TECH DATA CORP
FORM 10-K
(Annual Report)
Filed 03/24/16 for the Period Ending 01/31/16
Address
5350 TECH DATA DR
CLEARWATER, FL 33760
7275397429
CIK 0000790703
Telephone
Symbol TECD
SIC Code
5045 - Computers and Computer Peripheral Equipment and Software
Industry Computer Hardware
Sector Technology
Fiscal Year
01/31
http://www.edgar-online.com
© Copyright 2016, EDGAR Online, Inc. All Rights Reserved.
Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use.
Table of Contents
UNITED STATESSECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549
FORM 10-K
(Mark
One)
xANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934For the fiscal year ended January 31, 2016OR¨TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934For the transition period from to .Commission File Number 0-14625
TECH DATA CORPORATION(Exact name of Registrant as specified in its charter)
Florida59-1578329(State or other jurisdiction ofincorporation or organization)(I.R.S. EmployerIdentification Number)5350 Tech Data DriveClearwater, Florida33760(Address of principal executive offices)(Zip Code)(Registrant’s Telephone Number, including Area Code): (727) 539-7429
Securities registered pursuant to Section 12(b) of the Act:Common stock, par value $.0015 per shareSecurities registered pursuant to Section 12 (g) of the Act: None
Indicate
by
a
check
mark
if
the
registrant
is
a
well-known
seasoned
issuer,
as
defined
in
Rule
405
of
the
Securities
Act.
Yes
x
No
¨Indicate
by
a
check
mark
if
the
registrant
is
not
required
to
file
reports
pursuant
to
Section
13
or
Section
15(d)
of
the
Act.
Yes
¨
No
xIndicate
by
check
mark
whether
the
registrant
(1)
has
filed
all
reports
required
to
be
filed
by
Section
13
or
15(d)
of
the
Securities
Exchange
Act
of
1934
during
the
preceding
12
months
(or
shorterperiod
that
the
registrant
was
required
to
file
such
reports),
and
(2)
has
been
subject
to
such
filing
requirements
for
the
past
90
days.
Yes
x
No
¨Indicate
by
check
mark
whether
the
registrant
has
submitted
electronically
and
posted
on
its
corporate
Web
site,
if
any,
every
Interactive
Data
File
required
to
be
submitted
and
posted
pursuant
to
Rule405
of
Regulation
S-T
(§232.405
of
this
chapter)
during
the
preceding
12
months
(or
for
such
shorter
period
that
the
registrant
was
required
to
submit
and
post
such
files).
Yes
x
No
¨Indicate
by
check
mark
if
disclosure
of
delinquent
filers
pursuant
to
Item
405
of
Regulation
S-K
is
not
contained
herein,
and
will
not
be
contained
to
the
best
of
registrant’s
knowledge,
in
definitiveproxy
or
information
statements
incorporated
by
reference
in
Part
III
of
this
Form
10-K
or
any
amendment
to
this
Form
10-K.
¨Indicate
by
check
mark
whether
the
registrant
is
a
large
accelerated
filer,
an
accelerated
filer,
a
non-accelerated
filer
or
a
smaller
reporting
company.
See
the
definitions
of
“accelerated
filer”,
“largeaccelerated
filer”
and
“smaller
reporting
company”
in
Rule
12b-2
of
the
Exchange
Act.
(Check
one):Large
accelerated
FilerxAccelerated
Filer¨
Non-accelerated
Filer¨Smaller
Reporting
Company
Filer¨Indicate
by
check
mark
whether
the
registrant
is
a
shell
company
(as
defined
in
Rule
12b-2
of
the
Act).
Yes
¨
No
xAggregate
market
value
of
the
voting
stock
held
by
non-affiliates
was
$2,036,301,933
based
on
the
reported
last
sale
price
of
common
stock
on
July
31,
2015
which
is
the
last
business
day
of
theregistrant’s
most
recently
completed
second
fiscal
quarter.Indicate
the
number
of
shares
outstanding
of
each
of
the
registrant’s
classes
of
common
stock,
as
of
the
latest
practicable
date.ClassMarch 9, 2016Common
stock,
par
value
$.0015
per
share35,087,522
DOCUMENTS INCORPORATED BY REFERENCEThe
registrant’s
Proxy
Statement
for
use
at
the
Annual
Meeting
of
Shareholders
on
June
1,
2016,
is
incorporated
by
reference
in
Part
III
of
this
Form
10-K
to
the
extent
stated
herein.
1 Table of ContentsTABLE OF CONTENTS
PART
I
ITEM
1.Business3ITEM
1A.Risk
Factors10ITEM
1B.Unresolved
Staff
Comments12ITEM
2.Properties12ITEM
3.Legal
Proceedings12ITEM
4.Mine
Safety
Disclosures13
PART
II
ITEM
5.Market
for
Registrant’s
Common
Equity,
Related
Stockholder
Matters
and
Issuer
Purchases
of
Equity
Securities14ITEM
6.Selected
Financial
Data17ITEM
7.Management’s
Discussion
and
Analysis
of
Financial
Condition
and
Results
of
Operations18ITEM
7A.Quantitative
and
Qualitative
Disclosures
about
Market
Risk36ITEM
8.Financial
Statements
and
Supplementary
Data37ITEM
9.Changes
in
and
Disagreements
With
Accountants
on
Accounting
and
Financial
Disclosure64ITEM
9A.Controls
and
Procedures64ITEM
9B.Other
Information66
PART
III
ITEM
10Directors,
Executive
Officers
and
Corporate
Governance67ITEM
11Executive
Compensation67ITEM
12Security
Ownership
of
Certain
Beneficial
Owners
and
Management
and
Related
Stockholder
Matters68ITEM
13Certain
Relationships
and
Related
Transactions,
and
Director
Independence68ITEM
14.Principal
Accountant
Fees
and
Services68
PART
IV
ITEM
15.Exhibits,
Financial
Statement
Schedules69
Signatures75Exhibits
Certifications
2 Table of ContentsPART IITEM 1. Business.OVERVIEWTech Data Corporation (“Tech Data”, "we", "our", "us" or the “Company”) is one of the world’s largest wholesale distributors of technology products. We serve as anindispensable link in the technology supply chain by bringing products from the world’s leading technology vendors to market, as well as providing our customers withadvanced logistics capabilities and value-added services. Our customers include approximately 105,000 value-added resellers (“VARs”), direct marketers, retailers andcorporate resellers who support the diverse technology needs of end users. We sell to customers in more than 100 countries throughout North America, South America,Europe, the Middle East and Africa. The two primary geographic markets we serve are the Americas and Europe. For a discussion of our geographic reporting segments,see Item 8, "Financial Statements and Supplementary Data.”Some of our key financial objectives are to gain share in select product areas in the geographies in which we operate and to improve operating income by growing grossprofit faster than operating costs. In addition, we focus on deploying the right level of capital that yields solid operating cash flow generation and a return on invested capitalthat is above our weighted average cost of capital.Key to achieving our financial objectives is our strategy of execution, diversification and innovation that we believe differentiates our business in the marketplace.Execution is fundamental to our business success. We have 22 logistics centers where each day, tens of millions of dollars of technology products are received fromvendors, picked and packed and shipped to our customers. Products are generally shipped from regionally located logistics centers the same day the orders are received. Inaddition, execution is marked by a high level of service provided to our customers through our company’s technical, sales and marketing support, electronic commerce tools,product integration services and financing programs.Our diversification strategy seeks to continuously remix our product, customer and services portfolios towards higher growth and higher return market segments throughorganic growth initiatives and acquisitions. We believe that as industry standardization, cloud computing, mobility, the Internet of Things ("IoT") and other potentiallydisruptive factors transform the way technology is used and delivered, we will leverage our highly efficient infrastructure to capture new market opportunities in our strategicfocus areas of data center, software, mobility, consumer electronics, integrated supply chain services and other value-added service offerings.The final tenet of our strategy is innovation. Our IT systems and e-business tools and programs have provided our business with the flexibility to effectively navigatefluctuations in market conditions, structural changes in the technology industry, as well as changes created by products we sell. These IT systems and e-business tools andprograms have also worked to strengthen our vendor and customer relationships, while at the same time improving the efficiency of these business partners.We believe our strategy of execution, diversification and innovation will continue to strengthen our value proposition with vendor partners and reseller customers whilepositioning us for continued market expansion and profitable growth.HISTORYTech Data was incorporated in 1974 to market data processing supplies such as tapes, disk packs, and custom and stock tab forms for mini and mainframe computersdirectly to end users. With the advent of microcomputer dealers, we made the transition to a wholesale distributor in 1984 by broadening our product line to include hardwareproducts and withdrawing entirely from end-user sales.From fiscal 1989 through fiscal 2011, we expanded geographically through the acquisitions of several distribution companies in both the Americas and Europe,strengthening our position in certain product and customer segments. In fiscal 2008, we executed an agreement with Brightstar Corp. ("Brightstar"), one of the world's largestwireless products distributors and supply chain solutions providers, to establish a joint venture in Europe. In fiscal 2013, we acquired Brightstar’s fifty percent ownershipinterest in this joint venture, herinafter referred to as Tech Data Mobile. Tech Data Mobile distributes mobile phones and other wireless devices to a variety of customersincluding mobile operators, dealers, agents, retailers and e-tailers in certain European markets.In fiscal 2012, we made two acquisitions in the European technology distribution marketplace. The addition of these businesses expanded our product and customerportfolios and continued to add desired skill sets, while leveraging our logistics infrastructure in Europe. Also in fiscal 2012, we executed an agreement with Brightstar toestablish TDMobility, a joint venture in the United States. In fiscal 2014, we acquired Brightstar's fifty percent ownership interest in this joint venture, hereinafter referred to asTech Data Mobile Solutions. Tech Data Mobile Solutions simplifies the selling, delivery and support of mobile services for our reseller customers serving the small andmedium business markets.In fiscal 2013, we completed the acquisition of several distribution companies of Specialist Distribution Group (collectively "SDG"), the distribution arm of Specialist ComputerHoldings PLC, a privately-held IT services company headquartered in the United Kingdom. The acquisition of SDG supports the Company’s diversification strategy bystrengthening its European data center and broadline offerings in3 Table of Contentskey markets and expanding the Company’s vendor and customer portfolios, while leveraging the Company’s existing pan-European infrastructure.In March 2015, we entered into an agreement for the sale of our business operations in Chile and Peru and also committed to a plan to exit our business operations inUruguay as we did not believe these operations would generate consistently acceptable returns on invested capital. In June 2015, the Company completed the acquisition ofSignature Technology Group, Inc. ("STG"), a provider of data center and professional services throughout North America.INDUSTRYThe wholesale distribution model has proven to be well suited for both manufacturers and publishers of technology products (also referred to in this document as “vendors”)and resellers of those products. The large number of resellers makes it cost efficient for vendors to rely on wholesale distributors to serve this diverse and highly fragmentedcustomer base.Resellers in the traditional distribution model are able to build efficiencies and reduce their costs by relying on distributors, such as Tech Data, for a number of services,including multi-vendor solutions, product configuration/integration, marketing support, financing, technical support, and inventory management, which includes directshipment to end-users and, in some cases, provides end-users with the distributors’ inventory availability.Due to the large number of vendors and products, resellers often cannot, or choose not to, establish direct purchasing relationships with vendors. As a result, they frequentlyrely on wholesale distributors, such as Tech Data, who leverage purchasing costs across multiple vendors to satisfy a significant portion of the resellers' productprocurement, logistics, financing, marketing and technical support needs.The technology distribution industry continues to address a broad spectrum of reseller and vendor requirements. While some vendors have elected to sell directly to resellersor end-users for particular customer and product segments, we believe that a vast majority of vendors continue to embrace traditional distributors that have provencapabilities to manage multiple products and resellers, provide access to fragmented markets, and deliver products in a cost-effective and efficient manner.New products and market opportunities have helped to offset the impact on technology distributors of vendor direct sales. Further, vendors continue to seek the logisticsexpertise of distributors to penetrate highly fragmented markets such as the small- and medium-sized business (“SMB”) sector, which relies on VARs, our primary customerbase, to gain access to and support for new technology. The economies of scale and global reach of large industry-leading and well-capitalized distributors are expected tocontinue to be significant competitive advantages in this marketplace.PRODUCTS AND VENDORSWe distribute and market hundreds of thousands of products from more than 1,200 of the world’s leading technology hardware suppliers, networking equipment suppliers,software publishers, and other suppliers of technology peripherals, consumer electronics, digital displays and mobile phone hardware and accessories. These products aretypically purchased directly from the vendor on a non-exclusive basis. Conversely, our vendor agreements do not restrict us from selling similar products manufactured bycompetitors, nor do they require us to sell a specified quantity of product. As a result, we have the flexibility to terminate or curtail sales of one product line in favor of anotherdue to technological change, pricing considerations, product availability, customer demand, or vendor distribution policies. Overall, we believe that our diversified andevolving product portfolio will provide a solid platform for continued growth.We continually evolve our product line in order to provide our customers with access to the latest technology products. However, from time to time, the demand for certainproducts that we sell exceeds the supply available from the vendor. In such cases, we generally receive an allocation of the available products. We believe that our ability tocompete is not adversely affected by these periodic shortages and the resulting allocations.We believe that our vendor agreements are in the form customarily used by manufacturers and distributors. Agreements typically contain provisions that allow termination byeither party upon a short notice period. In most instances, a vendor who elects to terminate a distribution agreement will repurchase the vendor’s products carried in thedistributor’s inventory.Many of our vendor agreements also allow for stock rotation and price protection provisions. Stock rotation rights give us the ability, subject to certain limitations, to return forcredit or exchange a portion of those inventory items purchased from the vendor. Price protection situations occur when a vendor credits us for declines in inventory valueresulting from the vendor’s price reductions. Along with our inventory management policies and practices, these provisions reduce our risk of loss due to slow-movinginventory, vendor price reductions, product updates or obsolescence.Sometimes the industry practices discussed above are not embodied in agreements and do not protect us in all cases from declines in inventory value. However, we believethat these practices provide a significant level of protection from such declines, although no assurance can be given that such practices will continue or that they willadequately protect us against declines in inventory value. We sell products in various countries throughout the world, and product categories may vary from region to region.Our consolidated revenue mix may fluctuate between and within our operating segments as well as within our product categories. These fluctuations can be influenced byour diversification strategies, new product offerings and supply and demand fluctuations within our operating regions.4 Table of ContentsOur product mix is divided into five strategic focus categories, which are primarily comprised of the following products:Broadlinenotebooks, tablets, desktops, printers, printer supplies and componentsData centerindustry standard servers, proprietary servers, networking, and storageSoftwarevirtualization, cloud, security, desktop applications, operating systems and utilities softwareMobilitymobile phones and accessoriesConsumer electronicsTV's, digital displays, consumer audio-visual devices and network-attached consumer devicesOur consolidated net sales for fiscal 2016, 2015 and 2014 within our strategic focus categories approximated the following:Year ended January 31:
2015
2014Broadline
47%
46%Data center
22%
23%Software
18%
18%Mobility
10%
9%Consumer electronics
3%
4%We generated approximately 20%, 15% and 13% of our consolidated net sales in fiscal 2016, 2015 and 2014 , respectively, from products purchased from Apple, Inc. Inaddition, approximately 18%, 19% and 21% of our consolidated net sales in fiscal 2016, 2015 and 2014 were generated from products purchased from Hewlett-PackardCompany (“HP”). HP split into two companies, HP Inc. (“HPI”) and Hewlett Packard Enterprise (“HPE”), effective November 1, 2015. The amounts presented in relation toHP include the combined sales generated from products purchased from HPI and HPE. There were no other vendors that accounted for 10% or more of our consolidated netsales in fiscal 2016, 2015 and 2014 .CUSTOMERS AND SERVICESOur products are purchased directly from vendors in significant quantities and are marketed to an active reseller base of approximately 105,000 VARs, direct marketers,retailers and corporate resellers. No single customer accounted for more than 10% of our net sales during fiscal 2016, 2015 and 2014 .The market for VARs is attractive because VARs generally rely on distributors as their principal source of technology products and the related financing for the products. Thisreliance is due to VARs typically not wanting to invest the resources to establish a large number of direct purchasing relationships or stock significant product inventories.Direct marketers, retailers and corporate resellers may establish direct relationships with vendors for their highest volume products, but utilize distributors as the primarysource for other product requirements and an alternative source for products acquired directly.In addition to an extensive product offering from the world's leading technology vendors, we provide resellers a high level of customer service through our training andtechnical support, suite of electronic commerce tools, customized shipping documents, product5 Table of Contentsconfiguration/integration services and access to flexible financing programs. We also provide services to our vendors by providing them the opportunity to participate in anumber of special promotions and marketing services targeted to the needs of our resellers.As part of our aforementioned diversification strategy, our other strategic areas of focus for the company are integrated supply chain services designed to provide innovativethird party logistics and other service offerings to our business partners, as well as value-added, professional services designed to augment our customers' technicalcapabilities. Service revenues were less than 10% of our consolidated net sales during fiscal 2016, 2015 and 2014.We provide our vendors with access to one of the largest bases of resellers throughout the Americas and Europe, delivering products to those resellers from our 22regionally located logistics centers. We have located our logistics centers near our customers which enables us to deliver products on a timely basis, thereby reducing thecustomers’ need to invest in inventory (see also Item 2, "Properties" for further discussion of our locations and logistics centers).SALES AND ELECTRONIC COMMERCEOur sales team consists of field sales and inside telemarketing sales representatives. The sales representatives are provided comprehensive training on our policies andprocedures, the technical specifications of products, and attend product seminars offered by our vendors. Field sales representatives are typically located in majormetropolitan areas in their respective geographies and are supported by inside telemarketing sales teams covering a designated territory. Our team concept provides astrong personal relationship between our customers’ representatives and Tech Data. Customers typically call our inside sales teams on dedicated telephone numbers orcontact us through various electronic methods to place orders. If the product is in stock and the customer has available credit, customer orders are generally shipped thesame day from the logistics center nearest the customer or the intended end-user.Customers often utilize our electronic ordering and information systems. Through our website, customers can gain remote access to our information systems to place orders,or check order status, inventory availability and pricing. Certain of our larger customers have electronic data interchange ("EDI") services available whereby orders, orderacknowledgments, invoices, inventory status reports, customized pricing information and other industry standard EDI transactions are consummated on-line, which improvesefficiency and timeliness for the Company and our customers.COMPETITIONWe operate in a market characterized by intense competition, based on such factors as product availability, credit terms and availability, price, speed of delivery,effectiveness of information systems and e-commerce tools, ability to tailor solutions to customers' needs, quality and depth of product lines and training, as well as serviceand support provided by the distributor to the customer. We believe we are well equipped to compete effectively with other distributors in all of these areas.We compete against several distributors in the Americas market, including broad-based IT product distributors such as Ingram Micro Inc. ("Ingram Micro"), Synnex Corp.,and to a lesser extent, more specialized distributors such as Arrow Electronics, Inc. (“Arrow”) and Avnet, Inc. (“Avnet”), along with some regional and local distributors. Thecompetitive environment in Europe is more fragmented, with market share spread among several regional and local competitors such as ALSO/Actebis and Esprinet, as wellas international distributors such as Ingram Micro, Westcon Group, Inc., Arrow and Avnet.The Company also faces competition from companies entering or expanding into the logistics and product fulfillment and e-commerce supply chain services market.Additionally, certain direct sales relationships between manufacturers, resellers, and end-users continue to introduce change into the competitive landscape of our industry.As we expand our business into new areas, we may face increased competition from other distributors as well as vendors. However, we believe vendors will continue to selltheir products through distributors, such as Tech Data, due to our ability to provide them with access to our broad customer base and serve them in a highly cost-effectiveand efficient manner. Our logistics capabilities, as well as our sales and marketing, credit and product management expertise, allow our vendors to expand their marketcoverage while lowering their selling, inventory and fulfillment costs.EMPLOYEESOn January 31, 2016 , we had approximately 9,000 employees (as measured on a full-time equivalent basis). Certain of our employees in various countries outside of theUnited States are subject to laws providing representation rights to employees through workers' councils. Our success depends on the talent and dedication of ouremployees and we strive to attract, hire, develop and retain outstanding employees. We believe significant benefits are realized from having a strong and seasonedmanagement team with many years of experience in technology distribution and related industries. We consider relations with our employees to be good.FOREIGN AND DOMESTIC OPERATIONS AND EXPORT SALESWe operate predominately in a single industry segment as a distributor of technology products, logistics management, and other value-added services. While we operateprimarily in one industry, we manage our business in two geographic segments: the Americas and Europe.6 Table of ContentsOver the past several years, we have expanded our presence in certain existing markets and exited certain markets based upon our assessment of, among other factors,our earnings potential and the risk exposure in those markets, including foreign currency exchange, regulatory and political risks. To the extent we decide to close any of ouroperations, we may incur charges and operating losses related to such closures and recognize a portion of our accumulated other comprehensive income in connection withsuch a disposition. For information on our net sales, operating income and identifiable assets by geographic region, see Note 14 of Notes to Consolidated FinancialStatements.ASSET MANAGEMENTWe manage our inventories in a manner that allows us to maintain sufficient quantities to achieve high order fill rates while attempting to stock only those products in highdemand that have a rapid turnover rate. Our business, like that of other distributors, is subject to the risk that the value of inventory will be impacted adversely by suppliers’price reductions or by technological changes affecting the usefulness or desirability of the products comprising the inventory. Our contracts with many of our vendors provideprice protection and stock rotation privileges to reduce the risk of loss due to manufacturer price reductions and slow moving or obsolete inventory. In the event of a vendorprice reduction, we generally receive a credit for the impact on products in inventory and we have the right to rotate a certain percentage of purchases, subject to certainlimitations. Historically, price protection and stock rotation privileges, as well as our inventory management procedures, have helped reduce the risk of loss of inventoryvalue.We attempt to control losses on credit sales by closely monitoring customers’ creditworthiness through our IT systems, which contain detailed information on eachcustomer’s payment history and other relevant information. In certain countries, we have obtained credit insurance that insures a percentage of the credit extended by us tocertain customers against possible loss. The Company also has arrangements with certain finance companies that provide inventory financing facilities to our customers asan additional approach to mitigate credit risk. Certain of the Company’s vendors subsidize these financing arrangements for the benefit of our customers. Customers whoqualify for credit terms are typically granted net 30-day payment terms in the Americas. While credit terms in Europe vary by country, the vast majority of customers aregranted credit terms ranging from 30 to 60 days. We also sell products on a prepayment, credit card and cash-on-delivery basis.7 Table of ContentsADDITIONAL INFORMATION AVAILABLEWe are subject to the informational requirements of the Securities Exchange Act of 1934, as amended. We therefore file our Annual Report on Form 10-K, Quarterly Reportson Form 10-Q, Current Reports on Form 8-K, Proxy Statements, and other documents with the Securities and Exchange Commission (the “SEC”). Such reports may beobtained by visiting the Public Reference Room of the SEC at 100 F Street, NE, Washington, D.C. 20549. Information on the operation of the Public Reference Room can beobtained by calling the SEC at (800) SEC-0330. In addition, the SEC maintains an Internet site (www.sec.gov) that contains reports, proxy and information statements andother information.Our principal Internet address is www.techdata.com . We make available free of charge, through our website, our Annual Report on Form 10-K, Quarterly Reports on Form10-Q, Current Reports on Form 8-K, and amendments to those reports, as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC.Information on Tech Data’s website is not incorporated into this Form 10-K or the Company’s other securities filings and is not a part of them.EXECUTIVE OFFICERSThe following table sets forth the name, age and title of each of the persons who were serving as executive officers of Tech Data as of March 24, 2016:Name
Age
Title Robert M. Dutkowsky
61
Chief Executive OfficerCharles V. Dannewitz
61
Executive Vice President and Chief Financial OfficerRichard T. Hume
56
Executive Vice President and Chief Operating OfficerJohn A. Tonnison
47
Executive Vice President, Cloud Computing and Chief Information OfficerNéstor Cano
51
President, EuropeJoseph H. Quaglia
51
President, the AmericasAlain Amsellem
56
Senior Vice President and Chief Financial Officer, EuropeBeth E. Simonetti
50
Senior Vice President and Chief Human Resources OfficerJeffrey L. Taylor
49
Senior Vice President and Corporate ControllerJoseph B. Trepani
55
Senior Vice President and Chief Financial Officer, the AmericasDavid R. Vetter
56
Senior Vice President, General Counsel and SecretaryRobert M. Dutkowsky, Chief Executive Officer , joined Tech Data as Chief Executive Officer and was appointed to the Board of Directors in October 2006. His careerbegan with IBM where, during his 20-year tenure, he served in several senior management positions including Vice President, Distribution - IBM Asia/Pacific. Prior to joiningTech Data, Mr. Dutkowsky served as President, CEO, and Chairman of the Board of Egenera, Inc. (a software and virtualization technology company), from 2004 until 2006,and served as President, CEO, and Chairman of the Board of J.D. Edwards & Co., Inc. (a software company) from 2002 until 2004. He was President, CEO, and Chairmanof the Board of GenRad, Inc. from 2000 until 2002. Starting in 1997, Mr. Dutkowsky was Executive Vice President, Markets and Channels, at EMC Corporation before beingpromoted to President, Data General, in 1999. Mr. Dutkowsky holds a Bachelor of Science in Industrial and Labor Relations from Cornell University.Charles V. Dannewitz, Executive Vice President and Chief Financial Officer , joined the Company in February 1995 as Vice President of Taxes. He was promoted toSenior Vice President of Taxes in March 2000, and assumed responsibility for worldwide treasury operations in July 2003. In February 2014, he was appointed Senior VicePresident and Chief Financial Officer, the Americas. In June 2015, he was promoted to Executive Vice President and Chief Financial Officer. Prior to joining the Company,Mr. Dannewitz was employed by Price Waterhouse from 1981 to 1995, most recently as a tax partner. Mr. Dannewitz is a Certified Public Accountant and holds a Bachelorof Science in Accounting from Illinois Wesleyan University.Richard T. Hume, Executive Vice President and Chief Operating Officer, joined the Company in March 2016. Prior to his appointment at the Company, Mr. Hume wasemployed for over thirty years at IBM. Most recently, from January 2015 to February 2016, Mr. Hume served as General Manager and Chief Operating Officer ofInfrastructure and Outsourcing. Prior to that position, from January 2012 to January 2015, Mr. Hume served as General Manager, Europe where he led IBM’s multi-brandEuropean organization. From 2008 to 2011, Mr. Hume served as General Manager, Global Business Partners, directing the growth and channel development initiatives forIBM’s Business Partner Channel. Mr. Hume holds a Bachelor of Science in Accounting from Pennsylvania State University.John A. Tonnison, Executive Vice President, Cloud Computing and Chief Information Officer , joined the Company in March 2001 as Vice President, Worldwide E-Business and was promoted to Senior Vice President of IT Americas in December 2006. In February 2010, he was appointed to Executive Vice President and ChiefInformation Officer. In July 2015, additional responsibilities were added to the role to include leadership of the strategic directions, operations and go-to-market execution ofthe Company's cloud business. Prior to joining the Company, Mr. Tonnison held executive management positions in the U.S., United Kingdom and Germany with8 Table of ContentsComputer 2000, Technology Solutions Network and Mancos Computers. Mr. Tonnison was educated in the United Kingdom and became a U.S. citizen in 2006.Néstor Cano, President, Europe , joined Computer 2000 (and the Company via acquisition) in July 1989 as a Software Product Manager and served in variousmanagement positions within the Company’s operations in Spain and Portugal from 1990 to 1995, after which time he was promoted to Regional Managing Director. InMarch 1999, he was appointed Executive Vice President of U.S. Sales and Marketing, and in January 2000 was promoted to President, the Americas. Mr. Cano waspromoted to President, Worldwide Operations in August 2000 and was appointed to President, Europe in June 2007. Mr. Cano holds a PDG (similar to an Executive MBA)from IESE Business School in Barcelona and an Engineering Degree from Barcelona University.Joseph H. Quaglia, President, the Americas, joined the Company in May 2006 as Vice President, East and Government Sales and was promoted to Senior VicePresident of U.S. Marketing in November 2007. In February 2012, he was appointed to the additional role of President, TDMobility and he was promoted to President, theAmericas in November 2013. Prior to joining the Company, Mr. Quaglia held senior management positions with CA Technologies, StorageNetworks Inc. and networksoftware provider Atabok. Mr. Quaglia holds a Bachelor of Science in Computer Science from Indiana State University and an M.B.A. from Butler University.Alain Amsellem, Senior Vice President and Chief Financial Officer, Europe , joined the Company in 1994 through Tech Data’s acquisition of French distributor, SoftmartInternational S.A. and served as France Finance Director until September 1999 when he was promoted to France Managing Director. In August 2004, Mr. Amsellem waspromoted to Senior Vice President of Southern Europe, and was appointed Senior Vice President - Europe Finance & Operations in 2007. In February 2014, he wasappointed Senior Vice President and Chief Financial Officer, Europe. Mr. Amsellem is a Chartered Accountant and holds a degree in management and charteredaccountancy from Paris Dauphine University.Beth E. Simonetti, Senior Vice President and Chief Human Resources Officer , joined the company in September 2015 as Senior Vice President and Chief HumanResources Officer. Prior to joining Tech Data, Ms. Simonetti served as Senior Vice President, Human Resources at Baker & Taylor, Inc. since 2010. Previously, she was anexecutive search consultant and was with Cardinal Health for 12 years in various HR leadership positions. Ms. Simonetti holds a Bachelor of Science degree from MiamiUniversity in Ohio and a Masters of Hospital and Health Services Administration from Ohio State University.Jeffrey L. Taylor, Senior Vice President and Corporate Controller , joined the Company in May 2007 and held the position of Vice President, Corporate Accountingthrough April 2011. Mr. Taylor rejoined the Company in October 2012 serving in the same capacity until July 2013 when he was appointed Vice President and AssistantCorporate Controller. In June 2015 he was promoted to Senior Vice President and Corporate Controller. Prior to rejoining the Company in October 2012, Mr. Taylor servedin executive financial management with a value-added reseller and previously was employed by Deloitte & Touche ("Deloitte") from 1992 to 2003, most recently as AuditPartner in Russia and including three years in Deloitte's U.S. national office in the Quality Assurance and SEC Services groups. Mr. Taylor holds a Bachelor of Science inAccounting from San Diego State University.Joseph B. Trepani, Senior Vice President and Chief Financial Officer, the Americas , joined the Company in March 1990 as Controller and held the position of Directorof Operations from October 1991 through January 1995. In February 1995, he was promoted to Vice President and Worldwide Controller and to Senior Vice President andCorporate Controller in March 1998. In June 2015, he was appointed Senior Vice President and Chief Financial Officer, the Americas. Prior to joining the Company,Mr. Trepani was Vice President of Finance for Action Staffing, Inc. from 1989 to 1990. From 1982 to 1989, he was employed by Price Waterhouse. Mr. Trepani is a CertifiedPublic Accountant and holds a Bachelor of Science in Accounting from Florida State University.David R. Vetter, Senior Vice President, General Counsel and Secretary , joined the Company in June 1993 as Vice President and General Counsel and was promotedto Corporate Vice President and General Counsel in April 2000. In March 2003, he was promoted to his current position of Senior Vice President, and effective July 2003,was appointed Secretary. Prior to joining the Company, Mr. Vetter was employed by the law firm of Robbins, Gaynor & Bronstein, P.A. from 1984 to 1993, most recently as apartner. Mr. Vetter is a member of the Florida Bar Association and holds Bachelor of Arts degrees in English and Economics from Bucknell University and a Juris DoctorateDegree from the University of Florida.9 Table of ContentsITEM 1A. Risk Factors.The following are certain risk factors that could affect our business, financial position and results of operations. These risk factors should be considered in connection withevaluating the forward-looking statements contained in this Annual Report on Form 10-K because these factors could cause the actual results and conditions to differmaterially from those projected in the forward-looking statements. Before you buy our common stock or other securities, you should know that making such an investmentinvolves risks, including the risks described below. The risks that have been highlighted below are not the only risks of our business. If any of the risks actually occur, ourbusiness, financial condition or results of operations could be negatively affected. In that case, the trading price of our common stock or other securities could decline, andyou may lose all or part of your investment. Risk factors that could cause actual results to differ materially from our forward-looking statements are as follows:Our ability to earn profit is more challenging when sales slow from a down economy as a result of gross profit declining faster than cost reduction efforts takingeffect.High levels of unemployment in the markets we serve, as well as austerity measures that may be implemented by governments in those markets, can constrain economicgrowth resulting in lower demand for the products and services we sell. When we experience a rapid decline in demand for products we experience more difficulty inachieving the gross profit and operating profit we desire due to the lower sales and increased pricing pressure. The economic environment may also result in changes invendor terms and conditions, such as rebates, cash discounts and cooperative marketing efforts, which may also result in downward pressure on our gross profit. As aresult, there is pressure to reduce the cost of operations in order to maximize operating profits. To the extent we cannot reduce costs to offset such decline in gross profits,our operating profits typically deteriorate. The benefits from cost reductions may also take longer to fully realize and may not fully mitigate the impact of the reduced demand.Should we experience a decline in operating profits, especially in Europe, the valuations we develop for purposes of our goodwill impairment test may be adversely affected,potentially resulting in impairment charges. Deterioration in the financial and credit markets heightens the risk of customer bankruptcies and delays in payment. Futuredeterioration in the credit markets could result in reduced availability of credit insurance to cover customer accounts. This, in turn, may result in our reducing the credit lineswe provide to customers, thereby having a negative impact on our net sales.Our competitors can take more market share by reducing prices on key vendor products that contribute the most to our profitability.The Company operates in a highly competitive environment. The technology distribution industry is characterized by intense competition, based primarily on productavailability, credit terms and availability, price, effectiveness of information systems and e-commerce tools, speed of delivery, ability to tailor specific solutions to customerneeds, quality and depth of product lines and training, service and support. Our customers are not required to purchase any specific volume of products from us and maymove business if pricing is reduced by competitors, resulting in lower sales. As a result, we must be extremely flexible in determining when to reduce price to maintainmarket share and sales volumes and when to allow our sales volumes to decline to maintain the quality of our profitability. The Company competes with a variety of regional,national and international wholesale distributors, some of which may have greater financial resources than the Company.We are dependent on internal information and telecommunications systems, and any failure of these systems, including system security breaches, dataprotection breaches, or other cybersecurity attacks, may negatively impact our business and results of operations. The Company is highly dependent upon its internal information and telecommunications systems to operate its business. Failures of our internal information ortelecommunications systems may prevent us from taking customer orders, shipping products and billing customers. Sales may also be impacted if our customers are unableto access our pricing and product availability information. Additionally, if the Company were to experience a security breakdown, disruption or breach that compromisedsensitive information, it could harm our relationships with vendors and customers. The occurrence of any of these events could have a negative impact on our business andresults of operations.We may not be able to ship products if our third party shipping companies cease operations temporarily or permanently.The Company relies on arrangements with independent shipping companies for the delivery of its products from vendors and to customers. The failure or inability of theseshipping companies to deliver products, or the unavailability of their shipping services, even temporarily, may have an adverse effect on the Company's business.If our vendors do not continue to provide price protection for inventory we purchase from them our profit from the sale of that inventory may decline.It is very typical in our industry that the value of inventory will decline as a result of price reductions by vendors or technological obsolescence. It is the policy of many of ourvendors to protect distributors from the loss in value of inventory due to technological change or the vendors' price reductions. Some vendors, however, may be unwilling orunable to pay the Company for price protection claims or products returned to them under purchase agreements. Moreover, industry practices are sometimes not embodiedin written agreements and do not protect the Company in all cases from declines in inventory value. No assurance can be given that such10 Table of Contentspractices to protect distributors will continue, that unforeseen new product developments will not adversely affect the Company, or that the Company will be able tosuccessfully manage its existing and future inventories.Failure to obtain adequate product supplies from our largest vendors, or terminations of a supply or services agreement, or a significant change in vendor termsor conditions of sale by our largest vendors may negatively affect our net sales and operating profit.The Company receives a significant percentage of revenues from products it purchases from certain vendors, such as Apple, Inc., HP Inc. and Hewlett Packard Enterprise.These vendors have significant negotiating power over us and rapid, significant and adverse changes in sales terms and conditions, such as reducing the amount of priceprotection and return rights as well as reducing the level of purchase discounts and rebates they make available to us, may reduce the profit we can earn on these vendors'products and result in loss of revenue and profitability. The Company's gross profit could be negatively impacted if the Company is unable to pass through the impact ofthese changes to the Company's customers or cannot develop systems to manage ongoing vendor programs. In addition, the Company's standard vendor distributionagreement permits termination without cause by either party upon 30 days notice. The loss of a relationship with any of the Company's key vendors, a change in theirstrategy (such as increasing direct sales), the merger or reorganization of significant vendors, or significant changes in terms on their products may adversely affect theCompany's business.Changes in our credit rating or other market factors may increase our interest expense or other costs of capital or capital may not be available to us onacceptable terms to fund our working capital needs. The inability to obtain such sources of capital could have an adverse effect on the Company's business.The Company's business requires substantial capital to operate and to finance accounts receivable and product inventory that are not financed by trade creditors. TheCompany has historically relied upon cash generated from operations, bank credit lines, trade credit from vendors, proceeds from public offerings of its common stock andproceeds from debt offerings to satisfy its capital needs and to finance growth. The Company utilizes various financing instruments such as receivables securitization,leases, revolving credit facilities and trade receivable purchase agreements. As the financial markets change and new regulations come into effect, the cost of acquiringfinancing and the methods of financing may change. Changes in our credit rating or other market factors may increase our interest expense or other costs of capital orcapital may not be available to us on acceptable terms to fund our working capital needs. The inability to obtain such sources of capital could have an adverse effect on theCompany's business. The Company's credit facilities contain various financial and other covenants that may limit the Company's ability to borrow, or limit the Company'sflexibility in responding to business conditions. These financing instruments involve variable rate debt, thus exposing the Company to risk of fluctuations in interest rates.Increases in interest rates would result in an increase in the interest expense on the Company's variable debt, which would reduce the Company's profitability.We conduct business in countries outside of the United States, which exposes us to fluctuations in foreign currency exchange rates that result in losses incertain periods.Approximately 65%, 68% and 67% of our net sales in fiscal 2016, 2015 and 2014 were generated in countries outside of the United States, which exposes the Company tofluctuations in foreign currency exchange rates. The Company may enter into short-term forward exchange or option contracts to hedge this risk. Nevertheless, volatileforeign currency exchange rates increase our risk of loss related to products purchased in a currency other than the currency in which those products are sold. While wemaintain policies to protect against fluctuations in currency exchange rates, extreme fluctuations have resulted in our incurring losses in some countries. The realization ofany or all of these risks could have a significant adverse effect on our financial results. The translation of the financial statements of foreign operations into U.S. dollars isalso impacted by fluctuations in foreign currency exchange rates, which may positively or negatively impact our results of operations. In addition, the value of the Company'sequity investment in foreign countries may fluctuate based upon changes in foreign currency exchange rates. These fluctuations, which are recorded in a cumulativetranslation adjustment account, may result in losses in the event a foreign subsidiary is sold or closed at a time when the foreign currency is weaker than when the Companymade investments in the country. In addition, our local competitors in certain markets may have different purchasing models that provide them reduced foreign currencyexposure compared to the Company. This may result in market pricing that the Company cannot meet without significantly lower profit on sales.We have international operations which expose us to risks associated with conducting business in multiple jurisdictions.The Company's international operations are subject to other risks such as the imposition of governmental controls, export license requirements, restrictions on the export ofcertain technology, political instability, trade restrictions, tariff changes, difficulties in staffing and managing international operations, changes in the interpretation andenforcement of laws (in particular related to items such as duty and taxation), difficulties in collecting accounts receivable, longer collection periods and the impact of localeconomic conditions and practices. There can be no assurance that these and other factors will not have an adverse effect on the Company's business. In addition, while the Company's labor force in the Americas is currently non-union, employees of certain European subsidiaries are subject to collective bargaining or similararrangements. The Company does business in certain foreign countries where labor disruption is more common than is experienced in the United States and some of thefreight carriers used by the Company are unionized. A labor strike by a group of the Company's employees, one of the Company's freight carriers, one of its vendors, ageneral strike by civil service employees, or a governmental shutdown could have an adverse effect on the Company's business. Many of the products the Company sellsare manufactured in countries other than the countries in which the Company's logistics centers are11 Table of Contentslocated. The inability to receive products into the logistics centers because of government action or labor disputes at critical ports of entry may have an adverse effect on theCompany's business.We cannot predict what losses we might incur in litigation matters, regulatory enforcement actions and contingencies that we may be involved with from time totime, including in connection with the restatement of prior financial statements.The SEC has requested information from the Company with respect to the restatement of certain of our consolidated financial statements and other financial informationfrom fiscal 2009 to fiscal 2013, and the Company is cooperating with the SEC request. See Item 3, “Legal Proceedings.” This pending SEC request for information and otherpotential proceedings could result in fines and other penalties. The Company has not reserved any amount in respect of these matters in its consolidated financialstatements.The Company cannot predict whether monetary losses, if any, it experiences in any proceedings related to the restatement will be covered by insurance or whetherinsurance proceeds recovered will be sufficient to offset such losses. Potential civil or regulatory proceedings may also divert the efforts and attention of the Company’smanagement from business operations.The Company cannot predict what losses we might incur from other litigation matters, regulatory enforcement actions and contingencies that we may be involved with fromtime to time. There are various other claims, lawsuits and pending actions against us. We do not expect that the ultimate resolution of these other matters will have amaterial adverse effect on our consolidated financial position. However, the resolution of certain of these matters could be material to our operating results for any particularperiod, depending on the level of income for such period. We can make no assurances that we will ultimately be successful in our defense of any of these other matters.ITEM 1B. Unresolved Staff Comments.Not applicable.ITEM 2. Properties.Our executive offices are located in Clearwater, Florida. As of January 31, 2016 , we operated a total of 22 logistics centers to provide our customers timely delivery ofproducts. There are eleven logistics centers in each of the two regions in which we operate, the Americas and Europe.As of January 31, 2016 , we leased or owned approximately 7.1 million square feet of space. The majority of our office facilities and logistics centers are leased. Our facilitiesare well maintained and are adequate to conduct our current business. We do not anticipate significant difficulty in renewing our leases as they expire or securingreplacement facilities.ITEM 3. Legal Proceedings.Prior to fiscal 2004, one of the Company’s subsidiaries, located in Spain, was audited in relation to various value added tax (“VAT”) matters. As a result of those audits, theSpanish subsidiary received notices of assessment from the Regional Inspection Unit of Spain’s taxing authority that allege the subsidiary did not properly collect and remitVAT. The Spanish subsidiary appealed these assessments to the Madrid Central Economic Administrative Courts beginning in March 2010. Following the administrativecourt proceedings the matter was appealed to the Spanish National Appellate Court. During 2013, the Spanish National Appellate Court issued an opinion upholding theassessment for several of the assessed years. During fiscal 2015, the Madrid Central Economic Administrative Court issued a decision revoking the penalties for certain ofthe assessed years. As a result of that decision, during the fiscal year ended January 31, 2015 the Company decreased its accrual for costs associated with this matter by$6.2 million, which is recorded in "value added tax assessments" in the Consolidated Statement of Income. During fiscal 2016, the Spanish Supreme Court issued finaldecisions which barred the assessments for several of the assessed years. As a result of these decisions, during the fiscal year ended January 31, 2016 the Companydecreased its accrual for costs associated with this matter by $25.4 million, including $16.4 million related to an accrual for assessments and penalties recorded in “valueadded tax assessments” and $9.0 million related to accrued interest recorded in “interest expense” in the Consolidated Statement of Income. Additionally, as a result ofthese decisions, the Company paid certain assessed amounts of $12.3 million during fiscal 2016. The Company believes that the Spanish subsidiary's defense to theremaining assessments has solid legal grounds and is continuing to vigorously defend its position by appealing to the Spanish National Appellate Court and taking otheractions to object to the assessments. The Company estimates the total exposure for these assessments, including various penalties and interest, was approximately $4.6million and $43.7 million at January 31, 2016 and 2015 , respectively, which is included in "accrued expenses and other liabilities" in the Consolidated Balance Sheet.In December 2010, in a non-unanimous decision, a Brazilian appellate court overturned a 2003 trial court which had previously ruled in favor of the Company’s Braziliansubsidiary related to the imposition of certain taxes on payments abroad related to the licensing of commercial software products, commonly referred to as “CIDE tax”. TheCompany estimates the total exposure related to CIDE tax, including interest, was approximately $17.3 million and $24.6 million at January 31, 2016 and 2015 ,respectively. The Brazilian subsidiary has appealed the unfavorable ruling to the Supreme Court and Superior Court, Brazil's two highest appellate courts. Based on the legalopinion of outside counsel, the Company believes that the chances of success on appeal of this matter are favorable and the Brazilian subsidiary intends to vigorouslydefend its position that the CIDE tax is not due. However, due to the lack of predictability of the Brazilian court system, the Company has concluded that it is reasonablypossible that the Brazilian subsidiary may incur a loss up to the total exposure described above. The Company believes the resolution of this litigation will not be material tothe Company’s consolidated net assets or liquidity.12 Table of ContentsIn addition to the CIDE tax matter discussed above, the Company’s Brazilian subsidiary has been undergoing several examinations of non-income related taxes. Given thelack of predictability of the Brazilian tax system, the Company believes that it is reasonably possible that a loss may have been incurred. However, due to the complex natureof the Brazilian tax system and the absence of communication from the local tax authorities regarding these examinations, the Company is currently unable to determine thelikelihood of these examinations resulting in assessments or to estimate the amount of loss, if any, that may be reasonably possible if such assessment were to be made.The SEC has requested information from the Company with respect to the restatement of certain of our consolidated financial statements and other financial informationfrom fiscal 2009 to 2013. The Company is cooperating with the SEC’s request for information.The Company is subject to various other legal proceedings and claims arising in the ordinary course of business. The Company’s management does not expect that theoutcome in any of these other legal proceedings, individually or collectively, will have a material adverse effect on the Company’s financial condition, results of operations, orcash flows.ITEM 4. Mine Safety Disclosures.Not applicable. 13 Table of ContentsPART IIITEM 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.Our common stock is traded on the NASDAQ Stock Market, Inc. (“NASDAQ”) under the symbol “TECD.” We have not paid cash dividends since fiscal 1983 and the Board ofDirectors has no current plans to institute a cash dividend payment policy in the foreseeable future. The table below presents the quarterly high and low market prices for ourcommon stock as reported by the NASDAQ. As of March 9, 2016 , there were 223 holders of record and we believe that there were 16,566 beneficial holders. MARKET PRICE14 Table of ContentsSTOCK PERFORMANCE CHARTThe five-year stock performance chart below assumes an initial investment of $100 on February 1, 2011 and compares the cumulative total return for Tech Data, theNASDAQ Stock Market (U.S.) Index, and the Standard Industrial Classification, or SIC, Code 5045 – Computer and Peripheral Equipment and Software. The comparisons inthe table are provided in accordance with SEC requirements and are not intended to forecast or be indicative of possible future performance of our common stock. Comparison of Cumulative Total ReturnAssumes Initial Investment of $100 on February 1, 2011Among Tech Data Corporation,NASDAQ Stock Market (U.S.) Index and SIC Code 5045
2011
2012
2013
2014
2015
2016Tech Data Corporation100
111
109
115
122
133NASDAQ Stock Market (U.S.) Index100
107
122
161
184
188SIC Code 5045 – Computer and Peripheral Equipment and Software100
103
101
140
139
151 Securities Authorized for Issuance under Equity Compensation Plans Information regarding the Securities Authorized for Issuance under Equity Compensation Plans can be found under Item 12 of this Report.Unregistered Sales of Equity SecuritiesNone.15 Table of ContentsIssuer Purchases of Equity SecuritiesThere were no shares repurchased by the Company during the quarter ended January 31, 2016. During the first quarter of fiscal 2016, the Company completed the $100.0million share repurchase program approved by the Board of Directors in December 2014. In June 2015, the Company's Board of Directors authorized an additional sharerepurchase program of up to $100.0 million of the Company's common stock. The Company completed this share repurchase program in October 2015. During fiscal 2016,the Company repurchased 2,497,029 shares at an average price of $58.87 per share, for a total cost, including expenses, of approximately $147.0 million under theseprograms. Cumulatively since fiscal 2006, the Company has repurchased approximately 30 million shares at an average price of $43.25 per share, for a total cost, includingexpenses, of approximately $1.3 billion.SHARE REPURCHASES
16 Table of ContentsITEM 6. Selected Financial Data.The following table sets forth certain selected consolidated financial data. This information should be read in conjunction with Management’s Discussion and Analysis ofFinancial Condition and Results of Operations and our consolidated financial statements and notes thereto appearing elsewhere in this Annual Report.FIVE-YEAR FINANCIAL SUMMARYYear ended January 31:2016
2015
2014
2013
2012(in thousands, except per share data)
Income statement data:
Net sales$26,379,783
$27,670,632
$26,821,904
$25,358,329
$25,647,313Gross profit1,286,661
1,393,954
1,362,346
1,303,054
1,377,441Operating income (1) (2) (3) (4) (5)401,428
267,635
227,513
263,720
304,546Consolidated net income (2) (6) (7) (8) (9)265,736
175,172
179,932
183,040
201,202Net income attributable to noncontrolling interest (10)—
—
—
(6,785)
(10,452)Net income attributable to shareholders of TechData Corporation$265,736
$175,172
$179,932
$176,255
$190,750Net income per share attributable to shareholders ofTech Data Corporation—basic$7.40
$4.59
$4.73
$4.53
$4.36Net income per share attributable to shareholders ofTech Data Corporation—diluted$7.36
$4.57
$4.71
$4.50
$4.30Dividends per common share—
—
—
—
—Balance sheet data:
Working capital (11)$1,889,415
$1,834,997
$1,851,447
$1,700,485
$1,720,564Total assets6,358,288
6,136,725
7,167,576
6,828,291
5,796,268Revolving credit loans and current maturities of long-term debt, net18,063
13,303
43,481
167,522
48,490Long-term debt, less current maturities348,608
351,576
352,031
351,789
57,253Equity attributable to shareholders of Tech DataCorporation2,005,755
1,960,143
2,098,611
1,918,369
1,953,804(1)During fiscal 2016, 2015 and 2014, the Company recorded a gain of $98.4 million, $5.1 million and $35.5 million, respectively, associated with legal settlements, net of attorney feesand expenses, with certain manufacturers of LCD flat panel and cathode ray tube displays (see further discussion in Note 1 of Notes to Consolidated Financial Statements).(2)During fiscal 2016, the Company recorded a net benefit of $17.8 million for VAT matters related to its European subsidiaries, including a net benefit in operating expenses of $8.8million in relation to assessments and penalties and a $9.0 million benefit for the reversal of associated interest expense. During fiscal 2015, the Company recorded a decrease in itsaccrual for VAT matters related to its Spanish subsidiary of $6.2 million (see further discussion in Note 13 of Notes to Consolidated Financial Statements).(3)During fiscal 2015 and 2014, the Company recorded restatement and remediation related expenses of $22.0 million and $53.8 million, respectively (see further discussion in Note 1 ofNotes to Consolidated Financial Statements).(4)During fiscal 2013, the Company increased its accrual for various VAT matters related to its Spanish subsidiary by $41.0 million, including operating expenses of $29.5 million inrelation to the assessment and penalties and $11.5 million for associated interest expense.(5)During fiscal 2012, the Company recorded a $28.3 million loss on disposal of subsidiaries related to the closure of certain of the Company’s operations in Latin America.(6)During fiscal 2015, the Company recorded income tax benefits of $19.2 million primarily related to the reversal of deferred tax valuation allowances in certain jurisdictions in Europe,partially offset by income tax expenses of $5.6 million related to undistributed earnings on assets held for sale in certain Latin American jurisdictions (see further discussion in Note 8 ofNotes to Consolidated Financial Statements).(7)During fiscal 2014, the Company recorded income tax benefits of $45.3 million for the reversal of deferred tax valuation allowances primarily related to certain jurisdictions in Europe(see further discussion in Note 8 of Notes to Consolidated Financial Statements).(8)During fiscal 2013, the Company recorded a $25.1 million reversal of deferred tax valuation allowances related to a specific jurisdiction in Europe.(9)During fiscal 2012, the Company recorded a $13.6 million reversal of deferred tax valuation allowances which was substantially offset by the write-off of deferred income tax assetsassociated with the closure of Brazil’s commercial operations.(10)During fiscal 2013, the Company completed the acquisition of Brightstar Corp.’s fifty percent ownership interest in a consolidated mobility distribution joint venture between Tech Dataand Brightstar Corp.(11)Working capital represents total current assets less total current liabilities in the Consolidated Balance Sheet.17 Table of ContentsITEM 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.FORWARD-LOOKING STATEMENTSThis Annual Report on Form 10-K, including this Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”), contains forward-looking statements, as described in the “safe harbor” provision of the Private Securities Litigation Reform Act of 1995. These statements involve a number of risks anduncertainties and actual results could differ materially from those projected. These forward-looking statements regarding future events and the future results of Tech DataCorporation (“Tech Data”, “we”, “our”, “us” or the “Company”) are based on current expectations, estimates, forecasts, and projections about the industries in which weoperate and the beliefs and assumptions of our management. Words such as “expects,” “anticipates,” “targets,” “goals,” “projects,” “intends,” “plans,” “believes,” “seeks,”“estimates,” variations of such words, and similar expressions are intended to identify such forward-looking statements. In addition, any statements that refer to projections ofour future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances, are forward-lookingstatements. Readers are cautioned that these forward-looking statements are only predictions and are subject to risks, uncertainties, and assumptions. Therefore, actualresults may differ materially and adversely from those expressed in any forward-looking statements. Readers are referred to the cautionary statements and important factorsdiscussed in Item 1A, "Risk Factors" in this Annual Report on Form 10-K for the year ended January 31, 2016 for further information. We undertake no obligation to revise orupdate publicly any forward-looking statements for any reason.OVERVIEWTech Data is one of the world’s largest wholesale distributors of technology products. We serve as an indispensable link in the technology supply chain by bringing productsfrom the world’s leading technology vendors to market, as well as providing our customers with advanced logistics capabilities and value-added services. Our customersinclude value-added resellers, direct marketers, retailers and corporate resellers who support the diverse technology needs of end users. We manage our business in twogeographic segments: the Americas and Europe.We believe our strategy of execution, diversification and innovation differentiates us in the markets we serve and we believe we have opportunities for further gains in marketshare as our vendors bring more of their products through distribution and our customer satisfaction ratings continue to improve. We continually evaluate the current andpotential profitability and return on our investments in all geographies and consider changes in current and future investments based on risks, opportunities and current andanticipated market conditions. In connection with these evaluations, we may incur additional costs to the extent we decide to increase or decrease our investments in certaingeographies. For example, in March 2015, we entered into an agreement for the sale of our business operations in Chile and Peru and also committed to a plan to exit ourbusiness operations in Uruguay as we did not believe these operations would generate consistently acceptable returns on invested capital. We will also continue to evaluatetargeted strategic investments across our operations and new business opportunities and invest in those markets and product segments we believe provide us with thegreatest opportunities for profitable growth. One example of these investments is our acquisition in June 2015 of Signature Technology Group, Inc., a leading provider ofdata center and professional services throughout North America. Finally, from a balance sheet perspective, we require working capital primarily to finance accountsreceivable and inventory. We have historically relied upon debt, trade credit from our vendors, and accounts receivable financing programs for our working capital needs. AtJanuary 31, 2016 we had a debt to total capital ratio (calculated as total debt divided by the aggregate of total debt and total equity) of 15% .CRITICAL ACCOUNTING POLICIES AND ESTIMATESThe information included within MD&A is based upon our consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of thesefinancial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosures. Onan ongoing basis, we evaluate these estimates, including those related to accounts receivable, inventory, vendor incentives, goodwill and intangible assets, deferred taxes,and contingencies. Our estimates and judgments are based on currently available information, historical results, and other assumptions we believe are reasonable. Actualresults could differ materially from these estimates. We believe the critical accounting policies discussed below affect the more significant judgments and estimates used inthe preparation of our consolidated financial statements.Accounts
ReceivableWe maintain allowances for doubtful accounts receivable and sales returns for estimated losses resulting from the inability of our customers to make required payments andestimated product returns by customers for exchange or credit. In estimating the required allowance, we take into consideration the overall quality and aging of thereceivable portfolio, the existence of credit insurance and specifically identified customer risks. Also influencing our estimates are the following: (i) the large number ofcustomers and their dispersion across wide geographic areas; (ii) the fact that no single customer accounts for more than 10% of our net sales; (iii) the value and adequacyof collateral received from customers, if any; (iv) our historical write-off and sales returns experience; and (v) the current economic environment. If actual customerperformance were to deteriorate to an extent not expected by us, additional allowances may be required which could have an adverse effect on our consolidated financialresults. Conversely, if actual customer performance were to improve to an extent not expected by us, a reduction in allowances may be required which could have afavorable effect on our consolidated financial results.18 Table of ContentsInventoryWe value our inventory at the lower of its cost or market value, cost being determined on a moving average cost basis, which approximates the first-in, first-out method. Wewrite down our inventory for estimated obsolescence equal to the difference between the cost of inventory and the estimated market value based upon an aging analysis ofthe inventory on hand, specifically known inventory-related risks (such as technological obsolescence and the nature of vendor terms surrounding price protection andproduct returns), foreign currency fluctuations for foreign-sourced products, and assumptions about future demand. Market conditions or changes in terms and conditions byour vendors that are less favorable than those projected by management may require additional inventory write-downs, which could have an adverse effect on ourconsolidated financial results.Vendor
IncentivesWe receive incentives from vendors related to cooperative advertising allowances, infrastructure funding, volume rebates and other incentive agreements. These incentivesare generally under quarterly, semi-annual or annual agreements with the vendors; however, some of these incentives are negotiated on an ad-hoc basis to support specificprograms mutually developed with the vendor. Unrestricted volume rebates and early payment discounts received from vendors are recorded when they are earned as areduction of inventory and as a reduction of cost of products sold as the related inventory is sold. Vendor incentives for specifically identified cooperative advertisingprograms and infrastructure funding are recorded when earned as adjustments to product costs or selling, general and administrative expenses, depending on the nature ofthe programs. We also provide reserves for receivables on vendor programs for estimated losses resulting from vendors’ inability to pay or rejections by vendors of claims. Should amountsrecorded as outstanding receivables from vendors be deemed uncollectible, additional allowances may be required which could have an adverse effect on our consolidatedfinancial results. Conversely, if actual vendor performance were to improve to an extent not expected by us, a reduction in allowances may be required which could have afavorable effect on our consolidated financial results.Goodwill,
Intangible
Assets
and
Other
Long-Lived
AssetsWe perform an annual review for the potential impairment of the carrying value of goodwill, or more frequently if current events and circumstances indicate a possibleimpairment. For purposes of our goodwill analysis, we have two reporting units, which are also our operating segments. We evaluate the appropriateness of performing aqualitative assessment, on a reporting unit level, based on current circumstances. If the results of the qualitative assessment indicate that it is more likely than not that thefair value of a reporting unit is greater than its carrying amount, the two-step impairment test will not be performed. The factors that were considered in the qualitativeanalysis included macroeconomic conditions, industry and market considerations, cost factors such as increases in product cost, labor, or other costs that would have anegative effect on earnings and cash flows; and other relevant entity-specific events and information.If we conclude that it is more likely than not that the fair value of a reporting unit is less than its carrying amount, then the two-step impairment test is performed. The firststep of the impairment test compares the fair value of our reporting units with their carrying amounts, including goodwill. The fair values of the reporting units are estimatedusing market and discounted cash flow approaches. The assumptions used in the market approach are based on the value of a business through an analysis of multiples ofguideline companies and recent sales or offerings of a comparable entity. The assumptions used in the discounted cash flow approach are based on historical andforecasted revenue, operating costs, future economic conditions, and other relevant factors. If the carrying amount exceeds fair value, then the second step of theimpairment test is performed to measure the amount of any impairment loss. The amount of an impairment loss is recognized as the excess of the carrying value of goodwillover its implied fair value and is charged to expense in the period identified. We perform our annual review for goodwill impairment as of January 31st of each fiscal year. Ifactual results are substantially lower than the projections used in our valuation methodology, or if market discount rates or our market capitalization substantially increase ordecrease, respectively, our future valuations could be adversely affected, potentially resulting in future impairment charges.We also examine the carrying value of our intangible assets with finite lives, which includes capitalized software and development costs, purchased intangibles, and otherlong-lived assets as current events and circumstances warrant determining whether there are any impairment losses. Factors that may cause an intangible asset or otherlong-lived asset impairment include negative industry or economic trends and significant under-performance relative to historical or projected future operating results.Income
TaxesWe record valuation allowances to reduce our deferred tax assets to the amount expected to be realized. We consider all positive and negative evidence available indetermining the potential of realizing deferred tax assets, including the scheduled reversal of temporary differences, recent cumulative losses, recent and projected futuretaxable income, and prudent and feasible tax planning strategies. In making this determination, we place greater emphasis on recent cumulative losses and recent taxableincome due to the inherent lack of subjectivity associated with these factors. If we determine it is more likely than not that we will be able to use a deferred tax asset in thefuture in excess of its net carrying value, an adjustment to the deferred tax asset valuation allowance would be made to reduce income tax expense, thereby increasing netincome in the period such determination is made. Should we determine that we are not likely to realize all or part of our net deferred tax assets in the future, an adjustment tothe deferred tax asset valuation allowance would be made to increase income tax expense, thereby reducing net income in the period such determination is made.19 Table of ContentsContingenciesWe accrue for contingent obligations, including estimated legal costs, when the obligation is probable and the amount is reasonably estimable. As facts concerningcontingencies become known, we reassess our position and make appropriate adjustments to the financial statements. Estimates that are particularly sensitive to futurechanges include those related to tax, legal, and other regulatory matters such as imports and exports, the imposition of international governmental controls, changes in theinterpretation and enforcement of international laws (in particular related to items such as duty and taxation), and the impact of local economic conditions and practices,which are all subject to change as events evolve and as additional information becomes available during the administrative and litigation process.RECENT ACCOUNTING PRONOUNCEMENTSSee Note 1 of Notes to Consolidated Financial Statements for the discussion on recent accounting pronouncements.RESULTS OF OPERATIONSThe following table sets forth our Consolidated Statement of Income as a percentage of net sales. Year ended January 31:2016
2015
2014Net sales100.00%
100.00%
100.00%Cost of products sold95.12
94.96
94.92
Gross profit4.88
5.04
5.08
Operating expenses:
Selling, general and administrative expenses3.76
4.03
4.16
LCD settlements, net(0.37)
(0.02)
(0.13)
Value added tax assessments(0.03)
(0.02)
0.00
Restatement and remediation related expenses0.00
0.08
0.20
Loss on disposal of subsidiaries0.00
0.00
0.00
3.36
4.07
4.23
Operating income1.52
0.97
0.85
Interest expense0.05
0.10
0.10
Other expense (income), net0.02
0.01
(0.01)
Income before income taxes1.45
0.86
0.76
Provision for income taxes0.44
0.23
0.09
Net income1.01%
0.63%
0.67%In addition to disclosing financial results that are determined in accordance with generally accepted accounting principles in the United States (“GAAP”), the Company alsodiscloses certain non-GAAP financial information, including:•Net sales, gross profit, and selling, general and administrative expenses (“SG&A”) as adjusted for the impact of changes in foreign currencies (referred to as“impact of changes in foreign currencies” or “constant currency”) and the impact of the exit of business operations in Chile, Peru, and Uruguay (referred to as"impact of exited operations") which is reflected in our results of operations by removing the impact from the periods presented;•Non-GAAP operating income, which is defined as operating income as adjusted to exclude LCD settlements, net, value added tax assessments, restatement andremediation related expenses, loss on disposal of subsidiaries and acquisition-related intangible asset amortization;•Non-GAAP net income, which is defined as net income as adjusted to exclude the tax effected impact of LCD settlements, net, value added tax assessments andrelated interest expense, restatement and remediation related expenses, loss on disposal of subsidiaries, acquisition-related intangible asset amortization and thereversal of deferred tax valuation allowances and income taxes on undistributed earnings of assets held for sale; and•Non-GAAP net income per share - diluted, which is defined as net income per share - diluted as adjusted for the per share, tax effected impact of the itemsdescribed above.Management believes that providing this additional information is useful to investors because it provides a meaningful comparison of our performance between periods.20 Table of ContentsNET SALESThe following tables summarize our net sales and change in net sales by geographic region for the fiscal years ended January 31, 2016, 2015 and 2014 (in billions):Year ended January 31:
2016
2015
Percent Change(in millions)
Consolidated net sales, as reported
$26,380
$27,671
(4.7)%Impact of changes in foreign currencies
2,781
—
Impact of exited operations
(21)
(317)
Consolidated net sales, as adjusted
$29,140
$27,354
6.5%
Americas net sales, as reported
$10,357
$10,406
(0.5)%Impact of changes in foreign currencies
173
—
Impact of exited operations
(21)
(317)
Americas net sales, as adjusted
$10,509
$10,089
4.2%
Europe net sales, as reported
$16,023
$17,265
(7.2)%Impact of changes in foreign currencies
2,608
—
Europe net sales, as adjusted
$18,631
$17,265
7.9%2016 - 2015 NET SALES COMMENTARYAMERICASEUROPEThe increase in net sales in the Americas, as adjusted, of $420 million is primarilydue to growth in data center and consumer electronics product categories.The increase in net sales in Europe, as adjusted, of approximately $1.4 billion isprimarily due to growth in broadline, mobility and data center product categories.The majority of our trade regions posted year-over-year sales growth, most notablyGermany, Iberia and Italy.21 Table of ContentsYear ended January 31:
2015
2014
Percent Change(in millions)
Consolidated net sales, as reported
$27,671
$26,822
3.2%Impact of changes in foreign currencies
342
—
Consolidated net sales, as adjusted
$28,013
$26,822
4.4%
Americas net sales, as reported
$10,406
$10,189
2.1%Impact of changes in foreign currencies
85
—
Americas net sales, as adjusted
$10,491
$10,189
3.0%
Europe net sales, as reported
$17,265
$16,633
3.8%Impact of changes in foreign currencies
257
—
Europe net sales, as adjusted
$17,522
$16,633
5.3%2015 - 2014 NET SALES COMMENTARYAMERICASEUROPEThe increase in net sales in the Americas, as adjusted, of $302 million isprimarily attributable to stronger demand for broadline products, particularlypersonal computer systems.The increase in net sales in Europe, as adjusted, of $889 million is primarilyattributable to stronger demand for broadline products, particularly personalcomputer systems, and mobility products.GROSS PROFITThe following tables provide an analysis of our gross profit and gross profit as a percentage of net sales for the fiscal years ended January 31, 2016, 2015 and 2014 (inmillions):Year ended January 31:
2016
2015
Percent Change(in millions)
Gross profit, as reported
$1,287
$1,394
(7.7)%Impact of changes in foreign currencies
143
—
Gross profit, as adjusted
$1,430
$1,394
2.6%The increase in gross profit, as adjusted, of $36 million is primarily due to increased sales, as adjusted for the impact of changes in foreign currencies and exited operations,in both regions. The decline in our year-over-year gross profit as a percentage of net sales is primarily attributable to changes in vendor and product mix.22 Table of ContentsYear ended January 31:
2015
2014
Percent Change(in millions)
Gross profit, as reported
$1,394
$1,362
2.3%Impact of changes in foreign currencies
20
—
Gross profit, as adjusted
$1,414
$1,362
3.8%The increase in gross profit, as adjusted, of $52 million is primarily due to increased sales in both regions, as adjusted for the impact of changes in foreign currencies. Theslight decline in our year-over-year gross profit as a percentage of net sales is primarily attributable to changes in product and customer mix.OPERATING EXPENSESSELLING GENERAL AND ADMINISTRATIVE EXPENSESThe following tables provide an analysis of our selling, general and administrative expenses:Year ended January 31:
2016
2015
Percent Change(in millions)
SG&A, as reported
$991
$1,114
(11.0)%Impact of changes in foreign currencies
108
—
SG&A, as adjusted
$1,099
$1,114
(1.3)%
SG&A as a percentage of net sales, as reported
3.76%
4.03%
(27) bpsThe decrease in SG&A as a percentage of net sales compared to the prior year is primarily due to greater operating leverage as we generated sales growth while keepingour costs relatively flat in local currency.Year ended January 31:
2015
2014
Percent Change(in millions)
SG&A, as reported
$1,114
$1,117
(0.2)%Impact of changes in foreign currencies
11
—
SG&A, as adjusted
$1,125
$1,117
0.7%
SG&A as a percentage of net sales, as reported
4.03%
4.16%
(13) bpsThe decrease in SG&A as a percentage of net sales compared to the prior year is primarily due to greater operating leverage as we generated sales growth while keepingour costs relatively flat in local currency.LCD SETTLEMENTS, NETThe Company has been a claimant in proceedings seeking damages from certain manufacturers of LCD flat panel and cathode ray tube displays. During fiscal 2016, 2015and 2014 , the Company reached settlement agreements with certain manufacturers in the amount of $98.4 million , $5.1 million and $35.5 million, respectively, net ofattorney fees and expenses.VALUE ADDED TAX ASSESSMENTSPrior to fiscal 2004, one of the Company’s subsidiaries, located in Spain, was audited in relation to various value added tax (“VAT”) matters. As a result of those audits, theSpanish subsidiary received notices of assessment that allege the subsidiary did not properly collect and remit VAT. During fiscal 2015, an administrative court issued adecision revoking the penalties for certain of the assessed years. As a result of that decision, during the year ended January 31, 2015 the Company decreased its accrual forcosts associated with this matter by $6.2 million.During fiscal 2016, the Spanish Supreme Court issued final decisions barring the assessments for several of the assessed years. As a result of these decisions, during theyear ended January 31, 2016, the Company decreased its accrual for the assessments and penalties associated with this matter by $16.4 million (see Note 13 of Notes toConsolidated Financial Statements for further discussion).23 Table of ContentsIn fiscal 2016, the Company determined that it had additional VAT liabilities due in one of its European subsidiaries. As a result, the Company recorded a charge of $7.6million during the year ended January 31, 2016 for VAT and associated costs.RESTATEMENT AND REMEDIATION RELATED EXPENSESRestatement and remediation related expenses primarily include legal, accounting and third party consulting fees associated with (i) the restatement of certain of theCompany's consolidated financial statements and other financial information from fiscal 2009 to fiscal 2013, (ii) the Audit Committee investigation to review the Company'saccounting practices, (iii) incremental external audit and supplemental procedures by the Company in connection with the preparation of the Company's financial statements,and (iv) other incremental legal, accounting and consulting fees incurred as a result of the Company's restatement related investigation, regulatory requests for informationor in connection with the Company's remediation of material weaknesses and other control deficiencies identified during the restatement. During fiscal 2016, 2015 and 2014,the Company incurred restatement and remediation related expenses of approximately $0.8 million , $22.0 million and $53.8 million , respectively. The Company hasremediated all material weaknesses identified during the restatement.LOSS ON DISPOSAL OF SUBSIDIARIESDuring the fourth quarter of fiscal 2015, we committed to a plan to sell our business operations in Chile and Peru. The sale was completed during March 2015 at an amountapproximating net book value. In March 2015, we also committed to a plan to exit our business operations in Uruguay. During fiscal 2016 and 2015 , the Company incurred aloss of $0.7 million and $1.3 million , respectively, for charges related to the plan to exit its business operations in Uruguay and the loss on the sale of its business operationsin Chile and Peru. The Company has completed the sale of its operations in Chile and Peru as well as the exit of its operations in Uruguay.OPERATING INCOMEThe following tables provide an analysis of GAAP operating income ("GAAP OI") and non-GAAP operating income ("non-GAAP OI") on a consolidated and regional basis aswell as a reconciliation of GAAP operating income to non-GAAP operating income on a consolidated and regional basis for the fiscal years ended January 31, 2016, 2015and 2014 (in millions):
2016-2015 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $38 million, GAAP operating income increased by approximately $171 million, or64%, while non-GAAP operating income increased by approximately $50 million, or 16%.2015-2014 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $10 million, GAAP operating income increased by approximately $50 million, or 22%while non-GAAP operating income increased by approximately $43 million, or 16%.24 Table of ContentsCONSOLIDATED GAAP TO NON-GAAP RECONCILIATION OF OPERATING INCOMEYear ended January 31:2016
2015
2014(in millions)
Operating income$401.4
$267.6
$227.5LCD settlements, net(98.4)
(5.1)
(35.5)Value added tax assessments(8.8)
(6.2)
—Restatement and remediation related expenses0.8
22.1
53.8Loss on disposal of subsidiaries0.7
1.3
—Acquisition-related intangible assets amortization expense23.4
28.3
29.1Non-GAAP operating income$319.1
$308.0
$274.9We do not consider stock-based compensation expenses in assessing the performance of our operating segments, and therefore the Company reports stock-basedcompensation expenses separately. The following table summarizes our operating income by geographic region.OPERATING INCOME BY REGIONYear ended January 31:2016
2015
2014(in millions)
Americas$235.6
$145.1
$156.1 Europe180.7
136.2
80.2 Stock-based compensation expense(14.9)
(13.7)
(8.8) Total$401.4
$267.6
$227.5
2016-2015 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $3 million, GAAP operating income in the Americas increased by approximately $93million, or 64% and non-GAAP operating income in the Americas decreased approximately $3 million, or 2%.2015-2014 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $2 million, GAAP operating income in the Americas decreased by approximately $9million, or 6% and non-GAAP operating income in the Americas increased approximately $14 million, or 10%.25 Table of ContentsAMERICAS GAAP TO NON-GAAP RECONCILIATION OF OPERATING INCOMEYear ended January 31:2016
2015
2014(in millions)
Operating income - Americas$235.6
$145.1
$156.1LCD settlements, net(98.4)
(5.1)
(35.5)Restatement and remediation related expenses0.2
4.0
13.2Loss on disposal of subsidiaries0.7
1.3
—Acquisition-related intangible assets amortization expense1.8
0.7
0.2Non-GAAP operating income - Americas$139.9
$146.0
$134.0
2016-2015 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $35 million, Europe's GAAP operating income increased by approximately $79million, or 58% and Europe's non-GAAP operating income increased approximately $54 million, or 31%.2015-2014 COMMENTARY•Excluding the unfavorable impact of changes in foreign currencies of approximately $8 million, Europe's GAAP operating income increased by approximately $64million, or 80% and Europe's non-GAAP operating income increased approximately $34 million, or 22%.EUROPE GAAP TO NON-GAAP RECONCILIATION OF OPERATING INCOMEYear ended January 31:2016
2015
2014(in millions)
Operating income - Europe$180.7
$136.2
$80.2Value added tax assessments(8.8)
(6.2)
—Restatement and remediation related expenses0.6
18.1
40.6Acquisition-related intangible assets amortization expense21.6
27.5
29.0Non-GAAP operating income - Europe$194.1
$175.6
$149.8INTEREST EXPENSE
Percent change:Year ended January 31:
2016
2015
2014
2016 to 2015
2015 to 2014(in millions)
Interest expense
$14.5
$26.5
$26.6
(45.4)%
(0.2)%Percentage of net sales
0.05%
0.10%
0.10%
The decrease in interest expense for fiscal 2016 compared to fiscal 2015 is primarily attributable to a $9.0 million benefit recorded in fiscal 2016 for the reversal of interestexpense previously accrued related to the Spanish Supreme Court decision in connection with the26 Table of ContentsVAT assessments in one of the Company's subsidiaries in Spain discussed above (see Note 13 of Notes to Consolidated Financial Statements for further discussion) andlower average borrowings under our financing facilities.OTHER EXPENSE (INCOME), NET
Percent change:Year ended January 31:
2016
2015
2014
2016 to 2015
2015 to 2014(in millions)
Other expense (income), net
$4.5
$1.9
$(3.4)
137.6%
(155.9)%Percentage of net sales
0.02%
0.01%
(0.01)%
Other expense (income), net, consists primarily of gains and losses on investments in life insurance policies to fund the Company's nonqualified deferred compensation plan,interest income, discounts on the sale of accounts receivable and net foreign currency exchange gains and losses on certain financing transactions and the relatedderivative instruments used to hedge such financing transactions. The change in other expense (income), net, during fiscal 2016 compared to fiscal 2015 is primarilyattributable to higher losses on investments in life insurance policies of $4.6 million partially offset by an increase in net foreign currency exchange gains on certain financingtransactions.The change in other expense (income), net during fiscal 2015 compared to fiscal 2014 is primarily attributable to a gain of $2.7 million in fiscal 2014 related to the acquisitionof the remaining fifty percent ownership interest in TDMobility from Brightstar Corp., our joint venture partner, an increase in net foreign currency exchange losses on certainfinancing transactions and higher discounts on the sale of accounts receivable.27 Table of ContentsPROVISION FOR INCOME TAXES
2016-2015 COMMENTARYThe increase in the effective tax rate of approximately 4 percentage points in fiscal 2016 as compared to fiscal 2015 is primarily due to the impact of the following:•In fiscal 2015, we recorded income tax benefits of $19.2 million for the reversal of valuation allowances primarily related to specific jurisdictions in Europe, whichhad been recorded in prior fiscal years. During fiscal 2015, we also recorded income tax expenses of $5.6 million related to undistributed earnings on assets heldfor sale in certain Latin American jurisdictions.•The effective tax rates for both fiscal 2016 and fiscal 2015 are impacted by the relative mix of earnings and losses within the taxing jurisdictions in which weoperate.The increase in the absolute dollar amount of the provision for income taxes in fiscal 2016 as compared to fiscal 2015 is primarily due to an increase in taxable earningsduring fiscal 2016, the reversal of certain valuation allowances in fiscal 2015, and the relative mix of earnings and losses within the taxing jurisdictions in which we operate.2015-2014 COMMENTARYThe increase in the effective tax rate of approximately 15 percentage points in fiscal 2015 as compared to fiscal 2014 is primarily due to the impact of the following:•In fiscal 2014, we recorded income tax benefits of $45.3 million for the reversal of valuation allowances primarily related to specific jurisdictions in Europe, whichhad been recorded in prior fiscal years.•In fiscal 2015, we recorded income tax benefits of $19.2 million for the reversal of valuation allowances primarily related to specific jurisdictions in Europe, whichhad been recorded in prior fiscal years. During fiscal 2015, we also recorded income tax expenses of $5.6 million related to undistributed earnings on assets heldfor sale in certain Latin American jurisdictions.•The effective tax rates for both fiscal 2015 and fiscal 2014 are impacted by the relative mix of earnings and losses within the taxing jurisdictions in which weoperate.The increase in the absolute dollar amount of the provision for income taxes in fiscal 2015 as compared to fiscal 2014 is primarily due to an increase in taxable earningsduring fiscal 2015, the year-over-year change in the reversal of certain valuation allowances and adjustments to income tax reserves, and the relative mix of earnings andlosses within the taxing jurisdictions in which we operate.28 Table of ContentsNET INCOME AND NET INCOME PER SHARE - DILUTEDThe following tables provide an analysis of GAAP net income and net income per share-diluted and non-GAAP net income and net income per share-diluted as well as areconciliation of results recorded in accordance with GAAP and non-GAAP financial measures for the fiscal years ended January 31, 2016, 2015 and 2014 ($ in millions,except per share data):
GAAP TO NON-GAAP RECONCILIATION OF NET INCOME (1)
Year ended January 31:2016
2015
2014(in millions)
Net income$265.7
$175.2
$179.9LCD settlements, net(63.2)
(3.2)
(22.0)Value added tax assessments and related interest expense(12.7)
(6.2)
—Restatement and remediation related expenses0.6
16.5
39.1Loss on disposal of subsidiaries0.6
1.3
—Reversal of deferred tax valuation allowances and income taxes on undistributed earnings of assets heldfor sale—
(13.6)
(45.3)Acquisition-related intangible assets amortization expense17.2
20.8
21.3Non-GAAP net income$208.2
$190.8
$173.0(1)Amounts presented net of tax.GAAP TO NON-GAAP RECONCILIATION OF NET INCOME PER SHARE-DILUTED (1)Year ended January 31:2016
2015
2014Net income per share-diluted$7.36
$4.57
$4.71LCD settlements, net(1.75)
(0.08)
(0.58)Value added tax assessments and related interest expense(0.35)
(0.16)
—Restatement and remediation related expenses0.02
0.43
1.02Loss on disposal of subsidiaries0.02
0.03
—Reversal of deferred tax valuation allowances and income taxes on undistributed earnings of assetsheld for sale—
(0.36)
(1.19)Acquisition-related intangible assets amortization expense0.47
0.54
0.56Non-GAAP net income per share-diluted$5.77
$4.97
$4.52(1)Amounts presented net of tax.29 Table of ContentsIMPACT OF INFLATIONDuring the fiscal years ended January 31, 2016, 2015 and 2014 , we do not believe that inflation had a material impact on our consolidated results of operations or on ourfinancial position.SEASONALITYOur quarterly operating results have fluctuated significantly in the past and will likely continue to do so in the future as a result of currency fluctuations and seasonalvariations in the demand for the products and services we sell. Narrow operating margins may magnify the impact of these factors on our operating results. Recent historicalseasonal variations have included an increase in European demand during our fiscal fourth quarter and decreased demand in other fiscal quarters. Given that the majority ofour net sales are derived from Europe, our consolidated results closely follow the seasonality trends in Europe. The seasonal trend in Europe typically results in greateroperating leverage, and therefore, lower SG&A as a percentage of net sales in the region and on a consolidated basis during the second semester of our fiscal year,particularly in our fourth quarter. Additionally, the life cycles of major products, as well as the impact of future acquisitions and divestitures, may also materially impact ourbusiness, financial condition, or results of operations (see Note 15 of Notes to Consolidated Financial Statements for further information regarding our quarterly results).30 Table of ContentsLIQUIDITY AND CAPITAL RESOURCESOur discussion of liquidity and capital resources includes an analysis of our cash flows and capital structure for all periods presented.CASH CONVERSION CYCLEAs a distribution company, our business requires significant investment in working capital,particularly accounts receivable and inventory, partially financed through our accounts payable tovendors. An important driver of our operating cash flows is our cash conversion cycle (also referredto as “net cash days”). Our net cash days are defined as days of sales outstanding in accountsreceivable plus days of supply on hand in inventory, less days of purchases outstanding inaccounts payable. We manage our cash conversion cycle on a daily basis throughout the year andour reported financial results reflect that cash conversion cycle at the balance sheet date. Thefollowing tables present the components of our cash conversion cycle, in days, as of January 31,2016, 2015, 2014 and 2013.
CASH FLOWSThe following table summarizes Tech Data’s Consolidated Statement of Cash Flows:Year ended January 31:
2016
2015
2014(in millions)
Net cash provided by (used in):
Operating activities
$189.0
$119.4
$379.1Investing activities
(41.8)
(21.1)
(24.0)Financing activities
(143.3)
(49.1)
(127.3)Effect of exchange rate changes on cash and cash equivalents
(15.7)
(72.1)
1.7Net (decrease) increase in cash and cash equivalents
$(11.8)
$(22.9)
$229.5OPERATING ACTIVITIES•The increase in cash resulting from operating activities in fiscal 2016 compared to fiscal 2015 can be primarily attributed to higher earnings partially offset by higherincome taxes paid.•The decrease in cash provided by operating activities in fiscal 2015 compared to 2014 is primarily due to changes in the cash conversion cycle, including a 2 daydecrease in fiscal 2014 due to lower days of sales outstanding and a 1 day increase in fiscal 2015, primarily due to lower days of purchases outstanding asillustrated above.31 Table of ContentsThe significant components of our investing and financing cash flow activities are listed below.INVESTING ACTIVITIES2016•$34.0 million of capital expenditures•$27.8 million of cash paid for the acquisition of Signature Technology Group, Inc.• $20.0 million of proceeds from the sale of our subsidiaries in Chile and Peru2015•$28.2 million of capital expenditures•$7.1 million of proceeds from the sale of a building2014•$28.9 million of capital expenditures•$6.4 million of cash provided by acquisitions, primarily due to the final settlement of the purchase price for the acquisition of Specialist Distribution GroupFINANCING ACTIVITIES2016•$147.0 million paid for the repurchase of shares of common stock under our share repurchase program•$5.9 million of net borrowings on our revolving credit lines2015•$53.0 million paid for the repurchase of shares of common stock under our share repurchase program•$5.1 million related to acquisition earn-out payments•$7.3 million of net borrowings on our revolving credit lines2014•$122.7 million of net repayments on our revolving credit lines•$6.2 million related to acquisition earn-out paymentsCAPITAL RESOURCES AND DEBT COMPLIANCEOur debt to total capital ratio was 15% at January 31, 2016 . We believe a conservative approach to our capital structure will continue to support us in the current globaleconomic environment. As part of our capital structure and to provide us with significant liquidity, we have a diverse range of financing facilities across our geographicregions with various financial institutions. Also providing us liquidity are our cash and cash equivalents balances across our regions which are deposited and/or invested withvarious financial institutions. We are exposed to risk of loss on funds deposited with these financial institutions; however, we monitor our financing and depository financialinstitution partners regularly for credit quality. We believe that our existing sources of liquidity, including our financing facilities, cash resources and cash provided byoperating activities are sufficient to meet our working capital needs and cash requirements for at least the next 12 months. Apart from our working capital needs, we expectto incur total capital expenditures of approximately $42 million during fiscal 2017 for equipment and machinery in our logistics centers, office facilities and IT systems.At January 31, 2016 , we had approximately $531.2 million in cash and cash equivalents, of which $495.7 million was held in our foreign subsidiaries. As discussed above,the Company currently has sufficient resources, cash flows and liquidity within the United States to fund current and expected future working capital requirements.Historically, the Company has utilized and reinvested cash earned outside the United States to fund foreign operations and expansion, and plans to continue reinvestingsuch earnings and future earnings indefinitely outside of the United States. If the Company’s plans for the use of cash earned outside of the United States change in thefuture, cash and cash equivalents held by our foreign subsidiaries could not be repatriated to the United States without potential negative income tax consequences.The following is a discussion of our various financing facilities:Senior notesIn September 2012, the Company issued $350.0 million aggregate principal amount of 3.75% Senior Notes in a public offering (the "Senior Notes") resulting in cashproceeds of approximately $345.8 million, net of debt discount and debt issuance costs of approximately $1.3 million and $2.9 million, respectively. The debt discount anddebt issuance costs incurred in connection with the public offering are amortized over the life of the Senior Notes as additional interest expense using the effective interestmethod. We pay interest on the Senior Notes semi-annually in arrears on March 21 and September 21 of each year, ending on the maturity date of September 21, 2017. Wemay, at our option, redeem the Senior Notes at any time in whole or in part, at a redemption price equal to the greater of (i) 100% of the principal amount of the Senior Notesto be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notes being redeemed, discounted at a rateequal to the sum of the32 Table of Contentsapplicable Treasury Rate plus 50 basis points, plus accrued and unpaid interest up to the date of redemption. The Senior Notes rank equal in right of payment to all of ourother senior unsecured indebtedness and senior in right of payment to all of our subordinated indebtedness.Other credit facilitiesWe have a $500.0 million revolving credit facility with a syndicate of banks (the “Credit Agreement”). The credit agreement was amended on November 5, 2015, which,among other things, provides for (i) a maturity date of November 5, 2020, (ii) an interest rate on borrowings, facility fees and letter of credit fees based on our non-creditenhanced senior unsecured debt rating as determined by Standard & Poor’s Rating Service and Moody’s Investor Service, and (iii) the ability to increase the facility to amaximum of $750.0 million, subject to certain conditions. We pay interest on advances under the Credit Agreement at the applicable LIBOR rate (or similar interbank offeredrates depending on currency draw) plus a predetermined margin that is based on our debt rating. There were no amounts outstanding under the Credit Agreement atJanuary 31, 2016 and 2015 .We also have an agreement with a syndicate of banks (the "Receivables Securitization Program") that allows us to transfer an undivided interest in a designated pool of U.S.accounts receivable, on an ongoing basis, to provide collateral for borrowings up to a maximum of $400.0 million. Under this program, the Company transfers certain U.S.trade receivables into a wholly-owned bankruptcy remote special purpose entity. Such receivables, which are recorded in the Consolidated Balance Sheet, totaled $721.1million and $594.9 million at January 31, 2016 and 2015, respectively. As collections reduce accounts receivable balances included in the collateral pool, the Company maytransfer interests in new receivables to bring the amount available to be borrowed up to the maximum. The Receivables Securitization Program was renewed in August 2015with a maturity date of November 16, 2017, and interest is to be paid on advances at the applicable commercial paper or LIBOR rate plus an agreed-upon margin. Therewere no amounts outstanding under the Receivables Securitization Program at January 31, 2016 and 2015 .In addition to the facilities described above, we have various other committed and uncommitted lines of credit and overdraft facilities totaling approximately $308.0 million atJanuary 31, 2016 to support our operations. Most of these facilities are provided on an unsecured, short-term basis and are reviewed periodically for renewal. There was$18.1 million outstanding on these facilities at January 31, 2016 , at a weighted average interest rate of 5.26% , and there was $12.8 million outstanding at January 31, 2015, at a weighted average interest rate of 4.97% .At January 31, 2016 , we had also issued standby letters of credit of $29.6 million. These letters of credit typically act as a guarantee of payment to certain third parties inaccordance with specified terms and conditions. The issuance of these letters of credit reduces the Company's borrowing availability under certain of the above-mentionedcredit facilities.Certain of our credit facilities contain limitations on the amounts of annual dividends and repurchases of common stock and require compliance with other obligations,warranties and covenants. The financial ratio covenants within these credit facilities include a maximum debt to capitalization ratio and a minimum interest coverage ratio. AtJanuary 31, 2016 , we were in compliance with all such financial covenants. In light of these financial covenants, the Company’s maximum borrowing availability on its creditfacilities was restricted to $845.9 million , of which $18.1 million was outstanding at January 31, 2016 .Accounts receivable purchase agreementsWe have uncommitted accounts receivable purchase agreements under which certain accounts receivable may be sold, without recourse, to third-party financial institutions.Under these programs, we may sell certain accounts receivable in exchange for cash less a discount, as defined in the agreements. Available capacity under theseprograms, which we use as a source of working capital funding, is dependent on the level of accounts receivable eligible to be sold into these programs and the financialinstitutions' willingness to purchase such receivables. In addition, certain of these agreements also require that we continue to service, administer and collect the soldaccounts receivable. At January 31, 2016 and 2015 , the Company had a total of $554.2 million and $310.9 million , respectively, of accounts receivable sold to and held byfinancial institutions under these agreements. During the fiscal years ended January 31, 2016, 2015 and 2014 , discount fees recorded under these facilities were $4.4million , $4.4 million, and $3.4 million, respectively, which are included as a component of "other expense (income), net" in the Company's Consolidated Statement ofIncome.Share repurchase programsDuring fiscal 2016 , we repurchased 2,497,029 shares of our common stock at a cost of $147.0 million in connection with our two $100.0 million share repurchase programapproved by the Board of Directors in June 2015 and December 2014. These share repurchase programs were completed during fiscal 2016 .33 Table of ContentsRETURN ON INVESTED CAPITALAs discussed previously, one of our key financial objectives is to earn a return on invested capital ("ROIC") above our weighted average cost of capital. Our ROIC iscalculated based on non-GAAP operating income (as previously defined), on an after-tax basis, divided by the average total debt and non-GAAP shareholders’ equitybalances, less cash, for the prior five quarters. Management believes that providing this additional information is useful to investors because it provides a meaningfulcomparison of our performance between periods. The following table presents a detailed calculation of our ROIC:Year ended January 31:2016
2015
2014(in millions)
ROIC ( A/B)13%
11%
10%
Non-GAAP Net Operating Profit After Tax ("NOPAT") (A) :
Non-GAAP Operating Income$319.1
$308.0
$274.9Non-GAAP effective tax rate28.5%
31.8%
31.5%Non-GAAP NOPAT (Non-GAAP operating income x (1 - non-GAAP effective taxrate))$228.2
$210.2
$188.2
Average Invested Capital (B) :
Short-term debt (5-qtr average)$16.5
$40.3
$66.6Long-term debt (5-qtr average)350.4
352.0
351.7Non-GAAP Shareholders' Equity (5-qtr average)1,943.7
2,103.3
1,973.2Total average capital2,310.6
2,495.6
2,391.5Less: Cash (5-qtr average)(597.7)
(573.2)
(459.0)Average invested capital less average cash$1,712.9
$1,922.4
$1,932.5(A/B) ROIC is calculated as Non-GAAP Net Operating Profit After Tax divided by Average Invested Capital (less average cash)CONTRACTUAL OBLIGATIONSAs of January 31, 2016 , future payments of debt and amounts due under future minimum lease payments, including minimum commitments under an agreement for datacenter services, are as follows (in millions):
Operating leases
Debt (1)
Total Fiscal year:
2017$46.6
$31.2
$77.8201842.7
363.1
405.8201934.8
0.0
34.8202030.2
0.0
30.2202127.2
0.0
27.2Thereafter22.8
0.0
22.8Total payments204.3
394.3
598.6Less amounts representing interest—
(26.2)
(26.2)Total principal payments$204.3
$368.1
$572.4(1)Amounts include interest on the Senior Notes calculated at the fixed rate of 3.75% per year and exclude estimated interest on the committed and uncommitted revolving credit facilitiesas these facilities are at variable rates of interest.Fair value renewal and escalation clauses exist for a substantial portion of the operating leases included above. Purchase orders for the purchase of inventory and othergoods and services are not included in the table above. We are not able to determine the aggregate amount of such purchase orders that represent contractual obligations,as purchase orders typically represent authorizations to purchase rather than binding agreements. For the purposes of this table, contractual obligations for purchase ofgoods or services are defined as agreements that are enforceable and legally binding on the Company and that specify all significant terms, including: fixed or minimumquantities to be purchased; fixed, minimum or variable price provisions; and the approximate timing of the transaction. Our purchase orders are based on our currentdemand expectations and are fulfilled by our vendors within short time horizons. We do not have significant non-cancelable agreements for the purchase of inventory orother goods specifying minimum quantities or set prices that exceed our expected requirements for the next three months. We also enter into contracts for outsourcedservices; however, the34 Table of Contentsobligations under these contracts were not significant, other than an agreement for data center services included above, and the contracts generally contain clauses allowingfor cancellation without significant penalty.OFF-BALANCE SHEET ARRANGEMENTSSynthetic
Lease
FacilityWe have a synthetic lease facility with a group of financial institutions (the "Synthetic Lease") under which we lease certain logistics centers and office facilities from a third-party lessor that expires in June 2018. Properties leased under the Synthetic Lease are located in Clearwater and Miami, Florida; Fort Worth, Texas; Fontana, California;Suwanee, Georgia; Swedesboro, New Jersey; and South Bend, Indiana. The Synthetic Lease is accounted for as an operating lease and rental payments are calculated atthe applicable LIBOR rate plus a margin based on our credit ratings.Upon not less than 30 days notice, at our option, we may purchase one or any combination of the properties, at an amount equal to each of the property's cost, as long asthe lease balance does not decrease below a defined amount. Upon not less than 270 days, nor more than 360 days, prior to the lease expiration, we may, at our option, i)purchase a minimum of two of the properties, at an amount equal to each of the property's cost, ii) exercise the option to renew the lease for a minimum of two of theproperties or iii) exercise the option to remarket a minimum of two of the properties and cause a sale of the properties. If we elect to remarket the properties, we haveguaranteed the lessor a percentage of the cost of each property, in the aggregate amount of approximately $133.8 million . Future minimum lease payments under theSynthetic Lease are approximately $3.0 million per year.The Synthetic Lease contains covenants that must be complied with, similar to the covenants described in certain of the credit facilities discussed in Note 7 of Notes toConsolidated Financial Statements. As of January 31, 2016 , the Company was in compliance with all such covenants.GuaranteesAs is customary in the technology industry, to encourage certain customers to purchase product from us, we have arrangements with certain finance companies that provideinventory financing facilities for our customers. In conjunction with certain of these arrangements, we have agreements with the finance companies that would require us torepurchase certain inventory, which might be repossessed from the customers by the finance companies. Due to various reasons, including among other items, the lack ofinformation regarding the amount of saleable inventory purchased from us still on hand with the customer at any point in time, our repurchase obligations relating toinventory cannot be reasonably estimated. Repurchases of inventory by us under these arrangements have been insignificant to date.We also provide additional financial guarantees to finance companies on behalf of certain customers. The majority of these guarantees are for an indefinite period of time,where we would be required to perform if the customer is in default with the finance company related to purchases made from us. We review the underlying credit for theseguarantees on at least an annual basis. As of January 31, 2016 and 2015 , the outstanding amount of guarantees under these arrangements totaled $4.6 million and $5.5million , respectively. We believe that, based on historical experience, the likelihood of a material loss pursuant to the above inventory repurchase obligations andguarantees is remote.35 Table of ContentsITEM 7A. Quantitative and Qualitative Disclosures About Market Risk.As a large global organization, we face exposure to adverse movements in foreign currency exchange rates. These exposures may change over time as business practicesevolve and could have a material impact on our financial results in the future. In the normal course of business, we employ established policies and procedures to manageour exposure to fluctuations in the value of foreign currencies. It is our policy to utilize financial instruments to reduce risks where internal netting cannot be effectivelyemployed. Additionally, we do not enter into derivative instruments for speculative or trading purposes. With respect to our internal netting practices, we will considerinventory as an economic hedge against foreign currency exposure in accounts payable in certain circumstances. This practice offsets such inventory against correspondingaccounts payable denominated in currencies other than the functional currency of the subsidiary buying the inventory, when determining our net exposure to be hedgedusing traditional forward contracts. Under this strategy, we would expect to increase or decrease our selling prices for products purchased in foreign currencies based onfluctuations in foreign currency exchange rates affecting the underlying accounts payable. To the extent we incur a foreign currency exchange loss (gain) on the underlyingaccounts payable denominated in the foreign currency, we would expect to see a corresponding increase (decrease) in gross profit as the related inventory is sold. Thisstrategy can result in a certain degree of quarterly earnings volatility as the underlying accounts payable is remeasured using the foreign currency exchange rate prevailingat the end of each period, or settlement date if earlier, whereas the corresponding increase (decrease) in gross profit is not realized until the related inventory is sold.Our foreign currency exposure relates to our transactions in Europe, Canada and Latin America, where the currency collected from customers can be different from thecurrency used to purchase the product. Our transactions in foreign currencies are denominated primarily in the following currencies: U.S. dollar, British pound, Canadiandollar, Czech koruna, Danish krone, euro, Norwegian krone, Polish zloty, Swedish krona and Swiss franc. Our foreign currency risk management objective is to protect ourearnings and cash flows from the adverse impact of exchange rate changes through the use of foreign currency forward and swap contracts to primarily hedge intercompanyloans, accounts receivable and accounts payable.We are also exposed to changes in interest rates primarily as a result of our short-term debt used to maintain liquidity and to finance working capital, capital expendituresand acquisitions. Interest rate risk is also present in the forward foreign currency contracts. Our interest rate risk management objective is to limit the impact of interest ratechanges on earnings and cash flows and to minimize overall borrowing costs. To achieve our objective, we use a combination of fixed and variable rate debt. The nature andamount of our long-term and short-term debt can be expected to vary as a result of future business requirements, market conditions and other factors. Approximately 95%and 89%, respectively, of our outstanding debt had fixed interest rates at January 31, 2016 and 2015 . We utilize various financing instruments, such as receivablessecuritization, leases, revolving credit facilities, and trade receivable purchase facilities, to finance working capital needs. To the extent that there are changes in interestrates, the fair value of our fixed rate debt may fluctuate.In order to provide an assessment of our foreign currency exchange rate and interest rate risk, we performed a sensitivity analysis using a value-at-risk (“VaR”) model. TheVaR model consisted of using a Monte Carlo simulation to generate 1,000 random market price paths. The VaR model determines the potential impact of the fluctuation inforeign exchange rates and interest rates assuming a one-day holding period, normal market conditions and a 95% confidence level. The VaR is the maximum expected lossin fair value for a given confidence interval to our foreign exchange portfolio due to adverse movements in the rates. The model is not intended to represent actual losses butis used as a risk estimation and management tool. Firm commitments, assets and liabilities denominated in foreign currencies were excluded from the model.The following table represents the estimated maximum potential one-day loss in fair value at a 95% confidence level (in thousands), calculated using the VaR model atJanuary 31, 2016 and 2015 . We believe that the hypothetical loss in fair value of our foreign exchange derivatives would be offset by the gains in the value of the underlyingtransactions being hedged.VaRAs of January 31:2016
2015(in millions)
Foreign currency exchange rate sensitive financial instruments$(735)
$(9,108)Interest rate sensitive financial instruments(247)
(412)Combined portfolio$(982)
$(9,520)Actual future gains and losses associated with our derivative positions may differ materially from the analyses performed as of January 31, 2016 , due to the inherentlimitations associated with predicting the changes in the timing and amount of interest rates, foreign currency exchanges rates, and our actual exposures and positions. 36 Table of ContentsITEM 8. Financial Statements and Supplementary Data. Index to Financial Statements
Page Financial Statements
Report of Independent Registered Certified Public Accounting Firm38
Consolidated Balance Sheet39
Consolidated Statement of Income40
Consolidated Statement of Comprehensive Income41
Consolidated Statement of Shareholders’ Equity42
Consolidated Statement of Cash Flows43
Notes to Consolidated Financial Statements44
Financial Statement Schedule
Schedule II—Valuation and Qualifying Accounts74All schedules and exhibits not included are not applicable, not required or would contain information which is shown in the financial statements or notes thereto.37 Table of ContentsReport of Independent Registered Certified Public Accounting FirmThe Board of Directors and Shareholders of Tech Data CorporationWe have audited the accompanying consolidated balance sheets of Tech Data Corporation and subsidiaries as of January 31, 2016 and 2015, and the related consolidatedstatements of income, comprehensive income, shareholders' equity and cash flows for each of the three years in the period ended January 31, 2016. Our audits alsoincluded the financial statement schedule listed in the Index at Item 15(a). These financial statements and schedule are the responsibility of the Company's management.Our responsibility is to express an opinion on these financial statements and schedule based on our audits.We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan andperform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis,evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimatesmade by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Tech Data Corporation and subsidiariesat January 31, 2016 and 2015, and the consolidated results of their operations and their cash flows for each of the three years in the period ended January 31, 2016, inconformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basicfinancial statements taken as a whole, presents fairly in all material respects the information set forth therein.We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Tech Data Corporation and subsidiaries'internal control over financial reporting as of January 31, 2016, based on criteria established in Internal Control-Integrated Framework issued by the Committee ofSponsoring Organizations of the Treadway Commission (2013 framework) and our report dated March 24, 2016 expressed an unqualified opinion thereon./s/ Ernst & Young LLPTampa, FloridaMarch 24, 201638 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESCONSOLIDATED BALANCE SHEET(In thousands, except share amounts)As of January 31:2016
2015ASSETS
Current assets:
Cash and cash equivalents$531,169
$542,995Accounts receivable, less allowances of $45,875 and $50,1432,995,114
2,811,963Inventories2,117,384
1,959,627Prepaid expenses and other assets178,394
161,832Assets held for sale—
101,706Total current assets5,822,061
5,578,123Property and equipment, net66,028
63,104Goodwill204,114
198,565Intangible assets, net159,386
176,754Other assets, net106,699
120,179Total assets$6,358,288
$6,136,725
LIABILITIES AND EQUITY
Current liabilities:
Accounts payable$3,427,580
$3,119,618Accrued expenses and other liabilities487,003
538,758Revolving credit loans and current maturities of long-term debt, net18,063
13,303Liabilities held for sale—
71,447Total current liabilities3,932,646
3,743,126Long-term debt, less current maturities348,608
351,576Other long-term liabilities71,279
81,880Total liabilities4,352,533
4,176,582Commitments and contingencies (Note 13)
Shareholders’ equity:
Common stock, par value $.0015; 200,000,000 shares authorized; 59,245,585 shares issued at January 31, 2016 and 2015;35,082,183 and 37,379,516 shares outstanding at January 31, 2016 and 2015, respectively89
89Additional paid-in capital682,227
679,973Treasury stock, at cost (24,163,402 and 21,866,069 shares at January 31, 2016 and 2015)(1,077,434)
(939,143)Retained earnings2,434,198
2,168,462Accumulated other comprehensive (loss) income(33,325)
50,762Total shareholders' equity2,005,755
1,960,143Total liabilities and shareholders' equity$6,358,288
$6,136,725The accompanying Notes to Consolidated Financial Statements are an integral part of these financial statements.39 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESCONSOLIDATED STATEMENT OF INCOME(In thousands, except per share amounts)Year ended January 31:2016
2015
2014Net sales$26,379,783
$27,670,632
$26,821,904Cost of products sold25,093,122
26,276,678
25,459,558Gross profit1,286,661
1,393,954
1,362,346Operating expenses:
Selling, general and administrative expenses990,934
1,114,234
1,116,553LCD settlements, net(98,433)
(5,059)
(35,511)Value added tax assessments(8,796)
(6,229)
—Restatement and remediation related expenses829
22,043
53,791Loss on disposal of subsidiaries699
1,330
—
885,233
1,126,319
1,134,833Operating income401,428
267,635
227,513Interest expense14,488
26,548
26,606Other expense (income), net4,522
1,903
(3,402)Income before income taxes382,418
239,184
204,309Provision for income taxes116,682
64,012
24,377Net income$265,736
$175,172
$179,932Net income per share
Basic$7.40
$4.59
$4.73Diluted$7.36
$4.57
$4.71Weighted average common shares outstanding:
Basic35,898
38,172
38,020Diluted36,097
38,354
38,228The accompanying Notes to Consolidated Financial Statements are an integral part of these financial statements.40 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESCONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME(In thousands) Year ended January 31:2016
2015
2014Net income$265,736
$175,172
$179,932Other comprehensive loss:
Foreign currency translation adjustment(84,087)
(273,809)
(5,536)Total comprehensive income (loss)$181,649
$(98,637)
$174,396The accompanying Notes to Consolidated Financial Statements are an integral part of these financial statements.41 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESCONSOLIDATED STATEMENT OF SHAREHOLDERS’ EQUITY(In thousands)
Common Stock
Additional paid-in capital
Treasury stock
Retained earnings
Accumulated othercomprehensive (loss) income
Total equity
Shares
Amount
Balance—January 31, 201359,246
$89
$680,715
$(905,900)
$1,813,358
$330,107
$1,918,369Issuance of treasury stock for benefit plan andequity-based awards exercised, including relatedtax benefit of $1,038—
—
(13,976)
10,964
—
—
(3,012)Stock-based compensation expense—
—
8,858
—
—
—
8,858Total other comprehensive loss—
—
—
—
—
(5,536)
(5,536)Net income—
—
—
—
179,932
—
179,932Balance—January 31, 201459,246
89
675,597
(894,936)
1,993,290
324,571
2,098,611Purchase of treasury stock, at cost—
—
—
(52,997)
—
—
(52,997)Issuance of treasury stock for benefit plan andequity-based awards exerc ised, including relatedtax benefit of $2,302—
—
(9,292)
8,790
—
—
(502)Stock-based compensation expense—
—
13,668
—
—
—
13,668Total other comprehensive loss—
—
—
—
—
(273,809)
(273,809)Net income—
—
—
—
175,172
—
175,172Balance—January 31, 201559,246
89
679,973
(939,143)
2,168,462
50,762
1,960,143Purchase of treasury stock, at cost—
—
—
(147,003)
—
—
(147,003)Issuance of treasury stock for benefit plan andequity-based awards exerc ised, including relatedtax benefit of $182—
—
(12,636)
8,712
—
—
(3,924)Stock-based compensation expense—
—
14,890
—
—
—
14,890Total other comprehensive loss—
—
—
—
—
(84,087)
(84,087)Net income—
—
—
—
265,736
—
265,736Balance—January 31, 201659,246
$89
$682,227
$(1,077,434)
$2,434,198
$(33,325)
$2,005,755The accompanying Notes to Consolidated Financial Statements are an integral part of these financial statements.42 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESCONSOLIDATED STATEMENT OF CASH FLOWS(In thousands)Year ended January 31:2016
2015
2014Cash flows from operating activities:
Cash received from customers$28,119,687
$29,380,493
$28,253,552Cash paid to vendors and employees(27,824,548)
(29,177,542)
(27,775,887)Interest paid, net(20,264)
(24,546)
(23,082)Income taxes paid(85,882)
(59,024)
(75,435)Net cash provided by operating activities188,993
119,381
379,148Cash flows from investing activities:
Acquisition of businesses, net of cash acquired(27,848)
—
6,377Acquisition of trademark—
—
(1,519)Expenditures for property and equipment(20,917)
(18,639)
(15,598)Proceeds from sale of fixed assets—
7,121
—Software and software development costs(13,055)
(9,536)
(13,271)Proceeds from sale of subsidiaries20,020
—
—Net cash used in investing activities(41,800)
(21,054)
(24,011)Cash flows from financing activities:
Proceeds from the reissuance of treasury stock561
1,456
1,139Cash paid for purchase of treasury stock(147,003)
(52,997)
—Acquisition earn-out payments(2,736)
(5,060)
(6,183)Net borrowings (repayments) on revolving credit loans5,912
7,269
(122,656)Principal payments on long-term debt(319)
(546)
(538)Excess tax benefit from stock-based compensation237
749
927Net cash used in financing activities(143,348)
(49,129)
(127,311)Effect of exchange rate changes on cash and cash equivalents(15,671)
(72,057)
1,711Net (decrease) increase in cash and cash equivalents(11,826)
(22,859)
229,537Cash and cash equivalents at beginning of year542,995
570,101
340,564Less: Cash balance of businesses held for sale at end of year—
4,247
—Cash and cash equivalents at end of year$531,169
$542,995
$570,101
Reconciliation of net income to net cash provided by operating activities:
Net income$265,736
$175,172
$179,932Adjustments to reconcile net income to net cash provided by operating activities:
Loss on disposal of subsidiaries699
1,330
—Depreciation and amortization57,253
68,746
72,979Provision for losses on accounts receivable6,061
10,415
11,725Stock-based compensation expense14,890
13,668
8,858Accretion of debt discount and debt issuance costs on Senior Notes839
839
839Deferred income taxes2,387
(335)
(53,484)Excess tax benefit from stock-based compensation(237)
(749)
(927)Gain on sale of fixed assets—
(2,350)
—Changes in operating assets and liabilities, net of acquisitions:
Accounts receivable(297,637)
22,166
(36,031)Inventories(219,482)
245,474
(209,383)Prepaid expenses and other assets(44,384)
31,254
77,162Accounts payable426,412
(469,757)
321,254Accrued expenses and other liabilities(23,544)
23,508
6,224Total adjustments(76,743)
(55,791)
199,216Net cash provided by operating activities$188,993
$119,381
$379,148The accompanying Notes to Consolidated Financial Statements are an integral part of these financial statements.43 Table of ContentsTECH DATA CORPORATION AND SUBSIDIARIESNOTES TO CONSOLIDATED FINANCIAL STATEMENTSNOTE 1 — BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIESDescription
of
BusinessTech Data Corporation (“Tech Data” or the “Company”) is one of the world’s largest wholesale distributors of technology products. The Company serves as an indispensablelink in the technology supply chain by bringing products from the world’s leading technology vendors to market, as well as providing customers with advanced logisticscapabilities and value-added services. Tech Data’s customers include value-added resellers, direct marketers, retailers and corporate resellers who support the diversetechnology needs of end users. The Company is managed in two geographic segments: the Americas and Europe.Principles
of
ConsolidationThe consolidated financial statements include the accounts of Tech Data and its subsidiaries. All significant intercompany accounts and transactions have been eliminated inconsolidation. The Company operates on a fiscal year that ends on January 31.Basis
of
PresentationThe consolidated financial statements have been prepared by the Company, pursuant to the rules and regulations of the United States Securities and ExchangeCommission (“SEC”). The Company prepares its financial statements in conformity with generally accepted accounting principles in the United States (“GAAP”). Theseprinciples require management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets andliabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from thoseestimates.Revenue
RecognitionRevenue is recognized once four criteria are met: (1) the Company must have persuasive evidence that an arrangement exists; (2) delivery must occur, which generallyhappens at the point of shipment (this includes the transfer of both title and risk of loss, provided that no significant obligations remain); (3) the price must be fixed ordeterminable; and (4) collectability must be reasonably assured. Shipping revenue is included in net sales while the related costs, including shipping and handling costs, areincluded in the cost of products sold. The Company allows its customers to return product for exchange or credit subject to certain limitations. A provision for such returns isrecorded at the time of sale based upon historical experience. The Company also has certain fulfillment, extended warranty and service contracts with certain customers andsuppliers whereby the Company assumes an agency relationship in the transaction. In such arrangements where the Company is not the primary obligor, revenues arerecognized as the net fee associated with serving as an agent. Taxes imposed by governmental authorities on the Company’s revenue-producing activities with customers,such as sales taxes and value added taxes, are excluded from net sales.Service revenue associated with configuration, training, fulfillment and other services is recognized when the work is complete and the four criteria discussed above havebeen met. Service revenues have represented less than 10% of consolidated net sales for fiscal years 2016, 2015 and 2014 .The company generated approximately 20% , 15% , and 13% of consolidated net sales in fiscal 2016, 2015 and 2014 , respectively, from products purchased from Apple,Inc. and 18% , 19% and 21% of consolidated net sales in fiscal 2016, 2015 and 2014 , respectively, were generated from products purchased from Hewlett-PackardCompany ("HP"). HP split into two separate companies, HP Inc. ("HPI") and Hewlett Packard Enterprise ("HPE") effective November 1, 2015. The amounts presented inrelation to HP include the combined sales generated from products purchased from HPI and HPE. There were no other vendors that accounted for 10% or more of theCompany's consolidated net sales in fiscal 2016, 2015 and 2014 .Cash
and
Cash
EquivalentsShort-term investments which are highly liquid and have an original maturity of 90 days or less are considered cash equivalents.InvestmentsThe Company invests in life insurance policies to fund the Company’s nonqualified deferred compensation plan. The life insurance asset recorded by the Company is theamount that would be realized upon the assumed surrender of the policy. This amount is based on the underlying fair value of the invested assets contained within the lifeinsurance policies. The gains and losses are recorded in the Company’s Consolidated Statement of Income within "other expense (income), net."Accounts
ReceivableThe Company maintains an allowance for doubtful accounts receivable and sales returns for estimated losses resulting from the inability of our customers to make requiredpayments and estimated product returns by customers for exchange or credit. In estimating the required allowance, the Company takes into consideration the overall qualityand aging of the receivable portfolio, the large number of customers and their dispersion across wide geographic areas, the existence of credit insurance where applicable,specifically44 Table of Contentsidentified customer risks, historical write-off and sales returns experience and the current economic environment. If actual customer performance were to deteriorate to anextent not expected by the Company, additional allowances may be required which could have an adverse effect on the Company’s financial results. Conversely, if actualcustomer performance were to improve to an extent not expected by the Company, a reduction in the allowance may be required which could have a favorable effect on theCompany’s consolidated financial results.The Company has uncommitted accounts receivable purchase agreements under which certain accounts receivable may be sold, without recourse, to third-party financialinstitutions. Under these programs, the Company may sell certain accounts receivable in exchange for cash less a discount, as defined in the agreements. Availablecapacity under these programs, which the Company uses as a source of working capital funding, is dependent on the level of accounts receivable eligible to be sold intothese programs and the financial institutions' willingness to purchase such receivables. In addition, certain of these agreements also require that the Company continue toservice, administer and collect the sold accounts receivable. At January 31, 2016 and 2015 , the Company had a total of $554.2 million and $310.9 million , respectively, ofaccounts receivable sold to and held by financial institutions under these agreements. Discount fees recorded under these facilities, which are included as a component of"other expense (income), net" in the Company's Consolidated Statement of Income, were $4.4 million , $4.4 million and $3.4 million during the fiscal years ended January31, 2016, 2015 and 2014, respectively.InventoriesInventories, consisting entirely of finished goods, are stated at the lower of cost or market, cost being determined on a moving average cost basis, which approximates thefirst-in, first-out method. Inventory is written down for estimated obsolescence equal to the difference between the cost of inventory and the estimated market value, basedupon an aging analysis of the inventory on hand, specifically known inventory-related risks (such as technological obsolescence and the nature of vendor terms surroundingprice protection and product returns), foreign currency fluctuations for foreign-sourced product and assumptions about future demand. Market conditions or changes in termsand conditions by the Company’s vendors that are less favorable than those projected by management may require additional inventory write-downs, which could have anadverse effect on the Company’s consolidated financial results.Vendor
IncentivesThe Company receives incentives from vendors related to cooperative advertising allowances, infrastructure funding, volume rebates and other incentive agreements. Theseincentives are generally under quarterly, semi-annual or annual agreements with the vendors; however, some of these incentives are negotiated on an ad-hoc basis tosupport specific programs mutually developed with the vendor. Unrestricted volume rebates and early payment discounts received from vendors are recorded when they areearned as a reduction of inventory and as a reduction of cost of products sold as the related inventory is sold. Vendor incentives for specifically identified cooperativeadvertising programs and infrastructure funding are recorded when earned as adjustments to product costs or selling, general and administrative expenses, depending onthe nature of the program.Reserves for receivables on vendor programs are recorded for estimated losses resulting from vendors’ inability to pay or rejections of claims by vendors. Should amountsrecorded as outstanding receivables from vendors be deemed uncollectible, additional allowances may be required which could have an adverse effect on the Company’sconsolidated financial results. Conversely, if amounts recorded as outstanding receivables from vendors were to improve to an extent not expected by the Company, areduction in the allowance may be required which could have a favorable effect on the Company’s consolidated financial results.Property
and
EquipmentProperty and equipment are stated at cost and property and equipment under capital leases are stated at the present value of the future minimum lease paymentsdetermined at the inception of the lease. Depreciation expense includes depreciation of purchased property and equipment and assets recorded under capital leases.Depreciation expense is computed over the shorter of the estimated economic lives or lease periods using the straight-line method, generally as follows:
YearsBuildings and improvements
15-39Leasehold improvements
3-10Furniture, fixtures and equipment
3-10Expenditures for renewals and improvements that significantly add to productive capacity or extend the useful life of an asset are capitalized. Expenditures for maintenanceand repairs are charged to operations when incurred. When assets are sold or retired, the cost of the asset and the related accumulated depreciation are eliminated and anygain or loss is recognized at such time.Intangible
Assets,
netIncluded within intangible assets, net at both January 31, 2016 and 2015 are capitalized software and development costs, as well as customer and vendor relationships, apreferred supplier agreement, noncompete agreements and trademarks acquired in connection with various business acquisitions. Such capitalized costs and intangibleassets are being amortized over a period of three to ten years.45 Table of ContentsThe Company’s capitalized software has been obtained or developed for internal use only. Development and acquisition costs are capitalized for computer software onlywhen management authorizes and commits to funding a computer software project through the approval of a capital expenditure requisition, and the software project iseither for the development of new software, to increase the life of existing software or to add significantly to the functionality of existing software. Once these requirementshave been met, capitalization would begin at the point that conceptual formulation, evaluation, design, and testing of possible software project alternatives have beencompleted. Capitalization ceases when the software project is substantially complete and ready for its intended use. The Company’s accounting policy is to amortizecapitalized software costs on a straight-line basis over periods ranging from three to ten years, depending upon the nature of the software, the stability of the hardwareplatform on which the software is installed, its fit in the Company’s overall strategy, and our experience with similar software.Prepaid maintenance fees associated with a software application are accounted for separately from the related software and amortized over the life of the maintenanceagreement. General, administrative, overhead, training, non-development data conversion processes, and maintenance costs, as well as the costs associated with thepreliminary project and post-implementation stages are expensed as incurred.Impairment
of
Long-Lived
AssetsLong-lived assets, including property and equipment and intangible assets, are reviewed for potential impairment at such time when events or changes in circumstancesindicate that the carrying amount of the asset may not be recoverable. An impairment loss is evaluated when the sum of the expected, undiscounted future net cash flows isless than the carrying amount of the asset. Any impairment loss is measured by comparing the fair value of the asset to its carrying value.GoodwillThe Company performs an annual review for the potential impairment of the carrying value of goodwill, or more frequently if current events and circumstances indicate apossible impairment. For purposes of its goodwill analysis, the Company has two reporting units, which are also the Company’s operating segments. The Companyevaluates the appropriateness of performing a qualitative assessment, on a reporting unit level, based on current circumstances. If the results of the qualitative assessmentindicate that it is more likely than not that the fair value of a reporting unit is greater than its carrying amount, the two-step impairment test will not be performed. The factorsthat were considered in the qualitative analysis included macroeconomic conditions, industry and market considerations, cost factors such as increases in product cost,labor, or other costs that would have a negative effect on earnings and cash flows; and other relevant entity-specific events and information.If the Company concludes that it is more likely than not that the fair value of a reporting unit is less than its carrying amount, then the two-step impairment test is performed.The first step of the impairment test compares the fair value of the Company's reporting units with their carrying amounts, including goodwill. The fair values of the reportingunits are estimated using market and discounted cash flow approaches. The assumptions used in the market approach are based on the value of a business through ananalysis of multiples of guideline companies and recent sales or offerings of a comparable entity. The assumptions used in the discounted cash flow approach are based onhistorical and forecasted revenue, operating costs, future economic conditions, and other relevant factors. If the carrying amount exceeds fair value, then the second step ofthe impairment test is performed to measure the amount of any impairment loss. The amount of an impairment loss is recognized as the excess of the carrying value ofgoodwill over its implied fair value and is charged to expense in the period identified. The Company performs its annual review for goodwill impairment as of January 31st ofeach fiscal year.Product
WarrantyThe Company’s vendors generally warrant the products distributed by the Company and allow the Company to return defective products, including those that have beenreturned to the Company by its customers. The Company typically does not independently warrant the products it distributes; however, in several countries where theCompany operates, the Company is responsible for defective product as a matter of law. The time period required by law in certain countries exceeds the warranty periodprovided by the manufacturer. The Company is obligated to provide warranty protection for sales of certain IT products within the European Union (“EU”) for up to two yearsas required under the EU directive where vendors have not affirmatively agreed to provide pass-through protection. To date, the Company has not incurred any significantcosts for defective products under these legal requirements. The Company does warrant services with regard to products integrated for its customers. A provision forestimated warranty costs is recorded at the time of sale and periodically adjusted to reflect actual experience. To date, the Company has not incurred any significant servicewarranty costs. Fees charged for products configured by the Company represented less than 10% of net sales for fiscal years 2016, 2015 and 2014 .Value
Added
TaxesThe majority of our international operations are subject to a value added tax ("VAT"), which is typically applied to all goods and services purchased and sold. The Company'sVAT liability represents VAT that has been recorded on sales to our customers and not yet remitted to the respective governmental authorities and the Company's VATreceivable represents VAT paid on purchases of goods and services that will be collected from future sales to our customers. At January 31, 2016 and 2015 , the Company'sVAT liability was $197.7 million and $197.4 million , respectively and is included in "accrued expenses and other liabilities" on the Company's Consolidated Balance Sheet.In addition to its VAT liability, the Company recorded $4.6 million and $43.7 million in "accrued expenses and other liabilities" as of January 31, 2016 and 2015, respectively,for assessments, including penalties and interest, related to various VAT matters in one of the Company's subsidiaries in Spain as discussed further in Note 13 -Commitments and Contingencies. At46 Table of ContentsJanuary 31, 2016 and 2015 , the Company's VAT receivable was $27.8 million and $37.8 million , respectively, included in "prepaid expenses and other assets" on theCompany's Consolidated Balance Sheet.Income
TaxesIncome taxes are accounted for under the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future taxconsequences of events that have been included in the financial statements or tax returns. Under this method, deferred tax assets and liabilities are determined based ondifferences between the book basis and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. Theeffect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the fiscal period that includes the enactment date. Deferred taxes have notbeen provided on the cumulative undistributed earnings of foreign subsidiaries or the cumulative translation adjustment related to those investments because such amountsare expected to be reinvested indefinitely. The Company’s future effective tax rates could be adversely affected by earnings being lower than anticipated in countries with lower statutory rates, changes in the relativemix of taxable income and taxable loss jurisdictions, changes in the valuation of deferred tax assets or liabilities or changes in tax laws or interpretations thereof. TheCompany considers all positive and negative evidence available in determining the potential realization of deferred tax assets, including the scheduled reversal of temporarydifferences, recent cumulative losses, recent and projected future taxable income and prudent and feasible tax planning strategies. In making this determination, theCompany places greater emphasis on recent cumulative losses and recent taxable income due to the inherent lack of subjectivity associated with these factors. In addition,the Company is subject to the periodic examination of its income tax returns by the Internal Revenue Service and other tax authorities. The Company regularly assesses thelikelihood of adverse outcomes resulting from these examinations to determine the adequacy of its provision for income taxes. To the extent the Company was to prevail inmatters for which accruals have been established or to be required to pay amounts in excess of such accruals, the Company’s effective tax rate in a given financialstatement period could be materially affected.Concentration
of
Credit
RiskThe Company’s financial instruments which are subject to concentrations of credit risk consist primarily of cash and cash equivalents, accounts receivable and foreigncurrency exchange contracts. The Company’s cash and cash equivalents are deposited and/or invested with various financial institutions globally that are monitored on aregular basis by the Company for credit quality.The Company sells its products to a large base of value-added resellers, direct marketers, retailers and corporate resellers throughout the Americas and Europe. TheCompany performs ongoing credit evaluations of its customers and generally does not require collateral. The Company has obtained credit insurance, primarily in Europe,which insures a percentage of credit extended by the Company to certain of its customers against possible loss. The Company maintains provisions for estimated creditlosses. No single customer accounted for more than 10% of the Company’s net sales during fiscal years 2016, 2015 and 2014 .The Company also enters into foreign currency exchange contracts. In the event of a failure to honor one of these contracts by one of the banks with which the Companyhas contracted, the Company believes any loss would be limited in most circumstances to the exchange rate differential from the time the contract was executed until thetime the contract was settled. The Company’s foreign currency exchange contracts are executed with various financial institutions globally that are monitored on a regularbasis by the Company for credit quality.Foreign
Currency
Translation
and
RemeasurementThe assets and liabilities of the Company's foreign subsidiaries for which the local currency is the functional currency are translated into U.S. dollars using the exchange ratein effect at each balance sheet date and income and expense accounts are translated using weighted average exchange rates for each period during the year. Translationgains and losses are reported as components of accumulated other comprehensive income, included within shareholders’ equity. Gains and losses from foreign currencytransactions are included in the Company's Consolidated Statement of Income.Derivative
Financial
InstrumentsThe Company faces exposure to changes in foreign currency exchange rates and interest rates. The Company reduces its exposure by creating offsetting positions throughthe use of derivative financial instruments, in the form of foreign currency forward contracts, in situations where there are not offsetting balances that create an economichedge. Substantially all of these instruments have terms of 90 days or less. It is the Company’s policy to utilize financial instruments to reduce risk where appropriate andprohibit entering into derivative financial instruments for speculative or trading purposes.Derivative financial instruments are marked-to-market each period with gains and losses on these contracts recorded in the Company’s Consolidated Statement of Incomewithin “cost of products sold” for derivative instruments used to manage the Company’s exposure to foreign denominated accounts receivable and accounts payable andwithin “other expense (income), net,” for derivative instruments used to manage the Company’s exposure to foreign denominated financing transactions. Such mark-to-market gains and losses are recorded in the period in which their value changes, with the offsetting entry for unsettled positions being recorded to either other current assetsor other current liabilities.47 Table of ContentsComprehensive
IncomeComprehensive income is defined as the change in equity (net assets) of a business enterprise during a period from transactions and other events and circumstances fromnon-owner sources, and is comprised of “net income” and “other comprehensive income.”The Company’s accumulated other comprehensive income included in total equity is comprised exclusively of changes in the Company’s currency translation adjustmentaccount, including applicable income taxes. Total accumulated other comprehensive income includes $23.0 million of income taxes at January 31, 2016, 2015 and 2014 ,respectively.Stock-Based
CompensationThe Company records all equity-based incentive grants to employees and non-employee members of the Company’s Board of Directors in “selling, general andadministrative expenses” in the Company’s Consolidated Statement of Income based on their fair values determined on the date of grant. Stock-based compensationexpense, reduced for estimated forfeitures, is recognized on a straight-line basis over the requisite service period of the award, which is generally the vesting term of theoutstanding equity awards. The Company estimates forfeiture rates based on its historical experience.Treasury
StockTreasury stock is accounted for at cost. Shares repurchased by the Company are held in treasury for general corporate purposes, including issuances under equity incentiveand benefit plans. The reissuance of shares from treasury stock is based on the weighted average purchase price of the shares.ContingenciesThe Company accrues for contingent obligations, including estimated legal costs, when the obligation is probable and the amount is reasonably estimable. As factsconcerning contingencies become known, the Company reassesses its position and makes appropriate adjustments to the financial statements. Estimates that areparticularly sensitive to future changes include those related to tax, legal and other regulatory matters such as imports and exports, the imposition of internationalgovernmental controls, changes in the interpretation and enforcement of international laws (particularly related to items such as duty and taxation), and the impact of localeconomic conditions and practices, which are all subject to change as events evolve and as additional information becomes available during the administrative and litigationprocess.Restatement
and
remediation
related
expensesRestatement and remediation related expenses primarily include legal, accounting and third party consulting fees associated with (i) the restatement of certain of theCompany's consolidated financial statements and other financial information from fiscal 2009 to fiscal 2013, (ii) the Audit Committee investigation to review the Company'saccounting practices, (iii) incremental external audit and supplemental procedures by the Company in connection with the preparation of the Company's financial statements,and (iv) other incremental legal, accounting and consulting fees incurred as a result of the Company's restatement related investigation, regulatory requests for informationor in conjunction with the Company's remediation of material weaknesses and other control deficiencies identified during the restatement. The Company incurredrestatement and remediation related expenses of approximately $0.8 million , $22.0 million and $53.8 million , respectively, during fiscal years 2016, 2015 and 2014 , whichare recorded in "restatement and remediation related expenses" in the Consolidated Statement of Income.LCD
Settlements,
netThe Company has been a claimant in proceedings seeking damages from certain manufacturers of LCD flat panel and cathode ray tube displays. During fiscal 2016, 2015and 2014 , the Company reached settlement agreements with certain manufacturers in the amount of $98.4 million , $5.1 million and $35.5 million , respectively, net ofattorney fees and expenses, which are recorded in "LCD settlements, net" in the Consolidated Statement of Income.Recently
Adopted
Accounting
StandardsIn April 2015, the Financial Accounting Standards Board ("FASB") issued an accounting standard which requires debt issuance costs to be presented in the balance sheetas a deduction from the carrying value of the associated debt liability. In August 2015, the FASB issued an accounting standard to clarify that for line-of-credit arrangementsan entity can continue to defer and present debt issuance costs as an asset and subsequently amortize the deferred debt issuance costs ratably over the term of the line-of-credit arrangement, regardless of whether there are any outstanding borrowings on the line-of-credit arrangement. The new guidance should be applied on a retrospectivebasis. The Company early adopted these standards in the first and third quarter of fiscal 2016, respectively. The adoption of these standards did not have a material impacton the Company's consolidated financial position and had no impact on its consolidated income, comprehensive income or cash flows.In November 2015, the FASB issued an accounting standard which requires that deferred tax liabilities and assets be classified as noncurrent on the balance sheet. Thestandard is effective for annual periods beginning after December 15, 2016; however, early application is permitted. The Company early adopted this standard, on aprospective basis, in the fourth quarter of fiscal 2016. Deferred tax assets and deferred tax liabilities are recorded in "other assets, net" and "other long-term liabilities",respectively, in the Consolidated Balance Sheet at January 31, 2016. The adoption of this standard did not have a material impact on the Company's consolidated financialposition and had no impact on its consolidated income, comprehensive income or cash flows. No prior periods48 Table of Contentswere retrospectively adjusted. Current deferred tax assets and current deferred tax liabilities are recorded in "prepaid expenses and other assets" and "accrued expensesand other liabilities", respectively, in the Consolidated Balance Sheet at January 31, 2015.Recently
Issued
Accounting
StandardsIn May 2014, the FASB issued an accounting standard which will supersede all existing revenue recognition guidance under current GAAP. The new standard requires therecognition of revenue to depict the transfer of promised goods or services in an amount that reflects the consideration the Company expects to be entitled to in exchangefor those goods and services. The accounting standard is effective for the Company beginning with the quarter ending April 30, 2018. The Company would have the optionto adopt one year earlier and the standard may be adopted using either a full retrospective or a modified retrospective approach. The Company is currently in the process ofassessing the method of adoption and what impact this new standard may have on its consolidated financial statements.In April 2015, the FASB issued an accounting standard which provides guidance to customers about whether a cloud computing arrangement includes a software license. Ifa cloud computing arrangement includes a software license, the license element should be accounted for consistent with the acquisition of other software licenses. If thecloud computing arrangement does not include a software license, the customer should account for the arrangement as a service contract. The standard will be effective forthe Company beginning with the quarter ending April 30, 2016. The Company does not expect the adoption of this standard to have a material impact on the Company'sconsolidated financial statements.In July 2015, the FASB issued a new accounting standard that simplifies the subsequent measurement of inventory. Under the new standard, the cost of inventory will becompared to the net realizable value (NRV). Net realizable value is defined as the estimated selling prices in the ordinary course of business less reasonably predictablecosts of completion, disposal and transportation. The standard should be applied prospectively and will be effective for the Company beginning with the quarter ending April30, 2017. The Company does not expect the adoption of this standard to have a material impact on the Company's Consolidated Financial Statements.In February 2016, the FASB issued an accounting standard which requires the recognition of assets and liabilities arising from lease transactions on the balance sheet andthe disclosure of additional information about leasing arrangements. Under the new guidance, for all leases, interest expense and amortization of the right to use asset willbe recorded for leases determined to be financing leases and straight-line lease expense will be recorded for leases determined to be operating leases. Lessees will initiallyrecognize assets for the right to use the leased assets and liabilities for the obligations created by those leases. The new accounting standard must be adopted using amodified retrospective approach for leases existing at, or entered into after, the beginning of the earliest comparative period presented in the financial statements. Theaccounting standard is effective for the Company beginning with the quarter ended April 30, 2019, with early adoption permitted. The Company is currently in the process ofassessing what impact this new standard may have on its consolidated financial statements. ReclassificationsCertain reclassifications have been made to the accompanying January 31, 2015 and 2014 consolidated financial statements to conform to the January 31, 2016 financialstatement presentation. These reclassifications did not have a material impact on previously reported total assets and total liabilities and had no impact on shareholders'equity or consolidated net income. 49 Table of ContentsNOTE 2 — EARNINGS PER SHARE (“EPS”)The Company reports a dual presentation of basic and diluted EPS. Basic EPS is computed by dividing net income by the weighted average number of shares outstandingduring the reported period. Diluted EPS reflects the potential dilution related to equity-based incentives (further discussed in Note 9 - Employee Benefit Plans) using thetreasury stock method. The composition of basic and diluted EPS (in thousands, except per share data) is as follows:Year ended January 31:
2016
2015
2014Net income
$265,736
$175,172
$179,932
Weighted average common shares - basic
35,898
38,172
38,020Effect of dilutive securities:
Equity-based awards
199
182
208Weighted average common shares - diluted
36,097
38,354
38,228
Net income per share
Basic
$7.40
$4.59
$4.73Diluted
$7.36
$4.57
$4.71For the fiscal years ended January 31, 2016 and 2015, there were no shares excluded from the computation of diluted earnings per share because their effect would havebeen antidilutive. For the fiscal year ended January 31, 2014, there were 6,236 shares excluded from the computation of diluted earnings per share because their effectwould have been antidilutive.NOTE 3 — PROPERTY AND EQUIPMENT, NETThe Company's property and equipment (in thousands) consists of the following:As of January 31:
2016
2015Land
$3,977
$4,126Buildings and leasehold improvements
68,377
71,808Furniture, fixtures and equipment
283,842
295,247Property and equipment
356,196
371,181Less: accumulated depreciation
(290,168)
(308,077)Property and equipment, net
$66,028
$63,104Depreciation expense included in income from operations for the fiscal years ended January 31, 2016, 2015 and 2014 totaled $16.3 million , $19.2 million and $20.2 million ,respectively.NOTE 4 — GOODWILL AND INTANGIBLE ASSETSThe changes in the carrying amount of goodwill, by geographic segment, for the fiscal year ended January 31, 2016 , are as follows (in thousands):
Americas
Europe
Total Balance as of February 1, 2015$5,442
$193,123
$198,565Goodwill acquired during the year14,117
—
14,117Foreign currency translation adjustment—
(8,568)
(8,568)Balance as of January 31, 2016$19,559
$184,555
$204,114In conjunction with the Company’s annual impairment testing, the Company’s goodwill was tested for impairment as of January 31, 2016 . The results of the testing indicatedthat the fair value of the Company’s reporting units was greater than the carrying value. As a result, no goodwill impairment was recorded at January 31, 2016 .50 Table of ContentsThe Company's intangible assets consist of the following (in thousands):
January 31, 2016
January 31, 2015
Gross carrying amount
Accumulated amortization
Net book value
Gross carrying amount
Accumulated amortization
Net book value Capitalized software and development costs$308,926
$256,145
$52,781
$307,759
$250,987
$56,772Customer and vendor relationships184,894
95,865
89,029
180,659
82,512
98,147Preferred supplier agreement26,930
14,613
12,317
28,276
11,032
17,244Other intangible assets15,748
10,489
5,25912,553
7,962
4,591Total$536,498
$377,112
$159,386
$529,247
$352,493
$176,754The Company capitalized intangible assets of $29.2 million , $10.4 million and $19.0 million for the fiscal years ended January 31, 2016, 2015 and 2014 , respectively. Forfiscal 2016 , these capitalized assets included acquired identifiable intangible assets (see also Note 5 - Acquisitions) and software and software development expenditures tobe used in the Company's operations. For fiscal 2015 and 2014 , these capitalized assets related primarily to software and software development expenditures to be used inthe Company's operations and vendor relationships related to the Company's business acquisition during fiscal 2014 (see also Note 5 – Acquisitions).Amortization expense for the fiscal years ended January 31, 2016, 2015 and 2014 , totaled $41.0 million , $49.5 million and $51.8 million , respectively. Estimatedamortization expense of capitalized software and development costs and other intangible assets (which includes customer and vendor relationships, a preferred supplieragreement and other intangible assets) is as follows (in thousands): Fiscal year:Capitalized software anddevelopment costs
Other intangible assets
Total2017$16,115
$21,927
$38,042201813,187
19,985
33,17220199,098
16,833
25,93120205,609
12,293
17,90220213,570
11,870
15,440NOTE 5 — ACQUISITIONS Acquisition
of
STGOn June 1, 2015, the Company completed the acquisition of Signature Technology Group, Inc. ("STG"), a provider of data center and professional services throughout NorthAmerica, for a purchase price of $27.8 million . The purchase price has been allocated to the estimated fair values of assets acquired and liabilities assumed, includingtangible assets of approximately $0.3 million , identifiable intangible assets of approximately $14.5 million , goodwill of approximately $14.1 million and liabilities ofapproximately $1.1 million . Identifiable intangible assets are primarily related to customer relationships with an estimated useful life of ten years. Proforma information forthe acquisition of STG has not been presented as the acquisition was not material to the Company’s consolidated financial position or results of operations.Acquisition
of
TDMobilityOn November 1, 2013, the Company acquired Brightstar Corp.'s fifty percent ownership interest in TDMobility, a joint venture in the United States, for a cash purchase priceof approximately $2.1 million . The purchase price has been allocated to the estimated fair values of assets acquired and liabilities assumed, including tangible assets ofapproximately $4.0 million , identifiable intangible assets of approximately $4.2 million , goodwill of approximately $2.5 million and liabilities of approximately $6.7 million .Identifiable intangible assets are primarily related to vendor relationships and other intangible assets with estimated useful lives of five to ten years. Proforma information forthe acquisition of TDMobility has not been presented as the acquisition was not material to the Company’s consolidated financial position or results of operations.NOTE 6 — LOSS ON DISPOSAL OF SUBSIDIARIESDuring the fourth quarter of fiscal 2015, the Company committed to a plan to sell its business operations in Chile and Peru. The Company classified the assets and liabilitiesof these entities as held for sale at January 31, 2015. In March 2015, the Company also committed to a plan to exit its business operations in Uruguay. During fiscal 2016and 2015, the Company incurred a loss of $0.7 million and $1.3 million , respectively, for charges related to the plan to exit its business operations in Uruguay and the losson the sale of its business operations in Chile and Peru. The Company has completed the sale of its operations in Chile and Peru as well as the exit of51 Table of Contentsits operations in Uruguay. The operating results of these entities during fiscal 2016, 2015 and 2014 were insignificant relative to the Company's consolidated financial results.During the fourth quarter of fiscal 2015, the Company also recorded a $5.6 million deferred tax liability related to undistributed earnings on assets held for sale in certainLatin American jurisdictions.The Company did not have assets and liabilities classified as held for sale at January 31, 2016 . The components of assets and liabilities held for sale at January 31, 2015were as follows (in thousands):
January 31, 2015Assets held for sale:
Cash and cash equivalents$4,247Accounts receivable42,674Inventories41,650Prepaid expenses and other assets8,820Property and equipment, net976Other assets, net3,339 Total assets held for sale$101,706Liabilities held for sale:
Accounts payable$39,816Accrued expenses and other liabilities2,931Revolving credit loans and current maturities of long-term debt, net28,639Other long-term liabilities61 Total liabilities held for sale$71,447NOTE 7 — DEBTThe carrying value of the Company's outstanding debt consists of the following (in thousands):As of January 31:2016
2015Senior Notes, interest at 3.75% payable semi-annually, due September 21, 2017$350,000
$350,000Less—unamortized debt discount and debt issuance costs(1,392)
(2,231)Senior Notes, net348,608
347,769Capital leases—
4,262Other committed and uncommitted revolving credit facilities, average interest rate of 5.26% and 4.97% at January 31, 2016and January 31, 2015, respectively18,063
12,848
366,671
364,879Less—current maturities (included as “revolving credit loans and current maturities of long-term debt, net”)(18,063)
(13,303)Total long-term debt$348,608
$351,576Senior
NotesIn September 2012, the Company issued $350.0 million aggregate principal amount of 3.75% Senior Notes in a public offering (the “Senior Notes”), resulting in cashproceeds of approximately $345.8 million , net of debt discount and debt issuance costs of approximately $1.3 million and $2.9 million , respectively. The debt discount anddebt issuance costs incurred in connection with the public offering are amortized over the life of the Senior Notes as additional interest expense using the effective interestmethod. The Company pays interest on the Senior Notes semi-annually in arrears on March 21 and September 21 of each year, ending on the maturity date ofSeptember 21, 2017. The Company, at its option, may redeem the Senior Notes at any time in whole or in part, at a redemption price equal to the greater of (i) 100% of theprincipal amount of the Senior Notes to be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the Senior Notesbeing redeemed, discounted at a rate equal to the sum of the applicable Treasury Rate plus 50 basis points, plus accrued and unpaid interest up to the date of redemption.The Senior Notes rank equal in right of payment to all of the Company’s other senior unsecured indebtedness and senior in the right of payment to all of the Company'ssubordinated indebtedness.Other
Credit
FacilitiesThe Company has a $500.0 million revolving credit facility with a syndicate of banks (the “Credit Agreement”). The Credit Agreement was amended on November 5, 2015,which among other things, provides for (i) a maturity date of November 5, 2020, (ii) an interest rate on borrowings, facility fees and letter of credit fees based on theCompany’s non-credit enhanced senior unsecured debt rating as52 Table of Contentsdetermined by Standard & Poor’s Rating Service and Moody’s Investor Service, and (iii) the ability to increase the facility to a maximum of $750.0 million , subject to certainconditions. The Company pays interest on advances under the Credit Agreement at LIBOR (or similar interbank offered rates depending on currency draw) plus apredetermined margin that is based on the Company’s debt rating. There were no amounts outstanding under the Credit Agreement at January 31, 2016 and 2015 .The Company also has an agreement with a syndicate of banks (the “Receivables Securitization Program”) that allows the Company to transfer an undivided interest in adesignated pool of U.S. accounts receivable, on an ongoing basis, to provide collateral for borrowings up to a maximum of $400.0 million . Under this program, the Companytransfers certain U.S. trade receivables into a wholly-owned bankruptcy remote special purpose entity. Such receivables, which are recorded in the Consolidated BalanceSheet, totaled $721.1 million and $594.9 million at January 31, 2016 and 2015 , respectively. As collections reduce accounts receivable balances included in the collateralpool, the Company may transfer interests in new receivables to bring the amount available to be borrowed up to the maximum. This program was renewed in August 2015,with a maturity date of November 16, 2017, and interest is to be paid on advances under the Receivables Securitization Program at the applicable commercial paper orLIBOR rate plus an agreed-upon margin. There were no amounts outstanding under the Receivables Securitization Program at January 31, 2016 and 2015 .In addition to the facilities described above, the Company has various other committed and uncommitted lines of credit and overdraft facilities totaling approximately $308.0million at January 31, 2016 to support its operations. Most of these facilities are provided on an unsecured, short-term basis and are reviewed periodically for renewal. Therewas $18.1 million outstanding on these facilities at January 31, 2016 , at a weighted average interest rate of 5.26% , and there was $12.8 million outstanding at January 31,2015 , at a weighted average interest rate of 4.97% .At January 31, 2016 , the Company had also issued standby letters of credit of $29.6 million . These letters of credit typically act as a guarantee of payment to certain thirdparties in accordance with specified terms and conditions. The issuance of these letters of credit reduces the Company's borrowing availability under certain of the above-mentioned credit facilities.Certain of the Company’s credit facilities contain limitations on the amounts of annual dividends and repurchases of common stock and require compliance with otherobligations, warranties and covenants. The financial ratio covenants under these credit facilities include a maximum debt to capitalization ratio and a minimum interestcoverage ratio. At January 31, 2016 , the Company was in compliance with all such financial covenants. In light of these financial covenants, the Company’s maximumborrowing availability on these other credit facilities was restricted to $845.9 million , of which $18.1 million was outstanding at January 31, 2016 .Future payments of debt at January 31, 2016 and for succeeding fiscal years are as follows (in thousands): Fiscal year:
2017$18,0632018350,000Thereafter—Total principal payments$368,063NOTE 8 — INCOME TAXESSignificant components of the provision for income taxes are as follows (in thousands): Year ended January 31:2016
2015
2014Current:
Federal$71,502
$32,988
$42,040State5,989
1,626
2,799Foreign36,804
29,733
33,022Total current114,295
64,347
77,861Deferred:
Federal(3,984)
6,391
(785)State543
281
(79)Foreign5,828
(7,007)
(52,620)Total deferred2,387
(335)
(53,484)
$116,682
$64,012
$24,37753 Table of ContentsThe reconciliation of the U.S. federal statutory tax rate to the effective tax rate is as follows:Year ended January 31:2016
2015
2014U.S. statutory rate35.0 %
35.0 %
35.0 %State income taxes, net of federal benefit1.1
0.5
0.8Net changes in deferred tax valuation allowances0.0
(4.5)
(19.5)Tax on foreign earnings different than U.S. rate(7.4)
(11.8)
(11.7)Nondeductible interest1.6
4.0
6.4Reserve established for foreign income tax contingencies0.0
0.1
0.3Effect of company-owned life insurance0.2
(0.4)
(0.6)Undistributed earnings on foreign assets held for sale0.0
2.4
0.0Other, net0.0
1.5
1.2
30.5 %
26.8 %
11.9 %In fiscal 2015 and 2014, the Company recorded income tax benefits of $19.2 million and $45.3 million , respectively, for the reversal of deferred tax valuation allowancesprimarily related to specific European jurisdictions which had been recorded in prior fiscal years. During fiscal 2015, the Company recorded a $5.6 million deferred tax liabilityrelated to undistributed earnings on assets held for sale in certain Latin American jurisdictions (see further discussion in Note 6 - Loss on Disposal of Subsidiaries).The components of pretax income are as follows (in thousands):Year ended January 31:2016
2015
2014United States$195,219
$100,166
$124,134Foreign187,199
139,018
80,175
$382,418
$239,184
$204,309The significant components of the Company’s deferred tax liabilities and assets are as follows (in thousands):As of January 31:2016
2015Deferred tax liabilities:
Depreciation and amortization$53,939
$60,235Capitalized marketing program costs6,547
5,420Goodwill8,545
6,050Deferred costs currently deductible5,415
7,605Undistributed earnings on foreign assets held for sale—
5,598Other, net5,938
7,796Total deferred tax liabilities80,384
92,704Deferred tax assets:
Accrued liabilities42,071
47,083Loss carryforwards103,647
96,199Amortizable goodwill5,315
7,930Depreciation and amortization6,502
7,132Disallowed interest expense5,140
31,898Other, net9,659
10,359
172,334
200,601Less: valuation allowances(60,165)
(71,499)Total deferred tax assets112,169
129,102Net deferred tax asset$31,785
$36,398 The net change in the deferred tax valuation allowances in fiscal 2016 was a decrease of $11.3 million primarily due to the impact of the translation of foreign currencies andthe utilization of deferred tax assets subject to valuation allowances. The net change in the deferred tax valuation allowances in fiscal 2015 was a decrease of $29.8 millionprimarily resulting from the $19.2 million reversal of deferred tax valuation allowances primarily related to certain European jurisdictions as discussed previously, as well aschanges from the translation of foreign currencies.54 Table of ContentsThe valuation allowances at both January 31, 2016 and 2015 primarily relate to foreign net operating loss carryforwards. The Company’s net operating loss carryforwardstotaled $482.3 million and $475.6 million at January 31, 2016 and 2015 , respectively. The majority of the net operating losses have an indefinite carryforward period with theremaining portion expiring in fiscal years 2017 through 2034. The Company considers all positive and negative evidence available in determining the potential of realizingdeferred tax assets. To the extent that the Company generates consistent taxable income within those operations with valuation allowances, the Company may reduce thevaluation allowances, thereby reducing the income tax expense and increasing net income in the period the determination is made.The estimates and assumptions used by the Company in computing the income taxes reflected in the Company’s consolidated financial statements could differ from theactual results reflected in the income tax returns filed during the subsequent year. Adjustments are recorded based on filed returns when such returns are finalized or therelated adjustments are identified.At January 31, 2016 , there are $641.8 million of consolidated cumulative undistributed earnings of foreign subsidiaries for which no deferred taxes have been recorded. It isnot practical to estimate the amount of unrecognized deferred U.S. income tax that might be payable if any earnings were to be distributed by individual foreign subsidiaries.A reconciliation of the beginning and ending balances of the total amount of gross unrecognized tax benefits, excluding accrued interest and penalties, for the years endedJanuary 31, 2016, 2015 and 2014 is as follows (in thousands): Gross unrecognized tax benefits at January 31, 2013$5,599Increases in tax positions for prior years1,956Decreases in tax positions for prior years(420)Increases in tax positions for current year93Expiration of statutes of limitation(77)Settlements(1,295)Changes due to translation of foreign currencies3Gross unrecognized tax benefits at January 31, 20145,859Increases in tax positions for prior years845Decreases in tax positions for prior years(730)Increases in tax positions for current year105Expiration of statutes of limitation(63)Changes due to translation of foreign currencies(891)Gross unrecognized tax benefits at January 31, 20155,125Increases in tax positions for prior years8,443Decreases in tax positions for prior years(348)Increases in tax positions for current year106Expiration of statutes of limitation(77)Settlements(104)Changes due to translation of foreign currencies(156)Gross unrecognized tax benefits at January 31, 2016$12,989At January 31, 2016, 2015 and 2014 , the amount of unrecognized tax benefits that, if recognized, would impact the effective tax rate was $10.1 million , $5.1 million and$5.4 million , respectively.Unrecognized tax benefits that have a reasonable possibility of significantly decreasing within the 12 months following January 31, 2016 totaled $2.6 million and wereprimarily related to the foreign taxation of certain transactions. Consistent with prior periods, the Company recognizes interest and penalties related to unrecognized taxbenefits in the provision for income taxes. The Company’s accrued interest at January 31, 2016 , would not have a material impact on the effective tax rate if reversed. Theprovision for income taxes for each of the fiscal years ended January 31, 2016, 2015 and 2014 includes interest expense on unrecognized income tax benefits for currentand prior years which is not significant to the Company’s Consolidated Statement of Income. The change in the balance of accrued interest for fiscal 2016, 2015 and 2014 ,includes the current year end accrual, an interest benefit resulting from the expiration of statutes of limitation, and the translation adjustments on foreign currencies.The Company conducts business primarily in the Americas and Europe and, as a result, one or more of its subsidiaries files income tax returns in the U.S. federal, variousstate, local and foreign tax jurisdictions. In the normal course of business, the Company is subject to examination by taxing authorities. The Company is no longer subject toexaminations by the Internal Revenue Service for years before fiscal 2012. Income tax returns of various foreign jurisdictions for fiscal 2006 and forward are currently undertaxing authority examination or remain subject to audit. 55 Table of ContentsNOTE 9 — EMPLOYEE BENEFIT PLANSOverview
of
Equity
Incentive
PlansAt January 31, 2016 , the Company had awards outstanding from two equity-based compensation plans, only one of which is currently active. The active plan was approvedby the Company’s shareholders in June 2009 and includes 4.0 million shares available for grant, of which approximately 2.4 million shares remain available for future grantat January 31, 2016 . Under the active plan, the Company is authorized to award officers, employees, and non-employee members of the Board of Directors restricted stock,options to purchase common stock, maximum value stock-settled stock appreciation rights (“MV Stock-settled SARs”), maximum value options (“MVOs”), and performanceawards that are dependent upon achievement of specified performance goals. Equity-based compensation awards are used by the Company to attract talent and as aretention mechanism for the award recipients and have a maximum term of ten years, unless a shorter period is specified by the Compensation Committee of the Company’sBoard of Directors (“Compensation Committee”) or is required under local law. Awards under the plans are priced as determined by the Compensation Committee and underthe terms of the Company’s active equity-based compensation plan are required to be priced at, or above, the fair market value of the Company’s common stock on the dateof grant. Awards generally vest between one and three years from the date of grant.For the fiscal years ended January 31, 2016, 2015 and 2014 , the Company recorded $14.9 million , $13.7 million and $8.9 million , respectively, of stock-basedcompensation expense, and related income tax benefits of $4.6 million , $4.2 million and $2.9 million , respectively. Cash received from equity-based incentives exercisedduring the fiscal years ended January 31, 2016, 2015 and 2014 was $0.6 million , $1.5 million and $1.1 million , respectively, and the actual benefit received from the taxdeduction from the exercise of equity-based incentives was $5.2 million , $5.2 million and $5.5 million for the fiscal years ended January 31, 2016, 2015 and 2014,respectively.Restricted
StockThe Company’s restricted stock awards are primarily in the form of restricted stock units (“RSUs”) and typically vest in annual installments lasting between one and threeyears from the date of grant, unless a different vesting schedule is mandated by country law. All of the RSUs have a fair market value equal to the closing price of theCompany’s common stock on the date of grant. Stock-based compensation expense includes $14.8 million , $13.6 million and $8.7 million related to RSUs during fiscal2016, 2015 and 2014 , respectively.A summary of the status of the Company’s RSU activity for the fiscal year ended January 31, 2016 is as follows:
Shares
Weighted-average grant date fairvalueNonvested at January 31, 2015547,689
$59.45Granted275,539
59.30Vested(265,837)
57.84Canceled(61,062)
59.40Nonvested at January 31, 2016496,329
60.28The total fair value of RSUs which vested during the fiscal years ended January 31, 2016, 2015 and 2014 is $15.4 million , $8.1 million and $12.9 million , respectively. Theweighted-average estimated fair value of the 455,806 RSU's granted during the fiscal year ended January 31, 2015 was $61.06 per share. There were no shares grantedduring the fiscal year ended January 31, 2014. As of January 31, 2016 , the unrecognized stock-based compensation expense related to non-vested RSUs was $16.6 million, which the Company expects to be recognized over the next three years (over a remaining weighted average period of two years ).MV
Stock-settled
SARs,
MVOs
and
Stock
OptionsMV Stock-settled SARs and MVOs are similar to traditional stock options, except these instruments contain a predetermined cap on the maximum earnings potential arecipient can expect to receive upon exercise. In addition, upon exercise, holders of an MV Stock-settled SAR will receive shares with a value equal to the spread (thedifference between the current market price per share of the Company’s common stock subject to the predetermined cap and the grant price). The grant price of the MVStock-settled SARs and MVOs is determined using the last sale price of the Company’s common stock as quoted on the NASDAQ Stock Market, Inc. on the date of grant (orsuch higher price as may be required by applicable laws and regulations of specific foreign jurisdictions). MV Stock-settled SARs, MVOs and stock options generally vestbetween one and three years from the date of grant and have a contractual term of ten years.56 Table of ContentsA summary of the status of the Company’s MV Stock-settled SARs, MVOs and stock options activity for the fiscal year ended January 31, 2016 is as follows:
Shares
Weighted-average exercise price
Weighted-averageremaining contractual term (in years)
Aggregate intrinsic value (in thousands)Outstanding at January 31, 201542,110
$33.97
Exercised9,700
37.04
Outstanding at January 31, 201632,410
33.06
2.7
$951All outstanding SARs, MVOs and stock options were vested and exercisable at January 31, 2016. Stock-based compensation expense of MV Stock-settled SARs, MVOsand stock options was insignificant during fiscal 2016, 2015 and 2014 .The aggregate intrinsic value in the table above represents the difference between the closing price of the Company’s common stock on January 31, 2016 and the grantprice for all “in-the-money” equity-based awards at January 31, 2016 . The intrinsic value of the equity-based awards changes based on the fair market value of theCompany’s common stock. The intrinsic value of the MV Stock-settled SARs, MVO and stock option awards exercised during the fiscal years ended January 31, 2016, 2015and 2014 was $0.2 million , $5.8 million and $3.3 million , respectively. As of January 31, 2016 , there was no unrecognized compensation cost related to MV Stock-settledSARs, MVOs and stock options. The total fair value of MV Stock-settled SARs, MVOs and stock options which vested during the fiscal years ended January 31, 2016 and2015 was insignificant and was $1.0 million during the fiscal year ended January 31, 2014 .A summary of the status of the Company’s stock-based equity incentives outstanding, representing MV Stock-settled SARs, MVOs and stock options, at January 31, 2016 ,is as follows:
Outstanding
Exercisable Exercise pricesNumber outstanding at 1/31/16
Weighted- average remaining contractual life (years)
Weighted- average exercise price
Number exercisable at 1/31/16
Weighted- average exercise price $21.1314,774
3.1
$21.13
14,774
$21.13$37.0411,400
0.2
37.04
11,400
37.04$54.036,236
6.1
54.03
6,236
54.03
32,410
2.7
33.06
32,410
33.06The Company’s policy is to utilize shares of its treasury stock, to the extent available, to satisfy its obligation to issue shares upon the exercise of awards (see furtherdiscussion of the Company’s share repurchase program in Note 10 – Shareholders’ Equity below).Employee
Stock
Purchase
PlanUnder the 1995 Employee Stock Purchase Plan (the “ESPP”), the Company is authorized to issue up to 1,000,000 shares of common stock to eligible employees in theCompany’s U.S. and Canadian subsidiaries. Under the terms of the ESPP, employees can choose to have a fixed dollar amount or percentage deducted from their bi-weeklycompensation to purchase the Company’s common stock and/or elect to purchase shares once per calendar quarter. The purchase price of the stock is 85% of the marketvalue on the purchase date and employees are limited to a maximum purchase of $25,000 in fair market value each calendar year. From the inception of the ESPP throughJanuary 31, 2016 , the Company has issued 501,560 shares of common stock to the ESPP. All shares purchased under the ESPP must be held by the employees for aperiod of one year. Stock-based compensation expense related to the ESPP was insignificant during fiscal 2016, 2015 and 2014 .Retirement
Savings
PlanThe Company sponsors the Tech Data Corporation 401(k) Savings Plan (the “401(k) Savings Plan”) for its U.S. employees. At the Company’s discretion, participantdeferrals are matched in cash, in an amount equal to 50% of the first 6% of participant deferrals and participants are fully vested following four years of qualified service.Aggregate contributions made by the Company to the 401(k) Savings Plan were $2.8 million , $0.1 million , and $0.7 million for fiscal 2016, 2015 and 2014 , respectively.The Company suspended the employer match for the 401(k) Savings Plan for a portion of fiscal 2014 and 2015. The employer match for the 401(k) Saving Plan wasreinstated for fiscal 2016.NOTE 10 — SHAREHOLDERS’ EQUITYDuring fiscal 2015, the Company’s Board of Directors authorized a share repurchase program for the repurchase of up to a total of $100.0 million of the Company’s commonstock. During the first quarter of fiscal 2016, the Company completed this share repurchase program. Additionally, in June 2015, the Company's Board of Directorsauthorized an additional share repurchase program of up to $100.0 million of the Company's common stock. The Company completed this share repurchase program infiscal 2016.57 Table of ContentsThe Company’s common share repurchase and issuance activity for fiscal 2016 and 2015 is summarized as follows:
Shares
Weighted- average price per share Treasury stock balance at January 31, 201421,177,130
$42.26Shares of common stock repurchased under share repurchase program896,718
59.10Shares of treasury stock reissued(207,779)
Treasury stock balance at January 31, 201521,866,069
42.95Shares of common stock repurchased under share repurchase program2,497,029
58.87Shares of treasury stock reissued(199,696)
Treasury stock balance at January 31, 201624,163,402
$44.59NOTE 11 — FAIR VALUE MEASUREMENTSThe Company’s assets and liabilities carried or disclosed at fair value are classified in one of the following three categories: Level 1 – quoted market prices in active marketsfor identical assets and liabilities; Level 2 – inputs other than quoted market prices included in Level 1 above that are observable for the asset or liability, either directly orindirectly; and, Level 3 – unobservable inputs for the asset or liability. The classification of an asset or liability within the fair value hierarchy is based on the lowest level ofany input that is significant to the fair value measurement.The following table summarizes the valuation of the Company's assets and liabilities that are measured at fair value on a recurring basis:
January 31, 2016
January 31, 2015
Fair value measurement category
Fair value measurement category
Level 1Level 2Level 3
Level 1Level 2Level 3
(in thousands)Assets
Foreign currency forward contracts
$3,412
$9,903
Liabilities
Foreign currency forward contracts
$2,274
$5,411
Acquisition-related contingent consideration
$—
$3,381The Company’s foreign currency forward contracts are measured on a recurring basis based on foreign currency spot rates and forward rates quoted by banks or foreigncurrency dealers (Level 2 criteria) and are marked-to-market each period with gains and losses on these contracts recorded in the Company’s Consolidated Statement ofIncome on a basis consistent with the classification of the change in the fair value of the underlying transactions giving rise to these foreign currency exchange gains andlosses in the period in which their value changes, with the offsetting amount for unsettled positions being included in either "prepaid expenses and other assets" or "accruedexpenses and other liabilities" in the Consolidated Balance Sheet. See further discussion below in Note 12 – Derivative Instruments.The acquisition-related contingent consideration represents the future earnout payments related to the Company's acquisitions. The Company estimates the fair value of thisLevel 3 contingent consideration liability at each reporting date using a discounted cash flow analysis, which requires the evaluation of significant unobservable inputs thatinclude projected revenues, expenses and cash flows, and assumed discount rates. There are no remaining acquisition-related contingent consideration liabilities as ofJanuary 31, 2016 as all amounts were paid during fiscal 2016.The Company utilizes life insurance policies to fund the Company’s nonqualified deferred compensation plan. The life insurance asset, which is recorded in the Company'sConsolidated Balance Sheet in "other assets, net", is the amount that would be realized upon the assumed surrender of the policy. This amount is based on the underlyingfair value of the invested assets contained within the life insurance policies. The gains and losses are recorded in the Company’s Consolidated Statement of Income within"other expense (income), net." The related deferred compensation liability, which is recorded in the Company's Consolidated Balance Sheet in "accrued expenses and otherliabilities", is also marked-to-market each period based upon the returns of the various investments selected by the plan participants and the gains and losses are recordedin the Company’s Consolidated Statement of Income within "selling, general and administrative expenses." The net realizable value of the Company's life insuranceinvestments and related deferred compensation liability at January 31, 2016 is $30.2 million and $30.5 million , respectively.The $350.0 million of Senior Notes discussed in Note 7 - Debt, are carried at an amount of $348.6 million at January 31, 2016, which represents cost less unamortized debtdiscount and debt issuance costs. The estimated fair value of the Senior Notes was approximately $359.6 million at January 31, 2016 , based upon quoted marketinformation (Level 1 criteria).58 Table of ContentsThe carrying amounts of cash and cash equivalents, accounts receivable, accounts payable and accrued expenses approximate fair value because of the short maturity ofthese items. The carrying amount of debt outstanding pursuant to revolving credit facilities and loans payable approximates fair value as the majority of these instrumentshave variable interest rates which approximate current market rates (Level 2 criteria).The carrying amounts of assets held for sale (Level 3) at January 31, 2015 were written-down to their fair value of $101.7 million . The resulting impairment charge of $1.3million is recorded in "loss on disposal of subsidiaries" in the Company's Consolidated Statement of Income. The carrying value of liabilities held for sale approximated thefair value as of January 31, 2015. The fair value measurement used to determine the impairment was based upon the expected business sales price (see Note 6 - Loss onDisposal of Subsidiaries). There were no material non-recurring fair value remeasurements at January 31, 2016 .NOTE 12 — DERIVATIVE INSTRUMENTSIn the ordinary course of business, the Company is exposed to movements in foreign currency exchange rates. The Company’s foreign currency risk management objectiveis to protect earnings and cash flows from the impact of exchange rate changes primarily through the use of foreign currency forward contracts to hedge both intercompanyand third party loans, accounts receivable and accounts payable. These derivatives are not designated as hedging instruments.The Company’s foreign currency exposure relates primarily to international transactions in Europe, Canada and Latin America, where the currency collected from customerscan be different from the currency used to purchase the product. The Company’s transactions in its foreign operations are denominated primarily in the following currencies:U.S. dollar, British pound, Canadian dollar, Czech koruna, Danish krone, euro, Norwegian krone, Polish zloty, Swedish krona and Swiss franc.The Company considers inventory as an economic hedge against foreign currency exposure in accounts payable in certain circumstances. This practice offsets suchinventory against corresponding accounts payable denominated in currencies other than the functional currency of the subsidiary buying the inventory, when determining thenet exposure to be hedged using traditional forward contracts. Under this strategy, the Company would expect to increase or decrease selling prices for products purchasedin foreign currencies based on fluctuations in foreign currency exchange rates affecting the underlying accounts payable. To the extent the Company incurs a foreigncurrency exchange loss (gain) on the underlying accounts payable denominated in the foreign currency, a corresponding increase (decrease) in gross profit would beexpected as the related inventory is sold. This strategy can result in a certain degree of quarterly earnings volatility as the underlying accounts payable is remeasured usingthe foreign currency exchange rate prevailing at the end of each period, or settlement date if earlier, whereas the corresponding increase (decrease) in gross profit is notrealized until the related inventory is sold.The Company recognizes foreign currency exchange gains and losses on its derivative instruments used to manage its exposures to foreign currency denominated accountsreceivable and accounts payable as a component of “cost of products sold” which is consistent with the classification of the change in fair value upon remeasurement of theunderlying hedged accounts receivable or accounts payable. The Company recognizes foreign currency exchange gains and losses on its derivative instruments used tomanage its exposures to foreign currency denominated financing transactions as a component of “other expense (income), net” which is consistent with the classification ofthe change in fair value upon remeasurement of the underlying hedged intercompany loans. The total amount recognized in earnings on the Company’s foreign currencyforward contracts, which depending upon the nature of the underlying hedged asset or liability is included as a component of either “cost of products sold” or “other expense(income), net,” was a net foreign currency exchange gain of $9.0 million , $18.8 million and $17.2 million , respectively, for the fiscal years ended January 31, 2016 , 2015and 2014 . The gains and losses on the Company’s foreign currency forward contracts are largely offset by the change in the fair value of the underlying hedged assets orliabilities.The notional amount of forward exchange contracts is the amount of foreign currency to be bought or sold at maturity. Notional amounts are indicative of the extent of theCompany’s involvement in the various types and uses of derivative financial instruments and are not a measure of the Company’s exposure to credit or market risks throughits use of derivatives. The estimated fair value of derivative financial instruments represents the amount required to enter into similar offsetting contracts with similarremaining maturities based on quoted market prices.The Company’s foreign currency forward contracts are also discussed in Note 11 – Fair Value Measurements.The Company’s average notional amounts of derivative financial instruments outstanding during the fiscal years ended January 31, 2016 and 2015 are approximately $0.6billion and $0.7 billion , respectively, with average maturities of 30 days and 32 days, respectively. As discussed above, under the Company’s hedging policies, gains andlosses on the derivative financial instruments have been and would be expected to continue to be largely offset by the gains and losses on the underlying assets or liabilitiesbeing hedged.59 Table of ContentsNOTE 13 — COMMITMENTS AND CONTINGENCIESOperating
LeasesThe Company leases logistics centers, office facilities and certain equipment under non-cancelable operating leases, which expire at various dates through fiscal 2030. Fairvalue renewal and escalation clauses exist for a substantial portion of the operating leases. Rental expense for all operating leases, including minimum commitments underIT outsourcing agreements, totaled $45.3 million , $52.8 million and $55.5 million in fiscal years 2016, 2015 and 2014 , respectively. Future minimum lease payments atJanuary 31, 2016 , under all such leases, including minimum commitments under an agreement for data center services, for succeeding fiscal years and thereafter are asfollows (in thousands): Fiscal year:
2017$46,600201842,700201934,800202030,200202127,200Thereafter22,800Total payments$204,300Synthetic
Lease
FacilityThe Company has a synthetic lease facility with a group of financial institutions (the "Synthetic Lease") under which the Company leases certain logistics centers and officefacilities from a third-party lessor, that expires in June 2018. Properties leased under the Synthetic Lease are located in Clearwater and Miami, Florida; Fort Worth, Texas;Fontana, California; Suwanee, Georgia; Swedesboro, New Jersey; and South Bend, Indiana. The Synthetic Lease is accounted for as an operating lease and rentalpayments are calculated at the applicable LIBOR rate plus a margin based on the Company's credit ratings.Upon not less than 30 days notice, the Company, at its option, may purchase one or any combination of the properties, at an amount equal to each of the property's cost, aslong as the lease balance does not decrease below a defined amount. Upon not less than 270 days, nor more than 360 days, prior to the lease expiration, the Companymay, at its option, (i) purchase a minimum of two of the properties, at an amount equal to each of the property's cost, (ii) exercise the option to renew the lease for aminimum of two of the properties or (iii) exercise the option to remarket a minimum of two of the properties and cause a sale of the properties. If the Company elects toremarket the properties, the Company has guaranteed the lessor a percentage of the cost of each property, in the aggregate amount of approximately $133.8 million . Futureminimum lease payments under the Synthetic Lease are approximately $3.0 million per year.The Synthetic Lease contains covenants that must be complied with, similar to the covenants described in certain of the credit facilities discussed in Note 7 - Debt. As ofJanuary 31, 2016 , the Company was in compliance with all such covenants.ContingenciesPrior to fiscal 2004, one of the Company’s subsidiaries, located in Spain, was audited in relation to various value added tax ("VAT") matters. As a result of those audits, theSpanish subsidiary received notices of assessment from the Regional Inspection Unit of Spain's taxing authority that allege the subsidiary did not properly collect and remitVAT. The Spanish subsidiary appealed these assessments to the Madrid Central Economic Administrative Courts beginning in March 2010. Following the administrativecourt proceedings the matter was appealed to the Spanish National Appellate Court. During 2013, the Spanish National Appellate Court issued an opinion upholding theassessment for several of the assessed years. During fiscal 2015, the Madrid Central Economic Administrative Court issued a decision revoking the penalties for certain ofthe assessed years. As a result of this decision, during the fiscal year ended January 31, 2015 the Company decreased its accrual for costs associated with this matter by$6.2 million , which is recorded in “value added tax assessments” in the Consolidated Statement of Income. During fiscal 2016, the Spanish Supreme Court issued finaldecisions which barred the assessments for several of the assessed years. As a result of these decisions, during fiscal 2016, the Company decreased its accrual for costsassociated with this matter by $25.4 million , including $16.4 million related to an accrual for assessments and penalties recorded in “value added tax assessments” and $9.0million related to accrued interest recorded in “interest expense” in the Consolidated Statement of Income. Additionally, as a result of these decisions, the Company paidcertain assessed amounts of $12.3 million during fiscal 2016. The Company believes that the Spanish subsidiary's defense to the remaining assessments has solid legalgrounds and is continuing to vigorously defend its position by appealing to the Spanish National Appellate Court. The Company estimates the total exposure for theseassessments including various penalties and interest, was approximately $4.6 million and $43.7 million at January 31, 2016 and 2015, respectively, which is included in"accrued expenses and other liabilities" in the Consolidated Balance Sheet.60 Table of ContentsIn December 2010, in a non-unanimous decision, a Brazilian appellate court overturned a 2003 trial court which had previously ruled in favor of the Company’s Braziliansubsidiary related to the imposition of certain taxes on payments abroad related to the licensing of commercial software products, commonly referred to as “CIDE tax.” TheCompany estimates the total exposure related to CIDE tax, including interest, was approximately $17.3 million and $24.6 million at January 31, 2016 and 2015,respectively. The Brazilian subsidiary has appealed the unfavorable ruling to the Supreme Court and Superior Court, Brazil's two highest appellate courts. Based on the legalopinion of outside counsel, the Company believes that the chances of success on appeal of this matter are favorable and the Brazilian subsidiary intends to vigorouslydefend its position that the CIDE tax is not due. However, due to the lack of predictability of the Brazilian court system, the Company has concluded that it is reasonablypossible that the Brazilian subsidiary may incur a loss up to the total exposure described above. The Company believes the resolution of this litigation will not be material tothe Company’s consolidated net assets or liquidity.In addition to the CIDE tax matter discussed above, the Company’s Brazilian subsidiary has been undergoing several examinations of non-income related taxes. Given thelack of predictability of the Brazilian tax system, the Company believes that it is reasonably possible that a loss may have been incurred. However, due to the complex natureof the Brazilian tax system and the absence of communication from the local tax authorities regarding these examinations, the Company is currently unable to determine thelikelihood of these examinations resulting in assessments or to estimate the amount of loss, if any, that may be reasonably possible if such assessment were to be made.In fiscal 2016, the Company determined that it had additional VAT liabilities due in one of its European subsidiaries. As a result, the Company recorded a charge of $7.6million in “value added tax assessments” in the Consolidated Statement of Income during the year ended January 31, 2016 for VAT and associated costs. The Company haspaid all VAT associated with this matter and filed amended tax returns with the tax authorities.The Company is subject to various other legal proceedings and claims arising in the ordinary course of business. The Company’s management does not expect that theoutcome in any of these other legal proceedings, individually or collectively, will have a material adverse effect on the Company’s financial condition, results of operations, orcash flows.GuaranteesAs is customary in the technology industry, to encourage certain customers to purchase products from Tech Data, the Company has arrangements with certain financecompanies that provide inventory financing facilities to the Company’s customers. In conjunction with certain of these arrangements, the Company would be required topurchase certain inventory in the event the inventory is repossessed from the customers by the finance companies. As the Company does not have access to informationregarding the amount of inventory purchased from the Company still on hand with the customer at any point in time, the Company’s repurchase obligations relating toinventory cannot be reasonably estimated. Repurchases of inventory by the Company under these arrangements have been insignificant to date. The Company believesthat, based on historical experience, the likelihood of a material loss pursuant to these inventory repurchase obligations is remote.The Company provides additional financial guarantees to finance companies on behalf of certain customers. The majority of these guarantees are for an indefinite period oftime, where the Company would be required to perform if the customer is in default with the finance company related to purchases made from the Company. The Companyreviews the underlying credit for these guarantees on at least an annual basis. As of January 31, 2016 and 2015 , the outstanding amount of guarantees under thesearrangements totaled $4.6 million and $5.5 million , respectively. The Company believes that, based on historical experience, the likelihood of a material loss pursuant to theabove guarantees is remote.NOTE 14 — SEGMENT INFORMATIONTech Data operates predominately in a single industry segment as a distributor of technology products, logistics management, and other value-added services. While theCompany operates primarily in one industry, it is managed based on geographic segments: the Americas and Europe. The Company assesses performance of and makesdecisions on how to allocate resources to its operating segments based on multiple factors including current and projected operating income and market opportunities. TheCompany does not consider stock-based compensation expense in assessing the performance of its operating segments, and therefore the Company is reporting stock-based compensation expense as a separate amount. The accounting policies of the segments are the same as those described in Note 1 - Business and Summary ofSignificant Accounting Policies.61 Table of ContentsFinancial information by geographic segment is as follows (in thousands):Year ended January 31:2016
2015
2014Net sales to unaffiliated customers:
Americas (1)$10,356,716
$10,406,209
$10,188,618Europe16,023,067
17,264,423
16,633,286Total$26,379,783
$27,670,632
$26,821,904
Operating income:
Americas (2) (3) (4)$235,577
$145,107
$156,143Europe (5) (6) (7)180,741
136,196
80,228Stock-based compensation expense(14,890)
(13,668)
(8,858)Total$401,428
$267,635
$227,513
Depreciation and amortization:
Americas$18,243
$16,653
$16,763Europe39,010
52,093
56,216Total$57,253
$68,746
$72,979
Capital expenditures:
Americas$18,139
$13,798
$9,530Europe15,833
14,377
19,339Total$33,972
$28,175
$28,869As of January 31:2016
2015Identifiable assets:
Americas$2,078,443
$1,949,414Europe4,279,845
4,187,311Total$6,358,288
$6,136,725
Long-lived assets:
Americas (1)$29,402
$24,121Europe36,626
38,983Total$66,028
$63,104
Goodwill & acquisition-related intangible assets, net:
Americas$35,615
$8,810Europe274,401
309,158Total$310,016
$317,968(1)Net sales to unaffiliated customers in the United States represented 90% , 85% and 86% of the total Americas' net sales to unaffiliated customers for the fiscal years ended January 31,2016, 2015 and 2014 , respectively. Total long-lived assets in the United States represented 95% and 92% of the Americas' total long-lived assets at January 31, 2016 and 2015 ,respectively.(2)Operating income in the Americas for the fiscal year ended January 31, 2016 includes a gain related to LCD settlements, net, of $98.4 million (see further discussion in Note 1 -Business and Summary of Significant Accounting Policies).(3)Operating income in the Americas for the fiscal year ended January 31, 2015 includes a gain related to LCD settlements, net, of $5.1 million and restatement and remediation relatedexpenses of $4.0 million (see Note 1 - Business and Summary of Significant Accounting Policies).(4)Operating income in the Americas for the fiscal year ended January 31, 2014 includes a gain associated with LCD settlements, net, of $35.5 million and restatement and remediationrelated expenses of $13.2 million (see Note 1 - Business and Summary of Significant Accounting Policies).(5)Operating income in Europe for the fiscal year ended January 31, 2016 includes a net benefit of $8.8 million related to various VAT matters in two European subsidiaries (see furtherdiscussion in Note 13 - Commitments & Contingencies).(6)Operating income in Europe for the fiscal year ended January 31, 2015 includes restatement and remediation related expenses of $18.1 million (see further discussion in Note 1 -Business and Summary of Significant Accounting Policies) and a decrease in the accrual for value added tax matters in the Company's Spanish subsidiary of $6.2 million (see Note 13- Commitments and Contingencies).(7)Operating income in Europe for the fiscal year ended January 31, 2014 includes $40.6 million of restatement and remediation related expenses (see Note 1 - Business and Summary ofSignificant Accounting Policies).62 Table of ContentsNOTE 15 — INTERIM FINANCIAL INFORMATION (UNAUDITED)Interim financial information for fiscal years 2016 and 2015 is as follows (in thousands, except per share amounts):Fiscal year 2016:
Quarter ended:April 30 (1)
July 31 (1)(2)
October 31 (1)
January 31 (1)(2)Net sales$5,887,229
$6,580,393
$6,428,540
$7,483,621Gross profit291,889
325,279
314,844
354,649Operating income81,938
106,235
68,053
145,202Net income$51,277
$76,412
$41,900
$96,147
Net income per share:
Basic$1.39
$2.09
$1.19
$2.74Diluted$1.38
$2.09
$1.18
$2.72Fiscal year 2015:
Quarter ended:April 30 (3)
July 31 (3)(4)
October 31 (3)(5)
January 31 (3)(6)Net sales$6,728,151
$6,841,809
$6,761,181
$7,339,491Gross profit335,328
351,372
334,985
372,269Operating income31,496
67,710
66,745
101,684Net income$13,467
$39,328
$41,700
$80,677
Net income per share:
Basic$0.35
$1.03
$1.09
$2.12Diluted$0.35
$1.03
$1.09
$2.11(1)During the first, second, third and fourth quarters of fiscal 2016, the Company recorded a gain of $38.5 million , $21.5 million , $3.0 million and $35.4 million related to LCD Settlements,net, respectively (see further discussion in Note 1 - Business and Summary of Significant Accounting Policies).(2)The Company recorded a net benefit of $9.6 million in the second quarter and an expense of $0.8 million in the fourth quarter of fiscal 2016 related to various VAT matters in twoEuropean subsidiaries (see further discussion in Note 13 – Commitments & Contingencies).(3)During the first, second, third and fourth quarters of fiscal 2015, the Company recorded $12.2 million , $5.4 million , $2.1 million and $2.3 million of restatement and remediation relatedexpenses, respectively (see further discussion in Note 1 - Business and Summary of Significant Accounting Policies).(4)During the second quarter of fiscal 2015, the Company decreased its accrual for value added tax matters in its Spanish subsidiary by $6.2 million (see further discussion in Note 13 -Commitments and Contingencies).(5)During the third quarter of fiscal 2015, the Company recorded a gain of $5.1 million associated with LCD Settlements, net (see further discussion in Note 1 - Business and Summary ofSignificant Accounting Policies).(6)During the fourth quarter of fiscal 2015, the Company recorded income tax benefits of $19.2 million primarily related to the reversal of deferred tax valuation allowances in certainjurisdictions in Europe, partially offset by income tax expenses of $5.6 million related to undistributed earnings on assets held for sale in certain Latin American jurisdictions (see furtherdiscussion in Note 8 - Income Taxes).63 Table of ContentsITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.None.ITEM 9A. Controls and Procedures.Evaluation
of
Disclosure
Controls
and
ProceduresThe Company maintains disclosure controls and procedures designed to ensure that information required to be disclosed in reports filed under the Securities Exchange Actof 1934, as amended (the “Exchange Act”), is recorded, processed, summarized and reported within the specified time periods. Tech Data’s management, with theparticipation of the Company’s Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), evaluated the effectiveness of the Company’s disclosure controls andprocedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act), as of January 31, 2016. Based on this evaluation, the Company’s CEO and CFOconcluded that the Company's disclosure controls and procedures were effective as of such date.Management’s
Report
on
Internal
Control
over
Financial
ReportingManagement of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule 13a-15(f) under theExchange Act. The Company’s internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and thepreparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States (“GAAP”).Internal control over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act, is a process designed by, or under the supervision of, the CEOand CFO and is effected by the board of directors, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and thepreparation of financial statements for external reporting purposes in accordance with GAAP. Internal control over financial reporting includes those policies and proceduresthat:•pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company;•provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that thereceipts and expenditures of the Company are being made only in accordance with appropriate authorization of management and the board of directors; and•provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company's assets that could have amaterial effect on the financial statements.Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to beeffective can provide only reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of the effectiveness tofuture periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies orprocedures may deteriorate.Our management, with the participation of our CEO and CFO, assessed the effectiveness of the Company’s internal control over financial reporting as of January 31, 2016 .In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission ("COSO") in InternalControl-Integrated Framework (2013 Framework). Based on our assessment, we have concluded that, as of January 31, 2016 , the Company’s internal control over financialreporting was effective based on those criteria.The effectiveness of our internal control over financial reporting as of January 31, 2016 , has been audited by Ernst & Young LLP, the independent registered certified publicaccounting firm, who also audited the Company’s consolidated financial statements, as stated in their report included herein.Changes
in
Internal
Control
Over
Financial
ReportingThere were no changes in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) identified in connection withmanagement’s evaluation during our last quarter of fiscal 2016 that have materially affected, or are reasonably likely to materially affect, the Company’s internal control overfinancial reporting.64 Table of ContentsReport of Independent Registered Certified Public Accounting FirmThe Board of Directors and Shareholders of Tech Data CorporationWe have audited Tech Data Corporation and subsidiaries’ internal control over financial reporting as of January 31, 2016, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). Tech Data Corporationand subsidiaries’ management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal controlover financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on thecompany’s internal control over financial reporting based on our audit.We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan andperform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit includedobtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operatingeffectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that ouraudit provides a reasonable basis for our opinion.A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparationof financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includesthose policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of theassets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance withgenerally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management anddirectors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’sassets that could have a material effect on the financial statements.Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness tofuture periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies orprocedures may deteriorate.In our opinion, Tech Data Corporation and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of January 31, 2016, basedon the COSO criteria.We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Tech DataCorporation and subsidiaries as of January 31, 2016 and 2015, and the related consolidated statements of income, comprehensive income, shareholders' equity and cashflows for each of the three years in the period ended January 31, 2016 of Tech Data Corporation and subsidiaries and our report dated March 24, 2016 expressed anunqualified opinion thereon./s/ Ernst & Young LLPTampa, FloridaMarch 24, 201665 Table of ContentsITEM 9B. Other InformationAppointment
of
Chief
Operating
OfficerThe Company announced on March 24, 2016 that Richard T. Hume, age 56, was appointed Executive Vice President, Chief Operating Officer of the Company. Prior to hisappointment at the Company, Mr. Hume was employed for over thirty years at International Business Machines Corporation (“IBM”). Most recently, from January 2015 toFebruary 2016, Mr. Hume served as General Manager and Chief Operating Officer of Infrastructure and Outsourcing. Prior to that position, from January 2012 to January2015, Mr. Hume served as General Manager, Europe where he led IBM’s multi-brand European organization. From 2008 to 2011, Mr. Hume served as General Manager,Global Business Partners, directing the growth and channel development initiatives for IBM’s Business Partner Channel. Mr. Hume holds a Bachelor of Science inAccounting from Pennsylvania State University.Pursuant to his employment agreement (“Employment Agreement”), Mr. Hume will serve as Executive Vice President, Chief Operating Officer reporting to our ChiefExecutive Officer. The Employment Agreement is for an indefinite term and is effective as of March 22, 2016. Mr. Hume’s base salary is $650,000 per year, and will bereviewed annually by the Compensation Committee of the Board of Directors ("Compensation Committee") on the same basis as applicable to the other senior executiveofficers of the Company. Mr. Hume also has an opportunity to earn incentive compensation under the Company’s Incentive Bonus Plan as determined by the CompensationCommittee. Mr. Hume’s target annual incentive will be 100% of his base salary. Mr. Hume is also eligible to receive equity awards pursuant to the Company’s Long TermIncentive Plan as determined by the Compensation Committee. In addition, in consideration of Mr. Hume’s forfeiture of certain compensation from his prior employer, at thetime of the grant of the equity awards referenced above, Mr. Hume will also receive a special grant of time-based restricted stock units with a value of $850,000. This specialgrant will be subject to the same vesting and other terms and conditions applicable to the initial award of restricted stock units of Mr. Hume. Mr. Hume will also participate inthe Company’s Executive Severance Plan and Change in Control Policy. Mr. Hume is subject to non-competition and non-solicitation covenants during the term of hisemployment and for one year after such employment ends, provided that if Mr. Hume is terminated for cause or voluntarily resigns, then these covenants would not applyand Mr. Hume would not be entitled to severance. Mr. Hume is also entitled to receive other benefits including participation in the Company’s Executive Choice Plan in anamount up to $20,000 per year, and reimbursement or payment for certain relocation expenses.Adoption
of
Tech
Data
Corporation
Change
in
Control
Severance
PolicyOn March 22, 2016, the Board of Directors adopted the Tech Data Corporation Change in Control Severance Policy (the “CIC Policy”). The CIC Policy applies to eachindividual of the Company who is designated by the Compensation Committee, in its discretion, to participate. The Compensation Committee has currently designated theCompany’s executive officers as participants under the CIC Policy.The CIC Policy provides for “double trigger” severance benefits, which means that a participant will only be entitled to benefits under the CIC Policy in the event that (1) thereis a Change in Control of the Company, and (2) the participant’s employment with the Company is terminated by the Company without Cause or by the participant for GoodReason (as these terms are defined in the CIC Policy) within 24 months after the effective date of the change in control (a “Qualifying Termination”). In the event of aQualifying Termination, a participant will receive the following severance benefits, subject to his or her execution and non-revocation of a general release of claims againstthe Company:(a)A lump sum cash severance payment equal to (i) a multiple (which is 2.5 for the chief executive officer and between 1.5 and 2.0 for all other current participants)times the sum of the participant’s base salary and target annual bonus, and (ii) a pro-rata annual bonus for the fiscal year of the Company in which the terminationdate occurs, on the regularly scheduled payment date, determined based on actual performance of the Company (and in a manner consistent with how bonusdeterminations are made for continuing, active employees of the Company), prorated based on the number of days the participant was employed in such fiscalyear;(b)A monthly cash payment equal to the participant’s monthly COBRA premiums to continue medical coverage under the Company’s medical plans under which theparticipant was covered immediately before the termination date for the twelve months following the termination date; and(c)Reimbursement of the participant for reasonable expenses incurred for outplacement counseling services (i) which do not exceed $20,000, and (ii) which areincurred within twelve months following the termination date.As a condition to participation in and to receive benefits under the CIC Policy, participants agree to be bound by certain restrictive covenants including an agreement not tocompete with the business of the Company for a period of one year following the participant’s termination date. The CIC Policy does not provide for any excise tax gross uppayments. Instead, the CIC Policy provides for a cutback of payments and benefits below the relevant parachute threshold for a participant if the participant would be betteroff on a net after-tax basis following such reduction.The above summary is qualified by reference to the text of the CIC Policy that is filed herewith as Exhibit 10-52 and incorporated herein by reference.66 Table of ContentsPART IIIITEM 10. Directors, Executive Officers and Corporate Governance.The information required by Item 10 relating to executive officers of the Company is included under the caption “Executive Officers” of Item 1 of this Form 10-K. Theinformation required by Item 10 relating to Directors and corporate governance disclosures of the Company is incorporated herein by reference to the Company’s definitiveproxy statement for the 2016 Annual Meeting of Shareholders (“Proxy Statement”). The Proxy Statement for the 2016 Annual Meeting of Shareholders will be filed with theSEC within 120 days of the Company's fiscal year ended January 31, 2016 .Audit CommitteeThe Company has a separately designated, standing Audit Committee. The members of the Audit Committee are Charles E. Adair, Harry J. Harczak, Jr. (Chair), Patrick G.Sayer and Savio W. Tung. The Board of Directors of Tech Data has determined that Charles E. Adair and Harry J. Harczak, Jr. are “audit committee financial experts” asdefined by Item 407(d)(5) of Regulation S-K under the Securities Exchange Act of 1934. All members of the Audit Committee are independent as defined by applicable lawand the listing requirements of NASDAQ.Code of ConductThe Company has adopted a code of business conduct and ethics for directors, officers (including the principal executive officer, principal financial officer, and principalaccounting officer), and employees, known as the Code of Conduct, which is available on the Corporate Governance section of the Investor Relations area of our website atwww.techdata.com/investor
. Tech Data intends to provide information required by Item 5.05 of Form 8-K by disclosing any amendment to, or waiver from, a provision of theCode of Conduct that applies to Tech Data’s principal executive officer, principal financial officer, and principal accounting officer, or persons performing similar functions onthe Company’s website at the web address noted in this section.ITEM 11. Executive Compensation.The information required by this item is incorporated herein by reference to the Company's Proxy Statement.67 Table of ContentsITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.Equity Compensation Plan InformationThe number of shares issuable upon exercise of outstanding share-based equity incentives granted to employees and non-employee directors, as well as the number ofshares remaining available for future issuance, under our equity compensation and equity purchase plans as of January 31, 2016 are summarized in the following table:Plan category Number of shares to be issued upon exercise of outstanding equity-based incentives
Weighted average exercise price per shareof outstanding equity-based incentives
Number of shares remaining available for future issuance under equity compensation plans
Equity compensation plans approved by shareholders for:
Employee equity compensation528,739(1) $33.06(2) 2,405,141(3) Employee stock purchase—
—
498,440
Total528,739
$33.06
2,903,581
(1)The total of equity-based incentives outstanding also includes 12,257 units outstanding for non-employee directors.(2)Amount represents the weighted average exercise price for the 32,410 outstanding MV Stock-settled SARs, MVOs and stock options. There are 496,329 nonvested restricted stockawards that do not have an exercise price.(3)All employee and non-employee director share-based equity incentive awards are issued under the shareholder-approved 2009 Equity Incentive Plan of Tech Data Corporation.The information required by Item 12 relating to Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters is incorporated hereinby reference to the Company's Proxy Statement.ITEM 13. Certain Relationships and Related Transactions, and Director Independence.The information required by this item is incorporated herein by reference to the Company’s Proxy Statement. However, the information included in such Proxy Statementincluded under the caption entitled “Report of the Audit Committee” shall not be deemed incorporated by reference in this Form 10-K and shall not otherwise be deemed filedunder the Securities Act of 1933, as amended, or under the Exchange Act.ITEM 14. Principal Accountant Fees and Services.Information regarding principal accountant fees and services is set forth under the caption “Independent Registered Certified Public Accounting Firm Fees” in the Company’sProxy Statement and incorporated by reference herein. 68 Table of ContentsPART IVITEM 15. Exhibits, Financial Statement Schedules.(a)See index to financial statements and schedules included in Item 8.(b)The exhibit numbers on the following list correspond to the numbers in the exhibit table required pursuant to Item 601 of Regulation S-K.
ExhibitNumber
3-1 (31)Amended and Restated Articles of Incorporation of Tech Data Corporation filed on June 4, 2014 with the Secretary of the State of Florida
3-2 (31)Bylaws of Tech Data Corporation as adopted by the Board of Directors and approved by the Shareholders on June 4,2014
4-1 (24)Indenture, dated as of September 21, 2012, between Tech Data Corporation and U.S. Bank National Association, as trustee
4-2 (24)Form of 3.750% Note due 2017
10-1 (4)1995 Employee Stock Purchase Plan
10-2 (5)Transfer and Administration Agreement dated May 19, 2000
10-3 (6)2000 Non-Qualified Stock Option Plan of Tech Data Corporation
10-4 (7)Trust Agreement Between Tech Data Corporation and Fidelity Management Trust Company, Tech Data Corporation 401(k) Savings Plan Trust,effective August 1, 2003
10-5 (3)2005 Deferred Compensation Plan
10-6 (2)Amendment Number 8 to Transfer and Administration Agreement dated as of May 19, 2000 (composite through amendment 8, dated as ofDecember 13, 2004)
10-7 (25)Amendment Number 9 to Transfer and Administration Agreement dated as of March 7, 2005
10-8 (8)Executive Severance Plan, effective March 31, 2005
10-9 (8)First Amendment to the Tech Data Corporation 2005 Deferred Compensation Plan, effective January 1, 2005
10-10 (9)Amendment No. 10 to Transfer and Administration Agreement dated as of September 10. 2005
10-11 (10)Amended and Restated 2000 Equity Incentive Plan of Tech Data Corporation
10-12 (10)First Amendment to the Amended and Restated 2000 Equity Incentive Plan of Tech Data Corporation
10-13 (11)Employment Agreement Between Tech Data Corporation and Robert M. Dutkowsky, dated October 2, 2006
10-14 (12)Amendment Number 11 to Transfer and Administration Agreement dated as of March 20, 200769 Table of Contents
10-15 (13)Equity Incentive Bonus Plan
10-16 (14)Amendment Number 12 to Transfer and Administration Agreement dated as of December 18, 2007
10-17 (15)Third Amended and Restated Lease Agreement dated June 27, 2008
10-18 (15)Third Amended and Restated Credit Agreement dated June 27, 2008
10-19 (15)Third Amended and Restated Participation Agreement dated June 27, 2008
10-20 (16)Amendment No. 13 to Transfer and Administration Agreement dated as of October 22, 2008
10-21 (17)2009 Equity Incentive Plan of Tech Data Corporation
10-22 (18)Amendment Number 14 to Transfer and Administration Agreement dated as of October 16, 2009
10-23 (19)Amendment Number 15 to Transfer and Administration Agreement dated as of October 15, 2010
10-24 (20)Amendment No. 16 to Transfer and Administration Agreement dated as of August 31, 2011
10-25 (21)Amendment No. 17 to Transfer and Administration Agreement dated as of December 13, 2011
10-26 (21)Tech Data Corporation 401(k) Savings Plan (as amended and restated January 1, 2006) and Amendments 1 through 5
10-27 (22)Executive Bonus Plan, approved by Shareholders at 2012 Annual Meeting
10-28 (23)Amendment No. 18 to Transfer and Administration Agreement as of October 31, 2012
10-29 (23)Consent for Third Amended and Restated Participation Agreement
10-30 (26)Amendments 1 through 5 of Trust Agreement Between Fidelity Management Trust Company and Tech Data Corporation
10-31 (26)Amendment to the Tech Data Corporation 401(k) Savings Plan (as amended and restated January 1, 2006) dated December 11, 2012
10-32 (27)Waiver Agreement to the Third Amended and Restated Participation Agreement, Third Amended and Restated Lease Agreement and ThirdAmended and Restated Credit Agreement, dated as of April 30, 2013
10-33 (27)Limited Waiver to the Transfer and Administration Agreement, as last amended by Amendment No. 18 thereto, dated as of April 29, 2013
10-34 (28)Fourth Amended and Restated Lease Agreement, dated as of June 27, 2013
10-35 (28)Fourth Amended and Restated Credit Agreement, dated as of June 27, 2013
10-36 (28)Fourth Amended and Restated Participation Agreement, dated as of June 27, 2013
70 Table of Contents
10-37 (28)Waiver Agreement to the Fourth Amended and Restated Participation Agreement, Fourth Amended and Restated Lease Agreement and FourthAmended and Restated Credit Agreement, dated as of July 29, 2013
10-38 (28)First Amendment to the Limited Waiver to the Transfer and Administration Agreement, as last amended by Amendment No. 18 thereto, dated asof July 29, 2013
10-39 (28)Amendment Number 19 to Transfer and Administration Agreement dated as of August 12, 2013
10-40 (29)Second Waiver Agreement and Amendment to the Fourth Amended and Restated Participation Agreement, Fourth Amended and Restated LeaseAgreement and Fourth Amended and Restated Credit Agreement, dated as of October 16, 2013
10-41 (29)Second Amendment to the Limited Waiver to the Transfer and Administration Agreement, as last amended by Amendment No. 19 thereto, datedas of October 16, 2013
10-42 (30)Third Waiver Agreement and Amendment to the Fourth Amended and Restated Participation Agreement, Fourth Amended and Restated LeaseAgreement and Fourth Amended and Restated Credit Agreement, dated as of January 27, 2014
10-43 (30)Third Amendment to the Limited Waiver to the Transfer and Administration Agreement, as last amended by Amendment No. 19 thereto, dated asof January 27, 2014
10-44 (30)Employment Agreement between Tech Data Corporation and Néstor Cano, dated as of January 17, 2014
10-45 (30)Amendment to the 2009 Equity Incentive Plan of Tech Data Corporation
10-46 (32)Amendment Number 20 to Transfer and Administration Agreement dated as of August 20, 2014
10-47 (33)Tech Data Deferred Compensation Plan Trust Agreement
10-48 (34)Retirement Agreement between Tech Data Corporation and Jeffery P. Howells, dated as of June 1, 2015
10-49 (35)Amendment Number 21 to Transfer and Administration Agreement dated as of August 31, 2015
10-50 (1)Amended and Restated Credit Agreement dated as of November 5, 2015
10-51 (1)Employment Agreement Between Tech Data Corporation and Richard T. Hume, dated as of February 1, 2016
10-52 (1)Tech Data Corporation Change in Control Severance Policy dated as of March 22, 2016
21-1 (1)Subsidiaries of Registrant
23-1 (1)Consent of Ernst & Young LLP
24 (1)Power of Attorney (included on signature page)
31-A (1)Certification of Chief Executive Officer Pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), As Adopted Pursuant to Section 302 of theSarbanes-Oxley Act of 2002
31-B (1)Certification of Chief Financial Officer Pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), As Adopted Pursuant to Section 302 of theSarbanes-Oxley Act of 2002
71 Table of Contents
32-A (1)Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of2002
32-B (1)Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of2002
101 (36)Interactive data files pursuant to Rule 405 of Regulation S-T: (i) Consolidated Balance Sheet as of January 31, 2016 and 2015; (ii) ConsolidatedStatement of Income for the fiscal years ended January 31, 2016, 2015 and 2014; (iii) Consolidated Statement of Comprehensive Income for thefiscal years ended January 31, 2016, 2015 and 2014; (iv) Consolidated Statement of Shareholders’ Equity for the fiscal years ended January 31,2016, 2015 and 2014; (v) Consolidated Statement of Cash Flows for the fiscal years ended January 31, 2016, 2015 and 2014; (vi) Notes toConsolidated Financial Statements, detail tagged and (vii) Financial Statement Schedule II, detail tagged. ___________________(1) Filed herewith.(2) Incorporated by reference to the Exhibits included in the Company’s Form 8-K dated December 31, 2004, File No. 0-14625.(3) Incorporated by reference to the Exhibits included in the Company’s Form 8-K dated December 8, 2004, File No. 0-14625.(4) Incorporated by reference to the Exhibits included in the Company’s Definitive Proxy Statement for the 1995 Annual Meeting of Shareholders, File No. 0-14625.(5) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended July 31, 2000, File No. 0-14625.(6) Incorporated by reference to the Exhibits included in the Company’s Registration Statement on Form S-8, File No. 333-59198.(7) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended July 31, 2003, File No. 0-14625.(8) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2005, File No. 0-14625.(9) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2005, File No. 0-14625.(10) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2006, File No. 0-14625.(11) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2006, File No. 0-14625.(12) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended January 31, 2007, File No. 0-14625.(13) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2007, File No. 0-14625.(14) Incorporated by reference to the Exhibits included in the Company’s Form 10-K for the year ended January 31, 2008, File No. 0-14625.(15) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended July 31, 2008, File No. 0-14625.(16) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2008, File No. 0-14625 . (17) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended July 31, 2009, File No. 0-14625.(18) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2009, File No. 0-14625.(19) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2010, File No. 0-14625.(20) Incorporated by reference to the Exhibits included in the Company’s SC-TO I dated September 27, 2011, File No. 005-37498.(21) Incorporated by reference to the Exhibits included in the Company’s Form 10-K for the year ended January 31, 2012, File No. 0-14625(22) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2012, File No. 0-14625.(23) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2012, File No. 0-14625.(24) Incorporated by reference to the Exhibits included in the Company’s Form 8-K dated September 21, 2012, File No. 0-14625.(25) Incorporated by reference to the Exhibits included in the Company’s Form 8-K dated March 7, 2005, File No. 0-14625.(26) Incorporated by reference to the Exhibits included in the Company’s Form 10-K for the year ended January 31, 2013, File No. 0-14625.72 Table of Contents(27) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2013, File No. 0-14625.(28) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended July 31, 2013, File No. 0-14625.(29) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2013, File 0-14625.(30) Incorporated by reference to the Exhibits included in the Company’s Form 10-K for the year ended January 31, 2014, File No. 0-14625.(31) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the year ended April 30, 2014, File No. 0-14625.(32) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2014, File No. 0-14625.(33) Incorporated by reference to the Exhibits included in the Company’s Form 10-K for the year ended January 31, 2015, File No. 0-14625.(34) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended April 30, 2015, File No. 0-14625.(35) Incorporated by reference to the Exhibits included in the Company’s Form 10-Q for the quarter ended October 31, 2015, File No. 0-14625.(36) XBRL (Extensible Business Reporting Language) information is furnished and not filed or a part of a registration statements or prospectus for purposes of Sections 11and 12 of the Securities Act of 1933, is deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liabilityunder these sections.73 Table of ContentsSCHEDULE IITECH DATA CORPORATION AND SUBSIDIARIESVALUATION AND QUALIFYING ACCOUNTS(In thousands)
Activity
Allowance for doubtful accounts receivable and sales returns Balance at beginning of period
Charged to cost and expenses
Deductions
Other (1)
Balance at end of period Year ended January 31:
2016$50,143
$6,061
$(13,797)
$3,468
$45,8752015$58,754
$10,415
$(25,083)
$6,057
$50,1432014$58,284
$11,725
$(25,187)
$13,932
$58,754 (1)“Other” primarily includes recoveries, acquisitions and dispositions and the effect of fluctuations in foreign currencies. 74 Table of ContentsPursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by theundersigned, thereunto duly authorized on March 24, 2016. TECH DATA CORPORATION
By/s/ R OBERT M. D UTKOWSKY
Robert M. Dutkowsky
Chief Executive Officer75 Table of ContentsPOWER OF ATTORNEYEach person whose signature to this Annual Report on Form 10-K appears below hereby appoints David R. Vetter and Charles V. Dannewitz as his or her attorney-in-fact tosign on his or her behalf individually and in the capacity stated below and to file all amendments and post-effective amendments to this Annual Report on Form 10-K, andany and all instruments or documents filed as a part of or in connection with this Annual Report on Form 10-K or the amendments thereto, and the attorney-in-fact, or eitherof them, may make such changes and additions to this Annual Report on Form 10-K as the attorney-in-fact, or either of them, may deem necessary or appropriate.Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in thecapacities and on the dates indicated.
Signature Title Date
/s/ R OBERT M. D UTKOWSKYChief Executive Officer, DirectorMarch 24, 2016Robert M. Dutkowsky(principal executive officer)
/s/ C HARLES V. D ANNEWITZExecutive Vice President and ChiefMarch 24, 2016Charles V. DannewitzFinancial Officer (principal financial officer)
/s/ J EFFREY L. T AYLORSenior Vice President and Corporate ControllerMarch 24, 2016Jeffrey L. Taylor(principal accounting officer)
/s/ S TEVEN A. R AYMUNDChairman of the Board of DirectorsMarch 24, 2016Steven A. Raymund
/s/ C HARLES E. A DAIRDirectorMarch 24, 2016Charles E. Adair
/s/ H ARRY J. H ARCZAK , J R .DirectorMarch 24, 2016Harry J. Harczak, Jr.
/s/ K ATHLEEN M ISUNASDirectorMarch 24, 2016Kathleen Misunas
/s/ T HOMAS I. M ORGANDirectorMarch 24, 2016Thomas I. Morgan
/s/ P ATRICK G. S AYERDirectorMarch 24, 2016Patrick G. Sayer
/s/ S AVIO W. T UNGDirectorMarch 24, 2016Savio W. Tung
/s/ D AVID M. U PTONDirectorMarch 24, 2016David M. Upton
76 Published
CUSIP
Number:
87823QAE4AMENDED AND RESTATED CREDIT AGREEMENTDated
as
of
November
5,
2015
amongTECH DATA CORPORATIONas
the
BorrowerBANK OF AMERICA, N.A.,as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer
andThe
Other
Lenders
Party
HeretoMERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CITIGROUP GLOBAL MARKETS, INC.,andJ.P. MORGAN SECURITIES LLCas
Joint
Lead
Arrangers
and
Joint
BookrunnersCITIBANK, N.A. and JPMORGAN CHASE BANK, N.A.,asCo-Syndication
Agents
and
L/C
IssuersSUNTRUST BANK,THE BANK OF NOVA SCOTIA,THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,U.S. BANK NATIONAL ASSOCIATION, UNICREDIT BANK AGandHSBC BANK USA, NATIONAL ASSOCIATIONasco-Documentation
Agents TABLE OF CONTENTSARTICLE
I
DEFINITIONS
AND
ACCOUNTING
TERMS
11.1Defined
Terms
11.2Other
Interpretive
Provisions
271.3Accounting
Terms
281.4Exchange
Rates;
Currency
Equivalents
281.5Additional
Alternative
Currencies
291.6Change
of
Currency
301.7Times
of
Day
301.8Letter
of
Credit
Amounts
30ARTICLE
II
THE
COMMITMENTS
AND
CREDIT
EXTENSIONS312.1Committed
Loans
312.2Borrowings,
Conversions
and
Continuations
of
Committed
Loans
312.3Letters
of
Credit
332.4Swing
Line
Loans
422.5Prepayments
452.6Termination
or
Reduction
of
Commitments
462.7Repayment
of
Loans
472.8Interest
472.9Fees
482.10Computation
of
Interest
and
Fees
482.11Evidence
of
Debt
492.12Payments
Generally;
Administrative
Agent's
Clawback
492.13Sharing
of
Payments
by
Lenders
512.14Increase
in
Commitments
522.15Cash
Collateral
532.16Defaulting
Lenders
54ARTICLE
III
TAXES,
YIELD
PROTECTION
AND
ILLEGALITY56 3.1Taxes
563.2Illegality
623.3Inability
to
Determine
Rates
623.4Increased
Costs;
Reserves
on
Loans
633.5Compensation
for
Losses
653.6Mitigation
Obligations;
Replacement
of
Lenders
663.7Survival
66ARTICLE
IV
GUARANTY664.01Facility
Guaranty
66ARTICLE
V
CONDITIONS
PRECEDENT
TO
CREDIT
EXTENSIONS665.1Conditions
of
Closing
665.2Conditions
to
all
Credit
Extensions
68ARTICLE
VI
REPRESENTATIONS
AND
WARRANTIES696.1Existence,
Qualification
and
Power;
Compliance
with
Laws
696.2Authorization;
No
Contravention.
69 6.3Governmental
Authorization;
Other
Consents
706.4Binding
Effect
706.5Financial
Statements;
No
Material
Adverse
Effect
706.6Litigation
706.7No
Default
716.8Ownership
of
Property;
Liens
716.9Environmental
Compliance
716.10Insurance
716.11Taxes
716.12ERISA
Compliance
716.13Subsidiaries
726.14Margin
Regulations;
Investment
Company
Act
726.15Disclosure
726.16Compliance
with
Laws
736.17Intangible
Assets
736.18Off-Balance
Sheet
Liabilities
736.19Solvency
736.20OFAC
736.21Anti-Corruption
Laws
73ARTICLE
VII
AFFIRMATIVE
COVENANTS
737.1Financial
Statements
737.2Certificates;
Other
Information.
747.3Notices
767.4Payment
of
Obligations
767.5Preservation
of
Existence,
Etc
767.6Maintenance
of
Properties
767.7Maintenance
of
Insurance
767.8Compliance
with
Laws
77 7.9Books
and
Records
777.10Inspection
Rights
777.11Use
of
Proceeds
777.12New
Subsidiaries
777.13Compliance
with
Agreements
787.14Compliance
with
ERISA
787.15Anti-Corruption
Laws
78ARTICLE
VIII
NEGATIVE
COVENANTS
788.1Liens
788.2Investments
808.3Indebtedness
818.4Fundamental
Changes
828.5Dispositions
838.6Restricted
Payments
838.7Change
in
Nature
of
Business
848.8Transactions
with
Affiliates
848.9Burdensome
Agreements
848.10Use
of
Proceeds
848.11Lease
Obligations
848.12Acquisitions
858.13Financial
Covenants
85 8.14Off-Balance
Sheet
Liabilities
858.15Sanctions
858.16Anti-Corruption
Laws
86ARTICLE
IX
EVENTS
OF
DEFAULT
AND
REMEDIES
869.1Events
of
Default
869.2Remedies
Upon
Event
of
Default
889.3Application
of
Funds
89ARTICLE
X
ADMINISTRATIVE
AGENT
9010.1Appointment
and
Authority
9010.2Rights
as
a
Lender
9010.3Exculpatory
Provisions
9010.4Reliance
by
Administrative
Agent
9110.5Delegation
of
Duties
9110.6Resignation
of
Administrative
Agent
9210.7Non-Reliance
on
Administrative
Agent
and
Other
Lenders
9310.8No
Other
Duties,
Etc
9310.9Administrative
Agent
May
File
Proofs
of
Claim
9310.10Guaranty
Matters
94ARTICLE
XI
MISCELLANEOUS
9511.1Amendments,
Etc
9511.2Notices;
Effectiveness;
Electronic
Communication.
9711.3No
Waiver;
Cumulative
Remedies;
Enforcement
9911.4Expenses;
Indemnity;
Damage
Waiver
9911.5Payments
Set
Aside
10111.6Successors
and
Assigns
10111.7Treatment
of
Certain
Information;
Confidentiality
10611.8Right
of
Setoff
10711.9Interest
Rate
Limitation.
107 11.10Counterparts;
Integration;
Effectiveness
10811.11Survival
of
Representations
and
Warranties
10811.12Severability
10811.13Replacement
of
Lenders
10811.14Governing
Law;
Jurisdiction;
Etc
10911.15Waiver
of
Jury
Trial
11011.16USA
PATRIOT
Act
Notice
11011.17Judgment
Currency
11111.18No
Advisory
or
Fiduciary
Responsibility
11111.19Electronic
Execution
of
Assignments
and
Certain
Other
Documents
11111.20Amendment
and
Restatement
112 SCHEDULES1.01-A
Existing
Letters
of
Credit1.01-B
Alternative
Currencies1.01-C
Existing
Synthetic
Lease
Facilities
1.01-D
Existing
Trade
Receivables
Facilities2.01
Commitments
and
Pro
Rata
Shares6.13
Borrower
and
Subsidiaries6.18
Off-Balance
Sheet
Liabilities8.1Existing
Liens8.2Investments8.3Existing
Indebtedness11.02
Administrative
Agent's
Office,
Certain
Addresses
for
NoticesEXHIBITSForm
ofACommitted
Loan
NoticeBSwing
Line
Loan
NoticeCNoteDCompliance
CertificateEAssignment
and
AssumptionFU.S.
Tax
Compliance
CertificatesGLetter
of
Credit
Report AMENDED AND RESTATED CREDIT AGREEMENTThis
AMENDED
AND
RESTATED
CREDIT
AGREEMENT
("
Agreement
")
is
entered
into
as
of
November
5,
2015,
among
TECH
DATACORPORATION,
a
Florida
corporation
(the
"
Borrower
"),
each
lender
from
time
to
time
party
hereto
(collectively,
the
"
Lenders
"
and
individually,
a"
Lender
"),
and
BANK
OF
AMERICA,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer.The
Borrower,
the
lenders
party
thereto
and
Bank
of
America,
N.A.,
as
administrative
agent,
have
entered
into
that
certain
Credit
Agreementdated
as
of
September
27,
2011
(as
amended
or
modified
from
time
to
time
prior
to
the
date
hereof,
the
"
Existing
Credit
Agreement
").The
parties
hereto
wish
to
amend
and
restate
the
Existing
Credit
Agreement
to
make
certain
amendments
and
modifications
as
more
fully
setforth
herein.In
connection
of
the
mutual
covenants
and
agreements
contained
herein,
the
parties
hereto
agree
and
covenant
as
follows:ARTICLE I DEFINITIONS AND ACCOUNTING TERMS1.1
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
orconvertible
or
similar
type
security
to
acquire
such
a
controlling
interest
at
the
time
it
becomes
exercisable
by
the
holder
thereof),
whether
by
purchaseof
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
Personwhich
constitute
all
or
substantially
all
of
the
assets
of
such
Person
or
of
a
line
or
lines
of
business
conducted
by
such
Person."
Administrative
Agent
"
means
Bank
of
America
in
its
capacity
as
administrative
agent
under
any
of
the
Loan
Documents,
or
any
successoradministrative
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
setforth
on
Schedule
11.02
with
respect
to
such
currency,
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
isControlled
by
or
is
under
common
Control
with
the
Person
specified.
"
Control
"
means
the
possession,
directly
or
indirectly,
of
the
power
to
direct
orcause
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)
."
Aggregate
Commitments
"
means
the
Commitments
of
all
the
Lenders.
The
initial
amount
of
the
Aggregate
Commitments
in
effect
on
theClosing
Date
is
FIVE
HUNDRED
MILLION
DOLLARS
($500,000,000)."
Agreement
"
means
this
Credit
Agreement."
Alternative
Currency
"
means
each
currency
listed
on
Schedule
1.01-B
,
and
each
other
lawful
currency
(other
than
Dollars)
that
is
freelyavailable
and
freely
transferable
and
convertible
into
Dollars
and
which
is
approved
by
all
the
Lenders
in
accordance
with
Section
1.05
."
Alternative
Currency
Equivalent
"
means,
at
any
time,
with
respect
to
any
amount
denominated
in
Dollars,
the
equivalent
amount
thereof
inthe
applicable
Alternative
Currency,
as
determined
by
the
Administrative
Agent
or
the
applicable
L/C
Issuer,
as
the
case
may
be,
at
such
time
on
thebasis
of
the
Spot
Rate
(determined
in
respect
of
the
most
recent
Revaluation
Date)
for
the
purchase
of
such
Alternative
Currency
with
Dollars."
Applicable
Rate
"
means,
from
time
to
time,
the
following
percentages
per
annum,
based
upon
the
Debt
Ratings
of
both
S&P
and
Moody's
asset
forth
below:Pricing
Debt
Rating
S&P/Moody'sLevel
FeeRateCredit
Fee
1BBB+/Baa1
or
Higher0.125%1.000%1.000%0.000%2BBB/Baa20.150%1.100%1.100%0.100%3BBB-/Baa30.200%1.175%1.175%0.175%4BB+/Ba10.250%1.375%1.375%0.375%5Lower
than
BB+Ba1
orunrated0.350%1.650%1.650%0.650% FacilityEurocurrencyLetter
of
Base
Rate"Debt
Rating"
means,
as
of
any
date
of
determination,
the
rating
as
determined
by
either
S&P
or
Moody's
(collectively,
the
"
Debt
Ratings
")
ofthe
Borrower's
non-credit-enhanced,
senior
unsecured
long-term
debt;
provided
that
(i)
if
a
Debt
Rating
is
issued
by
each
of
the
foregoing
ratingagencies
and
there
is
a
split
in
the
Debt
Ratings
of
one
level,
then
the
higher
of
such
Debt
Ratings
shall
apply
(with
the
Debt
Rating
for
Pricing
Level
1being
the
highest
and
the
Debt
Rating
for
Pricing
Level
5
being
the
lowest),
(ii)
if
a
Debt
Rating
is
issued
by
each
of
the
foregoing
rating
agencies
andthere
is
a
split
in
the
Debt
Ratings
of
more
than
one
level,
then
the
Debt
Rating
that
is
one
level
lower
than
the
higher
of
such
Debt
Ratings
shall
applyand
(iii)
if
there
is
no
Debt
Rating
in
effect,
Pricing
Level
5
shall
apply.Initially,
the
Applicable
Rate
shall
be
determined
based
upon
the
Debt
Rating
specified
in
the
certificate
delivered
pursuant
to
Section
5.0l(a)(vii)
.
Thereafter,
each
change
in
the
Applicable
Rate
resulting
from
a
publicly
announced
change
in
the
Debt
Rating
shall
be
effective,
in
the
case
of
anupgrade,
during
the
period
commencing
on
the
date
of
delivery
by
the
Borrower
to
the
Administrative
Agent
of
notice
thereof
pursuant
to
Section7.03(e
)
and
ending
on
the
date
immediately
preceding
the
effective
date
of
the
next
such
change
and,
in
the
case
of
a
downgrade,
during
the
periodcommencing
on
the
date
of
the
public
announcement
thereof
and
ending
on
the
date
immediately
preceding
the
effective
date
of
the
next
such
change."
Applicable
Time
"
means,
with
respect
to
any
borrowings
and
payments
in
any
Alternative
Currency,
the
local
times
in
the
place
of
settlementfor
such
Alternative
Currency
as
may
be
determined
by
the
Administrative
Agent
to
be
necessary
for
timely
settlement
on
the
relevant
date
inaccordance
with
normal
banking
procedures
in
the
place
of
payment."
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
Affiliateof
an
entity
that
administers
or
manages
a
Lender."
Arrangers
"
means
MLPFS,
Citigroup
Global
Markets,
Inc.
and
J.P.
Morgan
Securities,
LLC,
in
their
capacity
as
joint
lead
arrangers
and
jointbookrunners."
Assignment
and
Assumption
"
means
an
assignment
and
assumption
entered
into
by
a
Lender
and
an
Eligible
Assignee
(with
the
consent
ofany
party
whose
consent
is
required
by
Section
11.06(b)
),
and
accepted
by
the
Administrative
Agent,
in
substantially
the
form
of
Exhibit
E
or
anyother
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,
withoutduplication,
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
Personprepared
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
leasepayments
under
the
relevant
lease
that
would
appear
on
a
balance
sheet
of
such
Person
prepared
in
accordance
with
GAAP
if
such
lease
wereaccounted
for
as
a
capital
lease,
calculated
as
of
the
Closing
Date,
with
respect
to
any
Real
Estate
Financing
Facility
outstanding
on
the
ClosingDate,
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
purchasersor
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
thedefinition
of
"Off-Balance
Sheet
Liabilities,"
the
capitalized
amount
of
such
obligation
that
would
appear
on
a
balance
sheet
of
such
Personprepared
on
such
date
in
accordance
with
GAAP
if
such
sale
or
transfer
or
assets
were
accounted
for
as
a
secured
loan."
Audited
Financial
Statements
"
means
the
audited
consolidated
balance
sheet
of
the
Borrower
and
its
Subsidiaries
for
the
fiscal
year
endedJanuary
31,
2015
, and
the
related
consolidated
statements
of
income
or
operations,
shareholders'
equity
and
cash
flows
for
such
fiscal
year
of
theBorrower
and
its
Subsidiaries,
including
the
notes
thereto."
Auto-Extension
Letter
of
Credit
"
has
the
meaning
specified
in
Section
2.03(b)(iii)
."
Availability
Period
"
means
the
period
from
and
including
the
Closing
Date
to
the
earliest
of
(a)
the
Maturity
Date,
(b)
the
date
of
terminationof
the
Aggregate
Commitments
pursuant
to
Section
2.06
,
and
(c)
the
date
of
termination
of
the
commitment
of
each
Lender
to
make
Loans
and
of
theobligation
of
the
L/C
Issuers
to
make
L/C
Credit
Extensions
pursuant
to
Section
9.02
."
Bank
of
America
"
means
Bank
of
America,
N.A.
and
its
successors."
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
ofinterest
in
effect
for
such
day
as
publicly
announced
from
time
to
time
by
Bank
of
America
as
its
"prime
rate"
and
(c)
the
Eurocurrency
Rate
plus
1.0%.The
"prime
rate"
is
a
rate
set
by
Bank
of
America
based
upon
various
factors
including
Bank
of
America's
costs
and
desired
return,
general
economicconditions
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.
Anychange
in
such
rate
announced
by
Bank
of
America
shall
take
effect
at
the
opening
of
business
on
the
day
specified
in
the
public
announcement
of
suchchange."
Base
Rate
Committed
Loan
"
means
a
Committed
Loan
that
is
a
Base
Rate
Loan."
Base
Rate
Loan
"
means
a
Loan
that
bears
interest
based
on
the
Base
Rate.
All
Base
Rate
Loans
shall
be
denominated
in
Dollars."
Borrower
"
has
the
meaning
specified
in
the
introductory
paragraph
hereto."
Borrower
Materials
"
has
the
meaning
specified
in
Section
7.02
."
Borrowing
"
means
a
Committed
Borrowing
or
a
Swing
Line
Borrowing,
as
the
context
mayrequire."
Business
Day
"
means
any
day
other
than
a
Saturday,
Sunday
or
other
day
on
which
commercial
banks
are
authorized
to
close
under
the
Lawsof,
or
are
in
fact
closed
in,
the
state
where
the
Administrative
Agent's
Office
with
respect
to
Obligations
denominated
in
Dollars
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
Dollars
inrespect
of
any
such
Eurocurrency
Rate
Loan,
or
any
other
dealings
in
Dollars
to
be
carried
out
pursuant
to
this
Agreement
in
respect
of
anysuch
Eurocurrency
Rate
Loan,
means
any
such
day
that
is
also
a
London
Banking
Day;(b)
if
such
day
relates
to
any
interest
rate
settings
as
to
a
Eurocurrency
Rate
Loan
denominated
in
Euro,
any
fundings,disbursements,
settlements
and
payments
in
Euro
in
respect
of
any
such
Eurocurrency
Rate
Loan,
or
any
other
dealings
in
Euro
to
be
carried
outpursuant
to
this
Agreement
in
respect
of
any
such
Eurocurrency
Rate
Loan,
means
a
TARGET
Day; (c)
if
such
day
relates
to
any
interest
rate
settings
as
to
a
Eurocurrency
Rate
Loan
denominated
in
a
currency
other
than
Dollarsor
Euro,
means
any
such
day
on
which
dealings
in
deposits
in
the
relevant
currency
are
conducted
by
and
between
banks
in
the
London
or
otherapplicable
offshore
interbank
market
for
such
currency;(d)
if
such
day
relates
to
any
fundings,
disbursements,
settlements
and
payments
in
a
currency
other
than
Dollars
or
Euro
inrespect
of
a
Eurocurrency
Rate
Loan
denominated
in
a
currency
other
than
Dollars
or
Euro,
or
any
other
dealings
in
any
currency
other
thanDollars
or
Euro
to
be
carried
out
pursuant
to
this
Agreement
in
respect
of
any
such
Eurocurrency
Rate
Loan
(other
than
any
interest
ratesettings),
means
any
such
day
on
which
banks
are
open
for
foreign
exchange
business
in
the
principal
financial
center
of
the
country
of
suchcurrency;(e)
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."
Cash
Collateralize
"
means
to
pledge
and
deposit
with
or
deliver
to
the
Administrative
Agent,
for
the
benefit
of
the
Administrative
Agent
oran
L/C
Issuer
(as
applicable)
and
the
Lenders,
as
collateral
for
L/C
Obligations
or
obligations
of
Lenders
to
fund
participations
therein
(as
the
contextmay
require),
cash
or
deposit
account
balances
or,
if
an
L/C
Issuer
benefitting
from
such
collateral
shall
agree
in
its
sole
discretion,
other
credit
support,in
each
case
pursuant
to
documentation
in
form
and
substance
reasonably
satisfactory
to
(a)
the
Administrative
Agent
and
(b)
an
L/C
Issuer.
"CashCollateral"
shall
have
a
meaning
correlative
to
the
foregoing
and
shall
include
the
proceeds
of
such
cash
collateral
and
other
credit
support."
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
ordirective
(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
connectiontherewith
and
(ii)
all
requests,
rules,
guidelines
or
directives
promulgated
by
the
Bank
for
International
Settlements,
the
Basel
Committee
on
BankingSupervision
(or
any
successor
or
similar
authority)
or
the
United
States
or
foreign
regulatory
authorities,
in
each
case
pursuant
to
Basel
III,
shall
in
eachcase
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,
butexcluding
any
employee
benefit
plan
of
such
person
or
its
subsidiaries,
and
any
person
or
entity
acting
in
its
capacity
as
trustee,
agent
or
otherfiduciary
or
administrator
of
any
such
plan)
becomes
the
"beneficial
owner"
(as
defined
in
Rules
13d-3
and
13d-5
under
the
SecuritiesExchange
Act
of
1934,
except
that
a
person
or
group
shall
be
deemed
to
have
"beneficial
ownership"
of
all
securities
that
such
person
or
grouphas
the
right
to
acquire
(such
right,
an
"
option
right
"),
whether
such
right
is
exercisable
immediately
or
only
after
the
passage
of
time),
directlyor
indirectly,
of
30%
or
more
of
the
equity
securities
of
such
Person
entitled
to
vote
for
members
of
the
board
of
directors
or
equivalentgoverning
body
of
such
Person
on
a
fully-diluted
basis
(and
taking
into
account
all
such
securities
that
such
person
or
group
has
the
right
toacquire
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
equivalentgoverning
body
of
such
Person
cease
to
be
composed
of
individuals
(i)
who
were
members
of
that
board
or
equivalent
governing
body
on
thefirst
day
of
such
period,
(ii)
whose
election
or
nomination
to
that
board
or
equivalent
governing
body
was
approved
by
individuals
referred
to
inclause
(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
the
date
hereof."
Code
"
means
the
Internal
Revenue
Code
of
1986."
Commitment
"
means,
as
to
each
Lender,
its
obligation
to
(a)
make
Committed
Loans
to
the
Borrower
pursuant
to
Section
2.01
,
(b)
purchaseparticipations
in
L/C
Obligations,
and
(c)
purchase
participations
in
Swing
Line
Loans,
in
an
aggregate
principal
amount
(at
any
one
time
outstanding)for
which
the
Dollar
Equivalent
amount
does
not
exceed
the
amount
set
forth
opposite
such
Lender's
name
on
Schedule
2.01
or
in
the
Assignment
andAssumption
pursuant
to
which
such
Lender
becomes
a
party
hereto,
as
applicable,
as
such
amount
may
be
adjusted
from
time
to
time
in
accordancewith
this
Agreement. "
Committed
Borrowing
"
means
a
borrowing
consisting
of
simultaneous
Committed
Loans
of
the
same
Type
and,
in
the
case
of
EurocurrencyRate
Loans,
having
the
same
Interest
Period
made
by
each
of
the
Lenders
pursuant
to
Section
2.01
."
Committed
Loan
"
has
the
meaning
specified
in
Section
2.01
."
Committed
Loan
Notice
"
means
a
notice
of
(a)
a
Committed
Borrowing,
(b)
a
conversion
of
Committed
Loans
from
one
Type
to
the
other,
or(c)
a
continuation
of
Eurocurrency
Rate
Loans,
pursuant
to
Section
2.02(a)
,
which
shall
be
substantially
in
the
form
of
Exhibit
A
or
such
other
form
asmay
be
approved
by
the
Administrative
Agent
(including
any
form
on
an
electronic
platform
or
electronic
transmission
system
as
shall
be
approved
bythe
Administrative
Agent),
appropriately
completed
and
signed
by
a
Responsible
Officer
of
the
Borrower."
Compliance
Certificate
"
means
a
certificate
substantially
in
the
form
of
Exhibit
D
."
Connection
Income
Taxes
"
means
Other
Connection
Taxes
that
are
imposed
on
or
measured
by
net
income
(however
denominated)
or
thatare
franchise
Taxes
or
branch
profits
Taxes."
Consolidated
Debt-to-Capitalization
Ratio
"
means,
as
of
any
date
of
determination,
subject
to
Section
8.13(c)
,
the
ratio
of
(a)
ConsolidatedFunded
Indebtedness
as
of
such
date
to
(b)
Consolidated
Total
Capitalization
as
of
such
date."
Consolidated
EBITDA
"
means,
for
any
period,
for
the
Borrower
and
its
Subsidiaries
on
a
consolidated
basis,
an
amount
equal
toConsolidated
Net
Income
for
such
period
plus
the
following
to
the
extent
deducted
in
calculating
such
Consolidated
Net
Income:
(a)
ConsolidatedInterest
Charges
for
such
period,
(b)
the
provision
for
federal,
state,
local
and
foreign
income
taxes
payable
by
the
Borrower
and
its
Subsidiaries
forsuch
period,
(c)
the
amount
of
depreciation
and
amortization
expense
for
such
period,
(d)
non-cash
stock
based
compensation
expense
and
(e)
othernon-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,
thesum
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
(whichamount,
for
the
avoidance
of
doubt,
includes
only
the
drawn
portion
of
any
line
of
credit
or
revolving
credit
facility),
(b)
all
purchase
moneyIndebtedness,
(c)
all
direct
obligations
arising
under
letters
of
credit
(including
standby
and
commercial),
bankers'
acceptances,
bank
guaranties,
suretybonds
and
similar
instruments,
(d)
all
obligations
in
respect
of
the
deferred
purchase
price
of
property
or
services
(other
than
trade
accounts
payable
inthe
ordinary
course
of
business),
(e)
all
Attributable
Indebtedness
in
respect
of
capital
leases,
obligations
under
the
Real
Estate
Financing
Facilities
andasset
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
aSubsidiary
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
accordancewith
GAAP,
which
sale
is
not,
and
is
not
made
in
connection
with,
an
obligation
under
any
Real
Estate
Financing
Facility
or
an
asset
securitizationtransaction
and
(y)
any
obligation
arising
under
a
sale
and
lease
back
transaction
that
is
an
operating
lease."
Consolidated
Interest
Charges
"
means,
for
any
period,
for
the
Borrower
and
its
Subsidiaries
on
a
consolidated
basis,
the
sum
of
(a)
allinterest,
premium
payments,
debt
discount,
fees,
charges
and
related
expenses
of
the
Borrower
and
its
Subsidiaries
in
connection
with
borrowed
moneyor
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
portionof
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,
subject
to
Section
8.13(c)
the
ratio
of
(a)
ConsolidatedEBITDA
for
the
period
of
the
four
prior
fiscal
quarters
ending
on
such
date
to
(b)
Consolidated
Interest
Charges
for
such
four
fiscal
quarter
period."
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
Capitalization
"
means,
as
of
any
date
of
determination,
the
sum
of
Consolidated
Funded
Indebtedness
plus
Shareholders'Equity. "
Contractual
Obligation
"
means,
as
to
any
Person,
any
provision
of
any
security
issued
by
such
Person
or
of
any
agreement,
instrument
orother
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
singletransaction,
a
series
of
transactions,
or
in
separate
transactions.
The
Convertible
Debentures
may
be
either
senior
or
subordinated
debentures."
Cost
of
Acquisition
"
means
the
sum
of
(a)
the
amount
of
cash
and
the
face
amount
of
any
debt
instrument
given
as
consideration
plus
(b)
anyIndebtedness
assumed
by
Borrower
or
its
Subsidiaries
in
connection
with
such
Acquisition."
Credit
Extension
"
means
each
of
the
following:
(a)
a
Borrowing
and
(b)
an
L/C
Credit
Extension."
Debenture
Put
Option
"
means
the
option
of
any
holder
of
Convertible
Debentures
to
require
the
Borrower
to
repurchase
such
debentures
inaccordance
with
the
terms
of
a
Tech
Data
Indenture."
Debt
Rating
"
has
the
meaning
set
forth
in
the
definition
of
"Applicable
Rate.""
Debtor
Relief
Laws
"
means
the
Bankruptcy
Code
of
the
United
States,
and
all
other
liquidation,
conservatorship,
bankruptcy,
assignment
forthe
benefit
of
creditors,
moratorium,
rearrangement,
receivership,
insolvency,
reorganization,
or
similar
debtor
relief
Laws
of
the
United
States
or
otherapplicable
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."
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;
and
provided
,
further
,
that
withrespect
to
Letter
of
Credit
fees,
the
Default
Rate
shall
be
a
rate
equal
to
the
Applicable
Rate
(for
Letter
of
Credit
fees)
plus
2%
per
annum,
in
each
caseto
the
fullest
extent
permitted
by
applicable
Laws."
Defaulting
Lender
"
means,
subject
to
Section
2.15(b)
,
any
Lender
that
(a)
has
failed
to
(i)
fund
all
or
any
portion
of
its
Loans
within
three
(3)Business
Days
of
the
date
such
Loans
were
required
to
be
funded
hereunder
unless
such
Lender
notifies
the
Administrative
Agent
and
the
Borrower
inwriting
that
such
failure
is
the
result
of
such
Lender's
determination
that
one
or
more
conditions
precedent
to
funding
(each
of
which
conditionsprecedent,
together
with
any
applicable
default,
shall
be
specifically
identified
in
such
writing)
has
not
been
satisfied,
or
(ii)
pay
to
the
AdministrativeAgent,
the
L/C
Issuer,
the
Swing
Line
Lender
or
any
other
Lender
any
other
amount
required
to
be
paid
by
it
hereunder
(including
in
respect
of
itsparticipation
in
Letters
of
Credit
or
Swing
Line
Loans)
within
three
(3)
Business
Days
of
the
date
when
due,
(b)
has
notified
the
Borrower,
theAdministrative
Agent,
the
L/C
Issuer
or
the
Swing
Line
Lender
in
writing
that
it
does
not
intend
to
comply
with
its
funding
obligations
hereunder,
orhas
made
a
public
statement
to
that
effect
(unless
such
writing
or
public
statement
relates
to
such
Lender's
obligation
to
fund
a
Loan
hereunder
andstates
that
such
position
is
based
on
such
Lender's
determination
that
a
condition
precedent
to
funding
(which
condition
precedent,
together
with
anyapplicable
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
theBorrower
that
it
will
comply
with
its
prospective
funding
obligations
hereunder
(
provided
that
such
Lender
shall
cease
to
be
a
Defaulting
Lenderpursuant
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,
or
(ii)
hadappointed
for
it
a
receiver,
custodian,
conservator,
trustee,
administrator,
assignee
for
the
benefit
of
creditors
or
similar
Person
charged
withreorganization
or
liquidation
of
its
business
or
assets,
including
the
Federal
Deposit
Insurance
Corporation
or
any
other
state
or
federal
regulatoryauthority
acting
in
such
a
capacity;
provided
that
a
Lender
shall
not
be
a
Defaulting
Lender
solely
by
virtue
of
the
ownership
or
acquisition
of
anyEquity
Interests
in
that
Lender
or
any
direct
or
indirect
parent
company
thereof
by
a
Governmental
Authority
so
long
as
such
ownership
interest
doesnot
result
in
or
provide
such
Lender
with
immunity
from
the
jurisdiction
of
courts
within
the
United
States
or
from
the
enforcement
of
judgments
orwrits
of
attachment
on
its
assets
or
permit
such
Lender
(or
such
Governmental
Authority)
to
reject,
repudiate,
disavow
or
disaffirm
any
contracts
oragreements
made
with
such
Lender.
Any
determination
by
the
Administrative
Agent
that
a
Lender
is
a
Defaulting
Lender
under
any
one
or
more
ofclauses
(a)
through
(d)
above,
and
of
the
effective
date
of
such
status,
shall
be
conclusive
and
binding
absent
manifest
error,
and
such
Lender
shall
bedeemed
to
be
a
Defaulting
Lender
(subject
to
Section
2.15(b)
)
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,
the
L/C
Issuer,
the
Swing
Line
Lender
and
each
otherLender
promptly
following
such
determination."
Designated
Jurisdiction
"
means
any
country
or
territory
to
the
extent
that
such
country
or
territory
itself
is
the
subject
of
Sanctions
thatbroadly
prohibit
dealings
with
such
country
or
territory
(as
of
the
Closing
Date,
the
Crimea
region
of
Ukraine,
Cuba,
Iran,
North
Korea,
Sudan
andSyria)."
Disposition
"
or
"
Dispose
"
means
the
sale,
transfer,
license,
lease
or
other
disposition
(including
any
sale
and
leaseback
transaction)
of
anyproperty
by
any
Person,
including
any
sale,
assignment,
transfer
or
other
disposal,
with
or
without
recourse,
of
any
notes
or
accounts
receivable
or
anyrights
and
claims
associated
therewith."
Dollar
"
and
"
$
"
mean
lawful
money
of
the
United
States."
Dollar
Equivalent
"
means,
at
any
time,
(a)
with
respect
to
any
amount
denominated
in
Dollars,
such
amount,
and
(b)
with
respect
to
anyamount
denominated
in
any
Alternative
Currency,
the
equivalent
amount
thereof
in
Dollars
as
determined
by
the
Administrative
Agent
or
theapplicable
L/C
Issuer,
as
the
case
may
be,
at
such
time
on
the
basis
of
the
Spot
Rate
(determined
in
respect
of
the
most
recent
Revaluation
Date)
for
thepurchase
of
Dollars
with
such
Alternative
Currency."
Domestic
Subsidiary
"
means
any
Subsidiary
that
is
organized
under
the
laws
of
any
political
subdivision
of
the
United
States."
Eligible
Assignee
"
means
any
Person
that
meets
the
requirements
to
be
an
assignee
under
Section
11.06(b)(iii)
and
(v)
(subject
to
suchconsents,
if
any,
as
may
be
required
under
Section
10.06(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
theenvironment
or
the
release
of
any
materials
into
the
environment,
including
those
related
to
hazardous
substances
or
wastes,
air
emissions
anddischarges
to
waste
or
public
systems."
Environmental
Liability
"
means
any
liability,
contingent
or
otherwise
(including
any
liability
for
damages,
costs
of
environmentalremediation,
fines,
penalties
or
indemnities),
of
the
Borrower,
any
other
Loan
Party
or
any
of
their
respective
Subsidiaries
directly
or
indirectlyresulting
from
or
based
upon
(a)
violation
of
any
Environmental
Law,
(b)
the
generation,
use,
handling,
transportation,
storage,
treatment
or
disposal
ofany
Hazardous
Materials,
(c)
exposure
to
any
Hazardous
Materials,
(d)
the
release
or
threatened
release
of
any
Hazardous
Materials
into
theenvironment
or
(e)
any
contract,
agreement
or
other
consensual
arrangement
pursuant
to
which
liability
is
assumed
or
imposed
with
respect
to
any
ofthe
foregoing."
ERISA
"
means
the
Employee
Retirement
Income
Security
Act
of
1974."
ERISA
Affiliate
"
means
any
trade
or
business
(whether
or
not
incorporated)
under
common
control
with
a
Loan
Party
within
the
meaning
ofSection
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
froma
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
theBorrower
or
any
ERISA
Affiliate
from
a
Multiemployer
Plan
or
notification
that
a
Multiemployer
Plan
is
in
reorganization;
(d)
the
filing
of
a
notice
ofintent
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
groundsunder
Section
4042
of
ERISA
for
the
termination
of,
or
the
appointment
of
a
trustee
to
administer,
any
Pension
Plan;
(g)
the
determination
that
anyPension
Plan
is
considered
an
at-risk
plan
or
receipt
of
notification
by
the
Borrower
that
any
Multiemployer
Plan
is
in
endangered
or
critical
statuswithin
the
meaning
of
Sections
430,
431
and
432
of
the
Internal
Revenue
Code
or
Sections
303,
304
and
305
of
ERISA;
or
(h)
theimposition
of
any
liability
under
Title
IV
of
ERISA,
other
than
for
PBGC
premiums
due
but
not
delinquent
under
Section
4007
of
ERISA,
upon
theBorrower
or
any
ERISA
Affiliate. "
Euro
"
and
"
EUR
"
mean
the
single
currency
of
the
Participating
Member
States."
Eurocurrency
Rate
"
means,(a)
with
respect
to
any
Credit
Extension:(i)
denominated
in
a
LIBOR
Quoted
Currency,
the
rate
per
annum
equal
to
the
London
Interbank
Offered
Rate
("
LIBOR
")
or
acomparable
or
successor
rate
which
rate
is
approved
by
the
Administrative
Agent,
as
published
on
the
applicable
Bloomberg
screen
page
(orsuch
other
commercially
available
source
providing
such
quotations
as
may
be
designated
by
the
Administrative
Agent
from
time
to
time)
atapproximately
11:00
a.m.,
London
time,
two
Business
Days
prior
to
the
commencement
of
such
Interest
Period,
for
deposits
in
the
relevantcurrency
(for
delivery
on
the
first
day
of
such
Interest
Period)
with
a
term
equivalent
to
such
Interest
Period;(ii)
denominated
in
Canadian
dollars,
the
rate
per
annum
equal
to
the
Canadian
Dealer
Offered
Rate
(“
CDOR
”),
or
acomparable
or
successor
rate
which
rate
is
approved
by
the
Administrative
Agent,
as
published
on
the
applicable
Bloomberg
screen
page
(orsuch
other
commercially
available
source
providing
such
quotations
as
may
be
designated
by
the
Administrative
Agent
from
time
to
time)
at
orabout
10:00
a.m.
(Toronto,
Ontario
time)
on
the
first
day
of
such
Interest
Period
(or
such
other
day
as
is
generally
treated
as
the
rate
fixing
dayby
market
practice
in
such
interbank
market,
as
determined
by
the
Administrative
Agent)
(or
if
such
day
is
not
a
Business
Day,
then
on
theimmediately
preceding
Business
Day
with
a
term
equivalent
to
such
Interest
Period;(iii)
denominated
in
Australian
dollars,
the
rate
per
annum
equal
to
the
Bank
Bill
Swap
Reference
Bid
Rate
(“
BBSY
”)
or
acomparable
or
successor
rate,
which
rate
is
approved
by
the
Administrative
Agent,
as
published
on
the
applicable
Bloomberg
screen
page
(orsuch
other
commercially
available
source
providing
such
quotations
as
may
be
designated
by
the
Administrative
Agent
from
time
to
time)
at
orabout
10:30
a.m.
(Melbourne,
Australia
time)
on
the
Rate
Determination
Date
with
a
term
equivalent
to
such
Interest
Period;(iv)
denominated
in
Hong
Kong
dollars,
the
rate
per
annum
equal
to
the
Hong
Kong
Interbank
Offered
Rate
(“
HIBOR
”)
or,
ifsuch
rate
is
not
available,
a
comparable
or
successor
rate,
which
rate
is
reasonably
selected
by
the
Administrative
Agent,
as
published
by
theapplicable
Bloomberg
screen
page
(or
such
other
commercially
available
source
providing
such
quotations
as
may
be
designated
by
theAdministrative
Agent
from
time
to
time)
at
or
about
11:00a.m.
(Hong
Kong
time)
on
the
Rate
Determination
Date
with
a
term
equivalent
to
such
Interest
Period;(v)
denominated
in
Singapore
dollars,
the
rate
per
annum
equal
to
the
Singapore
Interbank
Offered
Rate
(“
SIBOR
”)
or,
if
suchrate
is
not
available,
a
comparable
or
successor
rate,
which
rate
is
reasonably
selected
by
the
Administrative
Agent,
as
published
by
theapplicable
Bloomberg
screen
page
(or
such
other
commercially
available
source
providing
such
quotations
as
may
be
designated
by
theAdministrative
Agent
from
time
to
time)
at
or
about
11:00a.m.
(Singapore
time)
on
the
Rate
Determination
Date
with
a
term
equivalent
to
such
Interest
Period;
and(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
U.S.
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
thisdefinition,
the
approved
rate
shall
be
applied
in
a
manner
consistent
with
market
practice;
provided,
further
that
to
the
extent
such
market
practice
is
notadministratively
feasible
for
the
Administrative
Agent,
such
approved
rate
shall
be
applied
in
a
manner
as
otherwise
reasonably
determined
by
theAdministrative
Agent;
and
if
the
Eurocurrency
Rate
shall
be
less
than
zero,
such
rate
shall
be
deemed
zero
for
purposes
of
this
Agreement."
Eurocurrency
Rate
Loan
"
means
a
Committed
Loan
that
bears
interest
at
a
rate
based
on
clause(a)
of
the
definition
of
the
Eurocurrency
Rate.
Eurocurrency
Rate
Loans
may
be
denominated
in
Dollars
or
in
an
Alternative
Currency.
All
Loansdenominated
in
an
Alternative
Currency
must
be
Eurocurrency
Rate
Loans."
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,
2015,
the
QuarterlyReports
of
the
Borrower
on
Form
10-Q
for
the
quarters
ended
April
30,
2015
and
July
31,
2015
and
all
Current
Reports
of
the
Borrower
on
Form
8-Kdated
February
1,
2015
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
and (c)
any
Domestic
Subsidiary
all
or
substantially
all
of
the
assets
of
which
consist
of
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
froma
payment
to
a
Recipient,
(a)
Taxes
imposed
on
or
measured
by
net
income
(however
denominated),
franchise
Taxes,
and
branch
profits
Taxes,
in
eachcase,(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
LendingOffice
located
in,
the
jurisdiction
imposing
such
Tax
(or
any
political
subdivision
thereof)
or
(ii)
that
are
Other
Connection
Taxes,
(b)
in
the
case
of
aLender,
U.S.
federal
withholding
Taxes
imposed
on
amounts
payable
to
or
for
the
account
of
such
Lender
with
respect
to
an
applicable
interest
in
aLoan
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)
or
(c),
amounts
with
respect
to
suchTaxes
were
payable
either
to
such
Lender's
assignor
immediately
before
such
Lender
became
a
party
hereto
or
to
such
Lender
immediately
before
itchanged
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
Taxesimposed
pursuant
to
FATCA.
Notwithstanding
anything
to
the
contrary
contained
in
this
definition,
"Excluded
Taxes"
shall
not
include
any
Floridadocumentary
tax."
Existing
Credit
Agreement
"
has
the
meaning
given
to
such
term
in
the
introductory
paragraph
to
this
Agreement."
Existing
Letters
of
Credit
"
means,
collectively,
the
letters
of
credit
described
on
Schedule
1.01-A
."
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
."
Facility
Fee
"
has
the
meaning
set
forth
in
Section
2.09(a)
."
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
AdministrativeAgent
pursuant
to
Section
7.12
,
in
each
case
as
supplemented
from
time
to
time
by
the
execution
and
delivery
of
Guaranty
Joinder
Agreementspursuant
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
issubstantively
comparable
and
not
materially
more
onerous
to
comply
with),
and
any
current
or
future
regulations
or
official
interpretations
thereof,
anyintergovernmental
agreement
entered
into
in
connection
therewith,
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
fundstransactions
with
members
of
the
Federal
Reserve
System,
as
published
by
the
Federal
Reserve
Bank
of
New
York
on
the
Business
Day
nextsucceeding
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
BusinessDay
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
FederalFunds
Rate
for
such
day
shall
be
the
average
rate
(rounded
upward,
if
necessary,
to
a
whole
multiple
of
1/100
of
1%)
charged
to
Bank
of
America
onsuch
day
on
such
transactions
as
determined
by
the
Administrative
Agent."
Fee
Letter
"
means
that
certain
letter
agreement,
dated
September
28,
2015,
among
the
Borrower,
the
Administrative
Agent
and
MLPFS."
Foreign
Government
"
means
the
national
government
of
a
country
other
than
the
United
States
of
America."
Foreign
Lender
"
means,
with
respect
to
the
Borrower,
a
Lender
that
is
not
a
U.S.
Person.
For
purposes
of
this
definition,
the
United
States,each
State
thereof
and
the
District
of
Columbia
shall
be
deemed
to
constitute
a
single
jurisdiction. "
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."
Fronting
Exposure
"
means,
at
any
time
there
is
a
Defaulting
Lender,
(a)
with
respect
to
the
L/C
Issuer,
such
Defaulting
Lender's
Pro
RataShare
of
the
outstanding
L/C
Obligations
other
than
L/CObligations
as
to
which
such
Defaulting
Lender's
participation
obligation
has
been
reallocated
to
other
Lenders
or
Cash
Collateralized
in
accordancewith
the
terms
hereof
and
(b)
with
respect
to
the
Swing
Line
Lender,
such
Defaulting
Lender's
Pro
Rata
Share
of
Swing
Line
Loans
other
than
SwingLine
Loans
as
to
which
such
Defaulting
Lender's
participation
obligation
has
been
reallocated
to
other
Lenders
in
accordance
with
the
terms
hereof."
Fund
"
means
any
Person
(other
than
a
natural
person)
that
is
(or
will
be)
engaged
in
making,
purchasing,
holding
or
otherwise
investing
incommercial
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
UnitedStates
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,
whetherstate
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
EuropeanUnion
or
the
European
Central
Bank)."
Guarantee
"
means,
as
to
any
Person,
(a)
any
obligation,
contingent
or
otherwise,
of
such
Person
guaranteeing
or
having
the
economic
effectof
guaranteeing
any
Indebtedness
or
other
obligation
payable
or
performable
by
another
Person
(the
"primary
obligor")
in
any
manner,
whether
directlyor
indirectly,
and
including
any
obligation
of
such
Person,
direct
or
indirect,
(i)
to
purchase
or
pay
(or
advance
or
supply
funds
for
the
purchase
orpayment
of)
such
Indebtedness
or
other
obligation,
(ii)
to
purchase
or
lease
property,
securities
or
services
for
the
purpose
of
assuring
the
obligee
inrespect
of
such
Indebtedness
or
other
obligation
of
the
payment
or
performance
of
such
Indebtedness
or
other
obligation,
or
(iii)
to
maintain
workingcapital,
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
theprimary
obligor
to
pay
such
Indebtedness
or
other
obligation,
or
(b)
any
Lien
on
any
assets
of
such
Person
securing
any
Indebtedness
or
otherobligation
of
any
other
Person,
whether
or
not
such
Indebtedness
or
other
obligation
is
assumed
by
such
Person.
The
amount
of
any
Guarantee
shall
bedeemed
to
be
an
amount
equal
to
the
stated
or
determinable
amount
of
the
related
primary
obligation,
or
portion
thereof,
in
respect
of
which
suchGuarantee
is
made
or,
if
not
stated
or
determinable,
the
maximum
reasonably
anticipated
liability
in
respect
thereof
as
determined
by
the
guaranteeingPerson
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,
anyExcluded
Subsidiaries)
and
each
other
Person
that
joins
as
a
Guarantor
pursuant
to
Section
7.12
or
otherwise,
together
with
their
successors
andassigns."
Guaranty
Joinder
Agreement
"
means
each
Guaranty
Joinder
Agreement,
substantially
in
the
form
attached
to
the
Facility
Guaranty,
executedand
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
otherpollutants,
including
petroleum
or
petroleum
distillates,
asbestos
or
asbestos-containing
materials,
polychlorinated
biphenyls,
radon
gas,
infectious
ormedical
wastes
and
all
other
substances
or
wastes
of
any
nature
regulated
pursuant
to
any
Environmental
Law."
Honor
Date
"
has
the
meaning
specified
in
Section
2.02(c)(i)
."
Increase
Effective
Date
"
has
the
meaning
specified
in
Section
2.14(d)
."
Indebtedness
"
means,
as
to
any
Person
at
a
particular
time,
without
duplication,
all
of
the
following,
whether
or
not
included
as
indebtednessor
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;(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
payablein
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
beenassumed
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
jointventure
that
is
itself
a
corporation
or
limited
liability
company)
in
which
such
Person
is
a
general
partner
or
a
joint
venturer,
unless
such
Indebtedness
isexpressly
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
SwapTermination
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
ofbusiness
(including
trade
indebtedness
through
financial
intermediaries)
provided
such
trade
indebtedness
has
a
maturity
of
less
than
one
year,
capitalstock,
surplus
and
retained
earnings,
minority
interests
in
the
stock
of
Subsidiaries,
operating
lease
obligations,
reserves
for
deferred
taxes
orinvestment
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
anyobligation
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
Loanand
the
Maturity
Date;
provided,
however
,
that
if
any
Interest
Period
for
a
Eurocurrency
Rate
Loan
exceeds
three
months,
the
respective
dates
that
fallevery
three
months
after
the
beginning
of
such
Interest
Period
shall
also
be
Interest
Payment
Dates;
and
(b)
as
to
any
Base
Rate
Loan
(including
aSwing
Line
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
orconverted
to
or
continued
as
a
Eurocurrency
Rate
Loan
and
ending
on
the
date
one
week,
or
one,
two,
three
or
six
months
thereafter,
as
selected
by
theBorrower
in
its
Committed
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
succeedingBusiness
Day
unless
such
Business
Day
falls
in
another
calendar
month,
in
which
case
such
Interest
Period
shall
end
on
the
next
precedingBusiness
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
numericallycorresponding
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
endof
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
purchaseor
other
acquisition
of
capital
stock
or
other
securities
of
another
Person,
(b)
a
loan,
advance
or
capital
contribution
to,
Guarantee
or
assumption
of
debtof,
or
purchase
or
other
acquisition
of
any
other
debt
or
equity
participation
or
interest
in,
another
Person,
including
any
partnership
or
joint
ventureinterest
in
such
other
Person,
or
(c)
the
purchase
or
other
acquisition
(in
one
transaction
or
a
series
of
transactions)
of
assets
of
another
Person
thatconstitute
a
business
unit.
For
purposes
of
covenant
compliance,
the
amount
of
any
Investment
shall
be
the
amount
actually
invested,
withoutadjustment
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
ortreasurer
of
the
Borrower."
IRS
"
means
the
United
States
Internal
Revenue
Service."
ISP
"
means,
with
respect
to
any
Letter
of
Credit,
the
"International
Standby
Practices
1998"
published
by
the
Institute
of
InternationalBanking
Law
&
Practice,
Inc.
(or
such
later
version
thereof
as
may
be
in
effect
at
the
time
of
issuance)."
Issuer
Documents
"
means
with
respect
to
any
Letter
of
Credit,
the
Letter
of
Credit
Application,
and
any
other
document,
agreement
andinstrument
entered
into
by
an
L/C
Issuer
and
the
Borrower
(or
any
Subsidiary)
or
in
favor
of
an
L/C
Issuer
and
relating
to
any
such
Letter
of
Credit."
Laws
"
means,
collectively,
all
international,
foreign,
Federal,
state
and
local
statutes,
treaties,
rules,
guidelines,
regulations,
ordinances,
codesand
administrative
or
judicial
precedents
or
authorities,
including
the
interpretation
or
administration
thereof
by
any
Governmental
Authority
chargedwith
the
enforcement,
interpretation
or
administration
thereof,
and
all
applicable
administrative
orders,
directed
duties,
requests,
licenses,
authorizationsand
permits
of,
and
agreements
with,
any
Governmental
Authority,
in
each
case
whether
or
not
having
the
force
of
law."
L/C
Advance
"
means,
with
respect
to
each
Lender,
such
Lender's
funding
of
its
participation
in
any
L/C
Borrowing
in
accordance
with
itsPro
Rata
Share."
L/C
Borrowing
"
means
an
extension
of
credit
resulting
from
a
drawing
under
any
Letter
of
Credit
which
has
not
been
reimbursed
on
the
datewhen
made
or
refinanced
as
a
Committed
Borrowing."
L/C
Commitment
"
means,
as
to
each
L/C
Issuer,
its
obligation
to
issue
Letters
of
Credit
for
the
Borrower
pursuant
to
Section
2.03
in
anaggregate
principal
amount
at
any
one
time
outstanding
not
to
exceed
$66,666,666.67,
as
such
amount
may
be
adjusted
from
time
to
time
in
accordancewith
this
Agreement."
L/C
Credit
Extension
"
means,
with
respect
to
any
Letter
of
Credit,
the
issuance
thereof
or
extension
of
the
expiry
date
thereof,
or
the
renewalor
increase
of
the
amount
thereof."
L/C
Issuer
"
means
(a)
Bank
of
America
in
its
capacity
as
issuer
of
Letters
of
Credit
hereunder,(b)
JPMorgan
Chase
Bank,
N.A.
in
its
capacity
as
issuer
of
Letters
of
Credit
hereunder,
(c)
Citibank,
N.A.
in
its
capacity
as
issuer
of
Letters
of
Credithereunder
and
(d)
if
the
L/C
Issuers
in
clauses
(a)
through
(c)
above
are
unable
to
issue
Letters
of
Credit
for
the
reasons
set
forth
in
Sections
2.03(a)(iii)(B)
or
(E)
,
such
other
Lender
selected
by
the
Borrower
and
consented
to
by
such
Lender
(upon
notice
to
the
Administrative
Agent)
from
time
to
timeto
issue
such
Letter
of
Credit."
L/C
Obligations
"
means,
as
at
any
date
of
determination,
the
aggregate
amount
available
to
be
drawn
under
all
outstanding
Letters
of
Creditplus
the
aggregate
of
all
Unreimbursed
Amounts,
including
all
L/C
Borrowings.
For
purposes
of
computing
the
amount
available
to
be
drawn
under
anyLetter
of
Credit,
the
amount
of
such
Letter
of
Credit
shall
be
determined
in
accordance
with
Section
1.08
.
For
all
purposes
of
this
Agreement,
if
on
anydate
of
determination
a
Letter
of
Credit
has
expired
by
its
terms
but
any
amount
may
still
be
drawn
thereunder
by
reason
of
the
operation
of
Rule
3.14of
the
ISP,
such
Letter
of
Credit
shall
be
deemed
to
be
"outstanding"
in
the
amount
so
remaining
available
to
be
drawn."
Lender
"
has
the
meaning
specified
in
the
introductory
paragraph
hereto
and,
as
the
context
requires,
includes
the
L/C
Issuers
and
the
Swing Line
Lender."
Lending
Office
"
means,
as
to
any
Lender,
the
office
or
offices
of
such
Lender
described
as
such
in
such
Lender's
AdministrativeQuestionnaire,
or
such
other
office
or
offices
as
a
Lender
may
from
time
to
time
notify
the
Borrower
and
the
Administrative
Agent,
which
office
mayinclude
any
Affiliate
of
suchLender
or
any
domestic
or
foreign
branch
of
such
Lender
or
such
Affiliate.
Unless
the
context
otherwise
requires
each
reference
to
a
Lender
shallinclude
its
applicable
Lending
Office."
Letter
of
Credit
"
means
any
standby
letter
of
credit
issued
hereunder
and
shall
include
the
Existing
Letters
of
Credit."
Letter
of
Credit
Application
"
means
an
application
and
agreement
for
the
issuance
or
amendment
of
a
Letter
of
Credit
in
the
form
from
timeto
time
in
use
by
the
applicable
L/C
Issuer."
Letter
of
Credit
Expiration
Date
"
means
the
day
that
is
seven
days
prior
to
the
Maturity
Date
then
in
effect
(or,
if
such
day
is
not
a
BusinessDay,
the
next
preceding
Business
Day)."
Letter
of
Credit
Fee
"
has
the
meaning
specified
in
Section
2.03(h)
."
Letter
of
Credit
Sublimit
"
means
an
amount
equal
to
$200,000,000.
The
Letter
of
Credit
Sublimit
is
part
of,
and
not
in
addition
to,
theAggregate
Commitments."
LIBOR
"
has
the
meaning
specified
in
the
definition
of
Eurocurrency
Rate."
LIBOR
Quoted
Currency
"
means
each
of
the
following
currencies:
Dollars;
Euro;
Sterling;
Yen;
and
Swiss
Franc;
in
each
case
as
long
asthere
is
a
published
LIBOR
rate
with
respect
thereto."
Lien
"
means
any
mortgage,
pledge,
hypothecation,
assignment,
deposit
arrangement,
encumbrance,
lien
(statutory
or
other),
charge,
orpreference,
priority
or
other
security
interest
or
preferential
arrangement
in
the
nature
of
a
security
interest
of
any
kind
or
nature
whatsoever
(includingany
conditional
sale
or
other
title
retention
agreement,
any
easement,
right
of
way
or
other
encumbrance
on
title
to
real
property,
and
any
financinglease
having
substantially
the
same
economic
effect
as
any
of
the
foregoing)."
Loan
"
means
an
extension
of
credit
by
a
Lender
to
the
Borrower
under
Article
II
in
the
form
of
a
Committed
Loan
or
a
Swing
Line
Loan."
Loan
Documents
"
means
this
Agreement,
each
Note,
the
Fee
Letter
and
the
Facility
Guaranty."
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
interbankEurodollar
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
LoanParty
to
perform
its
obligations
under
any
Loan
Document
to
which
it
is
a
party;
or
(c)
a
material
adverse
effect
upon
the
legality,
validity,
bindingeffect
or
enforceability
against
any
Loan
Party
of
any
Loan
Document
to
which
it
is
a
party."
Maturity
Date
"
means
November
5,
2020,
or
if
such
day
is
not
a
Business
Day,
the
next
preceding
Business
Day."
Minimum
Collateral
Amount
"
means,
at
any
time,
(i)
with
respect
to
Cash
Collateral
consisting
of
cash
or
deposit
account
balances
providedto
reduce
or
eliminate
Fronting
Exposure
during
the
existence
of
a
Defaulting
Lender,
an
amount
equal
to
102%
of
the
Fronting
Exposure
of
the
L/CIssuer
with
respect
to
Letters
of
Credit
issued
and
outstanding
at
such
time,
(ii)
with
respect
to
Cash
Collateral
consisting
of
cash
or
deposit
account balances
provided
in
accordance
with
the
provisions
of
Section
2.17(a)(i),
(a)(ii)
or
(a)(iii),
an
amount
equal
to
102%
of
the
Outstanding
Amount
of
allLC
Obligations,
and
(iii)
otherwise,
an
amount
determined
by
the
Administrative
Agent
and
the
L/C
Issuer
in
their
sole
discretion."
MLPFS
"
means
Merrill
Lynch,
Pierce,
Fenner
&
Smith
Incorporated."
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
anyERISA
Affiliate
makes
or
is
obligated
to
make
contributions,
or
during
the
preceding
five
plan
years,
has
made
or
been
obligated
to
makecontributions."
Multiple
Employer
Plan
"
means
a
Plan
which
has
two
or
more
contributing
sponsors
(including
a
Loan
Party
or
any
ERISA
Affiliate)
at
leasttwo
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
allLenders
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
suchtime."
Negative
Pledge
"
means
a
Contractual
Obligation
that
restricts
Liens
on
property."
Non-Extension
Notice
Date
"
has
the
meaning
specified
in
Section
2.03(b)(iii)
."
Note
"
means
a
promissory
note
made
by
the
Borrower
in
favor
of
a
Lender
evidencing
Loans
made
by
such
Lender,
substantially
in
the
formof
Exhibit
C
."
Obligations
"
means
all
advances
to,
and
debts,
liabilities,
obligations,
covenants
and
duties
of,
any
Loan
Party
arising
under
any
LoanDocument
or
otherwise
with
respect
to
any
Loan
or
Letter
of
Credit,
whether
direct
or
indirect
(including
those
acquired
by
assumption),
absolute
orcontingent,
due
or
to
become
due,
now
existing
or
hereafter
arising
and
including
interest
and
fees
that
accrue
after
the
commencement
by
or
againstany
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
theextent
not
included
as
a
liability
on
the
consolidated
balance
sheet
of
such
Person
and
its
Subsidiaries
in
accordance
with
GAAP:
(a)
with
respect
to
anyasset
securitization
transaction
(including
any
accounts
receivable
purchase
facility)
(i)
the
unrecovered
investment
of
purchasers
or
transferees
ofassets
so
transferred,
and
(ii)
any
other
payment,
recourse,
repurchase,
hold
harmless,
indemnity
or
similar
obligation
of
such
Person
or
any
of
itsSubsidiaries
in
respect
of
assets
transferred
or
payments
made
in
respect
thereof,
other
than
limited
recourse
provisions
that
are
customary
fortransactions
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
paymentor
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
leasetransaction
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
Personand
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)
anysuccessor
regulation
of
the
SEC
defining
"off-balance
sheet
arrangement.""
Organization
Documents
"
means,
(a)
with
respect
to
any
corporation,
the
certificate
or
articles
of
incorporation
and
the
bylaws
(or
equivalentor
comparable
constitutive
documents
with
respect
to
any
non-U.S.
jurisdiction);
(b)
with
respect
to
any
limited
liability
company,
the
certificate
orarticles
of
formation
or
organization
and
operating
agreement;
and
(c)
with
respect
to
any
partnership,
joint
venture,
trust
or
other
form
of
businessentity,
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
ororganization
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
suchRecipient
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
toor
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
anypayment
made
under,
from
the
execution,
delivery,
performance,
enforcement
or
registration
of,
from
the
receipt
or
perfection
of
a
security
interestunder,
or
otherwise
with
respect
to,
any
Loan
Document,
except
any
such
Taxes
that
are
Other
Connection
Taxes
imposed
with
respect
to
anassignment
(other
than
an
assignment
made
pursuant
to
Section
3.06
)."
Outstanding
Amount
"
means
(a)
with
respect
to
Committed
Loans
and
Swing
Line
Loans
on
any
date,
the
Dollar
Equivalent
amount
of
theaggregate
outstanding
principal
amount
thereof
after
givingeffect
to
any
borrowings
and
prepayments
or
repayments
of
Committed
Loans
and
Swing
Line
Loans,
as
the
case
may
be,
occurring
on
such
date;
and(b)
with
respect
to
any
L/C
Obligations
on
any
date,
the
Dollar
Equivalent
amount
of
the
aggregate
outstanding
amount
of
such
L/C
Obligations
onsuch
date
after
giving
effect
to
any
L/C
Credit
Extension
occurring
on
such
date
and
any
other
changes
in
the
aggregate
amount
of
the
L/C
Obligationsas
of
such
date,
including
as
a
result
of
any
reimbursements
by
the
Borrower
of
Unreimbursed
Amounts
or
any
reductions
in
the
maximum
amountavailable
for
drawing
under
Letters
of
Credit
taking
effect
on
such
date."
Overnight
Rate
"
means,
for
any
day,
(a)
with
respect
to
any
amount
denominated
in
Dollars,
the
greater
of
(i)
the
Federal
Funds
Rate
and
(ii)an
overnight
rate
determined
by
the
Administrative
Agent,
the
applicable
L/C
Issuer,
or
the
Swing
Line
Lender,
as
the
case
may
be,
in
accordance
withbanking
industry
rules
on
interbank
compensation,
and
(b)
with
respect
to
any
amount
denominated
in
an
Alternative
Currency,
the
rate
of
interest
perannum
at
which
overnight
deposits
in
the
applicable
Alternative
Currency,
in
an
amount
approximately
equal
to
the
amount
with
respect
to
which
suchrate
is
being
determined,
would
be
offered
for
such
day
by
a
branch
or
Affiliate
of
Bank
of
America
in
the
applicable
offshore
interbank
market
forsuch
currency
to
major
banks
in
such
interbank
market."
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
withlegislation
of
the
European
Union
relating
to
Economic
and
Monetary
Union."
Participant
Register
"
has
the
meaning
specified
in
Section
11.06(d)
."
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
installmentpayment
thereof)
to
Pension
Plans
and
Multiemployer
Plans
and
set
forth
in,
with
respect
to
plan
years
ending
prior
to
the
effective
date
of
the
PensionAct,
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."
Pension
Plan
"
means
any
employee
pension
benefit
plan
(including
a
Multiple
Employer
Plan
but
excluding
any
Multiemployer
Plan)
that
ismaintained
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
minimumfunding
standards
under
Section
412
of
the
Code."
Permitted
Trade
Receivables
Facilities
"
means,
collectively,
(a)
the
Existing
Trade
Receivables
Facilities;
(b)
any
successor
trade
receivablesfacility
which
refinances
and
replaces
all
or
part
of
an
Existing
Trade
Receivables
Facility;
(c)
one
or
more
facilities
each
of
which
provides
for
limitedrecourse
sales
and
assignments
of
accounts
receivable
of
Borrower
or
a
Subsidiary
in
connection
with
the
issuance
of
obligations
by
Borrower
or
aSubsidiary
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
asare
reasonable
and
customary
for
such
transactions;
provided
,
that
such
sales,
transfersand
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
sosold,
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
aMultiemployer
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,
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
suchtransaction
for
which
the
Borrower
was
required
to
deliver
financial
statements
pursuant
to
Section
7.01(a)
or
(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
suchcalculation
to
the
extent
(A)
such
items
are
not
otherwise
included
in
such
income
statement
items
for
the
Borrower
and
its
Subsidiaries
in
accordancewith
GAAP
or
in
accordance
with
any
defined
terms
set
forth
in
Section
1.01
and
(B)
such
items
are
supported
by
financial
statements
or
otherinformation
reasonably
satisfactory
to
the
Administrative
Agent."
Pro
Rata
Share
"
means,
with
respect
to
each
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
AggregateCommitments
at
such
time;
provided
that
if
the
commitment
of
each
Lender
to
make
Loans
and
the
obligation
of
the
L/C
Issuers
to
make
L/C
CreditExtensions
have
been
terminated
pursuant
to
Section
9.02
,
then
the
Pro
Rata
Share
of
each
Lender
shall
be
determined
based
on
the
Pro
Rata
Share
ofsuch
Lender
immediately
prior
to
such
termination
and
after
giving
effect
to
any
subsequent
assignments
made
pursuant
to
the
terms
hereof.
The
initialPro
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
whichsuch
Lender
becomes
a
party
hereto,
as
applicable."
Public
Lender
"
has
the
meaning
specified
in
Section
7.02
.“
Rate
Determination
Date
”
means
two
(2)
Business
Days
prior
to
the
commencement
of
such
Interest
Period
(or
such
other
day
as
is
generallytreated
as
the
rate
fixing
day
by
market
practice
in
such
interbank
market,
as
determined
by
the
Administrative
Agent;
provided
that
to
the
extent
suchmarket
practice
is
not
administratively
feasible
for
the
Administrative
Agent,
such
other
day
as
otherwise
reasonably
determined
by
the
AdministrativeAgent)."
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
SyntheticLease
Facility
with
rates
of
interest,
yield
and
fees
that
may
increase
or
decrease
in
accordance
with
then
applicable
market
conditions;
(c)
one
or
morearrangements
that
provide
financing
for
any
real
property
of
the
Borrower
or
its
Subsidiaries,
that
impose
no
Liens
other
than
on
the
real
propertyfinanced
by
such
arrangements,
which
are
on
such
terms
andconditions
as
are
reasonable
and
customary
for
such
transactions,
and
which
create
obligations
with
an
Attributable
Indebtedness
of
not
more
than
thefair
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
betreated
as
a
Real
Estate
Financing
Facility
for
the
purposes
of
this
Agreement."
Recipient
"
means
the
Administrative
Agent,
any
Lender,
any
L/C
Issuer
or
any
other
recipient
of
any
payment
to
be
made
by
or
on
accountof
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
andadvisors
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
hasbeen
waived."
Request
for
Credit
Extension
"
means
(a)
with
respect
to
a
Borrowing,
conversion
or
continuation
of
Committed
Loans,
a
Committed
LoanNotice,
(b)
with
respect
to
an
L/C
Credit
Extension,
a
Letter
of
Credit
Application,
and
(c)
with
respect
to
a
Swing
Line
Loan,
a
Swing
Line
LoanNotice."
Required
Lenders
"
means,
as
of
any
date
of
determination,
Lenders
having
more
than
50%
of
the
Aggregate
Commitments
or,
if
thecommitment
of
each
Lender
to
make
Loans
and
the
obligation
of
the
L/C
Issuers
to
make
L/C
Credit
Extensions
have
been
terminated
pursuant
toSection
9.02
,
Lenders
holding
in
the
aggregate
more
than
50%
of
the
Total
Outstandings
(with
the
aggregate
amount
of
each
Lender's
risk
participationand
funded
participation
in
L/C
Obligations
and
Swing
Line
Loans
being
deemed
"held"
by
such
Lender
for
purposes
of
this
definition);
provided
thatthe
Commitment
of,
and
the
portion
of
the
Total
Outstandings
held
or
deemed
held
by,
any
Defaulting
Lender
shall
be
excluded
for
purposes
of
makinga
determination
of
Required
Lenders."
Responsible
Officer
"
means
the
chief
executive
officer,
president,
chief
financial
officer,
treasurer,
assistant
treasurer
or
corporate
controllerof
a
Loan
Party,
and,
solely
for
purposes
of
notices
given
pursuant
to
Article
II,
any
other
officer
or
employee
of
the
applicable
Loan
Party
sodesignated
by
the
chief
financial
officer,
treasurer
or
assistant
treasurer
in
a
notice
to
the
Administrative
Agent,
or
any
other
officer
or
employee
of
theapplicable
Loan
Party
designated
in
or
pursuant
to
an
agreement
between
the
applicable
Loan
Party
and
the
Administrative
Agent.
Any
documentdelivered
hereunder
that
is
signed
by
a
Responsible
Officer
of
a
Loan
Party
shall
be
conclusively
presumed
to
have
been
authorized
by
all
necessarycorporate,
partnership
and/or
other
action
on
the
part
of
such
Loan
Party
and
such
Responsible
Officer
shall
be
conclusively
presumed
to
have
acted
onbehalf
of
such
Loan
Party."
Restricted
Payment
"
means
any
dividend
or
other
distribution
(whether
in
cash,
securities
or
other
property)
with
respect
to
any
capital
stockor
other
equity
interest
of
the
Borrower
or
any
Subsidiary,
or
any
payment
(whether
in
cash,
securities
or
other
property),
including
any
sinking
fund
orsimilar
deposit,
on
account
of
the
purchase,
redemption,
retirement,
acquisition,
cancellation
or
termination
of
any
such
capital
stock
or
other
equityinterest
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
aConvertible
Debenture
shall
not
be
treated
as
a
Restricted
Payment
for
purposes
of
this
Agreement."
Revaluation
Date
"
means
(a)
with
respect
to
any
Loan,
each
of
the
following:
(i)
each
date
of
a
Borrowing
of
a
Eurocurrency
Rate
Loandenominated
in
an
Alternative
Currency,
(ii)
each
date
of
a
continuation
of
a
Eurocurrency
Rate
Loan
denominated
in
an
Alternative
Currency
pursuantto
Section
2.02
,
and
(iii)
such
additional
dates
as
the
Administrative
Agent
shall
determine
or
the
Required
Lenders
shall
require;
and
(b)
with
respectto
any
Letter
of
Credit,
each
of
the
following:
(i)
each
date
of
issuance
of
a
Letter
of
Credit
denominated
in
an
Alternative
Currency,
(ii)
each
date
of
anamendment
of
any
such
Letter
of
Credit
having
the
effect
of
increasing
the
amount
thereof
(solely
with
respect
to
the
increased
amount),
(iii)
each
dateof
any
payment
by
an
L/C
Issuer
under
any
Letter
of
Credit
denominated
in
an
Alternative
Currency,
(iv)
in
the
case
of
the
Existing
Letters
of
Credit,the
Closing
Date,
and
(v)
such
additional
dates
as
the
Administrative
Agent
or
and
L/C
Issuer
shall
determine
or
the
Required
Lenders
shall
require."
Same
Day
Funds
"
means
(a)
with
respect
to
disbursements
and
payments
in
Dollars,
immediately
available
funds,
and
(b)
with
respect
todisbursements
and
payments
in
an
Alternative
Currency,
same
day
or
other
funds
as
may
be
determined
by
the
Administrative
Agent
to
be
customary
inthe
place
of
disbursement
or
payment
for
the
settlement
of
international
banking
transactions
in
the
relevant
Alternative
Currency.“
Sanctioned
Person
”
has
the
meaning
specified
in
Section
6.20."
Sanction(s)
"
means
any
sanction
administered
or
enforced
by
the
United
States
Government
(including
without
limitation,
OFAC),
theUnited
Nations
Security
Council,
the
European
Union
or
Her
Majesty's
Treasury
("HMT")
of
the
United
Kingdom."
S&P
"
means
Standard
&
Poor's
Financial
Services
LLC,
a
subsidiary
of
The
McGraw-Hill
Companies,
Inc.
and
any
successor
thereto."
SEC
"
means
the
Securities
and
Exchange
Commission,
or
any
Governmental
Authority
succeeding
to
any
of
its
principal
functions."
Shareholders'
Equity
"
means,
as
of
any
date
of
determination,
consolidated
shareholders'
equity
of
the
Borrower
and
its
Subsidiaries
as
ofthat
date
determined
in
accordance
with
GAAP. "
Shelf
Registration
Statement
"
has
the
meaning
specified
in
Section
8.09."
Significant
Subsidiary
"
means
any
Domestic
Subsidiary
which
has
total
assets
(on
a
consolidated
basis
with
its
Subsidiaries)
of
more
than5%
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(a)
such
Person
is
able
to
pay
its
debts
and
other
liabilities,
contingent
obligations
and
other
commitments
as
they
mature
in
the
ordinary
course
ofbusiness,
(b)
such
Person
does
not
intend
to,
and
does
not
believe
that
it
will,
incur
debts
or
liabilities
beyond
such
Person's
ability
to
pay
as
such
debtsand
liabilities
mature
in
their
ordinary
course,
(c)
such
Person
is
not
engaged
in
a
business
or
a
transaction,
and
is
not
about
to
engage
in
a
business
or
atransaction,
for
which
such
Person's
Property
would
constitute
unreasonably
small
capital
after
giving
due
consideration
to
the
prevailing
practice
in
theindustry
in
which
such
Person
is
engaged
or
is
to
engage,
(d)
the
fair
value
of
the
Property
of
such
Person
is
greater
than
the
total
amount
of
liabilities,including,
without
limitation,
contingent
liabilities,
of
such
Person
and
(e)
the
present
fair
salable
value
of
the
assets
of
such
Person
is
not
less
than
theamount
that
will
be
required
to
pay
the
probable
liability
of
such
Person
on
its
debts
as
they
become
absolute
and
matured.
In
computing
the
amount
ofcontingent
liabilities
at
any
time,
it
is
intended
that
such
liabilities
will
be
computed
at
the
amount
which,
in
light
of
all
the
facts
and
circumstancesexisting
at
such
time,
represents
the
amount
that
can
reasonably
be
expected
to
become
an
actual
or
matured
liability."
Special
Notice
Currency
"
means
at
any
time
an
Alternative
Currency,
other
than
the
currency
of
a
country
that
is
a
member
of
theOrganization
for
Economic
Cooperation
and
Development
at
such
time
and
is
located
in
North
America
or
Europe."
Special
Purpose
Finance
Subsidiary
"
means
any
Subsidiary
of
the
Borrower
created
solely
for
the
purposes
of,
and
whose
sole
activity
shallconsist
of,
acquiring
and
financing
accounts
receivable
of
the
Borrower
and
its
Subsidiaries
pursuant
to
a
Permitted
Trade
Receivables
Facility."
Spot
Rate
"
for
a
currency
means
the
rate
determined
by
the
Administrative
Agent
or
an
L/C
Issuer,
as
applicable,
to
be
the
rate
quoted
by
thePerson
acting
in
such
capacity
as
the
spot
rate
for
the
purchase
by
such
Person
of
such
currency
with
another
currency
through
its
principal
foreignexchange
trading
office
at
approximately
11:00
a.m.
on
the
date
two
Business
Days
prior
to
the
date
as
of
which
the
foreign
exchange
computation
ismade;
provided
that
the
Administrative
Agent
or
an
L/C
Issuer
may
obtain
such
spot
rate
from
another
financial
institution
designated
by
theAdministrative
Agent
or
an
L/C
Issuer
if
the
Person
acting
in
such
capacity
does
not
have
as
of
the
date
of
determination
a
spot
buying
rate
for
any
suchcurrency;
and
provided
further
that
an
L/C
Issuer
may
use
such
spot
rate
quoted
on
the
date
as
of
which
the
foreign
exchange
computation
is
made
inthe
case
of
any
Letter
of
Credit
denominated
in
an
Alternative
Currency."
Sterling
"
and
"£"
mean
the
lawful
currency
of
the
United
Kingdom."
Subsidiary
"
of
a
Person
means
a
corporation,
partnership,
joint
venture,
limited
liability
company
or
other
business
entity
of
which
a
majorityof
the
shares
of
securities
or
other
interests
having
ordinary
voting
power
for
the
election
of
directors
or
other
governing
body
(other
than
securities
orinterests
having
such
power
only
by
reason
of
the
happening
of
a
contingency)
are
at
the
time
beneficially
owned,
or
the
management
of
which
isotherwise
controlled,
directly,
or
indirectly
through
one
or
more
intermediaries,
or
both,
by
such
Person.
Unless
otherwise
specified,
all
referencesherein
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
swapsor
options
or
forward
bond
or
forward
bond
price
or
forward
bond
index
transactions,
interest
rate
options,
forward
foreign
exchange
transactions,
captransactions,
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
notany
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
ofmaster
agreement
published
by
the
International
Swaps
and
Derivatives
Association,
Inc.,
any
International
Foreign
Exchange
Master
Agreement,
orany
other
masteragreement
(any
such
master
agreement,
together
with
any
related
schedules,
a
"
Master
Agreement
"),
including
any
such
obligations
or
liabilities
underany
Master
Agreement."
Swap
Termination
Value
"
means,
in
respect
of
any
one
or
more
Swap
Contracts,
after
taking
into
account
the
effect
of
any
legallyenforceable
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),
theamount(s)
determined
as
the
mark-to-market
value(s)
for
such
Swap
Contracts,
as
determined
based
upon
one
or
more
mid-market
or
other
readilyavailable
quotations
provided
by
any
recognized
dealer
in
such
Swap
Contracts
(which
may
include
a
Lender
or
any
Affiliate
of
a
Lender)."
Swing
Line
"
means
the
revolving
credit
facility
made
available
by
the
Swing
Line
Lender
pursuant
to
Section
2.04
."
Swing
Line
Borrowing
"
means
a
borrowing
of
a
Swing
Line
Loan
pursuant
to
Section
2.04
."
Swing
Line
Lender
"
means
Bank
of
America
in
its
capacity
as
provider
of
Swing
Line
Loans,
or
any
successor
swing
line
lender
hereunder."
Swing
Line
Loan
"
has
the
meaning
specified
in
Section
2.04(a)
."
Swing
Line
Loan
Notice
"
means
a
notice
of
a
Swing
Line
Borrowing
pursuant
to
Section
2.04(b)
,
which,
if
in
writing,
shall
be
substantiallyin
the
form
of
Exhibit
B
or
such
other
form
as
approved
by
the
Administrative
Agent
(including
any
form
on
an
electronic
platform
or
electronictransmission
system
as
shall
be
approve
by
the
Administrative
Agent),
appropriately
completed
and
signed
by
a
Responsible
Officer
of
the
Borrower."
Swing
Line
Sublimit
"
means
an
amount
equal
to
the
lesser
of
(a)
$125,000,000
and
(b)
the
Aggregate
Commitments.
The
Swing
LineSublimit
is
part
of,
and
not
in
addition
to,
the
Aggregate
Commitments."
TARGET2
"
means
the
Trans-European
Automated
Real-time
Gross
Settlement
Express
Transfer
payment
system
which
utilizes
a
singleshared
platform
and
which
was
launched
on
November
19,
2007."
TARGET
Day
"
means
any
day
on
which
TARGET2
(or,
if
such
payment
system
ceases
to
be
operative,
such
other
payment
system,
if
any,determined
by
the
Administrative
Agent
to
be
a
suitable
replacement)
is
open
for
the
settlement
of
payments
in
Euro."
Taxes
"
means
all
present
or
future
taxes,
levies,
imposts,
duties,
deductions,
withholdings
(including
backup
withholding),
assessments,
feesor
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
ConvertibleDebentures."
Threshold
Amount
"
means
$100,000,000."
Total
Outstandings
"
means
the
aggregate
Outstanding
Amount
of
all
Loans
and
all
L/C
Obligations."
Type
"
means,
with
respect
to
a
Committed
Loan,
its
character
as
a
Base
Rate
Loan
or
a
Eurocurrency
Rate
Loan."
United
States
"
and
"
U.S.
"
mean
the
United
States
of
America."
Unreimbursed
Amount
"
has
the
meaning
set
forth
in
Section
2.03(c)(i)
."
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)
.1.2
Other Interpretive Provisions . With
reference
to
this
Agreement
and
each
other
Loan
Document,
unless
otherwise
specified
herein
orin
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
contextmay
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
meaningand
effect
as
the
word
"
shall
."
Unless
the
context
requires
otherwise,
(i)
any
definition
of
or
reference
to
any
agreement,
instrument
or
otherdocument
(including
any
Organization
Document)
shall
be
construed
as
referring
to
such
agreement,
instrument
or
other
document
as
fromtime
to
time
amended,
supplemented
or
otherwise
modified
(subject
to
any
restrictions
on
such
amendments,
supplements
or
modifications
setforth
herein
or
in
any
other
Loan
Document),
(ii)
any
reference
herein
to
any
Person
shall
be
construed
to
include
such
Person's
successors
andassigns,
(iii)
the
words
"
hereto
",
"
herein
,"
"
hereof
"
and
"
hereunder
,"
and
words
of
similar
import
when
used
in
any
Loan
Document,
shallbe
construed
to
refer
to
such
Loan
Document
in
its
entirety
and
not
to
any
particular
provision
thereof,
(iv)
all
references
in
a
Loan
Documentto
Articles,
Sections,
Exhibits
and
Schedules
shall
be
construed
to
refer
to
Articles
and
Sections
of,
and
Exhibits
and
Schedules
to,
the
LoanDocument
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
orregulation
as
amended,
modified
or
supplemented
from
time
to
time,
and
(vi)
the
words
"
asset
"
and
"
property
"
shall
be
construed
to
have
thesame
meaning
and
effect
and
to
refer
to
any
and
all
tangible
and
intangible
assets
and
properties,
including
cash,
securities,
accounts
andcontract
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
."(c)
Section
headings
herein
and
in
the
other
Loan
Documents
are
included
for
convenience
of
reference
only
and
shall
not
affect
theinterpretation
of
this
Agreement
or
any
other
Loan
Document.1.3Accounting Terms .(a)
Generally
.
All
accounting
terms
not
specifically
or
completely
defined
herein
shall
be
construed
in
conformity
with,
and
allfinancial
data
(including
financial
ratios
and
other
financial
calculations)
required
to
be
submitted
pursuant
to
this
Agreement
shall
be
preparedin
conformity
with,
GAAP
applied
on
a
consistent
basis,
as
in
effect
from
time
to
time,
applied
in
a
manner
consistent
with
that
used
inpreparing
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
setforth
in
any
Loan
Document,
and
either
the
Borrower
or
the
Required
Lenders
shall
so
request,
the
Administrative
Agent,
the
Lenders
and
theBorrower
shall
negotiate
in
good
faith
to
amend
such
ratio
or
requirement
to
preserve
the
original
intent
thereof
in
light
of
such
change
inGAAP
(subject
to
the
approval
of
the
Required
Lenders);
provided
that,
until
so
amended,
(i)
such
ratio
or
requirement
shall
continue
to
becomputed
in
accordance
with
GAAP
prior
to
such
change
therein
and
(ii)
the
Borrower
shall
provide
to
the
Administrative
Agent
and
theLenders
financial
statements
and
other
documents
required
under
this
Agreement
or
as
reasonably
requested
hereunder
setting
forth
areconciliation
between
calculations
of
such
ratio
or
requirement
made
before
and
after
giving
effect
to
such
change
in
GAAP.
All
obligations
ofany
Person
that
are
or
would
be
characterized
as
operating
lease
obligations
in
accordance
with
GAAP
on
the
Closing
Date
(whether
or
notsuch
operating
lease
obligations
were
in
effect
on
such
date)
shall
continue
to
be
accounted
for
as
operating
lease
obligations
(and
not
ascapitalized
lease
obligations)
for
purposes
of
this
Agreement
regardless
of
any
change
in
GAAP
following
the
Closing
Date
that
wouldotherwise
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
EBITDAshall
be
made
on
a
Pro
Forma
Basis.1.4Exchange Rates; Currency Equivalents .(a)
The
Administrative
Agent
or
an
L/C
Issuer,
as
applicable,
shall
determine
the
Spot
Rates
as
of
each
Revaluation
Date
to
be
usedfor
calculating
Dollar
Equivalent
amounts
of
Credit
Extensions
and
Outstanding
Amounts
denominated
in
Alternative
Currencies.
Such
SpotRates
shall
become
effective
as
of
such
Revaluation
Date
and
shall
be
the
Spot
Rates
employed
in
converting
any
amounts
between
theapplicable
currencies
until
the
next
Revaluation
Date
to
occur.
Except
for
purposes
of
financial
statements
delivered
by
Loan
Parties
hereunderor
calculating
financial
covenants
hereunder
or
except
as
otherwise
provided
herein,
the
applicable
amount
of
any
currency
(other
than
Dollars)for
purposes
of
the
Loan
Documents
shall
be
such
Dollar
Equivalent
amount
as
so
determined
by
the
Administrative
Agent
or
an
L/C
Issuer,
asapplicable.(b)
Wherever
in
this
Agreement
in
connection
with
a
Committed
Borrowing,
conversion,
continuation
or
prepayment
of
aEurocurrency
Rate
Loan
or
the
issuance,
amendment
or
extension
of
a
Letter
of
Credit,
an
amount,
such
as
a
required
minimum
or
multipleamount,
is
expressed
in
Dollars,
but
such
Committed
Borrowing,
Eurocurrency
Rate
Loan
or
Letter
of
Credit
is
denominated
in
an
Alternative Currency,
such
amount
shall
be
the
relevant
Alternative
Currency
Equivalent
of
such
Dollar
amount
(rounded
to
the
nearest
unit
of
suchAlternative
Currency,
with
0.5
of
a
unit
being
rounded
upward),
as
determined
by
the
Administrative
Agent
or
the
applicable
L/C
Issuer,
as
thecase
may
be.(c)
The
Administrative
Agent
does
not
warrant,
nor
accept
responsibility,
nor
shall
the
Administrative
Agent
have
any
liability
withrespect
to
the
administration,
submission
or
any
other
matter
related
to
the
rates
in
the
definition
of
"Eurocurrency
Rate"
or
with
respect
to
anycomparable
or
successor
rate
thereto,
other
than
in
the
case
of
its
own
gross
negligence
or
willful
misconduct
with
respect
to
suchadministration,
submission
or
other
matter
related
to
the
“Eurocurrency
Rate”,
as
determined
by
a
court
of
competent
jurisdiction
by
a
final
andnonappealable
judgment.1.5
Additional Alternative Currencies .(a)
The
Borrower
may
from
time
to
time
request
that
Eurocurrency
Rate
Loans
be
made
and/or
Letters
of
Credit
be
issued
in
acurrency
other
than
those
specifically
listed
in
the
definition
of
"Alternative
Currency;"
provided
that
such
requested
currency
is
a
lawfulcurrency
(other
than
Dollars)
that
is
readily
available
and
freely
transferable
and
convertible
into
Dollars.
In
the
case
of
any
such
request
withrespect
to
the
making
of
Eurocurrency
Rate
Loans,
such
request
shall
be
subject
to
the
approval
of
the
Administrative
Agent
and
the
Lenders;and
in
the
case
of
any
such
request
with
respect
to
the
issuance
of
Letters
of
Credit,
such
request
shall
be
subject
to
the
approval
of
theAdministrative
Agent
and
the
applicable
L/C
Issuer.(b)
Any
such
request
shall
be
made
to
the
Administrative
Agent
not
later
than
11:00
a.m.,
20
Business
Days
prior
to
the
date
of
thedesired
Credit
Extension
(or
such
other
time
or
date
as
may
be
agreed
by
the
Administrative
Agent
and,
in
the
case
of
any
such
requestpertaining
to
Letters
of
Credit,
the
applicable
L/C
Issuer,
in
its
or
their
sole
discretion).
In
the
case
of
any
such
request
pertaining
toEurocurrency
Rate
Loans,
the
Administrative
Agent
shall
promptly
notify
each
Lender
thereof;
and
in
the
case
of
any
such
request
pertaining
toLetters
of
Credit,
the
Administrative
Agent
shall
promptly
notify
the
L/C
Issuers
thereof.
Each
Lender
(in
the
case
of
any
such
requestpertaining
to
Eurocurrency
Rate
Loans)
or
the
L/C
Issuers
(in
the
case
of
a
request
pertaining
to
Letters
of
Credit)
shall
notify
theAdministrative
Agent,
not
later
than
11:00
a.m.,
ten
Business
Days
after
receipt
of
such
request
whether
it
consents,
in
its
sole
discretion,
to
themaking
of
Eurocurrency
Rate
Loans
or
the
issuance
of
Letters
of
Credit,
as
the
case
may
be,
in
such
requested
currency.(c)
Any
failure
by
a
Lender
or
an
L/C
Issuer,
as
the
case
may
be,
to
respond
to
such
request
within
the
time
period
specified
in
thepreceding
sentence
shall
be
deemed
to
be
a
refusal
by
such
Lender
or
such
L/C
Issuer,
as
the
case
may
be,
to
permit
Eurocurrency
Rate
Loansto
be
made
or
Letters
of
Credit
to
be
issued
in
such
requested
currency.
If
the
Administrative
Agent
and
all
the
Lenders
consent
to
makingEurocurrency
Rate
Loans
in
such
requested
currency,
the
Administrative
Agent
shall
so
notify
the
Borrower
and
such
currency
shall
thereuponbe
deemedfor
all
purposes
to
be
an
Alternative
Currency
hereunder
for
purposes
of
any
Committed
Borrowings
of
Eurocurrency
Rate
Loans;
and
if
theAdministrative
Agent
and
the
L/C
Issuers
consent
to
the
issuance
of
Letters
of
Credit
in
such
requested
currency,
the
Administrative
Agentshall
so
notify
the
Borrower
and
such
currency
shall
thereupon
be
deemed
for
all
purposes
to
be
an
Alternative
Currency
hereunder
forpurposes
of
any
Letter
of
Credit
issuances.
If
the
Administrative
Agent
shall
fail
to
obtain
consent
to
any
request
for
an
additional
currencyunder
this
Section
1.05
,
the
Administrative
Agent
shall
promptly
so
notify
the
Borrower.1.6Change of Currency .(a)
Each
obligation
of
the
Borrower
to
make
a
payment
denominated
in
the
national
currency
unit
of
any
member
state
of
theEuropean
Union
that
adopts
the
Euro
as
its
lawful
currency
after
the
date
hereof
shall
be
redenominated
into
Euro
at
the
time
of
such
adoption(in
accordance
with
the
EMU
Legislation).
If,
in
relation
to
the
currency
of
any
such
member
state,
the
basis
of
accrual
of
interest
expressed
inthis
Agreement
in
respect
of
that
currency
shall
be
inconsistent
with
any
convention
or
practice
in
the
London
interbank
market
for
the
basis
ofaccrual
of
interest
in
respect
of
the
Euro,
such
expressed
basis
shall
be
replaced
by
such
convention
or
practice
with
effect
from
the
date
onwhich
such
member
state
adopts
the
Euro
as
its
lawful
currency;
provided
that
if
any
Committed
Borrowing
in
the
currency
of
such
memberstate
is
outstanding
immediately
prior
to
such
date,
such
replacement
shall
take
effect,
with
respect
to
such
Committed
Borrowing,
at
the
end
ofthe
then
current
Interest
Period.(b)
Each
provision
of
this
Agreement
shall
be
subject
to
such
reasonable
changes
of
construction
as
the
Administrative
Agent
mayfrom
time
to
time
specify
to
be
appropriate
to
reflect
the
adoption
of
the
Euro
by
any
member
state
of
the
European
Union
and
any
relevantmarket
conventions
or
practices
relating
to
the
Euro. (c)
Each
provision
of
this
Agreement
also
shall
be
subject
to
such
reasonable
changes
of
construction
as
the
Administrative
Agentmay
from
time
to
time
specify
to
be
appropriate
to
reflect
a
change
in
currency
of
any
other
country
and
any
relevant
market
conventions
orpractices
relating
to
the
change
in
currency.1.7
Times of Day . Unless
otherwise
specified,
all
references
herein
to
times
of
day
shall
be
references
to
Eastern
time
(daylight
or
standard,as
applicable).1.8
Letter of Credit Amounts . Unless
otherwise
specified
herein,
the
amount
of
a
Letter
of
Credit
at
any
time
shall
be
deemed
to
be
theDollar
Equivalent
of
the
stated
amount
of
such
Letter
of
Credit
in
effect
at
such
time;
provided
,
however
,
that
with
respect
to
any
Letter
of
Credit
that,by
its
terms
or
the
terms
of
any
Issuer
Document
related
thereto,
provides
for
one
or
more
automatic
increases
in
the
stated
amount
thereof,
the
amountof
such
Letter
of
Credit
shall
be
deemed
to
be
the
Dollar
Equivalent
of
the
maximum
stated
amount
of
such
Letter
of
Credit
after
giving
effect
to
allsuch
increases,
whether
or
not
such
maximum
stated
amount
is
in
effect
at
such
time.ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS2.1
Committed Loans . Subject
to
the
terms
and
conditions
set
forth
herein,
each
Lender
severally
agrees
to
make
loans
(each
such
loan,
a
"Committed
Loan
")
to
the
Borrower
in
Dollars
or
in
one
or
more
Alternative
Currencies
from
time
to
time,
on
any
Business
Day
during
the
AvailabilityPeriod,
in
an
aggregate
amount
not
to
exceed
at
any
time
outstanding
the
amount
of
such
Lender's
Commitment;
provided,
however
,
that
after
givingeffect
to
any
Committed
Borrowing,
(i)
the
Total
Outstandings
shall
not
exceed
the
Aggregate
Commitments,
and
(ii)
the
aggregate
OutstandingAmount
of
the
Committed
Loans
of
any
Lender,
plus
such
Lender's
Pro
Rata
Share
of
the
Outstanding
Amount
of
all
L/C
Obligations,
plus
suchLender's
Pro
Rata
Share
of
the
Outstanding
Amount
of
all
Swing
Line
Loans
shall
not
exceed
such
Lender's
Commitment.
Within
the
limits
of
eachLender's
Commitment,
and
subject
to
the
other
terms
and
conditions
hereof,
the
Borrower
may
borrow
under
this
Section
2.01
,
repay,
prepay
underSection
2.05
,
and
reborrow
under
this
Section
2.01
.
Committed
Loans
may
be
Base
Rate
Loans
or
Eurocurrency
Rate
Loans,
as
further
providedherein.2.2Borrowings, Conversions and Continuations of Committed Loans .(a)
Each
Committed
Borrowing,
each
conversion
of
Committed
Loans
from
one
Type
to
the
other,
and
each
continuation
ofEurocurrency
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
Committed
Loan
Notice;
provided
that
any
telephonic
notice
must
be
confirmed
promptly
by
delivery
to
the
AdministrativeAgent
of
a
Committed
Loan
Notice.
Each
such
notice
must
be
received
by
the
Administrative
Agent
not
later
than
11:00
a.m.
(i)
three
BusinessDays
prior
to
the
requested
date
of
any
Borrowing
of,
conversion
to
or
continuation
of
Eurocurrency
Rate
Loans
denominated
in
Dollars
or
ofany
conversion
of
Eurocurrency
Rate
Loans
denominated
in
Dollars
to
Base
Rate
Committed
Loans,
(ii)
four
Business
Days
(or
five
BusinessDays
in
the
case
of
a
Special
Notice
Currency)
prior
to
the
requested
date
of
any
Borrowing
or
continuation
of
Eurocurrency
Rate
Loansdenominated
in
Alternative
Currencies,
and
(iii)
on
the
requested
date
of
any
Borrowing
of
Base
Rate
Committed
Loans;
provided,
however,that
if
the
Borrower
wishes
to
request
Eurocurrency
Rate
Loans
denominated
in
Singapore
Dollars,
Australian
Dollars
or
Hong
Kong
Dollars,the
applicable
notice
must
be
received
by
the
Administrative
Agent
not
later
than
six
Business
Days
prior
to
the
requested
date
of
suchBorrowing,
conversion
or
continuation
of
Eurocurrency
Rate
Loans
denominated
in
Singapore
Dollars,
Australian
Dollars
or
Hong
KongDollars,
as
applicable,
whereupon
the
Administrative
Agent
shall
give
prompt
notice
to
the
Lenders
of
such
request
and
determine
whethereach
of
them
is
able
to
fund
its
portion
of
the
Borrowing
denominated
Singapore
Dollars,
Australian
Dollars
or
Hong
Kong
Dollars,
asapplicable,
at
such
time.
Not
later
than
11:00
a.m.,
five
Business
Days
prior
to
the
requested
date
of
such
Borrowing,
conversion
orcontinuation
of
Eurocurrency
Rate
Loans
denominated
in
Singapore
Dollars,
Australian
Dollars
or
Hong
Kong
Dollars,
as
applicable,
theAdministrative
Agent
shall
notify
the
Borrower
(which
notice
may
be
by
telephone)
whether
or
not
the
requested
Borrowing,
conversion
orcontinuation
of
Eurocurrency
Rate
Loans
denominated
in
Singapore
Dollars,
Australian
Dollars
or
Hong
Kong
Dollars,
as
applicable,
has
beenconsented
to
by
all
the
Lenders.
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.
Except
as
provided
in
Sections
2.03(c
)
and2.04(c)
,
each
Committed
Borrowing
of
or
conversion
to
Base
Rate
Committed
Loans
shall
be
in
a
principal
amount
of
$5,000,000
or
a
wholemultiple
of
$100,000
in
excess
thereof.
Each
Committed
Loan
Notice
(whether
telephonic
or
written)
shall
specify
(i)
whether
the
Borrower
isrequesting
a
Committed
Borrowing,
a
conversion
of
Committed
Loans
from
one
Type
to
the
other,
or
a
continuation
of
Eurocurrency
RateLoans,
(ii)
the
requested
date
of
the
Borrowing,
conversion
or
continuation,
as
the
case
may
be
(which
shall
be
a
Business
Day),
(iii)
theprincipal
amount
of
Committed
Loans
to
be
borrowed,
converted
or
continued,
(iv)
the
Type
of
Committed
Loans
to
be
borrowed
or
to
whichexisting
Committed
Loans
are
to
be
converted,
(v)
if
applicable,
the
duration
of
the
Interest
Period
with
respect
thereto,
and
(vi)
the
currency
ofthe
Committed
Loans
to
be
borrowed.
If
the
Borrower
fails
to
specify
a
currency
in
a
Committed
Loan
Notice
requesting
a
Borrowing,
then
theCommitted
Loans
so
requested
shall
be
made
in
Dollars.
If
the
Borrower
fails
to
specify
a
Type
of
Committed
Loan
in
a
Committed
LoanNotice
or
if
the
Borrower
fails
to
give
a
timely
notice
requesting
a
conversion
or
continuation,
then
the
applicable
Committed
Loans
shall
bemade
as,
or
converted
to,
Base
Rate
Loans;
provided,
however
,
that
in
the
case
of
a
failure
to
timely
request
a
continuation
of
CommittedLoans
denominated
in
an
Alternative
Currency,
such
Loans
shall
be
continued
as
Eurocurrency
Rate
Loans
in
their
original
currency
with
an Interest
Period
of
one
month.
Any
automatic
conversion
to
Base
Rate
Loans
shall
be
effective
as
of
the
last
day
of
the
Interest
Period
then
ineffect
with
respect
to
the
applicable
Eurocurrency
Rate
Loans.
If
the
Borrower
requests
a
Borrowing
of,
conversion
to,
or
continuation
ofEurocurrency
Rate
Loans
in
any
such
Committed
Loan
Notice,
but
fails
to
specify
an
Interest
Period,
it
will
be
deemed
to
have
specified
anInterest
Period
of
one
month.
No
Committed
Loan
may
be
converted
into
or
continued
as
a
Committed
Loan
denominated
in
a
differentcurrency,
but
instead
must
be
prepaid
in
the
original
currency
of
such
Committed
Loan
and
reborrowed
in
the
other
currency.(b)
Following
receipt
of
a
Committed
Loan
Notice,
the
Administrative
Agent
shall
promptly
notify
each
Lender
of
the
amount
(andcurrency)
of
its
Pro
Rata
Share
of
the
applicable
Committed
Loans,
and
if
no
timely
notice
of
a
conversion
or
continuation
is
provided
by
theBorrower,
the
Administrative
Agent
shall
notify
each
Lender
of
the
details
of
any
automatic
conversion
to
Base
Rate
Loans
or
continuation
ofCommitted
Loans
denominated
in
a
currency
other
than
Dollars,
in
each
case
as
described
in
the
preceding
subsection.
In
the
case
of
aCommitted
Borrowing,
each
Lender
shall
make
the
amount
of
its
Committed
Loan
available
to
the
Administrative
Agent
in
Same
Day
Funds
atthe
Administrative
Agent's
Office
for
the
applicable
currency
not
later
than
1:00
p.m.,
in
the
case
of
any
Committed
Loan
denominated
inDollars,
and
not
later
than
the
Applicable
Time
specified
by
the
Administrative
Agent
in
the
case
of
any
Committed
Loan
in
an
AlternativeCurrency,
in
each
case
on
the
Business
Day
specified
in
the
applicable
Committed
Loan
Notice.
Upon
satisfaction
of
the
applicable
conditionsset
forth
in
Section
5.02
,
the
Administrative
Agent
shall
make
all
funds
so
received
available
to
the
Borrower
in
like
funds
as
received
by
theAdministrative
Agent
either
by
(i)
crediting
the
account
of
the
Borrower
on
the
books
of
Bank
of
America
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
Agentby
the
Borrower;
provided,
however
,
that
if,
on
the
date
the
Committed
Loan
Notice
with
respect
to
such
Borrowing
denominated
in
Dollars
isgiven
by
the
Borrower,
there
are
L/C
Borrowings
outstanding,
then
the
proceeds
of
such
Borrowing,
first,
shall
be
applied
to
the
payment
infull
of
any
such
L/C
Borrowings,
and,
second
,
shall
be
made
available
to
the
Borrower
as
provided
above.(c)
Except
as
otherwise
provided
herein,
a
Eurocurrency
Rate
Loan
may
be
continued
or
converted
only
on
the
last
day
of
an
InterestPeriod
for
such
Eurocurrency
Rate
Loan.
During
the
existence
of
a
Default,
no
Loans
may
be
requested
as,
converted
to
or
continued
asEurocurrency
Rate
Loans
(whether
in
Dollars
or
any
Alternative
Currency)
without
the
consent
of
the
Required
Lenders,
and
the
RequiredLenders
may
demand
that
any
or
all
of
the
then
outstanding
Eurocurrency
Rate
Loans
denominated
in
an
Alternative
Currency
be
prepaid,
orredenominated
into
Dollars
in
the
amount
of
the
Dollar
Equivalent
thereof,
on
the
last
day
of
the
then
current
Interest
Period
with
respectthereto.(d)
The
Administrative
Agent
shall
promptly
notify
the
Borrower
and
the
Lenders
of
the
interest
rate
applicable
to
any
InterestPeriod
for
Eurocurrency
Rate
Loans
upon
determination
of
such
interest
rate.
At
any
time
that
Base
Rate
Loans
are
outstanding,
theAdministrative
Agent
shall
notify
the
Borrower
and
the
Lenders
of
any
change
in
Bank
of
America's
prime
rate
used
in
determining
the
BaseRate
promptly
following
the
public
announcement
of
such
change.(e)
After
giving
effect
to
all
Committed
Borrowings,
all
conversions
of
Committed
Loans
from
one
Type
to
the
other,
and
allcontinuations
of
Committed
Loans
as
the
same
Type,
there
shall
not
be
more
than
ten
Interest
Periods
in
effect
with
respect
to
CommittedLoans.(f)
Notwithstanding
anything
to
the
contrary
in
this
Agreement,
any
Lender
may
exchange,
continue
or
rollover
all
of
the
portion
ofits
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.2.3Letters of Credit .(a)
The
Letter
of
Credit
Commitment
.(i)
Subject
to
the
terms
and
conditions
set
forth
herein,
(A)
each
L/C
Issuer
agrees,
in
reliance
upon
the
agreements
of
theLenders
set
forth
in
this
Section
2.03
,
(1)
from
time
to
time
on
any
Business
Day
during
the
period
from
the
Closing
Date
until
theLetter
of
Credit
Expiration
Date,
to
issue
Letters
of
Credit
denominated
in
Dollars
or
in
one
or
more
Alternative
Currencies
for
theaccount
of
the
Borrower,
and
to
amend
or
extend.
Letters
of
Credit
previously
issued
by
it,
in
accordance
with
subsection
(b)
below,and
(2)
to
honor
drawings
under
the
Letters
of
Credit;
and
(B)
the
Lenders
severally
agree
to
participate
in
Letters
of
Credit
issued
forthe
account
of
the
Borrower
and
any
drawings
thereunder;
provided
that
after
giving
effect
to
any
L/C
Credit
Extension
with
respect
toany
Letter
of
Credit,
(w)
the
Total
Outstandings
shall
not
exceed
the
Aggregate
Commitments,
(x)
the
aggregate
Outstanding
Amountof
the
Committed
Loans
of
any
Lender,
plus
such
Lender's
Pro
Rata
Share
of
the
Outstanding
Amount
of
all
L/C
Obligations,
plus
suchLender's
Pro
Rata
Share
of
the
Outstanding
Amount
of
all
Swing
Line
Loans
shall
not
exceed
such
Lender's
Commitment,
(y)
theOutstanding
Amount
of
the
L/C
Obligations
shall
not
exceed
the
Letter
of
Credit Sublimit
and
(z)
the
Outstanding
Amount
of
all
L/C
Obligations
of
any
L/C
Issuer
shall
not
exceed
such
L/C
Issuer's
L/C
Commitmentwithout
such
L/C
Issuer’s
consent.
Each
request
by
the
Borrower
for
the
issuance
or
amendment
of
a
Letter
of
Credit
shall
be
deemedto
be
a
representation
by
the
Borrower
that
the
L/C
Credit
Extension
so
requested
complies
with
the
conditions
set
forth
in
the
provisoto
the
preceding
sentence.
Within
the
foregoing
limits,
and
subject
to
the
terms
and
conditions
hereof,
the
Borrower's
ability
to
obtainLetters
of
Credit
shall
be
fully
revolving,
and
accordingly
the
Borrower
may,
during
the
foregoing
period,
obtain
Letters
of
Credit
toreplace
Letters
of
Credit
that
have
expired
or
that
have
been
drawn
upon
and
reimbursed.
All
Existing
Letters
of
Credit
shall
be
deemedto
have
been
issued
pursuant
hereto,
and
from
and
after
the
Closing
Date
shall
be
subject
to
and
governed
by
the
terms
and
conditionshereof.(ii)An
L/C
Issuer
shall
not
issue
any
Letter
of
Credit,
if:(A)
subject
to
Section
2.03(b)(iii)
,
the
expiry
date
of
such
requested
Letter
of
Credit
would
occur
more
than
twelvemonths
after
the
date
of
issuance
or
last
extension,
unless
the
Required
Lenders
have
approved
such
expiry
date;
or(B)
the
expiry
date
of
such
requested
Letter
of
Credit
would
occur
after
the
Letter
of
Credit
Expiration
Date,
unlessall
the
Lenders
have
approved
such
expiry
date.(iii)
An
L/C
Issuer
shall
not
be
under
any
obligation
to
issue
any
Letter
of
Credit
if:(A)
any
order,
judgment
or
decree
of
any
Governmental
Authority
or
arbitrator
shall
by
its
terms
purport
to
enjoin
orrestrain
an
L/C
Issuer
from
issuing
such
Letter
of
Credit,
or
any
Law
applicable
to
an
L/C
Issuer
or
any
request
or
directive(whether
or
not
having
the
force
of
law)
from
any
Governmental
Authority
with
jurisdiction
over
an
L/C
Issuer
shall
prohibit,or
request
that
an
L/C
Issuer
refrain
from,
the
issuance
of
letters
of
credit
generally
or
such
Letter
of
Credit
in
particular
or
shallimpose
upon
an
L/C
Issuer
with
respect
to
such
Letter
of
Credit
any
restriction,
reserve
or
capital
requirement
(for
which
anL/C
Issuer
is
not
otherwise
compensated
hereunder)
not
in
effect
on
the
Closing
Date,
or
shall
impose
upon
an
L/C
Issuer
anyunreimbursed
loss,
cost
or
expense
which
was
not
applicable
on
the
Closing
Date
and
which
an
L/C
Issuer
in
good
faith
deemsmaterial
to
it;(B)
the
issuance
of
such
Letter
of
Credit
would
violate
one
or
more
policies
of
such
L/C
Issuer;(C)
except
as
otherwise
agreed
by
the
Administrative
Agent
and
such
L/C
Issuer,
such
Letter
of
Credit
is
in
an
initialstated
amount
less
than$100,000;(D)
except
as
otherwise
agreed
by
the
Administrative
Agent
and
such
L/C
Issuer,
such
Letter
of
Credit
is
to
bedenominated
in
a
currency
other
than
Dollars
or
an
Alternative
Currency;(E)
such
L/C
Issuer
does
not
as
of
the
issuance
date
of
such
requested
Letter
of
Credit
issue
Letters
of
Credit
in
therequested
currency;(F)
such
Letter
of
Credit
contains
any
provisions
for
automatic
reinstatement
of
the
stated
amount
after
any
drawingthereunder;
or(G)
any
Lender
is
at
that
time
a
Defaulting
Lender,
unless
the
applicable
L/C
Issuer
has
entered
into
arrangements,including
the
delivery
of
Cash
Collateral,
satisfactory
to
such
L/C
Issuer
(in
its
sole
discretion)
with
the
Borrower
or
suchLender
to
eliminate
such
L/C
Issuer's
actual
or
potential
Fronting
Exposure
(after
giving
effect
to
Section
2.16(a)(iv)
)
withrespect
to
the
Defaulting
Lender
arising
from
either
the
Letter
of
Credit
then
proposed
to
be
issued
or
that
Letter
of
Credit
andall
other
L/C
Obligations
as
to
which
such
L/C
Issuer
has
actual
or
potential
Fronting
Exposure,
as
it
may
elect
in
its
solediscretion.(iv)
An
L/C
Issuer
shall
not
amend
any
Letter
of
Credit
if
such
L/C
Issuer
would
not
be
permitted
at
such
time
to
issue
suchLetter
of
Credit
in
its
amended
form
under
the
terms
hereof. (v)
An
L/C
Issuer
shall
be
under
no
obligation
to
amend
any
Letter
of
Credit
if
(A)
such
L/C
Issuer
would
have
no
obligationat
such
time
to
issue
such
Letter
of
Credit
in
its
amended
form
under
the
terms
hereof,
or
(B)
the
beneficiary
of
such
Letter
of
Creditdoes
not
accept
the
proposed
amendment
to
such
Letter
of
Credit.(vi)
An
L/C
Issuer
shall
act
on
behalf
of
the
Lenders
with
respect
to
any
Letters
of
Credit
issued
by
it
and
the
documentsassociated
therewith,
and
such
L/C
Issuer
shall
have
all
of
the
benefits
and
immunities
(A)
provided
to
the
Administrative
Agent
inArticle
X
with
respect
to
any
acts
taken
or
omissions
suffered
by
such
L/C
Issuer
in
connection
with
Letters
of
Credit
issued
by
it
orproposed
to
be
issued
by
it
and
Issuer
Documents
pertaining
to
such
Letters
of
Credit
as
fully
as
if
the
term
"Administrative
Agent"
asused
in
Article
X
included
such
L/C
Issuer
with
respect
to
such
acts
or
omissions,
and
(B)
as
additionally
provided
herein
with
respectto
such
L/C
Issuer.(b)
Procedures
for
Issuance
and
Amendment
of
Letters
of
Credit:
Auto-Extension
Letters
of
Credit
.(i)
Each
Letter
of
Credit
shall
be
issued
or
amended,
as
the
case
may
be,
upon
the
request
of
the
Borrower
delivered
to
anL/C
Issuer
(with
a
copy
to
the
Administrative
Agent)
in
the
form
of
a
Letter
of
Credit
Application,
appropriately
completed
and
signedby
a
Responsible
Officer
of
the
Borrower.
Such
Letter
of
Credit
Application
may
be
sent
by
facsimile,
by
United
States
mail,
byovernight
courier,
byelectronic
transmission
using
the
system
provided
by
the
applicable
L/C
Issuer,
by
personal
delivery
or
by
any
other
means
acceptableto
such
L/C
Issuer.
Such
Letter
of
Credit
Application
must
be
received
by
an
L/C
Issuer
and
the
Administrative
Agent
not
later
than11:00
a.m.
at
least
two
Business
Days
(or
such
later
date
and
time
as
the
Administrative
Agent
and
the
applicable
L/C
Issuer
may
agreein
a
particular
instance
in
their
sole
discretion)
prior
to
the
proposed
issuance
date
or
date
of
amendment,
as
the
case
may
be.
In
the
caseof
a
request
for
an
initial
issuance
of
a
Letter
of
Credit,
such
Letter
of
Credit
Application
shall
specify
in
form
and
detail
satisfactory
tothe
applicable
L/C
Issuer:
(A)
the
proposed
issuance
date
of
the
requested
Letter
of
Credit
(which
shall
be
a
Business
Day);
(B)
theamount
and
currency
thereof;
(C)
the
expiry
date
thereof;(D)
the
name
and
address
of
the
beneficiary
thereof;
(E)
the
documents
to
be
presented
by
such
beneficiary
in
case
of
any
drawingthereunder;
(F)
the
full
text
of
any
certificate
to
be
presented
by
such
beneficiary
in
case
of
any
drawing
thereunder;
(G)
the
purposeand
nature
of
the
requested
Letter
of
Credit;
and
(H)
such
other
matters
as
the
applicable
L/C
Issuer
may
require.
In
the
case
of
arequest
for
an
amendment
of
any
outstanding
Letter
of
Credit,
such
Letter
of
Credit
Application
shall
specify
in
form
and
detailsatisfactory
to
the
applicable
L/C
Issuer
(A)
the
Letter
of
Credit
to
be
amended;
(B)
the
proposed
date
of
amendment
thereof
(whichshall
be
a
Business
Day);
(C)
the
nature
of
the
proposed
amendment;
and
(D)
such
other
matters
as
the
applicable
L/C
Issuer
mayrequire.
Additionally,
the
Borrower
shall
furnish
to
the
applicable
L/C
Issuer
and
the
Administrative
Agent
such
other
documents
andinformation
pertaining
to
such
requested
Letter
of
Credit
issuance
or
amendment,
including
any
Issuer
Documents,
as
such
L/C
Issueror
the
Administrative
Agent
may
require.(ii)
Promptly
after
receipt
of
any
Letter
of
Credit
Application,
the
applicable
L/C
Issuer
will
confirm
with
the
AdministrativeAgent
(by
telephone
or
in
writing)
that
the
Administrative
Agent
has
received
a
copy
of
such
Letter
of
Credit
Application
from
theBorrower
and,
if
not,
such
L/C
Issuer
will
provide
the
Administrative
Agent
with
a
copy
thereof.
Unless
such
L/C
Issuer
has
receivedwritten
notice
from
any
Lender,
the
Administrative
Agent
or
any
Loan
Party,
at
least
one
Business
Day
prior
to
the
requested
date
ofissuance
or
amendment
of
the
applicable
Letter
of
Credit,
that
one
or
more
applicable
conditions
contained
in
Article
V
shall
not
thenbe
satisfied,
then,
subject
to
the
terms
and
conditions
hereof,
such
L/C
Issuer
shall,
on
the
requested
date,
issue
a
Letter
of
Credit
for
theaccount
of
the
Borrower
or
enter
into
the
applicable
amendment,
as
the
case
may
be,
in
each
case
in
accordance
with
such
L/C
Issuer'susual
and
customary
business
practices.
Immediately
upon
the
issuance
of
each
Letter
of
Credit,
each
Lender
shall
be
deemed
to,
andhereby
irrevocably
and
unconditionally
agrees
to,
purchase
from
such
L/C
Issuer
a
risk
participation
in
such
Letter
of
Credit
in
anamount
equal
to
the
product
of
such
Lender's
Pro
Rata
Share
times
the
amount
of
such
Letter
of
Credit.(iii)
If
the
Borrower
so
requests
in
any
applicable
Letter
of
Credit
Application,
the
applicable
L/C
Issuer
may,
in
its
sole
andabsolute
discretion,
agree
to
issue
a
Letter
of
Credit
that
has
automatic
extension
provisions
(each,
an
"
Auto-Extension
Letter
of
Credit");
provided
that
any
such
Auto-Extension
Letter
of
Credit
must
permit
such
L/C
Issuer
to
prevent
any
such
extension
at
least
once
ineach
twelve-month
period
(commencing
with
the
date
of
issuance
of
such
Letter
of
Credit)
by
giving
prior
notice
to
the
beneficiarythereof
not
later
than
a
day
(the
"
Non-Extension
Notice
Date
")
in
each
such
twelve-month
period
to
be
agreed
upon
at
the
time
suchLetter
of
Credit
is
issued.
Unless
otherwise
directed
by
an
L/C
Issuer,
the
Borrower
shall
not
be
required
to
make
a
specific
request
tosuch
L/C
Issuer
for
any
such
extension.
Once
anAuto-Extension
Letter
of
Credit
has
been
issued,
the
Lenders
shall
be
deemed
to
have
authorized
(but
may
not
require)
an
L/C
Issuer
to permit
the
extension
of
such
Letter
of
Credit
at
any
time
to
an
expiry
date
not
later
than
the
Letter
of
Credit
Expiration
Date;
provided
,however
,
that
an
L/C
Issuer
shall
not
permit
any
such
extension
if
(A)
such
L/C
Issuer
has
determined
that
it
would
not
be
permitted,or
would
have
no
obligation,
at
such
time
to
issue
such
Letter
of
Credit
in
its
revised
form
(as
extended)
under
the
terms
hereof
(byreason
of
the
provisions
of
clause
(ii)
or
(iii)
of
Section
2.03(a)
or
otherwise),
or
(B)
it
has
received
notice
(which
may
be
by
telephoneor
in
writing)
on
or
before
the
day
that
is
seven
Business
Days
before
the
Non-Extension
Notice
Date
(1)
from
the
AdministrativeAgent
that
the
Required
Lenders
have
elected
not
to
permit
such
extension
or
(2)
from
the
Administrative
Agent,
any
Lender
or
theBorrower
that
one
or
more
of
the
applicable
conditions
specified
in
Section
5.02
is
not
then
satisfied,
and
in
each
such
case
directingsuch
L/C
Issuer
not
to
permit
such
extension.(iv)
Promptly
after
its
delivery
of
any
Letter
of
Credit
or
any
amendment
to
a
Letter
of
Credit
to
an
advising
bank
withrespect
thereto
or
to
the
beneficiary
thereof,
the
applicable
L/C
Issuer
will
also
deliver
to
the
Borrower
and
the
Administrative
Agent
atrue
and
complete
copy
of
such
Letter
of
Credit
or
amendment.(c)Drawings
and
Reimbursements:
Funding
of
Participations
.(i)
Upon
receipt
from
the
beneficiary
of
any
Letter
of
Credit
of
any
notice
of
a
drawing
under
such
Letter
of
Credit,
an
L/CIssuer
shall
notify
the
Borrower
and
the
Administrative
Agent
thereof.
In
the
case
of
a
Letter
of
Credit
denominated
in
an
AlternativeCurrency,
the
Borrower
shall
reimburse
the
applicable
L/C
Issuer
in
such
Alternative
Currency,
unless
(A)
such
L/C
Issuer
(at
itsoption)
shall
have
specified
in
such
notice
that
it
will
require
reimbursement
in
Dollars,
or
(B)
in
the
absence
of
any
such
requirementfor
reimbursement
in
Dollars,
the
Borrower
shall
have
notified
such
L/C
Issuer
promptly
following
receipt
of
the
notice
of
drawing
thatthe
Borrower
will
reimburse
such
L/C
Issuer
in
Dollars.
In
the
case
of
any
such
reimbursement
in
Dollars
of
a
drawing
under
a
Letter
ofCredit
denominated
in
an
Alternative
Currency,
the
applicable
L/C
Issuer
shall
notify
the
Borrower
of
the
Dollar
Equivalent
of
theamount
of
the
drawing
promptly
following
the
determination
thereof.
Not
later
than
11:00
a.m.
on
the
date
of
any
payment
by
an
L/CIssuer
under
a
Letter
of
Credit
to
be
reimbursed
in
Dollars,
or
the
Applicable
Time
on
the
date
of
any
payment
by
an
L/C
Issuer
under
aLetter
of
Credit
to
be
reimbursed
in
an
Alternative
Currency
(each
such
date,
an
"
Honor
Date
"),
the
Borrower
shall
reimburse
theapplicable
L/C
Issuer
through
the
Administrative
Agent
in
an
amount
equal
to
the
amount
of
such
drawing
and
in
the
applicablecurrency.
If
the
Borrower
fails
to
so
reimburse
the
applicable
L/C
Issuer
by
such
time,
the
Administrative
Agent
shall
promptly
notifyeach
Lender
of
the
Honor
Date,
the
amount
of
the
unreimbursed
drawing
(expressed
in
Dollars
in
the
amount
of
the
Dollar
Equivalentthereof
in
the
case
of
a
Letter
of
Credit
denominated
in
an
Alternative
Currency)
(the
"
Unreimbursed
Amount
"),
and
the
amount
ofsuch
Lender's
Pro
Rata
Share
thereof.
In
such
event,
the
Borrower
shall
be
deemed
to
have
requested
a
Committed
Borrowing
of
BaseRate
Loans
to
be
disbursed
on
the
Honor
Date
in
an
amount
equal
to
the
Unreimbursed
Amount,
without
regard
to
the
minimum
andmultiples
specified
in
Section
2.02
for
the
principal
amount
of
Base
Rate
Loans,
but
subject
to
the
amount
of
the
unutilized
portion
ofthe
Aggregate
Commitments
and
the
conditions
set
forth
in
Section
5.02
(other
than
the
delivery
of
a
Committed
Loan
Notice).
Anynotice
given
by
an
L/C
Issuer
or
the
Administrative
Agent
pursuant
to
thisSection
2.03(c)(i)
may
be
given
by
telephone
if
immediately
confirmed
in
writing;
provided
that
the
lack
of
such
an
immediateconfirmation
shall
not
affect
the
conclusiveness
or
binding
effect
of
such
notice.(ii)
Each
Lender
shall
upon
any
notice
pursuant
to
Section
2.03(c)(i)
make
funds
available
(and
the
Administrative
Agentmay
apply
Cash
Collateral
for
this
purpose)
to
the
Administrative
Agent
for
the
account
of
the
applicable
L/C
Issuer,
in
Dollars,
at
theAdministrative
Agent's
Office
for
Dollar-denominated
payments
in
an
amount
equal
to
its
Pro
Rata
Share
of
the
Unreimbursed
Amountnot
later
than
1:00
p.m.
on
the
Business
Day
specified
in
such
notice
by
the
Administrative
Agent,
whereupon,
subject
to
the
provisionsof
Section
2.03(c)(iii)
,
each
Lender
that
so
makes
funds
available
shall
be
deemed
to
have
made
a
Base
Rate
Committed
Loan
to
theBorrower
in
such
amount.
The
Administrative
Agent
shall
remit
the
funds
so
received
to
the
applicable
L/C
Issuer
in
Dollars.(iii)
With
respect
to
any
Unreimbursed
Amount
that
is
not
fully
refinanced
by
a
Committed
Borrowing
of
Base
Rate
Loansbecause
the
conditions
set
forth
in
Section
5.02
cannot
be
satisfied
or
for
any
other
reason,
the
Borrower
shall
be
deemed
to
haveincurred
from
the
applicable
L/C
Issuer
an
L/C
Borrowing
in
the
amount
of
the
Unreimbursed
Amount
that
is
not
so
refinanced,
whichL/C
Borrowing
shall
be
due
and
payable
on
demand
(together
with
interest)
and
shall
bear
interest
at
the
Default
Rate.
In
such
event,each
Lender's
payment
to
the
Administrative
Agent
for
the
account
of
the
applicable
L/C
Issuer
pursuant
to
Section
2.03(c)(ii)
shall
bedeemed
payment
in
respect
of
its
participation
in
such
L/C
Borrowing
and
shall
constitute
an
L/C
Advance
from
such
Lender
insatisfaction
of
its
participation
obligation
under
this
Section
2.03
.(iv)
Until
each
Lender
funds
its
Committed
Loan
or
L/C
Advance
pursuant
to
this
Section
2.03(c)
to
reimburse
theapplicable
L/C
Issuer
for
any
amount
drawn
under
any
Letter
of
Credit,
interest
in
respect
of
such
Lender's
Pro
Rata
Share
of
suchamount
shall
be
solely
for
the
account
of
such
L/C
Issuer. (v)
Each
Lender's
obligation
to
make
Committed
Loans
or
L/C
Advances
to
reimburse
the
applicable
L/C
Issuer
for
amountsdrawn
under
Letters
of
Credit,
as
contemplated
by
this
Section
2.03(c)
,
shall
be
absolute
and
unconditional
and
shall
not
be
affected
byany
circumstance,
including
(A)
any
setoff,
counterclaim,
recoupment,
defense
or
other
right
which
such
Lender
may
have
against
suchL/C
Issuer,
the
Borrower,
any
Subsidiary
or
any
other
Person
for
any
reason
whatsoever;
(B)
the
occurrence
or
continuance
of
aDefault;
or
(C)
any
other
occurrence,
event
or
condition,
whether
or
not
similar
to
any
of
the
foregoing;
provided
,
however
,
that
eachLender's
obligation
to
make
Committed
Loans
pursuant
to
this
Section
2.03(c)
is
subject
to
the
conditions
set
forth
in
Section
5.02(other
than
delivery
by
the
Borrower
of
a
Committed
Loan
Notice).
No
such
making
of
an
L/C
Advance
shall
relieve
or
otherwiseimpair
the
obligation
of
the
Borrower
to
reimburse
the
applicable
L/C
Issuer
for
the
amount
of
any
payment
made
by
such
L/C
Issuerunder
any
Letter
of
Credit,
together
with
interest
as
provided
herein.(vi)
If
any
Lender
fails
to
make
available
to
the
Administrative
Agent
for
the
account
of
an
L/C
Issuer
any
amount
requiredto
be
paid
by
such
Lender
pursuant
to
the
foregoing
provisions
of
this
Section
2.03(c)
by
the
time
specified
in
Section
2.03(c)(ii)
,
then,without
limiting
the
other
provision
of
this
Agreement,
such
L/C
Issuer
shall
beentitled
to
recover
from
such
Lender
(acting
through
the
Administrative
Agent),
on
demand,
such
amount
with
interest
thereon
for
theperiod
from
the
date
such
payment
is
required
to
the
date
on
which
such
payment
is
immediately
available
to
such
L/C
Issuer
at
a
rateper
annum
equal
to
the
applicable
Overnight
Rate
from
time
to
time
in
effect,
plus
any
administrative,
processing
or
similar
feescustomarily
charged
by
such
L/C
Issuer
in
connection
with
the
foregoing.
If
such
Lender
pays
such
amount
(with
interest
and
fees
asaforesaid),
the
amount
so
paid
shall
constitute
such
Lender's
Committed
Loan
included
in
the
relevant
Committed
Borrowing
or
L/CAdvance
in
respect
of
the
relevant
L/C
Borrowing,
as
the
case
may
be.
A
certificate
of
the
applicable
L/C
Issuer
submitted
to
anyLender
(through
the
Administrative
Agent)
with
respect
to
any
amounts
owing
under
this
clause
(vi)
shall
be
conclusive
absentmanifest
error.(d)Repayment
of
Participations
.(i)
At
any
time
after
an
L/C
Issuer
has
made
a
payment
under
any
Letter
of
Credit
and
has
received
from
any
Lender
suchLender's
L/C
Advance
in
respect
of
such
payment
in
accordance
with
Section
2.03(c)
,
if
the
Administrative
Agent
receives
for
theaccount
of
such
L/C
Issuer
any
payment
in
respect
of
the
related
Unreimbursed
Amount
or
interest
thereon
(whether
directly
from
theBorrower
or
otherwise,
including
proceeds
of
Cash
Collateral
applied
thereto
by
the
Administrative
Agent),
the
Administrative
Agentwill
distribute
to
such
Lender
its
Pro
Rata
Share
thereof
in
Dollars
and
in
the
same
funds
as
those
received
by
the
AdministrativeAgent.(ii)
If
any
payment
received
by
the
Administrative
Agent
for
the
account
of
an
L/C
Issuer
pursuant
to
Section
2.03(c)(i)
isrequired
to
be
returned
under
any
of
the
circumstances
described
in
Section
11.05
(including
pursuant
to
any
settlement
entered
into
bysuch
L/C
Issuer
in
its
discretion),
each
Lender
shall
pay
to
the
Administrative
Agent
for
the
account
of
such
L/C
Issuer
its
Pro
RataShare
thereof
on
demand
of
the
Administrative
Agent,
plus
interest
thereon
from
the
date
of
such
demand
to
the
date
such
amount
isreturned
by
such
Lender,
at
a
rate
per
annum
equal
to
the
applicable
Overnight
Rate
from
time
to
time
in
effect.
The
obligations
of
theLenders
under
this
clause
shall
survive
the
payment
in
full
of
the
Obligations
and
the
termination
of
this
Agreement.(e)
Obligations
Absolute
.
The
obligation
of
the
Borrower
to
reimburse
an
L/C
Issuer
for
each
drawing
under
each
Letter
of
Creditand
to
repay
each
L/C
Borrowing
shall
be
absolute,
unconditional
and
irrevocable,
and
shall
be
paid
strictly
in
accordance
with
the
terms
of
thisAgreement
under
all
circumstances,
including
the
following:(i)
any
lack
of
validity
or
enforceability
of
such
Letter
of
Credit,
this
Agreement,
or
any
other
Loan
Document;(ii)
the
existence
of
any
claim,
counterclaim,
setoff,
defense
or
other
right
that
the
Borrower
or
any
Subsidiary
may
have
atany
time
against
any
beneficiary
or
any
transferee
of
such
Letter
of
Credit
(or
any
Person
for
whom
any
such
beneficiary
or
any
suchtransferee
may
be
acting),
an
L/C
Issuer
or
any
other
Person,
whether
in
connection
with
this
Agreement,
the
transactions
contemplatedhereby
or
by
such
Letter
of
Credit
or
any
agreement
or
instrument
relating
thereto,
or
any
unrelated
transaction;(iii)
any
draft,
demand,
certificate
or
other
document
presented
under
such
Letter
of
Credit
proving
to
be
forged,
fraudulent,invalid
or
insufficient
in
any
respect
or
any
statement
therein
being
untrue
or
inaccurate
in
any
respect;
or
any
loss
or
delay
in
thetransmission
or
otherwise
of
any
document
required
in
order
to
make
a
drawing
under
such
Letter
of
Credit; (iv)
any
payment
by
an
L/C
Issuer
under
such
Letter
of
Credit
against
presentation
of
a
draft
or
certificate
that
does
notstrictly
comply
with
the
terms
of
such
Letter
of
Credit;
or
any
payment
made
by
an
L/C
Issuer
under
such
Letter
of
Credit
to
any
Personpurporting
to
be
a
trustee
in
bankruptcy,
debtor-in-possession,
assignee
for
the
benefit
of
creditors,
liquidator,
receiver
or
otherrepresentative
of
or
successor
to
any
beneficiary
or
any
transferee
of
such
Letter
of
Credit,
including
any
arising
in
connection
with
anyproceeding
under
any
Debtor
Relief
Law;(v)
any
adverse
change
in
the
relevant
exchange
rates
or
in
the
availability
of
the
relevant
Alternative
Currency
to
theBorrower
or
any
Subsidiary
or
in
the
relevant
currency
markets
generally;(vi)
any
other
circumstance
or
happening
whatsoever,
whether
or
not
similar
to
any
of
the
foregoing,
including
any
othercircumstance
that
might
otherwise
constitute
a
defense
available
to,
or
a
discharge
of,
the
Borrower
or
any
Subsidiary;(vii)
waiver
by
the
applicable
L/C
Issuer
of
any
requirement
that
exists
for
the
L/C
Issuer's
protection
and
not
the
protectionof
the
Borrower
or
any
waiver
by
the
applicable
L/C
Issuer
which
does
not
in
fact
materially
prejudice
the
Borrower;(viii)
honor
of
a
demand
for
payment
presented
electronically
even
if
such
Letter
of
Credit
requires
that
demand
be
in
theform
of
a
draft;
or(ix)
any
payment
made
by
the
applicable
L/C
Issuer
in
respect
of
an
otherwise
complying
item
presented
after
the
datespecified
as
the
expiration
date
of,
or
the
date
by
which
documents
must
be
received
under,
such
Letter
of
Credit
if
presentation
aftersuch
date
is
authorized
by
the
UCC,
the
ISP
or
the
UCP,
as
applicable.The
Borrower
shall
promptly
examine
a
copy
of
each
Letter
of
Credit
and
each
amendment
thereto
that
is
delivered
to
it
and,
in
theevent
of
any
claim
of
noncompliance
with
the
Borrower's
instructions
or
other
irregularity,
the
Borrower
will
immediately
notify
the
applicableL/C
Issuer.
The
Borrower
shall
be
conclusively
deemed
to
have
waived
any
such
claim
against
an
L/C
Issuer
and
its
correspondents
unless
suchnotice
is
given
as
aforesaid.(f)
Role
of
L/C
Issuers
.
Each
Lender
and
the
Borrower
agree
that,
in
paying
any
drawing
under
a
Letter
of
Credit,
an
L/C
Issuershall
not
have
any
responsibility
to
obtain
any
document
(other
than
any
sight
draft,
certificates
and
documents
expressly
required
by
the
Letterof
Credit)
or
to
ascertain
or
inquire
as
to
the
validity
or
accuracy
of
any
such
document
or
the
authority
of
the
Person
executing
or
deliveringany
such
document.
None
of
the
L/C
Issuers,
the
Administrative
Agent,
any
of
their
respective
Related
Parties
nor
any
correspondent,participant
or
assignee
of
an
L/C
Issuer
shall
be
liable
to
any
Lender
for
(i)
any
action
taken
or
omitted
in
connection
herewith
at
the
request
orwith
the
approval
of
the
Lenders
or
the
Required
Lenders,
as
applicable;
(ii)
any
action
taken
or
omitted
in
the
absence
of
gross
negligence
orwillful
misconduct;
or
(iii)
the
due
execution,
effectiveness,
validity
or
enforceability
of
any
document
or
instrument
related
to
any
Letter
ofCredit
or
Issuer
Document.
The
Borrower
hereby
assumes
allrisks
of
the
acts
or
omissions
of
any
beneficiary
or
transferee
with
respect
to
its
use
of
any
Letter
of
Credit;
provided
,
however
,
that
thisassumption
is
not
intended
to,
and
shall
not,
preclude
the
Borrower's
pursuing
such
rights
and
remedies
as
it
may
have
against
the
beneficiaryor
transferee
at
law
or
under
any
other
agreement.
None
of
the
L/C
Issuers,
the
Administrative
Agent,
any
of
their
respective
Related
Partiesnor
any
correspondent,
participant
or
assignee
of
an
L/C
Issuer
shall
be
liable
or
responsible
for
any
of
the
matters
described
in
clauses
(i)through
(v)
of
Section
2.03(e)
;
provided
,
however
,
that
anything
in
such
clauses
to
the
contrary
notwithstanding,
the
Borrower
may
have
aclaim
against
an
L/C
Issuer,
and
such
L/C
Issuer
may
be
liable
to
the
Borrower,
to
the
extent,
but
only
to
the
extent,
of
any
direct,
as
opposed
toconsequential
or
exemplary,
damages
suffered
by
the
Borrower
which
the
Borrower
proves
were
caused
by
such
L/C
Issuer's
willfulmisconduct
or
gross
negligence
or
such
L/C
Issuer's
willful
failure
to
pay
under
any
Letter
of
Credit
after
the
presentation
to
it
by
thebeneficiary
of
a
sight
draft
and
certificate(s)
strictly
complying
with
the
terms
and
conditions
of
a
Letter
of
Credit.
In
furtherance
and
not
inlimitation
of
the
foregoing,
an
L/C
Issuer
may
accept
documents
that
appear
on
their
face
to
be
in
order,
without
responsibility
for
furtherinvestigation,
regardless
of
any
notice
or
information
to
the
contrary,
and
such
L/C
Issuer
shall
not
be
responsible
for
the
validity
or
sufficiencyof
any
instrument
transferring
or
assigning
or
purporting
to
transfer
or
assign
a
Letter
of
Credit
or
the
rights
or
benefits
thereunder
or
proceedsthereof,
in
whole
or
in
part,
which
may
prove
to
be
invalid
or
ineffective
for
any
reason.(g)
Applicability
of
ISP;
Limitation
of
Liability
.
Unless
otherwise
expressly
agreed
by
the
applicable
L/C
Issuer
and
the
Borrowerwhen
a
Letter
of
Credit
is
issued
(including
any
such
agreement
applicable
to
an
Existing
Letter
of
Credit),
the
rules
of
the
ISP
shall
apply
toeach
Letter
of
Credit.
Notwithstanding
the
foregoing,
no
L/C
Issuer
shall
be
responsible
to
the
Borrower
for,
and
each
L/C
Issuer's
rights
andremedies
against
the
Borrower
shall
not
be
impaired
by,
any
action
or
inaction
of
such
L/C
Issuer
required
or
permitted
under
any
law,
order,
or practice
that
is
required
or
permitted
to
be
applied
to
any
Letter
of
Credit
or
this
Agreement,
including
the
Law
or
any
order
of
a
jurisdictionwhere
such
L/C
Issuer
or
the
beneficiary
is
located,
the
practice
stated
in
the
ISP,
or
in
the
decisions,
opinions,
practice
statements,
or
officialcommentary
of
the
ICC
Banking
Commission,
the
Bankers
Association
for
Finance
and
Trade
-
International
Financial
Services
Association(BAFT-IFSA),
or
the
Institute
of
International
Banking
Law
&
Practice,
whether
or
not
any
Letter
of
Credit
chooses
such
law
or
practice.(h)
Letter
of
Credit
Fees
.
The
Borrower
shall
pay
to
the
Administrative
Agent
for
the
account
of
each
Lender
in
accordance
with
itsPro
Rata
Share,
in
Dollars,
a
Letter
of
Credit
fee
(the
"
Letter
of
Credit
Fee
")
for
each
Letter
of
Credit
equal
to
the
Applicable
Rate
times
theDollar
Equivalent
of
the
daily
amount
available
to
be
drawn
under
such
Letter
of
Credit.
For
purposes
of
computing
the
daily
amount
availableto
be
drawn
under
any
Letter
of
Credit,
the
amount
of
such
Letter
of
Credit
shall
be
determined
in
accordance
with
Section
1.09
.
Letter
ofCredit
Fees
shall
be
(i)
computed
on
a
quarterly
basis
in
arrears
and
(ii)
due
and
payable
on
the
last
Business
Day
of
each
February,
May,August
and
November,
commencing
with
the
first
such
date
to
occur
after
the
issuance
of
such
Letter
of
Credit,
on
the
Letter
of
CreditExpiration
Date
and
thereafter
on
demand.
If
there
is
any
change
in
the
Applicable
Rate
during
any
quarter,
the
daily
amount
available
to
bedrawn
under
each
Letter
of
Credit
shall
be
computed
and
multiplied
by
the
Applicable
Rate
separately
for
each
period
during
such
quarter
thatsuch
Applicable
Rate
was
in
effect.
Notwithstanding
anything
to
the
contrary
contained
herein,
upon
the
request
of
the
Required
Lenders,
whileany
Event
of
Default
exists,
all
Letter
of
Credit
Fees
shall
accrue
at
the
Default
Rate.(i)
Fronting
Fee
and
Documentary
and
Processing
Charges
Payable
to
L/C
Issuer
.
The
Borrower
shall
pay
directly
to
the
applicableL/C
Issuer
for
its
own
account,
in
Dollars,
a
fronting
fee
with
respect
to
each
Letter
of
Credit,
at
the
rate
per
annum
as
agreed
to
between
theBorrower
and
such
L/C
Issuer,
computed
on
the
Dollar
Equivalent
of
the
daily
amount
available
to
be
drawn
under
such
Letter
of
Credit
on
aquarterly
basis
in
arrears.
Such
fronting
fee
shall
be
due
and
payable
on
the
tenth
Business
Day
after
the
end
of
each
February,
May,
Augustand
November
in
respect
of
the
most
recently-ended
quarterly
period
(or
portion
thereof,
in
the
case
of
the
first
payment),
commencing
with
thefirst
such
date
to
occur
after
the
issuance
of
such
Letter
of
Credit,
on
the
Letter
of
Credit
Expiration
Date
and
thereafter
on
demand.
Forpurposes
of
computing
the
daily
amount
available
to
be
drawn
under
any
Letter
of
Credit,
the
amount
of
such
Letter
of
Credit
shall
bedetermined
in
accordance
with
Section
1.08
.
In
addition,
the
Borrower
shall
pay
directly
to
the
applicable
L/C
Issuer
for
its
own
account,
inDollars,
the
customary
issuance,
presentation,
amendment
and
other
processing
fees,
and
other
standard
costs
and
charges,
of
such
L/C
Issuerrelating
to
letters
of
credit
as
from
time
to
time
in
effect.
Such
customary
fees
and
standard
costs
and
charges
are
due
and
payable
on
demandand
are
nonrefundable.(j)
Conflict
with
Issuer
Documents
.
In
the
event
of
any
conflict
between
the
terms
hereof
and
the
terms
of
any
Issuer
Document,
theterms
hereof
shall
control.(k)
Reporting
of
Letter
of
Credit
Information
.
On
(i)
the
last
Business
Day
of
each
calendar
month,
and
(ii)
each
date
that
an
L/CCredit
Extension
occurs
with
respect
to
any
Letter
of
Credit,
each
L/C
Issuer
shall
deliver
to
the
Administrative
Agent
a
report
in
the
form
ofExhibit
G
hereto,
appropriately
completed
with
the
information
for
every
Letter
of
Credit
issued
by
such
L/C
Issuer
that
is
outstandinghereunder.2.4Swing Line Loans .(a)
The
Swing
Line
.
Subject
to
the
terms
and
conditions
set
forth
herein,
the
Swing
Line
Lender
agrees,
in
reliance
upon
theagreements
of
the
other
Lenders
set
forth
in
this
Section
2.04
,
to
make
loans
in
Dollars
(each
such
loan,
a
"
Swing
Line
Loan
")
to
theBorrower
from
time
to
time
on
any
Business
Day
during
the
Availability
Period
in
an
aggregate
amount
not
to
exceed
at
any
time
outstandingthe
amount
of
the
Swing
Line
Sublimit,
notwithstanding
the
fact
that
such
Swing
Line
Loans,
when
aggregated
with
the
Pro
Rata
Share
of
theOutstanding
Amount
of
Committed
Loans
and
L/C
Obligations
of
the
Lender
acting
as
Swing
Line
Lender,
may
exceed
the
amount
of
suchLender's
Commitment;
provided
,
however
,
that
after
giving
effect
to
any
Swing
Line
Loan,
(i)
the
Total
Outstandings
shall
not
exceed
theAggregate
Commitments,
and
(ii)
the
aggregate
Outstanding
Amount
of
the
Committed
Loans
of
any
Lender,
plus
such
Lender's
Pro
RataShare
of
the
Outstanding
Amount
of
all
L/C
Obligations,
plus
such
Lender's
Pro
Rata
Share
of
the
Outstanding
Amount
of
all
Swing
LineLoans
shall
not
exceed
such
Lender's
Commitment,
and
provided
,
further
,
that
the
Borrower
shall
not
use
the
proceeds
of
any
Swing
LineLoan
to
refinance
any
outstanding
Swing
Line
Loan.
Within
the
foregoing
limits,
and
subject
to
the
other
terms
and
conditions
hereof,
theBorrower
may
borrow
under
this
Section
2.04
,
prepay
under
Section
2.05
,
and
reborrow
under
this
Section
2.04
.
Each
Swing
Line
Loan
shallbe
a
Base
Rate
Loan
or
shall
bear
interest
at
such
other
rate
mutually
agreeable
to
theSwing
Line
Lender
and
the
Borrower.
Immediately
upon
the
making
of
a
Swing
Line
Loan,
each
Lender
shall
be
deemed
to,
and
herebyirrevocably
and
unconditionally
agrees
to,
purchase
from
the
Swing
Line
Lender
a
risk
participation
in
such
Swing
Line
Loan
in
an
amountequal
to
the
product
of
such
Lender's
Pro
Rata
Share
times
the
amount
of
such
Swing
Line
Loan.(b)
Borrowing
Procedures
.
Each
Swing
Line
Borrowing
shall
be
made
upon
the
Borrower's
irrevocable
notice
to
the
Swing
LineLender
and
the
Administrative
Agent,
which
may
be
given
by
(A)
telephone
or
(B)
by
a
Swing
line
Loan
Notice;
provided
that
any
telephonic notice
must
be
confirmed
promptly
by
delivery
to
the
Swing
line
Lender
and
the
Administrative
Agent
of
a
Swing
Line
Loan
Notice.
Each
suchnotice
must
be
received
by
the
Swing
Line
Lender
and
the
Administrative
Agent
not
later
than
1:00
p.m.
on
the
requested
borrowing
date,
andshall
specify
(i)
the
amount
to
be
borrowed,
which
shall
be
a
minimum
of
$250,000,
and
(ii)
the
requested
borrowing
date,
which
shall
be
aBusiness
Day.
Promptly
after
receipt
by
the
Swing
Line
Lender
of
any
telephonic
Swing
Line
Loan
Notice
or
Swing
Line
Notice
given
by
e-mail,
the
Swing
Line
Lender
will
confirm
with
the
Administrative
Agent
(by
telephone
or
in
writing)
that
the
Administrative
Agent
has
alsoreceived
such
Swing
Line
Loan
Notice
and,
if
not,
the
Swing
Line
Lender
will
notify
the
Administrative
Agent
(by
telephone
or
in
writing)
ofthe
contents
thereof.
Unless
the
Swing
Line
Lender
has
received
notice
(by
telephone
or
in
writing)
from
the
Administrative
Agent
(includingat
the
request
of
any
Lender)
prior
to
2:00
p.m.
on
the
date
of
the
proposed
Swing
Line
Borrowing
(A)
directing
the
Swing
Line
Lender
not
tomake
such
Swing
Line
Loan
as
a
result
of
the
limitations
set
forth
in
the
first
proviso
to
the
first
sentence
of
Section
2.04(a)
,
or
(B)
that
one
ormore
of
the
applicable
conditions
specified
in
Article
V
is
not
then
satisfied,
then,
subject
to
the
terms
and
conditions
hereof,
the
Swing
LineLender
will,
not
later
than
3:00
p.m.
on
the
borrowing
date
specified
in
such
Swing
Line
Loan
Notice,
make
the
amount
of
its
Swing
Line
Loanavailable
to
the
Borrower
at
its
office
by
crediting
the
account
of
the
Borrower
on
the
books
of
the
Swing
Line
Lender
in
Same
Day
Funds.(c)Refinancing
of
Swing
Line
Loans
.(iii)
The
Swing
Line
Lender
at
any
time
in
its
sole
and
absolute
discretion
may
request,
on
behalf
of
the
Borrower
(whichhereby
irrevocably
authorizes
the
Swing
Line
Lender
to
so
request
on
its
behalf),
that
each
Lender
make
a
Base
Rate
Committed
Loanin
an
amount
equal
to
such
Lender's
Pro
Rata
Share
of
the
amount
of
Swing
Line
Loans
then
outstanding.
Such
request
shall
be
made
inwriting
(which
written
request
shall
be
deemed
to
be
a
Committed
Loan
Notice
for
purposes
hereof)
and
in
accordance
with
therequirements
of
Section
2.02
,
without
regard
to
the
minimum
and
multiples
specified
therein
for
the
principal
amount
of
Base
RateLoans,
but
subject
to
the
unutilized
portion
of
the
Aggregate
Commitments
and
the
conditions
set
forth
in
Section
5.02
.
The
SwingLine
Lender
shall
furnish
the
Borrower
with
a
copy
of
the
applicable
Committed
Loan
Notice
promptly
after
delivering
such
notice
tothe
Administrative
Agent.
Each
Lender
shall
make
an
amount
equal
to
its
Pro
Rata
Share
of
the
amount
specified
in
such
CommittedLoan
Notice
available
to
the
Administrative
Agent
in
Same
Day
Funds
(and
the
Administrative
Agent
may
apply
Cash
Collateralavailable
with
respect
to
the
applicable
Swing
Line
Loan)
for
the
account
of
the
Swing
Line
Lender
at
the
Administrative
Agent'sOffice
for
Dollar-denominated
payments
not
later
than
1:00
p.m.
on
the
day
specified
in
such
Committed
Loan
Notice,
whereupon,subject
to
Section
2.04(c)(ii)
,
each
Lender
that
so
makes
funds
available
shall
be
deemed
to
have
made
a
Base
Rate
Committed
Loan
tothe
Borrower
in
such
amount.
The
Administrative
Agent
shall
remit
the
funds
so
received
to
the
Swing
Line
Lender.(iv)
If
for
any
reason
any
Swing
Line
Loan
cannot
be
refinanced
by
such
a
Committed
Borrowing
in
accordance
withSection
2.04(c)(i)
,
the
request
for
Base
Rate
Committed
Loans
submitted
by
the
Swing
Line
Lender
as
set
forth
herein
shall
be
deemedto
be
a
request
by
the
Swing
Line
Lender
that
each
of
the
Lenders
fund
its
risk
participation
in
the
relevant
Swing
Line
Loan
and
eachLender's
payment
to
the
Administrative
Agent
for
the
account
of
the
Swing
Line
Lender
pursuant
to
Section
2.04(c)(i
)
shall
be
deemedpayment
in
respect
of
such
participation.(v)
If
any
Lender
fails
to
make
available
to
the
Administrative
Agent
for
the
account
of
the
Swing
Line
Lender
any
amountrequired
to
be
paid
by
such
Lender
pursuant
to
the
foregoing
provisions
of
this
Section
2.04(c
)
by
the
time
specified
in
Section
2.04(c)(i)
,
the
Swing
Line
Lender
shall
be
entitled
to
recover
from
such
Lender
(acting
through
the
Administrative
Agent),
on
demand,
suchamount
with
interest
thereon
for
the
period
from
the
date
such
payment
is
required
to
the
date
on
which
such
payment
is
immediatelyavailable
to
the
Swing
Line
Lender
at
a
rate
per
annum
equal
to
the
applicable
Overnight
Rate
from
time
to
time
in
effect,
plus
anyadministrative,
processing
or
similar
fees
customarily
charged
by
the
Swing
Line
Lender
in
connection
with
the
foregoing.
If
suchLender
pays
such
amount
(with
interest
and
fees
as
aforesaid),
the
amount
so
paid
shall
constitute
such
Lender's
Committed
Loanincluded
in
the
relevant
Committed
Borrowing
or
funded
participation
in
the
relevant
Swing
Line
Loan,
as
the
case
may
be.
Acertificate
of
the
Swing
Line
Lender
submitted
to
any
Lender
(through
the
Administrative
Agent)
with
respect
to
any
amounts
owingunder
this
clause
(iii)
shall
be
conclusive
absent
manifest
error.(vi)
Each
Lender's
obligation
to
make
Committed
Loans
or
to
purchase
and
fund
risk
participations
in
Swing
Line
Loanspursuant
to
this
Section
2.04(c
)
shall
be
absolute
and
unconditional
and
shall
not
be
affected
by
any
circumstance,
including
(A)
anysetoff,
counterclaim,
recoupment,
defense
or
other
right
which
such
Lender
may
have
against
the
Swing
Line
Lender,
the
Borrower
orany
other
Person
for
any
reason
whatsoever,
(B)
the
occurrence
or
continuance
of
a
Default,
or
(C)
any
other
occurrence,
event
orcondition,
whether
or
not
similar
to
any
of
the
foregoing;
provided,
however
,
that
each
Lender's
obligation
to
make
Committed
Loanspursuant
to
this
Section
2.04(c
)
is
subject
to
the
conditions
set
forth
in
Section
5.02
.
No
such
funding
of
risk
participations
shallrelieve
or
otherwise
impair
the
obligation
of
the
Borrower
to
repay
Swing
Line
Loans,
together
with
interest
as
provided
herein.(d)Repayment
of
Participations
. (x)
At
any
time
after
any
Lender
has
purchased
and
funded
a
risk
participation
in
a
Swing
Line
Loan,
if
the
Swing
LineLender
receives
any
payment
on
account
of
such
Swing
Line
Loan,
the
Swing
Line
Lender
will
distribute
to
such
Lender
its
Pro
RataShare
of
such
payment
(appropriately
adjusted,
in
the
case
of
interestpayments,
to
reflect
the
period
of
time
during
which
such
Lender's
risk
participation
was
funded)
in
the
same
funds
as
those
received
bythe
Swing
Line
Lender.(xi)
If
any
payment
received
by
the
Swing
Line
Lender
in
respect
of
principal
or
interest
on
any
Swing
Line
Loan
is
requiredto
be
returned
by
the
Swing
Line
Lender
under
any
of
the
circumstances
described
in
Section
11.05
(including
pursuant
to
anysettlement
entered
into
by
the
Swing
Line
Lender
in
its
discretion),
each
Lender
shall
pay
to
the
Swing
Line
Lender
its
Pro
Rata
Sharethereof
on
demand
of
the
Administrative
Agent,
plus
interest
thereon
from
the
date
of
such
demand
to
the
date
such
amount
is
returned,at
a
rate
per
annum
equal
to
the
applicable
Overnight
Rate.
The
Administrative
Agent
will
make
such
demand
upon
the
request
of
theSwing
Line
Lender.
The
obligations
of
the
Lenders
under
this
clause
shall
survive
the
payment
in
full
of
the
Obligations
and
thetermination
of
this
Agreement.(e)
Interest
for
Account
of
Swing
Line
Lender
.
The
Swing
Line
Lender
shall
be
responsible
for
invoicing
the
Borrower
for
intereston
the
Swing
Line
Loans.
Until
each
Lender
funds
its
Base
Rate
Committed
Loan
or
risk
participation
pursuant
to
this
Section
2.04
to
refinancesuch
Lender's
Pro
Rata
Share
of
any
Swing
Line
Loan,
interest
in
respect
of
such
Pro
Rata
Share
shall
be
solely
for
the
account
of
the
SwingLine
Lender.(f)
Payments
Directly
to
Swing
Line
Lender
.
The
Borrower
shall
make
all
payments
of
principal
and
interest
in
respect
of
the
SwingLine
Loans
directly
to
the
Swing
Line
Lender.2.5Prepayments .(a)
The
Borrower
may,
upon
notice
from
the
Borrower
to
the
Administrative
Agent,
at
any
time
or
from
time
to
time
voluntarilyprepay
Committed
Loans
in
whole
or
in
part
without
premium
or
penalty;
provided
that
(i)
such
notice
must
be
received
by
the
AdministrativeAgent
not
later
than
11:00
a.m.
(A)
three
Business
Days
prior
to
any
date
of
prepayment
of
Eurocurrency
Rate
Loans
denominated
in
Dollars,(B)
four
Business
Days
(or
five,
in
the
case
of
prepayment
of
Loans
denominated
in
Special
Notice
Currencies)
prior
to
any
date
of
prepaymentof
Eurocurrency
Rate
Loans
denominated
in
Alternative
Currencies,
and
(C)
on
the
date
of
prepayment
of
Base
Rate
Committed
Loans;
(ii)
anyprepayment
of
Eurocurrency
Rate
Loans
denominated
in
Dollars
shall
be
in
a
principal
amount
of
$5,000,000
or
a
whole
multiple
of$1,000,000
in
excess
thereof,
(iii)
any
prepayment
of
Eurocurrency
Rate
Loans
denominated
in
Alternative
Currencies
shall
be
in
a
minimumprincipal
amount
of
$5,000,000
or
a
whole
multiple
of
$1,000,000
in
excess
thereof,
and
(iv)
any
prepayment
of
Base
Rate
Committed
Loansshall
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
principalamount
thereof
then
outstanding;
provided
further
that
such
notice
may
state
that
such
notice
is
conditioned
upon
the
effectiveness
of
othercredit
facilities,
in
which
case
such
notice
may
be
revoked
by
the
Borrower
(by
notice
to
the
Administrative
Agent
on
or
prior
to
the
specifiedprepayment
date)
if
such
condition
is
not
satisfied.
Each
such
notice
shall
specify
the
date
and
amount
of
such
prepayment
and
the
Type(s)
ofCommitted
Loans
to
be
prepaid
and,
if
Eurocurrency
Loans
are
to
be
prepaid,
the
Interest
Period(s)
of
such
Loans.
The
Administrative
Agentwill
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.
Ifsuch
notice
is
given
by
theBorrower,
the
Borrower
shall
make
such
prepayment
and
the
payment
amount
specified
in
such
notice
shall
be
due
and
payable
on
the
datespecified
therein.
Any
prepayment
of
a
Eurocurrency
Rate
Loan
shall
be
accompanied
by
all
accrued
interest
on
the
amount
prepaid,
togetherwith
any
additional
amounts
required
pursuant
to
Section
3.05
.
Each
such
prepayment
shall
be
applied
to
the
Committed
Loans
of
the
Lendersin
accordance
with
their
respective
Pro
Rata
Shares.(b)
The
Borrower
may,
upon
notice
to
the
Swing
Line
Lender
(with
a
copy
to
the
Administrative
Agent),
at
any
time
or
from
time
totime,
voluntarily
prepay
Swing
Line
Loans
in
whole
or
in
part
without
premium
or
penalty;
provided
that
(i)
such
notice
must
be
received
bythe
Swing
Line
Lender
and
the
Administrative
Agent
not
later
than
1:00
p.m.
on
the
date
of
the
prepayment,
and
(ii)
any
such
prepayment
shallbe
in
a
minimum
principal
amount
of
$250,000;
provided
further
that
such
notice
may
state
that
such
notice
is
conditioned
upon
theeffectiveness
of
other
credit
facilities,
in
which
case
such
notice
may
be
revoked
by
the
Borrower
(by
notice
to
the
Administrative
Agent
on
orprior
to
the
specified
prepayment
date)
if
such
condition
is
not
satisfied.
Each
such
notice
shall
specify
the
date
and
amount
of
suchprepayment.
If
such
notice
is
given
by
the
Borrower,
the
Borrower
shall
make
such
prepayment
and
the
payment
amount
specified
in
suchnotice
shall
be
due
and
payable
on
the
date
specified
therein.(c)
If
the
Administrative
Agent
notifies
the
Borrower
at
any
time
that
the
Total
Outstandings
at
such
time
exceed
an
amount
equal
to the
Aggregate
Commitments
then
in
effect,
then,
within
two
Business
Days
after
receipt
of
such
notice,
the
Borrower
shall
prepay
Loans
and/orthe
Borrower
shall
Cash
Collateralize
the
L/C
Obligations
in
an
aggregate
amount
sufficient
to
reduce
such
Outstanding
Amount
as
of
suchdate
of
payment
to
an
amount
not
to
exceed
the
Aggregate
Commitments
then
in
effect;
provided
,
however
,
that,
subject
to
the
provisions
ofSection
2.15
,
the
Borrower
shall
not
be
required
to
Cash
Collateralize
the
L/C
Obligations
pursuant
to
this
Section
2.05(c
)
unless
after
theprepayment
in
full
of
the
Loans
the
Total
Outstandings
exceed
the
Aggregate
Commitments
then
in
effect.
The
Administrative
Agent
may,
atany
time
and
from
time
to
time
after
the
initial
deposit
of
such
Cash
Collateral,
request
that
additional
Cash
Collateral
be
provided
in
order
toprotect
against
the
results
of
further
exchange
rate
fluctuations.2.6
Termination or Reduction of Commitments . The
Borrower
may,
upon
notice
to
the
Administrative
Agent,
terminate
the
AggregateCommitments,
or
from
time
to
time
permanently
reduce
the
Aggregate
Commitments;
provided
that
(i)
any
such
notice
shall
be
received
by
theAdministrative
Agent
not
later
than
11:00
a.m.
five
Business
Days
prior
to
the
date
of
termination
or
reduction,
(ii)
any
such
partial
reduction
shall
bein
an
aggregate
amount
of
$10,000,000
or
any
whole
multiple
of$1,000,000
in
excess
thereof,
(iii)
the
Borrower
shall
not
terminate
or
reduce
the
Aggregate
Commitments
if,
after
giving
effect
thereto
and
to
anyconcurrent
prepayments
hereunder,
the
Total
Outstandings
would
exceed
the
Aggregate
Commitments,
and
(iv)
the
amount
of
any
such
AggregateCommitment
reduction
shall
not
be
applied
to
the
Letter
of
Credit
Sublimit
or
the
Swing
Line
Sublimit
unless
(a)
otherwise
specified
by
the
Borroweror
(b)
if,
after
giving
effect
to
any
reduction
of
the
Aggregate
Commitments,
the
Letter
of
Credit
Sublimit
or
the
Swing
Line
Sublimit
exceeds
theamount
of
the
Aggregate
Commitments,
such
Sublimit
shall
be
automatically
reduced
by
the
amount
of
such
excess;
provided
further
that
such
noticemay
state
that
such
notice
is
conditioned
upon
the
effectiveness
of
other
credit
facilities,
in
which
case
such
notice
may
be
revoked
by
the
Borrower
(bynotice
to
the
Administrative
Agent
on
or
prior
to
the
specified
prepayment
date)
if
such
condition
is
not
satisfied.
The
AdministrativeAgent
will
promptly
notify
the
Lenders
of
any
such
notice
of
termination
or
reduction
of
the
Aggregate
Commitments.
Any
reduction
of
the
AggregateCommitments
shall
be
applied
to
the
Commitment
of
each
Lender
according
to
its
Pro
Rata
Share.
All
fees
accrued
until
the
effective
date
of
anytermination
of
the
Aggregate
Commitments
shall
be
paid
on
the
effective
date
of
such
termination.2.7Repayment of Loans .(a)
The
Borrower
shall
repay
to
the
Lenders
on
the
Maturity
Date
the
aggregate
principal
amount
of
Committed
Loans
made
to
theBorrower
outstanding
on
such
date
together
with
all
other
amounts
owing
under
this
Agreement.(b)
The
Borrower
shall
repay
each
Swing
Line
Loan
on
the
earlier
to
occur
of
(i)
the
date
ten
Business
Days
after
such
Loan
is
madeand
(ii)
the
Maturity
Date.2.8Interest .(a)
Subject
to
the
provisions
of
subsection
(b)
below,
(i)
each
Eurocurrency
Rate
Loan
shall
bear
interest
on
the
outstanding
principalamount
thereof
for
each
Interest
Period
at
a
rate
per
annum
equal
to
the
Eurocurrency
Rate
for
such
Interest
Period
plus
the
Applicable
Rate;(ii)
each
Base
Rate
Committed
Loan
shall
bear
interest
on
the
outstanding
principal
amount
thereof
from
the
applicable
borrowing
date
at
arate
per
annum
equal
to
the
Base
Rate
plus
the
Applicable
Rate;
and
(iii)
each
Swing
Line
Loan
shall
bear
interest
on
the
outstanding
principalamount
thereof
from
the
applicable
borrowing
date
at
a
rate
per
annum
equal
to
(A)
the
Base
Rate
plus
the
Applicable
Rate
or
(B)
such
otherrate
mutually
agreeable
to
the
Swing
Line
Lender
and
the
Borrower.(b)
(i)
If
any
amount
of
principal
of
any
Loan
is
not
paid
when
due,
whether
at
stated
maturity,
by
acceleration
or
otherwise,
suchamount
shall
thereafter
bear
interest
at
a
fluctuating
interest
rate
per
annum
at
all
times
equal
to
the
Default
Rate
to
the
fullest
extentpermitted
by
applicable
Laws.(ii)
If
any
amount
(other
than
principal
of
any
Loan)
payable
by
the
Borrower
under
any
Loan
Document
is
not
paidwhen
due,
whether
at
stated
maturity,
by
acceleration
or
otherwise,
then
upon
the
request
of
the
Required
Lenders,
such
amount
shallthereafter
bear
interest
at
a
fluctuating
interest
rate
per
annum
at
all
times
equal
to
the
Default
Rate
to
the
fullest
extent
permitted
byapplicable
Laws.(iii)
Upon
the
request
of
the
Required
Lenders,
while
any
Event
of
Default
exists,
the
Borrower
shall
pay
interest
on
theprincipal
amount
of
all
outstanding
past
due
Obligations
hereunder
at
a
fluctuating
interest
rate
per
annum
at
all
times
equal
to
theDefault
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 (iv)
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
timesas
may
be
specified
herein.
Interest
hereunder
shall
be
due
and
payable
in
accordance
with
the
terms
hereof
before
and
after
judgment,
andbefore
and
after
the
commencement
of
any
proceeding
under
any
Debtor
Relief
Law.2.9Fees . In
addition
to
certain
fees
described
in
subsections
(h)
and
(i)
of
Section
2.03
:(a)
Facility
Fee
.
The
Borrower
shall
pay
to
the
Administrative
Agent
for
the
account
of
each
Lender
in
accordance
with
its
Pro
RataShare,
a
facility
fee
in
Dollars
equal
to
the
Applicable
Rate
times
the
actual
daily
amount
of
the
Aggregate
Commitments
(or,
if
the
AggregateCommitments
have
terminated,
on
the
Outstanding
Amount
of
all
Committed
Loans,
Swing
Line
Loans
and
L/C
Obligations),
regardless
ofusage
(the
"
Facility
Fee
").
The
Facility
Fee
shall
accrue
at
all
times
during
the
Availability
Period
(and
thereafter
so
long
as
any
CommittedLoans,
Swing
Line
Loans
or
L/C
Obligations
remain
outstanding),
including
at
any
time
during
which
one
or
more
of
the
conditions
in
ArticleV
is
not
met,
and
shall
be
due
and
payable
quarterly
in
arrears
on
the
last
Business
Day
of
each
February,
May,
August
and
November,commencing
with
the
first
such
date
to
occur
after
the
Closing
Date,
and
on
the
Maturity
Date
(and,
if
applicable,
thereafter
on
demand).
TheFacility
Fee
shall
be
calculated
quarterly
in
arrears,
and
if
there
is
any
change
in
the
Applicable
Rate
during
any
quarter,
the
actual
dailyamount
shall
be
computed
and
multiplied
by
the
Applicable
Rate
separately
for
each
period
during
such
quarter
that
such
Applicable
Rate
wasin
effect.(b)Other
Fees
.(i)
The
Borrower
shall
pay
to
the
Arranger
and
the
Administrative
Agent
for
their
own
respective
accounts,
in
Dollars,
feesin
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
anyreason
whatsoever.(ii)
The
Borrower
shall
pay
to
the
Lenders,
in
Dollars,
such
fees
as
shall
have
been
separately
agreed
upon
in
writing
in
theamounts
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
byreferences
to
the
Eurocurrency
Rate)
and
Eurocurrency
Rate
Loans
denominated
in
Sterling
shall
be
made
on
the
basis
of
a
year
of
365
or
366
days,
asthe
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
dayselapsed
(which
results
in
more
fees
or
interest,
as
applicable,
being
paid
than
if
computed
on
the
basis
of
a
365-day
year),
or,
in
the
case
of
interest
inrespect
of
Committed
Loans
denominated
in
Alternative
Currencies
as
to
which
market
practice
differs
from
the
foregoing,
in
accordance
with
suchmarket
practice.
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,
forthe
day
on
which
the
Loan
or
such
portion
is
paid,
provided
that
any
Loan
that
is
repaid
on
the
same
day
on
which
it
is
made
shall,
subject
toSection
2.12(a)
,
bear
interest
for
one
day.
Each
determination
by
the
Administrative
Agent
of
an
interest
rate
or
fee
hereunder
shall
be
conclusive
andbinding
for
all
purposes,
absent
manifest
error.2.11Evidence of Debt .(a)
The
Credit
Extensions
made
by
each
Lender
shall
be
evidenced
by
one
or
more
accounts
or
records
maintained
by
such
Lenderand
by
the
Administrative
Agent
in
the
ordinary
course
of
business.
The
accounts
or
records
maintained
by
the
Administrative
Agent
and
eachLender
shall
be
conclusive
absent
manifest
error
of
the
amount
of
the
Credit
Extensions
made
by
the
Lenders
to
the
Borrower
and
the
interestand
payments
thereon.
Any
failure
to
so
record
or
any
error
in
doing
so
shall
not,
however,
limit
or
otherwise
affect
the
obligation
of
theBorrower
hereunder
to
pay
any
amount
owing
with
respect
to
the
Obligations.
In
the
event
of
any
conflict
between
the
accounts
and
recordsmaintained
by
any
Lender
and
the
accounts
and
records
of
the
Administrative
Agent
in
respect
of
such
matters,
the
accounts
and
records
of
theAdministrative
Agent
shall
control
in
the
absence
of
manifest
error.
Upon
the
request
of
any
Lender
to
a
Borrower
made
through
theAdministrative
Agent,
the
Borrower
shall
execute
and
deliver
to
such
Lender
(through
the
Administrative
Agent)
a
Note,
which
shall
evidencesuch
Lender's
Loans
to
the
Borrower
in
addition
to
such
accounts
or
records.
Each
Lender
may
attach
schedules
to
a
Note
and
endorse
thereonthe
date,
Type
(if
applicable),
amount,
currency
and
maturity
of
its
Loans
and
payments
with
respect
thereto.(b)
In
addition
to
the
accounts
and
records
referred
to
in
subsection
(a),
each
Lender
and
the
Administrative
Agent
shall
maintain
inaccordance
with
its
usual
practice
accounts
or
records
evidencing
the
purchases
and
sales
by
such
Lender
of
participations
in
Letters
of
Creditand
Swing
Line
Loans.
In
the
event
of
any
conflict
between
the
accounts
and
records
maintained
by
the
Administrative
Agent
and
the
accounts and
records
of
any
Lender
in
respect
of
such
matters,
the
accounts
and
records
of
the
Administrative
Agent
shall
control
in
the
absence
ofmanifest
error.2.12Payments 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
and
except
with
respect
to
principal
of
and
interest
on
Loans
denominatedin
an
Alternative
Currency,
all
payments
by
the
Borrower
hereunder
shall
be
made
to
the
Administrative
Agent,
for
the
account
of
therespective
Lenders
to
which
such
payment
is
owed,
at
the
applicable
Administrative
Agent's
Office
in
Dollars
and
in
Same
Day
Funds
not
laterthan
2:00
p.m.
on
the
date
specified
herein.
Except
as
otherwise
expressly
provided
herein,
all
payments
by
the
Borrower
hereunder
withrespect
to
principal
and
interest
on
Loans
denominated
in
an
Alternative
Currency
shall
be
made
to
the
Administrative
Agent,
for
the
account
ofthe
respective
Lenders
to
which
such
payment
is
owed,
at
the
applicable
Administrative
Agent's
Office
in
such
Alternative
Currency
and
inSame
Day
Funds
not
later
than
the
Applicable
Time
specified
by
the
Administrative
Agent
on
the
dates
specified
herein.
Without
limiting
thegenerality
of
the
foregoing,
the
Administrative
Agent
may
require
that
any
payments
due
under
this
Agreement
be
made
in
the
United
States.
If,for
any
reason,
the
Borrower
is
prohibited
by
any
Law
from
making
any
required
payment
hereunder
in
an
Alternative
Currency,
the
Borrowershall
make
such
payment
in
Dollars
in
the
Dollar
Equivalent
of
the
Alternative
Currency
payment
amount.
The
Administrative
Agent
willpromptly
distribute
to
each
Lender
its
Pro
Rata
Share
(or
other
applicable
share
as
provided
herein)
of
such
payment
in
like
funds
as
receivedby
wire
transfer
to
such
Lender's
Lending
Office.
All
payments
received
by
the
Administrative
Agent
(i)
after
2:00
p.m.,
in
the
case
ofpayments
in
Dollars,
or
(ii)
after
the
Applicable
Time
specified
by
the
Administrative
Agent
in
the
case
of
payments
in
an
AlternativeCurrency,
shall
in
each
case
be
deemed
received
on
the
next
succeeding
Business
Day
and
any
applicable
interest
or
fee
shall
continue
toaccrue.
If
any
payment
to
be
made
by
the
Borrower
shall
come
due
on
a
day
other
than
a
Business
Day,
payment
shall
be
made
on
the
nextfollowing
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
froma
Lender
prior
to
the
proposed
time
of
any
Committed
Borrowing
of
Eurocurrency
Rate
Loans
(or,
in
the
case
of
any
CommittedBorrowing
of
Base
Rate
Loans,
prior
to
12:00
noon
on
the
date
of
such
Committed
Borrowing)
that
such
Lender
will
not
makeavailable
to
the
Administrative
Agent
such
Lender's
share
of
such
Committed
Borrowing,
the
Administrative
Agent
may
assume
thatsuch
Lender
has
made
such
share
available
on
such
date
in
accordance
with
Section
2.02
(or,
in
the
case
of
a
Committed
Borrowing
ofBase
Rate
Loans,
that
such
Lender
has
made
such
share
available
in
accordance
with
and
at
the
time
required
by
Section
2.02
)
andmay,
in
reliance
upon
such
assumption,
make
available
to
the
Borrower
a
corresponding
amount.
In
such
event,
if
a
Lender
has
not
infact
made
its
share
of
the
applicable
Committed
Borrowing
available
to
the
Administrative
Agent,
then
the
applicable
Lender
and
theBorrower
severally
agree
to
pay
to
the
Administrative
Agent
forthwith
on
demand
such
corresponding
amount
in
Same
Day
Funds
withinterest
thereon,
for
each
day
from
and
including
the
date
such
amount
is
made
available
to
the
Borrower
to
but
excluding
the
date
ofpayment
to
the
Administrative
Agent,
at
(A)
in
the
case
of
a
payment
to
be
made
by
such
Lender,
the
Overnight
Rate,
plus
anyadministrative,
processing
or
similar
fees
customarily
charged
by
the
Administrative
Agent
in
connection
with
the
foregoing,
and
(B)
inthe
case
of
a
payment
to
be
made
by
the
Borrower,
the
interest
rate
applicable
to
Base
Rate
Loans.
If
the
Borrower
and
such
Lendershall
pay
such
interest
to
the
Administrative
Agent
for
the
same
or
an
overlapping
period,
the
Administrative
Agent
shall
promptlyremit
to
the
Borrower
the
amount
of
such
interest
paid
by
the
Borrower
for
such
period.
If
such
Lender
pays
its
share
of
the
applicableCommitted
Borrowing
to
the
Administrative
Agent,
then
the
amount
so
paid
shall
constitute
such
Lender's
Committed
Loan
included
insuch
Committed
Borrowing.
Any
payment
by
the
Borrower
shall
be
without
prejudice
to
any
claim
the
Borrower
may
have
against
aLender
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
receivednotice
from
a
Borrower
prior
to
the
date
on
which
any
payment
is
due
to
the
Administrative
Agent
for
the
account
of
the
Lenders
or
anL/C
Issuer
hereunder
that
the
Borrower
will
not
make
such
payment,
the
Administrative
Agent
may
assume
that
the
Borrower
has
madesuch
payment
on
such
date
in
accordance
herewith
and
may,
in
reliance
upon
such
assumption,
distribute
to
the
Lenders
or
such
L/CIssuer,
as
the
case
may
be,
the
amount
due.
In
such
event,
if
the
Borrower
has
not
in
fact
made
such
payment,
then
each
of
the
Lendersor
an
L/C
Issuer,
as
the
case
may
be,
severally
agrees
to
repay
to
the
Administrative
Agent
forthwith
on
demand
the
amount
sodistributed
to
such
Lender
or
such
L/C
Issuer,
in
Same
Day
Fundswith
interest
thereon,
for
each
day
from
and
including
the
date
such
amount
is
distributed
to
it
to
but
excluding
the
date
of
payment
tothe
Administrative
Agent,
at
the
Overnight
Rate.A
notice
of
the
Administrative
Agent
to
any
Lender
or
Borrower
with
respect
to
any
amount
owing
under
this
subsection
(b)
shall
beconclusive,
absent
manifest
error. (c)
Failure
to
Satisfy
Conditions
Precedent
.
If
any
Lender
makes
available
to
the
Administrative
Agent
funds
for
any
Loan
to
bemade
by
such
Lender
to
the
Borrower
as
provided
in
the
foregoing
provisions
of
this
Article
II
,
and
such
funds
are
not
made
available
to
theBorrower
by
the
Administrative
Agent
because
the
conditions
to
the
applicable
Credit
Extension
set
forth
in
Article
V
are
not
satisfied
orwaived
in
accordance
with
the
terms
hereof,
the
Administrative
Agent
shall
return
such
funds
(in
like
funds
as
received
from
such
Lender)
tosuch
Lender,
without
interest.(d)
Obligations
of
Lenders
Several
.
The
obligations
of
the
Lenders
hereunder
to
make
Committed
Loans,
to
fund
participations
inLetters
of
Credit
and
Swing
Line
Loans
and
to
make
payments
pursuant
to
Section
11.04(c)
are
several
and
not
joint.
The
failure
of
any
Lenderto
make
any
Committed
Loan,
to
fund
any
such
participation
or
to
make
any
payment
under
Section
11.04(c)
on
any
date
required
hereundershall
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
anyother
Lender
to
so
make
its
Committed
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
placeor
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
ormanner.2.13
Sharing of Payments by Lenders . If
any
Lender
shall,
by
exercising
any
right
of
setoff
or
counterclaim
or
otherwise,
obtain
paymentin
respect
of
any
principal
of
or
interest
on
any
of
the
Committed
Loans
made
by
it,
or
the
participations
in
L/C
Obligations
or
in
Swing
Line
Loansheld
by
it
resulting
in
such
Lender's
receiving
payment
of
a
proportion
of
the
aggregate
amount
of
such
Committed
Loans
or
participations
and
accruedinterest
thereon
greater
than
its
pro
rata
share
thereof
as
provided
herein,
then
the
Lender
receiving
such
greater
proportion
shall
(a)
notify
theAdministrative
Agent
of
such
fact,
and
(b)
purchase
(for
cash
at
face
value)
participations
in
the
Committed
Loans
and
subparticipations
in
L/CObligations
and
Swing
Line
Loans
of
the
other
Lenders,
or
make
such
other
adjustments
as
shall
be
equitable,
so
that
the
benefit
of
all
such
paymentsshall
be
shared
by
the
Lenders
ratably
in
accordance
with
the
aggregate
amount
of
principal
of
and
accrued
interest
on
their
respective
CommittedLoans
and
other
amounts
owing
them,
provided
that:(i)
if
any
such
participations
or
subparticipations
are
purchased
and
all
or
any
portion
of
the
payment
giving
rise
thereto
isrecovered,
such
participations
or
subparticipations
shall
be
rescinded
and
the
purchase
price
restored
to
the
extent
of
such
recovery,
withoutinterest;
and(ii)
the
provisions
of
this
Section
shall
not
be
construed
to
apply
to
(x)
any
payment
made
by
a
Borrower
pursuant
to
and
inaccordance
with
the
express
terms
of
this
Agreement
(including
the
application
of
funds
arising
from
the
existence
of
a
Defaulting
Lender),
(y)the
application
of
Cash
Collateral
provided
for
in
Section
2.15
,
or
(z)
any
payment
obtained
by
a
Lender
as
consideration
for
the
assignment
ofor
sale
of
a
participation
in
any
of
its
Committed
Loans
or
subparticipations
in
L/C
Obligations
or
Swing
Line
Loans
to
any
assignee
orparticipant,
other
than
to
the
Borrower
or
any
Subsidiary
thereof
(as
to
which
the
provisions
of
this
Section
shall
apply).2.14Increase in Commitments .(a)
Request
for
Increase
.
Provided
there
exists
no
Default,
upon
notice
to
the
Administrative
Agent
(which
shall
promptly
notify
theLenders),
the
Borrower
may
from
time
to
time,
request
an
increase
in
the
Aggregate
Commitments
by
an
amount
(for
all
such
requests)
notexceeding
$250,000,000;
provided
that
(i)
any
such
request
for
an
increase
shall
be
in
a
minimum
amount
of
$25,000,000,
(ii)
the
Borrowermay
make
a
maximum
of
five
such
requests
and
(iii)
in
no
event
shall
the
Aggregate
Commitments
exceed
$750,000,000
at
any
one
time.
Atthe
time
of
sending
such
notice,
the
Borrower
(in
consultation
with
the
Administrative
Agent)
shall
specify
the
time
period
within
which
eachLender
is
requested
to
respond
(which
shall
in
no
event
be
less
than
ten
Business
Days
from
the
date
of
delivery
of
such
notice
to
the
Lenders).(b)
Lender
Elections
to
Increase
.
Each
Lender
shall
notify
the
Administrative
Agent
within
such
time
period
whether
or
not
it
agreesto
increase
its
Commitment
and,
if
so,
whether
by
an
amount
equal
to,
greater
than,
or
less
than
its
Pro
Rata
Share
of
such
requested
increase.Any
Lender
not
responding
within
such
time
period
shall
be
deemed
to
have
declined
to
increase
its
Commitment.
No
Lender
shall
have
anyobligation
to
increase
its
Commitment.(c)
Notification
by
Administrative
Agent:
Additional
Lenders
.
The
Administrative
Agent
shall
notify
the
Borrower
and
each
Lenderof
the
Lenders'
responses
to
each
request
made
hereunder.
To
achieve
the
full
amount
of
a
requested
increase
and
subject
to
the
approval
of
theAdministrative
Agent
and
the
L/C
Issuers
(which
approvals
shall
not
be
unreasonably
withheld),
the
Borrower
may
also
invite
additionalEligible
Assignees
to
become
Lenders
pursuant
to
a
joinder
agreement
in
form
and
substance
satisfactory
to
the
Administrative
Agent
and
itscounsel.(d)
Effective
Date
and
Allocations
.
If
the
Aggregate
Commitments
are
increased
in
accordance
with
this
Section,
the
Administrative Agent
and
the
Borrower
shall
determine
the
effective
date
(the
"
Increase
Effective
Date
")
and
the
final
allocation
of
such
increase.
TheAdministrative
Agent
shall
promptly
notify
the
Borrower
and
the
Lenders
of
the
final
allocation
of
such
increase
and
the
Increase
EffectiveDate.(e)
Conditions
to
Effectiveness
of
Increase
.
As
a
condition
precedent
to
such
increase,
the
Borrower
shall
deliver
to
theAdministrative
Agent
a
certificate
of
each
Loan
Party
dated
as
of
the
Increase
Effective
Date
(in
sufficient
copies
for
each
Lender)
signed
by
aResponsible
Officer
of
such
Loan
Party
(i)
certifying
and
attaching
the
resolutions
adopted
by
such
Loan
Party
approving
or
consenting
to
suchincrease,
and
(ii)
in
the
case
of
the
Borrower,
certifying
that,
before
and
after
giving
effect
to
such
increase,
(A)
the
representations
andwarranties
contained
in
Article
V
and
the
other
Loan
Documents
are
true
and
correct
in
all
material
respects
(unless
such
representation
orwarranty
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
theIncrease
Effective
Date,
except
to
the
extent
that
such
representations
and
warranties
specifically
refer
to
an
earlier
date,
in
which
case
they
aretrue
and
correct
in
all
material
respects
(unless
such
representation
or
warranty
is
already
qualified
by
materiality
or
Material
Adverse
Effect,
inwhich
case
it
shall
be
true
and
correct
in
all
respects)
as
of
such
earlier
date,
and
except
that
for
purposes
of
this
Section
2.14
,
therepresentations
and
warranties
contained
in
subsections
(a)
and
(b)
of
Section
6.05
shall
be
deemed
to
refer
to
the
most
recent
statementsfurnished
pursuant
to
clauses
(a)
and
(b),
respectively,
of
Section
7.01
,
and
(B)
no
Default
exists.
The
Borrower
shall
prepay
any
CommittedLoans
outstanding
on
the
Increase
Effective
Date
(and
pay
any
additional
amounts
required
pursuant
to
Section
3.05
)
to
the
extent
necessary
tokeep
the
outstanding
Committed
Loans
ratable
with
any
revised
Pro
Rata
Shares
arising
from
any
nonratable
increase
in
the
Commitmentsunder
this
Section
or
any
addition
of
a
new
Lender.(f)
Conflicting
Provisions
.
This
Section
shall
supersede
any
provisions
in
Sections
2.13
or
11.01
to
the
contrary.2.15Cash Collateral .(a)
Certain
Credit
Support
Events
.
If
(i)
an
L/C
Issuer
has
honored
any
full
or
partial
drawing
request
under
any
Letter
of
Credit
andsuch
drawing
has
resulted
in
an
L/C
Borrowing,(ii)
as
of
the
Letter
of
Credit
Expiration
Date,
any
L/C
Obligation
for
any
reason
remains
outstanding,
(iii)
the
Borrower
shall
be
required
toprovide
Cash
Collateral
pursuant
to
Section
9.02(c)
,
or
(iv)
there
shall
exist
a
Defaulting
Lender,
the
Borrower
shall
immediately
(in
the
caseof
clause
(iii)
above)
or
within
one
Business
Day
(in
all
other
cases)
following
any
request
by
the
Administrative
Agent
or
the
applicable
L/CIssuer,
provide
Cash
Collateral
in
an
amount
not
less
than
the
applicable
Minimum
Collateral
Amount
(determined
in
the
case
of
CashCollateral
provided
pursuant
to
clause
(iv)
above,
after
giving
effect
to
Section
2.16(a)(iv)
and
any
Cash
Collateral
provided
by
the
DefaultingLender).
Additionally,
if
the
Administrative
Agent
notifies
the
Borrower
at
any
time
that
the
Outstanding
Amount
of
all
L/C
Obligations
atsuch
time
exceeds
102%
of
the
Letter
of
Credit
Sublimit
then
in
effect,
then,
within
two
Business
Days
after
receipt
of
such
notice,
theBorrower
shall
provide
Cash
Collateral
for
the
Outstanding
Amount
of
the
L/C
Obligations
in
an
amount
not
less
than
the
amount
by
which
theOutstanding
Amount
of
all
L/C
Obligations
exceeds
the
Letter
of
Credit
Sublimit.(b)
Grant
of
Security
Interest
.
All
Cash
Collateral
(other
than
credit
support
not
constituting
funds
subject
to
deposit)
shall
bemaintained
in
blocked,
non-interest
bearing
deposit
accounts
at
the
Administrative
Agent.
The
Borrower,
and
to
the
extent
provided
by
anyLender,
such
Lender,
hereby
grants
to
(and
subjects
to
the
control
of)
the
Administrative
Agent,
for
the
benefit
of
the
Administrative
Agent,
theL/C
Issuers
and
the
Lenders
and
agrees
to
maintain,
a
first
priority
security
interest
in
all
such
cash,
deposit
accounts
and
all
balances
therein,and
all
other
property
so
provided
as
collateral
pursuant
hereto,
and
in
all
balances
therein,
and
all
other
property
so
provided
as
collateralpursuant
hereto,
and
in
all
proceeds
of
the
foregoing,
all
as
security
for
the
obligations
to
which
such
Cash
Collateral
may
be
applied
pursuantto
Section
2.15(c)
.
If
at
any
time
the
Administrative
Agent
determines
that
Cash
Collateral
is
subject
to
any
right
or
claim
of
any
Person
otherthan
the
Administrative
Agent
as
herein
provided,
or
that
the
total
amount
of
such
Cash
Collateral
is
less
than
the
Minimum
Collateral
Amount,the
Borrower
or
the
relevant
Defaulting
Lender
will,
promptly
upon
demand
by
the
Administrative
Agent,
payor
provide
to
the
Administrative
Agent
additional
Cash
Collateral
in
an
amount
sufficient
to
eliminate
such
deficiency.(c)
Application
.
Notwithstanding
anything
to
the
contrary
contained
in
this
Agreement,
Cash
Collateral
provided
under
any
of
thisSection
2.15
or
Sections
2.03
,
2.05
,
2.16
or
9.02
in
respect
of
Letters
of
Credit
shall
be
held
and
applied
in
satisfaction
of
the
specific
L/CObligations,
obligations
to
fund
participations
therein
(including,
as
to
Cash
Collateral
provided
by
a
Defaulting
Lender,
any
interest
accruedon
such
obligation)
and
other
obligations
for
which
the
Cash
Collateral
was
so
provided,
prior
to
any
other
application
of
such
property
as
maybe
provided
herein.(d)
Release
.
Cash
Collateral
(or
the
appropriate
portion
thereof)
provided
to
reduce
Fronting
Exposure
or
other
obligations
shall
be released
promptly
following
(i)
the
elimination
of
the
applicable
Fronting
Exposure
or
other
obligations
giving
rise
thereto
(including
by
thetermination
of
Defaulting
Lender
status
of
the
applicable
Lender),
(ii)
the
Administrative
Agent's
good
faith
determination
that
there
existsexcess
Cash
Collateral
or
(iii)
repayment
in
full
of
the
Obligations
(other
than
contingent
indemnification
obligations
for
which
no
claim
hasbeen
asserted),
together
with
termination
of
all
Commitments
hereunder;
provided
,
however
,
(x)
that
Cash
Collateral
furnished
by
or
on
behalfof
a
Loan
Party
shall
not
be
released
during
the
continuance
of
a
Default
or
Event
of
Default
(and
following
application
as
provided
in
thisSection
2.15
may
be
otherwise
applied
in
accordance
with
Section
9.03
)
and
(y)
the
Person
providing
Cash
Collateral
and
the
applicable
L/CIssuer,
may
agree
that
Cash
Collateral
shall
not
be
released
but
instead
held
to
support
future
anticipated
Fronting
Exposure
or
otherobligations.2.16Defaulting Lenders .(a)
Adjustments
.
Notwithstanding
anything
to
the
contrary
contained
in
this
Agreement,
if
any
Lender
becomes
a
DefaultingLender,
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
consentwith
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
AdministrativeAgent
for
the
account
of
that
Defaulting
Lender
(whether
voluntary
or
mandatory,
at
maturity,
pursuant
to
Article
IX
or
otherwise,
andincluding
any
amounts
made
available
to
the
Administrative
Agent
by
that
Defaulting
Lender
pursuant
to
Section
11.08
),
shall
beapplied
at
such
time
or
times
as
may
be
determined
by
the
Administrative
Agent
as
follows:
first
,
to
the
payment
of
any
amountsowing
by
that
Defaulting
Lender
to
the
Administrative
Agent
hereunder;
second
,
to
the
payment
on
a
pro
rata
basis
of
any
amountsowing
by
that
Defaulting
Lender
to
the
L/C
Issuers
or
Swing
Line
Lender
hereunder;
third
,
to
Cash
Collateralize
the
L/C
Issuer'sFronting
Exposure
with
respect
to
such
Defaulting
Lender
in
accordance
with
Section
2.15
;
fourth
,
as
the
Borrower
may
request
(solong
as
no
Default
or
Event
of
Default
exists),
to
the
funding
of
any
Loan
in
respect
of
which
that
Defaulting
Lender
has
failed
to
fundits
portion
thereof
as
required
by
this
Agreement,
as
determined
by
the
Administrative
Agent;
fifth
,
if
so
determined
by
theAdministrative
Agent
and
the
Borrower,
to
be
held
in
a
non-interest
bearing
deposit
account
and
released
pro
rata
in
order
to
(x)
satisfysuch
Defaulting
Lender's
potential
future
funding
obligations
with
respect
to
Loans
under
this
Agreement
and
(y)
Cash
Collateralize
theL/C
Issuer's
futureFronting
Exposure
with
respect
to
such
Defaulting
Lender
with
respect
to
future
Letters
of
Credit
issued
under
this
Agreement,
inaccordance
with
Section
2.15
;;
sixth
,
to
the
payment
of
any
amounts
owing
to
the
Lenders,
the
L/C
Issuers
or
Swing
Line
Lender
as
aresult
of
any
final
and
non-appealable
judgment
of
a
court
of
competent
jurisdiction
obtained
by
any
Lender,
any
L/C
Issuer
or
SwingLine
Lender
against
that
Defaulting
Lender
as
a
result
of
that
Defaulting
Lender's
breach
of
its
obligations
under
this
Agreement;seventh
,
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
finaland
non-appealable
judgment
of
a
court
of
competent
jurisdiction
obtained
by
the
Borrower
against
that
Defaulting
Lender
as
a
result
ofthat
Defaulting
Lender's
breach
of
its
obligations
under
this
Agreement;
and
eighth
,
to
that
Defaulting
Lender
or
as
otherwise
directedby
a
court
of
competent
jurisdiction;
provided
,
that,
if
(x)
such
payment
is
a
payment
of
the
principal
amount
of
any
Loans
or
L/CBorrowings
in
respect
of
which
that
Defaulting
Lender
has
not
fully
funded
its
appropriate
share
and
(y)
such
Loans
or
L/C
Borrowingswere
made
at
a
time
when
the
conditions
set
forth
in
Section
5.02
were
satisfied
or
waived,
such
payment
shall
be
applied
solely
to
paythe
Loans
of,
and
L/C
Borrowings
owed
to,
all
Non-Defaulting
Lenders
on
a
pro
rata
basis
prior
to
being
applied
to
the
payment
of
anyLoans
of,
or
L/C
Borrowings
owed
to,
that
Defaulting
Lender
until
such
time
as
all
Loans
and
funded
and
unfunded
participations
inL/C
Obligations
and
Swing
Line
Loans
are
held
by
the
Lenders
pro
rata
in
accordance
with
the
Commitments
hereunder
without
givingeffect
to
Section
2.16(a)(iv)
.
Any
payments,
prepayments
or
other
amounts
paid
or
payable
to
a
Defaulting
Lender
that
are
applied
(orheld)
to
pay
amounts
owed
by
a
Defaulting
Lender
or
to
post
Cash
Collateral
pursuant
to
this
Section
2.16(a)(ii)
shall
be
deemed
paidto
and
redirected
by
that
Defaulting
Lender,
and
each
Lender
irrevocably
consents
hereto.(iii)Certain
Fees
.(A)
The
Defaulting
Lender
(x)
shall
be
entitled
to
receive
any
Facility
Fee
pursuant
to
Section
2.09(a)
for
any
periodduring
which
that
Lender
is
a
Defaulting
Lender
only
to
extent
allocable
to
the
sum
of
(1)
the
outstanding
amount
of
theCommitted
Loans
funded
by
it
and
(2)
its
Pro
Rata
Share
of
the
stated
amount
of
Letters
of
Credit
for
which
it
has
providedCash
Collateral
pursuant
to
Section
2.15
.(B)
Each
Defaulting
Lender
shall
be
entitled
to
receive
Letter
of
Credit
Fees
for
any
period
during
which
that
Lender is
a
Defaulting
Lender
only
to
the
extent
allocable
to
its
Pro
Rata
Share
of
the
stated
amount
of
Letters
of
Credit
for
which
ithas
provided
Cash
Collateral
pursuant
to
Section
2.15
.(C)
With
respect
to
any
Facility
Fee
payable
under
Section
2.09(a)
or
any
Letter
of
Credit
Fee
not
required
to
be
paidto
any
Defaulting
Lender
pursuant
to
clause
(A)
or
(B)
above,
the
Borrower
shall
(x)
pay
to
each
Non-
Defaulting
Lender
thatportion
of
any
such
fee
otherwise
payable
to
such
Defaulting
Lender
with
respect
to
such
Defaulting
Lender's
participation
inL/C
Obligations
or
Swing
Line
Loans
that
has
been
reallocated
to
such
Non-
Defaulting
Lender
pursuant
to
clause
(iv)
below,(y)
pay
to
the
L/C
Issuer
and
Swing
Line
Lender,
as
applicable,
the
amount
of
any
such
fee
otherwise
payable
to
suchDefaulting
Lender
to
the
extent
allocable
to
such
L/C
Issuer's
or
Swing
Line
Lender's
Fronting
Exposure
to
such
DefaultingLender,
and
(z)
not
be
required
to
pay
the
remaining
amount
of
any
such
fee.(iv)
Reallocation
of
Pro
Rata
Shares
to
Reduce
Fronting
Exposure
.
So
long
as
the
conditions
precedent
set
forth
in
Section5.02
have
been
met
at
such
time,
all
or
any
part
of
such
Defaulting
Lender's
participation
in
L/C
Obligations
and
Swing
Line
Loansshall
be
reallocated
among
the
Non-Defaulting
Lenders
in
accordance
with
their
respective
Pro
Rata
Shares
(calculated
without
regardto
such
Defaulting
Lender's
Commitment)
but
only
to
the
extent
that
such
reallocation
does
not
cause
the
aggregate
Revolving
CreditExposure
of
any
Non-Defaulting
Lender
to
exceed
such
Non-
Defaulting
Lender's
Commitment.
No
reallocation
hereunder
shallconstitute
a
waiver
or
release
of
any
claim
of
any
party
hereunder
against
a
Defaulting
Lender
arising
from
that
Lender
having
becomea
Defaulting
Lender,
including
any
claim
of
a
Non-Defaulting
Lender
as
a
result
of
such
Non-Defaulting
Lender's
increased
exposurefollowing
such
reallocation.(v)
Cash
Collateral,
Repayment
of
Swing
Line
Loans
.
If
the
reallocation
described
in
clause
(a)(iv)
above
cannot,
or
canonly
partially,
be
effected,
the
Borrower
shall,
without
prejudice
to
any
right
or
remedy
available
to
it
hereunder
or
under
applicableLaw,
(x)
first,
prepay
Swing
Line
Loans
in
an
amount
equal
to
the
Swing
Line
Lenders'
Fronting
Exposure
and
(y)
second,
CashCollateralize
the
L/C
Issuers'
Fronting
Exposure
in
accordance
with
the
procedures
set
forth
in
Section
2.15
.(b)
Defaulting
Lender
Cure
.
If
the
Borrower,
the
Administrative
Agent,
Swing
Line
Lender
and
the
L/C
Issuers
agree
in
writing
intheir
sole
discretion
that
a
Defaulting
Lender
should
no
longer
be
deemed
to
be
a
Defaulting
Lender,
the
Administrative
Agent
will
so
notifythe
parties
hereto,
whereupon
as
of
the
effective
date
specified
in
such
notice
and
subject
to
any
conditions
set
forth
therein
(which
may
includearrangements
with
respect
to
any
Cash
Collateral),
that
Lender
will,
to
the
extent
applicable,
purchase
that
portion
of
outstanding
Loans
of
theother
Lenders
or
take
such
other
actions
as
the
Administrative
Agent
may
determined
to
be
necessary
to
cause
the
Revolving
Loans
and
fundedand
unfunded
participations
in
Letters
of
Credit
and
Swing
Line
Loans
to
be
held
on
a
pro
rata
basis
by
the
Lenders
in
accordance
with
theirPro
Rata
Shares
(without
giving
effect
to
Section
2.16(a)(iv)
),
whereupon
that
Lender
will
cease
to
be
a
Defaulting
Lender;
provided
,
that,
noadjustments
will
be
made
retroactively
with
respect
to
fees
accrued
or
payments
made
by
or
on
behalf
of
the
Borrower
while
that
Lender
was
aDefaulting
Lender;
provided
,
further
,
that,
except
to
the
extent
otherwise
expressly
agreed
by
the
affected
parties,
no
change
hereunder
fromDefaulting
Lender
to
Lender
will
constitute
a
waiver
or
release
of
any
claim
of
any
party
hereunder
arising
from
that
Lender
having
been
aDefaulting
Lender.ARTICLE IIITAXES, YIELD PROTECTION AND ILLEGALITY3.1
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
the
Borrower
under
any
Loan
Document
shall
be
madewithout
deduction
or
withholding
for
any
Taxes,
except
as
required
by
applicable
Laws.
If
any
applicable
Laws
(as
determined
inthe
good
faith
discretion
of
the
Administrative
Agent)
require
the
deduction
or
withholding
of
any
Tax
from
any
such
payment
by
theAdministrative
Agent
or
the
Borrower
(taking
into
account
the
information
and
documentation
to
be
delivered
pursuant
to
subsection(e)
below),
then
the
Administrative
Agent
or
the
Borrower
shall
be
entitled
to
make
such
deduction
or
withholding
and
shall
timely
paythe
full
amount
deducted
or
withheld
to
the
relevant
Governmental
Authority
in
accordance
with
the
Code
or
applicable
Laws. (ii)
If
the
Borrower
or
the
Administrative
Agent
shall
be
required
by
the
Code
to
withhold
or
deduct
any
Taxes,
includingboth
United
States
Federal
backup
withholding
and
withholding
taxes,
from
any
payment,
then
(A)
the
Administrative
Agent
shallwithhold
or
make
such
deductions
as
are
determined
by
the
Administrative
Agent
to
be
required
based
upon
the
information
anddocumentation
it
has
received
pursuant
to
subsection
(e)
below,
(B)
the
Administrative
Agent
shall
timely
pay
the
full
amount
withheldor
deducted
to
the
relevant
Governmental
Authority
in
accordance
with
the
Code,
and
(C)
to
the
extent
that
the
withholding
ordeduction
is
made
on
account
of
Indemnified
Taxes,
the
sum
payable
by
the
applicable
Loan
Party
shall
be
increased
as
necessary
sothat
after
any
required
withholding
or
the
making
of
all
required
deductions
(including
deductions
applicable
to
additional
sums
payableunder
this
Section
3.01
)
the
applicable
Recipient
receives
an
amount
equal
to
the
sum
it
would
have
received
had
no
such
withholdingor
deduction
been
made.(iii)
If
the
Borrower
or
the
Administrative
Agent
shall
be
required
by
any
applicable
Laws
other
than
the
Code
to
withhold
ordeduct
any
Taxes
from
any
payment,
then
(A)
the
Borrower
or
the
Administrative
Agent,
as
required
by
such
Laws,
shall
withhold
ormake
such
deductions
as
are
determined
by
it
to
be
required
taking
into
account
the
information
and
documentation
it
has
receivedpursuant
to
subsection
(e)
below,
(B)
the
Borrower
or
the
Administrative
Agent,
to
the
extent
required
by
such
Laws,
shall
timely
paythe
full
amount
withheld
or
deducted
to
the
relevant
Governmental
Authority
in
accordance
with
such
Laws,
and
(C)
to
the
extent
thatthe
withholding
or
deduction
is
made
on
account
of
Indemnified
Taxes,
the
sum
payable
by
the
applicable
Loan
Party
shall
be
increasedas
necessary
so
that
after
any
required
withholding
or
the
making
of
all
required
deductions
(including
deductions
applicable
toadditional
sums
payable
under
this
Section
3.01
)
the
applicable
Recipient
receives
an
amount
equal
to
the
sum
it
would
have
receivedhad
no
such
withholding
or
deduction
been
made.(b)
Payment
of
Other
Taxes
by
the
Borrower
.
Without
limiting
the
provisions
of
subsection
(a)
above,
the
Borrower
shall
timely
payto
the
relevant
Governmental
Authority
in
accordance
with
applicable
law,
or
at
the
option
of
the
Administrative
Agent
reimburse
it
within
10days
after
written
demand
therefor
for
the
payment
of,
any
Other
Taxes.(c)Tax
Indemnifications
.(i)
The
Borrower
shall,
and
does
hereby
indemnify
each
Recipient,
and
shall
make
payment
in
respect
thereof
within
10
daysafter
written
demand
therefor,
for
the
fullamount
of
any
Indemnified
Taxes
(including
Indemnified
Taxes
imposed
or
asserted
on
or
attributable
to
amounts
payable
under
thisSection
3.01
)
payable
or
paid
by
such
Recipient
or
required
to
be
withheld
or
deducted
from
a
payment
to
such
Recipient,
and
anyreasonable
expenses
arising
therefrom
or
with
respect
thereto,
whether
or
not
such
Indemnified
Taxes
were
correctly
or
legally
imposedor
asserted
by
the
relevant
Governmental
Authority.
A
certificate
as
to
the
amount
of
such
payment
or
liability
delivered
to
theBorrower
by
a
Lender
or
an
L/C
Issuer
(with
a
copy
to
the
Administrative
Agent),
or
by
the
Administrative
Agent
on
its
own
behalf
oron
behalf
of
a
Lender
or
an
L/C
Issuer,
shall
be
conclusive
absent
manifest
error.
The
Borrower
shall,
and
does
hereby,
indemnify
theAdministrative
Agent,
and
shall
make
payment
in
respect
thereof
within
10
days
after
demand
therefor,
for
any
amount
which
a
Lenderor
an
L/C
Issuer
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
Borrower,
the
Administrative
Agent
shall
use
commercially
reasonable
efforts
to
exercise
its
set-offrights
described
in
the
last
sentence
of
clause
(c)(ii)
below
to
collect
the
applicable
amount
paid
by
Borrower
pursuant
to
the
precedingsentence
from
the
applicable
Lender
and
shall
pay
the
amount
so
collected
to
the
Borrower
net
of
any
reasonable
expenses
incurred
bythe
Administrative
Agent
in
its
efforts
to
collect
from
such
Lender
under
clause
(c)(ii)
below.(ii)
Each
Lender
and
each
L/C
Issuer
shall,
and
does
hereby,
severally
indemnify,
and
shall
make
payment
in
respect
therof,within
10
days
after
demand
therefor,
(x)
the
Administrative
Agent
against
any
Indemnified
Taxes
attributable
to
such
Lender
or
suchL/C
Issuer
(but
only
to
the
extent
that
the
Borrower
has
not
already
indemnified
the
Administrative
Agent
for
such
Indemnified
Taxesand
without
limiting
the
obligation
of
the
Loan
Party
to
do
so),
(y)
the
Administrative
Agent
and
the
Loan
Party,
as
applicable,
againstany
Taxes
attributable
to
such
Lender's
failure
to
comply
with
the
provisions
of
Section
11.06(d)
relating
to
the
maintenance
of
aParticipant
Register
and
(z)
the
Administrative
Agent
and
the
Loan
Party,
as
applicable,
against
any
Excluded
Taxes
attributable
tosuch
Lender
or
such
L/C
Issuer,
in
each
case,
that
are
payable
or
paid
by
the
Administrative
Agent
or
the
Borrower
in
connection
withany
Loan
Document,
and
any
reasonable
expenses
arising
therefrom
or
with
respect
thereto,
whether
or
not
such
Taxes
were
correctlyor
legally
imposed
or
asserted
by
the
relevant
Governmental
Authority.
A
certificate
as
to
the
amount
of
such
payment
or
liabilitydelivered
to
any
Lender
by
the
Administrative
Agent
shall
be
conclusive
absent
manifest
error.
Each
Lender
and
each
L/C
Issuerhereby
authorizes
the
Administrative
Agent
to
set
off
and
apply
any
and
all
amounts
at
any
time
owing
to
such
Lender
or
such
L/CIssuer,
as
the
case
may
be,
under
this
Agreement
or
any
other
Loan
Document
against
any
amount
due
to
the
Administrative
Agentunder
this
clause
(ii)
.(d)
Evidence
of
Payments
.
As
soon
as
practicable
after
any
payment
of
Taxes
by
the
Borrower
to
a
Governmental
Authority
asprovided
in
this
Section
3.01
,
the
Borrower
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
reasonablysatisfactory
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
underany
Loan
Document
shall
deliver
to
the
Borrower
and
the
Administrative
Agent,
at
the
time
or
times
reasonably
requested
by
theBorrower
or
the
Administrative
Agent,
such
properly
completed
and
executed
documentation
prescribed
by
applicable
law
or
the
taxingauthorities
of
a
jurisdiction
pursuant
to
such
applicable
law
or
reasonably
requested
by
the
Borrower
or
the
Administrative
Agent
aswill
permit
such
payments
to
be
made
without
withholding
or
at
a
reduced
rate
of
withholding.
In
addition,
any
Lender,
if
reasonablyrequested
by
the
Borrower
or
the
Administrative
Agent,
shall
deliver
such
other
documentation
prescribed
by
applicable
law
orreasonably
requested
by
the
Borrower
or
the
Administrative
Agent
as
will
enable
the
Borrower
or
the
Administrative
Agent
todetermine
whether
or
not
such
Lender
is
subject
to
backup
withholding
or
information
reporting
requirements.
Notwithstandinganything
to
the
contrary
in
the
preceding
two
sentences,
the
completion,
execution
and
submission
of
such
documentation
(other
thansuch
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
taxingauthorities
of
the
jurisdiction
pursuant
to
such
applicable
law
to
comply
with
the
requirements
for
exemption
or
reduction
ofwithholding
tax
in
that
jurisdiction)
shall
not
be
required
if
in
the
Lender's
reasonable
judgment
such
completion,
execution
orsubmission
would
subject
such
Lender
to
any
material
unreimbursed
cost
or
expense
or
would
materially
prejudice
the
legal
orcommercial
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
thedate
on
which
such
Lender
becomes
a
Lender
under
this
Agreement
(and
from
time
to
time
thereafter
upon
the
reasonablerequest
of
the
Borrower
or
the
Administrative
Agent),
executed
copies
of
IRS
Form
W-9
certifying
that
such
Lender
is
exemptfrom
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
theAdministrative
Agent
(in
such
number
of
copies
as
shall
be
requested
by
the
recipient)
on
or
prior
to
the
date
on
which
suchForeign
Lender
becomes
a
Lender
under
this
Agreement
(and
from
time
to
time
thereafter
upon
the
reasonable
request
of
theBorrower
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
isa
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
pursuantto
the
"interest"
article
of
such
tax
treaty
and
(y)
with
respect
to
any
other
applicable
payments
under
any
LoanDocument,
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
underSection
881(c)
of
the
Code,(x)
a
certificate
substantially
in
the
form
of
Exhibit
F-1
to
the
effect
that
such
Foreign
Lender
is
not
a
"bank"
within
themeaning
of
Section
881(c)(3)(A)
of
the
Code,
a
"10
percent
shareholder"
of
the
Borrower
within
the
meaning
ofSection
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),
aU.S.
Tax
Compliance
Certificate
substantially
in
the
form
of
Exhibit
F-2
or
Exhibit
F-3,
IRS
Form
W-9,
and/or
other certification
documents
from
each
beneficial
owner,
as
applicable;
provided
that
if
the
Foreign
Lender
is
a
partnershipand
one
or
more
direct
or
indirect
partners
of
such
Foreign
Lender
are
claiming
the
portfolio
interest
exemption,
suchForeign
Lender
may
provide
a
U.S.
Tax
Compliance
Certificate
substantially
in
the
form
of
Exhibit
F-4
on
behalf
ofeach
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
theAdministrative
Agent
(in
such
number
of
copies
as
shall
be
requested
by
the
recipient)
on
or
prior
to
the
date
on
which
suchForeign
Lender
becomes
a
Lender
under
this
Agreement
(and
from
time
to
time
thereafter
upon
the
reasonable
request
of
theBorrower
or
the
Administrative
Agent),
executed
copies
of
any
other
form
prescribed
by
applicable
law
as
a
basis
for
claimingexemption
from
or
a
reduction
in
U.S.
federal
withholding
Tax,
duly
completed,
together
with
such
supplementarydocumentation
as
may
be
prescribed
by
applicable
law
to
permit
the
Borrower
or
the
Administrative
Agent
to
determine
thewithholding
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
Taximposed
by
FATCA
if
such
Lender
were
to
fail
to
comply
with
the
applicable
reporting
requirements
of
FATCA
(includingthose
contained
in
Section
1471(b)
or
1472(b)
of
the
Code,
as
applicable),
such
Lender
shall
deliver
to
the
Borrower
and
theAdministrativeAgent
at
the
time
or
times
prescribed
by
law
and
at
such
time
or
times
reasonably
requested
by
the
Borrower
or
theAdministrative
Agent
such
documentation
prescribed
by
applicable
law
(including
as
prescribed
by
Section
1471(b)(3)(C)(i)
ofthe
Code)
and
such
additional
documentation
reasonably
requested
by
the
Borrower
or
the
Administrative
Agent
as
may
benecessary
for
the
Borrower
and
the
Administrative
Agent
to
comply
with
their
obligations
under
FATCA
and
to
determine
thatsuch
Lender
has
complied
with
such
Lender's
obligations
under
FATCA
or
to
determine
the
amount
to
deduct
and
withholdfrom
such
payment.
Solely
for
purposes
of
this
clause
(D)
,
"FATCA"
shall
include
any
amendments
made
to
FATCA
after
thedate
of
this
Agreement.(iii)
Each
Lender
agrees
that
if
any
form
or
certification
it
previously
delivered
pursuant
to
this
Section
3.01
expires
orbecomes
obsolete
or
inaccurate
in
any
respect,
it
shall
update
such
form
or
certification
or
promptly
notify
the
Borrower
and
theAdministrative
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
anyobligation
to
file
for
or
otherwise
pursue
on
behalf
of
a
Lender
or
an
L/C
Issuer,
or
have
any
obligation
to
pay
to
any
Lender
or
an
L/C
Issuer,any
refund
of
Taxes
withheld
or
deducted
from
funds
paid
for
the
account
of
such
Lender
or
such
L/C
Issuer,
as
the
case
may
be.
If
anyRecipient
determines,
in
its
sole
discretion
exercised
in
good
faith,
that
it
has
received
a
refund
of
any
Taxes
as
to
which
it
has
beenindemnified
by
the
Borrower
or
with
respect
to
which
the
Borrower
has
paid
additional
amounts
pursuant
to
this
Section
3.01
,
it
shall
pay
tothe
Borrower
an
amount
equal
to
such
refund
(but
only
to
the
extent
of
indemnity
payments
made,
or
additional
amounts
paid,
by
the
Borrowerunder
this
Section
3.01
with
respect
to
the
Taxes
giving
rise
to
such
refund),
net
of
all
out-of-pocket
expenses
(including
Taxes)
of
suchRecipient,
and
without
interest
(other
than
any
interest
paid
by
the
relevant
Governmental
Authority
with
respect
to
such
refund).
TheBorrower,
upon
the
request
of
the
Recipient,
shall
repay
to
the
Recipient
the
amount
paid
over
pursuant
to
this
subsection
(f)
(plus
anypenalties,
interest
or
other
charges
imposed
by
the
relevant
Governmental
Authority)
in
the
event
the
Recipient
is
required
to
repay
such
refundto
such
Governmental
Authority.
Notwithstanding
anything
to
the
contrary
in
this
subsection,
in
no
event
will
the
applicable
Recipient
berequired
to
pay
any
amount
to
the
Borrower
pursuant
to
this
subsection
the
payment
of
which
would
place
the
Recipient
in
a
less
favorable
netafter-Tax
position
than
such
Recipient
would
have
been
in
if
the
Tax
subject
to
indemnification
and
giving
rise
to
such
refund
had
not
beendeducted,
withheld
or
otherwise
imposed
and
the
indemnification
payments
or
additional
amounts
with
respect
to
such
Tax
had
never
beenpaid.
This
subsection
shall
not
be
construed
to
require
any
Recipient
to
make
available
its
tax
returns
(or
any
other
information
relating
to
itstaxes
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
AdministrativeAgent
or
any
assignment
of
rights
by,
or
the
replacement
of,
a
Lender
or
an
L/C
Issuer,
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
thisAgreement,
the
Borrower
and
the
Administrative
Agent
shall
treat
(and
the
Lenders
hereby
authorize
the
Administrative
Agent
to
treat)
thisAgreement
as
not
qualifying
as
a
"grandfathered
obligation"
within
the
meaning
of
Treasury
Regulation
Section
1.1471-2(b)(2)(i).3.2
Illegality . If
any
Lender
determines
that
any
Law
has
made
it
unlawful,
or
that
any
Governmental
Authority
has
asserted
that
it
isunlawful,
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
Credit
Extension
or
to
determine
or
charge
interest
rates
based
upon
the
Eurocurrency
Rate,
or
any
Governmental
Authority
has
imposedmaterial
restrictions
on
the
authority
of
such
Lender
to
purchase
or
sell,
or
to
take
deposits
of,
Dollars
or
any
Alternative
Currency
in
the
applicableinterbank
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
Credit
Extension
or
to
make
or
continue
Eurocurrency
Rate
Loans
in
the
affectedcurrency
or
currencies
or,
in
the
case
of
Eurocurrency
Rate
Loans
in
Dollars,
to
convert
Base
Rate
Committed
Loans
to
Eurocurrency
Rate
Loans,
shallbe
suspended,
and
(ii)
if
such
notice
asserts
the
illegality
of
such
Lender
making
or
maintaining
Base
Rate
Loans
the
interest
rate
on
which
isdetermined
by
reference
to
the
Eurocurrency
Rate
component
of
the
Base
Rate,
the
interest
rate
on
which
Base
Rate
Loans
of
such
Lender
shall,
ifnecessary
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
longerexist.
Upon
receipt
of
such
notice,
(x)
the
Borrower
shall,
upon
demand
from
such
Lender
(with
a
copy
to
the
Administrative
Agent),
prepay
or,
ifapplicable
and
such
Loans
are
denominated
in
Dollars,
convert
all
Eurocurrency
Rate
Loans
of
such
Lender
to
Base
Rate
Loans
(the
interest
rate
onwhich
Base
Rate
Loans
of
such
Lender
shall,
if
necessary
to
avoid
such
illegality,
be
determined
by
the
Administrative
Agent
without
reference
to
theEurocurrency
Rate
component
of
the
Base
Rate),
either
on
the
last
day
of
the
Interest
Period
therefor,
if
such
Lender
may
lawfully
continue
to
maintainsuch
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
AdministrativeAgent
shall
during
the
period
of
such
suspension
compute
the
Base
Rate
applicable
to
such
Lender
without
reference
to
the
Eurocurrency
Ratecomponent
thereof
until
the
Administrative
Agent
is
advised
in
writing
by
such
Lender
that
it
is
no
longer
illegal
for
such
Lender
to
determine
orcharge
interest
rates
based
upon
the
Eurocurrency
Rate.
Upon
any
such
prepayment
or
conversion,
the
Borrower
shall
also
pay
accrued
interest
on
theamount
so
prepaid
or
converted.3.3
Inability to Determine Rates . If
in
connection
with
any
request
for
a
Eurocurrency
Rate
Loan
or
a
conversion
to
or
continuationthereof,
(a)
(i)
the
Administrative
Agent
determines
that
deposits
(whether
in
Dollars
or
an
Alternative
Currency)
are
not
being
offered
to
banks
in
theapplicable
offshore
interbank
market
for
such
currency
for
the
applicable
amount
and
Interest
Period
of
such
Eurocurrency
Rate
Loan,
or
(ii)
adequateand
reasonable
means
do
not
exist
for
determining
the
Eurocurrency
Rate
for
any
requested
Interest
Period
with
respect
to
a
proposed
EurocurrencyRate
Loan
(whether
denominated
in
Dollars
or
an
Alternative
Currency)
or
in
connection
with
an
existing
or
proposed
Base
Rate
Loan
(in
each
casewith
respect
to
clause
(a)
above,
"
Impacted
Loans
"),
or
(b)
the
Administrative
Agent
or
the
Required
Lenders
determine
that
for
any
reason
theEurocurrency
Rate
for
any
requested
Interest
Period
with
respect
to
a
proposed
Eurocurrency
Rate
Loan
does
not
adequately
and
fairly
reflect
the
costto
suchLenders
of
funding
such
Eurocurrency
Rate
Loan,
the
Administrative
Agent
will
promptly
so
notify
the
Borrower
and
each
Lender.
Thereafter,
(x)
theobligation
of
the
Lenders
to
make
or
maintain
Eurocurrency
Rate
Loans
in
the
affected
currency
or
currencies
shall
be
suspended,
(to
the
extent
of
theaffected
Eurocurrency
Rate
Loans
or
Interest
Periods),
and
(y)
in
the
event
of
a
determination
described
in
the
preceding
sentence
with
respect
to
theEurocurrency
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
(upon
the
instruction
of
the
Required
Lenders)
revokes
such
notice.
Upon
receipt
of
such
notice,
theBorrower
may
revoke
any
pending
request
for
a
Borrowing
of,
conversion
to
or
continuation
of
Eurocurrency
Rate
Loans
in
the
affected
currency
orcurrencies
(to
the
extent
of
the
affected
Eurocurrency
Rate
Loans
or
Interest
Periods)
or,
failing
that,
will
be
deemed
to
have
converted
such
requestinto
a
request
for
a
Committed
Borrowing
of
Base
Rate
Loans
in
the
amount
specified
therein.Notwithstanding
the
foregoing,
if
the
Administrative
Agent
has
made
the
determination
described
in
this
section,
the
Administrative
Agent,
inconsultation
with
the
Borrower
and
the
Required
Lenders,
may
establish
an
alternative
interest
rate
for
the
Impacted
Loans
, in
which
case,
suchalternative
rate
of
interest
shall
apply
with
respect
to
the
Impacted
Loans
until
(1)
the
Administrative
Agent
revokes
the
notice
delivered
with
respect
tothe
Impacted
Loans
under
clause
(a)
of
the
first
sentence
of
this
section,(2)
the
Administrative
Agent
or
the
Required
Lenders
notify
the
Administrative
Agent
and
the
Borrower
that
such
alternative
interest
rate
does
notadequately
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
Loanswhose
interest
is
determined
by
reference
to
such
alternative
rate
of
interest
or
to
determine
or
charge
interest
rates
based
upon
such
rate
or
anyGovernmental
Authority
has
imposed
material
restrictions
on
the
authority
of
such
Lender
to
do
any
of
the
foregoing
and
provides
the
AdministrativeAgent
and
the
Borrower
written
notice
thereof.3.4Increased 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
similarrequirement
against
assets
of,
deposits
with
or
for
the
account
of,
or
credit
extended
or
participated
in
by,
any
Lender
(except
anyreserve
requirement
contemplated
by
Section
3.04(e)
,
other
than
as
set
forth
below)
or
any
L/C
Issuer; (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
any
L/C
Issuer
or
the
London
interbank
market
any
other
condition,
cost
or
expense
affectingthis
Agreement
or
Eurocurrency
Rate
Loans
made
by
such
Lender
or
any
Letter
of
Credit
or
participation
therein;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
itsobligation
to
make
any
such
Loan),
or
to
increase
the
cost
to
such
Lender
or
such
L/C
Issuer
of
participating
in,
issuing
or
maintaining
anyLetter
of
Credit
(or
of
maintaining
its
obligation
to
participate
in
or
to
issue
any
Letter
of
Credit),
or
to
reduce
the
amount
of
any
sum
receivedor
receivable
by
such
Lender
or
such
L/C
Issuer
hereunder
(whether
of
principal,
interest
or
any
other
amount)
then,
upon
request
of
suchLender
or
such
L/C
Issuer,
the
Borrower
will
pay
to
such
Lender
or
such
L/C
Issuer,
as
the
case
may
be,
such
additional
amount
or
amounts
aswill
compensate
such
Lender
or
such
L/C
Issuer,
as
the
case
may
be,
for
such
additional
costs
incurred
or
reduction
suffered.(b)
Capital
Requirements
.
If
any
Lender
or
any
L/C
Issuer
reasonably
determines
that
any
Change
in
Law
affecting
such
Lender
orsuch
L/C
Issuer
or
any
Lending
Office
of
such
Lender
or
such
Lender's
or
such
L/C
Issuer's
holding
company,
if
any,
regarding
capital
orliquidity
requirements
has
or
would
have
the
effect
of
reducing
the
rate
of
return
on
such
Lender's
or
such
L/C
Issuer's
capital
or
on
the
capitalof
such
Lender's
or
such
L/C
Issuer's
holding
company,
if
any,
as
a
consequence
of
this
Agreement,
the
Commitments
of
such
Lender
or
theLoans
made
by,
or
participations
in
Letters
of
Credit
held
by,
such
Lender,
or
the
Letters
of
Credit
issued
by
such
L/C
Issuer,
to
a
level
belowthat
which
such
Lender
or
such
L/C
Issuer
or
such
Lender's
or
such
L/C
Issuer's
holding
company
could
have
achieved
but
for
such
Change
inLaw
(taking
into
consideration
such
Lender's
or
such
L/C
Issuer's
policies
and
the
policies
of
such
Lender's
or
such
L/C
Issuer's
holdingcompany
with
respect
to
capital
adequacy),
then
from
time
to
time
the
Borrower
will
pay
to
such
Lender
or
such
L/C
Issuer,
as
the
case
may
be,such
additional
amount
or
amounts
as
will
compensate
such
Lender
or
such
L/C
Issuer
or
such
Lender's
or
such
L/C
Issuer's
holding
companyfor
any
such
reduction
suffered.(c)
Certificates
for
Reimbursement
.
A
certificate
of
a
Lender
or
an
L/C
Issuer
setting
forth
the
amount
or
amounts
necessary
tocompensate
such
Lender
or
such
L/C
Issuer
or
its
holding
company,
as
the
case
may
be,
as
specified
in
subsection
(a)
or
(b)
of
this
Section
anddelivered
to
the
Borrower
shall
be
conclusive
absent
manifest
error.
The
Borrower
shall
pay
such
Lender
or
such
L/C
Issuer,
as
the
case
maybe,
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
or
any
L/C
Issuer
to
demand
compensation
pursuant
to
theforegoing
provisions
of
this
Section
shall
not
constitute
a
waiver
of
such
Lender's
or
such
L/C
Issuer's
right
to
demand
such
compensation,provided
that
no
Borrower
shall
be
required
to
compensate
a
Lender
or
an
L/C
Issuer
pursuant
to
the
foregoing
provisions
of
this
Section
forany
increased
costs
incurred
or
reductions
suffered
more
than
nine
months
prior
to
the
date
that
such
Lender
or
such
L/C
Issuer,
as
the
case
maybe,
notifies
the
Borrower
of
the
Change
in
Law
giving
rise
to
such
increased
costs
or
reductions
and
of
such
Lender's
or
such
L/C
Issuer'sintention
to
claim
compensation
therefor
(except
that,
if
the
Change
in
Law
giving
rise
to
such
increased
costs
or
reductions
is
retroactive,
thenthe
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
tomaintain
reserves
with
respect
to
liabilities
or
assets
consisting
of
or
including
Eurocurrency
funds
or
deposits
(currently
known
as"Eurocurrencyliabilities"),
additional
interest
on
the
unpaid
principal
amount
of
each
Eurocurrency
Rate
Loan
equal
to
the
actual
costs
of
such
reservesallocated
to
such
Loan
by
such
Lender
(as
determined
by
such
Lender
in
good
faith,
which
determination
shall
be
conclusive),
and
(ii)
as
longas
such
Lender
shall
be
required
to
comply
with
any
reserve
ratio
requirement
or
analogous
requirement
of
any
other
central
banking
orfinancial
regulatory
authority
imposed
in
respect
of
the
maintenance
of
the
Commitments
or
the
funding
of
the
Eurocurrency
Rate
Loans,
suchadditional
costs
(expressed
as
a
percentage
per
annum
and
rounded
upwards,
if
necessary,
to
the
nearest
five
decimal
places)
equal
to
the
actualcosts
allocated
to
such
Commitment
or
Loan
by
such
Lender
(as
determined
by
such
Lender
in
good
faith,
which
determination
shall
beconclusive),
which
in
each
case
shall
be
due
and
payable
on
each
date
on
which
interest
is
payable
on
such
Loan,
provided
the
Borrower
shallhave
received
at
least
10
days'
prior
notice
(with
a
copy
to
the
Administrative
Agent)
of
such
additional
interest
or
costs
from
such
Lender.
If
aLender
fails
to
give
notice
10
days
prior
to
the
relevant
Interest
Payment
Date,
such
additional
interest
or
costs
shall
be
due
and
payable
10
daysfrom
receipt
of
such
notice.3.5
Compensation for Losses . Upon
demand
of
any
Lender
(with
a
copy
to
the
Administrative
Agent)
from
time
to
time,
the
Borrowershall
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
ofthe
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
orconvert
any
Loan
other
than
a
Base
Rate
Loan
on
the
date
or
in
the
amount
notified
by
the
Borrower;(c)
any
failure
by
the
Borrower
to
make
payment
of
any
Loan
or
drawing
under
any
Letter
of
Credit
(or
interest
due
thereon)denominated
in
an
Alternative
Currency
on
its
scheduled
due
date
or
any
payment
thereof
in
a
different
currency;
or(d)
any
assignment
of
a
Eurocurrency
Rate
Loan
on
a
day
other
than
the
last
day
of
the
Interest
Period
therefor
as
a
result
of
arequest
by
the
Borrower
pursuant
to
Section
11.13
;including
any
loss
of
anticipated
profits,
any
foreign
exchange
losses
and
any
loss
or
expense
arising
from
the
liquidation
or
reemployment
of
fundsobtained
by
it
to
maintain
such
Loan,
from
fees
payable
to
terminate
the
deposits
from
which
such
funds
were
obtained
or
from
the
performance
of
anyforeign
exchange
contract.
The
Borrower
shall
also
pay
any
customary
administrative
fees
charged
by
such
Lender
in
connection
with
the
foregoing.For
purposes
of
calculating
amounts
payable
by
the
Borrower
to
the
Lenders
under
this
Section
3.05
,
each
Lender
shall
be
deemed
to
havefunded
each
Eurocurrency
Rate
Loan
made
by
it
at
the
Eurocurrency
Rate
for
such
Loan
by
a
matching
deposit
or
other
borrowing
in
the
offshoreinterbank
market
for
such
currency
for
a
comparable
amount
and
for
a
comparable
period,
whether
or
not
such
Eurocurrency
Rate
Loan
was
in
fact
sofunded.3.6Mitigation Obligations; Replacement of Lenders .(a)
Designation
of
a
Different
Lending
Office
.
Each
Lender
may
make
any
Credit
Extension
to
the
Borrower
through
any
LendingOffice,
provided
that
the
exercise
of
this
option
shall
not
affect
the
obligation
of
the
Borrower
to
repay
the
Credit
Extension
in
accordance
withthe
terms
of
this
Agreement.
If
any
Lender
requests
compensation
under
Section
3.04
,
or
the
Borrower
is
required
to
pay
any
additionalamount
to
any
Lender
or
any
Governmental
Authority
for
the
account
of
any
Lender
pursuant
to
Section
3.01
,
or
if
any
Lender
gives
a
noticepursuant
to
Section
3.02
,
then
such
Lender
shall
(at
the
request
of
the
Borrower)
use
reasonable
efforts
to
designate
a
different
Lending
Officefor
funding
or
booking
its
Loans
hereunder
or
to
assign
its
rights
and
obligations
hereunder
to
another
of
its
offices,
branches
or
affiliates,
if,
inthe
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
notsubject
such
Lender
to
any
unreimbursed
cost
or
expense
and
would
not
otherwise
be
disadvantageous
to
such
Lender.
The
Borrower
herebyagrees
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
anyIndemnified
Taxes
or
additional
amounts
to
any
Lender
or
any
Governmental
Authority
for
the
account
of
any
Lender
pursuant
to
Section
3.01and,
in
each
case,
such
Lender
has
declined
or
is
unable
to
designate
a
different
lending
office
in
accordance
with
Section
3.06(a)
,
theBorrower
may
replace
such
Lender
in
accordance
with
Section
11.13
.3.7
Survival . All
of
the
Borrower's
obligations
under
this
Article
III
shall
survive
termination
of
the
Aggregate
Commitments
andrepayment
of
all
other
Obligations
hereunder.ARTICLE IV GUARANTY4.01 Facility Guaranty . In
support
of
the
full
and
timely
payment
and
performance
of
all
Obligations,
Borrower
shall
on
or
before
the
ClosingDate
do
or
cause
to
be
done
all
things
necessary
to
cause
each
Domestic
Subsidiary
that
is
a
Significant
Subsidiary
(other
than
Excluded
Subsidiaries)to
execute
and
deliver
to
Administrative
Agent
for
the
benefit
of
the
Lenders
a
Facility
Guaranty
and
shall
further
cause
each
Person
who
thereafterbecomes
a
Domestic
Subsidiary
that
is
a
Significant
Subsidiary
(other
than
Excluded
Subsidiaries)
to
do
all
those
things
required
by
Section
7.12
.ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS5.1
Conditions of Closing . The
effectiveness
of
this
Agreement
is
subject
to
the
following
conditions
precedent:(a)
The
Administrative
Agent's
receipt
of
the
following,
each
of
which
shall
be
originals,
facsimiles
or
pdf
copies
(followed
promptlyby
originals)
unless
otherwise
specified,
each
properly
executed
by
a
Responsible
Officer
of
the
signing
Loan
Party,
each
dated
the
ClosingDate
(or,
in
the
case
of
certificates
of
governmental
officials,
a
recent
date
before
the
Closing
Date)
and
each
in
form
and
substance
satisfactoryto
the
Administrative
Agent
and
its
legal
counsel:(i)
executed
counterparts
of
this
Agreement
and
the
Facility
Guaranty
sufficient
in
number
for
distribution
to
theAdministrative
Agent,
each
Lender
and
the
Borrower;(ii)a
Note
executed
by
the
Borrower
in
favor
of
each
Lender
requesting
aNote;(iii)
such
certificates
of
resolutions
or
other
action,
incumbency
certificates
and/or
other
certificates
of
Responsible
Officersof
each
Loan
Party
as
the
Administrative
Agent
may
require
evidencing
the
identity,
authority
and
capacity
of
each
Responsible
Officerthereof
authorized
to
act
as
a
Responsible
Officer
in
connection
with
this
Agreement
and
the
other
Loan
Documents
to
which
suchLoan
Party
is
a
party;(iv)
such
documents
and
certifications
as
the
Administrative
Agent
may
reasonably
require
to
evidence
that
each
Loan
Partyis
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
inbusiness;(v)
a
favorable
opinion
of
counsel
to
the
Loan
Parties
as
to
matters
of
Florida
and
United
States
Law,
addressed
to
theAdministrative
Agent
and
the
Lenders,
in
form
and
substance
satisfactory
to
the
Administrative
Agent
and
its
legal
counsel;(vi)
a
certificate
of
a
Responsible
Officer
or
Secretary
of
each
Loan
Party
either
(A)
attaching
copies
of
all
consents,
licensesand
approvals
required
in
connection
with
the
execution,
delivery
and
performance
by
such
Loan
Party
and
the
validity
against
suchLoan
Party
of
the
Loan
Documents
to
which
it
is
a
party,
and
such
consents,
licenses
and
approvals
shall
be
in
full
force
and
effect,
or(B)
stating
that
no
such
consents,
licenses
or
approvals
are
so
required;(vii)a
certificate
signed
by
a
Responsible
Officer
of
the
Borrower
certifying(A)
that
the
conditions
specified
in
Sections
5.02(a
)
and
(
b
)
have
been
satisfied,
(B)
that
there
has
been
no
event
or
circumstancesince
the
date
of
the
Audited
Financial
Statements
that
has
had
or
could
be
reasonably
expected
to
have,
either
individually
or
in
theaggregate,
a
Material
Adverse
Effect;
(C)
the
current
Debt
Ratings;
and
(D)
the
Borrower
has
paid
all
required
documentary
stamptaxes,
intangible
taxes
and
other
taxes
and
fees
imposed
upon
the
execution,
filing
and/or
or
recording
of
the
Credit
Agreement
and
theother
Loan
Documents;(viii)
a
Compliance
Certificate
signed
by
a
Responsible
Officer
of
the
Borrower,
demonstrating
that
the
Borrower
is
incompliance
with
the
covenants
set
forth
in
Section
8.13
,
which
certificate
(for
purposes
of
this
Section
5.0l(a)(viii)
)
may
excludeparagraphs
1,
2,
3
and
4
of
Exhibit
D
),
shall
be
based
on
the
financial
statements
of
the
Borrower's
for
the
fiscal
period
ending
June
30,2015;
and(ix)
such
other
assurances,
certificates,
documents,
consents
or
opinions
as
the
Administrative
Agent,
the
L/C
Issuers,
theSwing
Line
Lender
or
the
Required
Lenders
reasonably
may
require.(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
FeeLetter.(c)
Unless
waived
by
the
Administrative
Agent,
the
Borrower
shall
have
paid
all
Attorney
Costs
of
the
Administrative
Agent
to
theextent
invoiced
prior
to
or
on
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
forany
additional
Attorney
Costs
in
accordance
with
Section
11.04
;
and
provided
further
that
this
clause
(c)
is
subject
to
the
limitation
onreimbursement
of
certain
Attorney
Costs
set
forth
in
the
Fee
Letter.(d)
The
Administrative
Agent
shall
have
received
satisfactory
evidence
that
all
obligations
owing
under
the
Borrower's
existingcredit
agreement
among
the
Borrower,
Bank
of
America,
as
administrative
agent,
and
the
other
lenders
party
thereto,
and
any
liens
thereunder,shall
have
been,
or
concurrently
with
the
date
hereof
will
be,
terminated.Without
limiting
the
generality
of
the
provisions
of
Section
10.04
,
for
purposes
of
determining
compliance
with
the
conditions
specified
in
thisSection
5.01
,
each
Lender
that
has
signed
this
Agreement
shall
be
deemed
to
have
consented
to,
approved
or
accepted
or
to
be
satisfied
with,
eachdocument
or
other
matter
required
thereunder
to
be
consented
to
or
approved
by
or
acceptable
or
satisfactory
to
a
Lender
unless
the
AdministrativeAgent
shall
have
received
notice
from
such
Lender
prior
to
the
proposed
Closing
Date
specifying
its
objection
thereto.5.2
Conditions to all Credit Extensions . The
obligation
of
each
Lender
to
honor
any
Request
for
Credit
Extension
(other
than
a
CommittedLoan
Notice
requesting
only
a
conversion
of
Committed
Loans
to
the
other
Type,
or
a
continuation
of
Eurocurrency
Rate
Loans)
is
subject
to
thefollowing
conditions
precedent:(a)
The
representations
and
warranties
of
the
Borrower
and
each
other
Loan
Party
contained
in
Article
VI
or
any
other
LoanDocument,
or
which
are
contained
in
any
document
furnished
at
any
time
under
or
in
connection
herewith
or
therewith,
shall
be
true
and
correctin
all
material
respects
(unless
such
representation
or
warranty
is
already
qualified
by
materiality
or
Material
Adverse
Effect,
in
which
case
itshall
be
true
and
correct
in
all
respects)
on
and
as
of
the
date
of
such
Credit
Extension,
except
to
the
extent
that
such
representations
andwarranties
specifically
refer
to
an
earlier
date,
in
which
case
they
shall
be
true
and
correct
in
all
material
respects
(unless
such
representation
orwarranty
is
already
qualified
by
materiality
or
Material
Adverse
Effect,
in
which
case
it
shall
be
true
and
correct
in
all
respects)
as
of
suchearlier
date,and
except
that
for
purposes
of
this
Section
5.02
,
the
representations
and
warranties
contained
in
subsections
(a)
and
(b)
of
Section
6.05
shallbe
deemed
to
refer
to
the
most
recent
statements
furnished
pursuant
to
clauses
(a)
and
(b),
respectively,
of
Section
7.01
.(b)No
Default
shall
exist,
or
would
result
from
such
proposed
Credit
Extension.(c)
The
Administrative
Agent
and,
if
applicable,
the
applicable
L/C
Issuer
or
the
Swing
Line
Lender
shall
have
received
a
Requestfor
Credit
Extension
in
accordance
with
the
requirements
hereof.(d)
In
the
case
of
a
Credit
Extension
to
be
denominated
in
an
Alternative
Currency,
there
shall
not
have
occurred
any
change
innational
or
international
financial,
political
or
economic
conditions
or
currency
exchange
rates
or
exchange
controls
which
in
the
reasonableopinion
of
the
Administrative
Agent,
the
Required
Lenders
(in
the
case
of
any
Loans
to
be
denominated
in
an
Alternative
Currency)
or
theapplicable
L/C
Issuer
(in
the
case
of
any
Letter
of
Credit
to
be
denominated
in
an
Alternative
Currency)
would
make
it
impracticable
for
suchCredit
Extension
to
be
denominated
in
the
relevant
Alternative
Currency.Each
Request
for
Credit
Extension
(other
than
a
Committed
Loan
Notice
requesting
only
a
conversion
of
Committed
Loans
to
the
other
Type
ora
continuation
of
Eurocurrency
Rate
Loans)
submitted
by
the
Borrower
shall
be
deemed
to
be
a
representation
and
warranty
that
the
conditionsspecified
in
Sections
5.02(a
)
and
(b)
have
been
satisfied
on
and
as
of
the
date
of
the
applicable
Credit
Extension.ARTICLE VI REPRESENTATIONS AND WARRANTIESThe
Borrower
represents
and
warrants
to
the
Administrative
Agent
and
the
Lenders
that:6.1
Existence, Qualification and Power; Compliance with Laws . Each
Loan
Party
(a)
is
a
corporation
or
other
legal
entity
duly
organizedor
formed,
validly
existing
and
in
good
standing
under
the
Laws
of
the
jurisdiction
of
its
incorporation
or
organization,
(b)
has
all
requisite
power
andauthority
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
theLaws
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.6.2
Authorization; No Contravention . The
execution,
delivery
and
performance
by
each
Loan
Party
of
each
Loan
Document
to
whichsuch
Person
is
party,
have
been
duly
authorized
by
all
necessary
corporate
or
other
organizational
action,
and
do
not
and
will
not
(a)
contravene
theterms
of
any
of
such
Person's
Organization
Documents;
(b)
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
(c)violate
any
Law.6.3
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
theSecurities
Exchange
Act
of
1934
and
the
rules
and
regulations
of
the
SEC
promulgated
thereunder)
which
has
not
been
obtained
is
necessary
orrequired
in
connection
with
the
execution,
delivery
or
performance
by,
or
enforcement
against,
any
Loan
Party
of
this
Agreement
or
any
other
LoanDocument.6.4
Binding Effect . This
Agreement
has
been,
and
each
other
Loan
Document,
when
delivered
hereunder,
will
have
been,
duly
executedand
delivered
by
each
Loan
Party
that
is
party
thereto.
This
Agreement
constitutes,
and
each
other
Loan
Document
when
so
delivered
will
constitute,
alegal,
valid
and
binding
obligation
of
such
Loan
Party,
enforceable
against
each
Loan
Party
that
is
party
thereto
in
accordance
with
its
terms.6.5Financial Statements; No Material Adverse Effect .(a)
The
Audited
Financial
Statements
(i)
were
prepared
in
accordance
with
GAAP
consistently
applied
throughout
the
periodcovered
thereby,
except
as
otherwise
expressly
noted
therein;
(ii)
fairly
present
the
financial
condition
of
the
Borrower
and
its
Subsidiaries
as
ofthe
date
thereof
and
their
results
of
operations
for
the
period
covered
thereby
in
accordance
with
GAAP
consistently
applied
throughout
theperiod
covered
thereby,
except
as
otherwise
expressly
noted
therein;
and
(iii)
show
all
material
indebtedness
and
other
material
liabilities,
director
contingent,
of
the
Borrower
and
its
Subsidiaries
as
of
the
date
thereof,
including
liabilities
for
taxes,
material
commitments
andIndebtedness.(b)
The
unaudited
consolidated
financial
statements
of
the
Borrower
and
its
Subsidiaries
dated
June
30,
2015,
and
the
relatedconsolidated
statements
of
income
or
operations,
shareholders'
equity
and
cash
flows
for
the
fiscal
quarter
ended
on
that
date
(i)
were
preparedin
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
Borrower
and
its
Subsidiaries
as
of
the
date
thereof
and
their
results
of
operations
for
the
periodcovered
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
theaggregate,
that
has
had
or
could
reasonably
be
expected
to
have
a
Material
Adverse
Effect.6.6
Litigation . Except
as
disclosed
in
the
Exchange
Act
Reports,
there
are
no
actions,
suits,
proceedings,
investigations,
claims
or
disputespending
or,
to
the
knowledge
of
the
Borrower
after
due
and
diligent
investigation,
pending
threatened
or
contemplated,
at
law,
in
equity,
in
arbitrationor
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
determinedadversely,
could
reasonably
be
expected
to
have
a
Material
Adverse
Effect.6.7
No Default . Neither
the
Borrower
nor
any
Subsidiary
is
in
default
under
or
with
respect
to
any
Contractual
Obligation
that
could,
eitherindividually
or
in
the
aggregate,
reasonably
be
expected
to
have
a
Material
Adverse
Effect.
No
Default
has
occurred
and
is
continuing
or
would
resultfrom
the
consummation
of
the
transactions
contemplated
by
this
Agreement
or
any
other
Loan
Document.6.8
Ownership of Property; Liens . Each
of
the
Borrower
and
each
Subsidiary
has
good
record
and
marketable
title
in
fee
simple
to,
orvalid
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
subjectto
no
Liens,
other
than
Liens
permitted
by
Section
8.01
.6.9
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,
andas
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
owningsimilar
properties
in
localities
where
the
Borrower
or
the
applicable
Subsidiary
operates
none
of
which
insurance
shall
be
provided
by
any
Subsidiaryor
any
other
Affiliate
of
the
Borrower
except
to
the
extent
that
any
such
Affiliate
has
reinsured
all
exposure
related
thereto
with
one
or
more
financiallysound
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,
andhave
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
diligentlyconducted
and
for
which
adequate
reserves
have
been
provided
in
accordance
with
GAAP.
There
is
no
proposed
tax
assessment
against
the
Borroweror
any
Subsidiary
that
would,
if
made,
have
a
Material
Adverse
Effect.6.12ERISA Compliance .(a)
(i)
Each
Plan
is
in
compliance
in
all
material
respects
with
the
applicable
provisions
of
ERISA,
the
Code
and
other
federal
orstate
Laws
and
(ii)
each
Pension
Plan
that
is
intended
to
be
a
qualified
plan
under
Section
401(a)
of
the
Code
has
received
a
favorabledetermination
letter
from
the
Internal
Revenue
Service
to
the
effect
that
the
form
of
such
Plan
is
qualified
under
Section
401(a)
of
the
Code
andthe
trust
related
thereto
has
been
determined
by
the
Internal
Revenue
Service
to
be
exempt
from
federal
income
tax
under
Section
501(a)
of
theCode
or
an
application
for
such
a
letter
is
currently
being
processed
by
the
Internal
Revenue
Service
and
to
the
best
knowledge
of
the
LoanParties,
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
anyGovernmental
Authority,
with
respect
to
any
Planthat
could
reasonably
be
expected
to
have
a
Material
Adverse
Effect.
There
has
been
no
prohibited
transaction
or
violation
of
the
fiduciaryresponsibility
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,
eventor
circumstance
that
could
reasonably
be
expected
to
constitute
or
result
in
an
ERISA
Event
with
respect
to
any
Pension
Plan;
(ii)
the
Borrowerand
each
ERISA
Affiliate
have
met
all
applicable
requirements
under
the
Pension
Funding
Rules
in
respect
of
each
Pension
Plan,
and
no
waiverof
the
minimum
funding
standards
under
the
Pension
Funding
Rules
has
been
applied
for
or
obtained;
(iii)
neither
the
Borrower
nor
any
ERISAAffiliate
has
incurred
any
liability
to
the
PBGC
other
than
for
the
payment
of
premiums,
and
there
are
no
premium
payments
which
havebecome
due
that
are
unpaid;
(iv)
neither
the
Borrower
nor
any
ERISA
Affiliate
has
engaged
in
a
transaction
that
could
reasonably
be
expectedto
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
anon-standard
termination
or
by
the
PBGC,
and
no
event
or
circumstance
has
occurred
or
exists
that
could
reasonably
be
expected
to
cause
thePGBC
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,
the
exact
legal
name
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
aDomestic
Subsidiary
or
a
Foreign
Subsidiary,
and
which
Subsidiaries
are
Significant
Subsidiaries,
as
such
Schedule
6.13
is
updated
from
time
to
timein
accordance
with
Section
7.02
.
The
Borrower
has
no
equity
investments
in
any
corporation
or
entity
that
is
not
a
Subsidiary
other
than
thosespecifically
disclosed
in
Schedule
8.02
.6.14Margin 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
orcarrying
margin
stock
(within
the
meaning
of
Regulation
U
issued
by
the
FRB),
or
extending
credit
for
the
purpose
of
purchasing
or
carryingmargin
stock.
Following
the
application
of
the
proceeds
of
each
Borrowing
or
drawing
under
each
Letter
of
Credit,
not
more
than
25%
of
thevalue
of
the
assets
(either
of
the
Borrower
only
or
of
the
Borrower
and
its
Subsidiaries
on
a
consolidated
basis)
subject
to
the
provisions
ofSection
8.01
or
Section
8.05
or
subject
to
any
restriction
contained
in
any
agreement
or
instrument
between
the
Borrower
and
any
Lender
orany
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
InvestmentCompany
Act
of
1940.6.15
Disclosure . The
Borrower
has
disclosed
to
the
Administrative
Agent
and
the
Lenders
all
agreements,
instruments
and
corporate
orother
restrictions
to
which
it
or
any
of
its
Subsidiaries
is
subject,
and
all
other
matters
known
to
it,
that,
individually
or
in
the
aggregate,
couldreasonably
be
expected
to
result
in
a
Material
Adverse
Effect.
No
report,
financial
statement,
certificate
or
other
information
furnished
(whether
inwriting
or
orally)
by
or
on
behalf
of
any
Loan
Party
to
the
Administrative
Agent
or
any
Lender
in
connection
with
the
transactions
contemplated
herebyand
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
circumstancesunder
which
they
were
made,
not
misleading;
provided
that,
with
respect
to
projected
financial
information,
the
Borrower
represents
only
that
suchinformation
was
prepared
in
good
faith
based
upon
assumptions
believed
to
be
reasonable
at
the
time.6.16
Compliance with Laws . Each
of
the
Borrower
and
each
Subsidiary
is
in
compliance
in
all
material
respects
with
the
requirements
ofall
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
Lawor
order,
writ,
injunction
or
decree
is
being
contested
in
good
faith
by
appropriate
proceedings
diligently
conducted
or
(b)
the
failure
to
complytherewith,
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
ofsuch
items,
to
the
best
knowledge
of
Borrower,
conflicts
with
the
valid
trademark,
trade
name,
copyright,
patent,
patent
right
or
intangible
asset
of
anyother
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
Liabilitiesother
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
transactionscontemplated
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
individual
or
entity,
or
is
owned
or
controlled
by
any
individual
or
entity
(i)
with
whom
dealings
are
currentlyprohibited
by
any
Sanctions
(a
“
Sanctioned
Person
”)
or
(ii)
located,
organized
or
resident
in
a
Designated
Jurisdiction.6.21
Anti-Corruption Laws . The
Borrower
and
its
Subsidiaries
have
conducted
their
businesses
in
material
compliance
with
the
UnitedStates
Foreign
Corrupt
Practices
Act
of
1977,
the
UK
Bribery
Act
2010,
and
other
similar
anti-corruption
legislation
in
other
jurisdictions
and
haveinstituted
and
maintained
policies
and
procedures
designed
to
promote
and
achieve
compliance
with
such
laws.ARTICLE VII AFFIRMATIVE COVENANTSSo
long
as
any
Lender
shall
have
any
Commitment
hereunder,
any
Loan
or
other
Obligation
hereunder
shall
remain
unpaid
or
unsatisfied,
orany
Letter
of
Credit
shall
remain
outstanding,
the
Borrower
shall,
and
shall
(except
in
the
case
of
the
covenants
set
forth
in
Sections
7.01
,
7.02
,
7.03
or7.11
,)
cause
each
Subsidiary
to:7.1
Financial Statements . Deliver
to
the
Administrative
Agent
and
each
Lender,
in
form
and
detail
reasonably
satisfactory
to
theAdministrative
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,
consolidated
andconsolidating
balance
sheets
of
the
Borrower
and
its
Subsidiaries
as
at
the
end
of
such
fiscal
year,
and
the
related
consolidated
andconsolidating
statements
of
income
or
operations,
shareholders'
equity
and
cash
flows
for
such
fiscal
year,
setting
forth
in
each
case
incomparative
form
the
figures
for
the
previous
fiscal
year,
all
in
reasonable
detail
and
prepared
in
accordance
with
GAAP,
audited
andaccompanied
by
a
report
and
opinion
of
an
independent
certified
public
accountant
of
nationally
recognized
standing
reasonably
acceptable
tothe
Required
Lenders,
which
report
and
opinion
shall
be
prepared
in
accordance
with
generally
accepted
auditing
standards
and
shall
not
besubject
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
ofthe
Borrower,
consolidated
and
consolidating
balance
sheets
of
the
Borrower
and
its
Subsidiaries
as
at
the
end
of
such
fiscal
quarter,
and
therelated
consolidated
and
consolidating
statements
of
income
or
operations,
shareholders'
equity
and
cash
flows
for
such
fiscal
quarter
and
forthe
portion
of
the
Borrower's
fiscal
year
then
ended,
setting
forth
in
each
case
in
comparative
form
the
figures
for
the
corresponding
fiscalquarter
of
the
previous
fiscal
year
and
the
corresponding
portion
of
the
previous
fiscal
year,
all
in
reasonable
detail
and
certified
by
aResponsible
Officer
of
the
Borrower
as
fairly
presenting
the
financial
condition,
results
of
operations,
shareholders'
equity
and
cash
flows
of
theBorrower
and
its
Subsidiaries
in
accordance
with
GAAP,
subject
only
to
normal
year-end
audit
adjustments
and
the
absence
of
footnotes.As
to
any
information
contained
in
materials
furnished
pursuant
to
Section
7.02(d)
,
the
Borrower
shall
not
be
separately
required
to
furnish
suchinformation
under
clause
(a)
or
(b)
above,
but
the
foregoing
shall
not
be
in
derogation
of
the
obligation
of
the
Borrower
to
furnish
the
information
andmaterials
described
in
subsections
(a)
and
(b)
above
at
the
times
specified
therein.7.2
Certificates; Other Information . Deliver
to
the
Administrative
Agent
and
each
Lender,
in
form
and
detail
reasonably
satisfactory
tothe
Administrative
Agent
and
the
Required
Lenders
(it
being
agreed
that
with
respect
to
items
required
to
be
filed
with
the
SEC,
documents
satisfyingthe
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
certifiedpublic
accountants
certifying
such
financial
statements
and
stating
that
in
making
the
examination
necessary
therefor
no
knowledge
wasobtained
of
any
Default
under
the
financial
covenants
set
forth
herein
or,
if
any
such
Default
shall
exist,
stating
the
nature
and
status
of
suchevent;(b)
concurrently
with
the
delivery
of
the
financial
statements
referred
to
in
Sections
7.01(a
)
and
(b)
,
a
duly
completed
ComplianceCertificate
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
orrecommendations
submitted
to
the
board
ofdirectors
(or
the
audit
committee
of
the
board
of
directors)
of
the
Borrower
by
independent
accountants
in
connection
with
the
accounts
orbooks
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
communicationsent
to
the
stockholders
of
the
Borrower,
and
copies
of
all
annual,
regular,
periodic
and
special
reports
and
registration
statements
which
theBorrower
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
otherwiserequired
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
LoanParty
or
any
Subsidiary
thereof
pursuant
to
the
terms
of
any
indenture,
loan
or
credit
or
similar
agreement
and
not
otherwise
required
to
befurnished
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,
orcompliance
with
the
terms
of
the
Loan
Documents,
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
inmaterials
otherwise
filed
with
the
SEC)
may
be
delivered
electronically
and
if
so
delivered,
shall
be
deemed
to
have
been
delivered
on
the
date
(i)
onwhich
the
Borrower
posts
such
documents,
or
provides
a
link
thereto
on
the
Borrower's
website
on
the
Internet
at
the
website
address
listed
on
Schedule11.02
or
(ii)
on
which
such
documents
are
posted
on
the
Borrower's
behalf
on
an
Internet
or
intranet
website,
if
any,
to
which
each
Lender
and
theAdministrative
Agent
have
access
(whether
a
commercial,
third-party
website
or
whether
sponsored
by
the
Administrative
Agent);
provided
that:
(i)
theBorrower
shall
deliver
paper
copies
of
the
Compliance
Certificates
required
by
Section
7.02(b)
to
the
Administrative
Agent
upon
its
request
(or
uponthe
request
of
a
Lender
through
the
Administrative
Agent)
to
the
Borrower
to
deliver
such
paper
copies
and
(ii)
the
Borrower
shall
notify
theAdministrative
Agent
and
each
Lender
(by
facsimile
or
electronic
mail)
of
the
posting
of
any
such
documents
and
provide
to
the
Administrative
Agentby
electronic
mail
electronic
versions
(i.e.,
soft
copies)
of
such
documents.
The
Administrative
Agent
shall
have
no
obligation
to
request
the
delivery
ofor
to
maintain
paper
copies
of
the
documents
referred
to
above,
and
in
any
event
shall
have
no
responsibility
to
monitor
compliance
by
the
Borrowerwith
any
such
request
by
a
Lender
for
delivery,
and
each
Lender
shall
be
solely
responsible
for
requesting
delivery
to
it
or
maintaining
its
copies
ofsuch
documents. The
Borrower
hereby
acknowledges
that
(a)
the
Administrative
Agent
and/or
the
Arranger,
will
make
available
to
the
Lenders
and
the
L/CIssuers
materials
and/or
information
provided
by
or
on
behalf
of
the
Borrower
hereunder
(collectively,
"
Borrower
Materials"
)
by
posting
the
BorrowerMaterials
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
Subsidiariesor
any
of
their
respective
securities)
(each,
a
"
Public
Lender")
.
Accordingly,
the
Borrower
hereby
agrees
that
the
AdministrativeAgent
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
madeavailable
to
any
Public
Lender.7.3Notices . 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
or
S&P
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
theoccurrence
referred
to
therein
and
stating
what
action
the
Borrower
has
taken
and
proposes
to
take
with
respect
thereto.
Each
notice
pursuant
to
Section7.03(a
)
shall
describe
with
particularity
any
and
all
provisions
of
this
Agreement
and
any
other
Loan
Document
that
have
been
breached.7.4
Payment of Obligations . Pay
and
discharge
as
the
same
shall
become
due
and
payable,
all
its
material
obligations
and
materialliabilities
in
accordance
with
customary
practices
of
the
Borrower
and
its
Subsidiaries.7.5
Preservation of Existence, Etc. (a)
Preserve,
renew
and
maintain
in
full
force
and
effect
its
legal
existence
and
good
standing
under
theLaws
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
allrights,
privileges,
permits,
licenses
and
franchises
necessary
or
desirable
in
the
normal
conduct
of
its
business,
except
to
the
extent
that
failure
to
do
socould
not
reasonably
be
expected
to
have
a
Material
Adverse
Effect;
and
(c)
preserve
or
renew
all
of
its
registered
patents,
trademarks,
trade
names
andservice
marks,
the
non-preservation
of
which
could
reasonably
be
expected
to
have
a
Material
Adverse
Effect.7.6
Maintenance of Properties . (a)
Maintain,
preserve
and
protect
all
of
its
material
properties
and
equipment
necessary
in
the
operation
ofits
business
in
good
working
order
and
condition,
ordinary
wear
and
tear
excepted;
and
(b)
make
all
necessary
repairs
thereto
and
renewals
andreplacements
thereof
except
where
the
failure
to
do
so
could
not
reasonably
be
expected
to
have
a
Material
Adverse
Effect.7.7
Maintenance of Insurance . Maintain
with
financially
sound
and
reputable
insurance
companies,
insurance
with
respect
to
its
propertiesand
business
against
loss
or
damage
of
the
kinds
customarily
insured
against
by
Persons
engaged
in
the
same
or
similar
business,
of
such
types
and
insuch
amounts
as
are
customarily
carried
under
similar
circumstances
by
such
other
Persons,
none
of
which
insurance
shall
be
provided
by
anySubsidiary
or
any
other
Affiliate
of
the
Borrower
except
to
the
extentthat
any
such
Affiliate
has
reinsured
all
exposure
related
thereto
with
one
or
more
financially
sound
and
reputable
insurance
or
reinsurance
companiesnone
of
which
is
an
Affiliate
of
the
Borrower.7.8
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
notreasonably
be
expected
to
have
a
Material
Adverse
Effect.7.9
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
thecase
may
be;
and
(b)
maintain
such
books
of
record
and
account
in
material
conformity
with
all
applicable
requirements
of
any
GovernmentalAuthority
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
eachLender
to
visit
and
inspect
any
of
its
properties,
to
examine
its
corporate,
financial
and
operating
records,
and
make
copies
thereof
or
abstractstherefrom,
and
to
discuss
its
affairs,
finances
and
accounts
with
its
directors,
officers,
and
independent
public
accountants,
at
such
reasonable
timesduring
normal
business
hours
as
often
as
may
be
reasonably
desired,
and
(so
long
as
no
Event
of
Default
exists)
without
unreasonably
interfering
withbusiness
operations
of
the
Borrower
or
such
Subsidiary,
and
upon
reasonable
advance
notice
to
the
Borrower;
provided,
however
,
that
when
an
Eventof
Default
exists
the
Administrative
Agent
or
any
Lender
(or
any
of
their
respective
representatives
or
independent
contractors)
may
do
any
of
theforegoing
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
Credit
Extensions
worldwide
for
working
capital
and
capital
expenditure
purposes,settlement
of
put
obligations,
acquisitions
permitted
hereunder
and
other
lawful
purposes
not
in
contravention
of
any
Law
or
of
any
Loan
Document.7.12New Subsidiaries .(a)
Promptly
notify
the
Administrative
Agent
at
the
time
that
any
Domestic
Subsidiary
becomes
a
Significant
Subsidiary
(other
thanan
Excluded
Subsidiary)
or
any
Domestic
Subsidiary
is
acquired
that
constitutes
a
Significant
Subsidiary
(other
than
an
Excluded
Subsidiary)and
within
60
days
thereof
cause
to
be
delivered
to
Administrative
Agent
for
the
benefit
of
Administrative
Agent
and
the
Lenders
(A)
a
FacilityGuaranty
in
form
and
substance
satisfactory
to
the
Administrative
Agent
or
a
Guaranty
Joinder
Agreement,
in
each
case
executed
by
suchSignificant
Subsidiary,
(B)
an
opinion
of
counsel
to
such
Significant
Subsidiary
dated
as
of
the
date
of
delivery
of
the
Facility
Guaranty
orGuaranty
Joinder
Agreement
addressed
to
Administrative
Agent
and
the
Lenders,
in
form
and
substance
reasonably
acceptable
toAdministrative
Agent,
(C)
the
Organization
Documents
of
such
Significant
Subsidiary,
(D)
documents
of
the
types
referred
to
in
Sections5.01(a)(iii)
,
(iv)
,
and
(vi),
(E)
a
certificate
signed
by
a
Responsible
Officer
in
form
acceptable
to
the
Administrative
Agent
setting
forth
theamount
of
assets
and
revenues
of
each
of
the
Borrower
and
each
of
its
Domestic
Subsidiaries,
and
(F)
any
updates
or
supplements
as
necessaryto
ensure
that
Schedule
6.13
is
accurate
and
complete
as
of
the
date
of
such
financial
statements;
provided
,
however
,
that
such
FacilityGuaranty
and
opinion
shall
not
be
required
with
respect
to
a
Domestic
Subsidiary
that
(1)
is
intended
to
be
a
SignificantSubsidiary
only
temporarily
as
part
of
a
restructuring
plan
or
acquisition
plan
otherwise
permitted
by
this
Agreement,
and
(2)
in
fact
ceases
tobe
a
Significant
Subsidiary
in
accordance
with
such
plan
prior
to
the
end
of
the
60-day
period
described
above;
and
provided
,
further
,
that
noExcluded
Subsidiary
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
DomesticSubsidiaries
(other
than
Excluded
Subsidiaries)
that
are
not
Guarantors
exceeds
in
the
aggregate
10%
of
the
total
assets
of
the
Borrower
(on
aconsolidated
basis
with
its
Domestic
Subsidiaries),
the
Borrower
shall
promptly
cause
one
or
more
additional
Domestic
Subsidiaries
that
do
notconstitute
Significant
Subsidiaries
to
become
a
Guarantor
in
order
that
after
giving
effect
to
such
additional
Guarantors,
the
sum
of
the
totalassets
(on
a
consolidated
basis
with
their
respective
Domestic
Subsidiaries)
of
Domestic
Subsidiaries
(other
than
Excluded
Subsidiaries)
thatare
not
Guarantors
does
not
exceed
in
the
aggregate
10%
of
the
total
assets
of
the
Borrower
(on
a
consolidated
basis
with
its
DomesticSubsidiaries).7.13
Compliance with Agreements . Promptly
and
fully
comply
with
all
Contractual
Obligations
to
which
any
one
or
more
of
them
is
aparty,
except
for
any
such
Contractual
Obligations
(a)
the
performance
of
which
would
cause
a
Default,
(b)
then
being
contested
by
any
of
them
ingood
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
incompliance
in
all
material
respects
with
the
applicable
provisions
of
ERISA,
the
Code
and
other
federal
or
state
law;
(b)
cause
each
Plan
that
isqualified
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.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
promoteand
achieve
compliance
with
such
laws. ARTICLE VIII NEGATIVE COVENANTSSo
long
as
any
Lender
shall
have
any
Commitment
hereunder,
any
Loan
or
other
Obligation
hereunder
shall
remain
unpaid
or
unsatisfied,
orany
Letter
of
Credit
shall
remain
outstanding,
the
Borrower
shall
not,
nor
shall
it
permit
any
Subsidiary
to,
directly
or
indirectly:8.1
Liens . Create,
incur,
assume
or
suffer
to
exist
any
Lien
upon
any
of
its
property,
assets
or
revenues,
whether
now
owned
or
hereafteracquired,
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
propertycovered
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
diligentlyconducted,
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
businesswhich
are
not
overdue
for
a
period
of
more
than
30
days
or
which
are
being
contested
in
good
faith
and
by
appropriate
proceedings
diligentlyconducted,
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
andother
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,
suretybonds
(other
than
bonds
related
to
judgments
or
litigation,
except
to
the
extent
permitted
in
clause
(h)
below),
performance
bonds
and
otherobligations
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
notsubstantial
in
amount,
and
which
do
not
in
any
case
materially
detract
from
the
value
of
the
property
subject
thereto
or
materially
interfere
withthe
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
securingappeal
or
other
surety
bonds
related
to
such
judgments
or
posted
as
a
condition
(under
applicable
Law)
to
maintaining
a
lawsuit
otherwisepermitted
by
this
Agreement;(i)
Liens
securing
Indebtedness
permitted
under
Section
8.03(d);
provided
that
(i)
such
Liens
do
not
at
any
time
encumber
anyproperty
other
than
the
property
financed
by
such
Indebtedness
and
(ii)
the
Indebtedness
secured
thereby
does
not
exceed
the
cost
or
fair
marketvalue,
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)
Liens
on
the
property
financed
under
the
Real
Estate
Financing
Facilities,
which
Liens
secure
such
facility
or
Liens
permittedunder
transactions
permitted
under
Section
8.11
;(l)
Liens
(including
title
retention
arrangements)
arising
in
the
ordinary
course
of
business
on
inventory
of
any
Subsidiary,
whichLiens
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
Acquisitionpermitted
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
suchLien
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
Borroweror
any
of
its
Subsidiaries;
and(q)
Liens
not
otherwise
permitted
under
this
Section
8.01
;
provided
,
that
neither
(a)
the
aggregate
principal
amount
of
allIndebtedness
secured
by
such
Liens
nor
(b)
the
aggregate
fair
market
value
of
the
assets
subject
to
such
Liens
exceeds
$50,000,000
at
any
onetime.8.2Investments . 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
andanalogous
ordinary
business
purposes,
provided
that
such
advances
are
made
in
the
ordinary
course
of
business;(c)
Investments
of
the
Borrower
or
any
Subsidiary
in
the
Borrower
or
in
a
Domestic
Subsidiary;
provided
that
if
the
investor
is
theBorrower
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
oftrade
credit
in
the
ordinary
course
of
business,
and
Investments
received
in
satisfaction
or
partial
satisfaction
thereof
from
financially
troubledaccount
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
athird
party
vendor
(including
trade
indebtedness
through
financial
intermediaries)
arising
in
the
ordinary
course
of
business
and
(iii)
Guaranteesofpayment
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
intermediaryor
a
third
party
vendor
and
arising
in
the
ordinary
course
of
business;
provided
that
the
aggregate
amount
of
such
Guarantees
does
not
exceed
atany
time
$200,000,000;(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)
$500,000,000
plus
(y)35%
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
tothe
date
of
determination
plus
(z)
35%
of
the
proceeds
of
the
issuance
of
capital
stock
of
Borrower
after
the
Closing
Date;(j)Investments
by
a
Foreign
Subsidiary
in
another
Foreign
Subsidiary;(k)Acquisitions
permitted
under
Section
8.12
;
and(l)
other
Investments
in
addition
to
those
specified
in
this
Section
8.02
in
Persons
with
whom
the
Borrower
or
a
Subsidiary
areengaged
in
a
business
relationship
or
which
provide
products
or
services
to
Borrower
or
a
Subsidiary,
so
long
as
the
aggregate
Investmentspursuant
to
this
clause
(l)
do
not
exceed,
in
the
aggregate
at
any
one
time,
$300,000,000. 8.3Indebtedness . Create,
incur,
assume
or
suffer
to
exist
any
Indebtedness,except:(a)
Indebtedness
under
the
Loan
Documents;(b)
Indebtedness
outstanding
on
the
date
hereof
and
listed
on
Schedule
8.03
and
any
refinancings,
refundings,
renewals
or
extensionsthereof,
provided
that
the
amount
of
such
Indebtedness
is
not
increased
at
the
time
of
such
refinancing,
refunding,
renewal
or
extension
exceptby
an
amount,
subject
to
subsection
(h)
below,
equal
to
a
reasonable
premium
or
other
reasonable
amount
paid,
and
fees
and
expensesreasonably
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
outstandingprincipal
amount
at
any
time
of$200,000,000,
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
receivableowing
to
the
Foreign
Subsidiaries
that
are
sold,
transferred
or
assigned
shall
not
exceed
the
equivalent
of
EUR
750,000,000
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
ofdetermination;(g)
Indebtedness
of
a
Person,
or
in
respect
of
assets,
acquired
pursuant
to
an
Acquisition
permitted
under
Section
8.12
and
existing
atthe
time
of
such
Acquisition,
provided
that
(i)
such
Indebtedness
was
not
incurred
in
contemplation
of
such
Acquisition
and
(ii)
suchIndebtedness
is
not
outstanding
for
more
than
one
hundred
eighty
(180)
days
after
the
date
of
such
Acquisition;
and(h)
Other
Indebtedness
as
long
as
after
giving
effect
to
the
incurrence
thereof,
the
Borrower
will
be
in
pro
forma
compliance
withSection
8.13(a)
.8.4
Fundamental Changes . Merge,
dissolve,
liquidate,
consolidate
with
or
into
another
Person,
or
Dispose
of
(whether
in
one
transactionor
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,
except
that,
solong
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
joint
venture,
partnership
or
other
Person,
so
long
as
such
joint
venture,
partnership
andother
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
shall
(prior
to
or
simultaneously
withsuch
merger)
deliver
to
the
Administrative
Agent
(1)
a
Facility
Guaranty
and
(2)
all
other
documents
required
of
Significant
Subsidiariespursuant
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
toa
Subsidiary;
provided
that
(i)
if
the
transferor
in
such
a
transaction
is
a
wholly-owned
Subsidiary,
then
the
transferee
must
either
be
theBorrower
or
a
wholly-owned
Subsidiary
and
(ii)
if
the
transferor
in
such
a
transaction
is
a
Guarantor,
then
the
transferee
must
either
be
theBorrower
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
SpecifiedSubsidiary,
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
ormore
Subsidiaries,
during
a
fiscal
year
so
long
as
the
aggregate
book
value
of
the
Subsidiaries
liquidated
or
dissolved
or
assets
or
shares
soldduring
such
fiscal
year
does
not
exceed
$100,000,000.8.5
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
ofsimilar
replacement
property
or
(ii)
the
proceeds
of
such
Disposition
are
reasonably
promptly
applied
to
the
purchase
price
of
such
replacementproperty
or
(iii)
the
Borrower
or
any
Subsidiary
determines
in
good
faith
that
the
failure
to
replace
such
equipment
will
not
be
detrimental
tothe
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)
ifthe
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;(e)Dispositions
permitted
by
Section
8.04
and
Section
8.11(c)
;(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
ofsuch
Disposition,
no
Default
shall
exist
or
would
result
from
such
Disposition
and
(ii)
the
aggregate
book
value
of
all
property
Disposed
of
inreliance
on
this
clause
(g)
in
any
fiscal
year
shall
not
exceed
$75,000,000;Notwithstanding
anything
herein
to
the
contrary,
any
Disposition
pursuant
to
clauses
(a)
through(d)
shall
be
for
fair
market
value.8.6
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
commonstock
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
moreseries
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
ofany
provision
of
Section
8.13
;(d)
the
Borrower
may
purchase
shares
of
its
common
stock
for
the
purpose
of
making
required
contributions
to,
or
requireddistributions
under,
its
employee
benefit
plans
so
long
as
the
aggregate
dollar
amount
spent
for
such
stock
in
any
fiscal
year
of
Borrower
doesnot
exceed
$20,000,000;
and (e)
the
Borrower
may
repurchase
Convertible
Debentures,
whether
pursuant
to
the
exercise
of
the
Debenture
Put
Option
by
theholder
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
inSection
8.03
.8.7
Change in Nature of Business . Engage
in
any
material
line
of
business
substantially
different
from
those
lines
of
business
conductedby
the
Borrower
and
its
Subsidiaries
on
the
date
hereof
or
any
business
substantially
related
or
incidental
thereto.8.8
Transactions with Affiliates . Enter
into
any
transaction
of
any
kind
with
any
Affiliate
of
the
Borrower,
whether
or
not
in
the
ordinarycourse
of
business,
other
than
on
fair
and
reasonable
terms
substantially
as
favorable
to
the
Borrower
or
such
Subsidiary
as
would
be
obtainable
by
theBorrower
or
such
Subsidiary
at
the
time
in
a
comparable
arm's
length
transaction
with
a
Person
other
than
an
Affiliate;
provided
that
the
foregoingrestriction
shall
not
apply
to
transactions
(x)
between
or
among
the
Borrower
and
any
Guarantor
or
between
and
among
any
Guarantors
or
(y)
on
termsthat
satisfy
Section
482
of
the
Code
and
the
Treasury
Regulations
thereunder.8.9
Burdensome Agreements . Enter
into
any
material
Contractual
Obligation
(other
than
this
Agreement
or
any
other
Loan
Document)
thatlimits
the
ability
(i)
of
any
Subsidiary
to
make
Restricted
Payments
to
the
Borrower
or
any
Guarantor
or
to
otherwise
transfer
property
to
the
Borroweror
any
Guarantor
or
(ii)
of
any
Subsidiary
to
Guarantee
the
Indebtedness
of
the
Borrower.8.10
Use of Proceeds . Use
the
proceeds
of
any
Credit
Extension,
whether
directly
or
indirectly,
and
whether
immediately,
incidentally
orultimately,
in
any
manner
than
might
cause
the
Credit
Extension
or
the
use
of
such
proceeds
to
violate
Regulation
U
of
the
FRB,
in
each
case
as
ineffect
on
the
date
or
dates
of
such
Credit
Extension
and
such
use
of
proceeds.8.11
Lease Obligations . Create
or
suffer
to
exist
any
obligations
for
the
payment
of
rent
for
any
property
under
lease
or
agreement
to
lease,except:(a)
leases
in
existence
on
the
date
hereof,
including
the
Real
Estate
Financing
Facilities
and
any
renewal,
extension
or
refinancingthereof,(b)
leases
entered
into
or
assumed
by
Borrower
or
any
Subsidiary
after
the
date
hereof
in
the
ordinary
course
of
business;
and(c)
sale
and
leaseback
transactions
to
the
extent
not
prohibited
by
any
other
Contractual
Obligation.8.12
Acquisitions . Acquire
all
or
any
part
of
the
assets
of,
or
equity
interest
in,
any
Person
unless
(a)
the
Person
whose
equity
interests
orassets
are
being
acquired
is
in
the
same
or
similar
line
or
lines
of
business
as
that
engaged
in
by
Borrower
and
its
Subsidiaries,
(b)
no
Default
occurs
oris
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
FormaBasis
after
giving
effect
to
such
Acquisition.8.13Financial Covenants .(a)
Consolidated
Debt-to-Capitalization
Ratio
.
Permit
the
Consolidated
Debt-to-Capitalization
Ratio,
as
of
the
last
day
of
each
fiscalquarter
of
the
Borrower,
to
be
greater
than
0.40
to
1.0.(b)
Consolidated
Interest
Coverage
Ratio
.
Permit
the
Consolidated
Interest
Coverage
Ratio,
as
of
the
last
day
of
each
fiscal
quarterof
the
Borrower,
to
be
less
than
3.00
to
1.00.(c)
Adjustment
for
Currency
Translation
Adjustments
in
the
Calculation
of
Financial
Covenants
.
The
effect
of
currency
translationadjustments
resulting
from
any
change
in
currency
exchange
rates
occurring
after
July
31,
2015
will
be
excluded
from
the
calculation
of
theConsolidated
Debt-to-Capitalization
Ratio. 8.14
Off-Balance Sheet Liabilities . Create,
incur,
assume
or
suffer
to
exist
any
Off-Balance
Sheet
Liabilities,
except:(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
Credit
Extension,
or
lend,
contribute
or
otherwise
make
available
suchproceeds
to
any
Subsidiary,
joint
venture
partner
or
other
individual
or
entity,
to
fund
any
activities
of
or
business
with
any
individual
or
entity,
or
inany
country
or
territory,
that,
at
the
time
of
such
funding,
is
a
Sanctioned
Person
or
a
Designated
Jurisdiction,
or
in
anyother
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,
L/C
Issuer,
Swing
Line
Lender,
or
otherwise)
of
Sanctions.8.16
Anti-Corruption Laws . Directly
or
indirectly
use
the
proceeds
of
any
Credit
Extension
for
any
purpose
which
would
breach
theUnited
States
Foreign
Corrupt
Practices
Act
of
1977,
the
UK
Bribery
Act
2010,
or
would
create
a
material
breach
of
other
similar
anti-corruptionlegislation
in
other
jurisdictions.ARTICLE IXEVENTS OF DEFAULT AND REMEDIES9.1
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
currencyrequired
hereunder,
any
amount
of
principal
of
any
Loan
or
any
L/C
Obligation,
or
(ii)
within
three
days
after
the
same
becomes
due,
and
in
thecurrency
required
hereunder,
any
interest
on
any
Loan
or
on
any
L/C
Obligation,
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
onbehalf
of
the
Borrower
or
any
other
Loan
Party
herein,
in
any
other
Loan
Document,
or
in
any
document
delivered
in
connection
herewith
ortherewith
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
otherwise)
in
respect
of
any
Indebtedness
or
Guarantee
(other
than
Indebtedness
hereunder
andIndebtedness
under
Swap
Contracts)
having
an
aggregate
principal
amount
of
more
than
the
Threshold
Amount,
or
(B)
fails
to
observe
orperform
any
other
agreement
or
condition
relating
to
any
such
Indebtedness
or
Guarantee
or
contained
in
any
instrument
or
agreementevidencing,
securing
or
relating
thereto,
or
any
other
event
occurs,
the
effect
of
which
default
or
other
event
is
to
cause,
or
to
permit
the
holderor
holders
of
such
Indebtedness
or
the
beneficiary
or
beneficiaries
of
such
Guarantee
(or
a
trustee
or
agent
on
behalf
of
such
holder
or
holdersor
beneficiary
or
beneficiaries)
to
cause,
with
the
giving
of
notice
if
required,
such
Indebtedness
to
be
demanded
or
to
become
due
or
to
berepurchased,
prepaid,
defeased
or
redeemed
(automatically
or
otherwise),
or
an
offer
to
repurchase,
prepay,
defease
or
redeem
suchIndebtedness
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
sodefined)
and,
in
either
event,
the
Swap
Termination
Value
owed
by
the
Borrower
or
such
Subsidiary
as
a
result
thereof
is
greater
than
theThreshold
Amount;
(iii)
there
occurs
a
Termination
Event
(as
defined
in
the
Transfer
and
Administration
Agreement
identified
in
the
definitionof
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
ofdefault
is
not
cured
or
waived
within
any
applicable
grace
period;
or
(v)
there
occurs
any
event
of
default
under
any
Real
Estate
FinancingFacility
which
is
not
cured
or
waived
within
any
applicable
grace
period.(f)
Insolvency
Proceedings,
Etc
.
Any
Loan
Party
or
any
of
its
Subsidiaries
institutes
or
consents
to
the
institution
of
any
proceedingunder
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
theappointment
continues
undischarged
or
unstayed
for
60
calendar
days;
or
any
proceeding
under
any
Debtor
Relief
Law
relating
to
any
suchPerson
or
to
all
or
any
material
part
of
its
property
is
instituted
without
the
consent
of
such
Person
and
continues
undismissed
or
unstayed
for60
calendar
days,
or
an
order
for
relief
is
entered
in
any
such
proceeding;
provided,
however
,
that
if
a
Foreign
Subsidiary
is
being
liquidated
ina
transaction
otherwise
permitted
by
this
Agreement
and
not
involving
(i)
the
bankruptcy,
insolvency,
or
any
failure
to
pay
obligations
of
suchSubsidiary,
the
Borrower
or
any
other
Subsidiary,
(ii)
the
application
of
any
Debtor
Relief
Law,
or
(iii)
any
claim
of
any
creditor,
and
ifapplicable
foreign
Law
requires
the
appointment
of
a
liquidator
to
accomplish
such
liquidation
in
the
jurisdiction
where
such
ForeignSubsidiary
is
organized,
then
the
mere
appointment
and
operation
of
a
liquidator
for
such
purpose
in
such
circumstances
shall
not
constitute
anEvent
of
Default
under
this
clause
(f);
or(g)
Inability
to
Pay
Debts;
Attachment
.
(i)
The
Borrower
or
any
Subsidiary
becomes
unable
or
admits
in
writing
its
inability
or
failsgenerally
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
ofany
such
Person
and
is
not
released,
vacated
or
fully
bonded
within
30
days
after
its
issue
or
levy;
or(h)
Judgments
.
There
is
entered
against
the
Borrower
or
any
Subsidiary
(i)
a
final
judgment
or
order
for
the
payment
of
money
in
anaggregate
amount
exceeding
the
Threshold
Amount
(to
the
extent
not
covered
by
insurance
provided
by
a
Person
described
in
Section
7.07
asto
which
the
insurer
(and
any
insurance
or
reinsurance
company
reinsuring
any
such
exposure)
does
not
dispute
coverage),
or
(ii)
any
one
ormore
non-monetary
final
judgments
that
have,
or
could
reasonably
be
expected
to
have,
individually
or
in
the
aggregate,
a
Material
AdverseEffectand,
in
either
case,
(A)
enforcement
proceedings
are
commenced
by
any
creditor
upon
such
judgment
or
order,
or
(B)
there
is
a
period
of
30consecutive
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
reasonablybe
expected
to
result
in
liability
of
the
Borrower
under
Title
IV
of
ERISA
to
the
Pension
Plan,
Multiemployer
Plan
or
the
PBGC
in
anaggregate
amount
in
excess
of
the
Threshold
Amount,
or
(ii)
the
Borrower
or
any
ERISA
Affiliate
fails
to
pay
when
due,
after
the
expiration
ofany
applicable
grace
period,
any
installment
payment
with
respect
to
its
withdrawal
liability
under
Section
4201
of
ERISA
under
aMultiemployer
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
asexpressly
permitted
hereunder
or
satisfaction
in
full
of
all
the
Obligations,
ceases
to
be
in
full
force
and
effect;
or
any
Loan
Party
or
any
otherPerson
contests
in
any
manner
the
validity
or
enforceability
of
any
Loan
Document;
or
any
Loan
Party
denies
that
it
has
any
or
further
liabilityor
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.9.2
Remedies Upon Event of Default . If
any
Event
of
Default
occurs
and
is
continuing,
the
Administrative
Agent
shall,
at
the
request
of,
ormay,
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
and
any
obligation
of
the
L/C
Issuers
to
make
L/C
Credit
Extensions
to
beterminated,
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
orother
notice
of
any
kind,
all
of
which
are
hereby
expressly
waived
by
the
Borrower;(c)
require
that
the
Borrower
Cash
Collateralize
the
L/C
Obligations
(in
an
amount
equal
to
the
Dollar
Equivalent
OutstandingAmount
thereof,
as
such
amount
may
vary
from
time
to
time);
and(d)
exercise
on
behalf
of
itself
and
the
Lenders
all
rights
and
remedies
available
to
it
and
the
Lenders
under
the
Loan
Documents
orapplicable
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
BankruptcyCode
of
the
United
States,
the
obligation
of
each
Lender
to
make
Loans
and
any
obligation
of
the
L/C
Issuers
to
make
L/C
Credit
Extensions
shallautomatically
terminate,
the
unpaid
principal
amount
of
all
outstanding
Loans
and
all
interest
and
other
amounts
asaforesaid
shall
automatically
become
due
and
payable,
and
the
obligation
of
the
Borrower
to
Cash
Collateralize
the
L/C
Obligations
as
aforesaid
shallautomatically
become
effective,
in
each
case
without
further
act
of
the
Administrative
Agent
or
any
Lender.9.3
Application of Funds . After
the
exercise
of
remedies
provided
for
in
Section
9.02
(or
after
the
Loans
have
automatically
becomeimmediately
due
and
payable
and
the
L/C
Obligations
have
automatically
been
required
to
be
Cash
Collateralized
as
set
forth
in
the
proviso
to
Section9.02)
,
any
amounts
received
on
account
of
the
Obligations
shall
be
applied
by
the
Administrative
Agent
in
the
following
order:First
,
to
payment
of
that
portion
of
the
Obligations
constituting
fees,
indemnities,
expenses
and
other
amounts
(including
Attorney
Costs
andamounts
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,
interest
and
Letterof
Credit
Fees)
payable
to
the
Lenders
and
the
L/C
Issuers
(including
Attorney
Costs
and
amounts
payable
under
Article
III)
,
ratably
among
them
inproportion
to
the
respective
amounts
described
in
this
clause
Second
payable
to
them;Third
,
to
payment
of
that
portion
of
the
Obligations
constituting
accrued
and
unpaid
Letter
of
Credit
Fees
and
interest
on
the
Loans
and
L/CBorrowings
and
other
Obligations,
ratably
among
the
Lenders
and
L/C
Issuers
in
proportion
to
the
respective
amounts
described
in
this
clause
Thirdpayable
to
them;Fourth
,
to
payment
of
that
portion
of
the
Obligations
constituting
unpaid
principal
of
the
Loans
and
L/C
Borrowings,
ratably
among
theLenders
and
L/C
Issuers
in
proportion
to
the
respective
amounts
described
in
this
clause
Fourth
held
by
them;Fifth
,
to
the
Administrative
Agent
for
the
account
of
the
L/C
Issuers,
pro
rata,
to
Cash
Collateralize
that
portion
of
L/C
Obligations
comprisedof
the
aggregate
undrawn
amount
of
Letters
of
Credit,
to
the
extent
not
otherwise
Cash
Collateralized
by
the
Borrower
pursuant
to
Section
2.03
or
2.15;
andSixth
,
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;
andLast
,
the
balance,
if
any,
after
all
of
the
Obligations
have
been
indefeasibly
paid
in
full,
to
the
Borrower
or
as
otherwise
required
by
Law.Subject
to
Section
2.03(c)
and
2.15
,
amounts
used
to
Cash
Collateralize
the
aggregate
undrawn
amount
of
Letters
of
Credit
pursuant
to
clauseFifth
above
shall
be
applied
to
satisfy
drawings
under
such
Letters
of
Credit
as
they
occur.
If
any
amount
remains
on
deposit
as
Cash
Collateral
after
allLetters
of
Credit
have
either
been
fully
drawn
or
expired,
such
remaining
amount
shall
be
applied
to
the
other
Obligations,
if
any,
in
the
order
set
forthabove.ARTICLE X ADMINISTRATIVE AGENT10.1
Appointment and Authority . Each
of
the
Lenders
and
each
L/C
Issuer
hereby
irrevocably
appoints
Bank
of
America
to
act
on
itsbehalf
as
the
Administrative
Agent
hereunder
and
under
the
other
Loan
Documents
and
authorizes
the
Administrative
Agent
to
take
such
actions
on
itsbehalf
and
to
exercise
such
powers
as
are
delegated
to
the
Administrative
Agent
by
the
terms
hereof
or
thereof,
together
with
such
actions
and
powersas
are
reasonably
incidental
thereto.
The
provisions
of
this
Article
are
solely
for
the
benefit
of
the
Administrative
Agent,
the
Lenders
and
the
L/C Issuers,
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
andagreed
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
isnot
intended
to
connote
any
fiduciary
or
other
implied
(or
express)
obligations
arising
under
agency
doctrine
of
any
applicable
Law.
Instead
such
termis
used
as
a
matter
of
market
custom,
and
is
intended
to
create
or
reflect
only
an
administrative
relationship
between
contracting
parties.10.2
Rights as a Lender . The
Person
serving
as
the
Administrative
Agent
hereunder
shall
have
the
same
rights
and
powers
in
its
capacity
asa
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
itsindividual
capacity.
Such
Person
and
its
Affiliates
may
accept
deposits
from,
lend
money
to,
act
as
the
financial
advisor
or
in
any
other
advisorycapacity
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
theAdministrative
Agent
hereunder
and
without
any
duty
to
account
therefor
to
the
Lenders.10.3
Exculpatory Provisions . The
Administrative
Agent
shall
not
have
any
duties
or
obligations
except
those
expressly
set
forth
herein
andin
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
andpowers
expressly
contemplated
hereby
or
by
the
other
Loan
Documents
that
the
Administrative
Agent
is
required
to
exercise
as
directed
inwriting
by
the
Required
Lenders
(or
such
other
number
or
percentage
of
the
Lenders
as
shall
be
expressly
provided
for
herein
or
in
the
otherLoan
Documents),
provided
that
the
Administrative
Agent
shall
not
be
required
to
take
any
action
that,
in
its
opinion
or
the
opinion
of
itscounsel,
may
expose
the
Administrative
Agent
to
liability
or
that
is
contrary
to
any
Loan
Document
or
applicable
law,
including
for
theavoidance
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
liablefor
the
failure
to
disclose,
any
informationrelating
to
any
of
the
Borrower
or
any
of
its
respective
Affiliates
that
is
communicated
to
or
obtained
by
the
Person
serving
as
theAdministrative
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
RequiredLenders
(or
such
other
number
or
percentage
of
the
Lenders
as
shall
be
necessary,
or
as
the
Administrative
Agent
shall
believe
in
good
faith
shall
benecessary,
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
asdetermined
by
a
court
of
competent
jurisdiction
by
a
final
and
nonappealable
judgment.
The
Administrative
Agent
shall
be
deemed
not
to
haveknowledge
of
any
Default
unless
and
until
notice
describing
such
Default
is
given
to
the
Administrative
Agent
by
the
Borrower,
a
Lender
or
an
L/CIssuer.The
Administrative
Agent
shall
not
be
responsible
for
or
have
any
duty
to
ascertain
or
inquire
into
(i)
any
statement,
warranty
or
representationmade
in
or
in
connection
with
this
Agreement
or
any
other
Loan
Document,
(ii)
the
contents
of
any
certificate,
report
or
other
document
deliveredhereunder
or
thereunder
or
in
connection
herewith
or
therewith,
(iii)
the
performance
or
observance
of
any
of
the
covenants,
agreements
or
other
termsor
conditions
set
forth
herein
or
therein
or
the
occurrence
of
any
Default,
(iv)
the
validity,
enforceability,
effectiveness
or
genuineness
of
thisAgreement,
any
other
Loan
Document
or
any
other
agreement,
instrument
or
document
or
(v)
the
satisfaction
of
any
condition
set
forth
in
Article
V
orelsewhere
herein,
other
than
to
confirm
receipt
of
items
expressly
required
to
be
delivered
to
the
Administrative
Agent.10.4
Reliance by Administrative Agent . The
Administrative
Agent
shall
be
entitled
to
rely
upon,
and
shall
not
incur
any
liability
forrelying
upon,
any
notice,
request,
certificate,
consent,
statement,
instrument,
document
or
other
writing
(including
any
electronic
message,
Internet
orintranet
website
posting
or
other
distribution)
believed
by
it
to
be
genuine
and
to
have
been
signed,
sent
or
otherwise
authenticated
by
the
properPerson.
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
theproper
Person,
and
shall
not
incur
any
liability
for
relying
thereon.
In
determining
compliance
with
any
condition
hereunder
to
the
making
of
a
Loan,
orthe
issuance
of
a
Letter
of
Credit,
that
by
its
terms
must
be
fulfilled
to
the
satisfaction
of
a
Lender
or
an
L/C
Issuer,
the
Administrative
Agent
maypresume
that
such
condition
is
satisfactory
to
such
Lender
or
an
L/C
Issuer
unless
the
Administrative
Agent
shall
have
received
notice
to
the
contraryfrom
such
Lender
or
such
L/C
Issuer
prior
to
the
making
of
such
Loan
or
the
issuance
of
such
Letter
of
Credit.
The
Administrative
Agent
may
consultwith
legal
counsel
(who
may
be
counsel
for
the
Borrower),
independent
accountants
and
other
experts
selected
by
it,
and
shall
not
be
liable
for
anyaction
taken
or
not
taken
by
it
in
accordance
with
the
advice
of
any
such
counsel,
accountants
or
experts. 10.5
Delegation of Duties . The
Administrative
Agent
may
perform
any
and
all
of
its
duties
and
exercise
its
rights
and
powers
hereunder
orunder
any
other
Loan
Document
by
or
through
any
one
or
more
sub
agents
appointed
by
the
Administrative
Agent.
The
Administrative
Agent
and
anysuch
sub
agent
may
perform
any
and
all
of
its
duties
and
exercise
its
rights
and
powers
by
or
through
their
respective
Related
Parties.
The
exculpatoryprovisions
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
shallapply
to
their
respective
activities
in
connection
with
the
syndication
of
the
credit
facilities
provided
for
herein
as
well
as
activities
as
AdministrativeAgent.
The
Administrative
Agent
shall
not
be
responsible
for
thenegligence
or
misconduct
of
any
sub-agents
except
to
the
extent
that
a
court
of
competent
jurisdiction
determines
in
a
final
and
nonappealable
judgmentthat
the
Administrative
Agent
acted
with
gross
negligence
or
willful
misconduct
in
the
selection
of
such
sub-agents.10.6
Resignation of Administrative Agent . (a)
The
Administrative
Agent
may
at
any
time
give
notice
of
its
resignation
to
the
Lenders,
theL/C
Issuers
and
the
Borrower.
Upon
receipt
of
any
such
notice
of
resignation,
the
Required
Lenders
shall
have
the
right,
in
consultation
with
theBorrower,
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
UnitedStates.
If
no
such
successor
shall
have
been
so
appointed
by
the
Required
Lenders
and
shall
have
accepted
such
appointment
within
30
days
after
theretiring
Administrative
Agent
gives
notice
of
its
resignation
(or
such
earlier
day
as
shall
be
agreed
by
the
Required
Lenders)
(the
"
ResignationEffective
Date
"),
then
the
retiring
Administrative
Agent
may
(but
shall
not
be
obligated
to)
on
behalf
of
the
Lenders
and
the
L/C
Issuers,
appoint
asuccessor
Administrative
Agent
meeting
the
qualifications
set
forth
above,
provided
that
in
no
event
shall
any
such
successor
Administrative
Agent
bea
Defaulting
Lender.
Whether
or
not
a
successor
has
been
appointed,
such
resignation
shall
become
effective
in
accordance
with
such
notice
on
theResignation
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
suchPerson
remove
such
Person
as
Administrative
Agent
and,
in
consultation
with
the
Borrower,
appoint
a
successor.
If
no
such
successor
shall
have
beenso
appointed
by
the
Required
Lenders
and
shall
have
accepted
such
appointment
within
30
days
(or
such
earlier
day
as
shall
be
agreed
by
the
RequiredLenders)
(the
"
Removal
Effective
Date
"),
then
such
removal
shall
nonetheless
become
effective
in
accordance
with
such
notice
on
the
RemovalEffective
Date.(c)
With
effect
from
the
Resignation
Effective
Date
or
the
Removal
Effective
Date
(as
applicable)
(1)
the
retiring
or
removedAdministrative
Agent
shall
be
discharged
from
its
duties
and
obligations
hereunder
and
under
the
other
Loan
Documents
and
(2)
except
for
anyindemnity
payments
or
other
amounts
then
owed
to
the
retiring
or
removed
Administrative
Agent,
all
payments,
communications
and
determinationsprovided
to
be
made
by,
to
or
through
the
Administrative
Agent
shall
instead
be
made
by
or
to
each
Lender
and
each
L/C
Issuer
directly,
until
suchtime,
if
any,
as
the
Required
Lenders
appoint
a
successor
Administrative
Agent
as
provided
for
above.
Upon
the
acceptance
of
a
successor'sappointment
as
Administrative
Agent
hereunder,
such
successor
shall
succeed
to
and
become
vested
with
all
of
the
rights,
powers,
privileges
and
dutiesof
the
retiring
(or
removed)
Administrative
Agent
(other
than
as
provided
in
Section
3.01(g)
and
other
than
any
rights
to
indemnity
payments
or
otheramounts
owed
to
the
retiring
or
removed
Administrative
Agent
as
of
the
Resignation
Effective
Date
or
the
Removal
Effective
Date,
as
applicable),
andthe
retiring
or
removed
Administrative
Agent
shall
be
discharged
from
all
of
its
duties
and
obligations
hereunder
or
under
the
other
Loan
Documents
(ifnot
already
discharged
therefrom
as
provided
above
in
this
Section)
.
The
fees
payable
by
the
Borrower
to
a
successor
Administrative
Agent
shall
bethe
same
as
those
payable
to
its
predecessor
unless
otherwise
agreed
between
the
Borrower
and
such
successor.
After
the
retiring
or
removedAdministrative
Agent's
resignation
or
removal
hereunder
and
under
the
other
Loan
Documents,
the
provisions
of
this
Article
and
Section
11.04
shallcontinue
in
effect
for
the
benefit
of
such
retiring
or
removed
Administrative
Agent,
its
sub
agents
and
their
respective
Related
Parties
in
respect
of
anyactions
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
capacityhereunder
or
under
the
other
Loan
Documents,
including
(a)
acting
as
collateral
agent
or
otherwise
holding
any
collateral
security
on
behalf
of
any
ofthe
Lenders
and
(b)
in
respect
of
any
actions
taken
in
connection
with
transferring
the
agency
to
any
successor
Administrative
Agent.(d)
Any
resignation
by
Bank
of
America
as
Administrative
Agent
pursuant
to
this
Section
shall
also
constitute
its
resignation
as
an
L/CIssuer
and
Swing
Line
Lender.
If
Bank
of
America
or
another
L/C
Issuer
resigns
as
an
L/C
Issuer,
it
shall
retain
all
the
rights,
powers,
privileges
andduties
of
an
L/C
Issuer
hereunder
with
respect
to
all
Letters
of
Credit
outstanding
as
of
the
effective
date
of
its
resignation
as
L/C
Issuer
and
all
L/CObligations
with
respect
thereto,
including
the
right
to
require
the
Lenders
to
make
Base
Rate
Loans
or
fund
risk
participations
in
UnreimbursedAmounts
pursuant
to
Section
2.03(c)
.
If
Bank
of
America
resigns
as
Swing
Line
Lender,
it
shall
retain
all
the
rights
of
the
Swing
Line
Lender
providedfor
hereunder
with
respect
to
Swing
Line
Loans
made
by
it
and
outstanding
as
of
the
effective
date
of
such
resignation,
including
the
right
to
require
theLenders
to
make
Base
Rate
Loans
or
fund
risk
participations
in
outstanding
Swing
Line
Loans
pursuant
to
Section
2.04(c)
.
Upon
the
appointment
bythe
Borrower
of
a
successor
L/C
Issuer
or
Swing
Line
Lender
hereunder
(which
successor
shall
in
all
cases
be
a
Lender
other
than
a
DefaultingLender),
(a)
such
successor
shall
succeed
to
and
become
vested
with
all
of
the
rights,
powers,
privileges
and
duties
of
the
retiring
L/C
Issuer
or
SwingLine
Lender,
as
applicable,
(b)
the
retiring
L/C
Issuer
and
Swing
Line
Lender
shall
be
discharged
from
all
of
their
respective
duties
and
obligationshereunder
or
under
the
other
Loan
Documents,
and
(c)
the
successor
L/C
Issuer
shall
issue
letters
of
credit
in
substitution
for
the
Letters
of
Credit,
ifany,
outstanding
at
the
time
of
such
succession
or
make
other
arrangements
satisfactory
to
the
retiring
L/C
Issuer
to
effectively
assume
the
obligationsof
the
retiring
L/C
Issuer
with
respect
to
such
Letters
of
Credit.10.7
Non-Reliance on Administrative Agent and Other Lenders . Each
Lender
and
each
L/C
Issuer
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
documentsand
information
as
it
has
deemed
appropriate,
made
its
own
credit
analysis
and
decision
to
enter
into
this
Agreement.
Each
Lender
and
each
L/C
Issueralso
acknowledges
that
it
will,
independently
and
without
reliance
upon
the
Administrative
Agent
or
any
other
Lender
or
any
of
their
Related
Partiesand
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
takingaction
under
or
based
upon
this
Agreement,
any
other
Loan
Document
or
any
related
agreement
or
any
document
furnished
hereunder
or
thereunder.10.8
No Other Duties, Etc. Anything
herein
to
the
contrary
notwithstanding,
none
of
the
bookrunners,
arrangers,
co-documentation
agentsor
co-syndication
agents
listed
on
the
cover
page
hereof
shall
have
any
powers,
duties
or
responsibilities
under
this
Agreement
or
any
of
the
other
LoanDocuments,
except
in
its
capacity,
as
applicable,
as
the
Administrative
Agent,
a
Lender
or
an
L/C
Issuer
hereunder.10.9
Administrative Agent May File Proofs of Claim . In
case
of
the
pendency
of
any
proceeding
under
any
Debtor
Relief
Law
or
anyother
judicial
proceeding
relative
to
any
Loan
Party,
the
Administrative
Agent
(irrespective
of
whether
the
principal
of
any
Loan
or
L/C
Obligationshall
then
be
due
and
payable
as
herein
expressed
or
by
declaration
or
otherwise
and
irrespective
of
whether
the
Administrative
Agent
shall
have
madeany
demand
on
the
Borrower)
shall
be
entitled
and
empowered,
by
intervention
in
such
proceeding
or
otherwise.(a)
to
file
and
prove
a
claim
for
the
whole
amount
of
the
principal
and
interest
owing
and
unpaid
in
respect
of
the
Loans,
L/CObligations
and
all
other
Obligations
that
are
owing
and
unpaid
and
to
file
such
other
documents
as
may
be
necessary
or
advisable
in
order
tohave
the
claims
of
the
Lenders,
the
L/C
Issuers
and
the
Administrative
Agent
(including
any
claim
for
the
reasonable
compensation,
expenses,disbursements
and
advances
of
the
Lenders,
the
L/C
Issuers
and
the
Administrative
Agent
and
their
respective
agents
and
counsel
and
all
otheramounts
due
the
Lenders,
the
L/C
Issuers
and
the
Administrative
Agent
under
Sections
2.03(h
)
and
(i)
,
2.09
and
11.04
)
allowed
in
suchjudicial
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
byeach
Lender
and
each
L/C
Issuer
to
make
such
payments
to
the
Administrative
Agent
and,
in
the
event
that
the
Administrative
Agent
shall
consent
tothe
making
of
such
payments
directly
to
the
Lenders
and
the
L/C
Issuers,
to
pay
to
the
Administrative
Agent
any
amount
due
for
the
reasonablecompensation,
expenses,
disbursements
and
advances
of
the
Administrative
Agent
and
its
agents
and
counsel,
and
any
other
amounts
due
theAdministrative
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
anyLender
or
any
L/C
Issuer
any
plan
of
reorganization,
arrangement,
adjustment
or
composition
affecting
the
Obligations
or
the
rights
of
any
Lender
orany
L/C
Issuer
or
to
authorize
the
Administrative
Agent
to
vote
in
respect
of
the
claim
of
any
Lender
or
any
L/C
Issuer
in
any
such
proceeding.10.10Guaranty Matters .(a)
Each
Lender
hereby
irrevocably
(subject
to
Section
10.06
)
appoints,
designates
and
authorizes
the
Administrative
Agent
to
takesuch
action
on
its
behalf
under
the
provisions
of
this
Agreement
and
each
other
Loan
Document
and
to
exercise
such
powers
and
perform
suchduties
as
are
expressly
delegated
to
it
by
the
terms
of
this
Agreement
or
any
other
Loan
Document,
together
with
such
powers
as
are
reasonablyincidental
thereto.
Notwithstanding
any
provision
to
the
contrary
contained
elsewhere
in
this
Agreement
or
in
any
other
Loan
Document,
theAdministrative
Agent
shall
not
have
any
duties
or
responsibilities,
except
those
expressly
set
forth
herein,
nor
shall
the
Administrative
Agenthave
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
AdministrativeAgent.
Without
limiting
the
generality
of
the
foregoing
sentence,
the
use
of
the
term
"agent"
in
this
Agreement
with
reference
to
theAdministrative
Agent
is
not
intended
to
connote
any
fiduciary
or
other
implied
(or
express)
obligations
arising
under
agency
doctrine
of
anyapplicable
law.
Instead,
such
term
is
used
merely
as
a
matter
of
market
custom,
and
is
intended
to
create
or
reflect
only
an
administrativerelationship
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
consentfrom
the
Lenders,
from
time
to
time
to
enter
into
agreements
whereby
the
Facility
Guaranty
is
amended
to
better
conform
the
terms
thereof
toany
form
attached
to
this
Agreement
or
to
make
administrative
or
housekeeping
corrections
to
any
such
agreement.(c)
The
Lenders
irrevocably
authorizes
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
as
a result
of
a
transaction
permitted
hereunder
and
no
Default
is
then
existing;
and(ii)
upon
receipt
by
the
Administrative
Agent
of
information
satisfactory
to
the
Administrative
Agent
that
any
DomesticSubsidiary
has
ceased
to
be
a
Significant
Subsidiary
as
a
result
of
a
transaction
or
decline
in
business
permitted
hereunder
and
noDefault
is
then
existing,
to
release
such
Subsidiary
from
its
obligations
under
the
Facility
Guaranty
as
long
as
after
giving
effect
theretothe
Borrower
is
in
compliance
with
Section
7.12(b)
.Upon
request
by
the
Administrative
Agent
at
any
time,
the
Required
Lenders
will
confirm
in
writing
the
Administrative
Agent's
authority
torelease
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
such
Subsidiary
is
thereafter
a
SignificantSubsidiary
that
is
a
Domestic
Subsidiary,
the
requirements
of
Section
7.12
shall
again
apply
to
such
Subsidiary.ARTICLE XI MISCELLANEOUS11.1
Amendments, Etc. No
amendment
or
waiver
of
any
provision
of
this
Agreement
or
any
other
Loan
Document,
and
no
consent
to
anydeparture
by
the
Borrower
or
any
other
Loan
Party
therefrom,
shall
be
effective
unless
in
writing
signed
by
the
Required
Lenders
and
the
Borrower
orthe
applicable
Loan
Party,
as
the
case
may
be,
and
acknowledged
by
the
Administrative
Agent,
and
each
such
waiver
or
consent
shall
be
effective
onlyin
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
)
withoutthe
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
otheramounts
due
to
the
Lenders
(or
any
of
them)
hereunder
or
under
any
other
Loan
Document
without
the
written
consent
of
each
Lender
directlyaffected
thereby;(d)
reduce
the
principal
of,
or
the
rate
of
interest
specified
herein
on,
any
Loan
or
L/C
Borrowing,
or
(subject
to
clause
(iv)
of
thesecond
proviso
to
this
Section
11.01
)
any
fees
or
other
amounts
payable
hereunder
or
under
any
other
Loan
Document
without
the
writtenconsent
of
each
Lender
directly
affected
thereby;
provided,
however
,
that
only
the
consent
of
the
Required
Lenders
shall
be
necessary
toamend
the
definition
of
"Default
Rate"
or
to
waive
any
obligation
of
the
Borrower
to
pay
interest
or
Letter
of
Credit
Fees
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
thewritten
consent
of
each
Lender;(f)
amend
Section
1.05
or
the
definition
of
"Alternative
Currency"
without
the
written
consent
of
each
Lender;(g)
change
any
provision
of
this
Section
or
the
definition
of
"Required
Lenders"
or
any
other
provision
hereof
specifying
the
numberor
percentage
of
Lenders
required
to
amend,
waive
or
otherwise
modify
any
rights
hereunder
or
make
any
determination
or
grant
any
consenthereunder
without
the
written
consent
of
each
Lender;
or(h)
release
all
or
substantially
all
of
the
value
of
the
Facility
Guaranty
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
applicable
L/C
Issuer
in
addition
to
theLenders
required
above,
affect
the
rights
or
duties
of
such
L/C
Issuer
under
this
Agreement
or
any
Issuer
Document
relating
to
any
Letter
of
Creditissued
or
to
be
issued
by
it;
(ii)
no
amendment,
waiver
or
consent
shall,
unless
in
writing
and
signed
by
the
Swing
Line
Lender
in
addition
to
theLenders
required
above,
affect
the
rights
or
duties
of
the
Swing
Line
Lender
under
this
Agreement;
(iii)
no
amendment,
waiver
or
consent
shall,
unlessin
writing
and
signed
by
the
Administrative
Agent
in
addition
to
the
Lenders
required
above,
affect
the
rights
or
duties
of
the
Administrative
Agentunder
this
Agreement
or
any
other
Loan
Document;
and
(iv)
the
Fee
Letter
may
be
amended,
or
rights
or
privileges
thereunder
waived,
in
a
writingexecuted
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
orconsent
hereunder,
except
that
(x)
the
Commitment
of
such
Lender
may
not
be
increased
or
extended,
or
amounts
due
to
it
permanently
reduced
(otherthan
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
adverselythan
other
affected
Lenders
shall
require
the
consent
of
such
Defaulting
Lender.Notwithstanding
the
fact
that
the
consent
of
all
the
Lenders
is
required
in
certain
circumstances
as
set
forth
above,
(x)
each
Lender
is
entitled
tovote
as
such
Lender
sees
fit
on
any
bankruptcy
reorganization
plan
that
affects
the
Loans,
and
each
Lender
acknowledges
that
the
provisions
of
Section1126(c)
of
theBankruptcy
Code
supersedes
the
unanimous
consent
provisions
set
forth
herein
and
(y)
the
Required
Lenders
shall
determine
whether
or
not
to
allow
aLoan
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.11.2Notices; Effectiveness; Electronic Communication .(a)
Notices
Generally
.
Except
in
the
case
of
notices
and
other
communications
expressly
permitted
to
be
given
by
telephone
(andexcept
as
provided
in
subsection
(b)
below),
all
notices
and
other
communications
provided
for
herein
shall
be
in
writing
and
shall
be
deliveredby
hand
or
overnight
courier
service,
mailed
by
certified
or
registered
mail
or
sent
by
facsimile
as
follows,
and
all
notices
and
othercommunications
expressly
permitted
hereunder
to
be
given
by
telephone
shall
be
made
to
the
applicable
telephone
number,
as
follows:(i)
if
to
the
Borrower,
the
Administrative
Agent,
an
L/C
Issuer
or
the
Swing
Line
Lender,
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
itsAdministrative
Questionnaire.Notices
and
other
communication
sent
by
hand
or
overnight
courier
service,
or
mailed
by
certified
or
registered
mail,
shall
be
deemedto
have
been
given
when
received;
notices
and
other
communication
sent
by
facsimile
shall
be
deemed
to
have
been
given
when
sent
(exceptthat,
if
not
given
during
normal
business
hours
for
the
recipient,
shall
be
deemed
to
have
been
given
at
the
opening
of
business
on
the
nextbusiness
day
for
the
recipient).
Notices
and
other
communication
delivered
through
electronic
communications
to
the
extent
provided
insubsection
(b)
below,
shall
be
effective
as
provided
in
such
subsection
(b).(b)
Electronic
Communications
.
Notices
and
other
communications
to
the
Lenders
and
the
L/C
Issuers
hereunder
may
be
deliveredor
furnished
by
electronic
communication
(including
e
mail
and
Internet
or
intranet
websites)
pursuant
to
procedures
approved
by
theAdministrative
Agent,
provided
that
the
foregoing
shall
not
apply
to
notices
to
any
Lender
or
any
L/C
Issuer
pursuant
to
Article
II
if
suchLender
or
such
L/C
Issuer,
as
applicable,
has
notified
the
Administrative
Agent
that
it
is
incapable
of
receiving
notices
under
such
Article
byelectronic
communication.
The
Administrative
Agent
or
the
Borrower
may,
in
its
discretion,
agree
to
accept
notices
and
other
communicationsto
it
hereunder
by
electronic
communications
pursuant
to
procedures
approved
by
it,
provided
that
approval
of
such
procedures
may
be
limitedto
particular
notices
or
communications.Unless
the
Administrative
Agent
otherwise
prescribes,
(i)
notices
and
other
communications
sent
to
an
e-mail
address
shall
be
deemedreceived
upon
the
sender's
receipt
of
an
acknowledgement
from
the
intended
recipient
(such
as
by
the
"return
receipt
requested"
function,
asavailable,
return
e-mail
or
other
written
acknowledgement),
and
(ii)
notices
or
communications
posted
to
an
Internet
or
intranet
website
shall
bedeemed
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
othercommunication
is
not
sent
during
the
normal
business
hours
of
the
recipient,
such
notice,
email
or
communication
shall
be
deemed
to
have
beensent
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
DEFINEDBELOW)
DO
NOT
WARRANT
THE
ACCURACY
OR
COMPLETENESS
OF
THE
BORROWER
MATERIALS
OR
THE
ADEQUACY
OFTHE
PLATFORM,
AND
EXPRESSLY
DISCLAIM
LIABILITY
FOR
ERRORS
IN
OR
OMISSIONS
FROM
THE
BORROWERMATERIALS.
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
ORFREEDOM
FROM
VIRUSES
OR
OTHER
CODE
DEFECTS,
IS
MADE
BY
ANY
AGENT
PARTY
IN
CONNECTION
WITH
THEBORROWER
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,
any
L/C
Issuer
or
any
other
Person
for
losses,
claims,
damages,
liabilities
orexpenses
of
any
kind
(whether
in
tort,
contract
or
otherwise)
arising
out
of
the
Borrower's
or
the
Administrative
Agent's
transmission
ofBorrower
Materials
through
the
Internet,
except
to
the
extent
that
such
losses,
claims,
damages,
liabilities
or
expenses
are
determined
by
a
courtof
competent
jurisdiction
by
a
final
and
nonappealable
judgment
to
have
resulted
from
the
gross
negligence
or
willful
misconduct
of
suchAgent
Party;
provided,
however
,
that
in
no
event
shall
any
Agent
Party
have
any
liability
to
the
Borrower,
any
Lender,
any
L/C
Issuer
or
anyother
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,
the
Administrative
Agent,
each
L/C
Issuer
and
the
Swing
Line
Lender
maychange
its
address,
facsimile
or
telephone
number
for
notices
and
other
communications
hereunder
by
notice
to
the
other
parties
hereto.
Eachother
Lender
may
change
its
address,
facsimile
or
telephone
number
for
notices
and
other
communications
hereunder
by
notice
to
theBorrower,
the
Administrative
Agent,
the
L/C
Issuers
and
the
Swing
Line
Lender.
In
addition,
each
Lender
agrees
to
notify
the
AdministrativeAgent
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
forsuch
Lender.(e)
Reliance
by
Administrative
Agent,
L/C
Issuers
and
Lenders
.
The
Administrative
Agent,
the
L/C
Issuers
and
the
Lenders
shall
beentitled
to
rely
and
act
upon
any
notices
(including
telephonic
Committed
Loan
Notices
and
Swing
Line
Loan
Notices)
purportedly
given
by
oron
behalf
of
the
Borrower
even
if
(i)
such
notices
were
not
made
in
a
manner
specified
herein,
were
incomplete
or
were
not
preceded
orfollowed
by
any
other
form
of
notice
specified
herein,
or
(ii)
the
terms
thereof,
as
understood
by
the
recipient,
varied
from
any
confirmationthereof.
The
Borrower
shall
indemnify
the
Administrative
Agent,
the
L/C
Issuers,
each
Lender
and
the
Related
Parties
of
each
of
them
from
alllosses,
costs,
expenses
and
liabilities
resulting
from
the
reliance
by
such
Person
on
each
notice
purportedly
given
by
or
on
behalf
of
theBorrower.
All
telephonic
notices
to
and
other
telephonic
communications
with
the
Administrative
Agent
may
be
recorded
by
theAdministrative
Agent,
and
each
of
the
parties
hereto
hereby
consents
to
such
recording.11.3
No Waiver; Cumulative Remedies; Enforcement . No
failure
by
any
Lender
or
the
Administrative
Agent
to
exercise,
and
no
delay
byany
such
Person
in
exercising,
any
right,
remedy,
power
or
privilege
hereunder
shall
operate
as
a
waiver
thereof,
nor
shall
any
single
or
partial
exerciseof
any
right,
remedy,
power
or
privilege
hereunder
preclude
any
other
or
further
exercise
thereof
or
the
exercise
of
any
other
right,
remedy,
power
orprivilege.
The
rights,
remedies,
powers
and
privileges
herein
provided
are
cumulative
and
not
exclusive
of
any
rights,
remedies,
powers
and
privilegesprovided
by
law.Notwithstanding
anything
to
the
contrary
contained
herein
or
in
any
other
Loan
Document,
the
authority
to
enforce
rights
and
remedieshereunder
and
under
the
other
Loan
Documents
against
the
Loan
Parties
or
any
of
them
shall
be
vested
exclusively
in,
and
all
actions
and
proceedingsat
law
in
connection
with
such
enforcement
shall
be
instituted
and
maintained
exclusively
by,
the
Administrative
Agent
in
accordance
with
Section9.02
for
the
benefit
of
all
the
Lenders
and
the
L/C
Issuers;
provided
,
however
,
that
the
foregoing
shall
not
prohibit
(a)
the
Administrative
Agent
fromexercising
on
its
own
behalf
the
rights
and
remedies
that
inure
to
its
benefit
(solely
in
its
capacity
as
Administrative
Agent)
hereunder
and
under
theother
Loan
Documents,
(b)
an
L/C
Issuer
or
the
Swing
Line
Lender
from
exercising
the
rights
and
remedies
that
inure
to
its
benefit
(solely
in
itscapacity
as
L/C
Issuer
or
Swing
Line
Lender,
as
the
case
may
be)
hereunder
and
under
the
other
Loan
Documents,
(c)
any
Lender
from
exercisingsetoff
rights
in
accordance
with
Section
11.08
(subject
to
the
terms
of
Section
2.13
),
or
(d)
any
Lender
from
filing
proofs
of
claim
or
appearing
andfiling
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
Lendersshall
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
andremedies
available
to
it
and
as
authorized
by
the
Required
Lenders.11.4Expenses; 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
theAdministrative
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
thecredit
facilities
provided
for
herein,
the
preparation,
negotiation,
execution,
delivery
and
administration
of
this
Agreement
and
the
other
LoanDocuments
or
any
amendments,
modifications
or
waivers
of
the
provisions
hereof
or
thereof
(whether
or
not
the
transactions
contemplatedhereby
or
thereby
shall
be
consummated),(ii)
all
reasonable
out
of
pocket
expenses
incurred
by
any
L/C
Issuer
in
connection
with
the
issuance,
amendment,
renewal
or
extension
ofany
Letter
of
Credit
or
any
demand
for
payment
thereunder
and
(iii)
all
out
of
pocket
expenses
incurred
by
the
Administrative
Agent,
any Lender
or
any
L/C
Issuer
(including
the
fees,
charges
and
disbursements
of
any
counsel
for
the
Administrative
Agent,
any
Lender
or
any
L/CIssuer),
and
shall
pay
all
fees
and
time
charges
for
attorneys
who
may
be
employees
of
the
Administrative
Agent,
any
Lender
or
any
L/C
Issuer,in
connection
with
the
enforcement
or
protection
of
its
rights
(A)
in
connection
with
this
Agreement
and
the
other
Loan
Documents,
includingits
rights
under
this
Section,
or
(B)
in
connection
with
the
Loans
made
or
Letters
of
Credit
issued
hereunder,
including
all
such
out
of
pocketexpensesincurred
during
any
workout,
restructuring
or
negotiations
in
respect
of
such
Loans
or
Letters
of
Credit.(b)
Indemnification
by
the
Borrower
.
The
Borrower
shall
indemnify
the
Administrative
Agent
(and
any
sub-agent
thereof),
eachLender
and
each
L/C
Issuer,
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
timecharges
and
disbursements
for
attorneys
who
may
be
employees
of
any
Indemnitee,
incurred
by
any
Indemnitee
or
asserted
against
anyIndemnitee
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
ordelivery
of
this
Agreement,
any
other
Loan
Document
or
any
agreement
or
instrument
contemplated
hereby
or
thereby,
the
performance
by
theparties
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
theother
Loan
Documents,
(ii)
any
Loan
or
Letter
of
Credit
or
the
use
or
proposed
use
of
the
proceeds
therefrom
(including
any
refusal
by
an
L/CIssuer
to
honor
a
demand
for
payment
under
a
Letter
of
Credit
if
the
documents
presented
in
connection
with
such
demand
do
not
strictlycomply
with
the
terms
of
such
Letter
of
Credit),
(iii)
any
actual
or
alleged
presence
or
release
of
Hazardous
Materials
on
or
from
any
propertyowned
or
operated
by
the
Borrower
or
any
of
its
Subsidiaries,
or
any
Environmental
Liability
related
in
any
way
to
the
Borrower
or
any
of
itsSubsidiaries,
or
(iv)
any
actual
or
prospective
claim,
litigation,
investigation
or
proceeding
relating
to
any
of
the
foregoing,
whether
based
oncontract,
tort
or
any
other
theory,
whether
brought
by
a
third
party
or
by
the
Borrower
or
any
other
Loan
Party,
and
regardless
of
whether
anyIndemnitee
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
haveresulted
from
the
gross
negligence
or
willful
misconduct
of
such
Indemnitee
or
(y)
result
from
a
claim
brought
by
the
Borrower
or
any
otherLoan
Party
against
an
Indemnitee
for
breach
in
bad
faith
of
such
Indemnitee's
obligations
hereunder
or
under
any
other
Loan
Document,
if
theBorrower
or
such
other
Loan
Party
has
obtained
a
final
and
nonappealable
judgment
in
its
favor
on
such
claim
as
determined
by
a
court
ofcompetent
jurisdiction.
Without
limiting
the
provisions
of
Section
3.01(c),
this
Section
11.04(b)
shall
not
apply
with
respect
to
Taxes
other
thanany
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
undersubsection
(a)
or
(b)
of
this
Section
to
be
paid
by
it
to
the
Administrative
Agent
(or
any
sub-agent
thereof),
an
L/C
Issuer
or
any
Related
Partyof
any
of
the
foregoing,
each
Lender
severally
agrees
to
pay
to
the
Administrative
Agent
(or
any
such
sub-agent),
the
applicable
L/C
Issuer
orsuch
Related
Party,
as
the
case
may
be,
such
Lender's
Pro
Rata
Share
(determined
as
of
the
time
that
the
applicable
unreimbursed
expense
orindemnity
payment
is
sought)
of
such
unpaid
amount,
provided
that
the
unreimbursed
expense
or
indemnified
loss,
claim,
damage,
liability
orrelated
expense,
as
the
case
may
be,
was
incurred
by
or
asserted
against
the
Administrative
Agent
(or
any
such
sub-agent)
or
the
applicable
L/CIssuerin
its
capacity
as
such,
or
against
any
Related
Party
of
any
of
the
foregoing
acting
for
the
Administrative
Agent
(or
any
such
sub-agent)
or
L/CIssuer
in
connection
with
such
capacity.
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
herebywaives,
any
claim
against
any
Indemnitee,
on
any
theory
of
liability,
for
special,
indirect,
consequential
or
punitive
damages
(as
opposed
todirect
or
actual
damages)
arising
out
of,
in
connection
with,
or
as
a
result
of,
this
Agreement,
any
other
Loan
Document
or
any
agreement
orinstrument
contemplated
hereby,
the
transactions
contemplated
hereby
or
thereby,
any
Loan
or
Letter
of
Credit
or
the
use
of
the
proceedsthereof.
No
Indemnitee
referred
to
in
subsection
(b)
above
shall
be
liable
for
any
damages
arising
from
the
use
by
unintended
recipients
of
anyinformation
or
other
materials
distributed
by
it
through
telecommunications,
electronic
or
other
information
transmission
systems
in
connectionwith
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
theAdministrative
Agent,
any
L/C
Issuer
and
the
Swing
Line
Lender,
the
replacement
of
any
Lender,
the
termination
of
the
AggregateCommitments
and
the
repayment,
satisfaction
or
discharge
of
all
the
other
Obligations.11.5
Payments Set Aside . To
the
extent
that
any
payment
by
or
on
behalf
of
the
Borrower
is
made
to
the
Administrative
Agent,
an
L/C Issuer
or
any
Lender,
or
the
Administrative
Agent,
an
L/C
Issuer
or
any
Lender
exercises
its
right
of
setoff,
and
such
payment
or
the
proceeds
of
suchsetoff
or
any
part
thereof
is
subsequently
invalidated,
declared
to
be
fraudulent
or
preferential,
set
aside
or
required
(including
pursuant
to
anysettlement
entered
into
by
the
Administrative
Agent,
such
L/C
Issuer
or
such
Lender
in
its
discretion)
to
be
repaid
to
a
trustee,
receiver
or
any
otherparty,
in
connection
with
any
proceeding
under
any
Debtor
Relief
Law
or
otherwise,
then
(a)
to
the
extent
of
such
recovery,
the
obligation
or
partthereof
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
setoffhad
not
occurred,
and
(b)
each
Lender
and
each
L/C
Issuer
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
thedate
such
payment
is
made
at
a
rate
per
annum
equal
to
the
applicable
Overnight
Rate
from
time
to
time
in
effect,
in
the
applicable
currency
of
suchrecovery
or
payment.
The
obligations
of
the
Lenders
and
the
L/C
Issuers
under
clause
(b)
of
the
preceding
sentence
shall
survive
the
payment
in
full
ofthe
Obligations
and
the
termination
of
this
Agreement.11.6Successors and Assigns .(a)
Successors
and
Assigns
Generally
.
The
provisions
of
this
Agreement
shall
be
binding
upon
and
inure
to
the
benefit
of
the
partieshereto
and
their
respective
successors
and
assigns
permitted
hereby,
except
that
no
Loan
Party
may
assign
or
otherwise
transfer
any
of
its
rightsor
obligations
hereunder
without
the
prior
written
consent
of
the
Administrative
Agent
andeach
Lender
and
no
Lender
may
assign
or
otherwise
transfer
any
of
its
rights
or
obligations
hereunder
except
(i)
to
an
Eligible
Assignee
inaccordance
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
anyother
attempted
assignment
or
transfer
by
any
party
hereto
shall
be
null
and
void).
Nothing
in
this
Agreement,
expressed
or
implied,
shall
beconstrued
to
confer
upon
any
Person
(other
than
the
parties
hereto,
their
respective
successors
and
assigns
permitted
hereby,
Participants
to
theextent
provided
in
subsection
(d)
of
this
Section
and,
to
the
extent
expressly
contemplated
hereby,
the
Related
Parties
of
each
of
theAdministrative
Agent,
the
L/C
Issuers
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
andobligations
under
this
Agreement
(including
all
or
a
portion
of
its
Commitment
and
the
Loans
(including
for
purposes
of
this
subsection
(b),participations
in
L/C
Obligations
and
in
Swing
Line
Loans)
at
the
time
owing
to
it);
provided
that
any
such
assignment
shall
be
subject
to
thefollowing
conditions:(i)
Minimum
Amounts
.(A)
in
the
case
of
an
assignment
of
the
entire
remaining
amount
of
the
assigning
Lender's
Commitment
and
theLoans
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,
nominimum
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
principaloutstanding
balance
of
the
Loans
of
the
assigning
Lender
subject
to
each
such
assignment,
determined
as
of
the
date
theAssignment
and
Assumption
with
respect
to
such
assignment
is
delivered
to
the
Administrative
Agent
or,
if
"Trade
Date"
isspecified
in
the
Assignment
and
Assumption,
as
of
the
Trade
Date,
shall
not
be
less
than
$5,000,000
unless
each
of
theAdministrative
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
theassigning
Lender's
rights
and
obligations
under
this
Agreement
with
respect
to
the
Loans
or
the
Commitment
assigned,
except
that
thisclause
(ii)
shall
not
apply
to
the
Swing
Line
Lender's
rights
and
obligations
in
respect
of
Swing
Line
Loans.(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
ofDefault
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;(B)
the
consent
of
the
Administrative
Agent
(such
consent
not
to
be
unreasonably
withheld
or
delayed)
shall
berequired
if
such
assignment
is
to
a
Person
that
is
not
a
Lender,
an
Affiliate
of
such
Lender
or
an
Approved
Fund
with
respect
tosuch
Lender;
and(C)
the
consent
of
the
L/C
Issuers
and
the
consent
of
the
Swing
Line
Lender
shall
be
required
for
any
assignment.(iv)
Assignment
and
Assumption
.
The
parties
to
each
assignment
shall
execute
and
deliver
to
the
Administrative
Agent
anAssignment
and
Assumption,
together
with
a
processing
and
recordation
fee
in
the
amount
of
$3,500;
provided
,
however
,
that
theAdministrative
Agent
may,
in
its
sole
discretion,
elect
to
waive
such
processing
and
recordation
fee
in
the
case
of
any
assignment.
Theassignee,
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,
orany
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
anatural
Person).(vi)
Certain
Additional
Payments
.
In
connection
with
any
assignment
of
rights
and
obligations
of
any
Defaulting
Lenderhereunder,
no
such
assignment
shall
be
effective
unless
and
until,
in
addition
to
the
other
conditions
thereto
set
forth
herein,
the
partiesto
the
assignment
shall
make
such
additional
payments
to
the
Administrative
Agent
in
an
aggregate
amount
sufficient,
upon
distributionthereof
as
appropriate
(which
may
be
outright
payment,
purchases
by
the
assignee
of
participations
or
subparticipations,
or
othercompensating
actions,
including
funding,
with
the
consent
of
the
Borrower
and
the
Administrative
Agent,
the
applicable
pro
rata
shareof
Loans
previously
requested
but
not
funded
by
the
Defaulting
Lender,
to
each
of
which
the
applicable
assignee
and
assignor
herebyirrevocably
consent),
to
(x)
pay
and
satisfy
in
full
all
payment
liabilities
then
owed
by
such
Defaulting
Lender
to
the
AdministrativeAgent,
each
L/C
Issuer
or
any
Lender
hereunder
(and
interest
accrued
thereon)
and
(y)
acquire
(and
fund
as
appropriate)
its
full
pro
ratashare
of
all
Loans
and
participations
in
Letters
of
Credit
and
Swing
Line
Loans
in
accordance
with
its
Pro
Rata
Share.
Notwithstandingthe
foregoing,
in
the
event
that
any
assignment
of
rights
and
obligations
of
any
Defaulting
Lender
hereunder
shall
become
effectiveunder
applicable
Law
without
compliance
with
the
provisions
of
this
paragraph,
then
the
assignee
of
such
interest
shall
be
deemed
to
bea
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
theeffective
date
specified
in
each
Assignment
and
Assumption,
the
Eligible
Assignee
thereunder
shall
be
a
party
to
this
Agreement
and,
to
theextent
of
the
interest
assigned
by
such
Assignment
and
Assumption,
have
the
rights
and
obligations
of
a
Lender
under
this
Agreement,
and
theassigning
Lender
thereunder
shall,
to
theextent
of
the
interest
assigned
by
such
Assignment
and
Assumption,
be
released
from
its
obligations
under
this
Agreement
(and,
in
the
case
ofan
Assignment
and
Assumption
covering
all
of
the
assigning
Lender's
rights
and
obligations
under
this
Agreement,
such
Lender
shall
cease
tobe
a
party
hereto)
but
shall
continue
to
be
entitled
to
the
benefits
of
Sections
3.01
,
3.04
,
3.05
,
and11.04
with
respect
to
facts
and
circumstances
occurring
prior
to
the
effective
date
of
such
assignment.
Upon
request,
the
Borrower
(at
itsexpense)
shall
execute
and
deliver
a
Note
to
the
assignee
Lender.
Any
assignment
or
transfer
by
a
Lender
of
rights
or
obligations
under
thisAgreement
that
does
not
comply
with
this
subsection
shall
be
treated
for
purposes
of
this
Agreement
as
a
sale
by
such
Lender
of
a
participationin
such
rights
and
obligations
in
accordance
with
subsection
(d)
of
this
Section.(c)
Register
.
The
Administrative
Agent,
acting
solely
for
this
purpose
as
an
agent
of
the
Borrower,
shall
maintain
at
theAdministrative
Agent's
Office
a
copy
of
each
Assignment
and
Assumption
delivered
to
it
and
a
register
for
the
recordation
of
the
names
andaddresses
of
the
Lenders,
and
the
Commitments
of,
and
principal
amounts
of
the
Loans
and
L/C
Obligations
owing
to,
each
Lender
pursuant
tothe
terms
hereof
from
time
to
time
(the
"
Register
").
The
entries
in
the
Register
shall
be
conclusive,
and
the
Borrower,
the
AdministrativeAgent
and
the
Lenders
may
treat
each
Person
whose
name
is
recorded
in
the
Register
pursuant
to
the
terms
hereof
as
a
Lender
hereunder
for
allpurposes
of
this
Agreement,
notwithstanding
notice
to
the
contrary.
In
addition,
the
Administrative
Agent
shall
maintain
in
the
Registerinformation
regarding
the
designation,
and
revocation
of
designation,
of
any
Lender
as
a
Defaulting
Lender.
The
Register
shall
be
available
forinspection
by
the
Borrower
and
any
L/C
Issuer
at
any
reasonable
time
and
from
time
to
time
upon
reasonable
prior
notice.
In
addition,
at
anytime
that
a
request
for
a
consent
for
a
material
or
substantive
change
to
the
Loan
Documents
is
pending,
any
Lender
may
request
and
receivefrom
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,
sellparticipations
to
any
Person
(other
than
a
natural
Person,
or
a
holding
company,
investment
vehicle
or
trust
for,
or
owned
and
operated
for
theprimary
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
Commitmentand/or
the
Loans
(including
such
Lender's
participations
in
L/C
Obligations
and/or
Swing
Line
Loans)
owing
to
it);
provided
that
(i)
suchLender'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,
theAdministrative
Agent,
the
Lenders
and
the
L/C
Issuer
shall
continue
to
deal
solely
and
directly
with
such
Lender
in
connection
with
suchLender's
rights
and
obligations
under
this
Agreement.
For
the
avoidance
of
doubt,
each
Lender
shall
be
responsible
for
the
indemnity
underSection
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
soleright
to
enforce
this
Agreement
and
to
approve
any
amendment,
modification
or
waiver
of
any
provision
of
this
Agreement;
provided
that
suchagreement
or
instrument
may
provide
that
such
Lender
will
not,
without
the
consent
of
the
Participant,
agree
to
any
amendment,
waiver
or
othermodification
described
in
the
first
provisoto
Section
10.01
that
affects
such
Participant.
The
Borrower
agrees
that
each
Participant
shall
be
entitled
to
the
benefits
of
Sections
3.01
,
3.04and
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
beingunderstood
that
the
documentation
required
under
Section
3.01(e)
shall
be
delivered
to
the
Lender
who
sells
the
participation)
to
the
sameextent
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)
shallnot
be
entitled
to
receive
any
greater
payment
under
Sections
3.01
or
3.04
,
with
respect
to
any
participation,
than
the
Lender
from
whom
itacquired
the
applicable
participation
would
have
been
entitled
to
receive,
except
to
the
extent
such
entitlement
to
receive
a
greater
paymentresults
from
a
Change
in
Law
that
occurs
after
the
Participant
acquired
the
applicable
participation.
Each
Lender
that
sells
a
participationagrees,
at
the
Borrower's
request
and
expense,
to
use
reasonable
efforts
to
cooperate
with
the
Borrower
to
effectuate
the
provisions
of
Section3.06
with
respect
to
any
Participant.
To
the
extent
permitted
by
law,
each
Participant
also
shall
be
entitled
to
the
benefits
of
Section
11.08
asthough
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
aparticipation
shall,
acting
solely
for
this
purpose
as
a
non-
fiduciary
agent
of
the
Borrower,
maintain
a
register
on
which
it
enters
the
name
andaddress
of
each
Participant
and
the
principal
amounts
(and
stated
interest)
of
each
Participant's
interest
in
the
Loans
or
other
obligations
underthe
Loan
Documents
(the
"
Participant
Register
");
provided
that
no
Lender
shall
have
any
obligation
to
disclose
all
or
any
portion
of
theParticipant
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
toestablish
that
such
commitment,
loan,
letter
of
credit
or
other
obligation
is
in
registered
form
under
Section
5f.103-
1(c)
of
the
United
StatesTreasury
Regulations.
The
entries
in
the
Participant
Register
shall
be
conclusive
absent
manifest
error,
and
such
Lender
shall
treat
each
Personwhose
name
is
recorded
in
the
Participant
Register
as
the
owner
of
such
participation
for
all
purposes
of
this
Agreement
notwithstanding
anynotice
to
the
contrary.
For
the
avoidance
of
doubt,
the
Administrative
Agent
(in
its
capacity
as
Administrative
Agent)
shall
have
noresponsibility
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
thisAgreement
(including
under
its
Note(s),
if
any)
to
secure
obligations
of
such
Lender,
including
any
pledge
or
assignment
to
secure
obligationsto
a
Federal
Reserve
Bank;
provided
that
no
such
pledge
or
assignment
shall
release
such
Lender
from
any
of
its
obligations
hereunder
orsubstitute
any
such
pledgee
or
assignee
for
such
Lender
as
a
party
hereto.(f)
Resignation
as
L/C
Issuer
or
Swing
Line
Lender
after
Assignment
.
Notwithstanding
anything
to
the
contrary
contained
herein,
ifat
any
time
Bank
of
America
or
another
L/C
Issuer
assigns
all
of
its
Commitment
and
Loans
pursuant
to
subsection
(b)
above,
(i)
Bank
ofAmerica
or
such
other
L/C
Issuer
may,
upon
30
days'
notice
to
the
Borrower
and
the
Lenders,
resign
as
an
L/C
Issuer
and/or
(ii)
Bank
ofAmerica
may,
upon
30
days'
notice
to
the
Borrower,
resign
as
Swing
Line
Lender.
In
the
event
of
any
such
resignation
as
an
L/C
Issuer
orSwing
Line
Lender,
the
Borrower
shall
be
entitled
to
appoint
from
among
the
Lenders
a
successorL/C
Issuer
or
Swing
Line
Lender
hereunder;
provided,
however
,
that
no
failure
by
the
Borrower
to
appoint
any
such
successor
shall
affect
theresignation
of
Bank
of
America
or
such
other
L/C
Issuer
as
an
L/C
Issuer
or
Swing
Line
Lender,
as
the
case
may
be.
If
Bank
of
America
oranother
L/C
Issuer
resigns
as
an
L/C
Issuer,
it
shall
retain
all
the
rights,
powers,
privileges
and
duties
of
an
L/C
Issuer
hereunder
with
respect
toall
Letters
of
Credit
issued
by
it
and
outstanding
as
of
the
effective
date
of
its
resignation
as
an
L/C
Issuer
and
all
L/C
Obligations
with
respectthereto
(including
the
right
to
require
the
Lenders
to
make
Base
Rate
Committed
Loans
or
fund
risk
participations
in
Unreimbursed
Amountspursuant
to
Section
2.03(c))
.
If
Bank
of
America
resigns
as
Swing
Line
Lender,
it
shall
retain
all
the
rights
of
the
Swing
Line
Lender
providedfor
hereunder
with
respect
to
Swing
Line
Loans
made
by
it
and
outstanding
as
of
the
effective
date
of
such
resignation,
including
the
right
torequire
the
Lenders
to
make
Base
Rate
Committed
Loans
or
fund
risk
participations
in
outstanding
Swing
Line
Loans
pursuant
to
Section 2.04(c)
.
Upon
the
appointment
of
a
successor
L/C
Issuer
and/or
Swing
Line
Lender,
(a)
such
successor
shall
succeed
to
and
become
vestedwith
all
of
the
rights,
powers,
privileges
and
duties
of
the
retiring
L/C
Issuer
or
Swing
Line
Lender,
as
the
case
may
be,
and
(b)
the
successorL/C
Issuer
shall
issue
letters
of
credit
in
substitution
for
the
Letters
of
Credit,
if
any,
outstanding
at
the
time
of
such
succession
or
make
otherarrangements
satisfactory
to
the
resigning
L/C
Issuer
to
effectively
assume
the
obligations
of
the
resigning
L/C
Issuer
with
respect
to
suchLetters
of
Credit.11.7
Treatment of Certain Information; Confidentiality . Each
of
the
Administrative
Agent,
the
Lenders
and
the
L/C
Issuers
agrees
tomaintain
the
confidentiality
of
the
Information
(as
defined
below),
except
that
Information
may
be
disclosed
(a)
to
its
Affiliates
and
to
its
and
itsAffiliates'
respective
partners,
directors,
officers,
employees,
agents,
advisors
and
representatives
(it
being
understood
that
the
Persons
to
whom
suchdisclosure
is
made
will
be
informed
of
the
confidential
nature
of
such
Information
and
instructed
to
keep
such
Information
confidential),
(b)
to
theextent
requested
by
any
regulatory
authority
purporting
to
have
jurisdiction
over
it
(including
any
self-regulatory
authority,
such
as
the
NationalAssociation
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
proceedingrelating
to
this
Agreement
or
any
other
Loan
Document
or
the
enforcement
of
rights
hereunder
or
thereunder,
(f)
subject
to
an
agreement
containingprovisions
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
ofits
rights
or
obligations
under
this
Agreement
or
(ii)
any
actual
or
prospective
counterparty
(or
its
advisors)
to
any
swap
or
derivative
transactionrelating
to
the
Borrower
and
its
obligations,
(g)
on
a
confidential
basis
to
(i)
any
rating
agency
in
connection
with
rating
the
Company
or
itsSubsidiaries
or
the
credit
facilities
provided
hereunder
or
(ii)
the
CUSIP
Service
Bureau
or
any
similar
agency
in
connection
with
the
issuance
andmonitoring
of
CUSIP
numbers
or
other
market
identifiers
with
respect
to
the
credit
facilities
provided
hereunder,
(h)
with
the
consent
of
the
Borroweror
(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,
anyL/C
Issuer
or
any
of
their
respective
Affiliates
on
a
nonconfidential
basis
from
a
source
other
than
the
Borrower.
In
addition,
the
Administrative
Agentand
the
Lenders
may
disclose
the
existence
of
this
Agreement
and
information
about
this
Agreement
to
market
data
collectors,
similar
service
providersto
the
lending
industry
and
service
providers
to
the
Agents
and
the
Lenders
in
connection
with
the
administration
of
this
Agreement,
the
other
LoanDocuments,
and
the
Commitments.For
purposes
of
this
Section,
"
Information
"
means
all
information
received
from
the
Borrower
or
any
Subsidiary
relating
to
the
Borrower
orany
Subsidiary
or
any
of
their
respective
businesses,
other
than
any
such
information
that
is
available
to
the
Administrative
Agent,
any
Lender
or
anyL/C
Issuer
on
a
nonconfidential
basis
prior
to
disclosure
by
the
Borrower
or
any
Subsidiary,
provided
that,
in
the
case
of
information
received
from
theBorrower
or
any
Subsidiary
after
the
date
hereof,
such
information
is
clearly
identified
at
the
time
of
delivery
as
confidential.
Any
Person
required
tomaintain
the
confidentiality
of
Information
as
provided
in
this
Section
shall
be
considered
to
have
complied
with
its
obligation
to
do
so
if
such
Personhas
exercised
the
same
degree
of
care
to
maintain
the
confidentiality
of
such
Information
as
such
Person
would
accord
to
its
own
confidentialinformation.Each
of
the
Administrative
Agent,
the
Lenders
and
the
L/C
Issuer
acknowledges
that
(a)
the
Information
may
include
material
non-publicinformation
concerning
the
Borrower
or
a
Subsidiary,
as
the
case
may
be,
(b)
it
has
developed
compliance
procedures
regarding
the
use
of
materialnon-public
information
and
(c)
it
will
handle
such
material
non-public
information
in
accordance
with
applicable
Law,
including
United
States
Federaland
state
securities
Laws.11.8
Right of Setoff . If
an
Event
of
Default
shall
have
occurred
and
be
continuing,
each
Lender,
each
L/C
Issuer
and
each
of
theirrespective
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
anyand
all
deposits
(general
or
special,
time
or
demand,
provisional
or
final,
in
whatever
currency)
at
any
time
held
and
other
obligations
(in
whatevercurrency)
at
any
time
owing
by
such
Lender,
such
L/C
Issuer
or
any
such
Affiliate
to
or
for
the
credit
or
the
account
of
the
Borrower
or
any
other
LoanParty
against
any
and
all
of
the
obligations
of
the
Borrower
or
such
Loan
Party
now
or
hereafter
existing
under
this
Agreement
or
any
other
LoanDocument
to
such
Lender
or
such
L/C
Issuer,
irrespective
of
whether
or
not
such
Lender
or
such
L/C
Issuer
shall
have
made
any
demand
under
thisAgreement
or
any
other
Loan
Document
and
although
such
obligations
of
the
Borrower
or
such
Loan
Party
may
be
contingent
or
unmatured
or
areowed
to
a
branch
or
office
of
such
Lender
or
such
L/C
Issuer
different
from
the
branch
or
office
holding
such
deposit
or
obligated
on
suchindebtedness.
The
rights
of
each
Lender,
each
L/C
Issuer
and
their
respective
Affiliates
under
this
Section
are
in
addition
to
other
rights
and
remedies(including
other
rights
of
setoff)
that
such
Lender,
such
L/C
Issuer
or
their
respective
Affiliates
may
have;
provided
,
that
in
the
event
that
anyDefaulting
Lender
shall
exercise
any
such
right
of
setoff,
(x)
all
amounts
so
set
off
shall
be
paid
over
immediately
to
the
Administrative
Agent
forfurther
application
in
accordance
with
the
provisions
of
Section
2.15
and,
pending
such
payment,
shall
be
segregated
by
such
Defaulting
Lender
fromits
other
funds
and
deemed
held
in
trust
for
the
benefit
of
the
Administrative
Agent
and
the
Lenders,
and
(y)
the
Defaulting
Lender
shall
providepromptly
to
the
Administrative
Agent
a
statement
describing
in
reasonable
detail
the
Obligations
owing
to
such
Defaulting
Lender
as
to
which
itexercised
such
right
of
setoff.
Each
Lender
and
each
L/C
Issuer
agrees
to
notify
the
Borrower
and
the
Administrative
Agent
promptly
after
any
suchsetoff
and
application,
provided
that
the
failure
to
give
such
notice
shall
not
affect
the
validity
of
such
setoff
and
application.11.9
Interest Rate Limitation . Notwithstanding
anything
to
the
contrary
contained
in
any
Loan
Document,
the
interest
paid
or
agreed
to
bepaid
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
theprincipal
of
the
Loans
or,
if
it
exceeds
such
unpaid
principal,
refunded
to
the
Borrower.
In
determining
whether
the
interest
contracted
for,
charged,
orreceived
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
premiumrather
than
interest,
(b)
exclude
voluntary
prepayments
and
the
effects
thereof,
and
(c)
amortize,
prorate,
allocate,
and
spread
in
equal
or
unequal
partsthe
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
indifferent
counterparts),
each
of
which
shall
constitute
an
original,
but
all
of
which
when
taken
together
shall
constitute
a
single
contract.
ThisAgreement
and
the
other
Loan
Documents
constitute
the
entire
contract
among
the
parties
relating
to
the
subject
matter
hereof
and
supersede
any
andall
previous
agreements
and
understandings,
oral
or
written,
relating
to
the
subject
matter
hereof.
Except
as
provided
in
Section
5.01
,
this
Agreementshall
become
effective
when
it
shall
have
been
executed
by
the
Administrative
Agent
and
when
the
Administrative
Agent
shall
have
receivedcounterparts
hereof
that,
when
taken
together,
bear
the
signatures
of
each
of
the
other
parties
hereto.
Delivery
of
an
executed
counterpart
of
a
signaturepage
of
this
Agreement
by
telecopy
or
other
electronic
imaging
means
shall
be
effective
as
delivery
of
a
manually
executed
counterpart
of
thisAgreement.11.11
Survival of Representations and Warranties . All
representations
and
warranties
made
hereunder
and
in
any
other
Loan
Documentor
other
document
delivered
pursuant
hereto
or
thereto
or
in
connection
herewith
or
therewith
shall
survive
the
execution
and
delivery
hereof
andthereof.
Such
representations
and
warranties
have
been
or
will
be
relied
upon
by
the
Administrative
Agent
and
each
Lender,
regardless
of
anyinvestigation
made
by
the
Administrative
Agent
or
any
Lender
or
on
their
behalf
and
notwithstanding
that
the
Administrative
Agent
or
any
Lender
mayhave
had
notice
or
knowledge
of
any
Default
at
the
time
of
any
Credit
Extension,
and
shall
continue
in
full
force
and
effect
as
long
as
any
Loan
or
anyother
Obligation
hereunder
shall
remain
unpaid
or
unsatisfied
or
any
Letter
of
Credit
shall
remain
outstanding.11.12
Severability . If
any
provision
of
this
Agreement
or
the
other
Loan
Documents
is
held
to
be
illegal,
invalid
or
unenforceable,
(a)
thelegality,
validity
and
enforceability
of
the
remaining
provisions
of
this
Agreement
and
the
other
Loan
Documents
shall
not
be
affected
or
impairedthereby
and(b)
the
parties
shall
endeavor
in
good
faith
negotiations
to
replace
the
illegal,
invalid
or
unenforceable
provisions
with
valid
provisions
the
economiceffect
of
which
comes
as
close
as
possible
to
that
of
the
illegal,
invalid
or
unenforceable
provisions.
The
invalidity
of
a
provision
in
a
particularjurisdiction
shall
not
invalidate
or
render
unenforceable
such
provision
in
any
other
jurisdiction.
Without
limiting
the
foregoing
provisions
of
thisSection
11.12
,
if
and
to
the
extent
that
the
enforceability
of
any
provisions
in
this
Agreement
relating
to
Defaulting
Lenders
shall
be
limited
by
DebtorRelief
Laws,
as
determined
in
good
faith
by
the
Administrative
Agent,
an
L/C
Issuer
or
the
Swing
Line
Lender,
as
applicable,
then
such
provisionsshall
be
deemed
to
be
in
effect
only
to
the
extent
not
so
limited.11.13Replacement 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
ofany
Lender
pursuant
to
Section
3.01
,
(iii)
if
any
Lender
is
a
Defaulting
Lender,
(iv)
a
Lender
(a
"
Non-Consenting
Lender
")
does
not
consent
to
aproposed
change,
waiver,
discharge
or
termination
with
respect
to
any
Loan
Document
that
has
been
approved
by
the
Required
Lenders
as
provided
inSection
11.01
but
requires
unanimous
consent
of
all
Lenders
or
all
Lenders
directly
affected
thereby
(as
applicable),
or
(v)
a
Lender
does
not
approveanother
Alternative
Currency
requested
by
the
Borrower,
then
the
Borrower
may,
at
its
sole
expense
and
effort,
upon
notice
tosuch
Lender
and
the
Administrative
Agent,
require
such
Lender
to
assign
and
delegate,
without
recourse
(in
accordance
with
and
subject
to
therestrictions
contained
in,
and
consents
required
by,
Section
11.06
),
all
of
its
interests,
rights
and
obligations
under
this
Agreement
and
the
related
LoanDocuments
to
an
assignee
that
shall
assume
such
obligations
(which
assignee
may
be
another
Lender,
if
a
Lender
accepts
such
assignment),
providedthat:(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
and
L/C
Advances,accrued
interest
thereon,
accrued
fees
and
all
other
amounts
payable
to
it
hereunder
and
under
the
other
Loan
Documents
(including
anyamounts
under
Section
3.05
)
from
the
assignee
(to
the
extent
of
such
outstanding
principal
and
accrued
interest
and
fees)
or
the
Borrower
(inthe
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
bemade
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.11.14Governing Law; Jurisdiction; Etc .(a)
GOVERNING
LAW
.
THIS
AGREEMENT
SHALL
BE
GOVERNED
BY,
AND
CONSTRUED
IN
ACCORDANCE
WITH,THE
INTERNAL
LAWS
OF
THE
STATE
OF
FLORIDA.(b)
SUBMISSION
TO
JURISDICTION
.
THE
BORROWER
AND
EACH
OTHER
LOAN
PARTY
IRREVOCABLY
ANDUNCONDITIONALLY
SUBMITS,
FOR
ITSELF
AND
ITS
PROPERTY,
TO
THE
NONEXCLUSIVE
JURISDICTION
OF
THE
COURTSOF
THE
STATE
OF
FLORIDA
SITTING
IN
PINELLAS
COUNTY
OR
HILLSBOROUGH
COUNTY,
FLORIDA,
AND
OF
THE
UNITEDSTATES
DISTRICT
COURT
OF
THE
MIDDLE
DISTRICT
OF
FLORIDA,
AND
ANY
APPELLATE
COURT
FROM
ANY
THEREOF,
INANY
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
ANDUNCONDITIONALLY
AGREES
THAT
ALL
CLAIMS
IN
RESPECT
OF
ANY
SUCH
ACTION
OR
PROCEEDING
MAY
BE
HEARDAND
DETERMINED
IN
SUCH
FLORIDA
STATE
COURT
OR,
TO
THE
FULLEST
EXTENT
PERMITTED
BY
APPLICABLE
LAW,
INSUCH
FEDERAL
COURT.
EACH
OF
THE
PARTIES
HERETO
AGREES
THAT
A
FINAL
JUDGMENT
IN
ANY
SUCH
ACTION
ORPROCEEDING
SHALL
BE
CONCLUSIVE
AND
MAY
BE
ENFORCED
IN
OTHER
JURISDICTIONS
BY
SUIT
ONTHE
JUDGMENT
OR
IN
ANY
OTHER
MANNER
PROVIDED
BY
LAW.
NOTHING
IN
THIS
AGREEMENT
OR
IN
ANY
OTHERLOAN
DOCUMENT
SHALL
AFFECT
ANY
RIGHT
THAT
THE
ADMINISTRATIVE
AGENT,
ANY
LENDER
OR
ANY
L/C
ISSUERMAY
OTHERWISE
HAVE
TO
BRING
ANY
ACTION
OR
PROCEEDING
RELATING
TO
THIS
AGREEMENT
OR
ANY
OTHER
LOANDOCUMENT
AGAINST
THE
BORROWER
OR
ANY
OTHER
LOAN
PARTY
OR
ITS
PROPERTIES
IN
THE
COURTS
OF
ANYJURISDICTION.(c)
WAIVER
OF
VENUE
.
THE
BORROWER
AND
EACH
OTHER
LOAN
PARTY
IRREVOCABLY
ANDUNCONDITIONALLY
WAIVES,
TO
THE
FULLEST
EXTENT
PERMITTED
BY
APPLICABLE
LAW,
ANY
OBJECTION
THAT
ITMAY
NOW
OR
HEREAFTER
HAVE
TO
THE
LAYING
OF
VENUE
OF
ANY
ACTION
OR
PROCEEDING
ARISING
OUT
OF
ORRELATING
TO
THIS
AGREEMENT
OR
ANY
OTHER
LOAN
DOCUMENT
IN
ANY
COURT
REFERRED
TO
IN
PARAGRAPH
(B)
OFTHIS
SECTION.
EACH
OF
THE
PARTIES
HERETO
HEREBY
IRREVOCABLY
WAIVES,
TO
THE
FULLEST
EXTENT
PERMITTEDBY
APPLICABLE
LAW,
THE
DEFENSE
OF
AN
INCONVENIENT
FORUM
TO
THE
MAINTENANCE
OF
SUCH
ACTION
ORPROCEEDING
IN
ANY
SUCH
COURT.(d)
SERVICE
OF
PROCESS
.
EACH
PARTY
HERETO
IRREVOCABLY
CONSENTS
TO
SERVICE
OF
PROCESS
IN
THEMANNER
PROVIDED
FOR
NOTICES
IN
SECTION
11.02
.
NOTHING
IN
THIS
AGREEMENT
WILL
AFFECT
THE
RIGHT
OF
ANYPARTY
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
EXTENTPERMITTED
BY
APPLICABLE
LAW,
ANY
RIGHT
IT
MAY
HAVE
TO
A
TRIAL
BY
JURY
IN
ANY
LEGAL
PROCEEDING
DIRECTLY
ORINDIRECTLY
ARISING
OUT
OF
OR
RELATING
TO
THIS
AGREEMENT
OR
ANY
OTHER
LOAN
DOCUMENT
OR
THE
TRANSACTIONSCONTEMPLATED
HEREBY
OR
THEREBY
(WHETHER
BASED
ON
CONTRACT,
TORT
OR
ANY
OTHER
THEORY).
EACH
PARTYHERETO
(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
THEFOREGOING
WAIVER
AND(B)
ACKNOWLEDGES
THAT
IT
AND
THE
OTHER
PARTIES
HERETO
HAVE
BEEN
INDUCED
TO
ENTER
INTO
THIS
AGREEMENTAND
THE
OTHER
LOAN
DOCUMENTS
BY,
AMONG
OTHER
THINGS,
THE
MUTUAL
WAIVERS
AND
CERTIFICATIONS
IN
THISSECTION.11.16
USA PATRIOT Act Notice . Each
Lender
that
is
subject
to
the
Act
(as
hereinafter
defined)
and
the
Administrative
Agent
(for
itselfand
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
"
Act
"),
it
is
required
to
obtain,
verify
and
record
information
that
identifies
the
Borrower,
which
informationincludes
the
name
and
address
of
the
Borrower
and
other
information
that
will
allow
such
Lender
or
the
Administrative
Agent,
as
applicable,
to
identifythe
Borrower
in
accordance
with
the
Act.
The
Borrower
shall,
promptly
following
a
request
by
the
Administrative
Agent
or
any
Lender,
provide
alldocumentation
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-moneylaundering
rules
and
regulations,
including
the
Act.11.17
Judgment Currency . If,
for
the
purposes
of
obtaining
judgment
in
any
court,
it
is
necessary
to
convert
a
sum
due
hereunder
or
anyother
Loan
Document
in
one
currency
into
another
currency,
the
rate
of
exchange
used
shall
be
that
at
which
in
accordance
with
normal
bankingprocedures
the
Administrative
Agent
could
purchase
the
first
currency
with
such
other
currency
on
the
Business
Day
preceding
that
on
which
finaljudgment
is
given.
The
obligation
of
the
Borrower
in
respect
of
any
such
sum
due
to
the
Administrative
Agent
or
the
Lenders
hereunder
or
under
theother
Loan
Documents
shall,
notwithstanding
any
judgment
in
a
currency
(the
"
Judgment
Currency
")
other
than
that
in
which
such
sum
isdenominated
in
accordance
with
the
applicable
provisions
of
this
Agreement
(the
"
Agreement
Currency
"),
be
discharged
only
to
the
extent
that
on
theBusiness
Day
following
receipt
by
the
Administrative
Agent
of
any
sum
adjudged
to
be
so
due
in
the
Judgment
Currency,
the
Administrative
Agentmay
in
accordance
with
normal
banking
procedures
purchase
the
Agreement
Currency
with
the
Judgment
Currency.
If
the
amount
of
the
AgreementCurrency
so
purchased
is
less
than
the
sum
originally
due
to
the
Administrative
Agent
in
the
Agreement
Currency,
the
Borrower
agrees,
jointly
andseverally,
as
a
separate
obligation
and
notwithstanding
any
such
judgment,
to
indemnify
the
Administrative
Agent
or
the
Person
to
whom
suchobligation
was
owing
against
such
loss.
If
the
amount
of
the
Agreement
Currency
so
purchased
is
greater
than
the
sum
originally
due
to
theAdministrative
Agent
in
such
currency,
the
Administrative
Agent
agrees
to
return
the
amount
of
any
excess
to
the
Borrower
(or
to
any
other
Personwho
may
be
entitled
thereto
under
applicable
law).11.18
No Advisory or Fiduciary Responsibility . In
connection
with
all
aspects
of
each
transaction
contemplated
hereby
(including
inconnection
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
and
the
Arrangers
are
arm's-lengthcommercial
transactions
between
the
Borrower,
each
other
Loan
Party
and
their
respective
Affiliates,
on
the
one
hand,
and
the
Administrative
Agentand
the
Arrangers,
on
the
other
hand,
(B)
the
Borrower
and
the
other
Loan
Parties
has
consulted
its
own
legal,
accounting,
regulatory
and
tax
advisorsto
the
extent
it
has
deemed
appropriate,
and
(C)
the
Borrower
and
each
other
Loan
Party
is
capable
of
evaluating,
and
understands
and
accepts,
theterms,
risks
and
conditions
of
the
transactions
contemplated
hereby
and
by
the
other
Loan
Documents;
(ii)
(A)
each
of
the
Administrative
Agent
andeach
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,
andwill
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
Arranger
has
any
obligation
to
the
Borrower,
any
other
Loan
Party
or
any
of
their
respective
Affiliateswith
respect
to
the
transactions
contemplated
hereby
except
those
obligations
expressly
set
forth
herein
and
in
the
other
Loan
Documents;
and
(iii)
theAdministrative
Agent
and
each
Arranger
and
their
respective
Affiliates
may
be
engaged
in
a
broad
range
of
transactions
that
involve
interests
that
differfrom
those
of
the
Borrower,
the
other
Loan
Parties
and
their
respective
Affiliates,
and
neither
the
Administrative
Agent
nor
each
Arranger
has
anyobligation
to
disclose
any
of
such
interests
to
the
Borrower,
any
other
Loan
Party
or
any
of
their
respective
Affiliates.
To
the
fullest
extent
permitted
bylaw,
the
Borrower
and
the
other
Loan
Parties
hereby
waives
and
releases
any
claims
that
it
may
have
against
the
Administrative
Agent
and
theArrangers
with
respect
to
any
breach
or
alleged
breach
of
agency
or
fiduciary
duty
in
connection
with
any
aspect
of
any
transaction
contemplatedhereby.11.19Electronic 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
withthis
Agreement
and
the
transactions
contemplated
hereby
(including
without
limitation
Assignment
and
Assumptions,
amendments
or
othermodifications,
Committed
Loan
Notices,
Swing
Line
Loan
Notices,
waivers
and
consents)
shall
be
deemed
to
include
electronic
signatures,
theelectronic
matching
of
assignment
terms
and
contract
formations
on
electronic
platforms
approved
by
the
Administrative
Agent,
or
the
keeping
ofrecords
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
apaper-based
recordkeeping
system,
as
the
case
may
be,
to
the
extent
and
as
provided
for
in
any
applicable
law,
including
the
Federal
ElectronicSignatures
in
Global
and
National
Commerce
Act,
the
New
York
State
Electronic
Signatures
and
Records
Act,
or
any
other
similar
state
laws
based
onthe
Uniform
Electronic
Transactions
Act;
provided
that
notwithstanding
anything
contained
herein
to
the
contrary
the
Administrative
Agent
is
under
noobligation
to
agree
to
accept
electronic
signatures
in
any
form
or
in
any
format
unless
expressly
agreed
to
by
the
Administrative
Agent
pursuant
toprocedures
approved
by
it.11.20Amendment and Restatement .The
Borrower
agrees
that
this
Agreement
amends
and
restates
and
is
substituted
for
(and
is
not
executed
in
novation
of)
the
Existing
CreditAgreement
and
that
the
outstanding
obligations
of
the
Borrower
under
the
Existing
Credit
Agreement
are
now
evidenced
by
this
Credit
Agreement.
All"Loans"
made
and
"Obligations"
incurred
under
(and
as
defined
in)
the
Existing
Credit
Agreement
which
are
outstanding
on
the
Closing
Date
shallcontinue
as
Loans
and
Obligations
under
(and
shall
be
governed
by
the
terms
of)
this
Credit
Agreement
and
under
the
other
Loan
Documents.
Withoutlimitation
of
the
foregoing,
the
Borrower
acknowledges,
confirms
and
agrees
that
it
is
responsible
for
the
Obligations
hereunder
in
its
capacity
as
theBorrower.
The
Borrower
acknowledges
that
it
has
reviewed
the
terms
and
provisions
of
this
Credit
Agreement,
and
consents
to
the
amendment
andrestatement
of
the
Existing
Credit
Agreement
effected
pursuant
to
this
Credit
Agreement
and
reaffirms
its
obligations
with
respect
to
the
payment
andperformance
of
all
such
Obligations
which
are
obligations
of
the
Borrower
now
or
hereafter
existing. BORROWER: TECH DATA CORPORATION,a
Florida
corporationBy:
/s/
Scott
W.
Walker
Name:
Scott
W.
WalkerTitle:
TreasurerTECH DATA CO RPORATION CRE DIT AGREEMENT NOVEMBER 2015 ADMINISTRATIVE AGENT: BANK OF AMERICA , N.A.,as
Administrative
AgentBy:
/s/
Robert
J.
Rittelmeyer
Name:
Robert
J.
RittelmeyerTitle:
Vice
PresidentTE C H DATA C OR P ORA TI ON CRED IT AG R EE M ENT NOVEM B E R 2015 LENDERS: BANK OF AMERICA, N.A.,as
a
Lender,
an
L/C
Issuer
and
Swing
Line
LenderBy:
/s/
Jeannette
Lu
Name:
Jeannette
LuTitle:
Vice
PresidentTECH DATA CORPORATION CREDIT AGREEMEN T NOVEMBER 2015 CITIBANK, N.A.as
a
Lender
and
an
L/C
IssuerBy:
/s/
Susan
M.
Olsen
Name:
Susan
M.
OlsenTitle:
Vice
PresidentTECH DATA CORPORATION CREDIT AGREEMENT NOVEMBER 2015 JPMORGAN CHASE BANK, N.A.as
a
Lender
and
an
L/C
IssuerBy:
/s/
Justin
Kelley
Name:
Justin
KelleyTitle:
Vice
PresidentTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 THE BANK OF NOVA SCOTIABy:
/s/
Eugene
Dempsey
Name:
Eugene
DempseyTitle:
DirectorTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 SUNTRUST BANKBy:
/s/
James
R
Spaulding
Name:
James
R
SpauldingTitle:
FVPTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.By:
/s/
Matthew
Antioco
Name:
Matthew
AntiocoTitle:
Vice
PresidentTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 U.S. BANK, NATIONAL ASSOCIATIONBy:
/s/
Brian
Seipke
Name:
Brian
SeipkeTitle:
Vice
PresidentTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 UNICREDIT BANK AG, NEW YORK BRANCHBy:
/s/
Douglas
Riahi
Name:
Douglas
RiahiTitle:
Managing
DirectorBy:
/s/
Bryon
Korutz
Name:
Bryon
KorutzTitle:
Associate
DirectorTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 HSBC BANK USA, NATIONALASSOCIATIONBy:
/s/
Richard
LavinaName:Richard
LavinaTitle:
EVP
Head
of
SoutheastLarge
Corporate TECH
DATA
CORPORATION
CREDIT
AGREEMENT
NOVEMBER2015 SKANDINAVISKA ENSKILDA BANKEN AB(publ)By:
/s/
Penny
Neville-ParkName:
Penny
Neville-ParkTitle:
Authorized
signatoryBy:
/s/
Duncan
NashName:
Duncan
NashTitle:
Authorized
signatoryT EC H DATA C ORPORATION CREDIT AGR E EMENT NOVEMBER 2015 BRANCH BANKING & TRUST COMPANYBy:
/s/
Kelly
Attayek
Name:
Kelly
AttayekTitle:
Assistant
Vice
PresidentTECH
DATA
CORPORATIONCREDIT
AGREEMENTNOVEMBER
2015 EXHIBIT AFORM OF COMMITTED LOAN NOTICEDate:
,
To:
Bank
of
America,
N.A.,
as
Administrative
Agent
Ladies
and
Gentlemen:Reference
is
made
to
that
certain
Amended
and
Restated
Credit
Agreement,
dated
as
of
November
5,
2015
(as
amended,
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
Bank
of
America,
N.A.,
asAdministrative
Agent,
L/C
Issuer
and
Swing
Line
Lender.The
undersigned
hereby
requests
(select
one):•A
Borrowing
of
Committed
Loans
q
A
conversion
or
continuation
of
Loans1.On
(a
Business
Day).2.In
the
amount
of
.[State
currency
and
amount]3.Comprised
of
.[Type
of
Committed
Loan
requested]4.For
Eurocurrency
Rate
Loans:
with
an
Interest
Period
of
[one week] [ months] .The
Committed
Borrowing
requested
herein
complies
with
the
proviso
to
the
first
sentence
of
Section
2.01
of
the
Agreement.The
Borrower
hereby
represents
and
warrants
that
the
conditions
specified
in
Sections
5.02(a)
and
(b)
shall
be
satisfied
on
and
as
of
the
date
ofthe
Credit
Extension.TECH DATA CORPORATIONBy:
Name:Title:
EXHIBIT BFORM OF SWING LINE LOAN NOTICEDate:
,
To:Bank
of
America,
N.A.,
as
Swing
Line
Lender
Bank
of
America,
N.A.,
as
Administrative
AgentLadies
and
Gentlemen:Reference
is
made
to
that
certain
Amended
and
Restated
Credit
Agreement,
dated
as
of
November
5,
2015
(as
amended,
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
Bank
of
America,
N.A.,
asAdministrative
Agent,
L/C
Issuer
and
Swing
Line
Lender.The
undersigned
hereby
requests
a
Swing
Line
Loan:1.On
(a
Business
Day).2.In
the
amount
of
$
.The
Swing
Line
Borrowing
requested
herein
complies
with
the
requirements
of
the
provisos
to
the
first
sentence
of
Section
2.04(a)
of
theAgreement.The
Borrower
hereby
represents
and
warrants
that
the
conditions
specified
in
Sections
5.02(a)
and
(b)
shall
be
satisfied
on
and
as
of
the
date
ofthe
Credit
Extension.TECH DATA CORPORATIONBy:
Name:
Title:
EXHIBIT CFORM OF NOTE
,
2015FOR
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
eachLoan
from
time
to
time
made
by
the
Lender
to
the
Borrower
under
that
certain
Amended
and
Restated
Credit
Agreement,
dated
as
of
November
5,2015
(as
amended,
restated,
extended,
supplemented
or
otherwise
modified
in
writing
from
time
to
time,
the
"
Agreement
;"
the
terms
defined
thereinbeing
used
herein
as
therein
defined),
among
the
Borrower,
the
Lenders
from
time
to
time
party
thereto,
and
Bank
of
America,
N.A.,
as
AdministrativeAgent,
L/C
Issuer
and
Swing
Line
Lender.The
Borrower
promises
to
pay
interest
on
the
unpaid
principal
amount
of
each
Loan
from
the
date
of
such
Loan
until
such
principalamount
is
paid
in
full,
at
such
interest
rates
and
at
such
times
as
provided
in
the
Agreement.
Except
as
otherwise
provided
in
Section
2.04(f)
of
theAgreement
with
respect
to
Swing
Line
Loans,
all
payments
of
principal
and
interest
shall
be
made
to
the
Administrative
Agent
for
the
account
of
theLender
in
the
currency
in
which
such
Loan
was
denominated
in
Same
Day
Funds
at
the
Administrative
Agent's
Office.
If
any
amount
is
not
paid
in
fullwhen
due
hereunder,
such
unpaid
amount
shall
bear
interest,
to
be
paid
upon
demand,
from
the
due
date
thereof
until
the
date
of
actual
payment
(andbefore
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
partsubject
to
the
terms
and
conditions
provided
therein.
This
Note
is
also
entitled
to
the
benefits
of
the
Facility
Guaranty.
Upon
the
occurrence
andcontinuation
of
one
or
more
of
the
Events
of
Default
specified
in
the
Agreement,
all
amounts
then
remaining
unpaid
on
this
Note
shall
become,
or
maybe
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
loanaccounts
or
records
maintained
by
the
Lender
in
the
ordinary
course
of
business.
The
Lender
may
also
attach
schedules
to
this
Note
and
endorsethereon
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
OFFLORIDA.TECH DATA CORPORATIONBy:
Name:
Title:
EXHIBIT DFORM OF COMPLIANCE CERTIFICATEFinancial
Statement
Date:
,To:
Bank
of
America,
N.A.,
as
Administrative
Agent
Ladies
and
Gentlemen:Reference
is
made
to
that
certain
Amended
and
Restated
Credit
Agreement,
dated
as
of
November
5,
2015
(as
amended,
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
Bank
of
America,
N.A.,
asAdministrative
Agent,
L/C
Issuer
and
Swing
Line
Lender.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
behalfof
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
yearof
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
fiscalquarter
of
the
Borrower
ended
as
of
the
above
date.
Such
financial
statements
fairly
present
the
financial
condition,
results
of
operations
and
cash
flowsof
the
Borrower
and
its
Subsidiaries
in
accordance
with
GAAP
as
at
such
date
and
for
such
period,
subject
only
to
normal
year-
end
audit
adjustmentsand
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/hersupervision,
a
detailed
review
of
the
transactions
and
condition
(financial
or
otherwise)
of
the
Borrower
during
the
accounting
period
covered
by
theattached
financial
statements.3.
A
review
of
the
activities
of
the
Borrower
during
such
fiscal
period
has
been
made
under
the
supervision
of
the
undersigned
with
aview
to
determining
whether
during
such
fiscal
period
the
Borrower
performed
and
observed
all
its
Obligations
under
the
Loan
Documents,
and [select one:][to the best knowledge of the undersigned during such fiscal period, the Borrower performed and observed each covenant andcondition 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 itsnature and status:]4.
The
representations
and
warranties
of
the
Borrower
contained
in
Article
VI
of
the
Agreement,
or
which
are
contained
in
anydocument
furnished
at
any
time
under
or
in
connection
with
the
Loan
Documents,
are
true
and
correct
in
all
material
respects
(unless
suchrepresentation
or
warranty
is
already
qualified
by
materiality
or
Material
Adverse
Effect,
in
which
case
it
shall
be
true
and
correct
in
all
respects)
onand
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
trueand
correct
in
all
material
respects
(unless
such
representation
or
warranty
is
already
qualified
by
materiality
or
Material
Adverse
Effect,
in
which
caseit
shall
be
true
and
correct
in
all
respects)
as
of
such
earlier
date,
and
except
that
for
purposes
of
this
Compliance
Certificate,
the
representations
andwarranties
contained
in
subsections
(a)
and
(b)
of
Section6.05
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
ofthis
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
accurateand
complete
as
of
the
date
of
this
Compliance
Certificate.IN
WITNESS
WHEREOF
,
the
undersigned
has
executed
this
Compliance
Certificate
as
of
,
.TECH DATA CORPORATIONBy:
Name:
Title:
For
the
Quarter/Year
ended
("
Statement
Date
")SCHEDULE 2to
the
Compliance
Certificate
($
in
000's)I.Section 8.13(a) — Consolidated Debt-to-Capitalization Ratio. 1&3A.Consolidated
Funded
Indebtedness
at
Statement
Date:
$
B.Consolidated
Total
Capitalization
at
Statement
Date:1.Consolidated
Funded
Indebtedness
at
Statement
Date:
$
2.Shareholder's
Equity:
$
3.Consolidated
Total
Capitalization
(Lines
III.B.1
+
2):
$
C.Consolidated
Debt-to-Capitalization
Ratio
(Line
II.A.
÷
LineII.B.3):
$
Maximum
permitted
:
0.40
to
1.00II.Section 8.13(b) — Consolidated Interest Coverage Ratio. 2A.Consolidated
EBITDA
for
four
consecutive
fiscal
quarters
ending
on
above
date
("
Subject
Period
")1.Consolidated
Net
Income
for
Subject
Period:
$
2.Consolidated
Interest
Charges
3
for
Subject
Period:
$
3.Provision
for
income
taxes
for
Subject
Period:
$
4.Depreciation
expense
for
Subject
Period:
$
5.Amortization
expense
for
Subject
Period:
$
6.Consolidated
EBITDA
(Lines
III.A.1
+
2
+
3
+
4
+
5):
$
B.Consolidated
Interest
Charges
4
for
Subject
Period:
$
1
The
effect
of
currency
translation
adjustments
resulting
from
any
change
in
currency
exchange
rates
occurring
after
July
31,
2011
will
be
excluded
from
the
calculation
of
theConsolidated
Debt-to-Capitalization
Ratio.[
2
The
effect
of
any
non-cash
changes
due
to
impairments
in
accordance
with
Financial
Accounting
Standards
Statement
of
Financial
Standards
No.
142
or
any
non-cash
changesdue
to
the
expensing
of
non-vested
stock
options
existing
in
January
31,
2011,
in
accordance
with
FASB
Statement
of
Financial
Standards
No.
123R
or
successor
FASB
Standard
relating
tothe
expensing
of
stock
options
shall
be
disregarded
for
the
calculation
of
the
Consolidated
Debt-to-Capitalization
Ratio
and
the
Consolidated
Interest
Coverage
Ratio.]3
Consolidated
Interest
Charges
are
not
reduced
by
interest
income. C.Consolidated
Interest
Coverage
Ratio
(Line
III.A.6
÷
LineIII.B):
to
1.00Minimum
permitted:
3.00
to
1.00 EXHIBIT EASSIGNMENT AND ASSUMPTIONThis
Assignment
and
Assumption
(this
"
Assignment
and
Assumption
")
is
dated
as
of
the
Effective
Date
set
forth
below
and
is
enteredinto
by
and
between
[the][each]
1
Assignor
identified
in
item
1
below
([the][each,
an]
"
Assignor
")
and
[the][each]
2
Assignee
identified
in
item
2below
([the][each,
an]
"
Assignee
").
[It
is
understood
and
agreed
that
the
rights
and
obligations
of
[the
Assignors][the
Assignees]
3
hereunder
areseveral
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
Annex1
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
infull.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
theStandard
Terms
and
Conditions
and
the
Credit
Agreement,
as
of
the
Effective
Date
inserted
by
the
Administrative
Agent
as
contemplated
below
(i)
allof
[the
Assignor's][the
respective
Assignors']
rights
and
obligations
in
[its
capacity
as
a
Lender][their
respective
capacities
as
Lenders]
under
the
CreditAgreement
and
any
other
documents
or
instruments
delivered
pursuant
thereto
to
the
extent
related
to
the
amount
and
percentage
interest
identifiedbelow
of
all
of
such
outstanding
rights
and
obligations
of
[the
Assignor][the
respective
Assignors]
under
the
respective
facilities
identified
below(including,
without
limitation,
the
Letters
of
Credit
and
the
Swing
Line
Loans
included
in
such
facilities
5)
and
(ii)
to
the
extent
permitted
to
be
assignedunder
applicable
law,
all
claims,
suits,
causes
of
action
and
any
other
right
of
[the
Assignor
(in
its
capacity
as
a
Lender)][the
respective
Assignors
(intheir
respective
capacities
as
Lenders)]
against
any
Person,
whether
known
or
unknown,
arising
under
or
in
connection
with
the
Credit
Agreement,
anyother
documents
or
instruments
delivered
pursuant
thereto
or
the
loan
transactions
governed
thereby
or
in
any
way
based
on
or
related
to
any
of
theforegoing,
including,
but
not
limited
to,
contract
claims,
tort
claims,
malpractice
claims,
statutory
claims
and
all
other
claims
at
law
or
in
equity
relatedto
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
andassignment
is
without
recourse
to
[the][any]
Assignor
and,
except
as
expressly
provided
in
this
Assignment
and
Assumption,
without
representation
orwarranty
by
[the][any]
Assignor.Assignor[s]
:
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
assignmentis
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
isto
multiple
Assignees,
choose
the
second
bracketed
language.3Select
as
appropriate.4Include
bracketed
language
if
there
are
either
multiple
Assignors
or
multiple
Assignees.5Include
all
applicable
subfacilities. 3.Borrower
:
Tech
Data
Corporation,
a
Florida
corporation4.Administrative
Agent
:
Bank
of
America,
N.A.,
as
the
administrative
agentunder
the
Credit
Agreement5.Credit
Agreement
:
The
Amended
and
Restated
Credit
Agreement,
dated
asof
November
5,
2015
among
Tech
Data
Corporation,
the
Lenders
parties
thereto,
and
Bank
ofAmerica,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
L/C
Issuer6.Assigned
Interest:Assignor[s]
6Assignee[s]
7FacilityAssigned
8Aggregate
AmountofCommitment/Loans
forall
Lenders
9Amount
ofCommitment/Loans
AssignedPercentageAssigned
ofCommitment/Loans
10CUSIP
Number
$$%
[7.
Trade
Date:
]
11Effective
Date:
,
20
[TO
BE
INSERTED
BY
ADMINISTRATIVE
AGENT
AND
WHICH
SHALL
BE
THE
EFFECTIVE
DATE
OFRECORDATION
OF
TRANSFER
IN
THE
REGISTER
THEREFOR.]The
terms
set
forth
in
this
Assignment
and
Assumption
are
hereby
agreed
to:ASSIGNOR[NAME
OF
ASSIGNOR]By:Title:ASSIGNEE [NAME
OF
ASSIGNEE]By:Title:[Consented
to
and]
12
Accepted:6
List
each
Assignor,
as
appropriate.7
List
each
Assignee,
as
appropriate.8
Fill
in
the
appropriate
terminology
for
the
types
of
facilities
under
the
Credit
Agreement
that
are
being
assigned
under
this
Assignment
(e.g.
“Revolving
Credit
Commitment”,
“Term
ACommitment”,
etc.).9
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
andthe
Effective
Date.10
Set
forth,
to
at
least
9
decimals,
as
a
percentage
of
the
Commitment/Loans
of
all
Lenders
thereunder.11
To
be
completed
if
the
Assignor
and
the
Assignee
intend
that
the
minimum
assignment
amount
is
to
be
determined
as
of
the
Trade
Date.12
To
be
added
only
if
the
consent
of
the
Administrative
Agent
is
required
by
the
terms
of
the
Credit
Agreement. BANK
OF
AMERICA,
N.A.,as
Administrative
AgentBy:
Title:[Consented
to:]
13By:
Title: 13
To
be
added
only
if
the
consent
of
the
Borrower
and/or
other
parties
(
e.g.
Swing
Line
Lender,
L/C
Issuer)
is
required
by
the
terms
of
the
Credit
Agreement. ANNEX 1 TO ASSIGNMENT AND ASSUMPTIONAMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF NOVEMBER 5, 2015, AMONG TECH DATA CORPORATION,THE LENDERS PARTIES THERETO,AND BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, SWING LINE LENDER AND L/C ISSUERSTANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION1.
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]
AssignedInterest,
(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,
andhas
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
orany
other
Loan
Document,
(ii)
the
execution,
legality,
validity,
enforceability,
genuineness,
sufficiency
or
value
of
the
Loan
Documents
or
anycollateral
thereunder,
(iii)
the
financial
condition
of
the
Borrower,
any
of
its
Subsidiaries
or
Affiliates
or
any
other
Person
obligated
in
respect
of
anyLoan
Document
or
(iv)
the
performance
or
observance
by
the
Borrower,
any
of
its
Subsidiaries
or
Affiliates
or
any
other
Person
of
any
of
theirrespective
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
theCredit
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
theCredit
Agreement),
(iii)
from
and
after
the
Effective
Date,
it
shall
be
bound
by
the
provisions
of
the
Credit
Agreement
as
a
Lender
thereunder
and,
tothe
extent
of
[the][the
relevant]
Assigned
Interest,
shall
have
the
obligations
of
a
Lender
thereunder,
(iv)
it
is
sophisticated
with
respect
to
decisions
toacquire
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
orhas
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
andAssumption
and
to
purchase
[the][such]
Assigned
Interest,
(vi)
it
has,
independently
and
without
reliance
upon
the
Administrative
Agent
or
any
otherLender
and
based
on
such
documents
and
information
as
it
has
deemed
appropriate,
made
its
own
credit
analysis
and
decision
to
enter
into
thisAssignment
and
Assumption
and
to
purchase
[the][such]
Assigned
Interest,
and
(vii)
if
it
is
a
Foreign
Lender,
attached
hereto
is
any
documentationrequired
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
anyother
Lender,
and
based
on
such
documents
and
information
as
it
shall
deem
appropriate
at
the
time,
continue
to
make
its
own
credit
decisions
in
takingor
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
theLoan
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]
AssignedInterest
(including
payments
of
principal,
interest,
fees
and
other
amounts)
to
[the][the
relevant]
Assignor
for
amounts
which
have
accrued
to
butexcluding
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
theirrespective
successors
and
assigns.
This
Assignment
and
Assumption
may
be
executed
in
any
number
of
counterparts,
which
together
shall
constituteone
instrument.
Delivery
of
an
executed
counterpart
of
a
signature
page
of
this
Assignment
and
Assumption
by
telecopy
shall
be
effective
as
deliveryof
a
manually
executed
counterpart
of
this
Assignment
and
Assumption.
This
Assignment
and
Assumption
shall
be
governed
by,
and
construed
inaccordance
with,
the
law
of
the
State
of
Florida. EXHIBIT F-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
Amended
and
Restated
Credit
Agreement
dated
as
of
November
5,
2015
(as
amended,
supplementedor
otherwise
modified
from
time
to
time,
the
“
Credit
Agreement
”),
among
Tech
Data
Corporation
(the
“
Borrower
"),
the
Lenders
from
time
to
timeparty
thereto
and
Bank
of
America,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer.Pursuant
to
the
provisions
of
Section
3.01
of
the
Credit
Agreement,
the
undersigned
hereby
certifies
that
(i)
it
is
the
sole
record
andbeneficial
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
bankwithin
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
FormW-8BEN
or
W-8BEN-E,
as
applicable.
By
executing
this
certificate,
the
undersigned
agrees
that
(1)
if
the
information
provided
on
this
certificatechanges,
the
undersigned
shall
promptly
so
inform
the
Borrower
and
the
Administrative
Agent,
and
(2)
the
undersigned
shall
have
at
all
times
furnishedthe
Borrower
and
the
Administrative
Agent
with
a
properly
completed
and
currently
effective
certificate
in
either
the
calendar
year
in
which
eachpayment
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
theCredit
Agreement.[NAME
OF
LENDER]By:
Name:
Title:
Date:
,
20[
] EXHBIT F-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
Amended
and
Restated
Credit
Agreement
dated
as
of
November
5,
2015
(as
amended,
supplementedor
otherwise
modified
from
time
to
time,
the
“
Credit
Agreement
”),
among
Tech
Data
Corporation
(the
“
Borrower
"),
the
Lenders
from
time
to
timeparty
thereto
and
Bank
of
America,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer.Pursuant
to
the
provisions
of
Section
3.01
of
the
Credit
Agreement,
the
undersigned
hereby
certifies
that
(i)
it
is
the
sole
record
andbeneficial
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
acontrolled
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,
theundersigned
shall
promptly
so
inform
such
Lender
in
writing,
and
(2)
the
undersigned
shall
have
at
all
times
furnished
such
Lender
with
a
properlycompleted
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
twocalendar
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
theCredit
Agreement.[NAME
OF
PARTICIPANT]By:
Name:
Title:
Date:
,
20[
] EXHIBIT F-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
Amended
and
Restated
Credit
Agreement
dated
as
of
November
5,
2015
(as
amended,
supplementedor
otherwise
modified
from
time
to
time,
the
“
Credit
Agreement
”),
among
Tech
Data
Corporation
(the
“
Borrower
"),
the
Lenders
from
time
to
timeparty
thereto
and
Bank
of
America,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer.Pursuant
to
the
provisions
of
Section
3.01
of
the
Credit
Agreement,
the
undersigned
hereby
certifies
that
(i)
it
is
the
sole
record
ownerof
the
participation
in
respect
of
which
it
is
providing
this
certificate,
(ii)
its
direct
or
indirect
partners/members
are
the
sole
beneficial
owners
of
suchparticipation,(iii)
with
respect
such
participation,
neither
the
undersigned
nor
any
of
its
direct
or
indirect
partners/members
is
a
bank
extending
credit
pursuantto
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
itsdirect
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)
noneof
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
eachof
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
FormW-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
isclaiming
the
portfolio
interest
exemption.
By
executing
this
certificate,
the
undersigned
agrees
that
(1)
if
the
information
provided
on
this
certificatechanges,
the
undersigned
shall
promptly
so
inform
such
Lender
and
(2)
the
undersigned
shall
have
at
all
times
furnished
such
Lender
with
a
properlycompleted
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
twocalendar
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
theCredit
Agreement.[NAME
OF
PARTICIPANT]By:
Name:
Title:
Date:
,
20[
] EXHIBIT F-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
Amended
and
Restated
Credit
Agreement
dated
as
of
November
5,
2015
(as
amended,
supplementedor
otherwise
modified
from
time
to
time,
the
“
Credit
Agreement
”),
among
Tech
Data
Corporation
(the
“
Borrower
"),
the
Lenders
from
time
to
timeparty
thereto
and
Bank
of
America,
N.A.,
as
Administrative
Agent,
Swing
Line
Lender
and
an
L/C
Issuer.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
theLoan(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/membersare
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
tothis
Credit
Agreement
or
any
other
Loan
Document,
neither
the
undersigned
nor
any
of
its
direct
or
indirect
partners/members
is
a
bank
extendingcredit
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
theCode
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
thefollowing
forms
from
each
of
its
partners/members
that
is
claiming
the
portfolio
interest
exemption:
(i)
an
IRS
Form
W-8BEN
or
W-8BEN-E,
asapplicable,
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
isclaiming
the
portfolio
interest
exemption.
By
executing
this
certificate,
the
undersigned
agrees
that
(1)
if
the
information
provided
on
this
certificatechanges,
the
undersigned
shall
promptly
so
inform
the
Borrower
and
the
Administrative
Agent,
and
(2)
the
undersigned
shall
have
at
all
times
furnishedthe
Borrower
and
the
Administrative
Agent
with
a
properly
completed
and
currently
effective
certificate
in
either
the
calendar
year
in
which
eachpayment
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
theCredit
Agreement.[NAME
OF
LENDER]By:
Name:
Title:
Date:
,
20[
] EXHIBIT GLetter of Credit ReportTO:
Bank
of
America,
N.A.,
as
Administrative
AgentRE:Amended
and
Restated
Credit
Agreement,
dated
as
of
November
5,
2015
(as
amended,
restated,
extended,
supplemented
or
otherwisemodified
in
writing
from
time
to
time,
the
"
Credit
Agreement
";
the
terms
defined
therein
being
used
herein
as
therein
defined),
amongTech
Data
Corporation
(the
“
Borrower
"),
the
Lenders
from
time
to
time
party
thereto
and
Bank
of
America,
N.A.,
as
AdministrativeAgent,
Swing
Line
Lender
and
an
L/C
IssuerDATE:
.
The
undersigned,
[
]
(the
“
L/C
Issuer
”)
hereby
delivers
this
report
to
the
Administrative
Agent,
pursuant
to
the
terms
of
Section
2.03(k)
ofthe
Credit
Agreement.Set
forth
in
the
table
below
is
a
description
of
each
Letter
of
Credit
issued
by
the
undersigned
and
outstanding
on
the
date
hereof.L/CNo.MaximumFaceAmountCurrentFaceAmountCurrencyFinancials orPerformanceSBLCBeneficiaryNameIssuanceDateExpiryDateAutoRenewalDate ofAmendmentAmount ofAmendment
Delivery
of
an
executed
counterpart
of
a
signature
page
of
this
notice
by
fax
transmission
or
other
electronic
mail
transmission
(e.g.
“pdf”
or“tif”)
shall
be
effective
as
delivery
of
a
manually
executed
counterpart
of
this
notice.[
], as
L/C
IssuerBy:
Name:
Title:
CHAR1\1429692v7 EMPLOYMENT
AGREEMENTTHIS
EMPLOYMENT
AGREEMENT
(the
“Agreement”)
is
executed
on
the
1st
day
of
February,
2016
by
and
between
Tech
DataCorporation,
a
Florida
corporation
(the
“Employer”),
and
Richard
Hume
(the
“Employee”).RECITALSA.
Employee
desires
to
serve
in
the
position
of
Chief
Operating
Officer.B.
Employer
desires
to
employ
Employee
in
the
position
of
Chief
Operating
Officer.NOW,
THEREFORE,
in
consideration
of
the
mutual
covenants,
promises
and
agreements
set
forth
herein,
the
receipt
and
adequacy
ofwhich
are
hereby
acknowledged,
Employer
and
Employee
agree
as
follows:1.
Employment
.1.1
Position
.
Subject
to
the
terms
and
conditions
of
this
Agreement,
Employer
shall
engage
Employee,
and
Employee
hereby
acceptsemployment,
in
the
position
of
Chief
Operating
Officer,
with
all
the
duties,
responsibilities
and
authority
normally
associated
with
suchposition.
Employer
and
Employee
acknowledge
that,
as
Chief
Operating
Officer,
Employee
shall
report
to
the
Chief
Executive
Officer
(the“CEO”)
of
the
Employer.1.2
Duties/Other
Employment
.
During
his
employment
with
Employer,
Employee
shall
devote
substantially
all
of
his
business
time
and
allreasonable
efforts
to
his
employment
and
perform
diligently
such
duties.
Employee
shall
not,
without
the
prior
written
consent
of
the
CEO,directly
or
indirectly,
other
than
in
the
performance
of
duties
naturally
inherent
in
the
businesses
of
Employer
and/or
in
furtherance
thereof,render
services
of
a
business,
professional
or
commercial
nature
to
any
other
person
or
firm,
whether
for
compensation
or
otherwise;
provided,however,
that
so
long
as
it
does
not
interfere
with
his
full-time
employment
hereunder,
Employee
may
attend
to
outside
investments,
and
uponapproval
of
the
Compensation
Committee
of
the
Employer’s
Board
of
Directors
(the
“Compensation
Committee”),
the
Employee
may
serve
asa
director
of
a
corporation
which
does
not
compete
with
Employer
(within
the
meaning
of
Section
5.1),
and
serve
as
a
director,
trustee
orofficer
of
or
otherwise
participate
in
educational,
welfare,
social,
religious
and
civic
organizations.
Employee’s
work
location
shall
be
at
theEmployer’s
headquarters
in
Clearwater,
Florida.
In
Employee's
position
as
an
officer
of
the
Employer,
he
will
be
subject
to
Section
16
of
theSecurities
Exchange
Act
of
1934,
as
amended
(the
“Exchange
Act”)
and
the
Employer
shall
assist
Employee
in
timely
making
any
requisitefilings
with
the
Securities
and
Exchange
Commission
(“SEC”).(Matter
#
000975) 2.
Employment
Term
.
Subject
to
the
provisions
for
termination
as
hereinafter
provided,
the
term
of
Employee’s
employment
with
theEmployer
shall
begin
on
March
1,
2016
or
such
other
date
as
the
Employer
and
Employee
may
mutually
agree
(the
“Effective
Date”)
and
shallcontinue
until
such
time
as
it
is
terminated
as
provided
in
Section
7
(the
“Term”).3.
Remuneration
.
During
the
Term
that
Employee
is
employed
by
Employer
pursuant
to
this
Agreement,
Employer
shall
pay,
provide
ormake
available
to
Employee
the
following
compensation,
remuneration
and
other
benefits:3.1
Salary
.
As
compensation
for
Employee’s
services
to
Employer,
Employer
shall
pay
Employee
an
annual
base
salary
in
the
amount
ofSix
Hundred
Fifty
Thousand
dollars
($650,000)
(the
“Base
Salary”)
in
biweekly
installments
consistent
with
its
practices
at
its
Clearwater,Florida
location
(subject
to
all
applicable
governmental
withholdings,
and
any
deductions
or
withholdings
authorized
by
Employee).
The
BaseSalary
shall
be
reviewed
annually
by
the
Compensation
Committee
on
the
same
basis
as
applicable
to
the
other
senior
executive
officers,provided
that
during
the
initial
twenty-four
months
of
Employee’s
employment
(the
“Initial
Period”),
the
Base
Salary
shall
not
be
reducedunless
such
reduction
is
made
in
conjunction
with
and
in
the
same
proportion
as
base
salary
reductions
applicable
to
the
Employer’s
othersenior
executive
officers.3.2
Annual
Bonus
.
During
each
fiscal
year
in
the
Term,
Employee
shall
be
eligible
to
participate
in
the
Employer’s
Executive
IncentiveBonus
Plan
or
such
other
annual
bonus
plan
applicable
to
the
Employer’s
senior
executive
officers.
Employee’s
target
bonus
opportunity
forthe
2017
fiscal
year
(“FY2017”)
has
been
separately
communicated
to
Employee.
Employee’s
actual
bonus
earned
for
FY2017
shall
be
subjectto
proration
in
the
event
the
Effective
Date
does
not
occur
on
or
prior
to
March
1,
2016.
Proration,
if
any,
shall
be
based
on
the
number
of
daysfrom
the
Effective
Date
through
the
last
day
of
FY2017.
The
target
bonus
opportunity
shall
be
reviewed
annually
by
the
CompensationCommittee
on
the
same
basis
as
applicable
to
the
other
senior
executive
officers,
provided
that
during
the
Initial
Period,
the
Employee’s
targetbonus
opportunity
shall
not
be
reduced
unless
such
reduction
is
made
in
conjunction
with,
and
in
the
same
proportion
as,
reductions
in
thetarget
bonus
opportunity
applicable
to
the
Employer’s
other
senior
executive
officers.3.3
Equity
Incentives
.
In
each
fiscal
year
during
the
Term,
Employee
shall
be
entitled
to
participate
in
long-term
equity
incentives
providedby
Employer
to
its
senior
executive
officers.
The
amount
of
such
awards
and
the
terms
and
conditions
thereof
shall
be
determined
by
theCompensation
Committee
on
the
same
basis
as
applicable
to
the
other
senior
executive
officers.
Employee’s
initial
award
of
long-term
equityincentives
shall
be
granted
during
March
2016
(or,
if
the
Effective
Date
is
later,
upon
the
Compensation
Committee
meeting
for
theEmployer’s
fiscal
quarter
in
which
the
Effective
Date
occurred).
The
amount
of
such
initial
award
has
been
separately
communicated
toEmployee.3.4
Buy-Out
Equity
.
In
consideration
of
Employee’s
forfeiture
of
certain
compensation
from
Employee’s
prior
employer,
at
the
time
of
theaward
of
the
initial
long-term
equity
incentives
described
in
Section
3.3
above,
Employee
shall
also
receive
a
special
grant
of
time-basedrestricted
stock
units
with
a
value
of
$850,000
(the
“Buy-Out
RSUs”).
Except
as
otherwise2 provided
in
this
Agreement,
the
Buy-Out
RSUs
will
be
subject
to
the
same
vesting
and
other
terms
and
conditions
applicable
to
the
initialaward
of
restricted
stock
units
under
Section
3.3
above.
For
avoidance
of
doubt,
the
time-based
vesting
schedule
for
the
Buy-Out
RSUs
shallbe
no
less
favorable
than
25%
on
each
of
the
first
two
anniversaries
and
50%
on
the
third
anniversary
of
the
date
of
grant.3.5
Benefits,
Reimbursement
of
Expenses,
Etc
.
Employee
shall
be
eligible
to
participate
in
or
receive
benefits
under
the
health
and
welfare,deferred
compensation
and
retirement
plans
generally
provided
or
made
available
to
other
senior
executive
officers
of
Employer
from
time
totime,
including
the
Executive
Choice
Plan
as
a
Tier
1
participant,
subject
to
the
regular
eligibility,
operational
and
other
requirements
of
suchplans.
In
recognition
of
incremental,
one-time
expenses
Employee
will
incur,
Employee
shall
be
entitled
to
use
the
Executive
Choice
Plan
forFY2017
for
attorney
fees
incurred
in
the
negotiation
of
this
Agreement.3.6
Relocation
.
Employee
acknowledges
and
agrees
that
Employer
requires
him
to
relocate
his
principal
family
residence
to
Florida.Employer
agrees
to
provide
Employee
with
relocation
benefits
pursuant
to
the
relocation
policy
which
has
been
separately
provided
toEmployee.
In
addition,
Employer
will
provide
full
tax
gross-up
payments
to
Employee
with
respect
to
all
reimbursements
and
paymentsdescribed
in
this
Section
3.6
(to
the
extent
includable
in
Employee’s
income
and/or
subject
to
Social
Security
or
Medicare
taxes
and
nototherwise
deductible
by
Employee)
computed
using
the
highest
applicable
marginal
income,
Social
Security
or
Medicare
tax
rates,
butassuming
no
state
income
tax
(as
is
the
case
with
Florida
residents).
In
the
event
Employee
is
subject
to
any
state
income
taxes
with
respect
toreimbursements
or
payments
under
this
Section
3.6,
Employer’s
obligation
to
provide
a
full
tax
gross-up
shall
also
apply
to
such
state
incomes.All
reimbursements
and
payments
to
Employee
under
this
Section
3.6
shall
be
made
to
Employee
within
30
days
of
submission
of
applicablereceipts
or
invoices
and
in
all
event
not
later
than
the
end
of
the
taxable
year
after
the
taxable
year
in
which
such
expenses
were
incurred
ortaxes
for
which
a
tax
gross-up
payment
is
due
were
paid
by
Employee.3.7
Vacation
.
Employee
shall
be
entitled
to
5
weeks
of
vacation
and
sick
leave
each
year,
in
accordance
with
Employer’s
policies
for
seniorexecutive
officers
as
in
effect
from
time
to
time.3.8
Code
Section
280G
.
In
the
event
that
it
is
determined
that
any
payment
or
distribution
of
any
type
to
or
for
Employee's
benefit
made
bythe
Employer,
by
any
of
its
affiliates,
by
any
person
who
acquires
ownership
or
effective
control
or
ownership
of
a
substantial
portion
of
theEmployer’s
assets
(within
the
meaning
of
Code
Section
280G
and
the
regulations
thereunder)
or
by
any
affiliate
of
such
person,
whether
paidor
payable
or
distributed
or
distributable
pursuant
to
the
terms
of
this
Agreement
or
otherwise
(collectively,
the
“Total
Payments”),
would
besubject
to
the
excise
tax
imposed
by
Code
Section
4999
or
any
interest
or
penalties
with
respect
to
such
excise
tax
(such
excise
tax,
togetherwith
any
such
interest
or
penalties,
are
collectively
referred
to
as
the
“Excise
Tax”),
then
such
payments
or
distributions
or
benefits
shall
bepayable
either:
(i)
in
full
or
(ii)
as
to
such
lesser
amount
which
would
result
in
no
portion
of
such
payments
or
distributions
or
benefits
beingsubject
to
the
Excise
Tax.
Employee
shall
receive
the
greater,
on
an
after-tax
basis,
of
the
amount
reflected
in
(i)
or
(ii)
above.3 If
the
Total
Payments
must
be
reduced
as
provided
in
the
previous
paragraph,
the
reduction
shall
occur
in
the
following
order:
(1)
reduction
ofcash
payments
for
which
the
full
amount
is
treated
as
a
“parachute
payment”
(as
defined
under
Code
Section
280G
and
the
regulationsthereunder);
(2)
cancellation
of
accelerated
vesting
(or,
if
necessary,
payment)
of
cash
awards
for
which
the
full
amount
is
not
treated
as
aparachute
payment;
(3)
reduction
of
any
continued
employee
benefits
and
(4)
cancellation
of
any
accelerated
vesting
of
equity
awards.
Inselecting
the
equity
awards
(if
any)
for
which
vesting
will
be
reduced
under
clause
(4)
of
the
preceding
sentence,
awards
shall
be
selected
in
amanner
that
maximizes
the
after-tax
aggregate
amount
of
reduced
Total
Payments
provided
to
Employee,
provided
that
if
(and
only
if)necessary
in
order
to
avoid
the
imposition
of
an
additional
tax
under
Section
409A
of
the
Code,
awards
instead
shall
be
selected
in
the
reverseorder
of
the
date
of
grant.
For
the
avoidance
of
doubt,
for
purposes
of
measuring
an
equity
compensation
award’s
value
to
Employee
whenperforming
the
determinations
under
the
preceding
paragraph,
such
award’s
value
shall
equal
the
then
aggregate
fair
market
value
of
the
vestedshares
underlying
the
award
less
any
aggregate
exercise
price
less
applicable
taxes.
If
two
or
more
equity
awards
are
granted
on
the
same
date,each
award
will
be
reduced
on
a
pro-rata
basis.Employee
and
the
Employer
shall
furnish
such
documentation
and
documents
as
may
be
necessary
for
the
Employer’s
independent
externalaccountants
to
perform
the
requisite
Code
Section
280G
computations
and
analysis.
The
Employer
shall
bear
all
costs
that
may
incurred
inconnection
with
performing
any
calculations
contemplated
by
this
Section
3.8.4.
Confidentiality,
Non-Compete,
Non-Disparagement,
Etc
.4.1
Confidential
Information
.(a)
Employee
acknowledges
that
Employer’s
Confidential
Information
is
the
exclusive
property
of
Employer,
is
material
and
confidential,and
greatly
affects
the
effective
and
successful
conduct
of
the
business
of
Employer.
Employee
agrees
to
use
Employer’s
ConfidentialInformation
only
for
the
benefit
of
Employer
and
shall
not
at
any
time,
directly
or
indirectly,
either
during
Employee’s
employment
withEmployer
or
afterward,
divulge,
reveal
or
communicate
Employer’s
Confidential
Information
to
any
person,
firm,
corporation
or
entitywhatsoever,
or
use
Employer’s
Confidential
Information
for
Employee’s
own
benefit
or
for
the
benefit
of
others.(b)
Definition
.
As
used
in
this
Section
4.1,
the
term
“Confidential
Information”
means
any
and
all
information,
including,
but
not
limited
to,information
or
ideas
conceived
or
developed
by
Employee,
applicable
to
or
in
any
way
related
to
(i)
the
present
or
future
business
ofEmployer,
(ii)
research
and
development
related
to
Employer’s
business,
(iii)
the
business
of
any
customer
or
vendor
of
Employer,
(iv)
tradesecrets,
(v)
processes,
formulas,
data,
program
documentation,
algorithms,
source
codes,
object
codes,
know-how,
improvements,
inventions,and
techniques,
(vi)
all
plans
or
strategies
for
marketing,
development
and
pricing,
and
(vii)
all
information
concerning
existing
or
potentialcustomers
or
vendors,
and
all
similar
information
disclosed
to
Employer
by
other
persons
and
any
information
in
documents
or
computers
thatEmployer
designates
as
confidential
by
notation
therein
or
thereon.4 4.2
Non-Disparagement
and
Non-Publication
.
Employee
shall
not,
at
any
time,
denigrate
or
disparage
Employer
or
any
of
its
Board
ofDirectors
or
officers,
and
Employer
and
its
Board
of
Directors
and
officers
shall
not,
at
any
time,
denigrate
or
disparage
Employee.4.3
Return
of
Employer’s
Property
.
Employee
agrees
to
make
a
prompt
and
complete
disclosure
to
Employer
of
any
ConfidentialInformation
in
Employee’s
possession,
upon
such
a
request
by
Employer.
Upon
termination
of
employment
and
at
any
other
time
uponrequest,
Employee
further
agrees
to
surrender
to
Employer
all
documents,
writings
and
other
such
materials
produced
by
Employee
or
cominginto
Employee’s
possession
by
or
through
employment
with
Employer
during
the
term
of
such
employment,
and
agrees
that
all
such
materialsare
at
all
times
Employer’s
property.4.4
Cooperation
.
Employee
agrees
to
fully
cooperate,
in
all
reasonable
respects,
with
Employer
in
regard
to
any
internal
or
externalinvestigations
of
Employer,
its
business,
its
business
practices
or
the
like
relating
to
the
period
in
which
Employee
is
or
was
employed
byEmployer.
If
Employee
is
requested
to
provide
assistance
after
termination
of
his
employment,
then
he
will
be
reimbursed
for
any
reasonableexpenses.
All
payments
to
Employee
under
this
Section
4.4
shall
be
made
within
30
days
of
submission
of
applicable
receipts
or
invoices.4.5
Legal
Disclosure
.
Notwithstanding
the
foregoing,
no
confidentiality,
non-disparagement
or
other
obligation
owed
by
Employee
to
theEmployer
or
its
affiliates
shall
prohibit
Employee
from
reporting,
whether
anonymously
or
on
a
disclosure
basis,
possible
violations
of
federallaw
or
regulation
to
any
governmental
agency
or
entity
in
accordance
with
the
provisions
of
and
rules
promulgated
under
Section
21F
of
theSecurities
Exchange
Act
of
1934
or
Section
806
of
the
Sarbanes-Oxley
Act
of
2002,
or
shall
require
Employee
to
notify
the
Employer
or
itsaffiliates
of
any
such
report,
and
none
of
the
Employer
or
any
of
its
affiliates
will
retaliate
against
Employee
for
any
such
report.
In
makingany
such
report,
however,
Employee
is
not
authorized
to
disclose
communications
with
counsel
that
were
made
for
the
purpose
of
receivinglegal
advice,
that
contain
legal
advice
or
that
are
protected
by
the
attorney
work
product
or
similar
privilege.5.
Non-Compete
and
Non-Solicitation
Provisions
.5.1
Non-Compete
.
As
a
condition
to
Employer’s
obligations
under
this
Agreement,
Employee
agrees
that
for
a
period
of
one
(1)
yearfollowing
the
effective
date
of
separation
of
employment
from
Employer,
anywhere
in
the
world
(and
each
incorporated
and
unincorporatedarea
thereof),
Employee
will
not
own,
manage,
operate,
control,
be
employed
by,
act
as
an
agent
for,
participate
in
or
be
connected
in
anymanner
with
the
ownership,
management,
operation
or
control
of
any
business
which
is
engaged
in
wholesale
distribution
of
computerhardware
and/or
software
products
or
mobility
products
or
IT
services
as
its
primary
line
of
business,
including
but
not
limited
to
Ingram-Micro
or
its
affiliates,
ALSO/Actebis,
West
Coast,
Arrow
Electronics,
Inc.,
Avnet,
Synnex,
Brightstar,
CDW,
Amazon,
D&H
Distributing
Co,Insight,
Pivot
and
Dell.
Nothing
contained
in
this
Section
5.1
shall
be
interpreted
to
prohibit
Employee
from
owning
stock
in
publicly
tradedcorporations
that
may
compete
with
Employer
provided
such
stock
ownership
does
not
represent
a
majority
or
controlling
interest
in
suchcorporations.5 5.2
Non-Solicitation
.
Employee
also
agrees
that
for
a
period
of
one
(1)
year
following
the
effective
date
of
separation
of
employment
fromEmployer,
Employee
will
not:
(i)
directly
or
indirectly,
hire
or
participate
in
the
hiring
of
any
employee
of
Employer
or
its
subsidiaries,provided,
however
that
this
restriction
shall
not
apply
either
to
former
employees
of
Employer
or
to
employees
who
respond
to
a
generaladvertisement;
(ii)
solicit
or
induce,
or
attempt
to
solicit
or
induce,
any
employee
of
Employer
or
its
subsidiaries
to
leave
Employer
for
anyreason;
and
(iii)
solicit
or
induce,
or
attempt
to
solicit
or
induce
any
customer
of
or
vendor
to
Employer
or
its
subsidiaries
to
stop
doingbusiness
with
or
move
some
or
all
of
such
customer
or
vendor
business
to
a
person
or
entity
other
than
Employer
and
its
subsidiaries.Employee
acknowledges
that
irreparable
harm
will
be
suffered
by
Employer
in
the
event
of
the
breach
or
potential
breach
by
Employee
of
anyof
Employee’s
obligations
under
this
Section
5.5.3
Invalid
Provision
.
The
validity
or
unenforceability
of
any
provision
of
this
Section
5
shall
not
affect
the
validity
or
enforceability
of
anyother
provision
of
this
Agreement.
Employee
and
Employer
have
specifically
agreed
and
acknowledged
that
the
provisions
in
Section
5
arefair,
reasonable
and
material.
If
the
scope
of
any
restriction
or
covenant
contained
herein
should
be
or
become
too
broad
or
extensive
to
permitenforcement
to
its
fullest
extent,
then
such
restriction
or
covenant
shall
be
enforced
to
the
maximum
extent
permitted
by
law,
and
Employeehereby
consents
and
agrees
that
(a)
it
is
the
parties
intention
and
agreement
that
this
Section
5
be
enforced
as
written,
and
(b)
in
the
event
acourt
of
competent
jurisdiction
should
determine
that
any
restriction
or
covenant
is
too
broad
or
extensive
to
permit
enforcement
to
its
fullestextent,
the
scope
of
any
such
restriction
or
covenant
may
be
modified
but
only
as
necessary
as
the
court,
in
its
judgment,
deems
warranted
inorder
to
have
the
fullest
enforcement
possible
consistent
with
governing
law.5.4
Interpretation
.
Should
any
provision
of
this
Section
5
be
declared
illegal
or
unenforceable
by
any
court
of
competent
jurisdiction
andcannot
be
modified
to
be
enforceable,
such
provision
shall
immediately
become
null
and
void,
leaving
the
remainder
of
this
Section
5
in
fullforce
and
effect.6.
Equitable
Relief
and
Survival
.
The
parties
acknowledge
that
if
Employee
were
to
breach
the
provisions
of
Sections
4
or
5
hereof,
moneydamages
alone
would
not
be
a
sufficient
remedy.
Therefore,
the
parties
agree
that,
in
addition
to
money
damages
and
any
other
relief
available,Employer
shall
also
be
entitled
to
obtain
an
injunction
or
other
equitable
relief
to
enforce
the
provisions
of
Sections
4
and/or
5.
The
provisionsof
Sections
4,
5
and
6
shall
survive
the
termination
of
this
Agreement
indefinitely.EMPLOYEE HAS CAREFULLY READ AND CONSIDERED SECTIONS 4, 5 AND 6, ABOVE AND AGREES THAT THEY AREFAIR, REASONABLE AND REASONABLY REQUIRED TO PROTECT EMPLOYER’S LEGITIMATE BUSINESS INTERESTS.EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTION OF THIS AGREEMENT.6 7.
Termination.7.1
Employment
Termination
in
General
.
Anything
contained
in
this
Agreement
to
the
contrary
notwithstanding,
Employee’s
employmentwith
Employer
under
this
Agreement
is
“at
will”
and
may
be
terminated
by
either
party
at
any
time
upon
15
days
advance
written
notice
to
theother
party,
but
subject
to
the
provisions
of
this
Section
7.7.2
Severance
Benefits
.
The
Employee
is
entitled
to
participate
in
the
Employer’s
Executive
Severance
Plan
as
in
effect
from
time
to
timeas
a
“Tier
1”
participant.
Employee
shall
be
entitled
to
any
benefits
payable
under
Employer’s
Executive
Severance
Plan,
but
only
if
and
asprovided
for
therein,
subject
to
the
following
modifications
(which
apply
to
Employee
only,
and
no
other
participant
thereunder)
and
provided,further,
that
no
modification,
amendment
or
termination
of
the
Executive
Severance
Plan
shall
be
applicable
to
Employee
during
the
term
ofhis
employment
with
Employer
(or
during
the
“Benefits
Period”
as
defined
in
the
Executive
Severance
Plan)
without
Employee’s
prior
writtenconsent:(a)a
termination
of
Employee’s
employment
for
“gross
misconduct”
shall
be
limited
only
to
circumstances
where
the
CEO
makesa
good
faith
determination
that
one
or
more
of
the
following
acts
or
omissions
by
Employee
has
both
occurred
and
resulted
in(or
is
reasonably
likely
to
result
in)
material
harm
or
damage
to
Employer
or
Employer’s
reputation:(i)a
willful
and
repeated
material
failure
to
follow
the
reasonable
and
lawful
instructions
of
the
CEO
or
a
material
breachof
duties
specified
in
Section
1.2
of
this
Agreement;(ii)a
misappropriation
of
Employer’s
property
or
act
of
fraud
or
embezzlement
which
is
willful
and
material;(iii)a
willful
and
material
violation
of
Employer’s
written
policies
applicable
to
all
executive
officers
of
Employer
that
areprovided
to
Employee,
including,
without
limitation,
its
Code
of
Conduct;(iv)conviction
or
a
plea
of
“no
contest”
(or
equivalent)
to
a
crime
involving
breach
of
trust,
a
felony
or
state
or
federalsecurities
laws;
or(v)willful
action
by,
or
directed
by,
Employee
that
results
in
a
material
violation
by
Employer
of
applicable
securities
lawsand
regulations,
listing
standards
or
other
material
compliance
requirements
imposed
upon
Employer;The
foregoing
items
(i)
through
(v)
are
an
exclusive
list
of
the
acts
or
omissions
that
shall
be
considered
“gross
misconduct.”
For
the
avoidanceof
doubt,
failure
to
achieve
Employee’s
performance
objectives
will
not
be
considered
“gross
misconduct.”
No
act,
or
failure
to
act,
byEmployee
shall
be
considered
“willful”
unless
committed
without
a
reasonable
belief
that
the
act
or
omission
was
lawful
and
in
the
Employer'sbest
interest.
The
CEO
shall
provide
Employee7 with
15
days
advance
written
notice
specifically
detailing
the
basis
for
a
termination
of
employment
for
gross
misconduct.
During
the
15
dayperiod
after
Employee
has
received
such
notice,
Employee
shall
have
the
opportunity
to
cure
any
of
the
above,
that
are
reasonably
subject
tocure,
and
also
to
present
his
reasons
to
the
CEO
as
to
why
the
circumstances
do
not
or
should
not
give
rise
to
“gross
misconduct”
hereunder(with
the
assistance
of
Employee's
legal
representative)
before
any
termination
for
gross
misconduct
is
finalized
by
the
CEO.
Employee
shallcontinue
to
receive
the
compensation
and
benefits
provided
by
this
Agreement
during
the
15
day
period
after
receiving
the
written
notice
of
theEmployer's
intention
to
terminate
Employee's
employment
for
gross
misconduct.(b)a
termination
by
Employee
of
his
employment
will
be
deemed
to
be
effected
for
"Good
Reason"
if
any
of
the
following
occurwithout
Employee's
prior
express
written
consent:(i)there
is
no
Bonus
Plan
available
to
Employee;(ii)Employee
ceases
to
report
directly
to
the
CEO;(iii)Employee's
principal
place
of
employment
with
Employer
is
relocated
to
more
than
fifty
(50)
miles
from
the
worklocation
specified
above
in
Section
1.2;
and(iv)Employer
breaches
any
material
provision
of
this
Agreement
or
any
of
its
other
agreements
with
Employee
(includingwithout
limitation
Employer's
failure
to
timely
provide
Employee
the
cash
compensation,
equity
compensation
and/oremployee
benefits
owed
to
Employee
under
this
Agreement.The
foregoing
items
(i)
through
(iv)
are
an
exclusive
list
of
the
acts
or
omissions
that
shall
be
considered
“Good
Reason.”
In
order
to
provideEmployer
a
reasonable
opportunity
to
cure
circumstances
constituting
“Good
Reason,”
the
Employee
shall
provide
Employer
with
30
daysadvance
written
notice
of
Employee’s
intention
to
terminate
employment
for
Good
Reason,
specifically
detailing
the
basis
for
a
termination
ofemployment
for
Good
Reason.
During
the
30-day
period
after
Employer
has
received
such
notice,
Employer
shall
have
the
opportunity
to
cureany
of
the
above
that
are
reasonably
subject
to
cure.
In
the
event
the
Employer
fails
to
cure,
Employee
shall
be
entitled
to
terminateemployment
for
Good
Reason.
If
Employer
cures,
then
Employee
shall
be
deemed
to
have
withdrawn
his
intention
to
terminate
andEmployee’s
employment
shall
continue.(c)Employee
shall
be
entitled
to
severance
payments
and
benefits
under
the
Executive
Severance
Plan
if
(i)
Employee
terminateshis
employment
for
Good
Reason,
(ii)
the
Employer
terminates
Employee's
employment
for
any
reason
other
than
grossmisconduct
(each
of
(i)
and
(ii),
a
"Qualifying
Termination").
In
the
event
of
a
Qualifying
Termination,
Employee
shall
also
beentitled
to
receive
payments
and
benefits
payable
with
respect
to
such
termination
of
employment
under
the
terms
of
the
plansand
the
payments
and
benefits
as
described
in8 Sections
7.2(d)
and
(e)
of
this
Agreement.
Section
IV.5.
of
the
Executive
Severance
Plan
shall
be
modified
such
that
severancepayments
will
be
made
to
Employee’s
estate
or
heirs
in
the
event
of
Employee’s
death
during
the
Benefits
Period.(d)For
purposes
of
determining
the
“Benefits
Period”
under
Section
IV.1.(b)
of
the
Executive
Severance
Plan,
such
period
shall
bedeemed
to
be
twenty-four
(24)
months
for
payments
of
Base
Salary;
and
a
pro
rata
portion
of
the
Target
Bonus
for
the
FiscalYear
of
termination
shall
be
paid
to
Employee
in
accordance
with
Article
IV.2
of
the
Executive
Severance
Plan
(but
in
no
eventlater
than
75
days
after
the
end
of
the
Fiscal
Year
of
Employee’s
termination).(e)Any
unvested
Buy-Out
RSUs
shall
become
fully
vested
and
payable
no
later
than
30
days
after
a
termination.8.
Arbitration
.
The
parties
hereto
agree
that,
except
as
provided
in
Section
6
above
relating
to
enforcement
of
the
covenants
set
forth
inSections
4
and
5
of
this
Agreement,
any
controversy
or
claim
arising
out
of
or
relating
to
this
Agreement,
or
the
breach
thereof,
shall
be
settledby
arbitration
administered
by
the
American
Arbitration
Association
under
its
National
Rules
for
the
Resolution
of
Employment
Disputessubject
to
the
following:
(a)
such
arbitration
shall
take
place
in
Clearwater,
Florida;
and
(b)
discovery
in
such
arbitration
shall
be
governed
bythe
Federal
Rules
of
Civil
Procedure.
Arbitration-specific
costs
and
fees
(such
as
the
cost
of
the
arbitrator(s))
will
be
fully
paid
by
theEmployer.9.
Withholding
Of
Taxes
.
Employer
shall
withhold
from
any
compensation
and
benefits
payable
under
this
Agreement
all
applicablefederal,
state,
local,
or
other
taxes.10.
Clawback
.
Notwithstanding
anything
in
this
Agreement
to
the
contrary,
Employee
acknowledges
that
Employer
may
be
entitled
orrequired
by
law,
Employer’s
policy
(the
“Clawback
Policy”)
or
the
requirements
of
an
exchange
on
which
the
Employer’s
shares
are
listed
fortrading,
to
recoup
compensation
paid
to
the
Employee
pursuant
to
this
Agreement
or
otherwise,
and
Employee
agrees
to
comply
with
anyEmployer
request
or
demand
for
recoupment.
Employee
acknowledges
that
the
Clawback
Policy
may
be
modified
from
time
to
time
in
the
solediscretion
of
Employer
and
without
the
consent
of
the
Employee,
and
that
such
modification
will
be
deemed
to
amend
this
Agreement.Employee
further
acknowledges
and
agrees
that
the
Clawback
Policy
as
in
effect
from
time
to
time
shall
apply
to
any
and
all
payments
ofcompensation
and
benefits
(other
than
Employee’s
base
salary
and
benefits
under
any
tax-qualified
retirement
plan
or
health
and
welfare
plan)as
specified
in
the
Clawback
Policy.11.
Miscellaneous.11.1
Severability
.
Every
provision
of
this
Agreement
is
intended
to
be
severable.
If
any
term
or
provision
hereof
is
declared
invalid
by
acourt
of
competent
jurisdiction
for
any
reason
whatsoever
and
cannot
be
modified
to
be
enforceable,
its
invalidity
will
not
affect
the
validity
ofthe
remainder
of
the
Agreement,
which
shall
remain
in
full
force
and
effect.9 11.2
Construction
.
The
section
headings
or
subsection
headings
have
been
included
for
convenience
only,
are
not
part
of
this
Agreement,and
are
not
to
be
taken
as
an
interpretation
of
any
provision
hereof.
References
to
gender
shall
include
each
other
gender,
as
appropriate.
ThisAgreement
may
be
executed
in
any
number
of
counterparts,
all
of
which
when
taken
together
shall
constitute
but
a
single
instrument.11.3
Entire
Agreement;
Amendments,
Waiver
.
This
Agreement
contains
the
entire
agreement
between
the
parties
regarding
the
subjectmatter
hereof
and
completely
and
fully
supersedes
all
other
prior
agreements,
both
written
and
oral,
between
the
parties
relating
to
the
subjectmatter
hereof.
Except
as
provided
in
Section
10,
this
Agreement
may
be
amended,
waived,
changed,
modified
or
discharged
only
by
anagreement
in
writing
signed
by
the
parties.
No
waiver
by
either
party
of
any
breach
of,
or
of
compliance
with,
any
condition
or
provision
ofthis
Agreement
by
the
other
party
shall
be
considered
a
waiver
of
any
other
condition
or
provision
or
of
the
same
condition
or
provision
atanother
time.11.4
Attorneys’
Fees
.
Each
party
shall
bear
the
cost
of
any
attorneys’
fees
and
expenses
incurred
in
connection
with
enforcement
of
itsrespective
rights
under
this
Agreement,
provided
that
the
arbitrator
may
award
reasonable
attorneys’
fees
and/or
costs
to
the
prevailing
party
inany
arbitration
concerning
the
matters
addressed
in
this
Agreement11.5
Indemnification
.
Employee
shall
be
entitled
to
indemnification
and
advancement
of
expenses
to
the
fullest
extent
provided
by
ArticleVI
of
the
Employer's
by-laws
as
in
effect
on
the
Effective
Date
or
as
may
be
amended
from
time
to
time.
No
amendment
to
Article
VI
whichwould
reduce
Executive’s
rights
to
indemnification
and
advancement
of
expenses
with
respect
to
actions
or
omissions
which
occurred
prior
tothe
date
of
such
amendment
shall
apply
to
Employee
unless
he
has
consented
thereto
in
writing.11.6
Binding
Effect;
Assignment
.
This
Agreement
shall
be
binding
upon
and
inure
to
the
benefit
of
the
parties,
their
successors,
heirs
andpersonal
representatives
and
other
legal
representatives.
Except
as
provided
below
in
this
Section
11.6,
this
Agreement
shall
not
be
assignableby
either
party.
Employee
acknowledges
that
the
services
to
be
rendered
by
Employee
are
unique
and
personal.
Accordingly,
Employee
maynot
assign
any
of
Employee’s
rights
or
delegate
any
of
Employee’s
duties
or
obligations
under
this
Agreement.
In
the
event
that
all
orsubstantially
all
of
the
business,
assets
and/or
stock
of
the
Employer
is
sold
or
transferred,
then
this
Agreement
shall
be
binding
on
thetransferee
of
the
business,
assets
and/or
stock
who
Employer
shall
cause
to
expressly
assume
in
writing
the
Employer's
obligations
hereunder.11.7
Mitigation
.
Employee
shall
be
under
no
obligation
to
seek
other
employment
or
to
otherwise
seek
mitigation
for
any
payments
owed
toEmployee
under
this
Agreement
and
there
shall
be
no
offset
against
any
amounts
due
Employee
under
this
Agreement.11.8
Code
Section
409A
Matters
.
It
is
the
parties
intent
that
any
amounts
payable
under
this
Agreement
and
the
Employer’s
andEmployee’s
exercise
of
authority
or
discretion
hereunder
shall
be
exempt
from
or
comply
with
Section
409A
of
the
Code
(including
theTreasury
regulations
and
other
published
guidance
relating
thereto)
so
as
not
to
subject
Employee
to
the
payment
of
any
interest
or
additionaltax
imposed
under
Section
409A
of
the
Code.
In10 furtherance
of
this
intent,
(a)
if
the
date
of
payment
or
the
commencement
of
any
installment
payments
must
be
delayed
for
six
months
in
orderto
meet
the
requirements
of
Section
409A(a)(2)(B)
of
the
Code
applicable
to
“specified
employees,”
then
such
payment
or
payments
shall
beso
delayed
and
paid
upon
the
expiration
of
such
six
month
period
and
(b)
each
payment
which
is
conditioned
upon
the
Employee’s
executionof
a
release
and
which
is
to
be
paid
during
a
designated
period
that
begins
in
a
first
taxable
year
and
ends
in
a
second
taxable
year
shall
be
paidin
the
second
taxable
year.
With
regard
to
any
provision
herein
that
provides
for
reimbursement
of
expenses,
or
in-kind
benefits,
suchreimbursements
or
in-kind
benefits
shall
be
paid
in
a
manner
consistent
with
Treas.
Reg.
Section
1.409A-3(i)(1)(iv).
If
any
Treasuryregulations,
guidance
or
changes
to
Section
409A
would
result
in
the
Employee
becoming
subject
to
interest
and
additional
tax
under
Section409A
of
the
Code,
the
Employer
and
Employee
agree
to
amend
this
Agreement
to
bring
this
Agreement
into
compliance
with
Code
Section409A.11.9
Notice
.
Notices
and
all
other
communications
contemplated
by
this
Agreement
shall
be
in
writing
and
shall
be
deemed
to
have
beenduly
given
when
personally
delivered
or
when
mailed
by
overnight
courier,
U.S.
registered
or
certified
mail,
return
receipt
requested
andpostage
prepaid.
In
the
case
of
Employee,
mailed
notices
shall
be
addressed
to
Employee
at
the
home
address
that
Employee
most
recentlycommunicated
to
the
Employer
in
writing.
In
the
case
of
the
Employer,
mailed
notices
shall
be
addressed
to
its
corporate
headquarters,
and
allnotices
shall
be
directed
to
the
attention
of
its
Secretary.11.10
Authority.
The
parties
hereto
hereby
represent
that
they
each
have
the
authority
to
enter
into
this
Agreement,
and
the
Employee
herebyrepresents
to
the
Employer
that
the
execution
of,
and
performance
of
duties
under,
this
Agreement
shall
not
constitute
a
breach
of
or
otherwiseviolate
any
other
agreement
to
which
the
Employee
is
a
party.
The
Employee
hereby
further
represents
to
the
Employer
that
he
will
not
utilizeor
disclose
any
confidential
information
obtained
by
the
Employee
in
connection
with
any
former
employment
with
respect
to
his
duties
andresponsibilities
hereunder.11.11
Governing
Law
.
This
Agreement
shall
be
subject
to,
and
construed
in
accordance
with,
the
laws
of
the
State
of
Florida,
withoutreference
to
its
conflict
of
laws
rules.IN
WITNESS
WHEREOF,
the
parties
have
caused
this
Agreement
to
be
executed
as
of
the
date
first
written
above.By:
/s/
Richard
Hume
By:
/s/
Robert
M.
Dutkowsky
Richard
Hume
Robert
M.
DutkowskyChief
Executive
OfficerOn
behalf
of
Tech
Data
Corporation
11 Tech Data Corporation Change in Control Severance PolicyArticle 1. Establishment and Purpose1.1
Establishment of the Policy .
Tech
Data
Corporation,
a
Florida
corporation,
hereby
establishes
this
change
in
control
severancepolicy
to
be
known
as
the
“
Tech Data Corporation Change in Control Severance Policy ”
(the
“
Policy ”).1.2
Purpose of the Policy .
The
Board
of
Directors
of
Tech
Data
Corporation
has
determined
that
it
is
in
the
best
interests
of
theCompany
and
its
stockholders
to
secure
the
continued
services,
dedication
and
objectivity
of
certain
key
employees
of
the
Company
in
theevent
of
any
threat
or
occurrence
of
a
Change
in
Control
of
the
Company,
without
concern
as
to
whether
such
employees
might
be
hindered
ordistracted
by
personal
uncertainties
and
risks
created
by
any
such
actual
or
threatened
Change
in
Control.Article 2.
DefinitionsWhenever
used
in
the
Policy,
the
following
terms
shall
have
the
meanings
set
forth
below:(a)
“AAA” means
the
American
Arbitration
Association.(b)
“Arbitration Rules” means
the
National
Rules
for
the
Resolution
of
Employment
Disputes
of
the
AAA;
provided
that
discoveryshall
be
governed
by
the
Federal
Rules
of
Civil
Procedure.(c)
“Accounting Firm” has
the
meaning
assigned
in
Article
7.1(a).(d)
“Accrued Obligations” has
the
meaning
assigned
in
Article
6.1(a).(e)
“Base Salary” means
a
Covered
Person’s
annual
rate
of
salary
or
wages,
including
any
amounts
of
salary
or
wages
deferred
atthe
election
of
the
Covered
Person,
as
in
effect
immediately
prior
to
the
Change
in
Control
or,
if
higher,
during
the
Protected
Period.(f)
“Beneficiary” means
the
persons
or
entities
entitled
to
benefits
hereunder
upon
a
Covered
Person’s
death,
to
the
extent
providedin
Article
15.2(b),
as
determined
in
accordance
with
the
procedures
in
15.2(a).(g)
“Board” means
the
Board
of
Directors
of
the
Company
or
its
successor.(h)
“Cause”, when
used
with
reference
to
a
termination
of
a
Covered
Person’s
employment
by
the
Company
under
the
Policy,means
the
occurrence
of
any
of
the
following
events,
provided
,
however
,
that
a
Covered
Person’s
employment
may
not
be
terminated
forCause
unless
(1)
the
Company
provides
the
Covered
Person
with
written
notice
in
accordance
with
Article
15.8
which
shall
(A)
state
in
detailthe
particular
act(s)
or
failure(s)
to
act
that
constitute
the
grounds
on
which
the
proposed
termination
for
Cause
is
based
and
(B)
be
givenwithin
fifteen
(15)
days
of
a
member
of
the
Committee’s
learning
of
such
act(s)
or
failure(s)
to
act;
and
(2)
the
Covered
Person
is
given
areasonable
opportunity
to
be
heard
by
the
Committee
and
to
cure,
to
the
extent
capable
of
cure,
the
grounds
stated
in
such
notice;
but
theCompany
may
suspend
the
Covered
Person
during
the
proceedings;
provided
,
that
if,
following
any
such
hearing
or
waiver
of
such
hearing
bythe
Covered
Person,
the
Covered
Person
is
furnished
with
a
subsequent
written
notice
by
the
Committee
confirming
that,
in
its
judgment,grounds
for
termination
for
Cause
on
the
basis
of
the
original
notice
exist
(the
“
Final Cause Notice ”),
the
Covered
Person
shall
thereupon
beterminated
for
Cause,
subject
to
de
novo
review,
at
the
Covered
Person’s
election,
through
arbitration
in
accordance
with
Article
12
hereof:(i)
the
willful
and
continued
failure
of
the
Covered
Person
to
substantially
fulfill
his
or
her
obligations
with
respect
to
his
orher
employment
or
service
(other
than
any
such
failure
resulting
from
incapacity
due
to
physical
or
mental
illness);(ii)
the
Covered
Person’s
conviction
of
or
entering
into
a
plea
of
guilty
or
nolo
contendere
to,
a
felony,
or
conduct
by
theCovered
Person
that
constitutes
gross
negligence
or
gross
misconduct
in
carrying
out
his
or
her
duties
with
respect
to
his
or
heremployment
or
service;
or(iii)
the
Covered
Person’s
material
violation
of
any
material,
written
agreement
with
the
Company
or
Company
policyapplicable
to
the
Covered
Person,
which
violation
adversely
affects
the
business
of
the
Company.(i)
a
“Change in Control” shall
have
the
meaning
set
forth
in
the
2009
Equity
Incentive
Plan
of
Tech
Data
Corporation,
or
anysuccessor
plan
thereto
as
determined
by
the
Committee
from
time
to
time;
provided
,
that
a
Change
in
Control
will
not
be
deemed
to
occur
forany
purpose
under
this
Policy
unless
such
event
or
events
also
constitute
a
change
in
the
ownership
or
effective
control
of
the
Company
or
inthe
ownership
of
a
substantial
portion
of
the
assets
of
the
Company,
within
the
meaning
of
Section
409A
of
the
Code.(j)
“Code” means
the
Internal
Revenue
Code
of
1986,
as
amended
from
time
to
time,
including
rules
thereunder
and
successorprovisions
and
rules
thereto.(k)
“Committee” means
the
Compensation
Committee
of
the
Board. (l)
“Company” means
Tech
Data
Corporation,
and
all
of
its
consolidated
subsidiaries
as
determined
in
accordance
with
U.S.Generally
Accepted
Accounting
Principles,
and
any
successor
or
successors
thereto.(m)
“
Confidential Information ”
means
any
and
all
information,
including,
but
not
limited
to,
information
or
ideas
conceived
ordeveloped
by
a
Covered
Person,
applicable
to
or
in
any
way
related
to
(i)
the
present
or
future
business
of
the
Company
or
its
affiliates,
(ii)research
and
development
related
to
the
Company’s
or
its
affiliates’
business,
(iii)
the
business
of
any
customer
or
vendor
of
the
Company
orany
of
its
affiliates,
(iv)
trade
secrets,
(v)
processes,
formulas,
data,
program
documentation,
algorithms,
source
codes,
object
codes,
know-how,
improvements,
inventions,
and
techniques,
(vi)
all
plans
or
strategies
for
marketing,
development
and
pricing,
and
(vii)
all
informationconcerning
existing
or
potential
customers
or
vendors,
and
all
similar
information
disclosed
to
the
Company
or
its
affiliates
by
other
personsand
any
information
in
documents
or
computers
that
the
Company
designates
as
confidential
by
notation
therein
or
thereon.(n)
“
Covered Person ”
means
an
employee
of
the
Company
who
fulfills
the
eligibility
and
participation
requirements
as
provided
inArticle
4
hereof.(o)
“Disability” means
(1)
a
physical
or
mental
condition
entitling
the
Company
to
terminate
the
Covered
Person’s
employmentpursuant
to
an
employment
agreement
between
the
Covered
Person
and
the
Company
or
(2)
in
the
absence
of
such
a
provision
for
disabilitytermination
or
in
the
absence
of
an
employment
agreement,
the
Covered
Person’s
inability
to
substantially
perform
his
or
her
duties
orresponsibilities
as
a
result
of
a
physical
or
mental
condition
for
180
or
more
business
days
in
any
365
day
period.(p)
“Effective Date” means
the
date
the
Policy
is
adopted
by
the
Company.(q)
“ERISA” means
the
Employee
Retirement
Income
Security
Act
of
1974,
as
amended
from
time
to
time,
including
rulesthereunder
and
successor
provisions
and
rules
thereto.(r)
“Exchange Act” means
the
Securities
Exchange
Act
of
1934,
as
amended
from
time
to
time,
including
rules
thereunder
andsuccessor
provisions
and
rules
thereto.(s)
“Excise Tax” has
the
meaning
assigned
in
Article
7.1(a).(t)
“Final Cause Notice” has
the
meaning
assigned
in
Article
2(h).(u)
“Good Reason”, when
used
with
reference
to
a
termination
of
a
Covered
Person’s
employment
with
the
Company,
means,without
a
Covered
Person’s
express
written
consent,
the
occurrence
of
any
of
the
following
events
during
the
Protected
Period,
provided,however
,
that
none
of
the
following
shall
constitute
Good
Reason
unless
(1)
the
Covered
Person
provides
written
notice
in
accordance
withArticle
15.8
to
the
Company
which
shall
(A)
state
in
detail
the
particular
act(s)
or
failure(s)
to
act
that
constitute
the
grounds
on
which
theproposed
termination
for
Good
Reason
is
based
and
(B)
be
given
within
ninety
(90)
days
of
the
Covered
Person’s
learning
of
such
act(s)
orfailure(s)
to
act;
(2)
the
Company
fails
to
cure
the
grounds
stated
in
such
notice
within
fifteen
(15)
days
of
its
receipt
of
such
notice;
and
(3)
theTermination
Date
occurs
no
later
than
the
earlier
of
sixty
(60)
days
following
the
Company’s
failure
to
cure
pursuant
to
the
immediatelypreceding
clause,
and
two
(2)
years
following
the
initial
existence
of
one
or
more
of
the
following
events
arising
without
the
Covered
Person’sexpress
written
consent:(i)
a
material
adverse
change
in
the
nature,
scope
or
status
of
the
Covered
Person’s
position,
duties,
responsibilities
orauthorities
effectuated
after
the
Change
in
Control
from
those
held,
exercised
and/or
assigned
to
Covered
Person
immediately
prior
tosuch
diminution,
including,
without
limitation,
if
the
Covered
Person
was
an
officer
of
a
public
company
immediately
prior
to
theChange
in
Control,
the
Covered
Person
ceasing
to
be
an
officer
of
a
public
company;
provided
,
that
a
change
in
a
Covered
Person’sreporting
relationship
that
is
approved
by
the
Company
prior
to
a
Change
in
Control
and
is
not
made
at
the
request
of
a
third
partyincident
to
the
Change
in
Control
shall
not
constitute
Good
Reason
hereunder;(ii)
a
reduction
in
the
Covered
Person’s
annual
base
salary
(or
a
material
change
in
the
frequency
of
payment)
or
annualincentive
opportunity
in
effect
immediately
prior
to
the
Change
in
Control
or,
if
higher,
as
in
effect
at
any
time
during
the
ProtectedPeriod;(iii)
the
failure
by
the
Company
to
award
the
Covered
Person
equity-based
incentive
compensation
(such
as
stock
options,shares
of
restricted
stock,
restricted
stock
units
or
other
equity-based
compensation)
on
a
periodic
basis
consistent
with
the
Company’spractices
with
respect
to
timing,
value
and
terms
as
in
effect
prior
to
the
Change
in
Control
or,
if
higher,
as
in
effect
at
any
time
duringthe
Protected
Period;(iv)
the
failure
by
the
Company
to
continue
to
provide
the
Covered
Person
with
welfare
benefits,
fringe
benefits
andperquisites
that
are
substantially
similar
in
the
aggregate
to
those
made
available
or
provided
to
the
Covered
Person
immediately
priorto
the
Change
in
Control,
including
but
not
limited
to
any
pension,
life
insurance,
medical,
health
and
accident,
disability
and
vacationbenefits;(v)
any
requirement
that
the
Covered
Person’s
services
be
rendered
primarily
at
a
location
that
is:
(1)
more
than
35
milesfrom
the
Covered
Person’s
base
office
immediately
prior
to
the
Change
in
Control
and
(2)
farther
from
the
Covered
Person’s
principalresidence
immediately
prior
to
the
Change
in
Control
than
was
the
Covered
Person’s
base
office
immediately
prior
to
the
Change
in Control;(vi)
a
material
breach
by
the
Company
of
(1)
any
effective
written
employment
agreement
with
the
Covered
Person,
or
(2)this
Policy,
including,
without
limitation,
the
failure
to
obtain
express
written
consent
to
assumption
of
the
Policy
from
a
successor
asrequired
by
Article
10
hereof;
and(vii)
any
other
event
which
is
included
in
any
Covered
Person’s
Participation
Schedule.Notwithstanding
the
foregoing,
for
purposes
of
clarification,
the
Company’s
suspension
of
the
Covered
Person’s
provision
of
services
duringthe
period
in
which
the
Company
initiates
proceedings
to
determine
whether
or
not
the
employment
of
the
Covered
Person
should
beterminated
for
Cause
pursuant
to
this
Policy
shall
not
constitute
Good
Reason.(v)
“
Initial Covered Persons ”
means
those
Covered
Persons
listed
on
Annex
1
maintained
by
the
Company.(w)
“Legal Fees” has
the
meaning
assigned
in
Article
13.(x)
“Non-Qualifying Termination” means
a
termination
of
a
Covered
Person’s
employment
(1)
by
the
Company
for
Cause,
(2)
bythe
Covered
Person
for
any
reason
other
than
Good
Reason,
or
(3)
as
a
result
of
the
Covered
Person’s
death
or
Disability.(y)
“Participation Schedule” means
a
schedule
evidencing
the
Covered
Person’s
participation
in
and
coverage
by
this
Policy,
whichmay
be
in
the
form
attached
as
Exhibit
B
to
this
Policy
or
may
be
provided
in
such
other
form
as
the
Committee
determines
from
time
to
time.(z)
“Payment” has
the
meaning
assigned
in
Article
7.1(a).(aa)
“Protected Period” means
the
period
beginning
on
the
first
date,
following
the
Effective
Date,
on
which
a
Change
in
Controloccurs,
and
ending
twenty
four
(24)
months
after
such
Change
in
Control.(bb)
“Qualifying Termination” means
a
termination
of
a
Covered
Person’s
employment
during
the
Protected
Period
(1)
by
theCompany
Without
Cause
or
(2)
by
the
Covered
Person
for
Good
Reason,
in
each
case
in
accordance
with
the
procedures
set
forth
in
Article
5.(cc)
“Restrictive Covenants” means
the
covenants
set
forth
in
Article
11.(dd)
“Severance Factor” means
the
factor
used
to
determine
the
Severance
Payment
payable
to
a
Covered
Person
pursuant
toArticle
6.1(a)(v)
hereof,
which
factor
shall
be:
(1)
2.5
for
the
Chief
Executive
Officer
of
the
Company,
(2)
2
for
each
Initial
Covered
Personother
than
the
Chief
Executive
Officer
and
the
Senior
Vice
President,
Chief
Financial
Officer,
Europe
of
the
Company,
and
(3)
for
all
CoveredPersons
not
described
in
(1)
or
(2)
and
the
Senior
Vice
President,
Chief
Financial
Officer,
Europe,
the
number
determined
by
the
Company
andset
forth
in
such
Covered
Person’s
Participation
Schedule.(ee)
“Severance Payment” has
the
meaning
assigned
in
Article
6.1(a)(v).(ff)
“
Target Annual Bonus ”
means
the
Covered
Person’s
target
annual
bonus
for
the
last
full
fiscal
year
ending
immediately
priorto
the
Change
in
Control
or,
if
higher,
the
Covered
Person’s
highest
target
annual
bonus
in
effect
for
any
fiscal
year
during
the
ProtectedPeriod;
provided
that
if
no
target
annual
bonus
is
set
for
such
Covered
Person,
the
Target
Annual
Bonus
will
be
determined
by
reference
to
thetarget
annual
bonuses
set
for
an
employee
or
employees
in
comparable
positions
or
performing
similar
functions
and
duties
during
the
threefiscal
years
that
were
completed
prior
to
the
Termination
Date.(gg)
“Term” means
the
period
commencing
on
the
Effective
Date
and
continuing
until
the
Committee
shall
terminate
the
Policy
inaccordance
with
Article
15.5.(hh)
“Termination Date” means
the
effective
date
of
a
Covered
Person’s
termination
of
employment
with
the
Company
as
providedin
Article
5.1.(ii)
“Without Cause”, when
used
in
reference
to
a
termination
of
a
Covered
Person’s
employment
with
the
Company,
means
anytermination
of
the
Covered
Person’s
employment
by
the
Company
which
is
not
a
termination
of
employment
for
Cause,
Disability
or
death.Article 3.
AdministrationThe
Policy
shall
be
administered
by
the
Committee.
The
Committee
shall
have
full
authority,
consistent
with
the
Policy,
to
administerthe
Policy,
including,
without
limitation,
authority
to
interpret
and
construe
any
and
all
provisions
of
the
Policy.Article 4.
CoverageThe
Board
or
the
Committee
shall
designate
those
key
employees
of
the
Company
entitled
to
be
covered
by
the
Policy
from
time
totime.
Each
key
employee
designated
to
be
covered
by
the
Policy
as
a
Covered
Person
shall
be
required
to
execute
a
Participation
Schedule,
orother
written
agreement
that
may
be
specified
by
the
Committee,
to
evidence
such
employee's
agreement
to
be
bound
by
the
terms
andconditions
of
this
Policy,
including
the
provisions
of
Article
11
hereof,
as
a
Covered
Person. The
Board
or
the
Committee
may
amend,
modify
or
terminate
the
Policy
at
any
time
and
from
time
to
time,
subject
to
the
limitationsand
restrictions
set
forth
in
Section
15.5;
provided
that
with
respect
to
each
Initial
Covered
Person,
the
Committee
may
not
amend,
modify
orterminate
the
Policy
in
a
manner
that
would
adversely
affect
such
Initial
Covered
Person
prior
to
the
second
anniversary
of
the
Effective
Datewithout
the
express
written
consent
of
such
Initial
Covered
Person.
In
addition,
any
amendments,
modifications
or
terminations
of
the
Policythat
impact
a
Covered
Person
will
be
subject
to
any
additional,
express
restrictions
or
limitations
as
may
be
set
forth
in
such
Covered
Person’sParticipation
Schedule
from
time
to
time.Article 5.
Termination of Employment5.1
Termination of Employment of a Covered Person during the Protected Period .(a)
During
the
Protected
Period,
the
employment
of
a
Covered
Person
may
be
terminated
by
the
Company
due
to
the
CoveredPerson’s
Disability,
on
account
of
the
Covered
Person’s
death,
by
the
Company
Without
Cause
or
for
Cause,
or
by
the
Covered
Person
with
orwithout
Good
Reason.
The
termination
of
the
Covered
Person’s
employment
will
become
effective
as
of
the
date
hereinafter
specified.(b)
Termination
of
a
Covered
Person’s
employment
for
Disability
shall
become
effective
thirty
(30)
days
after
a
notice
of
intent
toterminate
the
Covered
Person’s
employment,
specifying
Disability
as
the
basis
for
such
termination,
is
received
by
the
Covered
Person
fromthe
Committee.
Termination
of
a
Covered
Person’s
employment
on
account
of
his
or
her
death
shall
become
effective
automatically
as
of
thedate
of
his
or
her
death.(c)
The
Company
shall
have
the
absolute
right
to
terminate
a
Covered
Person’s
employment
Without
Cause
at
any
time.
Terminationof
a
Covered
Person’s
employment
Without
Case
shall
become
effective
on
the
date
specified
by
the
Company.(d)
Termination
of
a
Covered
Person’s
employment
for
Cause
shall
become
effective
on
the
date
the
Company
issues
the
Final
CauseNotice
to
such
Covered
Person
in
accordance
with
the
procedures
set
forth
in
Article
2(h).(e)
Termination
of
a
Covered
Person’s
employment
for
Good
Reason
shall
become
effective
thirty
(30)
days
after
the
CoveredPerson’s
notice
of
termination
to
the
Company,
provided
that
the
Covered
Person
terminates
his
or
her
employment
in
accordance
with
theprocedure
specified
in
the
definition
of
Good
Reason.
Termination
of
a
Covered
Person’s
employment
without
Good
Reason
shall
becomeeffective
thirty
(30)
days
after
the
Covered
Person’s
notice
of
termination
to
the
Company
or
such
earlier
date
as
the
Company
may
determineupon
receipt
of
notice
by
the
Company
of
such
termination.5.2
Separation from Service .
For
purposes
of
any
provision
of
the
Policy
providing
for
the
payment
of
any
amounts
or
benefitssubject
to
409A
of
the
Code
upon
or
following
a
termination
of
employment,
references
to
a
“termination,”
“termination
of
employment”
orlike
terms
shall
mean
“separation
from
service”
within
the
meaning
of
Section
409A
of
the
Code.Article 6.
Payments Upon Termination of Employment in Certain Circumstances6.1
Qualifying Termination .
If,
during
the
Protected
Period,
the
employment
of
a
Covered
Person
shall
terminate
by
reason
of
aQualifying
Termination,
then:(a)
Payment of Certain Amounts. The
Company
shall
pay
to
the
Covered
Person:(i)
a
lump
sum
cash
payment
equal
to
the
sum
of
the
Covered
Person’s
earned
but
unpaid
Base
Salary
as
in
effect
at
the
timeof
the
Termination
Date
(without
regard
to
any
reduction
constituting
Good
Reason
and
excluding
any
amounts
the
Covered
Personelected
to
defer)
and
accrued
vacation
(the
“
Accrued Obligations ”),
within
thirty
(30)
days
following
the
Termination
Date
or
soonerif
required
by
applicable
law;(ii)
any
deferred
compensation
amounts
(including,
without
limitation,
any
amounts
of
base
salary
earned
but
unpaid
that
theCovered
Person
elected
to
defer),
at
the
times
provided
in
the
applicable
plan,
program,
or
agreement
governing
the
deferral;(iii)
any
annual
bonus
awards
earned
by
the
Covered
Person
but
not
yet
paid
as
of
the
Termination
Date,
on
the
regularlyscheduled
payment
date;
provided
that
for
purposes
of
this
clause
(iii),
in
order
to
have
earned
any
such
award
the
Covered
Person
musthave
remained
employed
through
the
last
day
of
the
applicable
performance
period
for
such
award;(iv)
a
pro-rata
annual
bonus
for
the
fiscal
year
of
the
Company
in
which
the
Termination
Date
occurs,
on
the
regularlyscheduled
payment
date,
determined
based
on
actual
performance
of
the
Company
(and
in
a
manner
consistent
with
how
bonusdeterminations
are
made
for
continuing,
active
employees
of
the
Company),
prorated
based
on
the
number
of
days
the
Covered
Personwas
employed
in
such
fiscal
year;
and(v)
subject
to
the
Covered
Person’s
satisfaction
of
the
conditions
set
forth
in
Article
15.10
hereof,
on
the
sixtieth
(60
th
)
dayfollowing
the
Termination
Date,
a
lump
sum
cash
severance
payment
equal
to
the
product
of
the
Covered
Person’s
Severance
Factortimes
the
sum
of
(1)
the
Covered
Person’s
Base
Salary
and
(2)
Target
Annual
Bonus
(the
“
Severance Payment ”). (b)
Outstanding Equity Awards .
All
equity
and
equity-based
awards
held
by
a
Covered
Person
and
outstanding
as
of
his
or
herTermination
Date
shall
be
treated
in
accordance
with
the
terms
of
the
applicable
plan
and
award
agreement
governing
such
awards,
treatingsuch
Covered
Person’s
Qualifying
Termination
hereunder
as
a
termination
of
employment
“without
cause”
or
for
“good
reason”
(or
such
otherterms
of
similar
import
as
may
be
used
in
the
applicable
plan
or
award
agreement
governing
such
awards)
following
a
Change
in
Control.(c)
Benefit Continuation .
Subject
to
the
Covered
Person’s
satisfaction
of
the
condition
set
forth
in
Article
15.10
hereof:(i)
the
Company
shall
pay
to
the
Covered
Person
a
monthly
cash
payment
equal
to
the
Covered
Person’s
monthly
COBRApremiums
to
continue
medical
coverage
under
the
Company’s
medical
plans
under
which
the
Covered
Person
was
covered
immediatelybefore
the
Termination
Date
for
twelve
months
following
the
Termination
Date;
it
being
understood
that
the
Covered
Person
shall
notbe
required
to
use
the
monthly
payments
for
such
premiums.
Any
payment
that
otherwise
would
be
made
before
the
sixtieth
(60
th
)
dayfollowing
the
Termination
Date
shall
be
paid
on
the
sixtieth
(60
th
)
day.(ii)
the
Company
shall
reimburse
the
Covered
Person
for
reasonable
expenses
incurred
by
the
Covered
Person
foroutplacement
counseling
services
(i)
which
do
not
exceed
$20,000,
and
(ii)
which
are
incurred
by
the
Covered
Person
within
twelvemonths
following
the
Termination
Date.
The
provision
of
outplacement
services
is
intended
to
be
exempt
from
Section
409
of
the
Codepursuant
to
the
in-kind
benefits
exception
as
set
forth
in
Section
1.409A-1(b)(9)(v)(c)
of
the
regulations
promulgated
thereunder.
Anyreimbursement
payment
that
otherwise
would
be
made
before
the
sixtieth
(60th)
day
following
the
Termination
Date
shall
be
paid
onthe
sixtieth
(60th)
day.6.2
Non-Qualifying Termination .
The
employment
of
a
Covered
Person
may
terminate
or
be
terminated
by
reason
of
a
Non-Qualifying
Termination
during
the
Protected
Period,
in
which
case
the
Company
shall
pay
the
Covered
Person
the
Accrued
Obligations
andany
other
payments
or
benefits
to
which
the
Covered
Person
is
entitled
under
applicable
law
and
any
other
benefit
plan,
program,
agreement
orarrangement
covering
the
Covered
Person.6.3
Other Agreements. A
Covered
Person
who
receives
a
Severance
Payment
hereunder
shall
not
be
entitled
to
receive
any
othercash
severance
payment
pursuant
to
any
other
severance
plan,
program,
policy,
agreement
or
arrangement
maintained
by
the
Company
or
anyadditional
annual
bonus
payment
other
than
as
specified
above;
provided
that
in
the
event
that
applicable
law
mandates
that
the
Companyprovide
to
the
Covered
Person
benefits
in
the
nature
of
severance,
then
the
amounts
of
benefits
provided
hereunder
shall
be
reduced,
in
amanner
consistent
with
the
requirements
of
Section
409A,
to
the
extent
applicable,
by
the
amount
of
such
legally
mandated
benefits.
Except
tothe
extent
specifically
provided
in
the
Policy
with
respect
to
the
Severance
Payment,
annual
bonus
payment,
COBRA
reimbursement
paymentand
outplacement
services,
a
Covered
Person
will
be
entitled
to
receive
other
accrued,
vested
or
deferred
compensation,
rights
or
benefits
upontermination
of
employment
in
accordance
with
the
terms
of
the
applicable
benefit
plans,
programs,
policies,
agreements
or
arrangements
inwhich
such
Covered
Person
participates,
including
but
not
limited
to
amounts
or
benefits
payable
under
any
stock
purchase
policy,
disabilitypolicy
or
similar
or
successor
policy.Article 7.
Code Section 280G7.1
(A)
In
the
event
it
shall
be
determined
by
the
Company’s
independent
auditors
immediately
prior
to
a
Change
in
Control
or,
ifsuch
auditors
are
unable
to
perform
the
services,
by
an
independent,
nationally
recognized
accounting
firm
selected
by
the
Company
in
its
solediscretion
immediately
prior
to
a
Change
in
Control
(in
either
case,
the
“
Accounting Firm ”)
that
any
payment
or
distribution
by
theCompany
to
or
for
the
benefit
of
the
Covered
Person,
whether
paid
or
payable
or
distributed
or
distributable
pursuant
to
the
terms
of
the
Policyor
otherwise
(a
“
Payment ”),
would
be
subject
to
the
excise
tax
imposed
by
Section
4999
of
the
Code,
or
any
interest
or
penalties
are
incurredby
the
Covered
Person
with
respect
to
such
excise
tax
(such
excise
tax,
together
with
any
such
interest
and
penalties,
are
hereinaftercollectively
referred
to
as
the
“
Excise Tax ”),
then
the
amount
of
Payments
payable
to
such
Covered
Person
shall
be
reduced
if
(1)
the
netamount
of
such
Payments,
as
so
reduced
(and
after
subtracting
the
net
amount
of
federal,
state
and
local
income
taxes
on
such
reducedPayments
and
after
taking
into
account
the
phase
out
of
itemized
deductions
and
personal
exemptions
attributable
to
such
reduced
Payments)
isgreater
than
(2)
the
net
amount
of
such
Payments
without
such
reduction
(but
after
subtracting
the
net
amount
of
federal,
state
and
local
incometaxes
on
such
Payments
and
the
amount
of
Excise
Tax
to
which
the
Covered
Person
would
be
subject
in
respect
of
such
unreduced
Paymentsand
after
taking
into
account
the
phase
out
of
itemized
deductions
and
personal
exemptions
attributable
to
such
unreduced
Payments).(a)
The
Accounting
Firm
shall
make
an
initial
determination
as
to
whether
a
reduction
in
Payments
is
required
under
Article
7.1(a)above.
If
the
Payments
must
be
reduced
as
provided
in
the
previous
paragraph,
the
reduction
shall
occur
in
the
following
order:
(1)
reductionof
cash
payments
for
which
the
full
amount
is
treated
as
a
“parachute
payment”
(as
defined
under
Code
Section
280G
and
the
regulationsthereunder);
(2)
cancellation
of
accelerated
vesting
(or,
if
necessary,
payment)
of
cash
awards
for
which
the
full
amount
is
not
treated
as
aparachute
payment;
(3)
reduction
of
any
continued
employee
benefits
and
(4)
cancellation
of
any
accelerated
vesting
of
equity
awards.
Inselecting
the
equity
awards
(if
any)
for
which
vesting
will
be
reduced
under
clause
(4)
of
the
preceding
sentence,
awards
shall
be
selected
in
amanner
that
maximizes
the
after-tax
aggregate
amount
of
reduced
Total
Payments
provided
to
the
Covered
Person,
provided
that
if
(and
onlyif)
necessary
in
order
to
avoid
the
imposition
of
an
additional
tax
under
Section
409A
of
the
Code,
awards
instead
shall
be
selected
in
thereverse
order
of
the
date
of
grant.
For
the
avoidance
of
doubt,
for
purposes
of
measuring
an
equity
compensation
award’s
value
to
the
CoveredPerson
when
performing
the
determinations
under
the
preceding
paragraph,
such
award’s
value
shall
equal
the
then
aggregate
fair
market
valueof
the
vested
shares
underlying
the
award
less
any
aggregate
exercise
price
less
applicable
taxes.
If
two
or
more
equity
awards
are
granted
onthe
same
date,
each
award
will
be
reduced
on
a
pro-rata
basis.(b)
All
determinations
required
under
this
Article
7
shall
be
made
in
writing
by
the
Accounting
Firm.
Any
reasonable
determination of
the
Accounting
Firm
made
in
good
faith
shall
be
binding
upon
the
Company
and
the
applicable
Covered
Person.
The
Company
and
theCovered
Person
shall
furnish
to
the
Accounting
Firm
such
information
and
documents
as
the
Accounting
Firm
may
reasonably
request
to
makea
determination
under
this
Article.
For
purposes
of
making
the
calculations
required
by
this
Article
7,
the
Accounting
Firm
may
makereasonable
assumptions
and
approximations
concerning
applicable
taxes
and
may
rely
on
reasonable
good
faith
interpretations
concerning
theapplication
of
Code
Sections
280G
and
4999.
The
Accounting
Firm
shall
provide
detail
supporting
its
determinations
both
to
the
Company
andthe
applicable
Covered
Person
within
fifteen
(15)
business
days
of
the
Termination
Date
or
such
earlier
time
as
is
requested
by
the
Company.If
the
Accounting
Firm
determines
that
no
Excise
Tax
is
payable
by
the
Covered
Person,
it
shall,
if
requested
by
the
Covered
Person,
furnishthe
Covered
Person
with
an
opinion
that
he/she
has
substantial
authority
not
to
report
any
Excise
Tax
on
his/her
federal,
state,
local
income
orother
tax
return.
The
fees
and
expenses
of
the
Accounting
Firm
for
its
services
in
connection
with
the
determinations
contemplated
by
thisArticle
7
shall
be
borne
by
the
Company.(d)
Each
Covered
Person
shall
be
responsible
for
all
taxes
imposed
on
the
Covered
Person
on
account
of
payments
and
benefits
underthis
Policy,
including
without
limitation
any
excise
taxes
imposed
under
Section
4999
of
the
Code.Article 8.
Withholding TaxesThe
Company
may
withhold
from
all
payments
due
hereunder
to
a
Covered
Person
(or
his
or
her
Beneficiary)
all
taxes
which,
byapplicable
federal,
state,
local
or
other
law,
the
Company
is
required
to
withhold
therefrom.Article 9.
the Company’s Payment Obligation; No Mitigation9.1
Payment Obligations are Absolute .(a)
The
Company’s
obligation
to
a
Covered
Person
to
make
the
payments
and
the
arrangements
provided
for
herein
shall
be
absoluteand
unconditional,
and
shall
not
be
affected
by
any
circumstances,
including,
without
limitation,
any
offset,
counterclaim,
recoupment,defense,
or
other
right
which
the
Company
may
have
against
the
Covered
Person
or
anyone
else,
except
to
the
extent
so
provided
in
Articles
7and
15.12,
if
applicable,
or
mandated
by
applicable
law.
All
amounts
payable
by
the
Company
hereunder
shall
be
paid
without
notice
ordemand.
Each
and
every
payment
made
hereunder
by
the
Company
shall
be
final,
and
the
Company
shall
not
seek
to
recover
all
or
any
part
ofsuch
payment
from
Covered
Persons
or
from
whomsoever
may
be
entitled
thereto,
except
to
the
extent
mandated
by
applicable
law.(b)
Covered
Persons
shall
not
be
obligated
to
seek
other
employment
or
take
other
action
by
way
of
mitigation
of
the
amountspayable
or
arrangements
made
under
any
provision
of
the
Policy,
and
the
obtaining
of
any
such
other
employment
shall
in
no
event
effect
anyreduction
of
the
Company’s
obligations
to
make
the
payments
and
arrangements
required
to
be
made
under
the
Policy.9.2
Contractual Rights to Benefits .
Subject
to
the
provisions
of
Article
15.5
hereof,
the
Policy,
together
with
the
applicableCovered
Person’s
Participation
Schedule,
establishes
and
vests
in
each
Covered
Person
a
contractual
right
to
the
benefits
to
which
he
is
entitledhereunder.Article 10.
Successors.The
Company
will
require
any
successor
(whether
direct
or
indirect,
by
purchase,
merger,
consolidation,
or
otherwise)
of
all
orsubstantially
all
of
the
business
and/or
assets
of
the
Company
to
expressly
assume
and
agree
to
perform
the
Company’s
obligations
under
thePolicy.
Failure
of
the
Company
to
obtain
such
an
assumption
agreement
prior
to
the
effective
date
of
any
such
succession
shall
be
a
materialbreach
of
the
Policy.Article 11.
Restrictive Covenants(a)
As
a
condition
to
participation
in
the
Policy,
a
Covered
Person
shall
agree
to
be
bound
by
the
following
Restrictive
Covenants:(i)
the
Covered
Person
acknowledges
that
the
Company’s
Confidential
Information
is
the
exclusive
property
of
the
Company,is
material
and
confidential,
and
greatly
affects
the
effective
and
successful
conduct
of
the
business
of
the
Company.
The
CoveredPerson
agrees
to
use
the
Company’s
Confidential
Information
only
for
the
benefit
of
the
Company
and
shall
not
at
any
time,
directly
orindirectly,
either
during
employment
with
the
Company
or
afterward,
divulge,
reveal
or
communicate
the
Company’s
ConfidentialInformation
to
any
person,
firm,
corporation
or
entity
whatsoever,
or
use
the
Company’s
Confidential
Information
for
such
CoveredPerson’s
own
benefit
or
for
the
benefit
of
others;(ii)
the
Covered
Person
shall
not,
at
any
time,
denigrate
or
disparage
the
Company
or
any
of
its
Board
of
Directors
or
officers;(iii)
the
Covered
Person
agrees
to
make
a
prompt
and
complete
disclosure
to
the
Company
of
any
Confidential
Information
inhis
or
her
possession,
upon
such
a
request
by
the
Company.
Upon
termination
of
employment
and
at
any
other
time
upon
request,
theCovered
Person
further
agrees
to
surrender
to
the
Company
all
documents,
writings
and
other
such
materials
produced
by
the
CoveredPerson
or
coming
into
the
Covered
Person’s
possession
by
or
through
employment
with
the
Company
during
the
term
of
suchemployment,
and
agrees
that
all
such
materials
are
at
all
times
the
Company’s
property;(iv)
the
Covered
Person
agrees
to
fully
cooperate,
in
all
reasonable
respects,
with
the
Company
in
regard
to
any
internal
or external
investigations
of
the
Company,
its
business,
its
business
practices
or
the
like
relating
to
the
period
in
which
the
Covered
Personis
or
was
employed
by
the
Company.
If
the
Covered
Person
is
requested
to
provide
assistance
after
termination
of
his
employment,
thenhe
will
be
reimbursed
for
any
reasonable
expenses
within
30
days
of
submission
of
applicable
receipts
or
invoices.(v)
for
a
period
of
one
(1)
year
following
the
Termination
Date,
anywhere
in
the
world
(and
each
incorporated
andunincorporated
area
thereof),
the
Covered
Person
will
not
own,
manage,
operate,
control,
be
employed
by,
act
as
an
agent
for,participate
in
or
be
connected
in
any
manner
with
the
ownership,
management,
operation
or
control
of
any
business
which
is
engaged
inwholesale
distribution
of
computer
hardware
and/or
software
products
or
mobility
products
or
IT
services
as
its
primary
line
ofbusiness,
including
but
not
limited
to
Ingram-Micro
or
its
affiliates,
ALSO/Actebis,
West
Coast,
Arrow
Electronics,
Inc.,
Avnet,Synnex,
Brightstar,
CDW,
Amazon,
D&H
Distributing
Co,
Insight
and
Pivot;
provided
that
nothing
herein
shall
be
interpreted
toprohibit
the
Covered
Person
from
owning
stock
in
publicly
traded
corporations
that
may
compete
with
the
Company
so
long
as
suchstock
ownership
does
not
represent
a
majority
or
controlling
interest
in
such
corporations;(vi)
for
a
period
of
one
(1)
year
following
the
Termination
Date,
the
Covered
Person
will
not:
(i)
directly
or
indirectly,
hire
orparticipate
in
the
hiring
of
any
employee
of
the
Company
or
any
of
its
affiliates,
provided
,
however
that
this
restriction
shall
not
applyeither
to
former
employees
of
the
Company
or
to
employees
who
respond
to
a
general
advertisement;
(ii)
solicit
or
induce,
or
attempt
tosolicit
or
induce,
any
employee
of
the
Company
or
its
affiliates
to
leave
the
Company
or
such
affiliates
for
any
reason;
and
(iii)
solicitor
induce,
or
attempt
to
solicit
or
induce
any
customer
of
or
vendor
to
the
Company
or
its
affiliates
to
stop
doing
business
with
or
movesome
or
all
of
such
customer
or
vendor
business
to
a
person
or
entity
other
than
the
Company.(b)
The
Restrictive
Covenants
are
in
addition
to
any
rights
the
Company
may
have
in
law
or
at
equity
or
under
any
other
agreement.(c)
As
a
condition
to
participation
in
the
Policy,
a
Covered
Person
shall
further
agree
that
it
is
impossible
to
measure
in
money
thedamages
which
will
accrue
to
the
Company
in
the
event
the
Covered
Person
breaches
the
Restrictive
Covenants.
Therefore,
if
the
Companyshall
institute
any
action
or
proceeding
to
enforce
the
provisions
hereof,
the
Covered
Person
shall
agree
to
waive
the
claim
or
defense
that
theCompany
has
an
adequate
remedy
at
law
and
the
Covered
Person
shall
agree
not
to
assert
in
any
such
action
or
proceeding
the
claim
or
defensethat
the
Company
has
an
adequate
remedy
at
law.
The
foregoing
shall
not
prejudice
the
Company’s
right
to
require
the
Covered
Person
toaccount
for
and
pay
over
to
the
Company
any
profit
obtained
by
the
Covered
Person
as
a
result
of
any
transaction
constituting
a
breach
of
theRestrictive
Covenants.(d)
The
validity
or
unenforceability
of
any
provision
of
this
Section
11
shall
not
affect
the
validity
or
enforceability
of
any
otherprovision
of
this
Policy.
The
Covered
Person
and
the
Company
have
specifically
agreed
and
acknowledged
that
the
provisions
in
Section
11are
fair,
reasonable
and
material.
If
the
scope
of
any
restriction
or
covenant
contained
herein
should
be
or
become
too
broad
or
extensive
topermit
enforcement
to
its
fullest
extent,
then
such
restriction
or
covenant
shall
be
enforced
to
the
maximum
extent
permitted
by
law,
and
theCovered
Person
hereby
consents
and
agrees
that
(a)
it
is
the
parties
intention
and
agreement
that
this
Section
11
be
enforced
as
written,
and
(b)in
the
event
a
court
of
competent
jurisdiction
should
determine
that
any
restriction
or
covenant
is
too
broad
or
extensive
to
permit
enforcementto
its
fullest
extent,
the
scope
of
any
such
restriction
or
covenant
may
be
modified
but
only
as
necessary
as
the
court,
in
its
judgment,
deemswarranted
in
order
to
have
the
fullest
enforcement
possible
consistent
with
governing
law.(e)
The
Covered
Person’s
agreement
to
be
bound
by
the
provisions
of
this
Article
11
shall
be
effected
by
the
Covered
Person’sexecution
of
his
or
her
Participation
Schedule
in
such
form
as
the
Committee
may
determine
from
time
to
time.(f)
Notwithstanding
the
foregoing,
if
a
Covered
Person
is
otherwise
party
to
an
agreement
with
the
Company
or
its
affiliates
pursuantto
which
the
Covered
Person
is
subject
to
noncompetition
obligations
for
a
period
of
at
least
one
year
following
a
termination
of
employment,then
the
restrictions
set
forth
in
this
Section
11
shall
not
apply
to
the
Covered
Person,
and
the
noncompetition
provisions
of
such
otheragreement
shall
instead
remain
in
effect
and
apply
to
such
Covered
Person
if
and
to
the
extent
provided
in
such
Covered
Person’s
otheragreement.(g)
Notwithstanding
anything
to
the
contrary
set
forth
herein,
no
confidentiality,
non-disparagement
or
other
obligation
owed
by
theCovered
Person
to
the
Company
or
its
affiliates
shall
prohibit
the
Covered
Person
from
reporting,
whether
anonymously
or
on
a
disclosurebasis,
possible
violations
of
federal
law
or
regulation
to
any
governmental
agency
or
entity
in
accordance
with
the
provisions
of
and
rulespromulgated
under
Section
21F
of
the
Securities
Exchange
Act
of
1934
or
Section
806
of
the
Sarbanes-Oxley
Act
of
2002,
or
shall
require
theCovered
Person
to
notify
the
Company
or
any
of
its
affiliates
of
any
such
report,
and
none
of
the
Company
or
any
of
its
affiliates
will
retaliateagainst
the
Covered
Person
for
any
such
report.
In
making
any
such
report,
however,
the
Covered
Person
is
not
authorized
to
disclosecommunications
with
counsel
that
were
made
for
the
purpose
of
receiving
legal
advice,
that
contain
legal
advice
or
that
are
protected
by
theattorney
work
product
or
similar
privilege.Article 12.
Arbitration of Disputes(a)
Any
disagreement,
dispute,
controversy
or
claim
arising
out
of
or
relating
to
the
Policy
or
the
interpretation
or
validity
hereofshall
be
settled
exclusively
and
finally
by
binding
arbitration
to
be
conducted
in
Clearwater,
Florida
or,
solely
in
respect
of
any
Covered
Personwith
a
principal
work
location
in
the
European
Union,
London,
England,
or
such
other
location
as
may
be
specified
in
the
Covered
Person’sParticipation
Schedule.
It
is
specifically
understood
and
agreed
that
any
disagreement,
dispute
or
controversy
which
cannot
be
resolvedbetween
the
parties,
including
without
limitation
any
matter
relating
to
the
interpretation
of
the
Policy,
shall
be
submitted
to
arbitration irrespective
of
the
magnitude
thereof,
the
amount
in
controversy
or
whether
such
disagreement,
dispute
or
controversy
would
otherwise
beconsidered
justifiable
or
ripe
for
resolution
by
a
court
or
arbitral
tribunal.
Nothing
in
this
Article
12(a)
shall
preclude
the
Company
fromseeking
specific
performance
of
the
Restrictive
Covenants
set
forth
in
Article
11
hereof
in
such
jurisdiction
as
the
Company
may
deemappropriate.(b)
The
arbitration
shall
be
conducted
in
accordance
with
the
Arbitration
Rules,
except
as
otherwise
provided
below.(c)
The
arbitral
tribunal
shall
consist
of
one
arbitrator.
The
parties
to
the
arbitration
jointly
shall
directly
appoint
such
arbitratorwithin
thirty
(30)
days
of
initiation
of
the
arbitration.
If
the
parties
shall
fail
to
appoint
such
arbitrator
as
provided
above,
such
arbitrator
shallbe
appointed
in
accordance
with
the
Arbitration
Rules
and
shall
be
a
person
who
has
had
substantial
experience
in
executive
compensationissues
in
the
context
of
mergers
and
acquisitions.
The
Company
shall
pay
all
of
the
fees,
if
any,
and
expenses
of
such
arbitrator.(d)
At
any
oral
hearing
of
evidence
in
connection
with
the
arbitration,
each
party
thereto
or
its
legal
counsel
shall
have
the
right
toexamine
its
witnesses
and
to
cross-examine
the
witnesses
of
any
opposing
party.
No
evidence
of
any
witness
shall
be
presented
unless
theopposing
party
or
parties
shall
have
the
opportunity
to
cross-examine
such
witness,
except
as
the
parties
to
the
dispute
otherwise
agree
inwriting.(e)
Any
decision
or
award
of
the
arbitral
tribunal
shall
be
final
and
binding
upon
the
parties
to
the
arbitration
proceeding.
The
partieshereto
hereby
waive
to
the
extent
permitted
by
law
any
rights
to
appeal
or
to
seek
review
of
such
award
by
any
court
or
tribunal.
The
partieshereto
agree
that
the
arbitral
award
may
be
enforced
against
the
parties
to
the
arbitration
proceeding
or
their
assets
wherever
they
may
be
foundand
that
a
judgment
upon
the
arbitral
award
may
be
entered
in
any
court
having
jurisdiction.(f)
Nothing
herein
contained
shall
be
deemed
to
give
the
arbitral
tribunal
any
authority,
power,
or
right
to
alter,
change,
amend,modify,
add
to,
or
subtract
from
any
of
the
provisions
of
the
Policy.Article 13.
Legal Fees.If
the
Covered
Person
prevails
on
at
least
one
material
claim
that
forms
part
of
a
dispute
with
the
Company
regarding
the
validity
orenforceability
of,
or
liability
under,
any
provision
of
the
Policy
(including
as
a
result
of
any
contest
by
the
Covered
Person
about
the
amount
ofany
payment
pursuant
to
Article
6),
the
Company
shall
promptly
reimburse
the
Covered
Person
for
all
reasonable
attorneys’
fees
and
relatedexpenses
(“Legal
Fees”)
incurred
by
the
Covered
Person
in
connection
with
such
dispute.
In
no
event
shall
the
payments
by
the
Companyunder
this
Article
13
be
made
later
than
the
end
of
the
calendar
year
next
following
the
calendar
year
in
which
such
Legal
Fees
were
incurred,provided
that
Covered
Person
shall
have
submitted
an
invoice
for
such
Legal
Fees
at
least
10
days
before
the
end
of
the
calendar
year
nextfollowing
the
calendar
year
in
which
such
Legal
Fees
were
incurred.
The
amount
of
such
Legal
Fees
that
the
Company
is
obligated
to
pay
inany
given
calendar
year
shall
not
affect
the
Legal
Fees
that
the
Company
is
obligated
to
pay
in
any
other
calendar
year,
and
Covered
Person’sright
to
have
the
Company
pay
such
Legal
Fees
may
not
be
liquidated
or
exchanged
for
any
other
benefit.Article 14.
Trusts; Unfunded Status of Policy14.1
Unfunded Status of Policy .
The
Policy
is
intended
to
constitute
an
“unfunded”
Policy
and
Covered
Persons
shall
have
noclaim
against
the
Company
or
its
assets
other
than
as
unsecured
general
creditors.
Notwithstanding
the
foregoing,
the
Company
may,
in
its
solediscretion,
establish
a
trust
or
purchase
other
property
to
assist
it
in
meeting
its
obligations
hereunder
as
set
forth
in
Article
14.2
below;provided
,
however
,
that
in
no
event
shall
any
Covered
Person
have
any
interest
in
such
trust
or
property
other
than
as
an
unsecured
generalcreditor.14.2
Creation of Trusts .
The
Committee
may,
in
its
discretion,
authorize
the
creation
of
one
or
more
trusts
(including
sub-accountsunder
such
trust(s)),
and
deposit
therein
amounts
of
cash,
stock,
or
other
property
not
exceeding
the
amount
of
the
Company’s
obligations
withrespect
to
the
Policy,
or
make
other
arrangements
to
meet
the
Company’s
obligations
under
the
Policy,
which
trusts
or
other
arrangements
shallbe
consistent
with
the
“unfunded”
status
of
the
Policy.Article 15.
Miscellaneous15.1
Employment Status. Except
as
may
be
provided
under
any
other
agreement
between
a
Covered
Person
and
the
Company,
theemployment
of
the
Covered
Person
by
the
Company
is
“at
will.”
The
Policy
does
not
constitute
a
contract
of
employment
or
impose
on
theCompany
any
obligation
to
retain
the
Covered
Person
as
an
employee,
to
change
the
status
of
the
Covered
Person’s
employment,
or
to
changethe
policies
of
the
Company
regarding
termination
of
employment.15.2
Beneficiaries .(a)
Except
with
regard
to
the
equity
awards
referenced
in
Article
6.1(b),
each
Covered
Person
may
designate
one
or
more
persons
orentities
as
the
primary
and/or
contingent
Beneficiaries
of
any
amounts
owing
to
the
Covered
Person
under
the
Policy.
Covered
Persons
maymake
or
change
such
designations
at
any
time;
provided
,
that
such
designation
must
be
in
the
form
of
a
signed
writing
acceptable
to
theCommittee
and
filed
with
the
Company
prior
to
the
Covered
Person’s
death.
If
the
Covered
Person
has
not
named
a
Beneficiary,
then
suchamounts
shall
be
paid
to
the
Covered
Person’s
estate. (b)
The
Policy
shall
inure
to
the
benefit
of
and
be
enforceable
by
the
Covered
Person
or
the
Beneficiary
or
the
Covered
Person’sestate.
If
a
Covered
Person
dies
while
any
amount
would
still
be
payable
to
the
Covered
Person
hereunder
had
the
Covered
Person
continued
tolive,
all
such
amounts,
unless
otherwise
provided
herein,
shall
be
paid
in
accordance
with
the
terms
of
the
Policy
to
the
Beneficiary
or
theCovered
Person’s
estate
or,
with
respect
to
any
stock
options,
restricted
shares,
restricted
stock
units
and
other
equity
awards
and
payments,
asprovided
in
the
applicable
documents
governing
such
arrangements.15.3
Number .
Except
where
otherwise
indicated
by
the
context,
the
plural
shall
include
the
singular,
and
the
singular
shall
includethe
plural.15.4
Severability .
Every
provision
of
this
Policy
is
intended
to
be
severable.
If
any
term
or
provision
hereof
is
declared
invalid
by
acourt
of
competent
jurisdiction
for
any
reason
whatsoever
and
cannot
be
modified
to
be
enforceable,
its
invalidity
will
not
affect
the
validity
ofthe
remainder
of
the
Policy,
which
shall
remain
in
full
force
and
effect.15.5
Modification and Termination .
The
Policy
may
be
amended
in
any
manner
and
from
time
to
time
or
terminated
at
any
time,each
at
the
discretion
of
the
Committee;
provided
that,
except
with
regard
to
an
amendment
pursuant
to
Article
15.11:(a)
with
respect
to
any
Initial
Covered
Person,
the
Committee
may
not
amend,
modify
or
terminate
the
Policy
in
a
manner
thatadversely
affects
such
Initial
Covered
Person
prior
to
the
second
anniversary
of
the
Effective
Date
without
the
express
written
consent
of
suchInitial
Covered
Person;(b)
no
termination
or
amendment
that
is
adverse
to
a
Covered
Person
shall
be
effective
with
respect
to
such
Covered
Person
prior
tothe
date
that
is
six
(6)
months
from
the
date
written
notice
of
such
amendment
or
termination
is
given
to
such
Covered
Person;
and(c)
no
termination
or
amendment
that
is
adverse
to
a
Covered
Person
and
that
would
otherwise
be
effective
within
six
(6)
monthsbefore
or
twenty
four
(24)
months
after
a
Change
in
Control
shall
apply
to
any
termination
of
employment
of
a
Covered
Person
during
suchCovered
Person’s
Protected
Period,
as
defined
herein
prior
to
giving
effect
to
any
such
termination
or
amendment(s)
of
the
Policy.15.6
Applicable Law .
This
Policy
shall
be
subject
to,
and
construed
in
accordance
with,
the
laws
of
the
State
of
Florida,
withoutreference
to
its
conflict
of
laws
rules.15.7
Headings .
The
section
headings
or
subsection
headings
have
been
included
for
convenience
only,
are
not
part
of
this
Policy,and
are
not
to
be
taken
as
an
interpretation
of
any
provision
hereof.
References
to
gender
shall
include
each
other
gender,
as
appropriate.15.8
Notice. Notices
and
all
other
communications
contemplated
by
this
Policy
shall
be
in
writing
and
shall
be
deemed
to
have
beenduly
given
when
personally
delivered
or
when
mailed
by
overnight
courier,
U.S.
registered
or
certified
mail,
return
receipt
requested
andpostage
prepaid.
In
the
case
of
a
Covered
Person,
mailed
notices
shall
be
addressed
to
such
Covered
Person
at
the
home
address
that
CoveredPerson
most
recently
communicated
to
the
Company
in
writing.
In
the
case
of
the
Company,
mailed
notices
shall
be
addressed
to
its
corporateheadquarters,
and
all
notices
shall
be
directed
to
the
attention
of
its
Secretary.15.9
Joint and Several Obligations .
If
the
Covered
Person
is
employed
during
the
Protected
Period
by
one
or
more
entities
thatform
part
of
the
Company,
whether
or
not
such
Covered
Person
is
also
employed
by
the
Company
during
the
Protected
Period,
each
suchentity
shall
be
jointly
and
severally
liable
together
with
the
Company
for
the
obligations
of
the
Company
to
the
Covered
Person
hereunder.15.10
Release .
Payments
to
be
provided
to
the
Covered
Person
by
the
Company
under
Article
6.1(a)(v)
hereof
shall
be
paid
to
theCovered
Person
on
the
date
specified
in
the
respective
Article,
subject
to
the
condition
that
the
Covered
Person
has
executed
and
delivered
tothe
Company
a
release
substantially
in
the
form
of
Exhibit
A
hereto
and
that
such
release
has
become
effective,
enforceable
and
irrevocable
inaccordance
with
its
terms.15.11
Section 409A of the Code .
It
is
intended
that
any
amounts
payable
under
this
Policy
and
any
exercise
of
authority
ordiscretion
hereunder
shall
be
exempt
from
or
comply
with
Section
409A
of
the
Code
(including
the
Treasury
regulations
and
other
publishedguidance
relating
thereto)
so
as
not
to
subject
a
Covered
Person
to
the
payment
of
any
interest
or
additional
tax
imposed
under
Section
409A
ofthe
Code;
provided
that
the
Company
makes
no
representations
regarding
the
tax
implications
of
any
compensation
or
benefits
to
be
paid
orprovided
hereunder
under
Section
409A
of
the
Code.
In
furtherance
of
this
intent,
if
the
date
of
payment
or
the
commencement
of
anyinstallment
payments
must
be
delayed
for
six
months
in
order
to
meet
the
requirements
of
Section
409A(a)(2)(B)
of
the
Code
applicable
to“specified
employees,”
then
such
payment
or
payments
shall
be
so
delayed
and
paid
upon
the
expiration
of
such
six
month
period.
With
regardto
any
provision
herein
that
provides
for
reimbursement
of
expenses,
or
in-kind
benefits,
such
reimbursements
or
in-kind
benefits
shall
be
paidin
a
manner
consistent
with
Treas.
Reg.
Section
1.409A-3(i)(1)(iv).15.12
Clawback .
Notwithstanding
anything
in
this
Policy
to
the
contrary,
the
Company
may
be
entitled
or
required
by
law,
anyapplicable
Company
policy
(any
such
policy,
a
“
Clawback Policy ”)
or
the
requirements
of
an
exchange
on
which
the
Company’s
shares
arelisted
for
trading,
to
recoup
compensation
paid
to
a
Covered
Person
pursuant
to
this
Policy
or
otherwise,
and
each
Covered
Person
selected
tobe
covered
by
the
Policy
shall
be
deemed
to
have
agreed
to
comply
with
any
such
Company
request
or
demand
for
recoupment.
Each
CoveredPerson
shall
also
be
deemed
to
have
acknowledged
and
agreed
that
the
Clawback
Policy
may
be
modified
from
time
to
time
in
the
solediscretion
of
the
Company
and
without
the
consent
of
the
Covered
Person,
and
that
such
modification
will
be
deemed
to
amend
this
Policy; provided
,
that,
except
as
otherwise
required
by
applicable
law
(including
the
terms
of
any
exchange
on
which
the
Company’s
shares
are
thenlisted
for
trading),
the
effect
of
any
such
amendment
or
modification
on
amounts
payable
or
benefits
to
be
provided
hereunder
shall
be
subjectto
the
limitations
set
forth
in
Section
15.5.
Each
Covered
Person
shall
also
be
deemed
to
have
acknowledged
and
agreed
that,
subject
to
thelimitations
set
forth
in
the
foregoing
sentence,
the
Clawback
Policy
as
in
effect
from
time
to
time
shall
apply
to
any
and
all
payments
ofcompensation
and
benefits
(other
than
such
Covered
Person’s
base
salary
and
benefits
under
any
tax-qualified
retirement
plan
or
health
andwelfare
plan)
as
specified
in
the
Clawback
Policy.Exhibit AGENERAL RELEASEExhibit BPARTICIPATION SCHEDULE[Date][Name
and
Address
of
Executive]We
are
offering
you
the
opportunity
to
become
a
Covered
Person
in
the
Tech
Data
Corporation
Change
in
Control
Severance
Policy.All
defined
terms
used
herein
shall
have
the
meaning
ascribed
to
them
in
the
Policy.As
a
condition
to
your
coverage
under
the
Policy,
you
must
execute
this
Participation
Schedule
evidencing
your
agreement
to
be
boundby
all
the
terms
of
the
Policy,
including,
without
limitation,
the
provisions
of
Article
11.Except
as
may
be
provided
under
any
other
agreement
between
you
and
the
Company,
your
employment
by
the
Company
is
“at
will.”The
Policy
does
not
constitute
a
contract
of
employment
or
impose
on
the
Company
any
obligation
to
retain
you
as
an
employee,
to
change
thestatus
of
your
employment,
or
to
change
the
policies
of
the
Company
regarding
termination
of
employment.For
purposes
of
the
Policy,
your
participation
shall
be
determined
based
upon
the
following:(a)
You
have
been
designated
by
the
Company
as
an
Initial
Covered
Person
and
will
have
a
Severance
Factor
of
[
]
under
the
PolicyExecuted
as
of
this
___
day
of
________,
20__.
Accepted
and
Agreed
TECH
DATA
CORPORATIONBy:
_____________________________
By:
________________________________Robert
M.
DutkowskyChief
Executive
Officer
Annex 1Initial Covered Persons
Matter
000952
CIC
Policy TECH DATA CORPORATION AND SUBSIDIARIESName of SubsidiaryDesignationIncorporationAzlan European Finance LimitedFUnited KingdomAzlan GmbHFGermanyAzlan Group LimitedFUnited KingdomAzlan LimitedFUnited KingdomAzlan Logistics LimitedFUnited KingdomAzlan Scandinavia ABFSwedenHorizon Technical Services (UK) LimitedFUnited KingdomHorizon Technical Services ABFSwedenISI Distribution LimitedFUnited KingdomManaged Training Services LimitedFUnited KingdomManeboard LimitedFUnited KingdomSpecialist Distribution Group (SDG) LimitedFUnited KingdomTech Data Brasil LtdaFBrazilTD Facilities, Ltd.DTexasTD Fulfillment Services, LLCDFloridaTD Tech Data ABFSwedenTD United Kingdom Acquisition LimitedFUnited KingdomTech Data (Netherlands) B.V.FNetherlandsTech Data (Schweiz) GmbHFSwitzerlandTech Data bvba/sprlFBelgiumTech Data Canada CorporationFCanadaTech Data Corporation (“TDC”)DFloridaTech Data Delaware, Inc.DDelawareTech Data Denmark ApSFDenmarkTech Data Deutschland GmbHFGermanyTech Data Distribution LimitedFIrelandTech Data Distribution s.r.o.FCzech RepublicTech Data Education, Inc.DFloridaTech Data Espana S.L.U.FSpainTech Data Europe GmbHFGermanyTech Data Europe Services and Operations, S.L.FSpainTech Data European Management GmbHFGermanyTech Data Finance Partner, Inc.DFloridaTech Data Finance SPV, Inc.DDelawareTech Data Financing CorporationFCayman IslandsTech Data Finland OyFFinlandTech Data Florida Services, Inc.DFloridaTech Data France Holding SarlFFranceTech Data France SASFFranceTech Data Global Finance LPFCayman IslandsTech Data GmbH & Co OHGFGermanyTech Data Hungary kft.FHungary Tech Data Information TechnologyFGermanyTech Data International SárlFSwitzerlandTech Data Italia SrlFItalyTech Data Latin America, Inc.DFloridaTech Data LimitedFUnited KingdomTech Data Lux Finance S.á.r.lFLuxembourgTech Data Luxembourg S.á.r.lFLuxembourgTech Data Management GmbHFAustriaTech Data Marne SNCFFranceTech Data Mexico S. de R. L. de C. V.FMexicoTech Data Midrange GmbHFGermanyTech Data Mobile Acquisition Limited (formerly known as Brightstar Acquisition Limited)FUnited KingdomTech Data Mobile Limited (formerly known as Brightstar Europe Limited)FUnited KingdomTech Data Nederland BVFNetherlandsTech Data Norge ASFNorwayTech Data Operations Center, SAFCosta RicaTech Data Österreich GmbHFAustriaTech Data Polska Sp.z.o.o.FPolandTech Data Portugal LdaFPortugalTech Data Product Management, Inc.DFloridaTech Data Resources, LLCDDelawareTech Data Service GmbHFAustriaTech Data Servicios, S. de R.L. de C.V.FMexicoTech Data Strategy GmbHFGermanyTech Data Tennessee, Inc.DFloridaTech Data Uruguay S.A.FUruguay
*Domestic
(D),
Foreign
(F) Consent
of
Independent
Registered
Certified
Public
Accounting
FirmWe
consent
to
the
incorporation
by
reference
in
the
following
Registration
Statements
of
Tech
Data
Corporation:(1)
Registration
Statement
(Form
S-8
No.
333-161687)
pertaining
to
the
2009
Equity
Incentive
Plan,(2)
Registration
Statement
(Form
S-8
No.
333-144298)
pertaining
to
the
Amended
and
Restated
2000
Equity
Incentive
Plan,(3)
Registration
Statement
(Form
S-8
No.
333-59198)
pertaining
to
the
2000
Non-Qualified
Stock
Option
Plan
and
the
2000
Equity
Incentive
Plan,(4)
Registration
Statement
(Form
S-8
No.
033-62181)
pertaining
to
the
1995
Non-employee
Directors
Stock
Option
Plan,
and(5)
Registration
Statement
(Form
S-8
No.
033-60479)
pertaining
to
the
1995
Employee
Stock
Purchase
Plan;of
our
reports
dated
March
24,
2016,
with
respect
to
the
consolidated
financial
statements
and
schedule
of
Tech
Data
Corporation
and
subsidiaries
and
the
effectiveness
ofinternal
control
over
financial
reporting
of
Tech
Data
Corporation
and
subsidiaries
included
in
this
Annual
Report
(Form
10-K)
of
Tech
Data
Corporation
for
the
year
endedJanuary
31,
2016./s/
Ernst
&
Young
LLPTampa,
FloridaMarch
24,
2016 Exhibit 31-ACertification
of
Chief
Executive
OfficerPursuant
toExchange
Act
Rules
13a-14(a)
and
15d-14(a)As
Adopted
Pursuant
toSection
302
of
The
Sarbanes-Oxley
Act
of
2002I,
Robert
M.
Dutkowsky,
certify
that:1.I
have
reviewed
this
annual
report
on
Form
10-K
of
Tech
Data
Corporation
(the
“registrant”);2.Based
on
my
knowledge,
this
report
does
not
contain
any
untrue
statement
of
a
material
fact
or
omit
to
state
a
material
fact
necessary
to
make
the
statements
made,
inlight
of
the
circumstances
under
which
such
statements
were
made,
not
misleading
with
respect
to
the
period
covered
by
this
report;3.Based
on
my
knowledge,
the
financial
statements,
and
other
financial
information
included
in
this
report,
fairly
present
in
all
material
respects
the
financial
condition,results
of
operations
and
cash
flows
of
the
registrant
as
of,
and
for,
the
periods
presented
in
this
report;4.The
registrant’s
other
certifying
officer
and
I
are
responsible
for
establishing
and
maintaining
disclosure
controls
and
procedures
(as
defined
in
Exchange
Act
Rules
13a-15(e)
and
15d-15(e)),
and
internal
control
over
financial
reporting
(as
defined
in
Exchange
Act
Rules
13a-15(f)
and
15d-15(f))
for
the
registrant
and
have:a)Designed
such
disclosure
controls
and
procedures,
or
caused
such
disclosure
controls
and
procedures
to
be
designed
under
our
supervision,
to
ensure
that
materialinformation
relating
to
the
registrant,
including
its
consolidated
subsidiaries,
is
made
known
to
us
by
others
within
those
entities,
particularly
during
the
period
inwhich
this
report
is
being
prepared;b)Designed
such
internal
control
over
financial
reporting,
or
caused
such
internal
control
over
financial
reporting
to
be
designed
under
our
supervision,
to
providereasonable
assurance
regarding
the
reliability
of
financial
reporting
and
the
preparation
of
financial
statements
for
external
purposes
in
accordance
with
generallyaccepted
accounting
principles;c)Evaluated
the
effectiveness
of
the
registrant’s
disclosure
controls
and
procedures
and
presented
in
this
report
our
conclusions
about
the
effectiveness
of
thedisclosure
controls
and
procedures,
as
of
the
end
of
the
period
covered
by
this
report
based
on
such
evaluation;
andd)Disclosed
in
this
report
any
change
in
the
registrant’s
internal
control
over
financial
reporting
that
occurred
during
the
registrant’s
most
recent
fiscal
quarter
(theregistrant’s
fourth
fiscal
quarter
in
the
case
of
an
annual
report)
that
has
materially
affected,
or
is
reasonably
likely
to
materially
affect,
the
registrant’s
internalcontrol
over
financial
reporting;
and5.The
registrant’s
other
certifying
officer
and
I
have
disclosed,
based
on
our
most
recent
evaluation
of
internal
control
over
financial
reporting,
to
the
registrant’s
auditorsand
the
audit
committee
of
the
registrant’s
board
of
directors
(or
persons
performing
the
equivalent
functions):a)All
significant
deficiencies
and
material
weaknesses
in
the
design
or
operation
of
internal
control
over
financial
reporting
which
are
reasonably
likely
to
adverselyaffect
the
registrant’s
ability
to
record,
process,
summarize
and
report
financial
information;
andb)Any
fraud,
whether
or
not
material,
that
involves
management
or
other
employees
who
have
a
significant
role
in
the
registrant’s
internal
control
over
financialreporting.Date:
March
24,
2016
/s/
R
OBERT
M.
D
UTKOWSKYRobert M. DutkowskyChief Executive Officer Exhibit 31-BCertification
of
Chief
Financial
OfficerPursuant
toExchange
Act
Rules
13a-14(a)
and
15d-14(a)As
Adopted
Pursuant
toSection
302
of
The
Sarbanes-Oxley
Act
of
2002I,
Charles
V.
Dannewitz,
certify
that:1.I
have
reviewed
this
annual
report
on
Form
10-K
of
Tech
Data
Corporation
(the
“registrant”);2.Based
on
my
knowledge,
this
report
does
not
contain
any
untrue
statement
of
a
material
fact
or
omit
to
state
a
material
fact
necessary
to
make
the
statements
made,
inlight
of
the
circumstances
under
which
such
statements
were
made,
not
misleading
with
respect
to
the
period
covered
by
this
report;3.Based
on
my
knowledge,
the
financial
statements,
and
other
financial
information
included
in
this
report,
fairly
present
in
all
material
respects
the
financial
condition,results
of
operations
and
cash
flows
of
the
registrant
as
of,
and
for,
the
periods
presented
in
this
report;4.The
registrant’s
other
certifying
officer
and
I
are
responsible
for
establishing
and
maintaining
disclosure
controls
and
procedures
(as
defined
in
Exchange
Act
Rules
13a-15(e)
and
15d-15(e)),
and
internal
control
over
financial
reporting
(as
defined
in
Exchange
Act
Rules
13a-15(f)
and
15d-15(f))
for
the
registrant
and
have:a)Designed
such
disclosure
controls
and
procedures,
or
caused
such
disclosure
controls
and
procedures
to
be
designed
under
our
supervision,
to
ensure
that
materialinformation
relating
to
the
registrant,
including
its
consolidated
subsidiaries,
is
made
known
to
us
by
others
within
those
entities,
particularly
during
the
period
inwhich
this
report
is
being
prepared;b)Designed
such
internal
control
over
financial
reporting,
or
caused
such
internal
control
over
financial
reporting
to
be
designed
under
our
supervision,
to
providereasonable
assurance
regarding
the
reliability
of
financial
reporting
and
the
preparation
of
financial
statements
for
external
purposes
in
accordance
with
generallyaccepted
accounting
principles;c)Evaluated
the
effectiveness
of
the
registrant’s
disclosure
controls
and
procedures
and
presented
in
this
report
our
conclusions
about
the
effectiveness
of
thedisclosure
controls
and
procedures,
as
of
the
end
of
the
period
covered
by
this
report
based
on
such
evaluation;
andd)Disclosed
in
this
report
any
change
in
the
registrant’s
internal
control
over
financial
reporting
that
occurred
during
the
registrant’s
most
recent
fiscal
quarter
(theregistrant’s
fourth
fiscal
quarter
in
the
case
of
an
annual
report)
that
has
materially
affected,
or
is
reasonably
likely
to
materially
affect,
the
registrant’s
internalcontrol
over
financial
reporting;
and5.The
registrant’s
other
certifying
officer
and
I
have
disclosed,
based
on
our
most
recent
evaluation
of
internal
control
over
financial
reporting,
to
the
registrant’s
auditorsand
the
audit
committee
of
the
registrant’s
board
of
directors
(or
persons
performing
the
equivalent
functions):a)All
significant
deficiencies
and
material
weaknesses
in
the
design
or
operation
of
internal
control
over
financial
reporting
which
are
reasonably
likely
to
adverselyaffect
the
registrant’s
ability
to
record,
process,
summarize
and
report
financial
information;
andb)Any
fraud,
whether
or
not
material,
that
involves
management
or
other
employees
who
have
a
significant
role
in
the
registrant’s
internal
control
over
financialreporting.Date:
March
24,
2016
/s/
C
HARLES
V.
D
ANNEWITZCharles V. DannewitzExecutive Vice President andChief Financial Officer Exhibit 32-ACertification
of
Chief
Executive
OfficerPursuant
to18
U.S.C.
Section
1350,As
Adopted
Pursuant
toSection
906
of
The
Sarbanes-Oxley
Act
of
2002I,
Robert
M.
Dutkowsky,
Chief
Executive
Officer
of
Tech
Data
Corporation
(the
“Company”),
certify,
pursuant
to
Section
906
of
the
Sarbanes-Oxley
Act
of
2002,
18
U.S.C.Section
1350,
that,
to
my
knowledge:(i)The
Annual
Report
on
Form
10-K
of
Tech
Data
Corporation
for
the
annual
period
ended
January
31,
2016
(the
“Report”)
fully
complies
with
the
requirements
ofSection
13(a)
of
the
Securities
Exchange
Act
of
1934,
(15
U.S.C.
78m),
and(ii)The
information
contained
in
the
Report
fairly
presents,
in
all
material
respects,
the
financial
condition
and
results
of
operations
of
the
Company.Date:
March
24,
2016
/s/
R
OBERT
M.
D
UTKOWSKYRobert M. DutkowskyChief Executive Officer Exhibit 32-BCertification
of
Chief
Financial
OfficerPursuant
to18
U.S.C.
Section
1350,As
Adopted
Pursuant
toSection
906
of
The
Sarbanes-Oxley
Act
of
2002I,
Charles
V.
Dannewitz,
Executive
Vice
President
and
Chief
Financial
Officer
of
Tech
Data
Corporation
(the
“Company”),
certify,
pursuant
to
Section
906
of
the
Sarbanes-Oxley
Act
of
2002,
18
U.S.C.
Section
1350,
that,
to
my
knowledge:(i)The
Annual
Report
on
Form
10-K
of
Tech
Data
Corporation
for
the
annual
period
ended
January
31,
2016
(the
“Report”)
fully
complies
with
the
requirements
ofSection
13(a)
of
the
Securities
Exchange
Act
of
1934,
(15
U.S.C.
78m),
and(ii)The
information
contained
in
the
Report
fairly
presents,
in
all
material
respects,
the
financial
condition
and
results
of
operations
of
the
Company.Date:
March
24,
2016
/s/
C
HARLES
V.
D
ANNEWITZCharles V. DannewitzExecutive Vice President andChief Financial Officer