arising from such Recipient having executed, delivered, become  a  party  to,  performed  its  obligations  under,  received  payments  under,  received  or  perfected  a  security  interest  under,  engaged  in  any  other  transaction  pursuant  to  or  enforced  any  Loan  Document, or sold or assigned an interest in any Loan or Loan Document).         “Other  Taxes”  means  all  present  or  future  stamp,  court  or  documentary,  intangible,  recording, filing or similar Taxes that arise from any payment made under, from the execution,  delivery, performance, enforcement or registration of, from the receipt or perfection of a security  interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are  Other Connection Taxes imposed with respect to an assignment (other than an assignment made  pursuant to Section 3.06).         “Overnight Rate” means, for any day, the greater of (i) the Federal Funds Rate and (ii) an  overnight rate determined by the Administrative Agent in accordance with banking industry rules  on interbank compensation.         “Participant” has the meaning specified in Section 11.06(d).         “Participating Member State” means any member state of the European Union that has  the Euro as its lawful currency in accordance with legislation of the European Union relating to  Economic and Monetary Union.         “Participant Register” has the meaning specified in Section 11.06(d).         “PATRIOT Act” has the meaning specified in Section 11.16.         “PBGC” means the Pension Benefit Guaranty Corporation.         “Pension Act” means the Pension Protection Act of 2006.         “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum  required  contributions  (including  any  installment  payment  thereof)  to  Pension  Plans  and  Multiemployer Plans and set forth in, with respect to plan years ending prior to the effective date  of the Pension Act, Section 412 of the Internal Revenue Code and Section 302 of ERISA, each as  in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code  and Sections 302, 303, 304 and 305 of ERISA.                                       17    





 






         “Pension  Plan”  means  any  employee  pension  benefit  plan  (including  a  Multiple  Employer Plan but excluding any Multiemployer Plan) that is maintained or is contributed to by  the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to  the minimum funding standards under Section 412 of the Code.          “Permitted  Trade  Receivables  Facilities”  means,  collectively,  (a)  the  Existing  Trade  Receivables Facilities;  (b) any successor trade receivables facility which refinances and replaces  all  or  part  of  an  Existing  Trade  Receivables  Facility;  (c)  one  or  more  facilities  each  of  which  provides  for  limited  recourse  sales  and  assignments  of  accounts  receivable  of  Borrower  or  a  Subsidiary in connection with the issuance of obligations by Borrower or a Subsidiary secured by  such accounts receivable; (d) one or more facilities each of which provides for sales, transfers or  assignments  of  accounts  receivable  of  Borrower  or  a  Subsidiary  to  a  third  party  purchaser,  transferee  or  assignee;  all  of  which  facilities  shall  be  on  such  terms  and  conditions  as  are  reasonable  and  customary  for  such  transactions;  provided,  that  such  sales,  transfers  and  assignments  do  not  result  in  the  creation  of  any  Lien  on  the  assets  of  the  Borrower  or  any  Subsidiary, other than Liens on the accounts receivable so sold, transferred or assigned.         “Person”  means  any  natural  person,  corporation,  limited  liability  company,  trust,  joint  venture, association, company, partnership, Governmental Authority or other entity.         “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA  (including a Pension Plan but other than a Multiemployer Plan), maintained by the Borrower for  employees of the Borrower.         “Platform” has the meaning specified in Section 7.02.         “Pro Forma Basis” means, for purposes of calculating Consolidated EBITDA (other than  a calculation of Consolidated EBITDA for purposes of the Consolidated Interest Coverage Ratio),  any Acquisition with an aggregate purchase price of $100,000,000 or more shall be deemed to  have occurred as of the first day of the most recent four fiscal quarter period preceding the date of  such transaction for which the Borrower was required to deliver financial statements pursuant to  Section  7.01(a)  or  Section  7.01(b).  In  connection  with  the  foregoing,  income  statement  items  attributable  to  the  Person  or  property  acquired  shall  be  included  to  the  extent  relating  to  any  period applicable in such calculation to the extent (A) such items are not otherwise included in  such income statement items for the Borrower and its Subsidiaries in accordance with GAAP or  in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported  by financial statements or other information reasonably satisfactory to the Administrative Agent.         “Pro Rata Share” means, with respect to any Lender at any time, a fraction (expressed as  a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the  Commitment of such Lender at such time and the denominator of which is the amount of the sum  of the Commitments of all Lenders at such time; provided that if the commitment of each Lender  to make Loans have been terminated pursuant to Section 2.06(a), Section 9.02 or otherwise, then  the Pro Rata Share of each Lender shall be a fraction (expressed as a percentage, carried out to  the ninth decimal place), the numerator of which is the amount of the Loans of such Lender at  such time and the denominator of which is the aggregate amount of all Loans at such time. The  initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule  2.01  or  in  the  Assignment  and  Assumption  pursuant  to  which  such  Lender  becomes  a  party  hereto, as applicable.                                       18    





 






         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.         “Public Lender” has the meaning specified in Section 7.02.         “Real  Estate  Financing  Facilities”  means,  collectively  (a)  the  Existing  Synthetic  Lease  Facility; (b) any successor to the Existing Synthetic Lease Facility which refinances some or all  of  the  same  properties  of  the  Borrower  as  the  Existing  Synthetic  Lease  Facility  with  rates  of  interest, yield and fees that may increase or decrease in accordance with then applicable market  conditions;  (c)  one  or  more  arrangements  that  provide  financing  for  any  real  property  of  the  Borrower or its Subsidiaries, that impose no Liens other than on the real property financed by  such arrangements, which are on such terms and conditions as are reasonable and customary for  such  transactions,  and  which  create  obligations  with  an  Attributable  Indebtedness  of  not  more  than the fair market value of the properties so financed; provided that any operating lease other  than  those  described  in  clauses  (a),  (b)  and  (c)  above  shall  not  be  treated  as  a  Real  Estate  Financing Facility for the purposes of this Agreement.         “Recipient” means the Administrative Agent, any Lender or any other recipient of any  payment to be made by or on account of any obligation of any Loan Party hereunder.         “Register” has the meaning set forth in Section 11.06(c).         “Related  Parties”  means,  with  respect  to  any  Person,  such  Person’s  Affiliates  and  the  partners, directors, officers, employees, agents and advisors of such Person and of such Person’s  Affiliates.         “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other  than events for which the 30 day notice period has been waived.         “Required Lenders” means, as of any date of determination, Lenders having more than  50%  of  the  aggregate  amount  of  the  Commitments  or  Loans  at  such  time;  provided  that  the  Commitment of, or the portion of the Loans held by, any Defaulting Lender shall be excluded for  purposes of making a determination of Required Lenders.         “Required Subsidiary” has the meaning set forth in Section 7.12(a).          “Responsible  Officer”  means  the  chief  executive  officer,  president,  chief  financial  officer,  treasurer,  assistant  treasurer  or  corporate  controller  of  a  Loan  Party,  and  solely  for  purposes  of  delivery  of  incumbency  certificates  pursuant  to  Article  V,  the  secretary  or  any  assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II,  any other officer or employee of the applicable Loan Party so designated by the chief financial  officer, treasurer or assistant treasurer in a notice to the Administrative Agent, or any other officer  or employee of the applicable Loan Party designated in or pursuant to an agreement between the  applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is  signed  by  a  Responsible Officer  of  a  Loan  Party  shall  be  conclusively  presumed  to  have  been  authorized by all necessary corporate, partnership and/or other action on the part of such Loan  Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of  such Loan Party.         “Restricted  Payment”  means  any  dividend  or  other  distribution  (whether  in  cash,  securities  or  other  property)  with  respect  to  any  capital  stock  or  other  equity  interest  of  the                                      19    





 






   Borrower  or  any  Subsidiary,  or  any  payment  (whether  in  cash,  securities  or  other  property),  including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,  acquisition, cancellation or termination of any such capital stock or other equity interest or of any  option, warrant or other right to acquire any such capital stock or other equity interest; provided  that  any repayment, put or call  of a Convertible Debenture shall not be treated as a Restricted  Payment for purposes of this Agreement.          “Revolving  Credit  Agreement”  means  that  certain  Third  Amended  and  Restated  Revolving  Credit  Agreement  (as  amended,  restated,  amended  and  restated,  supplemented  or  otherwise modified from time to time), dated as of May 15, 2019, by and among the Borrower,  certain  subsidiaries  of  the  Borrower  from  time  to  time  party  thereto,  each  as  a  designated  borrower,  the  lenders  from  time  to  time  party  thereto  and  Bank  of  America,  N.A.,  as  administrative agent.         “Sanctioned Person” has the meaning specified in Section 6.20.         “S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global,  Inc. and any successor thereto.         “Sanction(s)”  means  any  economic  or  financial sanctions  or  trade  embargoes  imposed,  administered or enforced by the United States Government (including without limitation, OFAC),  the  United  Nations  Security  Council,  the  European  Union  or  Her  Majesty’s  Treasury  of  the  United Kingdom.          “Scheduled Unavailability Date” has the meaning specified in Section 3.03.         “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.         “Securities Act” means the Securities Act of 1933, as amended.         “Shareholders’  Equity”  means,  as  of  any  date  of  determination,  consolidated  shareholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance  with GAAP.         “Significant  Foreign  Subsidiary”  means  any  Foreign  Subsidiary  which  has  total  assets  (on a consolidated basis with its Subsidiaries) of more than 5% of the total assets of the Borrower  (on a consolidated basis with the Borrower’s Subsidiaries).         “Significant  Subsidiary”  means  any  Domestic  Subsidiary  which  has  total  assets  (on  a  consolidated basis with its Subsidiaries) of more than 5% of the total assets of the Borrower (on a  consolidated basis with the Borrower’s Subsidiaries).         “Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on  such  date  (i)  the  fair  value  of  the  assets  of  such  Person  and  its  subsidiaries  on  a  consolidated  basis, are and will be in excess of the total amount of its debts (including contingent liabilities);  (ii)  the  present  fair  saleable  value  of  the  assets  of  such  Person  and  its  subsidiaries  on  a  consolidated and going concern basis are and will be greater than the probable liability of such  Person and its subsidiaries on a consolidated basis on their existing debts as such debts become  absolute and matured; (iii) such Person and its subsidiaries on a consolidated basis are and will be  able to pay their debts (including contingent debts and other commitments) as they mature; and                                      20    





 






   (iv) such Person and its subsidiaries on a consolidated basis  have capital sufficient to carry on  their business as conducted and as proposed to be conducted following the Closing Date.         “Special  Purpose  Finance  Subsidiary”  means  any  Subsidiary  of  the  Borrower  created  solely  for  the  purposes  of,  and  whose  sole  activity  shall  consist  of,  acquiring  and  financing  accounts  receivable  of  the  Borrower  and  its  Subsidiaries  pursuant  to  a  Permitted  Trade  Receivables Facility.         “Specified Excluded Subsidiaries” means (i) Tech Data Global Holding Inc. and (ii) Tech  Data Finance Partner LLC.         “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability  company or other business entity of which a majority of the shares of securities or other interests  having ordinary voting power for the election of directors or other governing body (other than  securities or interests having such power only by reason of the happening of a contingency) are at  the  time  beneficially  owned,  or  the  management  of  which  is  otherwise  controlled,  directly,  or  indirectly  through  one  or  more  intermediaries,  or  both,  by  such  Person.   Unless  otherwise  specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or  Subsidiaries of the Borrower.         “Swap  Contract”  means  (a)  any  and  all  rate  swap  transactions,  basis  swaps,  credit  derivative transactions, forward rate transactions, commodity swaps, commodity options, forward  commodity contracts, equity or equity index swaps or options, bond or bond price or bond index  swaps  or  options  or  forward  bond  or  forward  bond  price  or  forward  bond  index  transactions,  interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,  collar transactions,  currency  swap  transactions, cross-currency  rate  swap  transactions,  currency  options,  spot  contracts,  or  any  other  similar  transactions  or  any  combination  of  any  of  the  foregoing  (including  any  options  to  enter  into  any  of  the  foregoing),  whether  or  not  any  such  transaction is governed by or subject to any master agreement, and (b) any and all transactions of  any  kind,  and  the  related  confirmations,  which  are  subject  to  the  terms  and  conditions  of,  or  governed by, any form of master agreement published by the International Swaps and Derivatives  Association,  Inc.,  any  International  Foreign  Exchange  Master  Agreement,  or  any  other  master  agreement  (any  such  master  agreement,  together  with  any  related  schedules,  a  “Master  Agreement”), including any such obligations or liabilities under any Master Agreement.         “Swap Termination Value” means, in respect of any one or more Swap Contracts, after  taking into account the effect of any legally enforceable netting agreement relating to such Swap  Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for  any  date  prior  to  the  date  referenced  in  clause  (a),  the  amount(s)  determined  as  the  mark-to- market value(s) for such Swap Contracts, as determined based upon one or more mid-market or  other  readily  available  quotations  provided  by  any  recognized  dealer  in  such  Swap  Contracts  (which may include a Lender or any Affiliate of a Lender).         “Taxes”  means  all  present  or  future  taxes,  levies,  imposts,  duties,  deductions,  withholdings (including backup withholding), assessments, fees or other charges imposed by any  Governmental Authority, including any interest, additions to tax or penalties applicable thereto.         “Tech Data Indenture” means any existing or future indenture between the Borrower and  a trustee relating to the offering of Convertible Debentures.                                       21    





 






           “Test  Period”  means,  at  any  date  of  determination,  the  most  recently  completed  four   consecutive fiscal quarters of the Borrower ending on or prior to such date.          “Threshold Amount” means $150,000,000.          “Type”  means,  with  respect  to  a  Loan,  its  character  as  a  Base  Rate  Loan  or  a   Eurocurrency Rate Loan.          “United States” and “U.S.” mean the United States of America.          “U.S. Person” means any Person that is a “United States person” as defined in Section   7701(a)(30) of the Code.          “U.S.  Tax  Compliance  Certificate”  has  the  meaning  specified  in  Section   3.01(e)(ii)(B)(III).          “Write-Down  and  Conversion  Powers”  means,  with  respect  to  any  EEA  Resolution   Authority, the write-down and conversion powers of such EEA Resolution Authority from time to   time under the Bail-In Legislation for the applicable EEA Member Country, which write-down   and conversion powers are described in the EU Bail-In Legislation Schedule.             1.02     Other Interpretive Provisions.  With reference to this Agreement and      each  other  Loan  Document,  unless  otherwise  specified  herein  or  in  such  other  Loan      Document:         (a)  The definitions of terms herein shall apply equally to the singular and plural forms  of  the  terms  defined.   Whenever  the  context  may  require,  any  pronoun  shall  include  the  corresponding  masculine,  feminine  and  neuter  forms.   The  words  “include,”  “includes”  and  “including” shall be deemed to be followed by the phrase “without limitation.” The word “will”  shall be construed to have the same meaning and effect as the word “shall.” Unless the context  requires  otherwise,  (i)  any  definition  of  or  reference  to  any  agreement,  instrument  or  other  document  (including  any  Organization  Document)  shall  be  construed  as  referring  to  such  agreement,  instrument  or  other  document  as  from  time  to  time  amended,  supplemented  or  otherwise  modified  (subject  to  any  restrictions  on  such  amendments,  supplements  or  modifications set forth herein or in any other Loan Document), (ii) any reference herein to any  Person  shall  be  construed  to  include  such  Person’s  successors  and  assigns,  (iii)  the  words  “hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan  Document,  shall  be  construed  to  refer  to  such  Loan  Document  in  its  entirety  and  not  to  any  particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits  and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules  to, the Loan Document in which such references appear, (v) any reference to any law shall include  all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law  and any reference to any law or regulation shall, unless otherwise specified, refer to such law or  regulation as amended, modified or supplemented from time to time, and (vi) the words “asset”  and “property” shall be construed to have the same meaning and effect and to refer to any and all  tangible  and  intangible  assets  and  properties,  including  cash,  securities,  accounts  and  contract  rights.         (b)  In  the  computation  of  periods  of  time  from  a  specified  date  to  a  later  specified  date, the word “from” means “from and including;” the words “to” and “until” each mean “to but  excluding;” and the word “through” means “to and including.”                                       22     





 






          (c)  Section  headings  herein  and  in  the  other  Loan  Documents  are  included  for  convenience  of  reference  only  and  shall  not  affect  the  interpretation  of  this  Agreement  or  any  other Loan Document.             1.03     Accounting Terms.         (a)  Generally.   All  accounting  terms  not  specifically  or  completely  defined  herein  shall be construed in conformity with, and all financial data (including financial ratios and other  financial calculations) required to be submitted pursuant to this Agreement shall be prepared in  conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a  manner  consistent  with  that  used  in  preparing  the  Audited  Financial  Statements,  except  as  otherwise specifically prescribed herein.         (b)  Changes  in  GAAP.   If  at  any  time  any  change  in  GAAP  would  affect  the  computation of any financial ratio or requirement set forth in any Loan Document, and either the  Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the  Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original  intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided that, until so amended, (i) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the  Administrative Agent and the Lenders financial statements and other documents required under  this  Agreement  or  as  reasonably  requested  hereunder  setting  forth  a  reconciliation  between  calculations of such ratio or requirement made before and after giving effect to such change in  GAAP.   All  obligations  of  any  Person  that  are  or  would  be  characterized  as  operating  lease  obligations in accordance with GAAP on the Closing Date (whether or not such operating lease  obligations  were  in  effect  on  such  date)  shall  continue  to  be  accounted  for  as  operating  lease  obligations (and not as capitalized lease obligations) for purposes of this Agreement regardless of  any change in GAAP following the Closing Date that would otherwise require such obligations to  be  recharacterized  (on  a  prospective  or  retroactive  basis  or  otherwise)  as  capitalized  lease  obligations.         (c)  Calculations.   Notwithstanding  the  above,  the  parties  hereto  acknowledge  and  agree that calculations of Consolidated EBITDA shall be made on a Pro Forma Basis.             1.04     Times of Day.  Unless otherwise specified, all references herein to times      of day shall be references to Eastern time (daylight or standard, as applicable).             1.05     Divisions.   For  all  purposes  under  the  Loan  Documents, in  connection      with any division or plan of division under Delaware law (or any comparable event under a      different  jurisdiction’s  laws):  (a)  if  any  asset,  right,  obligation  or  liability  of  any  Person      becomes the asset, right, obligation or liability of a different Person, then it shall be deemed      to have been transferred from the original Person to the subsequent Person, and (b) if any new      Person comes into existence, such new Person shall be deemed to have been organized on the      first date of its existence by the holders of its equity interests at such time.                                  ARTICLE II                                                           THE COMMITMENTS AND BORROWINGS             2.01     Loans.  Subject to the terms and conditions set forth herein, each Lender      severally  agrees  to  make  a  loan  on  the  Closing  Date  in  Dollars  to  the  Borrower  in  an                                       23     





 






        aggregate  principal  amount  specified  by  the  Borrower  not  exceeding  such  Lender’s      Commitment.   Amounts  repaid  or  prepaid  in  respect  of  a  Loan  may  not  be  reborrowed.       Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.  For      the avoidance of doubt, the Borrowing(s) of Loans shall occur in a single draw on the Closing      Date (but may consist of multiple Borrowings with different Interest Periods).             2.02     Borrowings, Conversions and Continuations of Loans.         (a)  Each Borrowing, each conversion of Loans from one Type to the other, and each  continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to  the Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice; provided  that any telephonic notice must be confirmed promptly by delivery to the Administrative Agent of  a  Loan  Notice.   Each  such  notice  must  be  received  by  the  Administrative  Agent  not later  than  11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to  or continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans to  Base  Rate  Loans  and  (ii)  on  the  requested  date  of  any  Borrowing  of  Base  Rate  Loans.   Each  Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal  amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Each Borrowing of or  conversion to Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple  of $100,000 in excess thereof.  Each Loan Notice (whether telephonic or written) shall specify (i)  whether  the  Borrower is  requesting  a  Borrowing,  a conversion  of  Loans  from  one  Type  to  the  other,  or  a  continuation  of  Eurocurrency  Rate  Loans,  (ii)  the  requested  date  of  the  Borrowing,  conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal  amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed  or to which existing Loans are to be converted and (v) if applicable, the duration of the Interest  Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Loan Notice or if  the  Borrower  fails  to  give  a  timely  notice  requesting  a  conversion  or  continuation,  then  the  applicable Loans shall be made as, or converted to, Base Rate Loans.  Any automatic conversion  to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with  respect  to  the  applicable  Eurocurrency  Rate  Loans.   If  the  Borrower  requests  a  Borrowing  of,  conversion to, or continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to  specify an Interest Period, it will be deemed to have specified an Interest Period of one month.         (b)  Following  receipt  of  a  Loan  Notice,  the  Administrative  Agent  shall  promptly  notify  each  Lender of the amount  of its  Pro  Rata  Share of  Loans,  and  if  no timely  notice  of  a  conversion  or  continuation  is  provided  by  the  Borrower,  the  Administrative  Agent  shall  notify  each Lender of the details of any automatic conversion to Base Rate Loans as described in the  preceding subsection.  In the case of a Borrowing, each Lender shall make the amount of its Loan  available  to  the  Administrative  Agent  in  immediately  available  funds  at  the  Administrative  Agent’s  Office  not  later  than  1:00 p.m.,  on  the  Business  Day  specified  in  the  applicable  Loan  Notice.   Upon  satisfaction  of  the  applicable  conditions  set  forth  in  Section 5.01,  the  Administrative Agent shall make all funds so received available to the Borrower in like funds as  received by the Administrative Agent either by (i) crediting the account of the Borrower on the  books of Mizuho with the amount of such funds or (ii) wire transfer of such funds, in each case in  accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent  by the Borrower.         (c)  Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued  or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan.  During  the  existence  of  a  Default,  no  Loans  may  be  requested  as,  converted  to  or  continued  as  Eurocurrency Rate Loans without the consent of the Required Lenders.                                       24     





 






          (d)  The Administrative Agent shall promptly notify the Borrower and the Lenders of  the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination  of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent  shall  notify  the  Borrower  and  the  Lenders  of  any  change  in  Mizuho’s  prime  rate  used  in  determining the Base Rate promptly following the public announcement of such change.         (e)  After giving effect to all Borrowings, all conversions of Loans from one Type to  the  other,  and  all  continuations  of  Loans  as  the  same  Type,  there  shall  not  be  more  than  ten  Interest Periods in effect with respect to Loans.         (f)  Notwithstanding  anything  to  the  contrary  in  this  Agreement,  any  Lender  may  exchange, continue or rollover all of the portion of its Loans in connection with any refinancing,  extension,  loan  modification  or  similar  transaction  permitted  by  the  terms  of  this  Agreement,  pursuant  to  a  cashless  settlement  mechanism  approved  by  the  Borrower,  the  Administrative  Agent, and such Lender.             2.03     [Reserved].             2.04     [Reserved].             2.05     Prepayments.  The Borrower may, upon notice from the Borrower to the      Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole or      in  part  without  premium  or  penalty;  provided  that  (i)  such  notice  must  be  received  by  the      Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of      prepayment  of  Eurocurrency  Rate  Loans  and  (B)  on  the  date  of  prepayment  of  Base  Rate      Loans;  (ii)  any  prepayment  of  Eurocurrency  Rate  Loans  shall  be  in  a  principal  amount  of      $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and (iii) any prepayment of      Base  Rate  Loans  shall  be  in  a  principal  amount  of  $5,000,000  or  a  whole  multiple  of      $100,000 in excess thereof or, in each case, if less, the entire principal amount of Loans then      outstanding; provided further that such notice may state that such notice is conditioned upon      the effectiveness of other credit facilities, in which case such notice may be revoked by the      Borrower  (by  notice  to  the  Administrative  Agent  on  or  prior  to  the  specified  prepayment      date) if such condition is not satisfied.  Each such notice shall specify the date and amount of      such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are      to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly      notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro      Rata  Share  of  such  prepayment  of  Loans.   If  such  notice  is  given  by  the  Borrower,  the      Borrower shall make such prepayment and the payment amount specified in such notice shall      be due and payable on the date specified therein.  Any prepayment shall be accompanied by      all  accrued  interest  on  the  amount  prepaid,  together  with  any  additional  amounts  required      pursuant  to  Section 3.05  for  Eurocurrency  Rate  Loans.  Each  such  prepayment  shall  be      applied to the Loans of the Lenders in accordance with their respective Pro Rata Shares.             2.06     Termination  or  Reduction  of  Commitments.  Each  Lender’s      Commitments shall terminate on the funding of the Loans on the Closing Date in accordance      with Section 2.01.             2.07     Repayment of Loans.  The Borrower shall repay to the Lenders on the      Maturity Date, the aggregate principal amount of Loans outstanding on such date, together      with all other amounts owing under this Agreement.                                        25     





 






              2.08     Interest.         (a)  Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan  shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per  annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate and (ii)  each  Base  Rate  Loan  shall  bear  interest  on  the  outstanding  principal  amount  thereof  from  the  applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.         (b)    (i)   If any amount of principal of any Loan is not paid when due, whether at  stated  maturity,  by  acceleration  or  otherwise,  such  amount  shall  thereafter  bear  interest  at  a  fluctuating  interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to  the  fullest  extent  permitted by applicable Laws.                (ii)  If  any  amount  (other  than  principal  of  any  Loan)  payable  by  the         Borrower under any Loan Document is not paid when due, whether at stated maturity, by         acceleration or otherwise, then upon the request of the Required Lenders, such amount         shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to         the Default Rate to the fullest extent permitted by applicable Laws.                (iii) Upon  the  request  of  the  Required  Lenders  (except  for  an  Event  of         Default as described in the foregoing clauses (i) or (ii), where such clauses shall govern         or an Event of Default pursuant to Section 9.01(f) or (g), where such Default Rate will be         implemented automatically without such request), while any Event of Default exists, the         Borrower shall pay interest on the principal amount of all overdue amounts hereunder at a         fluctuating  interest  rate  per  annum  at  all  times  equal  to  the  Default  Rate  to  the  fullest         extent permitted by applicable Laws.                (iv)  Accrued and unpaid interest on past due amounts (including interest on         past due interest) shall be due and payable upon demand.         (c)  Interest on each Loan shall be due and payable in arrears on each Interest Payment  Date applicable thereto and at such other times as may be specified herein.  Interest hereunder  shall  be  due  and  payable  in  accordance  with  the  terms  hereof  before  and  after  judgment,  and  before and after the commencement of any proceeding under any Debtor Relief Law.             2.09     Fees.         (a)  The  Borrower  shall  pay  to  the  Arranger  and  the  Administrative  Agent  for  their  own  respective  accounts,  in  Dollars,  fees  in  the  amounts  and  at  the  times  specified  in  the  Fee  Letter.   Such  fees  shall  be  fully  earned  when  paid  and  shall  not  be  refundable  for  any  reason  whatsoever.         (b)  The Borrower shall  pay  to  the  Lenders, in  Dollars, such fees  as shall  have  been  separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be  fully earned when paid and shall not be refundable for any reason whatsoever.             2.10     Computation  of  Interest  and  Fees.   All  computations  of  interest  for      Base Rate Loans (including Base Rate Loans determined by reference to Eurocurrency Rate)      shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days      elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day      year and actual days elapsed (which results in more fees or interest, as applicable, being paid                                       26     





 






        than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the      day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the      day on which the Loan or such portion is paid.  Each determination by the Administrative      Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes,      absent manifest error.             2.11     Evidence  of  Debt.   The  Borrowings  made  by  each  Lender  shall  be      evidenced  by  one  or  more  accounts  or  records  maintained  by  such  Lender  and  by  the      Administrative Agent in the ordinary course of business.  The accounts or records maintained      by the Administrative Agent and each Lender shall be conclusive absent manifest error of the      amount  of  the  Borrowings  made  by  the  Lenders  to  the  Borrower  and  the  interest  and      payments thereon.  Any failure to so record or any error in doing so shall not, however, limit      or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with      respect  to  the  Obligations.   In  the  event  of  any  conflict  between  the  accounts  and  records      maintained  by  any  Lender  and  the  accounts  and  records  of  the  Administrative  Agent  in      respect of such matters, the accounts and records of the Administrative Agent shall control in      the absence of manifest error.  Upon the request of any Lender to a Borrower made through      the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the      Administrative Agent) a Note, which shall evidence such Lender's Loans to the Borrower in      addition  to  such  accounts  or  records.   Each  Lender  may  attach  schedules  to  a  Note  and      endorse thereon  the date, Type (if  applicable), amount, currency  and  maturity of its  Loans      and payments with respect thereto.             2.12     Payments Generally; Administrative Agent’s Clawback.         (a)  General.   All  payments  to  be  made  by  the  Borrower  shall  be  made  without  condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise  expressly  provided  herein,  all  payments  by  the  Borrower  hereunder  shall  be  made  to  the  Administrative Agent, for the account of the respective Lenders to which such payment is owed,  at the applicable Administrative Agent’s Office and in immediately available funds not later than  2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each  Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like  funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the  Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business  Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the  Borrower,  other  than  with  respect  to  the  Maturity  Date  shall  come  due  on  a  day  other  than  a  Business Day, payment shall be made on the next following Business Day, and such extension of  time shall be reflected in computing interest or fees, as the case may be.         (b)  (i)     Funding by Lenders; Presumption by Administrative Agent.  Unless the  Administrative Agent shall have received notice from a Lender prior to the proposed time of any  Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans,  prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to  the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may  assume  that  such  Lender  has  made  such  share  available  on  such  date  in  accordance  with  Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such  share available in accordance with and at the time required by Section 2.02) and may, in reliance  upon such assumption, make available to the Borrower a corresponding amount.  In such event, if  a  Lender  has  not  in  fact  made  its  share  of  the  applicable  Borrowing  available  to  the  Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the  Administrative Agent forthwith on demand such corresponding amount in immediately available                                       27     





 






    funds  with  interest  thereon,  for  each  day  from  and  including  the  date  such  amount  is  made  available to the Borrower to but excluding the date of payment to the Administrative Agent, at  (A) in  the  case  of  a  payment  to  be  made  by  such  Lender,  the  Overnight  Rate,  plus  any  administrative,  processing  or  similar  fees  customarily  charged  by  the  Administrative  Agent  in  connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the  interest  rate  applicable  to  Base  Rate  Loans.   If  the  Borrower  and  such  Lender  shall  pay  such  interest  to  the  Administrative  Agent  for  the  same  or  an  overlapping  period,  the  Administrative  Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for  such  period.   If  such  Lender  pays  its  share  of  the  applicable  Borrowing  to  the  Administrative  Agent, then the amount so paid shall constitute such Lender's Loan included in such Borrowing.   Any payment by the Borrower shall be without prejudice  to any claim the Borrower may have  against a Lender that shall have failed to make such payment to the Administrative Agent.                (ii)  Payments by Borrower; Presumptions by Administrative Agent.  Unless         the Administrative Agent shall have received notice from a Borrower prior to the date on         which  any  payment  is  due  to  the  Administrative  Agent  for the  account  of  the Lenders         hereunder that the Borrower will not make such payment, the Administrative Agent may         assume that the Borrower has made such payment on such date in accordance herewith         and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In         such event, if the Borrower has not in fact made such payment, then each of the Lenders         severally agrees to repay to the Administrative Agent forthwith on demand the amount so         distributed to such Lender in immediately available funds with interest thereon, for each         day from and including the date such amount is distributed to it to but excluding the date         of payment to the Administrative Agent, at the Overnight Rate.          A notice of the Administrative Agent to any Lender or the Borrower with respect to any   amount owing under this subsection (b) shall be conclusive, absent manifest error.         (c)  Failure  to  Satisfy  Conditions  Precedent.   If  any  Lender  makes  available  to  the  Administrative Agent funds for any Loan to be made by such Lender to the Borrower as provided  in  the  foregoing  provisions  of  this  Article II,  and  such  funds  are  not  made  available  to  the  Borrower  by  the  Administrative  Agent  because  the  conditions  to  the  applicable  Borrowing  set  forth  in  Article V  are  not  satisfied  or  waived  in  accordance  with  the  terms  hereof,  the  Administrative Agent shall return such funds (in like funds as received from such Lender) to such  Lender, without interest.         (d)  Obligations of Lenders Several.  The obligations of the Lenders hereunder to make  Loans and to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of  any  Lender  to  make  any  Loan,  to  fund  any  such  participation  or  to  make  any  payment  under  Section 11.04(c) on  any  date  required  hereunder  shall  not  relieve  any  other  Lender  of  its  corresponding obligation to do so on such date, and no Lender shall be responsible for the failure  of  any  other  Lender  to  so  make  its  Loan,  to  purchase  its  participation  or  to  make  its  payment  under Section 11.04(c).         (e)  Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain  the funds for any Loan in any particular place or manner or to constitute a representation by any  Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.   Without limiting the foregoing, each of the Administrative Agent and each Lender at its option  may make any Loan or otherwise perform its obligations hereunder through any office or offices  of  such  Person  described as  such in such  Person’s Administrative  Questionnaire,  or  such  other  office or offices as such Person may from time to time notify the Borrower and the Administrative                                       28     





 






    Agent; which office may include any Affiliate of such Person or any domestic or foreign branch  of such Person or such Affiliate (each, a “Designated Lender”); provided that any exercise of such  option shall not affect the obligation of such Borrower to repay any Loan in accordance with the  terms of this Agreement. Any Designated Lender shall be considered a Lender; provided that in  the case of an Affiliate or branch of a Lender, all provisions applicable to a Lender shall apply to  such Affiliate or branch of such Lender to the same extent as such Lender.             2.13     Sharing of Payments by Lenders.  If any Lender shall, by exercising      any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of      or interest on any of the Loans made by it, resulting in such Lender's receiving payment of a      proportion  of  the  aggregate  amount  of  such  Loans  or  participations  and  accrued  interest      thereon greater than its pro rata share thereof as provided herein, then the Lender receiving      such  greater  proportion  shall  (a)  notify  the  Administrative  Agent  of  such  fact,  and  (b)      purchase (for cash at face value) participations in the Loans of the other Lenders, or make      such other adjustments as shall be equitable, so that the benefit of all such payments shall be      shared by the Lenders ratably in accordance with the aggregate amount of principal of and      accrued interest on their respective Loans and other amounts owing them, provided that:                 (i)  if  any  such  participations  are  purchased  and  all  or  any  portion  of  the         payment giving rise thereto is recovered, such participations shall be rescinded and the         purchase price restored to the extent of such recovery, without interest; and                (ii)  the provisions of this Section shall not be construed to apply to (x) any         payment made by a Borrower pursuant to and in accordance with the express terms of         this  Agreement  or  (y)  any  payment  obtained  by  a  Lender  as  consideration  for  the         assignment of or sale of a participation in any of its Loans to any assignee or participant,         other than to the Borrower or any Subsidiary thereof (as to which the provisions of this         Section shall apply).             2.14     Extension of Maturity Date.         (a)  Requests for Extension.  The Borrower may, by notice to the Administrative Agent  (who shall promptly notify the Lenders) not earlier than 90 days and not later than 30 days prior to  the  Maturity  Date  then  in  effect  hereunder  (the  “Existing  Maturity  Date”),  request  that  each  Lender extend such Lender’s Maturity Date for an additional 1 year from the Existing Maturity  Date; provided that there shall be no more than one extension of the Maturity Date pursuant to  this Section.         (b)  Lender  Elections  to  Extend.   Each  Lender,  acting  in  its  sole  and  individual  discretion, shall, by notice to the Administrative Agent given promptly after such Lender’s receipt  of a notice of request for extension delivered by the Borrower and in any event, not later than the  date  (the  “Notice  Date”)  that  is  20  days  prior  to  the  Existing  Maturity  Date,  advise  the  Administrative Agent whether or not such Lender agrees to such extension and each Lender that  determines  not  to  so  extend  its  Maturity  Date  (a  “Non-Extending  Lender”)  shall  notify  the  Administrative Agent of such fact promptly after such determination (but in any event  no later  than  the  Notice  Date)  and  any  Lender  that  does  not  so  advise  the  Administrative  Agent  on  or  before  the  Notice  Date  shall  be  deemed  to  be  a  Non-Extending  Lender.   The  election  of  any  Lender to agree to such extension shall not obligate any other Lender to so agree.         (c)  Notification by Administrative Agent.  The Administrative Agent shall notify the  Borrower of each Lender’s determination under this Section 2.14 promptly, and in any event, no                                       29     





 






    later than the date 15 days prior to the Existing Maturity Date (or, if such date is not a Business  Day, on the next preceding Business Day).         (d)  Additional Commitment Lenders.  The Borrower shall have the right at any time to  replace each Non-Extending Lender with, and add as “Lenders” under this Agreement in place  thereof, one or more Eligible Assignees (each, an “Additional Commitment Lender”) as provided  in Section 11.13; provided that each of such Additional Commitment Lenders shall enter into an  Assignment  and  Assumption  pursuant  to  which  such  Additional  Commitment  Lender  shall,  effective  no  later  than  the  Existing  Maturity  Date,  undertake  a  Commitment  (and,  if  any  such  Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such  Lender’s Commitment hereunder on such date).         (e)  Minimum  Extension  Requirement.   If  (and  only  if)  the  total  of  the  outstanding  Loans  of  the  Lenders  that  have  agreed  so  to  extend  the  Maturity  Date  (each,  an  “Extending  Lender”) and the additional Commitments of the Additional Commitment Lenders shall be more  than  50%  of the aggregate  amount  of  the aggregate  principal  amount  of the  Loans outstanding  immediately prior to the Existing Maturity Date, then, effective as of the Existing Maturity Date,  the Maturity Date of each Extending Lender and of each Additional Commitment Lender shall be  extended to the date falling one year after the Existing Maturity Date (except that, if such date is  not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day)  and each Additional Commitment Lender shall thereupon become a “Lender” for all purposes of  this Agreement. All references in this Agreement and in the other Loan Documents, if any, to the  “Maturity Date” shall refer to the Maturity Date as so extended for such Extending Lenders.         (f)  Conditions  to  Effectiveness  of  Extensions.   As  a  condition  precedent  to  such  extension, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party  dated  as  of  the  Existing Maturity  Date  signed  by  a Responsible  Officer  of  such  Loan  Party  (i)  certifying and attaching the resolutions adopted by such Loan Party approving or consenting to  such extension and (ii) in the case of the Borrower, certifying that, before and after giving effect  to  such  extension,  (A)  the  representations  and  warranties  contained  in  Article  V  and  the  other  Loan  Documents  are  true  and  correct  in  all  material  respects  (unless  such  representation  or  warranty is already qualified by materiality or Material Adverse Effect, in which case it shall be  true and correct in all respects after giving effect to such qualification)  on and as of the Existing  Maturity Date, except to the extent that such representations and warranties specifically refer to an  earlier  date,  in  which  case  they  are  true  and  correct  in  all  material  respects  (unless  such  representation or warranty is already qualified by materiality or Material Adverse Effect, in which  case it shall be true and correct in all respects after giving effect to such qualification) as of such  earlier date, and except that for purposes of this Section 2.14, the representations and warranties  contained  in  clauses  (a)  and  (b)  of  Section  6.05  shall  be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses  (a)  and  (b),  respectively,  of  Section  7.01  and  (B)  no  Default exists.  In addition, on the Maturity Date of each Non-Extending Lender, the Borrower  shall  prepay  any  Loans  outstanding  on  such  date  (and  pay  any  additional  amounts  required  pursuant  to  Section  3.05)  to  the  extent  necessary  to  keep  outstanding  Loans  ratable  with  any  revised Pro Rata Shares of the respective Lenders effective as of such date.         (g)  Amendment;  Sharing  of  Payments.   In  connection  with  any  extension  of  the  Maturity  Date,  the  Borrower,  the  Administrative  Agent  and  each  extending  Lender  may  make  such  amendments  to  this  Agreement  as  the  Administrative  Agent  determines  to  be  reasonably  necessary to evidence the extension. This Section 2.14 shall supersede any provisions in Section  2.13 or 11.01 to the contrary.                                        30     





 






              2.15     Increase  in  Commitments.  Borrower  Request.   The  Borrower  may      from  time  to  time  by  written  notice  to  the  Administrative  Agent  elect  to  request  the      establishment  of  one  or  more  new  term  loan  commitments  (each,  an  “Incremental      Commitment”),  by  an  aggregate  amount  not  in excess  of  $200,000,000.   Each  such  notice      shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes      that the Incremental Commitments shall be effective, which shall be a date not less than 10      Business Days after the date on which such notice is delivered to the Administrative Agent      (or such shorter period as may be agreed by the Administrative Agent) and (ii) the identity of      each  Eligible  Assignee  to  whom  the  Borrower  proposes  any  portion  of  such  Incremental      Commitments be allocated and the amounts of such allocations; provided that any existing      Lender approached to provide all or a portion of the Incremental Commitments may elect or      decline, in its sole discretion, to provide such Incremental Commitment.  Each Incremental      Commitment  shall  be  in  an  aggregate  amount  of  $5,000,000  or  any  whole  multiple  of      $1,000,000 in excess thereof (provided that such amount may be less than $5,000,000 if such      amount  represents  all  remaining  availability  under  the  aggregate  limit  in  respect  of      Incremental Commitments set forth in above).         (a)  Conditions.   The  Incremental  Commitments  shall  become  effective  as  of  the  Increase Effective Date; provided that:                 (i)  The  Administrative  Agent  shall  have  received  a  timely  duly  executed         Loan Notice in accordance with the requirements hereof;                (ii)  no Default shall have occurred and be continuing or would result from         the borrowings to be made on the Increase Effective Date;                (iii) the representations and warranties contained in Article VI and the other         Loan Documents are true and correct in all material respects on and as of the Increase         Effective Date, except to the extent that such representations and warranties specifically         refer to an earlier date, in which case they shall have been true and correct in all material         respects as of such earlier date, and except that for purposes of this Section 2.15(b), the         representations and warranties contained in Section 6.05(a) and Section 6.05(b) shall be         deemed to refer to the most recent financial statements furnished pursuant to clauses (a)         and (b), respectively, of Section 7.01.                (iv)  the Borrower shall deliver to the Administrative Agent  a  certificate of         each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer         of  such  Loan  Party  (i)  certifying  and  attaching  the  resolutions  adopted  by  such  Loan         Party  approving  or  consenting  to  such  increase,  and  (ii)  in  the  case  of  the  Borrower,         certifying that, before and after giving effect to such increase, (A) the representations and         warranties contained in Article VI and the other Loan Documents are true and correct in         all  material  respects  (unless  such  representation  or  warranty  is  already  qualified  by         materiality or Material Adverse Effect, in which case it shall be true and correct in all         respects)  on  and  as  of  the  Increase  Effective  Date,  except  to  the  extent  that  such         representations and warranties specifically refer to an earlier date, in which case they are         true and correct in all material respects (unless such representation or warranty is already         qualified  by  materiality  or  Material  Adverse  Effect,  in  which  case  it  shall  be  true  and         correct  in  all  respects)  as  of  such  earlier  date,  and  except  that  for  purposes  of  this         Section 2.15, the representations and warranties contained in Section 6.05(a) and Section         6.05(b)  shall  be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to         clauses (a) and (b), respectively, of Section 7.01, and (B) no Default exists.                                       31     





 






          (b)  Terms of New Loans and Commitments.  The terms and provisions of Loans made  pursuant  to  Incremental  Commitments  shall  be  identical  to  the  Loans  (including  the  pricing,  maturity and weighted average life and it being understood that Incremental Loans shall be a part  of the Loans);    The Incremental Commitments shall be effected by a joinder agreement (the “Increase Joinder”)   executed by the Borrower, the Administrative Agent and each Lender making such Incremental   Commitment, in form and substance reasonably satisfactory to each of them.  Notwithstanding   the  provisions  of  Section  11.01,  the  Increase  Joinder  may,  without  the  consent  of  any  other   Lenders, effect such amendments  to this Agreement and the other Loan Documents as may be   necessary  or  appropriate,  in  the  reasonable  opinion  of  the  Administrative  Agent,  to  effect  the   provisions  of  this  Section  2.15.   In  addition,  unless  otherwise  specifically  provided  herein,  all   references in Loan Documents to Loans shall be deemed, unless the context otherwise requires, to   include  references  to  Incremental  Loans  made  pursuant  to  this  Agreement.   This  Section  2.15   shall supersede any provisions in Section 2.13 or Section 11.01 to the contrary.         (c)  [reserved];         (d)  Making  of  New  Loans.   On  any  Increase  Effective  Date  on  which  new  Commitments  for  Loans  are  effective,  subject  to  the  satisfaction  of  the  foregoing  terms  and  conditions,  each  Lender  of  such  new  Commitment  shall  make  a  Loan  to  the  Borrower  in  an  amount equal to its new Commitment.         (e)  Equal and Ratable Benefit.  The Loans and Commitments established pursuant to  this Section 2.15 shall constitute Loans and Commitments under, and shall be entitled to all the  benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting  the foregoing, benefit equally and ratably from the Facility Guarantees.             2.16     Defaulting Lenders.          Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement,  if  any  Lender   becomes  a  Defaulting  Lender,  then,  until  such  time  as  that  Lender  is  no  longer  a  Defaulting   Lender, to the extent permitted by applicable Law:                 (i)  Waivers and Amendment.  The Defaulting Lender’s right to approve or         disapprove  any  amendment,  waiver  or consent  with respect to this  Agreement shall  be         restricted as set forth in the definition of “Required Lenders” and Section 11.01.                (ii)  Defaulting Lender Waterfall.  Any payment of principal, interest, fees or         other  amount  received  by  the  Administrative  Agent  for  the  account  of  that  Defaulting         Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise,         and  including  any  amounts  made  available  to  the  Administrative  Agent  by  that         Defaulting Lender pursuant to Section 11.08), shall be applied at such time or times as         may be determined by the Administrative Agent as follows: first, to the payment of any         amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second,         as the Borrower may request (so long as no Default or Event of Default exists), to the         funding  of  any  Loan  in  respect  of  which  that  Defaulting  Lender  has  failed  to  fund  its         portion  thereof  as  required  by  this  Agreement,  as  determined  by  the  Administrative         Agent; third, if so determined by the Administrative Agent and the Borrower, to be held         in  a  non-interest  bearing  deposit  account  and  released  pro  rata  in  order  to  satisfy  such         Defaulting Lender’s potential future funding obligations with respect to Loans under this                                       32     





 






                    Agreement; fourth to the payment of any amounts owing to the Lenders as a result of any   final and non-appealable judgment of a court of competent jurisdiction obtained by any   Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its   obligations under this Agreement; fifth, so long as no Default or Event of Default exists,   to the payment of any amounts owing to the Borrower as a result of any final and non-  appealable  judgment  of  a  court  of  competent  jurisdiction  obtained  by  the  Borrower   against  that  Defaulting  Lender  as  a  result  of  that  Defaulting  Lender’s  breach  of  its   obligations  under  this  Agreement; and sixth, to that Defaulting  Lender  or  as  otherwise   directed  by  a  court  of  competent  jurisdiction;  provided,  that,  if  (x)  such  payment  is  a   payment of the principal amount of any Loans in respect of which that Defaulting Lender   has not fully funded its appropriate share and (y) such Loans were made at a time when   the conditions set forth in Section 5.01 were satisfied or waived, such payment shall be   applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to   being applied to the payment of any Loans of that Defaulting Lender until such time as   all  Loans  are  held  by  the  Lenders  pro  rata  in  accordance  with  the  Commitments   hereunder.  Any payments, prepayments or other amounts paid or payable to a Defaulting   Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be   deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably   consents hereto.                            ARTICLE III                                            TAXES, YIELD PROTECTION AND ILLEGALITY       3.01     Taxes.   (a)  Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.           (i)  Any and all payments by  or on account  of any obligation of any Loan   Party under any Loan Document shall be made without deduction or withholding for any   Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in   the  good  faith  discretion  of  the  Administrative  Agent)  require  the  deduction  or   withholding of any Tax from any such payment by the Administrative Agent or a Loan   Party (taking into account the information and documentation to be delivered pursuant to   subsection (e) below), then the Administrative Agent or such Loan Party shall be entitled   to make such deduction or withholding and shall timely pay the full amount deducted or   withheld  to  the  relevant  Governmental  Authority  in  accordance  with  the  Code  or  any   other applicable Law.          (ii)  If  a  Loan  Party  or  the  Administrative  Agent  shall  be  required  by  the   Code  to  withhold  or  deduct  any  Taxes,  including  both  United  States  federal  backup   withholding  and  withholding  taxes,  from  any  payment,  then  (A)  the  Administrative   Agent shall withhold or make such deductions as are determined by the Administrative   Agent  to  be  required  based  upon  the  information  and  documentation  it  has  received   pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full   amount withheld or deducted to the relevant Governmental Authority in accordance with   the Code, and (C) to the extent that the withholding or deduction is made on account of   Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as   necessary so that after any required withholding or the making of all required deductions   (including deductions applicable to additional sums payable under this Section 3.01) the                                 33                    





 






           applicable Recipient receives an amount equal to the sum it would have received had no         such withholding or deduction been made.                (iii) If  a  Loan  Party  or  the  Administrative  Agent  shall  be  required  by  any         applicable Law other than the Code to withhold or deduct any Taxes from any payment,         then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall         withhold  or  make  such  deductions  as  are  determined  by  it  to  be  required  taking  into         account  the  information  and  documentation  it  has  received  pursuant  to  subsection  (e)         below, (B) such Loan Party or the Administrative Agent, to the extent required by such         Laws,  shall  timely  pay  the  full  amount  withheld  or  deducted  to  the  relevant         Governmental  Authority  in  accordance  with  such  Laws,  and  (C)  to  the  extent  that  the         withholding or deduction is made on account of Indemnified Taxes, the sum payable by         the  applicable  Loan  Party  shall  be  increased  as  necessary  so  that  after  any  required         withholding or the making of all required deductions (including deductions applicable to         additional  sums  payable  under  this  Section  3.01)  the  applicable  Recipient  receives  an         amount equal to the sum it would have received had no such withholding or deduction         been made.         (b)  Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of  subsection (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in  accordance with applicable law, or at the option of the Administrative Agent reimburse it within  10 days after written demand therefor for the payment of, any Other Taxes.         (c)  Tax Indemnifications.                 (i)  Each Loan Party shall, and does hereby indemnify each Recipient, and         shall make payment in respect thereof within 10 days after written demand therefor, for         the  full  amount  of  any  Indemnified  Taxes  (including  Indemnified  Taxes  imposed  or         asserted on or attributable to amounts payable under this Section 3.01) payable or paid by         such Recipient or required to be withheld or deducted from a payment to such Recipient,         other than to the extent an increased payment has been made under Section 3.01(a)(ii)(C)         or 3.01(a)(iii)(C) in respect of the relevant deduction or withholding, and any reasonable         expenses  arising  therefrom  or  with  respect  thereto,  whether  or  not  such  Indemnified         Taxes  were  correctly  or  legally  imposed  or  asserted  by  the  relevant  Governmental         Authority.  A certificate as  to the amount  of such payment or liability delivered to the         applicable Loan Party by a Lender (with a copy to the Administrative Agent), or by the         Administrative  Agent  on  its  own  behalf  or  on  behalf  of  a  Lender  shall  be  conclusive         absent  manifest  error.   Each  Loan  Party  shall,  and  does  hereby,  indemnify  the         Administrative  Agent,  and  shall  make  payment  in  respect  thereof  within  10  days  after         demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly         to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below; provided         that,  upon  request  of  the  applicable  Loan  Party,  the  Administrative  Agent  shall  use         commercially reasonable efforts to exercise its set-off rights described in the last sentence         of clause (c)(ii) below to collect the applicable amount paid by such Loan Party pursuant         to  the  preceding  sentence  from  the  applicable  Lender  and  shall  pay  the  amount  so         collected  to  such  Loan  Party  net  of  any  reasonable  expenses  incurred  by  the         Administrative Agent in its efforts to collect from such Lender under clause (c)(ii) below.                (ii)  Each Lender shall, and does hereby, severally indemnify, and shall make         payment in respect thereof, within 10 days after demand therefor, (x) the Administrative         Agent against any Indemnified Taxes attributable to such Lender (but only to the extent                                       34     





 






           that  the  Borrower  has  not  already  indemnified  the  Administrative  Agent  for  such         Indemnified Taxes and without limiting the obligation of the Loan Party to do so), (y) the         Administrative Agent and the Loan Party, as applicable, against any Taxes attributable to         such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the         maintenance  of  a  Participant  Register  and  (z)  the  Administrative  Agent  and  the  Loan         Party,  as  applicable,  against  any  Excluded  Taxes  attributable  to  such  Lender  that  are         payable  or  paid  by  the  Administrative  Agent  or  the  Borrower  in  connection  with  any         Loan Document, and any reasonable expenses arising therefrom or with respect thereto,         whether or not such Taxes were correctly or legally imposed or asserted by the relevant         Governmental  Authority.   A  certificate  as  to  the  amount  of  such  payment  or  liability         delivered to any Lender by the Administrative Agent shall be conclusive absent manifest         error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any         and  all  amounts  at  any  time  owing  to  such  Lender under  this  Agreement  or  any  other         Loan Document against any amount  due to the Administrative Agent under this clause         (ii).         (d)  Evidence of Payments.  As soon as practicable after any payment of Taxes by a  Loan Party to a Governmental Authority as provided in this Section 3.01, such Loan Party shall  deliver to the Administrative Agent the original or a  certified copy of a receipt issued by such  Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the  Administrative Agent.         (e)  Status of Lenders; Tax Documentation.                 (i)  Any  Lender  that  is  entitled  to  an  exemption  from  or  reduction  of         withholding Tax with respect to payments made under any Loan Document shall deliver         to the Borrower and the Administrative Agent, at the time or times reasonably requested         by  the  Borrower  or  the  Administrative  Agent,  such  properly  completed  and  executed         documentation  prescribed  by  applicable  law  or  the  taxing  authorities  of  a  jurisdiction         pursuant  to  such  applicable  law  or  reasonably  requested  by  the  Borrower  or  the         Administrative Agent as will permit such payments to be made without withholding or at         a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the         Borrower or the Administrative Agent, shall deliver such other documentation prescribed         by applicable law or reasonably requested by the Borrower or the Administrative Agent         as will enable the Borrower or the Administrative Agent to determine whether or not such         Lender  is  subject  to  backup  withholding  or  information  reporting  requirements.          Notwithstanding anything to the contrary in the preceding two sentences, the completion,         execution and submission of such documentation (other than such documentation either         (A)  set  forth  in  Section  3.01(e)(ii)(A),  (ii)(B)  and  (ii)(D)  below  or  (B)  required  by         applicable law other than the Code or the taxing authorities of the jurisdiction pursuant to         such  applicable  law  to  comply  with  the  requirements  for  exemption  or  reduction  of         withholding  tax  in that  jurisdiction) shall not  be  required if  in  the  Lender’s  reasonable         judgment  such  completion,  execution  or submission would  subject  such  Lender  to  any         material  unreimbursed  cost  or  expense  or  would  materially  prejudice  the  legal  or         commercial position of such Lender.                (ii)  Without  limiting  the  generality  of  the  foregoing,  in  the  event  that  the         Borrower is a U.S. Person,                       (A)   any Lender that is a U.S. Person shall deliver to the Borrower               and  the  Administrative  Agent  on  or  prior  to  the  date  on  which  such  Lender                                       35     





 






                   becomes a Lender under this Agreement (and from time to time thereafter upon  the reasonable request of the Borrower or the Administrative Agent), executed   copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal  backup withholding tax;          (B)   any Foreign Lender shall, to the extent it is legally entitled to  do so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which  such Foreign Lender becomes a Lender under this Agreement (and from time to  time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the  Administrative Agent), whichever of the following is applicable:                   (I)  in the case of a Foreign Lender claiming the benefits         of an income tax treaty to which the United States is a party (x) with         respect  to  payments  of  interest  under  any  Loan  Document,  executed          copies  of  IRS  Form  W-8BEN-E  (or  W-8BEN,  as  applicable)         establishing  an  exemption  from,  or  reduction  of,  U.S.  federal         withholding Tax pursuant to the “interest” article of such tax treaty and         (y)  with  respect  to  any  other  applicable  payments  under  any  Loan         Document,  IRS  Form  W-8BEN-E  (or  W-8BEN,  as  applicable)         establishing  an  exemption  from,  or  reduction  of,  U.S.  federal         withholding Tax pursuant to the “business profits” or “other income”         article of such tax treaty;                  (II)  executed copies of IRS Form W-8ECI;                 (III)  in the case of a Foreign Lender claiming the benefits         of  the  exemption  for  portfolio  interest  under  Section  881(c)  of  the         Code,  (x)  a certificate  substantially  in  the  form  of  Exhibit  E-1  to  the         effect that such Foreign Lender is not a “bank” within the meaning of         Section  881(c)(3)(A)  of  the  Code,  a  “10  percent  shareholder”  of  the         Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a         “controlled  foreign  corporation”  described  in  Section  881(c)(3)(C)  of         the  Code  (a  “U.S.  Tax  Compliance  Certificate”)  and  (y)  executed          copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or                 (IV)   to the extent  a Foreign Lender is not the beneficial         owner, executed  copies of IRS Form W-8IMY, accompanied by IRS         Form  W-8ECI,  IRS  Form  W-8BEN-E  (or W-8BEN,  as  applicable), a         U.S. Tax Compliance Certificate substantially in the form of Exhibit E-        2 or Exhibit E-3, IRS Form W-9, and/or other certification documents         from each beneficial owner, as applicable; provided that if the Foreign         Lender is a partnership and one or more direct or indirect partners of         such Foreign Lender are claiming the portfolio interest exemption, such         Foreign  Lender  may  provide  a  U.S.  Tax  Compliance  Certificate         substantially in the form of Exhibit E-4 on behalf of each such direct         and indirect partner;          (C)   any Foreign Lender shall, to the extent it is legally entitled to  do so, deliver to the Borrower and the Administrative Agent (in such number of  copies as shall be requested by the recipient) on or prior to the date on which                          36                    





 






                 such Foreign Lender becomes a Lender under this Agreement (and from time to               time  thereafter  upon  the  reasonable  request  of  the  Borrower  or  the               Administrative  Agent),  executed  copies  of  any  other  form  prescribed  by               applicable  law  as  a  basis  for  claiming  exemption  from  or  a  reduction  in  U.S.               federal  withholding  Tax,  duly  completed,  together  with  such  supplementary               documentation as may be prescribed by applicable law to permit the Borrower               or the Administrative Agent to determine the withholding or deduction required               to be made; and                       (D)   if  a  payment  made  to  a  Lender  under  any  Loan  Document               would be subject to U.S. federal withholding Tax imposed by FATCA if such               Lender  were  to  fail  to  comply  with  the  applicable  reporting  requirements  of               FATCA (including those contained in Section 1471(b) or 1472(b) of the Code,               as applicable), such Lender shall deliver to the Borrower and the Administrative               Agent  at  the  time  or  times  prescribed  by  law  and  at  such  time  or  times               reasonably  requested  by  the  Borrower  or  the  Administrative  Agent  such               documentation prescribed by applicable law (including as prescribed by Section               1471(b)(3)(C)(i)  of  the  Code)  and  such  additional  documentation  reasonably               requested by the Borrower or the Administrative Agent as may be necessary for               the  Borrower  and  the  Administrative  Agent  to  comply  with  their  obligations               under  FATCA  and  to  determine  that  such  Lender  has  complied  with  such               Lender’s obligations under FATCA or to determine the amount to deduct and               withhold from such payment.  Solely for purposes of this clause (D), “FATCA”               shall include any amendments made to FATCA after the date of this Agreement.                (iii) Each  Lender  agrees  that  if  any  form  or  certification  it  previously         delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any         respect, it shall update such form or certification or promptly notify the Borrower and the         Administrative Agent in writing of its legal inability to do so.         (f)  Treatment  of  Certain  Refunds.   Unless  required  by  applicable  Laws,  at  no  time  shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a  Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted  from funds paid for the account of such Lender, as the case may be. If any Recipient determines,  in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which  it has been indemnified by the Borrower or with respect to which the Borrower has paid additional  amounts pursuant to this Section 3.01, it shall pay to the Borrower an amount equal to such refund  (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower  under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of- pocket expenses (including Taxes) of such Recipient, and without interest (other than any interest  paid by the relevant Governmental Authority with respect to such refund).  The Borrower, upon  the request  of the Recipient, shall repay to the Recipient the amount  paid over pursuant to this  subsection (f) (plus any penalties, interest or other charges imposed by the relevant Governmental  Authority)  in  the  event  the  Recipient  is  required  to  repay  such  refund  to  such  Governmental  Authority.   Notwithstanding  anything  to  the  contrary  in  this  subsection,  in  no  event  will  the  applicable Recipient be required to pay any amount to the Borrower pursuant to this subsection  the payment of which would place the Recipient in a less favorable net after-Tax position than  such Recipient would have been in if the Tax subject to indemnification and giving rise to such  refund had not been deducted, withheld or otherwise imposed and the indemnification payments  or additional amounts with respect to such Tax had never been paid.  This subsection shall not be                                        37     





 






    construed  to  require  any  Recipient  to  make  available  its  tax  returns  (or  any  other  information  relating to its taxes that it deems confidential) to the Borrower or any other Person.         (g)  Survival.   Each  party’s  obligations  under  this  Section  3.01  shall  survive  the  resignation  or  replacement  of  the  Administrative  Agent  or  any  assignment  of  rights  by,  or  the  replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or  discharge of all other Obligations under any Loan Document.         (h)  FATCA.  For  purposes  of  determining  U.S.  withholding  Taxes  imposed  under  FATCA, from and after the effective date of this Agreement, the Borrower and the Administrative  Agent  shall  treat  (and  the  Lenders  hereby  authorize  the  Administrative  Agent  to  treat)  this  Agreement  as  not  qualifying  as  a  “grandfathered  obligation”  within  the  meaning  of  Treasury  Regulation Section 1.1471-2(b)(2)(i).             3.02     Illegality.  If any Lender determines that any Law has made it unlawful,      or  that  any  Governmental  Authority  has  asserted  that  it  is  unlawful,  for  any  Lender  or  its      applicable Lending Office to perform any of its obligations hereunder or make, maintain or      fund or charge interest with respect to any Borrowing or to determine or charge interest rates      based  upon  the  Eurocurrency  Rate,  or  any  Governmental  Authority  has  imposed  material      restrictions on the authority of such Lender to purchase or sell, or to take deposits of Dollars      in  the  London  interbank  market,  then,  on  notice  thereof  by  such  Lender  to  the  Borrower      through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain,      fund  or  charge  interest  with  respect  to  any  such  Borrowing  or  to  make  or  continue      Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency Rate Loans, shall be      suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining      Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency      Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender      shall,  if  necessary  to  avoid  such  illegality,  be  determined  by  the  Administrative  Agent      without reference to the Eurocurrency Rate component of the Base Rate, in each case until      such  Lender  notifies  the  Administrative  Agent  and  the  Borrower  that  the  circumstances      giving  rise  to  such  determination  no  longer  exist.   Upon  receipt  of  such  notice,  (x) the      Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),      prepay  or  convert  all  Eurocurrency  Rate  Loans  of  such  Lender  to  Base  Rate  Loans  (the      interest  rate  on  which  Base  Rate  Loans  of  such  Lender  shall,  if  necessary  to  avoid  such      illegality, be determined by the Administrative Agent without reference to the Eurocurrency      Rate component of the Base Rate), either on the last day of the Interest Period therefor, if      such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or      immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate      Loans  and  (y) if  such  notice  asserts  the  illegality  of  such  Lender  determining  or  charging      interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the      period of such suspension compute the Base Rate applicable to such Lender without reference      to  the  Eurocurrency  Rate  component  thereof  until  the  Administrative  Agent  is  advised  in      writing by such Lender that it is no longer illegal  for such Lender to determine or charge      interest rates based upon the Eurocurrency Rate.  Upon any such prepayment or conversion,      the Borrower shall also pay accrued interest on the amount so prepaid or converted.             3.03     Inability to Determine Rates.           (a)  If in connection with any request for a Eurocurrency Rate Loan or a conversion to   or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not   being  offered  to  banks  in  the  London  interbank  market  for  the  applicable  amount  and  Interest                                       38     





 






   Period of such Eurocurrency Rate Loan, or (B) (x) adequate and reasonable means do not exist  for  determining  the  Eurocurrency  Rate  for  any  requested  Interest  Period  with  respect  to  a  proposed Eurocurrency Rate Loan or in connection with an existing or proposed Base Rate Loan  and (y) the circumstances described in Section 3.03(c)(i) do not apply (in each case with respect  to clause (a) above, “Impacted Loans”), or (ii) the Administrative Agent or the Required Lenders  determine  that  for  any  reason   the  Eurocurrency  Rate  for  any  requested  Interest  Period  with  respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to  such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly  so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or  maintain Eurocurrency Rate Loans shall be suspended, (to the extent of the affected Eurocurrency  Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding  sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the  Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case until  the Administrative Agent (or, in the case of a determination by the Required Lenders described in  clause  (ii)  of  Section  3.03(a),  until  the  Administrative  Agent  upon  instruction  of  the  Required  Lenders)  revokes  such  notice.   Upon  receipt  of  such  notice,  the  Borrower  may  revoke  any  pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans  (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be  deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the  amount specified therein.        (b)  Notwithstanding  the  foregoing,  if  the  Administrative  Agent  has  made  the  determination described in clause (i) of Section 3.03(a), the Administrative Agent, in consultation  with  the  Borrower  and  the  Required  Lenders,  may  establish  an  alternative  interest  rate  for  the  Impacted Loans, in which case, such alternative rate of interest  shall apply with respect  to the  Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to  the  Impacted  Loans  under  clause  (a)  of  the  first  sentence  of  Section  3.03(a),  (2)  the  Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrower  that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of  funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or  that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable  Lending  Office  to  make,  maintain  or  fund  Loans  whose  interest  is  determined  by  reference  to  such alternative rate of interest or to determine or charge interest rates based upon such rate or  any Governmental Authority has imposed material restrictions on the authority of such Lender to  do any of the foregoing and provides the Administrative Agent and the Borrower written notice  thereof.        (c)  Notwithstanding  anything  to  the  contrary  in  this  Agreement  or  any  other  Loan  Documents,  if  the  Administrative  Agent  determines  (which  determination  shall  be  conclusive  absent  manifest  error),  or  the  Borrower  or  Required  Lenders  notify  the  Administrative  Agent  (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or Required  Lenders (as applicable) have determined, that:                (i)  adequate and reasonable means do not exist for ascertaining LIBOR for        any requested Interest Period, including, without limitation, because the LIBOR Screen        Rate is not available or published on a current basis and such circumstances are unlikely        to be temporary; or               (ii)  the  administrator  of  the  LIBOR  Screen  Rate  or  a  Governmental        Authority having jurisdiction over the Administrative Agent has made a public statement        identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer                                      39    





 






         be made available, or used for determining the interest rate of loans (such specific date,        the “Scheduled Unavailability Date”), or               (iii) syndicated  loans  currently  being  executed,  or  that  include  language        similar  to  that  contained  in  this  Section  3.03,  are  being  executed  or  amended  (as        applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,         then,  reasonably  promptly  after  such  determination  by  the  Administrative  Agent  or  receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and  the  Borrower  may  amend  this  Agreement  to  replace  LIBOR  with  an  alternate  benchmark  rate  (including any mathematical or other adjustments to the benchmark (if any) incorporated therein),  giving  due  consideration  to  any  evolving  or  then  existing  convention  for  similar  U.S.  dollar  denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate,  a  “LIBOR  Successor  Rate”),  together  with  any  proposed  LIBOR  Successor  Rate  Conforming  Changes (as defined below) and any such amendment shall become effective at 5:00 p.m. (New  York  time)  on  the  fifth  Business  Day  after  the  Administrative  Agent  shall  have  posted  such  proposed  amendment  to  all  Lenders  and  the  Borrower  unless,  prior  to  such  time,  Lenders  comprising the Required Lenders have delivered to the Administrative Agent written notice that  such  Required  Lenders  do  not  accept  such  amendment.  Such  LIBOR  Successor  Rate  shall  be  applied  in  a  manner  consistent  with  market  practice;  provided  that  to  the  extent  such  market  practice  is  not  administratively  feasible  for  the  Administrative  Agent,  such  LIBOR  Successor  Rate  shall  be  applied  in  a  manner  as  otherwise  reasonably  determined  by  the  Administrative  Agent in good faith and in consultation with the Borrower.         If no LIBOR Successor Rate has been determined and the circumstances under clause (i)  above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative  Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the  Lenders to make or maintain Eurocurrency Rate Loans shall be suspended, (to the extent of the  affected Eurocurrency Rate Loans or Interest Periods), and (y) the Eurocurrency Rate component  shall  no  longer  be  utilized  in  determining  the  Base  Rate.  Upon  receipt  of  such  notice  by  the  Borrower, the Borrower may revoke any pending request for a Borrowing of, conversion to or  continuation of Eurocurrency Rate Loans (to the extent of the affected Eurocurrency Rate Loans  or Interest Periods) or, failing that, will be deemed to have converted such request into a request  for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified  therein.         Notwithstanding  anything  else  herein,  any  definition  of  LIBOR  Successor  Rate  shall  provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this  Agreement.         For purposes hereof, “LIBOR Successor Rate Conforming Changes” means, with respect  to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate,  Interest Period, timing and frequency of determining rates and making payments of interest and  other administrative matters as may be appropriate, in good faith and in the reasonable discretion  of  the  Administrative  Agent  in  consultation  with the  Borrower, to reflect the  adoption  of  such  LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a  manner substantially consistent with market practice (or, if the Administrative Agent determines  that  adoption of any portion of such market practice is not administratively feasible or that no  market  practice  for  the  administration  of  such  LIBOR  Successor  Rate  exists,  in  such  other  manner  of  administration  as  the  Administrative  Agent  in  good  faith  determines  is  reasonably                                       40    





 






     necessary  in  connection  with  the  administration  of  this  Agreement  in  consultation  with  the   Borrower).             3.04     Increased Costs; Reserves on Loans.           (a)  Increased Costs Generally.  If any Change in Law shall:                 (i)  impose,  modify  or  deem  applicable  any  reserve,  special  deposit,         compulsory loan, insurance charge or similar requirement against assets of, deposits with         or for the account of, or credit extended or participated in by, any Lender (except any         reserve requirement contemplated by Section 3.04(e));                (ii)  subject any Recipient to any Taxes (other than (A)  Indemnified Taxes,         (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and         (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,         or  other  obligations,  or  its  deposits,  reserves,  other  liabilities  or  capital  attributable         thereto; or                (iii) impose  on  any  Lender  or  the  London  interbank  market  any  other         condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by         such Lender;    and the result of any of the foregoing shall be to increase the cost to such Lender of making or   maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the   amount of any sum received or receivable by such Lender (whether of principal, interest or any   other amount) then, upon request of such Lender, the Borrower will pay to such Lender, as the   case may be, such additional amount or amounts as will compensate such Lender, as the case may   be, for such additional costs incurred or reduction suffered.         (b)  Capital  Requirements.   If  any  Lender  reasonably  determines  that  any  Change  in  Law  affecting  such  Lender  or  any  Lending  Office  of  such  Lender  or  such  Lender’s  holding  company,  if  any,  regarding  capital  or  liquidity  requirements  has  or  would  have  the  effect  of  reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding  company, if any, as a consequence of this Agreement, the Commitments of such Lender or the  Loans made by such Lender to a level below that which such Lender or such Lender’s holding  company  could  have  achieved  but  for  such  Change  in  Law  (taking  into  consideration  such  Lender’s  policies  and  the  policies  of  such  Lender’s  holding  company  with  respect  to  capital  adequacy), then from time to time the Borrower will pay to such Lender, as the case may be, such  additional amount or amounts as will compensate such Lender or such Lender’s holding company  for any such reduction suffered.         (c)  Certificates for Reimbursement.  A certificate of a Lender setting forth the amount  or amounts necessary to compensate such Lender or its holding company, as the case may be, as  specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive  absent  manifest  error.   The  Borrower  shall  pay  such  Lender,  as  the  case  may  be,  the  amount  shown as due on any such certificate within 10 days after receipt thereof.          (d)  Delay  in  Requests.   Failure  or  delay  on  the  part  of  any  Lender  to  demand  compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of  such Lender’s right to demand such compensation, provided that no Borrower shall be required to  compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs                                       41     





 






    incurred or reductions suffered more than nine months prior to the date that such Lender, as the  case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or  reductions  and  of  such  Lender’s  intention  to  claim  compensation  therefor  (except  that,  if  the  Change  in  Law  giving  rise  to  such  increased  costs  or  reductions  is  retroactive,  then  the  nine- month  period  referred  to  above  shall  be  extended  to  include  the  period  of  retroactive  effect  thereof).         (e)  Additional Reserve Requirements.  The Borrower shall pay to each Lender (i) as  long  as  such  Lender  shall  be  required  to  maintain  reserves  with  respect  to  liabilities  or  assets  consisting  of  or  including  Eurocurrency  funds  or  deposits  (currently  known  as  “Eurocurrency  liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan  equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by  such  Lender  in  good  faith,  which  determination  shall  be  conclusive),  and  (ii)  as  long  as  such  Lender shall be required to comply with any reserve ratio requirement or analogous of any central  banking or financial regulatory authority imposed in respect of the funding of the Eurocurrency  Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if  necessary, to the nearest five decimal places) equal to the actual costs allocated to such Loan by  such  Lender  (as  determined  by  such  Lender  in  good  faith,  which  determination  shall  be  conclusive), which in each case shall be due and payable on each date on which interest is payable  on such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a  copy  to  the  Administrative  Agent)  of  such  additional  interest  or  costs  from  such  Lender.   If  a  Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional  interest or costs shall be due and payable 10 days from receipt of such notice.         (f)  Reimbursement Limitation.  Notwithstanding any other provisions of this Section  3.04, no Lender shall demand compensation under subsection (a) and (b) of this Section 3.04 if it  shall not at the time be the general policy of such Lender to demand such compensation in similar  circumstances under comparable provisions of other credit agreements.             3.05     Compensation for Losses.  Upon demand of any Lender (with a copy to      the Administrative Agent) from time to time, the Borrower shall promptly compensate such      Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a      result of:         (a)  any  continuation,  conversion,  payment  or  prepayment  of  any  Loan  other  than  a  Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether  voluntary, mandatory, automatic, by reason of acceleration, or otherwise);         (b)  any failure by the Borrower (for a reason other than the failure of such Lender to  make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the  date or in the amount notified by the Borrower; or         (c)  any assignment of a Eurocurrency Rate Loan on a day other than the last day of the  Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;    including any loss of anticipated profits and any loss or expense arising from the liquidation or   reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the   deposits from which such funds were obtained.  The Borrower shall also pay any customary   administrative fees charged by such Lender in connection with the foregoing.                                        42     





 






           For purposes of calculating amounts payable by the Borrower to the Lenders under this   Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by   it  at  the  Eurocurrency  Rate  for  such  Loan  by  a  matching  deposit  or  other  borrowing  in  the   London interbank market for a comparable amount and for a comparable period, whether or not   such Eurocurrency Rate Loan was in fact so funded.             3.06     Mitigation Obligations; Replacement of Lenders.           (a)  Designation  of  a  Different  Lending  Office.   Each  Lender  may  make  any  Borrowing to the Borrower through any Lending Office, provided that the exercise of this option  shall  not  affect  the  obligation  of  the  Borrower  to  repay  the  Borrowing  in  accordance  with  the  terms  of  this  Agreement.   If  any  Lender  requests  compensation  under  Section 3.04,  or  the  Borrower is required to pay any additional amount to any Lender or any Governmental Authority  for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to  Section 3.02,  then  such  Lender  shall  (at  the  request  of  the  Borrower)  use  reasonable  efforts  to  designate a different Lending Office for funding or booking its Loans hereunder or to assign its  rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment  of  such  Lender such  designation  or  assignment  (i)  would  eliminate  or  reduce  amounts  payable  pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the  notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender  to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.   The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in  connection with any such designation or assignment.         (b)  Replacement of Lenders.  If any Lender requests compensation under Section 3.04,  or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender  or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in  each  case,  such  Lender  has  declined  or  is  unable  to  designate  a  different  lending  office  in  accordance  with  Section  3.06(a),  the  Borrower  may  replace  such  Lender  in  accordance  with  Section 11.13.             3.07     Survival.  All of the Borrower’s obligations under this Article III shall      survive termination of the Commitments and repayment of all other Obligations hereunder.                                  ARTICLE IV                                                                        GUARANTY             4.01     Facility  Guaranty.   In  support  of  the  full  and  timely  payment  and      performance of all Obligations, the Borrower (A) shall on or before the Closing Date do or      cause  to  be  done  all  things  necessary  to  cause  (x)  each  Domestic  Subsidiary  that  is  a      Significant Subsidiary (other than Excluded Subsidiaries) and (y) each Domestic Subsidiary      that is a borrower under, and each Subsidiary that is a guarantor of obligations of a Person      incorporated in the United States under, the Revolving Credit Agreement or any refinancing      or  replacement  thereof  (other  than  any  Specified  Excluded  Subsidiaries),  in  each  case,  to      execute  and  deliver  to  Administrative  Agent  for  the  benefit  of  the  Lenders  a  Facility      Guaranty  and  (B)  shall  further  cause  each  Person  who  thereafter  becomes  (x)  a  Domestic      Subsidiary  that  is  a  Significant  Subsidiary  (other  than  Excluded  Subsidiaries)  or  (y)  a      Domestic  Subsidiary  that  is  a  borrower  under,  or  any  Subsidiary  that  is  a  guarantor  of      obligations  of  a  Person  incorporated  in  the  United  States  under,  the  Revolving  Credit                                       43     





 






                   Agreement after the date of this Agreement or any refinancing or replacement thereof, in each  case, to do all those things required by Section 7.12.                              ARTICLE V                                                          CONDITIONS PRECEDENT         5.01     Conditions  of  Closing.   The  effectiveness  of  this  Agreement,  the  occurrence of the Closing Date and the obligation of each Lender to fund the Loans on the  Closing Date are subject to the satisfaction or waiver of following conditions precedent:     (a)  The Administrative Agent’s receipt of each of the following:             (i)  executed counterparts of this Agreement and the Facility Guaranty;            (ii)  a Note executed by the Borrower in favor of each Lender requesting a     Note at least five (5) Business Days prior to the Closing Date;            (iii) such  customary  certificates  of  resolutions  or  other  action,  incumbency     certificates  and/or  other  certificates  of  Responsible  Officers  of  each  Loan  Party  as  the     Administrative Agent may require evidencing the identity, authority and capacity of each     Responsible Officer thereof authorized to act as a Responsible Officer in connection with     this Agreement and the other Loan Documents to which such Loan Party is a party;            (iv)  such  documents  and  certifications  as  the  Administrative  Agent  may     reasonably require to evidence that each Loan Party is duly organized or formed, validly     existing,  in  good  standing  and  qualified  to  engage  in  business  in  its  jurisdiction  of     organization, including certified copies of such Loan Parties’ Organization Documents,     certificates of good standing and/or qualification to engage in business;            (v)   a favorable opinion of (i) Cleary Gottlieb Steen & Hamilton LLP, New     York counsel to the Borrower as to matters of New York and United States Law and (ii)     in-house  counsel  of  the  Borrower  as  to  matters  of  Florida  and  Delaware  Law,  in  each     case, addressed to the Administrative Agent and the Lenders and dated as of the Closing     Date,  in  form  and  substance  satisfactory  to  the  Administrative  Agent  and  its  legal     counsel; and            (vi)  a certificate signed by a Responsible Officer of the Borrower dated as of     the Closing Date certifying (A) that the representations and warranties of the Borrower     and each other Loan Party contained in Article VI or any other Loan Document (or which     are contained in any document furnished at any time under or in connection herewith or     therewith)  are  true  and  correct  in  all  material  respects  (unless  such  representation  or     warranty is already qualified by materiality or Material Adverse Effect, in which case it     shall  be  true  and  correct  in  all  respects)  on  and  as  of  the  Closing  Date,  except  to  the     extent  that  such  representations  and  warranties  specifically  refer  to  an  earlier  date,  in     which  case  they  shall  be  true  and  correct  in  all  material  respects  (unless  such     representation or warranty is already qualified by materiality or Material Adverse Effect,     in which case it shall be true and correct in all respects) as of such earlier date; (B) no     Default or Event of Default exists, or would result from  the occurrence of the Closing     Date  and  the  transactions  contemplated  herein;  (C)  that  there  has  been  no  event  or     circumstance since the date of the Audited Financial Statements that has had or could be                                   44                    





 






           reasonably expected to have, either individually or in the aggregate, a Material Adverse         Effect; and (D) the Borrower has paid, or will promptly pay to the extent invoiced and         due and payable, all required documentary stamp taxes, intangible taxes and other taxes         and  fees  imposed  upon  the  execution,  filing  and/or  recording  of  the  Credit  Agreement         and the other Loan Documents.         (b)  Any fees and expenses required to be paid on or before the Closing Date shall have  been paid, including those set forth in the Fee Letter.         (c)  Unless  waived  by  the  Administrative  Agent,  the  Borrower  shall  have  paid  all  Attorney  Costs  of  the  Administrative  Agent  to  the  extent  invoiced  at  least  two  Business  Days  prior to the Closing Date; provided that such payment shall not thereafter preclude a final settling  of  accounts  between  the  Borrower  and  the  Administrative  Agent  and  shall  not  relieve  the  Borrower  of  its  obligation  to  pay  or  reimburse  the  Administrative  Agent  for  any  additional  Attorney Costs in accordance with Section 11.04.         (d)  The  Administrative  Agent  shall  have  received  satisfactory  evidence  that  all  obligations owing under the Existing Credit Agreement, and any liens thereunder (if any), shall  have been, or concurrently with the date hereof will be, repaid, and the commitments thereunder  terminated.         (e)  To the extent requested by the Arranger or any Lender on or prior to the date that  is ten Business Days prior to the Closing Date, (i) the Arranger shall have received, at least three  (3) Business Days prior to the Closing Date, all documentation and other information required by  regulatory  authorities  under  applicable  “know  your  customer”  and  anti-money  laundering  rules  and  regulations,  including,  without  limitation,  the  PATRIOT  Act  and  (ii)  at  least  three  (3)  Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer”  under  the  Beneficial  Ownership  Regulation  shall  deliver,  to  each  Lender  that  so  requests,  a  Beneficial Ownership Certification in relation to the Borrower.         (f)  The Administrative Agent shall have received a timely duly executed Loan Notice  in accordance with the requirements hereof.          Without  limiting  the  generality  of  the  provisions  of  Section  10.04,  for  purposes  of   determining compliance with the conditions specified in this Section 5.01, each Lender that has   signed  this  Agreement  shall  be  deemed  to  have  consented  to,  approved  or  accepted  or  to  be   satisfied with, each document or other matter required thereunder to be consented to or approved   by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received   notice  from  such  Lender  prior  to  the  proposed  Closing  Date  specifying  its  objection  thereto.    Promptly upon the occurrence thereof, the Administrative Agent shall notify the Borrower and   the Lenders that the Closing Date has occurred, and such notice shall be conclusive and binding   on the Borrower and the Lenders.                                  ARTICLE VI                                                            REPRESENTATIONS AND WARRANTIES          The  Borrower  represents  and  warrants  on  the  Closing  Date  and  on  each  other  date   contemplated by this Agreement or the other Loan Documents to the Administrative Agent and   the Lenders that:                                       45     





 






              6.01     Existence,  Qualification  and  Power;  Compliance  with  Laws.   Each      Loan Party (a) is a corporation or other legal entity duly organized or formed, validly existing      and in good standing under the Laws of the jurisdiction of its incorporation or organization,      (b)  has  all  requisite  power  and  authority  and  all  requisite  governmental  licenses,      authorizations, consents and approvals to (i) own its assets and carry on its business and (ii)      execute, deliver and perform its obligations under the Loan Documents to which it is a party,      (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction      where its ownership, lease or operation of properties or the conduct of its business requires      such  qualification  or  license,  and  (d)  is  in  compliance  with  all  Laws;  except  in  each  case      referred to in clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably      be expected to have a Material Adverse Effect.             6.02     Authorization;  No  Contravention.   (a)  The  execution,  delivery  and      performance by each Loan Party of each Loan Document to which such Person is party, have      been duly authorized by all necessary corporate or other organizational action, and (b) do not      and will not (x) contravene the terms of any of such Person’s Organization Documents; (y)      conflict with or result in any breach or contravention of, or the creation of any Lien under, (i)      any  material  Contractual  Obligation  to  which  such  Person  is  a  party  or  (ii)  any  order,      injunction, Writ or decree of any Governmental Authority or any arbitral award to which such      Person or its property is subject; or (z) violate any Law.             6.03     Governmental  Authorization;  Other  Consents.   Except  for  consents      which have already been obtained, no approval, consent, exemption, authorization, or other      action by, or notice to, or filing with, any Governmental Authority or any other Person (other      than filings under the Securities Exchange Act of 1934 and the rules and regulations of the      SEC  promulgated  thereunder)  which  has  not  been  obtained  is  necessary  or  required  in      connection with the execution, delivery or performance by, or enforcement against, any Loan      Party of this Agreement or any other Loan Document.             6.04     Binding  Effect.   This  Agreement  has  been,  and  each  other  Loan      Document, when delivered hereunder, will have been, duly executed and delivered by each      Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document      when so delivered will constitute, a legal, valid and binding obligation of such Loan Party,      enforceable against each Loan Party that is party thereto in accordance with its terms.             6.05     Financial Statements; No Material Adverse Effect.         (a)  The  Audited  Financial  Statements  (i)  were  prepared  in  accordance  with  GAAP  consistently applied throughout the period covered thereby, except as otherwise expressly noted  therein; (ii) fairly present  the financial condition of the Borrower and its Subsidiaries as of the  date  thereof  and  their  results  of  operations  for  the  period  covered  thereby  in  accordance  with  GAAP consistently applied throughout the period covered thereby, except as otherwise expressly  noted  therein;  and  (iii)  show  all  material  indebtedness  and  other  material  liabilities,  direct  or  contingent,  of  the  Borrower  and  its  Subsidiaries  as  of  the  date  thereof,  including  liabilities  for  taxes, material commitments and Indebtedness.         (b)  The  unaudited  consolidated  financial  statements  of  the  Borrower  and  its  Subsidiaries  dated  April  30,  2019,  and  the  related  consolidated  statements  of  income  or  operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were  prepared in accordance with GAAP consistently applied throughout the period covered thereby,  except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the                                       46     





 






    Borrower and its Subsidiaries as of the date thereof and their results of operations for the period  covered  thereby,  subject,  in  the  case  of  clauses  (i)  and  (ii),  to  the  absence  of  footnotes  and  to  normal year-end audit adjustments.         (c)  Since  the  date  of  the  Audited  Financial  Statements,  there  has  been  no  event  or  circumstance, either individually or in the aggregate, that has had or could reasonably be expected  to have a Material Adverse Effect.             6.06     Litigation.  Except as disclosed in the Exchange Act Reports, there are      no actions, suits, proceedings, investigations, claims or disputes pending or, to the knowledge      of the Borrower after due and diligent investigation, pending threatened or contemplated, at      law,  in  equity,  in  arbitration  or  before  any  Governmental  Authority,  by  or  against  the      Borrower  or  any  of  its  Subsidiaries  or  against  any  of  their  properties  or  revenues  that  (a)      purport  to  affect  or  pertain  to  this  Agreement  or  any  other  Loan  Document,  or  any  of  the      transactions  contemplated  hereby,  or  (b)  if  determined  adversely,  could  reasonably  be      expected to have a Material Adverse Effect.             6.07     No Default.  Neither the Borrower nor any Subsidiary is in default under      or  with  respect  to  any  Contractual  Obligation  that  could,  either  individually  or  in  the      aggregate,  reasonably  be  expected  to  have  a  Material  Adverse  Effect.   No  Default  has      occurred  and  is  continuing  or  would  result  from  the  consummation  of  the  transactions      contemplated by this Agreement or any other Loan Document.             6.08     Ownership  of  Property;  Liens.   Each  of  the  Borrower  and  each      Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests      in, all real property necessary or used in the ordinary conduct of its business, except for such      defects in title as could not, individually or in the aggregate, reasonably be expected to have a      Material Adverse Effect.  The property of the Borrower and its Subsidiaries is subject to no      Liens, other than Liens permitted by Section 8.01.             6.09     Environmental  Compliance.   The  Borrower  and  its  Subsidiaries      conduct in the ordinary course of business a review of the effect of claims alleging potential      liability  or  responsibility  for  violation  of  any  Environmental  Law  on  their  respective      businesses,  operations  and  properties,  and  as  a  result  thereof  the  Borrower  has  reasonably      concluded  that  Environmental  Laws  and  such  claims  could  not,  individually  or  in  the      aggregate, reasonably be expected to have a Material Adverse Effect.             6.10     Insurance.   The  properties  of  the  Borrower  and  its  Subsidiaries  are      insured  with  financially  sound  and  reputable  insurance  companies,  in  such  amounts,  with      such deductibles and covering such risks as are customarily carried by companies engaged in      similar  businesses  and  owning  similar  properties  in  localities  where  the  Borrower  or  the      applicable Subsidiary operates none of which insurance shall be provided by any Subsidiary      or  any  other  Affiliate  of  the  Borrower  except  to  the  extent  that  any  such  Affiliate  has      reinsured  all  exposure  related  thereto  with  one  or  more  financially  sound  and  reputable      insurance or reinsurance companies none of which is an Affiliate of the Borrower.             6.11     Taxes.  The Borrower and its Subsidiaries have filed all federal, state and      other material tax returns and reports required to be filed, and have paid all federal, state and      other  material  taxes,  assessments,  fees  and  other  governmental  charges  levied  or  imposed      upon  them  or  their  properties,  income  or  assets  otherwise  due  and  payable,  except  such      material items which are being contested in good faith by appropriate proceedings diligently                                       47     





 






        conducted and for which adequate reserves have been provided in accordance with GAAP.       There is no proposed tax assessment against the Borrower or any Subsidiary that would, if      made, have a Material Adverse Effect.             6.12     ERISA Compliance.         (a)  (i)  Each  Plan  is  in  compliance  in  all  material  respects  with  the  applicable  provisions of ERISA, the Code and other federal or state Laws and (ii) each Pension Plan that is  intended  to  be  a  qualified  plan  under  Section  401(a)  of  the  Code  has  received  a  favorable  determination letter from the Internal Revenue Service to the effect that the form of such Plan is  qualified under Section 401(a) of the Code and the trust related thereto has been determined by  the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the  Code  or  an  application  for  such  a  letter  is  currently  being  processed  by  the  Internal  Revenue  Service and to the best knowledge of the Loan Parties, nothing has occurred which would prevent,  or cause the loss of, such tax-qualified status.         (b)  There  are  no  pending  or,  to  the  best  knowledge  of  the  Loan  Parties,  threatened  claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan  that  could  reasonably  be  expected  to  have  a  Material  Adverse  Effect.   There  has  been  no  prohibited  transaction  or  violation of  the fiduciary  responsibility  rules  with respect  to  any  Plan  that has resulted or could reasonably be expected to result in a Material Adverse Effect.         (c)  (i)  no  ERISA  Event  has  occurred  with  respect  to  any  Pension  Plan  and  to  the  knowledge of the Loan Parties there is no fact, event or circumstance that could reasonably be  expected  to  constitute  or  result  in  an  ERISA  Event  with  respect  to  any  Pension  Plan;  (ii)  the  Borrower  and  each  ERISA  Affiliate  have  met  all  applicable  requirements  under  the  Pension  Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards  under the Pension Funding Rules has been applied for or obtained; (iii) neither the Borrower nor  any  ERISA  Affiliate  has  incurred  any  liability  to  the  PBGC  other  than  for  the  payment  of  premiums,  and  there  are  no  premium  payments  which  have  become  due  that  are  unpaid;  (iv)  neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could reasonably  be expected to be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan  has  been  terminated  by  the  plan  administrator  thereof  in  a  non-standard  termination  or  by  the  PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to  cause the PGBC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.             6.13     Subsidiaries.  Set forth on Schedule 6.13 is a complete and accurate list      of  the  Borrower, all  Subsidiaries  that  would  be  required  to  be listed  as  part  of  the Annual      Report  of  the  Borrower  on  Form  10-K,  their  exact  legal  names  and,  with  respect  to  those      Subsidiaries which are Loan Parties, the tax identification number, of each, a designation as      to whether each such Subsidiary is a Domestic Subsidiary or a Foreign Subsidiary, and which      Subsidiaries are Significant Subsidiaries, as such Schedule 6.13 is updated from time to time      in accordance with Section 7.02.  The Borrower has no equity investments in any corporation      or entity that is not a Subsidiary other than those specifically disclosed in Schedule 8.02.             6.14     Margin Regulations; Investment Company Act.         (a)  The  Borrower  is  not  engaged  and  will  not  engage,  principally  or  as  one  of  its  important activities, in the business of purchasing or carrying margin stock (within the meaning of  Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying  margin stock.  Following the application of the proceeds of each Borrowing, not more than 25%                                       48     





 






    of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a  consolidated  basis)  subject  to  the  provisions  of  Section  8.01  or  Section  8.05  or  subject  to  any  restriction contained in any agreement or instrument between the Borrower and any Lender or any  Affiliate of any Lender relating to Indebtedness and within the scope of Section 9.01(e) will be  margin stock.         (b)  None  of  the  Borrower  or  any  Guarantor  is  or  is  required  to  be  registered  as  an  “investment company” under the Investment Company Act of 1940.             6.15     Disclosure.  (a)  The Borrower has disclosed to the Administrative Agent      and the Lenders all agreements, instruments and corporate or other restrictions to which it or      any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the      aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report,      financial statement, certificate or other information furnished (whether in writing or orally)      by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection      with the transactions contemplated hereby and the negotiation of this Agreement or delivered      hereunder  (as  modified  or  supplemented  by  other  information  so  furnished)  contains  any      material  misstatement  of  fact  or  omits  to  state  any  material  fact  necessary  to  make  the      statements  therein,  in  the  light  of  the  circumstances  under  which  they  were  made,  not      misleading;  provided  that,  with  respect  to  projected  financial  information,  the  Borrower      represents  only  that  such  information  was  prepared  in  good  faith  based  upon  assumptions      believed to be reasonable at the time.         (b)  As  of  the  Closing  Date,  the  information  included  in  the  Beneficial  Ownership  Certification, if applicable, is true and correct in all respects.             6.16     Compliance with Laws.  Each of the Borrower and each Subsidiary is in      compliance in all material respects with the requirements of all Laws and all orders, writs,      injunctions and decrees applicable to it or to its properties, except in such instances in which      (a) such requirement of Law or order, writ, injunction or decree is being contested in good      faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith,      either individually or in the aggregate, could not reasonably be expected to have a Material      Adverse Effect.             6.17     Intangible Assets.  The Borrower and its Subsidiaries own, or possess      the  right  to  use,  all  trademarks,  trade  names,  copyrights,  patents,  patent  rights,  franchises,      licenses and other intangible assets that are used in the conduct of their respective businesses      as now operated, and none of such items, to the best knowledge of Borrower, conflicts with      the  valid  trademark,  trade  name,  copyright,  patent,  patent  right  or  intangible  asset  of  any      other Person to the extent that such conflict has a Material Adverse Effect.             6.18     Off-Balance  Sheet  Liabilities.   As  of  the  Closing  Date,  neither  the      Borrower nor any Subsidiary has any Off-Balance Sheet Liabilities other than those identified      on Schedule 6.18.             6.19     Solvency.  On the Closing Date, after giving effect to the application of      each  Loan  made  on  such  date  and  the  other  transactions  contemplated  by  each  Loan      Document to occur on such date, the Loan Parties, on a consolidated basis, are Solvent.             6.20     OFAC.   Neither  the  Borrower,  nor  any  of  its  Subsidiaries,  nor,  to  the      knowledge of the Borrower and its Subsidiaries, any director, officer or affiliate thereof, is an                                       49     





 






        individual or entity, or is controlled or 50% or more owned by any individual or entity, (i)      with  whom  dealings  are  currently  prohibited  by  any  Sanctions,  (ii)  located,  organized  or      resident in a Designated Jurisdiction or (iii) appearing on a list of Persons with whom trade or      commerce  is  expressly  restricted  by  Law  pursuant  to  Sanctions  (any  such  Person  in  the      foregoing  clauses  (i)  through  (iii),  a  “Sanctioned  Person”).   No  proceeds  of  any  Loans  or      Borrowings shall be used in violation of Sanctions.             6.21     Anti-Corruption  Laws.   The  Borrower  and  its  Subsidiaries  have      conducted  their  businesses  in  material  compliance  with  the  United  States  Foreign  Corrupt      Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation      in other jurisdictions and have instituted and maintained policies and procedures designed to      promote and achieve compliance with such laws.             6.22     PATRIOT Act.   The  Borrower  and  its  Subsidiaries  are  in  compliance      with the PATRIOT Act in all material respects.                                  ARTICLE VII                                                                 AFFIRMATIVE COVENANTS          So  long  as  any  Lender  shall  have  any  Commitment  hereunder,  any  Loan  or  other   Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in   the case of the covenants set forth in Sections 7.01, 7.02, 7.03 or 7.11) cause each Subsidiary to:             7.01     Financial  Statements.   Deliver  to  the  Administrative  Agent  and  each      Lender,  in  form  and  detail  reasonably  satisfactory  to  the  Administrative  Agent  and  the      Required Lenders:         (a)  as soon as available, but in any event within 90 days after the end of each fiscal  year  of  the  Borrower  (commencing  with  the  first  fiscal  year  ending  after  the  Closing  Date),  consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at the end of  such  fiscal  year,  and  the  related  consolidated  and  consolidating  statements  of  income  or  operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in  comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in  accordance  with  GAAP,  audited  and  accompanied  by  a  report  and  opinion  of  an  independent  certified  public  accountant  of  nationally  recognized  standing  reasonably  acceptable  to  the  Required  Lenders,  which  report  and  opinion  shall  be  prepared  in  accordance  with  generally  accepted auditing standards and shall not be subject to any “going concern” or like qualification  or exception or any qualification or exception as to the scope of such audit; and         (b)  as soon as available, but in any event within 45 days after the end of each of the  first three fiscal quarters of each  fiscal  year of the Borrower (commencing with the first  such  fiscal quarter ending after the Closing Date), consolidated and consolidating balance sheets of the  Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and  consolidating statements of income or operations, shareholders’ equity and cash flows for such  fiscal quarter and for the portion of the Borrower’s fiscal year then ended, setting forth in each  case in  comparative form  the figures for  the  corresponding  fiscal  quarter of the  previous fiscal  year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified  by a Responsible Officer of the Borrower as fairly presenting the financial condition, results of  operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance  with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.                                       50     





 






     As to any information contained in materials furnished pursuant to Section 7.02(d), the Borrower   shall not be separately required to furnish such information under clause (a) or (b) above, but the   foregoing shall not be in derogation of the obligation of the Borrower to furnish the information   and materials described in subsections (a) and (b) above at the times specified therein.             7.02     Certificates; Other Information.  Deliver to the Administrative Agent      and each Lender, in form and detail reasonably satisfactory to the Administrative Agent and      the Required Lenders (it being agreed that with respect to items required to be filed with the      SEC, documents satisfying the requirements of the SEC shall be deemed to be satisfactory in      form and detail to the Administrative Agent and the Lenders):         (a)  concurrently  with  the  delivery  of  the  financial  statements  referred  to  in  Section 7.01(a),  a  certificate  of  its  independent  certified  public  accountants  certifying  such  financial statements and stating that in making the examination necessary therefor no knowledge  was obtained of any Default under the financial covenants set forth herein or, if any such Default  shall exist, stating the nature and status of such event;         (b)  concurrently  with  the  delivery  of  the  financial  statements  referred  to  in  Sections 7.01(a)  and  (b),  a  duly  completed  Compliance  Certificate  signed  by  a  Responsible  Officer of the Borrower;         (c)  promptly after any request by the Administrative Agent or any Lender, copies of  any  detailed  audit  reports,  management  letters  or  recommendations  submitted  to  the  board  of  directors  (or  the  audit  committee  of  the  board  of  directors)  of  the  Borrower  by  independent  accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any  audit of any of them;         (d)  promptly  after  the  same  are  available,  copies  of  each  annual  report,  proxy  or  financial statement or other report or communication sent to the stockholders of the Borrower, and  copies  of all annual, regular, periodic and  special  reports  and registration statements  which  the  Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities  Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent  pursuant hereto;         (e)  promptly after the furnishing thereof, copies of any statement or report furnished to  any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the terms of  any indenture, loan or credit or similar agreement and not otherwise required to be furnished to  the Lenders pursuant to Section 7.01 or any other clause of this Section 7.02; and         (f)  promptly,  such  additional  information  regarding  the  business,  financial  or  corporate affairs  of the  Borrower  or any  Subsidiary, or  compliance  with  the terms  of  the  Loan  Documents or for purposes of compliance with applicable “know your customer” and anti-money- laundering  rules  and  regulations,  including,  without  limitation,  the  PATRIOT  Act  and  the  Beneficial Ownership Regulation, as the Administrative Agent or any Lender may from time to  time reasonably request.          Documents required to be delivered pursuant to Section 7.01(a) or (b) or Section 7.02(d)   (to the extent any such documents are included in materials otherwise filed with the SEC) may be   delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i)   on  which  the  Borrower  posts  such  documents,  or  provides  a  link  thereto  on  the  Borrower’s   website  on  the  Internet  at  the  website  address  listed  on  Schedule  11.02  or  (ii)  on  which  such                                       51     





 






     documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which   each  Lender  and  the  Administrative  Agent  have  access  (whether  a  commercial,  third-party   website  or  whether  sponsored  by  the  Administrative Agent);  provided that:  the Borrower  shall   notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting   of  any  such  documents  and  provide  to  the  Administrative  Agent  by  electronic  mail  electronic   versions (i.e., soft copies) of such documents.  The Administrative Agent shall have no obligation   to request the delivery of or to maintain paper copies of the documents referred to above, and in   any  event  shall  have  no  responsibility  to  monitor  compliance  by  the  Borrower  with  any  such   request  by  a  Lender  for  delivery,  and  each  Lender  shall  be  solely  responsible  for  requesting   delivery to it or maintaining its copies of such documents.          The  Borrower  hereby  acknowledges  that  (a)  the  Administrative  Agent  and/or  the   Arranger,  will  make  available  to  the  Lenders  materials  and/or  information  provided  by  or  on   behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower   Materials  on  IntraLinks  or  another  similar  electronic  system  (the  “Platform”)  and  (b)  the   Borrower has requested that none of the proposed Lenders be “public-side” Lenders (i.e., Lenders   that do not wish to receive material non-public information with respect to the Borrower or any of   its Subsidiaries or any of their respective securities) (each, a “Public Lender”).  Accordingly, the   Borrower hereby agrees that the Administrative Agent and the Arranger shall be entitled to treat   all Borrower Materials as being suitable only for posting on the Platform such that they are not   made available to any Public Lender.             7.03     Notices.  Promptly notify the Administrative Agent and each Lender:         (a)  of the occurrence of any Default;         (b)  of  any  matter  that  has  resulted  or  could  reasonably  be  expected  to  result  in  a  Material Adverse Effect;         (c)  of the occurrence of any ERISA Event;         (d)  of  any  material  change  in accounting  policies or financial reporting  practices  by  the Borrower or any Significant Subsidiary; and         (e)  of any published announcement by Moody’s, S&P or Fitch of any change in (i) a  Debt Rating or (ii) the outlook regarding the Borrower.           Each  notice  pursuant  to  this  Section  shall  be  accompanied  by  a  statement  of  a   Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and   stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice   pursuant  to  Section  7.03(a)  shall  describe  with  particularity  any  and  all  provisions  of  this   Agreement and any other Loan Document that have been breached.             7.04     Payment of Obligations.  Pay and discharge as the same shall become      due  and  payable,  all  its  material  obligations  and  material  liabilities  in  accordance  with      customary practices of the Borrower and its Subsidiaries.             7.05     Preservation of Existence, Etc.  (a) Preserve, renew and maintain in full      force and effect its legal existence and good standing under the Laws of the jurisdiction of its      organization except in a transaction permitted by Section 8.04 or 8.05; (b) take all reasonable      action  to  maintain  all  rights,  privileges,  permits,  licenses  and  franchises  necessary  or                                       52     





 






                   desirable in the normal conduct of its business, except to the extent that failure to do so could  not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all  of its registered patents, trademarks, trade names and service marks, the non-preservation of  which could reasonably be expected to have a Material Adverse Effect.         7.06     Maintenance of Properties.  (a) Maintain, preserve and protect all of its  material properties and equipment necessary in the operation of its business in good working  order  and  condition,  ordinary  wear  and  tear  excepted;  and  (b)  make  all  necessary  repairs  thereto  and renewals  and replacements thereof except  where the  failure to  do  so  could  not  reasonably be expected to have a Material Adverse Effect.         7.07     Maintenance  of  Insurance.   Maintain  with  financially  sound  and  reputable insurance companies, insurance with respect to its properties and business against  loss or damage of the kinds customarily insured against by Persons engaged in the same or  similar business, of such types and in such amounts as are customarily carried under similar  circumstances  by  such  other  Persons,  none  of  which  insurance  shall  be  provided  by  any  Subsidiary or any other Affiliate of the Borrower except to the extent that any such Affiliate  has reinsured all exposure related thereto with one or more financially sound and reputable  insurance or reinsurance companies none of which is an Affiliate of the Borrower.         7.08     Compliance  with  Laws.   Comply  with  the  requirements  of  all  Laws  (including all Environmental Laws) and all orders, writs, injunctions and decrees applicable  to it or to its business or property, except in such instances in which the failure to comply  therewith could not reasonably be expected to have a Material Adverse Effect.         7.09     Books and Records.  (a) Maintain proper books of record and account,  in which full, true and correct entries in conformity with GAAP consistently applied shall be  made  of  all  financial  transactions  and  matters  involving  the  assets  and  business  of  the  Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and  account  in  material  conformity  with  all  applicable  requirements  of  any  Governmental  Authority  having  regulatory  jurisdiction  over the  Borrower or  such  Subsidiary,  as  the  case  may be.         7.10     Inspection Rights.  Subject to Section 11.07, permit representatives and  independent contractors of the Administrative Agent and each Lender to visit and inspect any  of its properties, to examine its corporate, financial and operating records, and make copies  thereof  or  abstracts  therefrom,  and  to  discuss  its  affairs,  finances  and  accounts  with  its  directors,  officers,  and  independent  public  accountants,  at  such  reasonable  times  during  normal business hours as often as may be reasonably desired, and (so long as no Event of  Default exists) without unreasonably interfering with business operations of the Borrower or  such  Subsidiary,  and  upon  reasonable  advance  notice to  the  Borrower;  provided,  however,  that when an Event of Default exists the Administrative Agent or any Lender (or any of their  respective  representatives  or  independent  contractors)  may  do  any  of  the  foregoing  at  the  expense  of  the  Borrower  at  any  time  during  normal  business  hours  and  without  advance  notice.         7.11     Use of Proceeds.  Use the proceeds of the Borrowings solely to repay all  outstanding loans and other obligations under the Existing Credit Agreement and pay fees,  costs and expenses relating to such repayment.         7.12     New Subsidiaries.                                   53                    





 






          (a)  Promptly notify the Administrative Agent at the time that any Domestic Subsidiary  becomes a Significant Subsidiary (other than an Excluded Subsidiary) or any Domestic Subsidiary  is acquired that constitutes a Significant Subsidiary (other than an Excluded Subsidiary) or any  Domestic  Subsidiary  becomes  a  borrower  under,  or  any  Subsidiary  becomes  a  guarantor  of  obligations of a Person incorporated in the United States under, the Revolving Credit Agreement  after the date of this Agreement (in each case, such subsidiary a “Required Subsidiary”) (in each  case,  including,  without  limitation,  upon  the  formation  of  any  Subsidiary  that  is  a  Delaware  Divided  LLC)  and  within  60  days  thereof  (or  such  longer  period  as  may  be  agreed  by  the  Administrative Agent in its reasonable discretion) cause to be delivered to Administrative Agent  for  the  benefit  of  Administrative  Agent  and  the  Lenders  (A)  a  Facility  Guaranty  in  form  and  substance satisfactory to the Administrative Agent or a Guaranty Joinder Agreement, in each case  executed by such Required Subsidiary, (B) if requested by the Administrative Agent, an opinion  of counsel to such Required Subsidiary dated as of the date of delivery of the Facility Guaranty or  Guaranty  Joinder  Agreement  addressed  to  Administrative  Agent  and  the  Lenders,  in  form  and  substance  reasonably  acceptable  to  Administrative  Agent,  (C)  the  Organization  Documents  of  such Required Subsidiary, (D) documents of the types referred to in Sections 5.01(a)(iii), (iv), and  (v),  and  (E)  if  requested  by  the  Administrative  Agent,  a  certificate  signed  by  a  Responsible  Officer  in  form  acceptable  to  the  Administrative  Agent  setting  forth  the  amount  of  assets  and  revenues of each of the Borrower and each of its Domestic Subsidiaries; provided, however, that  such Facility Guaranty shall not be required with respect to a Domestic Subsidiary (other than any  Subsidiary that becomes a borrower under or guarantor of the Revolving Credit Agreement) that  (1) is intended to be a Significant Subsidiary only temporarily as part of a restructuring plan or  acquisition plan otherwise permitted by this Agreement, and (2) in fact ceases to be a Significant  Subsidiary in accordance with such plan prior to the end of the 60-day period described above;  and provided, further, that no Excluded Subsidiary (that is not a borrower under, or a guarantor in  respect of obligations of a Person incorporated in the United States under the Revolving Credit  Agreement), shall be required to deliver a Facility Guaranty.         (b)  If  at  any  time  the  sum  of  the  total  assets  (on  a  consolidated  basis  with  their  respective  Domestic  Subsidiaries)  of  Domestic  Subsidiaries  (other  than  Excluded  Subsidiaries)  that  are not  Guarantors exceeds in the aggregate 10% of the total assets of the Borrower (on a  consolidated  basis  with  its  Domestic  Subsidiaries),  the  Borrower  shall  promptly  cause  one  or  more additional Domestic Subsidiaries that do not constitute Significant Subsidiaries to become a  Guarantor  in  order  that  after  giving  effect  to  such  additional  Guarantors,  the  sum  of  the  total  assets  (on  a  consolidated  basis  with  their  respective  Domestic  Subsidiaries)  of  Domestic  Subsidiaries  (other  than  Excluded  Subsidiaries)  that  are  not  Guarantors  does  not  exceed  in  the  aggregate  10%  of  the  total  assets  of  the  Borrower  (on  a  consolidated  basis  with  its  Domestic  Subsidiaries).             7.13     Compliance  with  Agreements.   Promptly  and  fully  comply  with  all      Contractual  Obligations  to  which  any  one or  more  of them  is  a  party,  except for any  such      Contractual Obligations (a) the performance of which would cause a Default, (b) then being      contested  by  any  of  them  in  good  faith  by  appropriate  proceedings,  or  (c)  if  the  failure  to      comply therewith does not have a Material Adverse Effect.             7.14     Compliance with ERISA.  Do, and cause each of its ERISA Affiliates      to  do,  each  of the following:  (a)  maintain  each  Plan  in  compliance in  all  material  respects      with the applicable provisions of ERISA, the Code and other federal or state law; (b) cause      each Plan that is qualified under Section 401(a) of the Code to maintain such qualification;      and (c) make all required contributions to any Plan subject to Section 412, Section 430 or      Section 431 of the Code.                                       54     





 






              7.15     Anti-Corruption Laws.  Conduct its businesses in material compliance      with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and      other  similar  anti-corruption  legislation  in  other  jurisdictions  and  maintain  policies  and      procedures designed to promote and achieve compliance with such laws.                                 ARTICLE VIII                                                                   NEGATIVE COVENANTS          So  long  as  any  Lender  shall  have  any  Commitment  hereunder  or  any  Loan  or  other   Obligation hereunder shall remain unpaid or unsatisfied shall remain outstanding, the Borrower   shall not, nor shall it permit any Subsidiary to, directly or indirectly:             8.01     Liens.  Create, incur, assume or suffer to exist any Lien upon any of its      property,  assets  or  revenues,  whether  now  owned  or  hereafter  acquired,  other  than  the      following:         (a)  Liens pursuant to any Loan Document;         (b)  Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or  extensions thereof, provided that the property covered thereby is not increased and any renewal or  extension of the obligations secured or benefited thereby is permitted by Section 8.03(b);         (c)  Liens for taxes not yet due or which, if material, are being contested in good faith  and by appropriate proceedings diligently conducted, and adequate reserves with respect thereto  are maintained on the books of the applicable Person in accordance with GAAP;         (d)  carriers’,  warehousemen’s,  mechanics’,  materialmen’s,  repairmen’s  or  other  like  Liens arising in the ordinary course of business which are not overdue for a period of more than  30  days  or  which  are  being  contested  in  good  faith  and  by  appropriate  proceedings  diligently  conducted, if adequate reserves with respect thereto are maintained on the books of the applicable  Person;         (e)  pledges or deposits in the ordinary course of business in connection with workers’  compensation, unemployment insurance and other social security legislation, other than any Lien  imposed by ERISA;         (f)  deposits to secure the performance of bids, trade contracts and leases (other than  Indebtedness),  statutory  obligations,  surety  bonds  (other  than  bonds  related  to  judgments  or  litigation,  except  to  the  extent  permitted  in  clause  (h)  below),  performance  bonds  and  other  obligations of a like nature incurred in the ordinary course of business;         (g)  easements,  rights-of-way,  restrictions  and  other  similar  encumbrances  affecting  real property which, in the aggregate, are not substantial in amount, and which do not in any case  materially detract from the value of the property subject thereto or materially interfere with the  ordinary conduct of the business of the applicable Person;         (h)  Liens securing judgments for the payment of money not constituting an Event of  Default under Section 9.01(h) or securing appeal or other surety bonds related to such judgments  or posted as a condition (under applicable Law) to maintaining a lawsuit otherwise permitted by  this Agreement;                                       55     





 






          (i)  Liens  securing  Indebtedness  permitted  under  Section  8.03(d);  provided  that  (i)  such Liens do not at any time encumber any property other than the property financed by such  Indebtedness and (ii)  the  Indebtedness  secured  thereby  does  not  exceed the  cost  or  fair  market  value, whichever is lower, of the property being acquired on the date of acquisition;         (j)  Liens  on  accounts  receivable  arising  in  connection  with  the  Permitted  Trade  Receivables Facilities;         (k)  (x)  Liens  on  the  property  financed  under  the  Real  Estate  Financing  Facilities,  which Liens secure such facility or (y) Liens in connection with (i) leases in existence on the date  hereof, including the Real Estate Financing Facilities and any renewal, extension or refinancing  thereof, (ii) leases entered into or assumed by Borrower or any Subsidiary after the date hereof in  the ordinary course of business or (iii) sale and leaseback transactions to the extent not prohibited  by any other Contractual Obligation;         (l)  Liens  (including  title  retention  arrangements)  arising  in  the  ordinary  course  of  business  on  inventory  of  any  Subsidiary,  which  Liens  secure the  purchase  price  owed  by  such  Subsidiary to the supplier of such inventory;        (m)   Liens securing Indebtedness permitted under Section 8.03(g), on specific property  or assets acquired pursuant to an Acquisition permitted by Section 8.12; provided, that (i) such  Liens were in existence at the time of such Acquisition, and were not incurred in contemplation of  such Acquisition, (ii) no such Lien extends to any property other than the property acquired and  (iii)  such Liens are not outstanding for more than one hundred eighty (180) days after the date of  such Acquisition;         (n)  Liens consisting of normal and customary rights of setoff upon deposits of cash in  favor of banks or other depository institutions;         (o)  Liens  consisting  of  rights  of  setoff  in  connection  with  Indebtedness  permitted  under Section 8.03(c);         (p)  Liens on cash balances of accounts in connection with cash management and cash  pooling programs maintained by the Borrower or any of its Subsidiaries; and         (q)  [reserved]; and         (r)  Liens not otherwise permitted under this Section 8.01; provided, that the aggregate  principal amount of all Indebtedness or other obligations secured by such Liens does not exceed  $100,000,000 at any one time.             8.02     Investments.  Make any Investments, except:         (a)  Investments  held  by  the  Borrower  or  a  Subsidiary  in  the  form  of  cash  or  cash  equivalents;         (b)  advances to officers, directors and employees of the Borrower and Subsidiaries for  travel,  entertainment,  relocation  and  analogous  ordinary  business  purposes,  provided  that  such  advances are made in the ordinary course of business;                                        56     





 






          (c)  Investments of the Borrower or any Subsidiary in the Borrower or in a Domestic  Subsidiary; provided that if the investor is the Borrower or a wholly-owned Domestic Subsidiary,  such Investment must be in the Borrower or a wholly-owned Domestic Subsidiary;         (d)  Investments consisting of extensions of credit in the nature of accounts receivable  or notes receivable arising from the grant of trade credit in the ordinary course of business, and  Investments  received  in  satisfaction  or  partial  satisfaction  thereof  from  financially  troubled  account debtors to the extent reasonably necessary in order to prevent or limit loss;         (e)  (i)  Guarantees  of  Indebtedness  permitted  by  Section  8.03,  (ii)  Guarantees  of  payment of obligations of a Subsidiary owed to a third party vendor (including trade indebtedness  through financial intermediaries) arising in the ordinary course of business and (iii) Guarantees of  payment  of  obligations  of  a  Subsidiary  under  any  foreign  exchange  facilities  and/or  treasury  management services or agreements;         (f)  Guarantees of payment of obligations of one or more customers of the Borrower or  a Subsidiary owed to a financial intermediary or a third party vendor and arising in the ordinary  course of business; provided that the aggregate amount of such Guarantees does not exceed at any  time $250,000,000;         (g)  Investments made in accordance with the Borrower’s Investment Policy;         (h)  Investments existing on the date hereof and described in Schedule 8.02;         (i)  Loans to and Investments in Foreign Subsidiaries in an amount not to exceed, at  any time, the sum of (x) $1,000,000,000 plus (y) 50% of the amount of Shareholders’ Equity that  existed on the last day of the fiscal quarter of the Borrower most recently ended on or prior to the  date of determination;         (j)  (i)  Investments  by  a  Foreign  Subsidiary  in  another  Foreign  Subsidiary;  and  (ii)  other  Investments  in  a  Foreign  Subsidiary  to  the  extent  that  (x)  such  Investments  are  financed  with  the  proceeds  of  any  dividends,  returns  on  capital  or  returns  of  capital  received  by  the  Borrower  or  any  Subsidiary  of  the  Borrower  in  respect  of  a  Foreign  Subsidiary,  and  (y)  such  Investments are made within 180 days of the receipt of such proceeds described in the foregoing  clause (x);         (k)  Acquisitions permitted under Section 8.12;          (l)  [reserved]; and        (m)   other Investments in addition to those specified in this Section 8.02 so long as (x)  the aggregate Investments pursuant to this clause (m) do not exceed, in the aggregate at any one  time, $500,000,000 and (y) the Person who is being invested in is in the same or similar line or  lines  of  business  as  that  engaged  in  by  Borrower  and  its  Subsidiaries  or  reasonably  related,  ancillary or incidental thereto.             8.03     Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness,      except:         (a)  Indebtedness under the Loan Documents;                                        57     





 






          (b)  Indebtedness  outstanding  on  the  date  hereof  and  listed  on  Schedule  8.03  (and  including, in the case of the Revolving Credit Facility, any increase in the aggregate commitments  thereunder  not  in  excess  of  an  additional  $250,000,000)  and  any  refinancings,  refundings,  renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at  the  time  of  such  refinancing,  refunding,  renewal  or  extension  except  by  an  amount,  subject  to  subsection (i) below, equal to a reasonable premium or other reasonable amount paid, and fees  and expenses reasonably incurred, in connection with such refinancing and by an amount equal to  any existing commitments unutilized thereunder;         (c)  Swap Contracts;         (d)  purchase  money  Indebtedness  (including  capital  leases)  described  in  Section 8.01(i)  not  to  exceed  an  aggregate  outstanding  principal  amount  at  any  time  of  $250,000,000, excluding those described on Schedule 8.03;         (e)  the Real Estate Financing Facilities;         (f)  any obligations arising under the Permitted Trade Receivables Facilities, provided  that  the  amount  of  all  accounts  receivable  owing  to  the  Foreign  Subsidiaries  that  are  sold,  transferred or assigned shall not exceed the equivalent of EUR 1,200,000,000 in the aggregate,  based on the prevailing spot rate of exchange for the currencies in which such accounts receivable  are denominated as of the date of determination;         (g)  Indebtedness  of  a  Person,  or  in  respect  of  assets,  acquired  pursuant  to  an  Acquisition permitted under Section 8.12 and existing at the time of such Acquisition, provided  that  (i)  such  Indebtedness  was  not  incurred  in  contemplation  of  such  Acquisition  and  (ii)  such  Indebtedness is not outstanding for more than one hundred eighty (180) days after the date of such  Acquisition;         (h)  [reserved];         (i)  Other  Indebtedness  as  long  as  after  giving  effect  to  the  incurrence  thereof,  the  Borrower will be in pro forma compliance with Section 8.13(a); provided that (i) the aggregate  principal amount of Indebtedness of Subsidiaries that are not Guarantors incurred pursuant to this  clause (i) shall  not  exceed  $400,000,000  at  any  time;  provided,  further,  the  calculation  of  such  $400,000,000  limit  shall  exclude  Indebtedness  incurred  or  existing  pursuant  to  cash  pooling  arrangements of the Borrower and its Subsidiaries existing or entered into in the ordinary course  of business consistent with past practices; and         (j)  Guarantees  of  the  Indebtedness  of  the  Borrower  (other  than  the  Obligations)  by  any  Subsidiary  that  is  a  Guarantor  hereof  or  becomes  a  Guarantor  hereof  concurrently  with  its  Guarantee of such other Indebtedness.             8.04     Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or      into another Person, or Dispose of (whether in one transaction or in a series of transactions)      all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor      of any Person (including, in each case, pursuant to a Delaware LLC Division), except that, so      long as no Default exists or would result therefrom:         (a)  any Subsidiary may merge with (i) the Borrower; provided that the Borrower shall  be the continuing or surviving Person, or (ii) any one or more Domestic Subsidiaries or (iii) any                                       58     





 






    joint  venture,  partnership  or  other  Person,  so  long  as  such  joint  venture,  partnership  and  other  Person will, as a result of making such merger and all other contemporaneous related transactions,  become a Domestic Subsidiary, provided, further, (in the case of clauses (ii) and (iii)) that when  any Guarantor is merging with another Subsidiary or any other Person, either (A) the Guarantor  shall be the continuing or surviving Person or (B) the continuing or surviving Person (prior to or  simultaneously  with  such  merger)  shall  deliver  to  the  Administrative  Agent  (1)  a  Facility  Guaranty  and  (2)  all  other  documents  required  of  Significant  Subsidiaries  pursuant  to  Section  7.12;         (b)  any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary  liquidation or otherwise) to the Borrower or to a Subsidiary; provided that (i) if the transferor in  such a transaction is a wholly-owned Subsidiary, then the transferee must either be the Borrower  or a wholly-owned Subsidiary and (ii) if the transferor in such a transaction is a Guarantor, then  the transferee must either be the Borrower or a Guarantor;         (c)  any Foreign Subsidiary may merge into and may transfer assets to another Foreign  Subsidiary;         (d)  with respect to any Subsidiary (the “Specified Subsidiary”) whose principal assets  are a warehouse and office space (if any) located on the same site as such warehouse, then the  owner of the stock in such Specified Subsidiary may sell the stock of such Specified Subsidiary,  or such Specified Subsidiary may sell all or substantially all of its assets to a purchaser, in each  case at fair market value; and         (e)  the  Borrower  may  liquidate  or  dissolve  one  or  more  Subsidiaries,  or  sell  all  or  substantially all of the assets or shares of one or more Subsidiaries, during a fiscal year so long as  the aggregate book value of the Subsidiaries liquidated or dissolved or assets or shares sold during  such fiscal year does not exceed $200,000,000.             8.05     Dispositions.  Make any Disposition or enter into any agreement to make      any Disposition, except:         (a)  Dispositions  of  obsolete  or  worn  out  property,  whether  now  owned  or  hereafter  acquired, in the ordinary course of business;         (b)  Dispositions of inventory and other real or personal property in the ordinary course  of business;         (c)  Dispositions of equipment or real property to the extent that (i) such property is  exchanged  for  credit  against  the  purchase  price  of  similar  replacement  property  or  (ii)  the  proceeds  of  such  Disposition  are  reasonably  promptly  applied  to  the  purchase  price  of  such  replacement  property  or  (iii)  the  Borrower  or  any  Subsidiary  determines  in  good  faith  that  the  failure  to  replace  such  equipment  will  not  be  detrimental  to  the  business  of  Borrower  or  such  Subsidiary;         (d)  Dispositions of assets and other property by any Subsidiary to the Borrower or to a  wholly-owned Subsidiary; provided that (i) if the transferor of such property is a wholly-owned  Subsidiary, the transferee must be either the Borrower or a wholly-owned Subsidiary, and (ii) if  the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either  be the Borrower or a Guarantor;                                        59     





 






          (e)  (x)  Dispositions  permitted by  Section  8.04 and  (y)  Dispositions  pursuant  to  sale  and leaseback transactions to the extent not prohibited by any other Contractual Obligation;         (f)  Dispositions of receivables pursuant to the Permitted Trade Receivables Facilities;  and         (g)  Dispositions  by the Borrower  and its  Subsidiaries  not  otherwise permitted  under  this Section 8.05; provided that (i) at the time of such Disposition, no Default shall exist or would  result  from  such  Disposition  and  (ii)  the  aggregate  book  value  of  all  property  Disposed  of  in  reliance on this clause (g) in any fiscal year shall not exceed $100,000,000;          Notwithstanding anything herein to the contrary, any Disposition pursuant to clauses (a)   through (d) shall be for fair market value.             8.06     Restricted  Payments.   Declare  or  make,  directly  or  indirectly,  any      Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:         (a)  each  Subsidiary  may  make  Restricted  Payments  to  the  Borrower  and  to  wholly- owned Subsidiaries;         (b)  the  Borrower  and  each  Subsidiary  may  declare  and  make  dividend  payments  or  other distributions payable solely in the common stock or other common equity interests of such  Person;         (c)  the Borrower may (1) declare and make other dividend payments and (2) purchase  shares of its common stock in one or more series of open market purchases, but only if (A) the  aggregate  amount  of  such  dividend  payments  plus  the  aggregate  purchase  price  paid  for  such  common stock does not exceed $400,000,000 for any fiscal year and (B) such dividend payments  and stock purchases do not result (after giving effect thereto) in a violation of any provision of  Section 8.13;         (d)  the Borrower may purchase shares of its common stock for the purpose of making  required contributions to, or required distributions under, its employee benefit plans so long as the  aggregate  dollar  amount  spent  for  such  stock  in  any  fiscal  year  of  Borrower  does  not  exceed  $25,000,000; and         (e)  the  Borrower  may  repurchase  Convertible  Debentures,  whether  pursuant  to  the  exercise of the Debenture Put Option by the holder of such debentures or otherwise.          Notwithstanding  anything in this Section 8.06 to the contrary, the Borrower may issue   Convertible Debentures subject to the limitations in Section 8.03.             8.07     Change in Nature of Business.  Engage in any material line of business      substantially  different  from  those  lines  of  business  conducted  by  the  Borrower  and  its      Subsidiaries  on  the  date  hereof  or  any  business  reasonably  related,  ancillary  or  incidental      thereto.             8.08     Transactions  with  Affiliates.   Enter  into  any  transaction  of  any  kind      with any Affiliate of the Borrower, whether or not in the ordinary course of business, other      than  on  fair  and  reasonable  terms  substantially  as  favorable  to  the  Borrower  or  such      Subsidiary  as  would  be  obtainable  by  the  Borrower  or  such  Subsidiary  at  the  time  in  a                                       60     





 






        comparable arm’s length transaction with a Person other than an Affiliate; provided that the      foregoing restriction shall not apply to transactions (x) between or among the Borrower and      any Guarantor or between and among any Guarantors, or (y) on terms that satisfy Section 482      of the Code and the Treasury Regulations thereunder.             8.09     Burdensome  Agreements.   Enter  into  any  material  Contractual      Obligation (other than this Agreement or any other Loan Document) that limits the ability of      any  Subsidiary  to  make  Restricted  Payments  to  the  Borrower  or  any  Guarantor  or  to      otherwise transfer property to the Borrower or any Guarantor; provided that this Section 8.09      shall not prohibit:           (a)  restrictions imposed by other permitted Indebtedness ranking pari passu with the   Obligations,  provided  that  such  restrictions  are  no  more  restrictive  than  those  imposed  by  this   Agreement;          (b)  restrictions imposed by Indebtedness outstanding on the date hereof and listed on   Schedule 8.09; and          (c)  restrictions  imposed  by  Indebtedness  relating  to  any  property  acquired  by  the   Borrower or any Subsidiary (or restrictions imposed by Indebtedness of a third party which third   party  is  acquired  by  the  Borrower  or  any  Subsidiary)  in  an  acquisition  permitted  by  this   Agreement, provided in each case that such restrictions existed at the time of such acquisition,   were  not  put  in  place  in  connection  with  or  in  anticipation  of  such  acquisition  and  are  not   applicable  to  any  Person  other  than  the  Person  so  acquired,  or  to  any  property  other  than  the   property so acquired.             8.10     Use of Proceeds.  Use the proceeds of any Borrowing, whether directly      or indirectly, and whether immediately, incidentally or ultimately, in any manner than might      cause the Borrowing or the use of such proceeds to violate Regulation U of the FRB, in each      case as in effect on the date or dates of such Borrowing and such use of proceeds.             8.11     [Reserved].               8.12     Acquisitions.  Consummate any Acquisition unless (a) the Person whose      equity interests or assets are being acquired is in the same or similar line or lines of business      as  that  engaged  in  by  Borrower  and  its  Subsidiaries  or  substantially  related  or  incidental      thereto,  (b)  no  Default  occurs  or  is  created  or  results  from  such  Acquisition  and  (c)  the      Borrower  is  in  compliance  with  the  financial  covenants  set  forth  in  Section  8.13  on  a  Pro      Forma Basis after giving effect to such Acquisition.             8.13     Financial Covenants.         (a)  Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage Ratio,  as of the last day of each fiscal quarter of the Borrower, to be greater than  4.00 to 1.00.         (b)  Consolidated Interest Coverage Ratio.  Permit the Consolidated Interest Coverage  Ratio, as of the last day of each fiscal quarter of the Borrower, to be less than 3.00 to 1.00.             8.14     Off-Balance Sheet Liabilities.  Create, incur, assume or suffer to exist      any Off-Balance Sheet Liabilities, except:                                        61     





 






          (a)  Off-Balance Sheet Liabilities outstanding on the date hereof and listed on Schedule  6.18;         (b)  Off-Balance Sheet Liabilities consisting of sale and leaseback transactions;         (c)  Obligations arising under the Permitted Trade Receivables Facilities; or         (d)  Obligations arising under any Real Estate Financing Facility.             8.15     Sanctions.  Directly or indirectly, use the proceeds of any Borrowing, or      lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture      partner or other individual or entity, to fund any activities of or business with any individual      or  entity,  or  in  any  country  or  territory,  that,  at  the  time  of  such  funding,  is  a  Sanctioned      Person or a Designated Jurisdiction, or in any other manner, in each case as would result in a      violation by any individual or entity (including any individual or entity participating in the      transaction, whether as Lender, Arranger, Administrative Agent, or otherwise) of Sanctions.             8.16     Anti-Corruption Laws.  Directly or indirectly use the proceeds of any      Borrowing for any purpose which would breach the United States Foreign Corrupt Practices      Act of 1977, the UK Bribery Act 2010, or would create a material breach of other similar      anti-corruption legislation in other jurisdictions.                                  ARTICLE IX                                                            EVENTS OF DEFAULT AND REMEDIES             9.01     Events  of  Default.   Any  of  the  following  shall  constitute  an  Event  of      Default:         (a)  Non-Payment.  The Borrower or any other Loan Party fails to pay (i) when and as  required to be paid herein, and in the currency required hereunder, any amount of principal of any  Loan,  or  (ii)  within  three  days  after  the  same  becomes  due,  and  in  the  currency  required  hereunder, any interest on any Loan, or any facility, utilization or other fee due hereunder, or (iii)  within five days after the same becomes due, any other amount payable hereunder or under any  other Loan Document; or         (b)  Specific Covenants.  The Borrower fails to perform or observe any term, covenant  or agreement contained in any of Section 7.01, 7.02, 7.03, 7.05, 7.10, 7.11 or 7.12 or Article VIII;  or         (c)  Other Defaults.  Any Loan Party fails to perform or observe any other covenant or  agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its  part to be performed or observed and such failure continues for 30 days; or         (d)  Representations  and  Warranties.   Any  representation,  warranty,  certification  or  statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party  herein,  in  any  other  Loan  Document,  or  in  any  document  delivered  in  connection  herewith  or  therewith shall be incorrect or misleading in any material respect when made or deemed made; or         (e)  Cross-Default.  (i) The Borrower or any Subsidiary (A) fails to make any payment  when  due  (whether  by  scheduled  maturity,  required  prepayment,  acceleration,  demand,  or                                       62     





 






    otherwise) in  respect of any  Indebtedness or Guarantee (other than Indebtedness hereunder and  Indebtedness  under  Swap  Contracts)  having  an  aggregate  principal  amount  of  more  than  the  Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to  any  such  Indebtedness  or  Guarantee  or  contained  in  any  instrument  or  agreement  evidencing,  securing or relating thereto, or any other event occurs, the effect of which default or other event is  to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries  of  such  Guarantee  (or  a  trustee  or  agent  on  behalf  of  such  holder  or  holders  or  beneficiary  or  beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or  to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise),  or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its  stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be  demanded; (ii) there occurs under any Swap Contract an Early Termination Date (as defined in  such  Swap  Contract)  resulting  from  (A)  any  event  of  default  under  such  Swap  Contract  as  to  which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract)  or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower  or any Subsidiary is an Affected Party (as so defined) (other than Termination Events that are not  triggered  by  events  of  default)  and,  in  either  event,  the  Swap  Termination  Value  owed  by  the  Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; (iii) there  occurs a Termination Event (as defined in the Transfer and Administration Agreement identified  in the definition of Existing Trade Receivables Facilities) under the Transfer and Administration  Agreement which Termination Event is not cured or waived; (iv) there occurs a termination event  or  event  of  default  under any  Permitted Trade  Receivables  Facility  which termination event  or  event of default is not cured or waived within any applicable grace period; or (v) there occurs any  event of default under any Real Estate Financing Facility which is not cured or waived within any  applicable grace period.         (f)  Insolvency Proceedings, Etc.  Any Loan Party or any of its Subsidiaries that is a  Significant Subsidiary or a Significant Foreign Subsidiary institutes or consents to the institution  of  any  proceeding  under  any  Debtor  Relief  Law,  or  makes  an  assignment  for  the  benefit  of  creditors;  or  applies  for  or  consents  to  the  appointment  of  any  receiver,  trustee,  custodian,  conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its  property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer  is  appointed  without  the  application  or  consent  of  such  Person  and  the  appointment  continues  undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law  relating to any such Person or to all or any material part of its property is instituted without the  consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order  for relief is  entered in any  such  proceeding;  provided,  however, that if a  Foreign  Subsidiary  is  being liquidated in a transaction otherwise permitted by this Agreement and not involving (i) the  bankruptcy, insolvency, or any failure to pay obligations of such Subsidiary, the Borrower or any  other Subsidiary, (ii) the application of any Debtor Relief Law, or (iii) any claim of any creditor,  and  if  applicable  foreign  Law  requires  the  appointment  of  a  liquidator  to  accomplish  such  liquidation  in  the  jurisdiction  where  such  Foreign  Subsidiary  is  organized,  then  the  mere  appointment  and  operation  of  a  liquidator  for  such  purpose  in  such  circumstances  shall  not  constitute an Event of Default under this clause (f); or         (g)  Inability to Pay Debts; Attachment.  (i) Any Loan Party or any of its Subsidiaries  that  is  a  Significant  Subsidiary  or  Significant  Foreign  Subsidiary  becomes  unable  or  admits  in  writing  its  inability  or  fails  generally  to  pay  its  debts  as  they  become  due,  or  (ii)  any  writ  or  warrant of attachment or execution or similar process is issued or levied against all or any material  part of the property of any such Person and is not released, vacated or fully bonded within 30 days  after its issue or levy; or                                       63     





 






          (h)  Judgments.   There  is  entered  against  the  Borrower  or  any  Subsidiary  (i)  a  final  judgment  or  order  for  the  payment  of  money  in  an  aggregate  amount  exceeding  the  Threshold  Amount (to the extent not covered by insurance provided by a Person described in Section 7.07 as  to which the insurer (and any insurance or reinsurance company reinsuring any such exposure)  does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or  could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect  and,  in  either  case,  (A)  enforcement  proceedings  are  commenced  by  any  creditor  upon  such  judgment  or  order,  or  (B)  there  is  a  period  of  30  consecutive  days  during  which  a  stay  of  enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or         (i)  ERISA.   (i)  An  ERISA  Event  occurs  with  respect  to  a  Pension  Plan  or  Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the  Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an  aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate  fails to pay when due, after the expiration of any applicable grace period, any installment payment  with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan  in an aggregate amount in excess of the Threshold Amount; or         (j)  Invalidity  of  Loan  Documents.   Any  Loan  Document,  at  any  time  after  its  execution  and  delivery  and  for  any  reason  other  than  as  expressly  permitted  hereunder  or  satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or  any other Person contests in any manner the validity or enforceability of any Loan Document; or  any Loan Party denies that it has any or further liability or obligation under any Loan Document,  or purports to revoke, terminate or rescind any Loan Document; or          (k)   Change  of  Control.   There  occurs  any  Change  of  Control  with  respect  to  the   Borrower.             9.02     Remedies Upon Event of Default.  If any Event of Default occurs and is      continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the      Required Lenders, take any or all of the following actions:         (a)  declare  the  commitment  of  each  Lender  to  make  Loans  to  be  terminated,  whereupon such commitments and obligation shall be terminated;         (b)  declare the unpaid principal amount of all outstanding Loans, all interest accrued  and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan  Document  to  be  immediately  due  and  payable,  without  presentment,  demand,  protest  or  other  notice of any kind, all of which are hereby expressly waived by the Borrower;         (c)  exercise on behalf of itself and the Lenders all rights and remedies available to it  and the Lenders under the Loan Documents or applicable Law;    provided, however, that upon the occurrence of an actual or deemed entry of an order for relief   with respect to the Borrower under the Bankruptcy Code of the United States or any other   applicable Debtor Relief Laws, the obligation of each Lender to make Loans shall automatically   terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts   as aforesaid shall automatically become due and payable without further act of the Administrative   Agent or any Lender.                                        64     





 






            9.03     Application  of Funds.   After the exercise  of  remedies  provided  for in     Section 9.02 (or after the Loans have automatically become immediately due and payable as     set forth in the proviso to Section 9.02), any amounts received on account of Obligations shall     be applied by the Administrative Agent in respect of such Obligations in the following order:         First,  to  payment  of  that  portion  of  the  Obligations  constituting  fees,  indemnities,  expenses and  other  amounts  (including  Attorney  Costs  and  amounts  payable under  Article  III)  payable to the Administrative Agent in its capacity as such;         Second, to payment of that portion of the Obligations constituting fees, indemnities and  other  amounts  (other  than  principal  and  interest)  payable  to  the  Lenders  (including  Attorney  Costs and amounts payable under Article III), ratably among them in proportion to the respective  amounts described in this clause Second payable to them;         Third, to payment of that portion of the Obligations constituting accrued and interest on  the  Loans  and  other  Obligations,  ratably  among  the  Lenders  in  proportion  to  the  respective  amounts described in this clause Third payable to them;         Fourth, to payment of that portion of the Obligations constituting unpaid principal of the  Loans, ratably among the Lenders in proportion to the respective amounts described in this clause  Fourth held by them;         Fifth, to payment of all other amounts due under any of the Loan Documents, if any, to  be applied for the ratable benefit of the recipients; and         Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to  the Borrower or as otherwise required by Law.                                 ARTICLE X                                                                ADMINISTRATIVE AGENT            10.01    Appointment and Authority.  Each of the Lenders hereby irrevocably     appoints  Mizuho  to act  on  its  behalf  as  the  Administrative  Agent  hereunder and  under  the     other Loan Documents and authorizes the Administrative Agent to take such actions on its     behalf and to exercise such powers as are delegated to the Administrative Agent by the terms     hereof or thereof, together with such actions and powers as are reasonably incidental thereto.      The  provisions  of  this  Article  are  solely  for  the  benefit  of  the  Administrative  Agent,  the     Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party     beneficiary  of  any  of  such  provisions.  It  is  understood  and  agreed that the use of the  term     “agent” herein or in any other Loan Documents (or any other similar term) with reference to     the  Administrative  Agent  is  not  intended  to  connote  any  fiduciary  or  other  implied  (or     express) obligations arising under agency doctrine of any applicable Law. Instead such term     is  used  as  a  matter  of  market  custom,  and  is  intended  to  create  or  reflect  only  an     administrative relationship between contracting parties.            10.02    Rights  as  a  Lender.  The Person serving  as  the  Administrative  Agent     hereunder  shall  have  the  same  rights  and  powers  in  its  capacity  as  a  Lender  as  any  other     Lender and may exercise the same as though it were not the Administrative Agent and the     term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context     otherwise requires, include the Person serving as the Administrative Agent hereunder in its                                      65    





 






        individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to,      act as the financial advisor or in any other advisory capacity for and generally engage in any      kind  of  business  with  the  Borrower  or  any  Subsidiary  or  other  Affiliate  thereof  as  if  such      Person were not the Administrative Agent hereunder and without any duty to account therefor      to the Lenders.             10.03    Exculpatory Provisions.  The Administrative Agent shall not have any      duties or obligations except those expressly set forth herein and in the other Loan Documents      and  its  duties  shall  be  administrative  in  nature.   Without  limiting  the  generality  of  the      foregoing, the Administrative Agent:         (a)  shall not be subject to any fiduciary or other implied duties, regardless of whether  a Default has occurred and is continuing;         (b)  shall  not  have  any  duty  to  take  any  discretionary  action  or  exercise  any  discretionary powers, except discretionary rights and powers expressly contemplated hereby or by  the  other  Loan  Documents  that  the  Administrative  Agent  is  required  to  exercise  as  directed  in  writing by the Required Lenders (or such other number or percentage of the Lenders as shall be  expressly provided for herein or in the other Loan Documents), provided that the Administrative  Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may  expose  the  Administrative  Agent  to  liability  or  that  is  contrary  to  any  Loan  Document  or  applicable law, including for the avoidance of doubt any action that may be in violation of the  automatic  stay  under  any  Debtor  Relief  Law  or  that  may  effect  a  forfeiture,  modification  or  termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and         (c)  shall  not, except as expressly set forth herein and in the other Loan Documents,  have  any  duty  to  disclose,  and  shall  not  be  liable  for  the  failure  to  disclose,  any  information  relating  to  any  of  the  Borrower  or  any  of  its  respective  Affiliates  that  is  communicated  to  or  obtained  by  the  Person  serving  as  the  Administrative  Agent  or  any  of  its  Affiliates  in  any  capacity.          The Administrative Agent shall not be liable for any action taken or not taken by it (i)   with the consent or at the request of the Required Lenders (or such other number or percentage of   the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall   be  necessary,  under  the  circumstances  as  provided  in  Sections  11.01  and  9.02)  or  (ii)  in  the   absence of its own gross negligence or willful misconduct as determined by a court of competent   jurisdiction by a final and nonappealable judgment.  The Administrative Agent shall be deemed   not to have knowledge of any Default unless and until notice describing such Default is given to   the Administrative Agent by the Borrower or a Lender.          The Administrative Agent shall not be responsible for or have any duty to ascertain or   inquire  into  (i)  any  statement,  warranty  or  representation  made  in  or  in  connection  with  this   Agreement  or  any  other  Loan  Document,  (ii)  the  contents  of  any  certificate,  report  or  other   document  delivered  hereunder  or  thereunder  or  in  connection  herewith  or  therewith,  (iii)  the   performance or observance of any of the covenants, agreements or other terms or conditions set   forth  herein  or  therein  or  the  occurrence  of  any  Default,  (iv)  the  validity,  enforceability,   effectiveness  or  genuineness  of  this  Agreement,  any  other  Loan  Document  or  any  other   agreement, instrument or document or (v) the satisfaction of any condition set forth in Article V   or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to   the Administrative Agent.                                        66     





 






              10.04    Reliance by Administrative Agent.  The Administrative Agent shall be      entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,      certificate,  consent,  statement,  instrument,  document  or  other  writing  (including  any      electronic message, Internet or intranet website posting or other distribution) believed by it to      be genuine and to have been signed, sent  or otherwise authenticated by the proper Person.       The Administrative Agent also may rely upon any statement made to it orally or by telephone      and believed by it to have been made by the proper Person, and shall not incur any liability      for relying thereon.  In determining compliance with any condition hereunder to the making      of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative      Agent  may  presume  that  such  condition  is  satisfactory  to  such  Lender  unless  the      Administrative Agent shall have received notice to the contrary from such Lender prior to the      making of such Loan.  The Administrative Agent may consult with legal counsel (who may      be counsel for the Borrower), independent accountants and other experts selected by it, and      shall not be liable for any action taken or not taken by it in accordance with the advice of any      such counsel, accountants or experts.             10.05    Delegation of Duties.  The Administrative Agent may perform any and      all  of  its  duties  and  exercise  its  rights  and  powers  hereunder  or  under  any  other  Loan      Document by or through any one or more sub agents appointed by the Administrative Agent.       The Administrative Agent and any such sub agent may perform any and all of its duties and      exercise its rights and powers by or through their respective Related Parties.  The exculpatory      provisions of this Article shall apply to any such sub agent and to the Related Parties of the      Administrative Agent and any such sub agent, and shall apply to their respective activities in      connection with the syndication of the credit facilities provided for herein as well as activities      as  Administrative  Agent.  The  Administrative  Agent  shall  not  be  responsible  for  the      negligence  or  misconduct of any  sub-agents  except to  the extent  that  a court  of  competent      jurisdiction determines in a final and nonappealable judgment that the Administrative Agent      acted with gross negligence or willful misconduct in the selection of such sub-agents.             10.06    Resignation  of  Administrative  Agent.  (a) The Administrative Agent      may at any time give notice of its resignation to the Lenders and the Borrower.  Upon receipt      of any such notice of resignation, the Required Lenders shall have the right, in consultation      with the Borrower, to appoint a successor, which shall be a bank with an office in the United      States,  or  an  Affiliate  of  any  such  bank  with  an  office  in  the  United  States.   If  no  such      successor shall have been so appointed by the Required Lenders and shall have accepted such      appointment  within  30  days  after  the  retiring  Administrative  Agent  gives  notice  of  its      resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation      Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to)      on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications      set forth above, provided that in no event shall any such successor Administrative Agent be a      Defaulting Lender.  Whether or not a successor has been appointed, such resignation shall      become effective in accordance with such notice on the Resignation Effective Date.         (b)  If the Person serving as Administrative Agent is a Defaulting Lender pursuant to  clause  (d)  of  the  definition  thereof,  the  Required  Lenders  may,  to  the  extent  permitted  by  applicable  law,  by  notice  in  writing  to  the  Borrower  and  such  Person  remove  such  Person  as  Administrative  Agent  and,  in  consultation  with  the  Borrower,  appoint  a  successor.   If  no  such  successor  shall  have  been  so  appointed  by  the  Required  Lenders  and  shall  have  accepted  such  appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the  “Removal Effective Date”), then such removal shall nonetheless become effective in accordance  with such notice on the Removal Effective Date.                                       67     





 






          (c)  With effect from the Resignation Effective Date or the Removal Effective Date (as  applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties  and obligations hereunder and under the other Loan Documents and (2) except for any indemnity  payments  or  other  amounts  then  owed  to  the  retiring  or  removed  Administrative  Agent,  all  payments,  communications  and  determinations  provided  to  be  made  by,  to  or  through  the  Administrative Agent shall instead be made by or to each Lender directly, until such time, if any,  as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon  the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor  shall  succeed to  and  become  vested  with  all  of the rights,  powers,  privileges  and  duties  of  the  retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other  than  any  rights  to  indemnity  payments  or  other  amounts  owed  to  the  retiring  or  removed  Administrative  Agent  as  of  the  Resignation  Effective  Date  or the  Removal  Effective  Date, as  applicable), and the retiring or removed Administrative Agent shall be discharged from all of its  duties and obligations hereunder or under the other Loan Documents (if not already discharged  therefrom as provided above in this Section).  The fees payable by the Borrower to a successor  Administrative  Agent  shall  be  the  same  as  those  payable  to  its  predecessor  unless  otherwise  agreed between the Borrower and such successor.  After the retiring or removed Administrative  Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of  this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed  Administrative Agent, its sub agents and their respective Related Parties in respect of any actions  taken  or  omitted  to  be  taken  by  any  of  them  (i)  while  the  retiring  or  removed  Administrative  Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as  any  of  them  continues  to  act  in  any  capacity  hereunder  or  under  the  other  Loan  Documents,  including (a) acting as collateral agent or otherwise holding any collateral security on behalf of  any  of  the  Lenders  and  (b)  in  respect  of  any  actions  taken  in  connection  with  transferring  the  agency to any successor Administrative Agent.             10.07    Non-Reliance  on  Administrative  Agent  and  Other  Lenders.   Each      Lender acknowledges that it has, independently and without reliance upon the Administrative      Agent or any other Lender or any of their Related Parties and based on such documents and      information as it has deemed appropriate, made its own credit analysis and decision to enter      into this Agreement.  Each Lender also acknowledges that it will, independently and without      reliance upon the Administrative Agent or any other Lender or any of their Related Parties      and based on such documents and information as it shall from time to time deem appropriate,      continue to make its own decisions in taking or not taking action under or based upon this      Agreement, any other Loan Document or any related agreement or any document furnished      hereunder or thereunder.             10.08    No Other Duties, Etc.  Anything herein to the contrary notwithstanding,      none of the bookrunners, arrangers, co-documentation agents or co-syndication agents listed      on  the  cover  page  hereof  shall  have  any  powers,  duties  or  responsibilities  under  this      Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the      Administrative Agent, a Lender.             10.09    Administrative  Agent  May  File  Proofs  of  Claim.   In  case  of  the      pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding      relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of      any Loan shall then be due and payable as herein expressed or by declaration or otherwise      and  irrespective  of  whether  the  Administrative  Agent  shall  have  made  any  demand  on  the      Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise.                                        68     





 






          (a)  to file and prove a claim for the whole amount of the principal and interest owing  and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file  such other documents as may be necessary or advisable in order to have the claims of the Lenders  and  the  Administrative  Agent  (including  any  claim  for  the reasonable  compensation,  expenses,  disbursements  and  advances  of  the  Lenders  and  the  Administrative  Agent  and  their  respective  agents and counsel and all other amounts due the Lenders and the Administrative Agent under  Sections 2.09 and 11.04) allowed in such judicial proceeding; and         (b)  to collect and receive any monies or other property payable or deliverable on any  such claims and to distribute the same;    and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in   any such judicial proceeding is hereby authorized by each Lender to make such payments to the   Administrative Agent and, in the event that the Administrative Agent shall consent to the making   of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for   the reasonable compensation, expenses, disbursements and advances of the Administrative Agent   and its agents and counsel, and any other amounts due the Administrative Agent under   Sections 2.09 and 11.04.          Nothing  contained  herein  shall  be  deemed  to  authorize  the  Administrative  Agent  to   authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization,   arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or   to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such   proceeding.             10.10    Guaranty Matters.         (a)  Each  Lender  hereby  irrevocably  (subject  to  Section  10.06)  appoints,  designates  and authorizes the Administrative Agent to take such action on its behalf under the provisions of  this  Agreement  and  each other  Loan  Document  and  to  exercise  such  powers  and  perform  such  duties  as  are  expressly  delegated  to  it  by  the  terms  of  this  Agreement  or  any  other  Loan  Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any  provision to the contrary contained elsewhere in this Agreement or in any other Loan Document,  the Administrative Agent shall not have any duties or responsibilities, except those expressly set  forth  herein,  nor  shall  the  Administrative  Agent  have  or  be  deemed  to  have  any  fiduciary  relationship with any Lender or participant, and no implied covenants, functions, responsibilities,  duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or  otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing  sentence,  the  use  of  the  term  “agent”  in  this  Agreement  with  reference  to  the  Administrative  Agent is not intended to connote any fiduciary or other implied (or express) obligations arising  under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of  market  custom,  and is intended to  create  or  reflect  only  an  administrative  relationship  between  independent contracting parties.         (b)  The Administrative Agent is authorized on behalf of all the Lenders, without the  necessity  of any  notice to or  further  consent from  the  Lenders,  from  time  to  time  to  enter  into  agreements whereby the Facility Guaranty is amended to better conform the terms thereof to any  form  attached  to  this  Agreement  or  to  make  administrative  or  housekeeping  corrections to  any  such agreement.                                        69     





 






          (c)  The Lenders irrevocably authorize the Administrative Agent, at its option and in its  discretion,                 (i)  to release any Guarantor from its obligations under the Facility Guaranty         if  such  Person  ceases  to  be  a  Subsidiary  or  if  such  person  becomes  an  Excluded         Subsidiary  as  a  result  of  a  transaction  permitted  hereunder  and  no  Default  is  then         existing;                 (ii)  upon receipt by the Administrative Agent of information satisfactory to         the  Administrative  Agent  that  any  Domestic  Subsidiary  has  ceased  to  be  a  Significant         Subsidiary as a result of a transaction or decline in business permitted hereunder and no         Default is then existing, to release such Subsidiary from its obligations under the Facility         Guaranty  as  long  as  after  giving  effect  thereto  the  Borrower  is  in  compliance  with         Section 7.12(b); and                 (iii) in  the  case  of  any  Facility  Guaranty  by  a  Subsidiary  required  solely         under  clauses  (A)(y)  or  (B)(y)  of  Section  4.01,  to  release  such  Guarantor  from  its         obligations under the Facility Guaranty if such Subsidiary is no longer a borrower under         or  guarantor  of  the  Revolving  Credit  Agreement  or  any  refinancing  or  replacement         thereof.          If at any time, pursuant to the foregoing clauses (c)(i) through (iii), a Guarantor may be   released from its obligations under the Facility Guaranty, then such Person shall be automatically   released  from  such  obligations  and  the  Administrative  Agent  will,  at  the  Borrower’s  expense,   execute and deliver such documents as the Borrower may reasonably request to document such   release.  At  any  time  that  the  Borrower  desires  that  the  Administrative  Agent  take  any  of  the   actions  described  in  the  immediately  preceding  sentence,  it  shall,  upon  request  of  the   Administrative Agent, deliver to the Administrative Agent an officer’s certificate certifying that   the release of the applicable Guarantor is permitted pursuant to this Section 10.10(c) as set forth   above. The Administrative Agent shall have no liability whatsoever to any Lender as a result of   any release of any Guarantor by it as permitted (or which the Administrative Agent in good faith   believes to be permitted) by this Section 10.10(c).          Upon  request  by  the  Administrative  Agent  at  any  time,  the  Required  Lenders  will   confirm  in  writing  the  Administrative  Agent’s  authority  to  release  any  Guarantor  from  its   obligations under the Facility Guaranty pursuant to this Section 10.10.          Notwithstanding  the  release  of  any  Subsidiary  from  its  obligations  under  the  Facility   Guaranty,  if  (x)  such  Subsidiary  is  thereafter  a  Significant  Subsidiary  that  is  a  Domestic   Subsidiary (other than an Excluded Subsidiary) or (y) such Subsidiary is a Domestic Subsidiary   that  is  a  borrower  under,  or  is  a  Subsidiary  that  is  guarantor  of  the  obligations  of  a  Person   incorporated  in  the  United  States  under  the  Revolving  Credit  Agreement  after  the  date  of  this   Agreement  or  any  refinancing  or  replacement  thereof,  then  in  each  case,  the  requirements  of   Section 7.12 shall again apply to such Subsidiary.          10.11 Certain ERISA Matters.           (a)  Each  Lender  (x)  represents  and  warrants,  as  of  the  date  such  Person  became  a  Lender  party  hereto,  to,  and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to  the  date  such  Person  ceases  being  a  Lender  party  hereto,  for  the  benefit  of,  the                                        70     





 






    Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or  any other Loan Party, that at least one of the following is and will be true:                  (i)  such  Lender  is  not  using  “plan  assets”  (within  the  meaning  of  Section         3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s         entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  the         Commitments or this Agreement,                (ii)  the transaction exemption set forth in one or more PTEs, such as PTE 84-        14  (a  class  exemption  for  certain  transactions  determined  by  independent  qualified         professional  asset  managers),  PTE  95-60  (a  class  exemption  for  certain  transactions         involving insurance company general accounts), PTE 90-1 (a class exemption for certain         transactions involving insurance company pooled separate accounts), PTE 91-38 (a class         exemption  for  certain  transactions  involving  bank  collective  investment  funds)  or  PTE         96-23 (a class exemption for certain transactions determined by in-house asset managers),         is applicable with respect to such Lender’s entrance into, participation in, administration         of and performance of the Loans, the Commitments and this Agreement,                (iii) (A)  such  Lender  is  an  investment  fund  managed  by  a  “Qualified         Professional  Asset  Manager”  (within  the  meaning  of  Part  VI  of  PTE  84-14),  (B)  such         Qualified  Professional  Asset  Manager  made  the  investment  decision  on  behalf  of  such         Lender to enter into, participate in, administer and perform the Loans, the Commitments         and  this  Agreement,  (C)  the  entrance  into,  participation  in,  administration  of  and         performance  of  the  Loans,  the  Commitments  and  this  Agreement  satisfies  the         requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best         knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are         satisfied with respect to such Lender’s entrance into, participation in, administration of         and performance of the Loans, the Commitments and this Agreement, or                 (iv)  such  other  representation,  warranty  and  covenant  as  may  be  agreed  in         writing between the Administrative Agent, in its sole discretion, and such Lender.         (b)  In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a)  is true with respect to a Lender or (2) a Lender has provided another representation, warranty and  covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender  further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,  and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to  the  date  such  Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not,  for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the  Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such  Lender’s  entrance  into,  participation  in,  administration  of  and  performance  of  the  Loans,  the  Commitments and this Agreement (including in connection with the reservation or exercise of any  rights by the Administrative Agent under this Agreement, any Loan Document or any documents  related hereto or thereto).                                  ARTICLE XI                                                                     MISCELLANEOUS             11.01    Amendments, Etc.  No amendment  or waiver of any provision of this      Agreement or any other Loan Document, and no consent to any departure by the Borrower or                                       71     





 






        any other Loan Party therefrom, shall be effective unless in writing signed by the Required      Lenders  and  the  Borrower  or  the  applicable  Loan  Party,  as  the  case  may  be,  and      acknowledged  by  the  Administrative  Agent,  and  each  such  waiver  or  consent  shall  be      effective only in the specific instance and for the specific purpose for which given; provided,      however, that no such amendment, waiver or consent shall:         (a)  waive  any  condition  set  forth  in  Section  5.01(a)  without  the  written  consent  of  each Lender;         (b)  extend or increase the Commitment of any Lender (or reinstate any Commitment  terminated pursuant to Section 9.02) without the written consent of such Lender;         (c)  postpone any date fixed by this Agreement or any other Loan Document for any  payment  of  principal,  interest,  fees  or  other  amounts  due  to  the  Lenders  (or  any  of  them)  hereunder or under any other Loan Document without the written consent of each Lender directly  affected thereby;         (d)  reduce  the  principal  of,  or  the  rate  of  interest  specified  herein  on,  any  Loan,  or  (subject  to  clause  (iv)  of  the  second  proviso  to  this  Section  11.01)  any  fees  or  other  amounts  payable hereunder or under any other Loan Document without the written consent of each Lender  directly affected thereby; provided, however, that only the consent of the Required Lenders shall  be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower  to pay interest at the Default Rate;         (e)  change  Section  2.13  or  Section  9.03  in  a  manner  that  would  alter  the  pro  rata  sharing of payments required thereby without the written consent of each Lender;         (f)  change  any  provision  of  this  Section  or  the  definition  of  “Required  Lenders”  or  any  other  provision  hereof  specifying  the  number  or  percentage  of  Lenders  required to  amend,  waive or otherwise modify any rights hereunder or make any determination or grant any consent  hereunder without the written consent of each Lender; or         (g)  release all or substantially all of the value of the Facility Guaranty (other than any  release specifically contemplated by Section 10.10(c)) without the written consent of each Lender;    and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and   signed by the Administrative Agent in addition to the Lenders required above, affect the rights or   duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii)   the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed   only by the parties thereto.          Notwithstanding  anything  to  the  contrary  herein,  no  Defaulting  Lender  shall  have  any   right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the   Commitment of such Lender may not be increased or extended, or amounts due to it permanently   reduced (other than by way of payment) or the payment date of any outstanding amounts owing   to  it  extended,  without  the  consent  of  such  Lender  and  (y)  any  waiver,  amendment  or   modification requiring the consent of all Lenders or each affected Lender that by its terms affects   any Defaulting Lender more adversely than other affected Lenders shall require the consent of   such Defaulting Lender.                                        72     





 






           Notwithstanding  the  fact  that  the  consent  of  all  the  Lenders  is  required  in  certain   circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any   bankruptcy  reorganization  plan  that  affects  the  Loans,  and  each  Lender  acknowledges  that  the   provisions  of  Section  1126(c)  of  the  Bankruptcy  Code  supersedes  the  unanimous  consent   provisions set forth herein and (y) the Required Lenders shall determine whether or not to allow a   Loan  Party  to  use  cash  collateral  in the  context  of  a bankruptcy  or insolvency  proceeding  and   such determination shall be binding on all of the Lenders.          Notwithstanding any provision herein to the contrary, this Agreement may be amended   with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i)   to add one or more additional term loan facilities to this Agreement, subject to the limitations in   Section  2.15,  and  to  permit  the  extensions  of  credit  and  all  related  obligations  and  liabilities   arising  in  connection  therewith  from  time  to  time  outstanding  to  share  ratably  (or  on  a  basis   subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other   Loan Documents with the obligations and liabilities from time to time outstanding in respect of   the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed   appropriate  by  the  Administrative  Agent  and  approved  by  the  Required  Lenders,  the  Lenders   providing such additional credit facilities to participate in any required vote or action required to   be  approved  by  the  Required  Lenders  or  by  any  other  number,  percentage  or  class  of  Lenders   hereunder.          Notwithstanding any provision herein to the contrary, if the Administrative Agent and the   Borrower acting together identify any ambiguity, omission, mistake, typographical error or other   similar  defect  in  any  provision  of  this  Agreement  or  any  other  Loan  Document  (including  the   schedules  and  exhibits  thereto),  then  the  Administrative  Agent  and  the  Borrower  shall  be   permitted  to  amend,  modify  or  supplement  such  provision  to  cure  such  ambiguity,  omission,   mistake, typographical error or other similar defect, and such amendment shall become effective   without  any  further  action  or  consent  of  any  other  party  to  this  Agreement  if  the  same  is  not   objected to in writing by the Required Lenders to the Administrative Agent within five Business   Days following receipt of notice thereof.             11.02    Notices; Effectiveness; Electronic Communication.         (a)  Notices  Generally.   Except  in  the  case  of  notices  and  other  communications  expressly permitted to be given by telephone (and except as provided in subsection (b) below), all  notices and other communications provided for herein shall be in writing and shall be delivered by  hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or  electronic  mail  as  follows,  and  all  notices  and  other  communications  expressly  permitted  hereunder to be given by telephone shall be made to the applicable telephone number, as follows:                 (i)  if to the Borrower or the Administrative Agent, to the address, facsimile         number,  electronic  mail  address  or  telephone  number  specified  for  such  Person  on         Schedule 11.02; and                (ii)  if to any other Lender, to the address, facsimile number, electronic mail         address or telephone number specified in its Administrative Questionnaire.          Notices and other communication sent by hand or overnight courier service, or mailed by   certified or registered mail, shall be deemed to have been given when received; notices and other   communication sent by facsimile shall be deemed to have been given when sent (except that, if   not given during normal business hours for the recipient, shall be deemed to have been given at                                       73     





 






     the  opening  of  business  on  the  next  business  day  for  the  recipient).   Notices  and  other   communication  delivered  through  electronic  communications  to  the  extent  provided  in   subsection (b) below, shall be effective as provided in such subsection (b).         (b)  Electronic  Communications.   Notices  and  other  communications  to  the  Lenders  may  be  delivered  or  furnished  by  electronic  communication  (including  e  mail  and  Internet  or  intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the  foregoing  shall  not  apply  to  notices  to  any  Lender  pursuant  to  Article  II  if  such  Lender  has  notified the Administrative Agent that it is incapable of receiving notices under such Article by  electronic  communication.   The  Administrative  Agent  or  the  Borrower  may,  in  its  discretion,  agree to accept notices and other communications to it hereunder by electronic communications  pursuant to procedures approved by it, provided that approval of such procedures may be limited  to particular notices or communications.          Unless  the  Administrative  Agent  otherwise  prescribes,  (i)  notices  and  other   communications sent to an e-mail address shall be deemed received upon the sender’s receipt of   an  acknowledgement  from  the  intended  recipient  (such  as  by  the  “return  receipt  requested”   function,  as  available,  return  e-mail  or  other  written  acknowledgement),  and  (ii)  notices  or   communications  posted  to  an  Internet  or  intranet  website  shall  be  deemed  received  upon  the   deemed  receipt  by  the  intended  recipient  at  its  e-mail  address  as  described  in  the  foregoing   clause (i)  of  notification  that  such  notice  or  communication  is  available  and  identifying  the   website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other   communication is not sent during the normal business hours of the recipient, such notice, email or   communication shall be deemed to have been sent at the opening of business on the next business   day for the recipient.         (c)  The  Platform.   THE  PLATFORM  IS  PROVIDED  “AS  IS”  AND  “AS  AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE  ACCURACY  OR  COMPLETENESS  OF  THE  BORROWER  MATERIALS  OR  THE  ADEQUACY  OF  THE  PLATFORM,  AND  EXPRESSLY  DISCLAIM  LIABILITY  FOR  ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF  ANY KIND, EXPRESS, IMPLIED  OR STATUTORY,  INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT  OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,  IS  MADE  BY  ANY  AGENT  PARTY  IN  CONNECTION  WITH  THE  BORROWER  MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its  Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender  or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in  tort,  contract  or  otherwise)  arising  out  of  the  Borrower’s  or  the  Administrative  Agent’s  transmission  of  Borrower  Materials  through  the  Internet,  except  to  the  extent  that  such  losses,  claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a  final  and  nonappealable  judgment  to  have  resulted  from  the  gross  negligence  or  willful  misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have  any  liability  to  the  Borrower,  any  Lender  or  any  other  Person  for  indirect,  special,  incidental,  consequential or punitive damages (as opposed to direct or actual damages).         (d)  Change of Address, Etc.  Each of the Borrower and the Administrative Agent may  change  its  address,  facsimile  or  telephone  number  for  notices  and  other  communications  hereunder  by  notice  to  the  other  parties  hereto.   Each  other  Lender  may  change  its  address,  facsimile or telephone number for notices and other communications hereunder by notice to the  Borrower  and  the  Administrative  Agent.   In  addition,  each  Lender  agrees  to  notify  the                                       74     





 






    Administrative Agent from time to time to ensure that the Administrative Agent has on record (i)  an  effective  address,  contact  name,  telephone  number,  facsimile  number  and  electronic  mail  address to which notices and other communications may be sent and (ii) accurate wire instructions  for such Lender.         (e)  Reliance by Administrative Agent and Lenders.  The Administrative Agent and the  Lenders  shall  be  entitled  to  rely  and  act  upon  any  notices  (including  telephonic  Loan  Notices)  purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a  manner specified herein, were incomplete or were not preceded or followed by any other form of  notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any  confirmation thereof.  The Borrower shall indemnify the Administrative Agent, each Lender and  the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from  the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All  telephonic notices to and other telephonic communications with the Administrative Agent may be  recorded  by  the  Administrative  Agent,  and  each  of  the  parties  hereto  hereby  consents  to  such  recording.             11.03    No Waiver; Cumulative Remedies; Enforcement.  No failure by any      Lender  or  the  Administrative  Agent  to  exercise,  and  no  delay  by  any  such  Person  in      exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof,      nor  shall any  single  or  partial  exercise  of  any  right, remedy,  power  or  privilege  hereunder      preclude  any  other  or  further  exercise  thereof  or  the  exercise  of  any  other  right,  remedy,      power  or  privilege.   The  rights,  remedies,  powers  and  privileges  herein  provided  are      cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.          Notwithstanding  anything  to  the  contrary  contained  herein  or  in  any  other  Loan   Document,  the  authority  to  enforce  rights  and  remedies  hereunder  and  under  the  other  Loan   Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions   and proceedings at law in connection with such enforcement shall be instituted and maintained   exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the   Lenders; provided,  however, that  the  foregoing  shall  not  prohibit (a) the Administrative  Agent   from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its   capacity  as  Administrative  Agent)  hereunder  and  under  the  other  Loan  Documents,  (b)  any   Lender  from  exercising  setoff rights  in  accordance  with  Section  11.08  (subject to  the terms  of   Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on   its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor   Relief Law; and provided, further, that if at any time there is no Person acting as Administrative   Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have   the  rights  otherwise  ascribed  to  the  Administrative  Agent  pursuant  to  Section  9.02  and  (ii)  in   addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to   Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and   remedies available to it and as authorized by the Required Lenders.             11.04    Expenses; Indemnity; Damage Waiver.         (a)  Costs  and  Expenses.   Subject  to  any  limitations  set  forth  in  the  Fee  Letter  with  respect  to  certain  fees  of  counsel  to  the  Administrative  Agent,  the  Borrower  shall  pay  (i)  all  reasonable  out  of  pocket  expenses  incurred  by  the  Administrative  Agent  and  its  Affiliates  (including  the  reasonable  fees,  charges  and  disbursements  of  counsel  for  the  Administrative  Agent),  in  connection  with  the  syndication  of  the  credit  facilities  provided  for  herein,  the  preparation, negotiation, execution, delivery and administration of this Agreement and the other                                       75     





 






    Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof  (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii)  all out of pocket expenses incurred by the Administrative Agent or any Lender (including the fees,  charges and disbursements of any counsel for the Administrative Agent or any Lender), and shall  pay all fees and time charges for attorneys who may be employees of the Administrative Agent or  any Lender, in connection with the enforcement or protection of its rights (A) in connection with  this Agreement and the other Loan Documents, including its rights under this Section, or (B) in  connection with the Loans  made hereunder, including all such out of pocket expenses incurred  during any workout, restructuring or negotiations in respect of such Loans.         (b)  Indemnification  by  the  Borrower.   The  Borrower  shall  indemnify  the  Administrative Agent (and any sub-agent thereof), each Lender, and each Related Party of any of  the  foregoing  Persons  (each  such  Person  being  called  an  “Indemnitee”)  against,  and  hold  each  Indemnitee  harmless from,  any  and  all losses,  claims,  damages,  liabilities  and  related expenses  (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and  shall  indemnify  and  hold  harmless  each  Indemnitee  from  all  fees  and  time  charges  and  disbursements  for  attorneys  who  may  be  employees  of  any  Indemnitee,  incurred  by  any  Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other  Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this  Agreement,  any  other  Loan  Document  or  any  agreement  or instrument contemplated  hereby  or  thereby,  the  performance  by  the  parties  hereto  of  their  respective  obligations  hereunder  or  thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case  of  the  Administrative  Agent  (and  any  sub-agent  thereof)  and  its  Related  Parties  only,  the  administration  of  this  Agreement  and  the  other  Loan  Documents,  (ii)  any  Loan  or  the  use  or  proposed  use  of  the  proceeds  therefrom,  (iii)  any  actual  or  alleged  presence  or  release  of  Hazardous Materials on or from any property owned or operated by the Borrower or any of its  Subsidiaries,  or  any  Environmental  Liability  related  in  any  way  to  the  Borrower  or  any  of  its  Subsidiaries,  or  (iv)  any  actual  or  prospective  claim,  litigation,  investigation  or  proceeding  relating  to  any  of  the  foregoing,  whether  based  on  contract,  tort  or  any  other  theory,  whether  brought by a third party or by the Borrower or any other Loan Party, and regardless of whether  any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be  available  to  the  extent  that  such  losses,  claims,  damages,  liabilities  or  related  expenses  (x)  are  determined  by  a  court  of  competent  jurisdiction  by  final  and  nonappealable  judgment  to  have  resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a  claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad  faith  of  such  Indemnitee’s  obligations  hereunder  or  under  any  other  Loan  Document,  if  the  Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor  on such claim as determined by a court of competent jurisdiction. Without limiting the provisions  of  Section  3.01(c),  this  Section  11.04(b)  shall  not  apply  with  respect  to  Taxes  other  than  any  Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.         (c)  Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to  indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to  the Administrative Agent (or any sub-agent thereof), or any Related Party of any of the foregoing,  each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such  Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that  the  applicable  unreimbursed  expense  or  indemnity  payment  is  sought)  of  such  unpaid  amount,  provided that the unreimbursed expense or indemnified loss, claim, damage, liability  or related  expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any  such sub-agent), or against any Related Party acting for the Administrative Agent  (or any such                                        76     





 






    sub-agent).  The obligations of the Lenders under this subsection (c) are subject to the provisions  of Section 2.12(d).         (d)  Waiver  of  Consequential  Damages,  Etc.   To  the  fullest  extent  permitted  by  applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee,  on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to  direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any  other  Loan  Document  or  any  agreement  or  instrument  contemplated  hereby,  the  transactions  contemplated  hereby  or  thereby,  any  Loan  or  the  use  of  the  proceeds  thereof.   No  Indemnitee  referred  to  in  subsection  (b)  above  shall  be  liable  for  any  damages  arising  from  the  use  by  unintended  recipients  of  any  information  or  other  materials  distributed  by  it  through  telecommunications, electronic or other information transmission systems in connection with this  Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.         (e)  Payments.  All amounts due under this Section shall be payable not later than ten  (10) Business Days after demand therefor.         (f)  Survival.   The  agreements  in  this  Section  and  the  indemnity  provisions  of  Section 11.02(e) shall survive the resignation of the Administrative Agent, the replacement of any  Lender, the termination of this Agreement or the Commitments and the repayment, satisfaction or  discharge of all the other Obligations.             11.05    Payments Set Aside.  To the extent that any payment by or on behalf of      the Borrower is made to the Administrative Agent or the Administrative Agent or any Lender      exercises  its  right  of  setoff,  and  such  payment  or  the  proceeds  of  such  setoff  or  any  part      thereof  is  subsequently  invalidated,  declared  to  be  fraudulent  or  preferential,  set  aside  or      required (including pursuant to any settlement  entered into by the Administrative Agent or      such  Lender  in  its  discretion)  to  be  repaid  to  a  trustee,  receiver  or  any  other  party,  in      connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the      extent of such recovery, the obligation or part thereof originally intended to be satisfied shall      be revived and continued in full force and effect as if such payment had not been made or      such  setoff  had  not  occurred,  and  (b)  each  Lender  severally  agrees  to  pay  to  the      Administrative Agent upon demand its applicable share (without duplication) of any amount      so recovered from or repaid by the Administrative Agent, plus interest thereon from the date      of such demand to the date such payment is made at a rate per annum equal to the applicable      Overnight Rate from time to time in effect.  The obligations of the Lenders under clause (b)      of  the  preceding  sentence  shall  survive  the  payment  in  full  of  the  Obligations  and  the      termination of this Agreement.             11.06    Successors and Assigns.         (a)  Successors  and  Assigns  Generally.   The  provisions  of  this  Agreement  shall  be  binding  upon  and  inure  to  the  benefit  of  the  parties  hereto  and  their  respective  successors  and  assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its  rights or obligations hereunder without the prior written consent of the Administrative Agent and  each  Lender  and  no  Lender  may  assign  or  otherwise  transfer  any  of  its  rights  or  obligations  hereunder except (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of  this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this  Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of  subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto  shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to                                       77     





 






    confer  upon  any  Person  (other  than  the  parties  hereto,  their  respective  successors  and  assigns  permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the  extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and  the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.         (b)  Assignments  by  Lenders.   Any  Lender  may  at  any  time  assign  to  one  or  more  Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all  or a portion of its Commitment and the Loans  at the time owing to it); provided that any such  assignment shall be subject to the following conditions:                 (i)  Minimum Amounts.                       (A)   in the case of an assignment of the entire remaining amount of               the assigning Lender’s Commitment and the Loans at the time owing to it or in               the case of an assignment to a Lender, an Affiliate of a Lender or an Approved               Fund, no minimum amount need be assigned; and                       (B)   in  any  case  not  described  in  subsection  (b)(i)(A)  of  this               Section,  the  aggregate  amount  of  the  Commitment  (which  for  this  purpose               includes  Loans  outstanding  thereunder)  or,  if  the  Commitment  is  not  then  in               effect, the  principal  outstanding  balance  of  the  Loans  of  the  assigning  Lender               subject to each such assignment, determined as of the date the Assignment and               Assumption with respect to such assignment is delivered to the Administrative               Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of               the  Trade  Date,  shall  not  be  less  than  $5,000,000  unless  each  of  the               Administrative Agent and, so long as no Event of Default has occurred and is               continuing,  the  Borrower  otherwise  consents  (each  such  consent  not  to  be               unreasonably withheld or delayed).                (ii)  Proportionate  Amounts.   Each  partial  assignment  shall  be  made  as  an         assignment  of  a  proportionate  part  of  all  the  assigning  Lender’s  rights  and  obligations         under this Agreement with respect to the Loans or the Commitment assigned.                (iii) Required  Consents.  No  consent  shall  be  required  for  any  assignment         except to the extent required by subsection (b)(i)(B) of this Section and, in addition:                       (A)   the  consent  of  the  Borrower  (such  consent  not  to  be               unreasonably  withheld  or  delayed)  shall  be  required  unless  (1)  an  Event  of               Default  has  occurred  and  is  continuing  at  the  time  of  such  assignment  or  (2)               such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;               and                       (B)   the consent of the Administrative Agent (such consent not to be               unreasonably withheld or delayed) shall be required if such assignment is to a               Person that is not a Lender, an Affiliate of such Lender or an Approved Fund               with respect to such Lender.                Notwithstanding the foregoing, no assignment of the Commitments prior to the               Closing  Date  shall  be  permitted  without  the  prior  written  consent  of  the               Borrower (such consent not to be unreasonably withheld or delayed) unless the                                        78     





 






               proposed  assignee  is  a  lender  under  the  Revolving  Credit  Agreement  or  was              identified in writing by the Borrower prior to the Closing Date.               (iv)  Assignment  and  Assumption.   The  parties  to  each  assignment  shall        execute and deliver to the Administrative Agent an Assignment and Assumption, together        with a processing and recordation fee in the amount of $3,500; provided, however, that        the Administrative Agent may, in its sole discretion, elect to waive such processing and        recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall        deliver to the Administrative Agent an Administrative Questionnaire.               (v)   No Assignment to Certain Persons.  No such assignment shall be made        (A)  to  the  Borrower  or  any  of  the  Borrower’s  Affiliates  or  Subsidiaries,  (B)  to  any        Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender        hereunder, would constitute any of the foregoing Persons described in this clause (B), or        (C)  to  a  natural  Person  (or  to  a  holding  company,  investment  vehicle  or  trust  for,  or        owned and operated for the primary benefit of a natural Person).               (vi)  Certain  Additional  Payments.   In  connection  with  any  assignment  of        rights and obligations of any Defaulting Lender hereunder, no such assignment shall be        effective unless and until, in addition to the other conditions thereto set forth herein, the        parties  to  the  assignment  shall  make  such  additional  payments  to  the  Administrative        Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which        may  be  outright  payment,  purchases  by  the  assignee  of  participations  or        subparticipations, or other compensating actions, including funding, with the consent of        the  Borrower  and  the  Administrative  Agent,  the  applicable  pro  rata  share  of  Loans        previously  requested  but  not  funded  by  the  Defaulting  Lender,  to  each  of  which  the        applicable assignee  and  assignor  hereby  irrevocably  consent),  to  (x)  pay  and  satisfy  in        full  all  payment  liabilities then  owed  by  such  Defaulting  Lender  to  the  Administrative        Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund        as appropriate) its full pro rata share of all Loans.  Notwithstanding the foregoing, in the        event that any assignment of rights and obligations of any Defaulting Lender hereunder        shall become effective under applicable Law without compliance with the provisions of        this  paragraph,  then  the  assignee  of  such  interest  shall  be  deemed  to  be  a  Defaulting        Lender for all purposes of this Agreement until such compliance occurs.         Subject  to  acceptance  and  recording  thereof  by  the  Administrative  Agent  pursuant  to  subsection (c) of this Section, from and after the effective date specified in each Assignment and  Assumption,  the  Eligible  Assignee  thereunder  shall  be  a  party  to  this  Agreement  and,  to  the  extent  of  the  interest  assigned  by  such  Assignment  and  Assumption,  have  the  rights  and  obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the  extent  of  the  interest  assigned  by  such  Assignment  and  Assumption,  be  released  from  its  obligations under this Agreement (and, in the case of an Assignment and Assumption covering all  of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to  be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and  11.04  with  respect  to  facts  and  circumstances  occurring  prior  to  the  effective  date  of  such  assignment.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the  assignee  Lender.   Any  assignment  or  transfer  by  a  Lender  of  rights  or  obligations  under  this  Agreement  that  does  not  comply  with  this  subsection  shall  be  treated  for  purposes  of  this  Agreement  as  a  sale  by  such  Lender  of  a  participation  in  such  rights  and  obligations  in  accordance with subsection (d) of this Section.                                       79    





 






          (c)  Register.  The Administrative Agent, acting solely for this purpose as an agent of  the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and  Assumption delivered to it and a register for the recordation of the names and addresses of the  Lenders,  and  the  Commitments  of,  and  principal  amounts  of  the  Loans  owing  to  each  Lender  pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall  be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person  whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all  purposes  of  this  Agreement,  notwithstanding  notice  to  the  contrary.   In  addition,  the  Administrative  Agent  shall  maintain in the  Register  information  regarding  the  designation, and  revocation of designation, of any Lender as a Defaulting Lender.  The Register shall be available  for  inspection  by  the  Borrower  at  any  reasonable  time  and  from  time  to  time  upon  reasonable  prior  notice.   In  addition, at any  time  that  a request  for a consent  for a  material  or  substantive  change  to  the  Loan  Documents  is  pending,  any  Lender  may  request  and  receive  from  the  Administrative Agent a copy of the Register.         (d)  Participations.  Any Lender may at any time, without the consent of, or notice to,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural  Person,  or  a  holding  company,  investment  vehicle  or  trust  for,  or  owned  and  operated  for  the  primary benefit of a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s  Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or  obligations under this Agreement (including all or a portion of its Commitment and/or the Loans   owing  to  it);  provided  that  (i)  such  Lender’s  obligations  under  this  Agreement  shall  remain  unchanged,  (ii)  such  Lender  shall  remain  solely  responsible  to  the  other  parties  hereto  for  the  performance  of  such  obligations  and  (iii)  the  Borrower,  the  Administrative  Agent,  the  Lenders  shall  continue  to  deal  solely  and  directly  with  such  Lender  in  connection  with  such  Lender’s  rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be  responsible  for  the  indemnity  under  Section  11.04(c)  without  regard  to  the  existence  of  any  participation.          Any agreement or instrument pursuant to which a Lender sells such a participation shall   provide that such Lender shall retain the sole right to enforce this Agreement and to approve any   amendment,  modification  or  waiver  of  any   provision  of  this  Agreement;  provided  that  such   agreement  or  instrument  may  provide  that  such  Lender  will  not,  without  the  consent  of  the   Participant, agree to any amendment, waiver or other modification described in the first proviso   to Section 10.01 that affects such Participant.  The Borrower agrees that each Participant shall be   entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender   and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being   understood that the documentation required under Section 3.01(e) shall be delivered to the Lender   who sells the participation) to the same extent as if it were a Lender and had acquired its interest   by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees   to  be  subject  to  the  provisions  of  Sections  3.06  and  11.13  as  if  it  were  an  assignee  under   paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under   Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired   the  applicable  participation  would  have  been  entitled  to  receive,  except  to  the  extent  such   entitlement  to  receive  a  greater  payment  results  from  a  Change  in  Law  that  occurs  after  the   Participant acquired the applicable participation.  Each Lender that sells a participation agrees, at   the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to   effectuate the provisions of Section 3.06 with respect to any Participant.  To the extent permitted   by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a   Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a   Lender.   Each  Lender  that  sells  a  participation  shall,  acting  solely  for  this  purpose  as   a  non-                                      80     





 






     fiduciary agent of the Borrower, maintain a register on which it enters the name and address of   each Participant and the principal amounts (and stated interest) of each Participant’s interest in   the Loans or other obligations under the Loan Documents (the “Participant Register”); provided   that no Lender shall have any obligation to disclose all or any portion of the Participant Register   (including the identity of any Participant or any information relating to a Participant’s interest in   any commitments, loans, letters of credit or its other obligations under any Loan Document) to   any  Person  except  to  the  extent  that  such  disclosure  is  necessary  to  establish  that  such   commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-  1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be   conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded   in the Participant Register as the owner of such participation for all purposes of this Agreement   notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent   (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant   Register.         (e)  Certain Pledges.  Any Lender may at any time pledge or assign a security interest  in  all  or  any  portion  of  its  rights  under  this  Agreement  (including  under  its  Note(s), if  any)  to  secure obligations of such Lender, including any pledge or assignment to secure obligations to a  Federal  Reserve  Bank  or  other  central  bank;  provided  that  no  such  pledge  or  assignment  shall  release  such  Lender  from  any  of  its  obligations  hereunder  or  substitute  any  such  pledgee  or  assignee for such Lender as a party hereto.             11.07    Treatment  of  Certain  Information;  Confidentiality.   Each  of  the      Administrative  Agent  and  the  Lenders  agrees  to  maintain  the  confidentiality  of  the      Information (as defined below), except that Information may be disclosed (a) to its Affiliates      and  to  its  and  its  Affiliates’  respective  partners,  directors,  officers,  accountants,  attorneys,      employees,  agents,  advisors  and  representatives  (it  being  understood  that  the  Persons  to      whom  such  disclosure  is  made  will  be  informed  of  the  confidential  nature  of  such      Information and instructed to keep such Information confidential), (b) to the extent requested      by  any  regulatory  authority  purporting  to  have  jurisdiction  over  it  (including  any  self      regulatory  authority,  such as  the  National  Association  of  Insurance  Commissioners), (c) to      the  extent  required  by  applicable  laws  or  regulations  or  by  any  subpoena  or  similar  legal      process, (d)  to any  other  party  hereto, (e)  in connection  with the exercise of  any  remedies      hereunder  or  under  any  other  Loan  Document  or  any  action  or  proceeding  relating  to  this      Agreement  or  any  other  Loan  Document  or  the  enforcement  of  rights  hereunder  or      thereunder, (f) subject to an agreement containing provisions substantially the same as those      of  this  Section,  to  (i)  any  assignee  of  or  Participant  in,  or  any  prospective  assignee  of  or      Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee      invited  to  be  a  Lender  pursuant  to  Section  2.15(c)  or  (ii)  any  actual  or  prospective      counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower      and  its  obligations,  (g)  on  a  confidential  basis  to  (i)  any  rating  agency  in  connection  with      rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the      CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring      of  CUSIP  numbers  or  other  market  identifiers  with respect  to  the  credit  facilities provided      hereunder,  (h)  with  the  consent  of  the  Borrower  or  (i)  to  the  extent  such  Information  (x)      becomes publicly available other than as a result of a breach of this Section or (y) becomes      available to the Administrative Agent, any Lender or any of their respective Affiliates on a      nonconfidential basis from a source other than the Borrower. In addition, the Administrative      Agent and the Lenders may disclose the existence of this Agreement and information about      this Agreement to market data collectors, similar service providers to the lending industry and                                        81     





 






      service  providers  to  the  Administrative  Agent  and  the  Lenders  in  connection  with  the     administration of this Agreement, the other Loan Documents, and the Commitments.         For  purposes  of  this  Section,  “Information”  means  all  information  received  from  the  Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective  businesses, other than any such information that is available to the Administrative Agent or any  Lender a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided  that,  in  the  case  of  information  received  from  the  Borrower  or  any  Subsidiary  after  the  date  hereof, such information is clearly identified at the time of delivery as confidential.  Any Person  required  to  maintain  the  confidentiality  of  Information  as  provided  in  this  Section  shall  be  considered to have complied with its obligation to do so if such Person has exercised the same  degree of care to maintain the confidentiality of such Information as such Person would accord to  its own confidential information.         Each of the Administrative Agent and the Lenders acknowledges that (a) the Information  may  include  material  non-public  information  concerning  the  Borrower  or  a  Subsidiary,  as  the  case may be, (b) it has developed compliance procedures regarding the use of material non-public  information  and  (c)  it  will  handle  such  material  non-public  information  in  accordance  with  applicable Law, including United States federal and state securities Laws.            11.08    Right  of  Setoff.   If  an  Event  of  Default  shall  have  occurred  and  be     continuing, each Lender and each of its respective Affiliates is hereby authorized at any time     and from time to time, to the fullest extent permitted by applicable law, to set off and apply     any  and  all  deposits  (general  or  special,  time  or  demand,  provisional  or  final,  in  whatever     currency) at any time held and other obligations (in whatever currency) at any time owing by     such Lender or any such Affiliate to or for the credit or the account of the Borrower or any     other Loan Party against any and all of the obligations of the Borrower or such Loan Party     now or hereafter existing under this Agreement or any other Loan Document to such Lender,     irrespective  of  whether  or  not  such  Lender  shall  have  made  any  demand  under  this     Agreement or any other Loan Document and although such obligations of the Borrower or     such Loan Party may be contingent or unmatured or are owed to a branch or office of such     Lender  different  from  the  branch  or  office  holding  such  deposit  or  obligated  on  such     indebtedness.  The rights of each Lender and its respective Affiliates under this Section are in     addition to other rights and remedies (including other rights of setoff) that such Lender or its     respective Affiliates may have; provided, that in the event that any Defaulting Lender shall     exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to     the  Administrative  Agent  for  further  application  in  accordance  with  the  provisions  of  this     Agreement and, pending such payment, shall be segregated by such Defaulting Lender from     its other funds and deemed held in trust for the benefit of the Administrative Agent and the     Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a     statement describing in reasonable detail the Obligations owing to such Defaulting Lender as     to which it exercised such right of setoff.  Each Lender agrees to notify the Borrower and the     Administrative Agent promptly after any such setoff and application, provided that the failure     to give such notice shall not affect the validity of such setoff and application.            11.09    Interest  Rate  Limitation.   Notwithstanding  anything  to  the  contrary     contained  in  any  Loan  Document,  the  interest  paid  or  agreed  to  be  paid  under  the  Loan     Documents  shall  not  exceed  the  maximum  rate  of  non-usurious  interest  permitted  by     applicable  Law  (the  “Maximum  Rate”).   If  the  Administrative  Agent  or  any  Lender  shall     receive  interest  in an  amount  that  exceeds the Maximum  Rate,  the  excess interest  shall  be     applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the                                      82    





 






                   Borrower.   In  determining  whether  the  interest  contracted  for,  charged,  or  received  by  the  Administrative  Agent  or  a  Lender  exceeds  the  Maximum  Rate,  such  Person  may,  to  the  extent permitted by applicable Law, (a) characterize any payment that is not principal as an  expense,  fee,  or  premium  rather  than  interest,  (b)  exclude  voluntary  prepayments  and  the  effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the  total amount of interest throughout the contemplated term of the Obligations hereunder.         11.10    Counterparts;  Integration;  Effectiveness.   This  Agreement  may  be  executed in  counterparts (and  by  different  parties hereto  in different  counterparts),  each  of  which  shall  constitute  an  original,  but  all  of  which  when  taken  together  shall  constitute  a  single contract.  This Agreement and the other Loan Documents constitute the entire contract  among  the  parties  relating  to the subject  matter  hereof  and  supersede any  and all  previous  agreements and understandings, oral or written, relating to the subject matter hereof.  Except  as provided in Section 5.01, this Agreement shall become effective when it shall have been  executed  by  the  Administrative  Agent  and  when  the  Administrative  Agent  shall  have  received  counterparts  hereof  that,  when  taken  together,  bear  the  signatures  of  each  of  the  other  parties  hereto.   Delivery  of  an  executed  counterpart  of  a  signature  page  of  this  Agreement by telecopy or other electronic imaging means shall be effective as delivery of a  manually executed counterpart of this Agreement.         11.11    Survival of Representations and Warranties.  All representations and  warranties  made  hereunder  and  in  any  other  Loan  Document  or  other  document  delivered  pursuant hereto or thereto or in connection herewith or therewith shall survive the execution  and delivery hereof and thereof.  Such representations and warranties have been or will be  relied  upon  by  the  Administrative  Agent  and  each  Lender,  regardless  of  any  investigation  made by the Administrative Agent or any Lender or on their behalf and notwithstanding that  the Administrative Agent or any Lender may have had notice or knowledge of any Default at  the time of any Borrowing, and shall continue in full force and effect as long as any Loan or  any other Obligation hereunder shall remain unpaid or unsatisfied.         11.12    Severability.   If  any  provision  of  this  Agreement  or  the  other  Loan  Documents  is  held  to  be  illegal,  invalid  or  unenforceable,  (a)  the  legality,  validity  and  enforceability of the remaining provisions of this Agreement and the other Loan Documents  shall  not  be  affected  or  impaired  thereby  and  (b)  the  parties  shall  endeavor  in  good  faith  negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions  the  economic  effect  of  which  comes  as  close  as  possible  to  that  of  the  illegal,  invalid  or  unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not  invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting  the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of  any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor  Relief Laws, as determined in good faith by the Administrative Agent, then such provisions  shall be deemed to be in effect only to the extent not so limited.         11.13    Replacement  of  Lenders.   If  (i)  any  Lender  requests  compensation  under Section 3.04, (ii) the Borrower is required to pay any Indemnified Taxes or additional  amounts  to  any  Lender  or  any  Governmental  Authority  for  the  account  of  any  Lender  pursuant  to  Section 3.01,  (iii)  any  Lender  is  a  Defaulting  Lender,  (iv)  a  Lender  is  a  Non- Consenting  Lender  or  a  Non-Extending  Lender  or  (v)  or  if  any  other  circumstance  exists  hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the  Borrower  may,  at  its  sole  expense  and  effort,  upon  notice  to  such  Lender  and  the  Administrative  Agent,  require  such  Lender  to  assign  and  delegate,  without  recourse  (in                                   83                    





 






        accordance  with  and  subject  to  the  restrictions  contained  in,  and  consents  required  by,      Section 11.06), all of its interests, rights and obligations under this Agreement and the related      Loan Documents to an assignee that shall assume such obligations (which assignee may be      another Lender, if a Lender accepts such assignment), provided that:         (a)  the  Borrower  shall  have  paid  to  the  Administrative  Agent  the  assignment  fee  specified in Section 11.06(b);         (b)  such Lender shall  have received payment of an amount equal to the outstanding  principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it  hereunder and under the other Loan Documents (including any amounts under Section 3.05) from  the  assignee  (to  the  extent  of  such  outstanding  principal  and  accrued  interest  and  fees)  or  the  Borrower (in the case of all other amounts);         (c)  in the case of any such assignment resulting from a claim for compensation under  Section  3.04  or  payments  required  to  be  made  pursuant  to  Section  3.01,  such  assignment  will  result in a reduction in such compensation or payments thereafter; and         (d)  such assignment does not conflict with applicable Laws.          A  Lender  shall  not  be  required  to  make  any  such  assignment  or  delegation  if,  prior   thereto,  as  a  result  of  a  waiver  by  such  Lender  or  otherwise,  the  circumstances  entitling  the   Borrower  to  require  such  assignment  and  delegation  cease  to  apply.  Each  Lender  hereby   irrevocably appoints the Administrative Agent (such appointment being coupled with an interest)   as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in   the name of such Lender, from time to time in the Administrative Agent’s discretion, upon prior   written notice to such Lender, to take any action and to execute any Assignment and Assumption   or such other instruments that the Administrative Agent may deem reasonably necessary to carry   out the provisions of this Section 11.13.             11.14    Governing Law; Jurisdiction; Etc.         (a)  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND  CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW  YORK.         (b)  SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER  LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND  ITS  PROPERTY,  TO  THE  NONEXCLUSIVE  JURISDICTION  OF  THE  COURTS  OF  THE  STATE  OF  NEW  YORK  SITTING  IN  NEW  YORK  COUNTY,  AND  OF  THE  UNITED  STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE  COURT  FROM  ANY  THEREOF,  IN  ANY  ACTION  OR  PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND  EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES  THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE  HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE  COURT  OR,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  IN  SUCH  FEDERAL  COURT.   EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH  ACTION  OR  PROCEEDING  SHALL  BE  CONCLUSIVE  AND  MAY  BE  ENFORCED  IN  OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER                                       84     





 






    PROVIDED  BY  LAW.   NOTHING  IN  THIS  AGREEMENT  OR  IN  ANY  OTHER  LOAN  DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY  LENDER  MAY  OTHERWISE  HAVE  TO  BRING  ANY  ACTION  OR  PROCEEDING  RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE  BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF  ANY JURISDICTION.         (c)  WAIVER OF VENUE.  THE BORROWER AND EACH OTHER LOAN PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  ANY  OBJECTION  THAT  IT  MAY  NOW  OR  HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.   EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST  EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT  FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH  COURT.         (d)  SERVICE  OF  PROCESS.   EACH  PARTY  HERETO  IRREVOCABLY  CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY  PARTY  HERETO  TO  SERVE  PROCESS  IN  ANY  OTHER  MANNER  PERMITTED  BY  APPLICABLE LAW.             11.15    Waiver  of  Jury  Trial.   EACH  PARTY  HERETO  HEREBY      IRREVOCABLY  WAIVES,  TO  THE  FULLEST  EXTENT  PERMITTED  BY      APPLICABLE  LAW,  ANY  RIGHT  IT  MAY  HAVE  TO  A TRIAL  BY  JURY  IN  ANY      LEGAL  PROCEEDING  DIRECTLY  OR  INDIRECTLY  ARISING  OUT  OF  OR      RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  LOAN  DOCUMENT  OR THE      TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON      CONTRACT,  TORT  OR  ANY  OTHER  THEORY).  EACH  PARTY  HERETO  (A)      CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER      PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER      PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE      FOREGOING  WAIVER  AND  (B)  ACKNOWLEDGES  THAT  IT  AND  THE  OTHER      PARTIES  HERETO  HAVE  BEEN  INDUCED  TO  ENTER  INTO  THIS  AGREEMENT      AND  THE  OTHER  LOAN  DOCUMENTS  BY,  AMONG  OTHER  THINGS,  THE      MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.             11.16    PATRIOT  Act  Notice.   Each  Lender  that  is  subject  to  the  Act  (as      hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)      hereby  notifies the  Borrower  that  pursuant to  the  requirements of  the  USA  PATRIOT  Act      (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is      required  to  obtain,  verify  and  record  information  that  identifies  the  Borrower,  which      information includes the name and address of the Borrower and other information that will      allow  such  Lender  or  the  Administrative  Agent,  as  applicable,  to  identify  the  Borrower  in      accordance  with  the  Act.  The  Borrower  shall,  promptly  following  a  request  by  the      Administrative Agent or any Lender, provide all documentation and other information that      the  Administrative  Agent  or  such  Lender  requests  in  order  to  comply  with  its  ongoing      obligations  under  applicable  “know  your  customer”  and  anti-money  laundering  rules  and      regulations, including the Act.                                       85     





 






            11.17    No  Advisory  or  Fiduciary  Responsibility.   In  connection  with  all     aspects  of  each  transaction  contemplated  hereby  (including  in  connection  with  any     amendment,  waiver  or  other  modification  hereof  or  of  any  other  Loan  Document),  the     Borrower  acknowledges  and  agrees that:  (i) (A) the  arranging  and  other  services  regarding     this  Agreement  provided  by  the  Administrative  Agent,  the  Arranger  and  the  Lenders  are     arm’s-length commercial transactions between the Borrower, each other Loan Party and their     respective Affiliates, on the one hand, and the Administrative Agent, the Arranger and the     Lenders,  on  the  other  hand,  (B) the  Borrower  and  the  other  Loan  Parties  has  consulted  its     own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate,     and (C) the Borrower and each other Loan Party is capable of evaluating, and understands     and accepts, the terms, risks and conditions of the transactions contemplated hereby and by     the other Loan Documents; (ii) (A) each of the Administrative Agent, each Lender and the     Arranger  is  and  has  been  acting  solely  as  a  principal  and,  except  as  expressly  agreed  in     writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent     or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates, or     any other Person and (B) neither the Administrative Agent, nor any Lender, nor the Arranger     has any obligation to the Borrower, any other Loan Party or any of their respective Affiliates     with respect to the transactions contemplated hereby except those obligations expressly set     forth  herein  and  in  the  other  Loan  Documents;  and  (iii) the  Administrative  Agent,  the     Arranger and each Lender and their respective Affiliates may be engaged in a broad range of     transactions  that  involve  interests  that  differ  from  those  of  the  Borrower,  the  other  Loan     Parties and their respective Affiliates, and neither the Administrative Agent, nor the Arranger,     nor any Lender has any obligation to disclose any of such interests to the Borrower, any other     Loan Party or any of their respective Affiliates.  To the fullest extent permitted by law, the     Borrower and the other Loan Parties hereby waives and releases any claims that it may have     against the Administrative Agent, the Arranger and the Lenders with respect to any breach or     alleged breach of agency or fiduciary duty in connection with any aspect of any transaction     contemplated hereby.            11.18    Electronic Execution of Assignments and Certain Other Documents.         The words “execute,” “execution,” “signed,” “signature,” and words of like import in or  related  to  any  document  to  be  signed  in  connection  with  this  Agreement  and  the  transactions  contemplated hereby (including without limitation Assignment and Assumptions, amendments or  other modifications, Loan Notices, waivers and consents) shall be deemed to include electronic  signatures,  the  electronic  matching  of  assignment  terms  and  contract  formations  on  electronic  platforms  approved  by  the  Administrative  Agent,  or the  keeping  of  records  in electronic form,  each of which shall be of the same legal effect, validity or enforceability as a manually executed  signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and  National Commerce Act, the New York State Electronic Signatures and Records Act, or any other  similar  state  laws  based  on  the  Uniform  Electronic  Transactions  Act;  provided  that  notwithstanding anything contained herein to the contrary the Administrative Agent is under no  obligation to agree to accept electronic signatures in any form or in any format unless expressly  agreed to by the Administrative Agent pursuant to procedures approved by it.            11.19    [Reserved].            11.20    Acknowledgement  and  Consent  to  Bail-In  of  EEA  Financial     Institutions.                                       86    





 






           Notwithstanding  anything  to  the  contrary  in  any  Loan  Document  or  in  any  other   agreement,  arrangement  or  understanding  among  any  such  parties,  each  party  hereto   acknowledges that any liability of any Lender that is an EEA Financial Institution arising under   any Loan Document, to the extent such liability is unsecured, may be subject to the write-down   and  conversion  powers  of  an  EEA  Resolution  Authority  and  agrees  and  consents  to,  and   acknowledges and agrees to be bound by:         (a)  the application of any Write-Down and Conversion Powers by an EEA Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any Lender that  is an EEA Financial Institution; and         (b)  the effects of any Bail-in Action on any such liability, including, if applicable:                 (i)  a reduction in full or in part or cancellation of any such liability;                (ii)  a  conversion  of  all,  or  a  portion  of,  such  liability  into  shares  or  other         instruments of ownership in such EEA Financial Institution, its parent undertaking, or a         bridge  institution  that  may  be  issued  to  it  or  otherwise  conferred  on  it,  and  that  such         shares or other instruments of ownership will be accepted by it in lieu of any rights with         respect to any such liability under this Agreement or any other Loan Document; or                (iii) the variation of the terms of such liability in connection with the exercise         of the write-down and conversion powers of any EEA Resolution Authority.                        [Remainder of Page Intentionally Empty]                                                      87     





 






               IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  duly executed by their respective authorized officers as of the day and year first above written.                                             TECH DATA CORPORATION, as                                            Borrower                                                                                          By:   ______/s/ Scott W. Walker__                                                  Name: Scott W. Walker                                                  Title: Corporate Vice President,                                                             Treasurer                             [Tech Data – Term Loan Credit Agreement]  





 






                            MIZUHO BANK, LTD., as Administrative Agent and           Lender                                 By:       /s/ Donna DeMagistris                 Name: Donna DeMagistris              Title: Authorized Signatory     [Tech Data – Term Loan Credit Agreement]                





 






                            PNC BANK, N.A., as Lender                                 By:         /s/ Justine Hofmann              Name: Justine Hofmann              Title: Assistant Vice President       [Tech Data – Term Loan Credit Agreement]                





 






                            TD BANK, N.A., as Lender                                 By:       /s/ Shreya Shah                 Name: Shreya Shah              Title: Senior Vice President    [Tech Data – Term Loan Credit Agreement]                





 






               MUFG BANK, LTD., as Lender      By:        /s/ Lillian Kim         Name: Lillian Kim       Title: Director                      





 






                                                                                                                                            EXHIBIT A                                    [FORM OF]                                  LOAN NOTICE                                                      Date:             ,      To:  Mizuho Bank, Ltd., as Administrative Agent    Ladies and Gentlemen:          Reference is made to that certain Term Loan Credit Agreement, dated as of August 2, 2019  (as  amended,  restated,  amended  and  restated,  extended,  supplemented  or  otherwise  modified  in  writing from time to time, the “Agreement”, the terms defined therein being used herein as therein  defined), among Tech Data Corporation, a Florida corporation (the “Borrower”), the Lenders from  time to time party thereto, and Mizuho Bank, Ltd., as Administrative Agent.                The undersigned hereby requests (select one):           A Borrowing of Loans            A conversion or continuation of Loans          1.    On                (a Business Day).                2.    In the amount of              .          3.    Comprised of                                    .                          [Type of Loan requested]          4.    For Eurocurrency Rate Loans:  with an Interest Period of     [one week] [_______ months].                                             TECH DATA CORPORATION                                                                                  By:                                                                 Name:                                         Title:                                                                                    





 






                                                                       EXHIBIT B                                      [FORM OF]                                       NOTE                                                                    __________, ____                FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to  _____________________ or registered assigns (the “Lender”), in accordance with the provisions of the  Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the  Lender to the Borrower under that certain Term Loan Credit Agreement, dated as of August 2, 2019 (as  amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from  time to time, the “Agreement”, the terms defined therein being used herein as therein defined), among the  Borrower, the Lenders from time to time party thereto, and Mizuho Bank, Ltd., as Administrative Agent.                The Borrower promises to pay interest on the unpaid principal amount of each Loan from  the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as  provided in the Agreement.  All payments of principal and interest shall be made to the Administrative  Agent for the account of the Lender in Dollars and in immediately available funds at the Administrative  Agent’s Office.  If any amount is not paid in full  when due hereunder, such unpaid amount shall  bear  interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as  well as after judgment) computed at the per annum rate set forth in the Agreement.                This  Note  is  one  of  the  Notes  referred  to  in  the  Agreement,  is  entitled  to  the  benefits  thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This  Note is also entitled to the benefits of the Facility Guaranty.  Upon the occurrence and continuation of one  or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this  Note  shall  become,  or  may  be  declared  to  be,  immediately  due  and  payable  all  as  provided  in  the  Agreement.   Loans  made  by  the  Lender  shall  be  evidenced  by  one  or  more  loan  accounts  or  records  maintained by the Lender in the ordinary course of business.  The Lender may also attach schedules to  this  Note  and  endorse  thereon  the  date,  amount  and  maturity  of  its  Loans  and  payments  with  respect  thereto.                The  Borrower,  for  itself,  its  successors  and  assigns,  hereby  waives  diligence,  presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.                            THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED  IN ACCORDANCE  WITH THE LAWS OF THE STATE OF NEW YORK.                                           TECH DATA CORPORATION                                                                                  By:                                                                Name:                                         Title:                                               





 






                                                                                                                                                      EXHIBIT C                                      [FORM OF]                             COMPLIANCE CERTIFICATE                                                   Financial Statement Date:     ,    To:   Mizuho Bank, Ltd., as Administrative Agent    Ladies and Gentlemen:          Reference is made to that certain Term Loan Credit Agreement, dated as of August 2, 2019 (as  amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from  time to time, the “Agreement”, the terms defined therein being used herein as therein defined), among  Tech  Data  Corporation,  a  Florida  corporation  (the  “Borrower”),  the  Lenders  from  time  to  time  party  thereto, and Mizuho Bank, Ltd., as Administrative Agent.          The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                           of the Borrower, and that, as such, he/she is authorized to execute and  deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that:                 [Use following paragraph 1 for fiscal year-end financial statements]          1.    Attached hereto as Schedule 1 are the year-end audited financial statements required by  Section 7.01(a) of the Agreement for the fiscal year of the Borrower ended as of the above date, together  with the report and opinion of an independent certified public accountant required by such section.                [Use following paragraph 1 for fiscal quarter-end financial statements]          1.    Attached hereto as Schedule 1 are the unaudited financial statements required by Section  7.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.  Such financial  statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows  of  the  Borrower  and  its  Subsidiaries  in  accordance  with  GAAP  as  at  such  date  and  for  such  period,  subject only to normal year-end audit adjustments and the absence of footnotes.          2.    The undersigned has reviewed and is familiar with the terms of the Agreement and has  made,  or  has  caused  to  be  made  under  his/her  supervision,  a  detailed  review  of  the  transactions  and  condition  (financial  or  otherwise)  of  the  Borrower  and  its  Subsidiaries  during  the  accounting  period  covered by the attached financial statements.          3.    A review of the activities of the Borrower and its Subsidiaries during such fiscal period  has been made under the supervision of the undersigned with a view to determining whether during such  fiscal period the Borrower and Subsidiaries performed and observed all its Obligations applicable thereto  under the Loan Documents, and      





 






                                                                                                                   [select one:]          [to  the  best  knowledge  of  the  undersigned  during  such  fiscal  period,  the  Borrower  and  its  Subsidiaries performed and observed each covenant and condition of the Loan Documents applicable to  it, and no Default has occurred and is continuing.]                                        [--or--]          [the following covenants or conditions have not been performed or observed and the following is  a list of each such Default and its nature and status:]                4.    The  representations  and  warranties  of  the  Borrower  contained  in  Article  VI  of  the  Agreement, or which are contained in any document furnished at any time under or in connection with the  Loan Documents, are true and correct in all material respects (unless such representation or warranty is  already qualified by materiality or Material Adverse Effect, in which case it shall be true and correct in all  respects)  on  and  as  of  the  date  hereof,  except  to  the  extent  that  such  representations  and  warranties  specifically refer to an earlier date, in which case they are true and correct in all material respects (unless  such representation or warranty is already qualified by materiality or Material Adverse Effect, in which  case it shall be true and correct in all respects) as of such earlier date, and except that for purposes of this  Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section  6.05  of  the  Agreement  shall  be  deemed  to  refer  to  the  most  recent  statements  furnished  pursuant  to  clauses (a) and (b), respectively, of Section 7.01 of the Agreement, including the statements in connection  with which this Compliance Certificate is delivered.          5.    The financial covenant analyses and information set forth on Schedule 2 attached hereto  are true and accurate on and as of the date of this Compliance Certificate.                  [Include paragraph 6 in connection with fiscal year-end Compliance Certificates.]                6.    Attached hereto as Schedule 3 are any updates or supplements as necessary to ensure that  Schedule 6.13 to the Agreement is accurate and complete as of the date of this Compliance Certificate.                  IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of              ,            .                                           TECH DATA CORPORATION                                                                                  By:                                                                Name:                                         Title:        





 






                                                                    For the Quarter/Year ended          (“Statement Date”)                        SCHEDULE 1 – FINANCIAL STATEMENTS                                                  [See Attached]                  





 






                                                                                                                                       For the Quarter/Year ended          (“Statement Date”)                       SCHEDULE 2 – COVENANT CALCULATIONS                                    ($ in 000’s)    I.    Section 8.13(a) — Consolidated Total Leverage Ratio.          A.   Consolidated Funded Indebtedness at Statement Date:   $           B.    Consolidated  EBITDA  for  four  consecutive  fiscal  quarters  ending  on  above  date              (“Subject Period”)                            1.    Consolidated Net Income for Subject Period:    $                             2.    Consolidated Interest Charges for Subject Period:  $                             3.    Federal, state, local and foreign income taxes payable by the                   Borrower and its Subsidiaries for Subject Period:                                                                   $                             4.    The  amount  of  depreciation  and  amortization  expense  for                   Subject  Period:                                                                                       $                             5.    Cash  extraordinary  or  nonrecurring  losses,  expenses,  fees                   and charges (including cash losses, expenses, fees and                    charges incurred in connection with any issuance of debt or                   equity,  acquisitions,  investments,  restructuring  activities,                   asset  sales  or  divestitures  permitted  hereunder  for  Subject                   Period):1                                                                            $                             6.    Non-cash stock based compensation expense for Subject Period:  $____________                            7.    Other non-recurring expenses of the Borrower and its                    Subsidiaries for Subject Period reducing such Consolidated                   Net Income which do not represent a cash item:                                                                             $                                                                1 Not to exceed $50,000,000 in the aggregate for any Subject Period.      





 






                                                                                                           8.    Consolidated EBITDA (Lines I.B.1 + 2 + 3 + 4 + 5 + 6 + 7):2  $                 C.    Consolidated Total Leverage Ratio (Line I.A. ÷ Line              I.B.8):                                              ______ to 1.00                Maximum permitted:                                   4.00      to 1.00    II.   Section 8.13(b) — Consolidated Interest Coverage Ratio.          A.   Consolidated EBITDA for Subject Period (Line I.B.8)3:   $           B.    Consolidated Interest Charges for Subject Period:    $           C.    Consolidated Interest Coverage Ratio (Line II.A ÷ Line              III.B):                                                     to 1.00                Minimum permitted:                                   3.00      to 1.00                                                                               2 Consolidated EBITDA addbacks to be  adjusted to the extent of any amounts not deducted in the calculation of Consolidated Net  Income.         3 Add additional full calculation of EBITDA if required due to Line I.B.8 being calculated on a Pro Forma Basis.      





 






                                                                        EXHIBIT D                                      [FORM OF]                          ASSIGNMENT AND ASSUMPTION                This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item  1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an]  “Assignee”).   [It  is  understood  and  agreed  that  the  rights  and  obligations  of  [the  Assignors][the  Assignees]3  hereunder  are  several  and  not  joint.]4   Capitalized  terms  used  but  not  defined  herein  shall  have  the  meanings  given  to  them  in  the  Credit  Agreement  identified  below (the  “Credit  Agreement”),  receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions  set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a  part of this Assignment and Assumption as if set forth herein in full.                For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to  [the  Assignee][the  respective  Assignees],  and  [the][each]  Assignee  hereby  irrevocably  purchases  and  assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard  Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative  Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations  in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any  other  documents  or  instruments  delivered  pursuant  thereto  to  the  extent  related  to  the  amount  and  percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the  respective Assignors] under the respective facilities identified below and (ii) to the extent permitted to be  assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in  its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any  Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other  documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any  way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims,  malpractice  claims,  statutory  claims  and  all  other  claims  at  law  or  in  equity  related  to  the  rights  and  obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by  [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein  collectively  as  [the][an]  “Assigned  Interest”).   Each  such  sale  and  assignment  is  without  recourse  to  [the][any]  Assignor  and,  except  as  expressly  provided  in  this  Assignment  and  Assumption,  without  representation or warranty by [the][any] Assignor.                1.    Assignor[s]:     ______________________________                                                     2.    Assignee[s]:     ______________________________                                                    [for each Assignee, indicate [Affiliate][Approved Fund]                                       of [identify Lender]]                                                               1     For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single              Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors, choose the second bracketed              language.        2     For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single              Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees, choose the second bracketed              language.        3     Select as appropriate.        4     Include bracketed language if there are either multiple Assignors or multiple Assignees.                                              





 






                                                                                               3.    Borrower:        Tech Data Corporation, a Florida corporation                4.    Administrative Agent:   Mizuho Bank, Ltd., as the administrative agent                                       under the Credit Agreement                5.    Credit Agreement:  The Term Loan Credit Agreement, dated as of August 2,                                      2019 among Tech Data Corporation, the Lenders parties                                      thereto, and Mizuho Bank, Ltd., as Administrative Agent                            6.    Assigned Interest:                                                                                Percentage                                                                 Assigned Of                               Aggregate     Amount of              All                               Amount of    Commitment/          Outstanding                            Commitment/Loans   Loans     CUSIP  Commitments/      Assignor[s]5 Assignee[s]6 for all Lenders7 Assigned Number   Loans                                                                                       $_______________ $_________     [7.   Trade Date:  __________________]8    Effective  Date:   __________________,  20__  [TO  BE  INSERTED  BY  ADMINISTRATIVE  AGENT  AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER  IN THE  REGISTER THEREFOR.]                                                             5    List each Assignor, as appropriate.  6    List each Assignee, as appropriate.  7    Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any        payments or prepayments made between the Trade Date and the Effective Date.  8    To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade        Date.      





 






                                                                                   The terms set forth in this Assignment and Assumption are hereby agreed to:                                       ASSIGNOR                                      [NAME OF ASSIGNOR]                                                                            By:  _____________________________                                      Name:                                       Title:                                                                            ASSIGNEE                                      [NAME OF ASSIGNEE]                                                                            By:  _____________________________                                      Name:                                       Title:    [Consented to and]9 Accepted:    MIZUHO BANK, LTD.,   as Administrative Agent    By:  _________________________________  Name:   Title:    [Consented to:    TECH DATA CORPORATION,   as Borrower     By:  _________________________________   Name:  Title: ]10                                                                 9    To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.        10    To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.      





 






                                                                                                                       ANNEX 1 TO ASSIGNMENT AND ASSUMPTION                                                              STANDARD TERMS AND CONDITIONS FOR                          ASSIGNMENT AND ASSUMPTION                                                 1.    Representations and Warranties.          1.1.  Assignor.  [The][Each]  Assignor  (a) represents  and warrants  that (i)  it is the legal  and  beneficial  owner  of  [the][[the  relevant]  Assigned  Interest,  (ii)  [the][such]  Assigned  Interest  is  free  and  clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has  taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the  transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements,  warranties  or  representations  made  in  or  in  connection  with  the  Credit  Agreement  or  any  other  Loan  Document,  (ii)  the  execution,  legality,  validity,  enforceability,  genuineness,  sufficiency  or  value  of  the  Loan  Documents  or  any  collateral  thereunder,  (iii)  the  financial  condition  of  the  Borrower,  any  of  its  Subsidiaries  or  Affiliates,  or  any  other  Person  obligated  in  respect  of  any  Loan  Document  or  (iv)  the  performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of  any of their respective obligations under any Loan Document.                1.2.  Assignee.  [The][Each] Assignee (a) represents and warrants that (i) it has full power and  authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and  to  consummate  the  transactions  contemplated  hereby  and  to  become  a  Lender  under  the  Credit  Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to  receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective  Date,  it  shall  be  bound  by  the  provisions  of  the  Credit  Agreement  as  a  Lender  thereunder  and,  to  the  extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is  sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned  Interest  and  either  it,  or  the  Person  exercising  discretion  in  making  its  decision  to  acquire  [the][such]  Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit  Agreement, and has received or has been accorded the opportunity to receive copies of the most recent  financial statements delivered pursuant to Section 7.01 thereof, as applicable, and such other documents  and information as it deems appropriate to make its own credit analysis and decision to enter into this  Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and  without reliance upon the Administrative Agent or any other Lender and based on such documents and  information  as  it  has  deemed  appropriate,  made  its  own  credit  analysis  and  decision  to  enter  into  this  Assignment  and  Assumption  and  to  purchase  [the][such]  Assigned  Interest,  and  (vii)  if  it  is  a  Foreign  Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the  Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will,  independently  and  without  reliance  upon  the  Administrative  Agent,  [the][any]  Assignor  or  any  other  Lender, and based on such documents and information as it shall deem appropriate at the time, continue  to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will  perform in accordance with their terms all of the obligations which by the terms of the Loan Documents  are required to be performed by it as a Lender.          2.    Payments.  From and after the Effective Date, the Administrative Agent shall make all  payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and  other  amounts)  to  [the][the  relevant]  Assignor  for  amounts  which  have  accrued  to  but  excluding  the  Effective  Date and  to  [the][the relevant]  Assignee for  amounts  which  have  accrued from  and  after  the  Effective Date.        





 






                                                                                       3.    General Provisions.  This Assignment and Assumption shall be binding upon, and inure  to  the  benefit  of,  the  parties  hereto  and  their  respective  successors  and  assigns.   This  Assignment  and  Assumption  may  be  executed  in  any  number  of  counterparts,  which  together  shall  constitute  one  instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption  by  telecopy  shall  be  effective  as  delivery  of  a  manually  executed  counterpart  of  this  Assignment  and  Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with,  the law of the State of New York.                                                                                      





 






                                                                       EXHIBIT E-1                                                                             [FORM OF]                        U.S. TAX COMPLIANCE CERTIFICATE        (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)                                                       Reference is hereby made to the Term Loan Credit Agreement dated as of August 2, 2019  (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing  from time to time, the “Credit Agreement”), among Tech Data Corporation (the “Borrower”), the Lenders  from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent.               Pursuant  to  the  provisions  of  Section  3.01  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s)  evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the  meaning  of  Section  881(c)(3)(A)  of the  Code, (iii)  it  is  not  a ten  percent  shareholder  of the  Borrower  within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation  related to the Borrower as described in Section 881(c)(3)(C) of the Code.               The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  a  certificate  of  its  non-U.S.  Person  status  on  IRS  Form  W-8BEN  or  W-8BEN-E,  as  applicable.   By  executing this certificate, the undersigned agrees that (1) if the information provided on this certificate  changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2)  the  undersigned  shall  have  at  all  times  furnished  the  Borrower  and  the  Administrative  Agent  with  a  properly completed and currently effective certificate in either the calendar year in which each payment is  to be made to the undersigned, or in either of the two calendar years preceding such payments.                Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.   [NAME OF LENDER]   By:  _______________________        Name:  ________________________       Title:  ________________________   Date: ________ __, 20[  ]      





 






                                                                       EXHIBIT E-2                                                                             [FORM OF]                        U.S. TAX COMPLIANCE CERTIFICATE       (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)                                                       Reference is hereby made to the Term Loan Credit Agreement dated as of August 2, 2019  (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing  from time to time, the “Credit Agreement”), among Tech Data Corporation (the “Borrower”), the Lenders  from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent.               Pursuant  to  the  provisions  of  Section  3.01  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it  is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,  (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the  Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section  881(c)(3)(C) of the Code.               The undersigned has furnished its participating Lender with a certificate of its non-U.S.  Person  status  on  IRS  Form  W-8BEN  or  W-8BEN-E,  as  applicable.   By  executing  this  certificate,  the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such  Lender with a properly completed and currently effective certificate in either the calendar year in which  each  payment  is to  be  made  to the  undersigned,  or in  either  of the two  calendar  years preceding  such  payments.               Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.   [NAME OF PARTICIPANT]   By:  _______________________        Name:  ________________________       Title:  ________________________   Date: ________ __, 20[  ]      





 






                                                                       EXHIBIT E-3                                                                             [FORM OF]                        U.S. TAX COMPLIANCE CERTIFICATE        (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)                                                       Reference is hereby made to the Term Loan Credit Agreement dated as of August 2, 2019  (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing  from time to time, the “Credit Agreement”), among Tech Data Corporation (the “Borrower”), the Lenders  from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent.               Pursuant  to  the  provisions  of  Section  3.01  of  the  Credit  Agreement,  the  undersigned  hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing  this  certificate,  (ii)  its  direct  or  indirect  partners/members  are  the  sole  beneficial  owners  of  such  participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect  partners/members  is  a bank  extending  credit  pursuant  to  a loan  agreement  entered into in the ordinary  course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its  direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of  Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled  foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.                The  undersigned  has  furnished  its  participating  Lender  with  IRS  Form  W-8IMY  accompanied  by  one  of  the  following  forms  from  each  of  its  partners/members  that  is  claiming  the  portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form  W-8IMY  accompanied  by  an  IRS  Form  W-8BEN  or  W-8BEN-E,  as  applicable,  from  each  of  such  partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this  certificate,  the  undersigned  agrees  that  (1)  if  the  information  provided  on  this  certificate  changes,  the  undersigned  shall  promptly  so  inform  such  Lender  and  (2)  the  undersigned  shall  have  at  all  times  furnished such Lender with a properly completed and currently effective certificate in either the calendar  year  in  which  each  payment  is  to  be  made  to  the  undersigned,  or  in  either  of  the  two  calendar  years  preceding such payments.               Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.   [NAME OF PARTICIPANT]   By:  _______________________        Name:  ________________________       Title:  ________________________   Date: ________ __, 20[  ]      





 






                                                                      EXHIBIT E-4                                                                             [FORM OF]                        U.S. TAX COMPLIANCE CERTIFICATE          (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)                                                       Reference is hereby made to the Term Loan Credit Agreement dated as of August 2, 2019  (as amended, restated, amended and restated, extended, supplemented or otherwise modified in writing  from time to time, the “Credit Agreement”), among Tech Data Corporation (the “Borrower”), the Lenders  from time to time party thereto and Mizuho Bank, Ltd., as Administrative Agent.         Pursuant  to  the  provisions  of  Section  3.01  of  the  Credit  Agreement,  the  undersigned  hereby  certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s))  in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole  beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to  the  extension  of  credit  pursuant  to  this  Credit  Agreement  or  any  other  Loan  Document,  neither  the  undersigned nor any of its  direct or indirect partners/members is a bank extending credit pursuant to a  loan agreement entered into in the ordinary course of its trade or business within the meaning of Section  881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder  of  the  Borrower  within  the  meaning  of  Section  871(h)(3)(B)  of the  Code and (v)  none  of its  direct  or  indirect  partners/members  is  a  controlled  foreign  corporation  related  to  the  Borrower  as  described  in  Section 881(c)(3)(C) of the Code.               The  undersigned  has  furnished  the  Administrative  Agent  and  the  Borrower  with  IRS  Form  W-8IMY  accompanied  by  one  of  the  following  forms  from  each  of  its  partners/members  that is  claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii)  an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s  beneficial  owners  that  is  claiming  the  portfolio  interest  exemption.   By  executing  this  certificate,  the  undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall  promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all  times  furnished  the  Borrower  and  the  Administrative  Agent  with  a  properly  completed  and  currently  effective certificate in either the calendar year in which each payment is to be made to the undersigned, or  in either of the two calendar years preceding such payments.               Unless otherwise defined herein, terms defined in the Credit Agreement and used herein  shall have the meanings given to them in the Credit Agreement.   [NAME OF LENDER]   By:  _______________________        Name:  ________________________       Title:  ________________________   Date: ________ __, 20[  ]         





 






                                                                 EXHIBIT F                                                                       [FORM OF]                  BENEFICIAL OWNERSHIP CERTIFICATION                                                                        [DATE]         I.    GENERAL INSTRUCTIONS                                What is this form?   To help the U.S. government fight financial crime, federal regulation requires certain financial  institutions to obtain, verify, and record information about the beneficial owners of legal entity  customers. Legal entities can be abused to disguise involvement in terrorist financing, money  laundering, tax evasion, corruption, fraud, and other financial crimes. Requiring the disclosure of  key individuals who own or control a legal entity (i.e., the beneficial owners) helps U.S. law  enforcement investigate and prosecute these crimes.                           Who has to complete this form?   This form must be completed by the person opening a new account on behalf of a legal entity  with a bank, a broker or dealer in securities, or certain other types of U.S. financial institution,  and the form must be completed at the time each new account is opened.  For these purposes,  opening a new account includes establishing a formal relationship with a broker-dealer or  lender to effect transactions in securities or for the extension of credit.   For the purposes of this form, a legal entity includes a corporation, limited liability company, or  other entity that is created by a filing of a public document with a Secretary of State or similar  office, a general partnership, and any similar business entity formed in the United States or any  other country.  Legal entity does not include sole proprietorships, unincorporated associations, or  natural persons opening accounts on their own behalf.                       What information do I have to provide?   This form requires you to provide the name, address, date of birth and Social Security number (or  passport number or other similar information, in the case of non-U.S. persons) for the following  individuals (i.e., the “beneficial owners”):      (i) A single individual with significant responsibility for managing the legal entity customer           (e.g., a Chief Executive Officer, Chief Financial Officer, Chief Operating Officer,           Managing Member, General Partner, President, Vice President, or Treasurer); and     (ii) Each individual, if any, who owns, directly or indirectly, 25% or more of the equity           interests of the legal entity customer (e.g., each natural person who owns 25% or           more of the shares of a corporation).  The number of individuals that satisfy this definition of “beneficial owner” may vary.  Under  section (i), only one individual needs to be identified.  Under section (ii), depending on the  factual circumstances, up to four individuals (but as few as zero) may need to be identified.  It is  possible that in some circumstances the same individual might be identified under both sections                           [Tech Data – Term Loan Credit Agreement]                                        





 






   (e.g., the President of Acme, Inc. who also holds a 30% equity interest).  Thus, a completed form  will contain the identifying information of at least one individual (under section (i)), and up to  five individuals (i.e., one individual under section (i) and four 25% equity holders under section  (ii)).  This form also requires you to provide copies of (1) the legal formation document for each legal  entity (i.e., the issuer, borrower, or selling securityholder) listed on this form (e.g., Certificate of  Incorporation, LLC Agreement, Partnership Agreement, etc.), and (2) a driver’s license, passport  or other identifying document for each beneficial owner listed on this form.            II.   EXCLUSIONS (IF APPLICABLE)   If you believe the legal entity listed in Section III, paragraph (b) below falls under an express  exclusion from the “legal entity customer” definition under 31 C.F.R. §1010.230(e)(2), please  check the box below and identify the applicable exclusion:                  An exclusion applies to the legal entity identified in paragraph (b) of Section III below.                Applicable exclusion: ________________________________________________                 If the box above is checked, please skip paragraphs (c) and (d) of Section III below.      





 






           III.  IDENTIFICATION OF BENEFICIAL OWNER(S)    For the benefit of each of the financial institutions involved in the applicable sale of  securities or extension of credit for which this certification is provided, the following  information is hereby provided on behalf of the Issuer/Borrower/Selling Securityholder  legal entity customer listed below:   a. Individual Opening Account. Name and Title of Natural Person Opening Account and     Completing Certification on Behalf of Legal Entity Customer:           _________________________________________________________________________       b. Legal Entity Customer. Name, Type, and Principal Business Address of     Issuer/Borrower/Selling Securityholder Legal Entity Customer for Which the Account is     Being Opened:          _________________________________________________________________________     Please attach a copy of the legal formation document for each legal entity listed above     (e.g., Certificate of Incorporation, LLC Agreement, Partnership Agreement, etc.).       c. Control Prong. The following information for one individual with significant responsibility     for managing the Issuer/Borrower/Selling Securityholder legal entity customer listed above,     such as:      □  An executive officer or senior manager (e.g., Chief Executive Officer, Chief Financial        Officer, Chief Operating Officer, Managing Member, General Partner, President, Vice        President, Treasurer); or      □  Any other individual who regularly performs similar functions.           Name/Title     Date of Address (Residential For U.S. Persons:  For Non-U.S. Persons:                         Birth   or Business Street Social Security Social Security                                     Address)        Number        Number, Passport                                                                  Number and Country                                                                  of Issuance, or other                                                                  similar identification                                                                      number14                                                                                                         14 In lieu of a passport number, non-U.S. persons may also provide a Social Security Number, an  alien identification card number, or number and country of issuance of any other government-issued  document evidencing nationality or residence and bearing a photograph or similar safeguard.      





 






                                                      Please attach copies of a driver’s license, passport or other identifying document for each     individual listed above.           d. Ownership/Equity Prong. The following information for each individual, if any, who,     directly or indirectly, through any contract, arrangement, understanding, relationship or     otherwise, owns 25% or more of the equity interests of the Issuer/Borrower/Selling     Securityholder legal entity customer listed above:           Name          Date of Address (Residential For U.S. Persons:  For Non-U.S. Persons:                         Birth   or Business Street Social Security Social Security                                     Address)        Number        Number, Passport                                                                  Number and Country                                                                  of Issuance, or other                                                                  similar identification                                                                      number15                                                                                                                                                                        (If appropriate, an individual listed under section (c) above may also be listed in this section (d)).       Please attach copies of a driver’s license, passport or other identifying document for each     individual listed above.              Equity Owner Not Applicable (Please check this box if there is no individual              who owns 25% or more of the equity interest of the legal entity listed above.)                                                                   15 In lieu of a passport number, non-U.S. persons may also provide a Social Security Number, an  alien identification card number, or number and country of issuance of any other government-issued  document evidencing nationality or residence and bearing a photograph or similar safeguard.      





 






           IV.   ACKNOWLEDGEMENT; SIGNATURE         I,   _______________________________,  in    my      capacity   as  _______________________________  of  the  Issuer/Borrower/Selling  Securityholder  listed  above and not in my individual capacity, hereby:                  (a)  acknowledge  and  authorize  on  behalf  of  the  Issuer/Borrower/Selling  Securityholder and each beneficial owner identified in paragraphs (c) and (d) of Section III  above  that  this  certification  and  the  attachments  hereto  may  be  provided  to  each  of  the  financial institutions involved in the applicable sale of securities or extension of credit;                  (b) agree on behalf of the Issuer/Borrower/Selling Securityholder identified above,  from the date hereof until the closing of the applicable sale of securities or the termination  of  the  agreement  providing  for  the  applicable  extension  of  credit,  as  the  case  may  be,  to  notify  each  of  the financial  institutions involved  in  such  transaction  of  any  change  in the  information provided herein that would result in a change to the list of beneficial owners  identified in paragraph (c) or (d) of Section III above;                  (c) agree on behalf of the Issuer/Borrower/Selling Securityholder identified above,  upon request by or on behalf of the financial institutions involved in the applicable sale of  securities  or  extension  of  credit,  to  provide  documentation  supporting  any  applicable  exclusion identified in Section II above; and                  (d)  certify,  to  the  best  of  my  knowledge,  that  the  information  provided  above  is  complete and correct.                Signature: _______________________________ Date: _________________________             Legal Entity Identifier _________________ (Optional)