EXHIBIT 10AAO
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 2, 2003
among
TECH DATA CORPORATION
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
BANK ONE, NA,
as
Syndication Agent
ABN AMRO BANK N.V., SUNTRUST BANK, and CITICORP USA, INC.,
as
Co-Syndication Agents
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TABLE OF CONTENTS
Section Page
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ARTICLE I.
ASSIGNMENTS, RESTATEMENTS, DEFINITIONS AND ACCOUNTING TERMS
1.01 Assignments; Amendment and Restatement....................................................1
1.02 Defined Terms.............................................................................3
1.03 Other Interpretive Provisions............................................................28
1.04 Accounting Terms.........................................................................28
1.05 Rounding.................................................................................28
1.06 References to Agreements and Laws........................................................29
1.07 Times of Day.............................................................................29
1.08 Letter of Credit Amounts.................................................................29
1.09 Exchange Rates; Currency Equivalents.....................................................29
1.10 Additional Alternative Currencies........................................................29
1.11 Redenomination of Certain Alternative Currencies.........................................30
1.12 Financial Definitions and Acquisitions...................................................30
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans..........................................................................31
2.02 Borrowings, Conversions and Continuations of Committed Loans.............................31
2.03 Letters of Credit........................................................................33
2.04 Swing Line Loans.........................................................................41
2.05 Prepayments..............................................................................43
2.06 Termination or Reduction of Commitments..................................................44
2.07 Repayment of Loans.......................................................................45
2.08 Interest.................................................................................45
2.09 Fees.....................................................................................46
2.10 Computation of Interest and Fees.........................................................46
2.11 Evidence of Debt.........................................................................47
2.12 Payments Generally.......................................................................47
2.13 Sharing of Payments......................................................................49
2.14 Increase in Commitments..................................................................50
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes....................................................................................51
3.02 Illegality...............................................................................52
3.03 Inability to Determine Rates.............................................................52
3.04 Increased Cost and Reduced Return; Capital Adequacy......................................53
3.05 Funding Losses...........................................................................53
3.06 Matters Applicable to all Requests for Compensation......................................54
3.07 Survival.................................................................................54
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ARTICLE IV.
SECURITY
4.01 Facility Guaranty; Pledge Agreement......................................................54
4.02 Further Assurances.......................................................................55
4.03 Information Regarding Collateral.........................................................55
4.04 Intercreditor Agreement..................................................................56
ARTICLE V.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Amendment and Restatement..................................................56
5.02 Conditions to all Credit Extensions......................................................58
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
6.01 Existence, Qualification and Power; Compliance with Laws.................................58
6.02 Authorization; No Contravention..........................................................59
6.03 Governmental Authorization; Other Consents...............................................59
6.04 Binding Effect...........................................................................59
6.05 Financial Statements; No Material Adverse Effect.........................................59
6.06 Litigation...............................................................................59
6.07 No Default...............................................................................60
6.08 Ownership of Property; Liens.............................................................60
6.09 Environmental Compliance.................................................................60
6.10 Insurance................................................................................60
6.11 Taxes....................................................................................60
6.12 ERISA Compliance.........................................................................60
6.13 Subsidiaries.............................................................................61
6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act...........61
6.15 Disclosure...............................................................................61
6.16 Compliance with Laws.....................................................................62
6.17 Intangible Assets........................................................................62
6.18 Tax Shelter Regulations..................................................................62
6.19 Off-Balance Sheet Liabilities............................................................62
ARTICLE VII.
AFFIRMATIVE COVENANTS
7.01 Financial Statements.....................................................................63
7.02 Certificates; Other Information..........................................................63
7.03 Notices..................................................................................65
7.04 Payment of Obligations...................................................................65
7.05 Preservation of Existence, Etc...........................................................65
7.06 Maintenance of Properties................................................................66
7.07 Maintenance of Insurance.................................................................66
7.08 Compliance with Laws.....................................................................66
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7.09 Books and Records........................................................................66
7.10 Inspection Rights........................................................................66
7.11 Use of Proceeds..........................................................................66
7.12 New Subsidiaries.........................................................................66
7.13 Compliance with Agreements...............................................................68
7.14 Compliance with ERISA....................................................................68
7.15 Certain Opinion of French Counsel........................................................68
7.16 Deliveries Prior to Repurchase of Convertible Subordinated Debentures....................68
ARTICLE VIII.
NEGATIVE COVENANTS
8.01 Liens....................................................................................69
8.02 Investments..............................................................................70
8.03 Indebtedness.............................................................................71
8.04 Fundamental Changes......................................................................71
8.05 Dispositions.............................................................................72
8.06 Restricted Payments......................................................................73
8.07 Change in Nature of Business.............................................................73
8.08 Transactions with Affiliates.............................................................73
8.09 Burdensome Agreements....................................................................74
8.10 Use of Proceeds..........................................................................74
8.11 Lease Obligations........................................................................74
8.12 Acquisitions.............................................................................74
8.13 Financial Covenants......................................................................74
8.14 Prohibition on Prepayment of Debt........................................................75
8.15 Guarantees...............................................................................75
8.16 Off-Balance Sheet Liabilities............................................................75
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default........................................................................76
9.02 Remedies Upon Event of Default...........................................................78
9.03 Application of Funds.....................................................................79
ARTICLE X.
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent....................................80
10.02 Delegation of Duties.....................................................................80
10.03 Liability of Administrative Agent........................................................80
10.04 Reliance by Administrative Agent.........................................................81
10.05 Notice of Default........................................................................81
10.06 Credit Decision; Disclosure of Information by Administrative Agent.......................82
10.07 Indemnification of Administrative Agent..................................................82
10.08 Administrative Agent in its Individual Capacity..........................................83
10.09 Successor Administrative Agent...........................................................83
10.10 Administrative Agent May File Proofs of Claim............................................83
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10.11 Collateral and Guaranty Matters..........................................................84
10.12 Other Agents; Arrangers and Managers.....................................................86
ARTICLE XI.
MISCELLANEOUS
11.01 Amendments, Etc..........................................................................87
11.02 Notices and Other Communications; Facsimile Copies.......................................88
11.03 No Waiver; Cumulative Remedies...........................................................89
11.04 Attorney Costs, Expenses and Taxes.......................................................89
11.05 Indemnification by the Borrower..........................................................89
11.06 Payments Set Aside.......................................................................90
11.07 Successors and Assigns...................................................................91
11.08 Confidentiality..........................................................................94
11.09 Set-off..................................................................................95
11.10 Interest Rate Limitation.................................................................95
11.11 Counterparts.............................................................................95
11.12 Integration..............................................................................95
11.13 Survival of Representations and Warranties...............................................96
11.14 Severability.............................................................................96
11.15 Tax Forms................................................................................96
11.16 Governing Law............................................................................98
11.17 Waiver of Right to Trial by Jury.........................................................98
11.18 JUDGMENT CURRENCY........................................................................99
11.19 ENTIRE AGREEMENT.........................................................................99
SCHEDULES
1.02-A Existing Letters of Credit
1.02-B Mandatory Cost Rate
1.02-C Alternative Currencies
2.01 Commitments and Pro Rata Shares
4.03 Information Regarding Collateral
6.05 Supplement to Interim Financial Statements
6.13 Subsidiaries and Other Equity Investments
6.19 Off-Balance Sheet Liabilities
8.01 Existing Liens
8.02 Investments
8.03 Existing Indebtedness
11.02 Administrative Agent's Office, Certain Addresses for Notices
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EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F Facility Guaranty
G Domestic and Foreign Opinions
H Intercreditor Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered into as
of May 2, 2003, among TECH DATA CORPORATION, a Florida corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.
The Borrower, the Lenders party thereto and the Administrative Agent
entered into a Credit Agreement dated as of May 8, 2000, as amended prior to the
date hereof (the "Existing Credit Agreement"), pursuant to which the Lenders
have made available to the Borrower a multicurrency revolving credit facility
including a letter of credit subfacility and swing line subfacility; and
WHEREAS, the Borrower has requested the Lenders and the Administrative
Agent to amend and restate the Existing Credit Agreement as described herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent
hereby amend and restate the Existing Credit Agreement and agree as follows:
ARTICLE I.
ASSIGNMENTS, RESTATEMENTS, DEFINITIONS AND ACCOUNTING TERMS
1.01 Assignments; Amendment and Restatement. In order to facilitate the
amendment and restatement contemplated by this Agreement and otherwise to
effectuate the desires of the Borrower, the Administrative Agent and the
Lenders:
(a) as of the close of business on May 1, 2003, the allocation of
Commitments of the Lenders under the Existing Credit Agreement was as
follows:
Lender Commitment Pro Rate Share
------------------------------- -------------- --------------
ABN AMRO Bank N.V. $ 12,019,230.77 4.807692308%
Bank Hapoalim BM $ 4,807,692.31 1.923076924%
Bank of America, N.A. $ 36,057,692.29 14.00000000%
Bank of Nova Scotia $ 21,634,615.38 8.000000000%
Bank One, NA $ 24,038,461.54 9.615384616%
Bayerische Hypo-und
Vereinsbank AG $ 14,423,076.92 5.769230768%
Citicorp USA, Inc. $ 9,615,384.62 3.846153848%
Credit Industriel et Commercial $ 12,019,230.77 4.807692308%
Deutsche Bank AG $ 9,615,384.62 3.846153848%
Dresdner Bank AG $ 9,615,384.62 3.846153848%
DZ Bank AG Deutsche Zentral $ 9,615,384.62 3.846153848%
Intesabci S.P.A. $ 4,807,692.31 1.923076924%
Mizuho Corporate Bank Ltd. $ 9,615,384.62 3.846153848%
Natexis Banque $ 4,807,692.31 1.923076924%
Sumitomo Mitsui Banking
Corporation $ 14,423,076.92 5.769230768%
SunTrust Bank $ 21,634,615.38 8.653846152%
U.S. Bank, National Association $ 9,615,384.62 3.846153848%
Wachovia Bank, N.A. $ 21,634,615.38 8.653846152%
$250,000,000.00 100.000000000%
=============== =============
(b) simultaneously with the Closing Date, but immediately prior to giving
effect to Section 1.01(e), those Lenders party to the Existing Credit
Agreement whose Commitment is being terminated or decreased shall be deemed
to have assigned, without recourse, to Lenders increasing their Commitment
such portion of the terminating or decreasing Lender's Loans and Pro Rata
Shares of Outstanding Amounts of L/C Obligations and Swing Line Loans as
shall be necessary to effectuate the adjustments in Commitments, Loans and
Pro Rata Shares, with the resulting Commitment allocations on
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the Closing Date being as set forth in Schedule 2.01 hereto, with
respective Outstanding Amounts of Committed Loans and Pro Rate shares of
the Outstanding Amounts of L/C Obligations and Swing Line Loan as
registered by the Administrative Agent pursuant to the administration of
the Credit Agreement.
(c) The parties hereby consent to all reallocations and assignments of
Commitments and Outstanding Amounts effected pursuant to Sections 1.01(b)
and 1.01(c) and subject to Article V hereof, waive any requirement for any
other document or instrument, including any Assignment and Acceptance under
the Existing Credit Facility or Assignment and Assumption hereunder,
necessary to give effect to any reallocation or assignment, which shall be
deemed effective as if such reallocation or assignment were evidenced by
applicable Assignments and Acceptances under the Existing Credit Agreement
or Assignments and Assumptions hereunder. On the Closing Date the Lenders
shall make full cash settlement with each other (and with the Lenders under
the Existing Credit Agreement whose Commitments are being terminated)
either directly or through the Administrative Agent, as the Administrative
Agent may direct or approve, with respect to all assignments and
reallocations in Commitments as reflected in this Section 1.01 such that
after giving effect to such settlements each Lender's Pro Rata Share of the
Aggregate Commitments equals (with customary rounding) its Pro Rata Share
of (a) the Outstanding Amount of all Committed Loans, (b) the Outstanding
Amount of all L/C Obligations, and (c) the Outstanding Amount of all Swing
Line Loans.
(d) The Borrower, the Administrative Agent and the Lenders hereby
agree that upon the effectiveness of this Agreement, the terms and
provisions of the Existing Credit Agreement which in any manner govern or
evidence the obligations arising hereunder, the rights and interests of the
Agent and the Lenders and any terms, conditions or matters related to any
thereof, shall be and hereby are amended and restated in their entirety by
the terms, conditions and provisions of this Agreement, and the terms and
provisions of the Existing Credit Agreement, except as otherwise expressly
provided herein, shall be superseded by this Agreement.
(e) Notwithstanding this amendment and restatement of the Existing
Credit Agreement, including anything in this Section 1.01, and of any
related "Loan Document" (as such term is defined in the Existing Credit
Agreement and referred to herein, individually or collectively, as the
"Existing Loan Documents"), (i) all of the indebtedness, liabilities and
obligations owing by the Borrower or any other Person under the Existing
Credit Agreement and other Existing Loan Documents shall continue as
obligations hereunder and thereunder and shall be and remain secured by the
Pledge Agreement and (ii) this Agreement is given as a substitution of, and
not as a payment of the indebtedness, liabilities and obligations of the
Borrower under the Existing Credit Agreement or any Existing Loan Document
and neither the execution and delivery of this Agreement nor the
consummation of any other transaction contemplated hereunder is intended to
constitute a novation of the Existing Credit Agreement or of any of the
other Existing Loan Documents or any obligations thereunder. Except as
otherwise selected by the Borrower by delivery of the required notice prior
to the Closing Date in accordance with the terms hereof, upon the
effectiveness of this Agreement all loans outstanding and owing by the
Borrower under the Existing Credit Agreement as of the Closing Date, shall
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constitute Loans hereunder accruing interest with respect to the Base Rate
Loans under the Existing Credit Agreement, at the Base Rate hereunder. The
parties hereto agree that the Interest Periods for all Eurocurrency Rate
Loans outstanding under the Existing Credit Agreement on the Closing Date
shall be terminated, the Borrower shall pay (on the Closing Date) all
accrued interest with respect to such Loans, together with any additional
amounts required by Section 4.05 of the Existing Credit Agreement or
Section 3.05 of this Agreement, and the Borrower shall furnish to the
Administrative Agent interest rate selection notices for existing Loans and
borrowing notices for additional Loans as may be required in connection
with the allocation of Loans among Lenders in accordance with their Pro
Rate Shares.
1.02 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling equity interest in
another Person (including the purchase of an option, warrant or convertible or
similar type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such equity
interest or upon exercise of an option or warrant for, or conversion of
securities into, such equity interest, or (ii) assets of another Person which
constitute all or substantially all of the assets of such Person or of a line or
lines of business conducted by such Person.
"Administrative Agent" means (i) Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent and (ii) Bank of America, N.A., in its capacity as
Collateral Agent under the Pledge Agreement or any other Loan Document, or any
successor collateral agent.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 11.02 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 is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 10% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the
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Arranger) and the Collateral Agent, and the officers, directors, employees,
agents and attorneys-in-fact of such Persons, Affiliates and Collateral Agent.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Agreement" means this Amended and Restated Credit Agreement.
"Alternative Currency" means each currency listed on Schedule 1.02-C, and
each other lawful currency (other than Dollars) that is freely available and
freely transferable and convertible into Dollars and which is approved by all
the Lenders in accordance with Section 1.10.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent at such time on
the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of such Alternative Currency with Dollars.
"Amendment to Intercreditor Agreement" means the Amendment No. 1 to
Intercreditor Agreement dated as of the date hereof among the Administrative
Agent, Bank of America as Administrative Agent for the lenders under the Tech
Data TROL Facility, the Tech Data TROL Owner Trustee, and the Collateral Agent,
and consented to by the Borrower and certain Subsidiaries.
"Applicable Currency" has the meaning specified in Section 3.02.
"Applicable Rate" means, from time to time, the following percentages per
annum, based upon the Debt Ratings of both S&P and Xxxxx'x as set forth below:
Applicable Rate
Eurocurrency
Rate +
Debt Ratings Letters of Utilization Base Rate
Pricing Level S&P/Xxxxx'x Facility Fee Credit Fee +
------------- ------------ ------------ ------------ ----------- ---------
1 BBB/Baa2
or higher 0.25% 0.75% 0.125% 0.0%
2 BBB-/Baa3 0.30% 0.95% 0.125% 0.0%
3 BB+/Ba1 0.30% 1.20% 0.250% 0.50%
4 BB/Ba2 0.40% 1.60% 0.250% 0.75%
5 BB-/Ba3
or lower or 0.50% 2.00% 0.250% 1.00%
unrated
"Debt Rating" means, as of any date of determination, the rating as
determined by either S&P or Xxxxx'x (collectively, the "Debt Ratings") of
the Borrower's non-credit-enhanced, senior unsecured long-term debt;
provided that if a Debt Rating is issued by each of the foregoing rating
agencies, then the lower of such Debt Ratings shall apply
5
(with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest).
Initially, the Applicable Rate shall be determined based upon the Debt Rating
specified in the certificate delivered pursuant to Section 5.01(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 an
upgrade, during the period commencing on the date of delivery by the Borrower to
the Administrative Agent of notice thereof pursuant to Section 7.03(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 period commencing 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
Alternative Currencies, the local times in the place of settlement for such
Alternative Currencies as may be determined by the Administrative Agent to be
necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all expenses and
disbursements of internal counsel.
"Attributable Indebtedness" means, on any date:
(a) in respect of any capital lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP;
(b) in respect of any Synthetic Lease Obligation, the capitalized
amount of the remaining lease payments under the relevant lease that would
appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease;
and
(c) in respect of any asset securitization transaction of any Person,
(i) the actual amount of any unrecovered investment of purchasers or
transferees of assets so transferred, plus (ii) in the case of any other
payment, recourse, repurchase, hold harmless, indemnity or similar
obligation described in clause (a)(ii) of the definition of "Off-Balance
Sheet Liabilities," the capitalized amount of such obligation that would
appear on a balance sheet of such Person prepared on such date in
accordance with GAAP if such sale or transfer or assets were accounted for
as a secured loan.
"Audited Financial Statements" means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended January 31, 2003,
and the related
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consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year of the Borrower and its Subsidiaries, including the
notes thereto.
"Availability Period" means the period from and including the Closing Date
to the earliest of (a) the Maturity Date, (b) the date of termination of 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 the obligation of the of
the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.
"Azlan" means Azlan Group Limited.
"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
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." 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 economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"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.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office with respect to
Obligations denominated in Dollars is located and (a) if such day relates to any
Eurocurrency Rate Loan denominated in a currency other than euro, means any such
day on which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency or (b) if such day relates to any Eurocurrency Rate Loan
denominated in euro, means a TARGET Day.
"Cash Collateral" has the meaning specified in Section 2.03(g).
"Cash Collateralize" has the meaning specified in Section 2.03(g).
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"Change of Control" means, with respect to any Person, an event or series
of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of 30% or more of
the equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Closing Date" means the first date all the conditions precedent in Section
5.01 are satisfied or waived in accordance with Section 5.01 (or, in the case of
Section 5.01(b), waived by the Person entitled to receive the applicable
payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, collectively, all property of the Borrower, any
Subsidiary or any other Person in which the Collateral Agent, the Administrative
Agent or any Lender is granted a Lien under the Pledge Agreement (including the
Pledge Joinder Agreements and the Pledge Agreement Supplements) as security for
all or any portion of the Obligations or any other obligation arising under any
Loan Documents.
"Collateral Agent" means Bank of America, in its capacity as collateral
agent for the Secured Parties.
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"Commitment" means, as to each Lender, its obligation to (a) make Committed
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations 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 and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurocurrency Rate 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, if in writing,
shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form of
Exhibit D.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Interest Charges for such period,
(ii) the provision for federal, state, local and foreign income taxes payable by
the Borrower and its Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense for such period.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a)
the outstanding principal amount of all obligations, whether current or
long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers' acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business),
(e) Attributable Indebtedness in respect of capital leases, Synthetic Lease
Obligations and asset securitization transactions, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Borrower or any
Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which the
Borrower or a Subsidiary is a general partner or joint venturer, unless such
Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary.
"Consolidated Interest Charges" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt
9
discount, fees, charges and related expenses of the Borrower and its
Subsidiaries in connection with borrowed money or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the portion of rent expense of the
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges
for such period.
"Consolidated Net Income" means the gross revenues of Borrower and its
Subsidiaries less all operating and non-operating expenses of Borrower and its
Subsidiaries, including taxes on income, plus or minus minority interest of a
Person, and plus any non-cash charges due to impairments in accordance with the
Financial Accounting Standards Board's Statement of Financial Accounting
Standards No. 142, but excluding as income: (i) gains or losses on the sale,
conversion or other disposition of capital assets, (ii) gains or losses on the
acquisition, retirement, sale or other disposition of capital stock and other
securities of Borrower or any Subsidiary, (iii) gains or losses on the
collection of proceeds of life insurance policies, (iv) any write-up of any
asset, (v) any gain or loss arising by reason of any foreign exchange
transaction adjustment, and (vi) any other gain or loss or credit of an
extraordinary nature as determined in accordance with GAAP.
"Consolidated Senior Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the Total Outstandings, (b) Attributable Indebtedness in respect
of the Tech Data TROL Facility or any Successor Tech Data Synthetic Lease
Facility, (c) Consolidated Funded Indebtedness that constitutes Senior Parity
Debt and (d) any other Consolidated Funded Indebtedness other than Subordinated
Indebtedness.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Senior Funded Indebtedness as of
such date to (b) Consolidated EBITDA for the period of the four fiscal quarters
most recently ended (i) for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b), or (ii) until the initial such
delivery of financial statements, the financial statements for the period ended
January 31, 2003, delivered under the Existing Credit Agreement.
"Consolidated Tangible Net Worth" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders'
Equity of the Borrower and its Subsidiaries on that date minus the goodwill of
the Borrower and its Subsidiaries on that date.
"Consolidated Total Leverage Ratio" means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended (i) for which the Borrower has delivered financial statements pursuant to
Section 7.01(a) or (b), or (ii) until the initial such delivery of financial
statements, the financial statements for the period ended January 31, 2003,
delivered under the Existing Credit Agreement.
10
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" has the meaning specified in the definition of "Affiliate."
"Convertible Subordinated Debentures" means the $290,000,000 2% Convertible
Subordinated Debentures due 2021, issued pursuant to the Tech Data Indenture.
"Cost of Acquisition" means the sum of (a) the fair market value, as of the
date of entering into any agreement to acquire any Person, of the assets and/or
capital stock or warrant or option to be transferred in connection therewith,
(b) the amount of cash and the face amount of any debt instrument given as
consideration and (c) any Indebtedness assumed (or taken subject to) 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
Subordinated Debentures to require the Borrower to repurchase such debentures in
accordance with the terms of the 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 for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"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 with respect 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 case to the fullest extent permitted by applicable Laws.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
11
"Direct Foreign Subsidiary" means a Subsidiary (a) that is not a Domestic
Subsidiary and (b) a majority of the shares or other interests having ordinary
voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a
contingency) of such Subsidiary are at the time beneficially owned, or the
management of such Subsidiary is otherwise controlled, directly by Borrower or a
Domestic Subsidiary.
"Disposition" or "Dispose" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"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 any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase 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" has the meaning specified in Section 11.07(g).
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998, as amended from time to time.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the "euro" or otherwise).
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
12
"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 the Borrower within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"Euro" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Base Rate" has the meaning set forth in the definition of
Eurocurrency Rate.
"Eurocurrency Rate" means for (a) for any Interest Period with respect to
any Eurocurrency Rate Loan other than one referred to in subsection (b) of this
definition,
Eurocurrency Rate = Eurocurrency Base Rate
--------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
"Eurocurrency Base Rate" means, for such Interest Period:
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in the relevant
currency (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(ii) if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page
13
or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in the relevant currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(iii) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in the relevant currency for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest
Period would be offered by Bank of America's London Branch to major banks
in the offshore interbank market for such currency at their request at
approximately 4:00 p.m. (London time) two Business Days prior to the first
day of such Interest Period.
(b) for any Interest Period with respect to any Eurocurrency Rate Loan
advanced by a Lender required to comply with the relevant requirements of the
Bank of England and the Financial Services Authority of the United Kingdom, the
sum of (i) the rate determined in accordance with subsection (a) of this
definition and (ii) the Mandatory Cost Rate for such Interest Period.
"Eurocurrency Rate Loan" means a Committed Loan that bears interest at a
rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in Dollars or in an Alternative Currency. All Committed Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.
"Eurocurrency Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurocurrency Rate for each
outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurocurrency Reserve Percentage.
"European Subsidiary" means a Subsidiary organized under the laws of any
European country.
"European Trade Receivables Purchase Facility" means a facility providing
for limited recourse sales and assignments of accounts receivable of a European
Subsidiary to a special purpose entity, in connection with the issuance of
obligations by such special purpose entity secured by such accounts receivable,
which sales and assignments of accounts receivable shall be on such terms, the
proceeds of the issuance of which obligations shall be made available to such
European Subsidiary on such rates of advance, and the obligations issued by such
special purpose entity shall be in such amount or amounts, bear such rate or
rates of interest, and be subject to such other terms and conditions, all as
shall be reasonably acceptable to the Administrative Agent; provided that (a)
such facility shall constitute an asset securitization
14
transaction, and (b) the aggregate principal amount of the accounts sold or
assigned under such facility shall not exceed EUR 300,000,000.
"European Trade Receivables Purchase Documents" shall mean the contracts
establishing the European Trade Receivables Purchase Facility, which contracts
shall be reasonably acceptable to the Administrative Agent.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Letters of Credit" means, collectively, the letters of credit
described on Schedule 1.02-A.
"Existing Loan Documents" has the meaning specified in Section 1.01.
"Facility Guaranty" means, individually or collectively as the context may
require, (a) the Amended and Restated Guaranty Agreement dated as of the date
hereof among the Guarantors and the Administrative Agent, (b) any other guaranty
agreement executed and delivered by a Guarantor to the Administrative Agent
pursuant to Section 7.12, in each case as supplemented from time to time by the
execution and delivery of Guaranty Joinder Agreements pursuant to the Facility
Guaranty.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fee Letter" means the letter agreement dated March 18, 2003, among the
Borrower, the Administrative Agent and the Arranger.
"Foreign Lender" has the meaning specified in Section 11.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"French Subsidiaries" means, collectively, (a) Tech Data Systems SARL
(EURL) and (b) Tech Data France Holding, SAS.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the
15
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Grantor" has the meaning specified in Section 4.03.
"Guarantee" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"Guarantors" means, collectively, all Significant Subsidiaries that are
Domestic Subsidiaries of the Borrower (excluding Tech Data Finance SPV).
"Guaranty Joinder Agreement" means each Guaranty Joinder Agreement,
substantially in the form attached to the Facility Guaranty, executed and
delivered by a Guarantor to the Administrative Agent pursuant to the Facility
Guaranty.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
16
(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) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations; and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.
The term "Indebtedness" shall not include payroll indebtedness, or trade
indebtedness or Guarantee thereof incurred in the ordinary course of business
(including trade indebtedness through financial intermediaries) provided such
trade indebtedness has a maturity of less than one year, capital stock, surplus
and retained earnings, minority interests in the stock of Subsidiaries, other
operating lease obligations, reserves for deferred taxes or investment credits,
or deferred compensation obligations.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitees" has the meaning set forth in Section 11.05.
"Intercreditor Agreement" means one or more Intercreditor Agreements
substantially in the form of Exhibit H among the Borrower, the Administrative
Agent, certain Lenders, certain Tech Data TROL Creditors and agents for Senior
Parity Debt Holders or Senior Parity Debt Holders, all as provided for in
Section 4.04.
17
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the first Business Day of each February, May, August and November and the
Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower 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 succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
The term "Investment" shall not include Guarantees of trade indebtedness of
Subsidiaries incurred in the ordinary course of business (including trade
indebtedness through financial intermediaries) provided such trade indebtedness
has a maturity of less than one year.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
18
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro 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 date when made or
refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer 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 Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"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 time to time in use
by the 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 Business Day, the
next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to $125,000,000. The
Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease 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, the
Facility Guaranty, the Pledge Agreement, and the Intercreditor Agreement
(including the Amendment to Intercreditor Agreement).
19
"Loan Parties" means, collectively, the Borrower, each Guarantor and each
Subsidiary that is party to a Pledge Agreement.
"Mandatory Cost Rate" means, with respect to any period, a rate per annum
determined in accordance with Schedule 1.02-B.
"Mandatory Cost Reference Lender" means Bank of America.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.
"Maturity Date" means May 2, 2006, or if such day is not a Business Day,
the next preceding Business Day.
"Moody's" means Xxxxx'x 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 the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"Negative Pledge" means a Contractual Obligation that restricts Liens on
property.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document (or any
Qualifying Swap Contract) or otherwise with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
"Off-Balance Sheet Liabilities" means, with respect to any Person as of any
date of determination thereof, without duplication and to the extent not
included as a liability on the consolidated balance sheet of such Person and its
Subsidiaries in accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts receivable purchase facility)
(i) the unrecovered investment of purchasers or transferees of assets so
transferred, and (ii) any other payment, recourse, repurchase, hold harmless,
indemnity or similar obligation of such Person or any of its Subsidiaries in
respect of assets transferred or payments made in respect thereof, other than
limited recourse provisions that are customary for transactions of such
20
type and that neither (x) have the effect of limiting the loss or credit risk of
such purchasers or transferees with respect to payment or performance by the
obligors of the assets so transferred nor (y) impair the characterization of the
transaction as a true sale under applicable Laws (including Debtor Relief Laws);
(b) the monetary obligations under any financing lease or so-called "synthetic,"
tax retention or off-balance sheet lease transaction which, upon the application
of any Debtor Relief Law to such Person or any of its Subsidiaries, would be
characterized as indebtedness; (c) the monetary obligations under any sale and
leaseback transaction which does not create a liability on the consolidated
balance sheet of such Person and its Subsidiaries; or (d) any other "off-balance
sheet arrangement" as defined in (i) Item 303, part (a)(4) of Regulation S-K of
the SEC, or (ii) any successor regulation of the SEC defining "off-balance sheet
arrangement."
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Outstanding Amount" means (i) with respect to Committed Loans and Swing
Line Loans on any date, the aggregate outstanding principal Dollar Equivalent
amount thereof after giving effect to any borrowings and prepayments or
repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of such L/C Obligations on such 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 Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available 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 Federal Funds Rate and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Bank of
America located in the applicable interbank market for such currency to major
banks in such interbank market.
"Participant" has the meaning specified in Section 11.07(d).
"Participating Member State" means each state so described in any EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation.
21
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
"Permitted Liquidation Subsidiaries" means, collectively, Tech Data
Worldwide Partner LLC (f/k/a Tech Data Worldwide Partner, Inc.), Tech Data
International Investment, LLC, Tech Data Bermuda Ltd., Tech Data France Holding,
SAS, Tech Data Capital GbR, TDC Funding L.P., TD Finance UK LP and Tech Data Log
SNC.
"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" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pledge Agreement" means, individually or collectively as the context may
require: (a) that certain Securities Pledge Agreement dated as of April 23, 2003
among the Borrower, Tech Data Finance Partner, Inc. and the Collateral Agent,
(b) that certain Pledge Agreement dated as of May 8, 2000 among the Borrower,
Tech Data Latin America, Inc. and Bank of America, as Lender and as
administrative agent (relating to Pledged Interests in TD Brasil Ltda), (c) that
certain Pledge and Security Agreement dated as of May 8, 2000 by and among the
Borrower, Tech Data Latin America, Inc. and the Collateral Agent (relating to
Pledged Interests in Tech Data Peru S.A.C.), (d) that certain Share Pledge
Agreement dated May 8, 2000 by and between Tech Data International Investment
LLC and the Collateral Agent, (e) that certain Agreement for the Pledge of
Account of Financial Instruments (Company Shares) dated May 8, 2000, by and
between the Borrower and the Collateral Agent, and (f) any other pledge
agreement executed and delivered by the Borrower, any Subsidiary or any other
Person to the Collateral Agent pursuant to Section 7.12, in each case as
supplemented from time to time by the execution and delivery of Pledge Agreement
Supplements or Pledge Joinder Agreements pursuant to the terms of the Pledge
Agreement.
"Pledge Agreement Supplement" means the Pledge Agreement Supplement in the
form affixed as an exhibit to the Pledge Agreement.
"Pledged Interests" means, with respect to each Direct Foreign Subsidiary
that is a Significant Subsidiary, (a) 65% of Subsidiary Securities having voting
power (or, if less than 65% of such Subsidiary Securities is owned by the
pledgor, 100% of the amount owned), and (b) 100% of the other Subsidiary
Securities of such Direct Foreign Subsidiary.
"Pledge Joinder Agreement" means each Pledge Joinder Agreement,
substantially in the form thereof attached to the Pledge Agreement, executed and
delivered by Borrower, a Subsidiary or any other Person to the Administrative
Agent pursuant to the Pledge Agreement.
22
"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 Aggregate Commitments at such
time; provided that if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions 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 of such Lender immediately prior to such
termination and after giving effect to any subsequent assignments made pursuant
to the terms hereof. The initial Pro Rata Share of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable.
"Qualifying Swap Contract" means one or more Swap Contracts between the
Borrower and a Lender or any Affiliate of a Lender and not prohibited by the
terms hereof with respect to Indebtedness evidenced by the Notes.
"Register" has the meaning set forth in Section 11.07(c).
"Released Foreign Subsidiaries" means, collectively, Tech Data (Bermuda)
Ltd., Tech Data (Netherlands) BV, Tech Data Canada, Inc., Tech Data
International SARL, Tech Data Capital GbR, TDC Funding LP, TD Finance UK Limited
Partnership and Tech Data Strategy GmbH.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (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 Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders having
more than 50% of the Aggregate Commitments or, if the commitment of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 9.02, Lenders holding in the aggregate
more than 50% of the Total Outstandings (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
"Responsible Officer" means the chief executive officer, president, chief
financial officer, treasurer or assistant treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
23
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest
or of any option, warrant or other right to acquire any such capital stock or
other equity interest.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(b) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02; (c) each date of issuance of a
Letter of Credit denominated in an Alternative Currency, (d) each date of an
amendment of any such Letter of Credit having the effect of increasing the
amount thereof, and (e) such additional dates as the Administrative Agent or the
Required Lenders shall specify.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Secured Parties" has the meaning specified in Section 4.02.
"Senior Parity Debt" means (a) Indebtedness described in subsection (a) of
the definition of Indebtedness issued by Borrower (including a guaranty of such
Indebtedness by a Domestic Subsidiary which is a Significant Subsidiary) in
connection with a private placement or public offering of debt securities or (b)
Indebtedness arising under a Successor Tech Data Synthetic Lease Facility;
provided that, in the case of clause (a) or (b) above, all of the following
conditions shall be satisfied:
(i) the instruments and agreements evidencing such Indebtedness, and
any agreement under which such Indebtedness is created, (A) shall provide
that the right to payment of the holders or owners of Senior Parity Debt
(including any trustee or agent acting on behalf of such holders or owners,
collectively "Senior Parity Debt Holders") shall rank pari passu in all
respects with the rights of the Lenders and Administrative Agent with
respect to the Obligations on terms reasonably acceptable to Administrative
Agent, (B) shall provide for no Lien in favor of the Senior Parity Debt
Holder other than those granted in favor of the Lenders, the Collateral
Agent and the Administrative Agent (except that the Indebtedness under a
Successor Tech Data Synthetic Lease Facility may
24
also be secured by a Lien on the property financed by such facility), and
(C) shall not contain covenants more restrictive than those contained in
the Loan Documents;
(ii) both immediately prior to and immediately after giving effect to
the issuance of such Indebtedness, there shall not have occurred and be
continuing any Default;
(iii) Borrower shall furnish to Administrative Agent, not later than
the earliest date of delivery thereof to any actual or prospective Senior
Parity Debt Holder, copies of (A) all preliminary placement memoranda and
final placement memoranda relating to such Indebtedness and (B) copies of
(1) all term sheets relating to such Indebtedness and (2) all documents and
agreements under which such Indebtedness is to be created or governed; and
(iv) not later than ten (10) days prior to the issuance of such
Indebtedness, Borrower shall deliver to Administrative Agent a Compliance
Certificate, executed by a Responsible Officer and containing calculations
giving historical pro forma effect to the issuance of such Indebtedness as
of and for the prior four fiscal quarters ending at the end of the most
recent fiscal quarter of Borrower preceding the date of such issuance
(assuming for such purpose that the initial rate or rates of interest
provided for therein (and giving effect to any increase in rates of
interest therein provided) remained in effect for such four fiscal
quarters), which Compliance Certificate shall demonstrate that the issuance
of such Indebtedness does not cause, create or result in a Default on a
historical pro forma basis.
"Senior Parity Debt Holders" has the meaning set forth in the definition of
Senior Parity Debt.
"Shareholders' Equity" means, as of any date of determination, consolidated
shareholders' equity of the Borrower and its Subsidiaries as of that date
determined in accordance with GAAP.
"Significant Subsidiary" means any Subsidiary which has either (a) total
assets (including interests in Subsidiaries) of more than $25,000,000 or (b)
total revenues (on a consolidated basis with its Subsidiaries) of more than
$25,000,000 during any four fiscal quarter period; provided, however,
Significant Subsidiary shall not include Tech Data Finance SPV, Inc.
"Special Notice Currency" means at any time an Alternative Currency, other
than the currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time and is located in North America or
Europe.
"Spot Rate" for a currency means the rate quoted by Bank of America as the
spot rate for the purchase by Bank of America of such currency with another
currency through its principal foreign exchange trading office at approximately
8:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made.
"Sterling" and "(pound)" means the lawful currency of the United Kingdom.
25
"Subordinated Indebtedness" means Consolidated Funded Indebtedness which is
subordinated to the Obligations on terms acceptable to the Administrative Agent.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Securities" means the shares of capital stock or the other
equity interests issued by or equity participations in any Subsidiary, whether
or not constituting a "security" under Article 8 of the Uniform Commercial Code
as in effect in any jurisdiction.
"Successor Tech Data Synthetic Lease Facility" means any synthetic lease
facility which satisfies all of the following requirements: such facility (i)
refinances the same properties of the Borrower as the Tech Data TROL Operative
Agreements, (ii) has paid off and satisfied the Tech Data TROL Facility in full,
(iii) has terms no more onerous to the Borrower or any Subsidiary (and no less
favorable to the Administrative Agent or any Lender), and imposes no greater
obligations on the Borrower or any Subsidiary, than the Tech Data TROL Operative
Agreements, except that the rates of interest, yield and fees under such
facility may be increased in accordance with then applicable market conditions,
(iv) imposes no greater Liens on any property than the Tech Data TROL Operative
Agreements, and (v) constitutes Synthetic Loan Obligations with an Attributable
Indebtedness of not more than $140,000,000; provided further that unless such
facility constitutes Senior Parity Debt, no Subsidiary may provide a Guarantee
with respect to such facility and no Pledged Interests of any Foreign Subsidiary
may secure such facility.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap
26
Contracts, (a) for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the xxxx-to-market value(s) for such
Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a Lender).
"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 substantially in the form of
Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$35,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer (TARGET) System (or, if such clearing system
ceases to be operative, such other clearing system (if any) determined by the
Administrative Agent to be a suitable replacement) is operating.
"Tech Data Indenture" means the Indenture dated as of December 10, 2001
between the Borrower and Bank One Trust Company, N.A., as trustee.
"Tech Data TROL Creditors" means, collectively, (a) the Agent (as defined
in the Tech Data TROL Participation Agreement), (b) the Lenders and Holders (as
each such term is defined in the Tech Data TROL Participation Agreement), and
(c) the Tech Data TROL Owner Trustee.
"Tech Data TROL Facility" means the Synthetic Lease Obligations arising
under any of the Tech Data TROL Operative Agreements.
"Tech Data TROL Operative Agreements" means, collectively, (a) the Amended
and Restated Lease Agreement dated as of May 8, 2000, between the Borrower, as
lessee, and the
27
Tech Data TROL Owner Trustee, as lessor, (b) the Tech Data TROL Participation
Agreement, and (c) the other Operative Agreements (as defined in the Tech Data
TROL Participation Agreement).
"Tech Data TROL Owner Trustee" means Xxxxx Fargo Bank Northwest, National
Association (f/k/a First Security Bank, N.A.), as owner trustee under the TD
1996 Real Estate Trust.
"Tech Data TROL Participation Agreement" means the Amended and Restated
Participation Agreement dated as of May 8, 2000, among the Borrower, as lessee
and construction agent, the Tech Data TROL Owner Trustee, the lenders and
holders parties thereto, and Bank of America, as administrative agent.
"Threshold Amount" means $15,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Loans
and all L/C Obligations.
"Trade Receivables Purchase Facility" means (a) the facility created for
the benefit of Tech Data Finance SPV, Inc. and Borrower pursuant to the Transfer
and Administration Agreement, or (b) any successor trade receivables purchase
facility which satisfies all of the following requirements: such facility (i)
refinances and replaces in full the facility described in clause (a) of this
definition (the "Initial Trade Receivables Purchase Facility"), (ii) has terms
no more onerous to the Borrower or any Subsidiary (and no less favorable to the
Administrative Agent or any Lender), and imposes no greater obligations
(including recourse obligations) on the Borrower or any Subsidiary, than the
Initial Trade Receivables Purchase Facility, (iii) imposes no greater Liens on
any property than the Initial Trade Receivables Purchase Facility, and (iv)
constitutes an asset securitization transaction.
"Transfer and Administration Agreement" means the Transfer and
Administration Agreement dated as of May 19, 2000 among Borrower, Tech Data
Finance SPV, Inc., the Bank Investors parties thereto, Receivables Capital
Corporation, and Bank of America, as administrative agent, as amended, modified,
supplemented or amended and restated from time to time, providing for the
purchase of Receivables (as defined therein) of the Borrower by Tech Data
Finance SPV, Inc.
"Type" means, with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"United States" and "U.S." mean the United States of America.
"Unreimbursed Amount" has the meaning set forth in Section 2.03(c)(i).
28
1.03 Other Interpretive Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
1.04 Accounting Terms. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Borrower shall negotiate in good faith to amend such ratio or
requirement to preserve the original intent thereof in light of such change in
GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.05 Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such
29
ratio is expressed herein and rounding the result up or down to the nearest
number (with a rounding-up if there is no nearest number).
1.06 References to Agreements and Laws. (a) Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.07 Times of Day. Unless otherwise specified, all references herein to
times of day shall be references to Pacific time (daylight or standard, as
applicable).
1.08 Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
1.09 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. Such
Spot Rates shall become effective as of such Revaluation Date and shall be the
Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial
statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent.
(b) Except as the context otherwise requires, wherever in this Agreement in
connection with a Borrowing, conversion, continuation or prepayment of a Loan or
the issuance of a Letter of Credit, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Borrowing, 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 1,000 units of such Alternative Currency), as determined by the
Administrative Agent.
1.10 Additional Alternative Currencies.
The Borrower may from time to time request that Committed Loans be made in
a currency other than those specifically listed in the definition of
"Alternative Currency;" provided that such requested currency otherwise meets
the requirements set forth in such definition. Any such request shall be made to
the Administrative Agent (which shall promptly notify each Lender thereof) not
later than 8:00 a.m., 15 Business Days prior to the date of the desired Credit
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Extension. Each Lender shall notify the Administrative Agent, not later than
8:00 a.m., ten Business Days after receipt of such request whether it consents,
in its sole discretion, to making Committed Loans in such requested currency.
Any failure by a Lender to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by such
Lender to make Committed Loans in such requested currency. If all the Lenders
consent to making Committed Loans in such requested currency, the Administrative
Agent shall so notify the Borrowers and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder.
1.11 Redenomination of Certain Alternative Currencies. (a) Each obligation
of any Borrower to make a payment denominated in the national currency unit of
any member state of the European 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 in
this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual
of interest in respect of the euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member state
adopts the euro as its lawful currency; provided that if any Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Borrowing, at the end
of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the euro by any member
state of the European Union and any relevant market conventions or practices
relating to the euro.
1.12 Financial Definitions and Acquisitions.
The following rules of interpretation shall apply to the extent Borrower or
any Subsidiary consummates any Acquisition during the term of this Agreement
that is accounted for as a "purchase".
(a) As of the last day of each of the four fiscal quarters of Borrower next
following the date of such Acquisition (including the fiscal quarter that
includes the date of such Acquisition), Consolidated EBITDA shall include the
actual results of operations of the Person or assets so acquired, which amounts
shall be determined on a historical pro forma basis and which amounts may
include such adjustments as are permitted under Regulation S-X of the Securities
and Exchange Commission and reasonably satisfactory to Administrative Agent;
provided that in making the adjustments provided for in this Section 1.12(a),
Consolidated Interest Charges shall be adjusted as provided in Section 1.12(b);
and
(b) As of the last day of each of the four fiscal quarters of Borrower next
following the date of such Acquisition (including the fiscal quarter that
includes the date of such Acquisition), Consolidated Interest Charges shall
include the results of operations of the Person or assets so acquired, which
amounts shall be determined on a historical pro forma basis; provided, however,
in the case of the occurrence of an Acquisition, there shall be added to
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Consolidated Interest Charges for the first four consecutive fiscal quarters
ending after the date of such Acquisition an amount which shall be determined by
multiplying that portion of the Cost of Acquisition that represents Indebtedness
(net of Indebtedness repaid in connection with such Acquisitions) incurred to
fund such Cost of Acquisition, whether incurred, assumed or acquired, times the
interest rate applicable to such Indebtedness (adjusted for any discount) which
is in effect on the date of determination and then multiplying the result by a
fraction the numerator of which is 365 minus the actual number of days that have
elapsed from and after the date of such Acquisition and the denominator of which
is 365.
(c) For the purpose of determining the amount of any increase in the
minimum Consolidated Tangible Net Worth requirement of Section 8.13(a), any
increase in Consolidated Tangible Net Worth from treatment of an Acquisition on
a historical pro forma basis pursuant to Section 1.12(a) above shall be
disregarded.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 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 Availability Period, in an aggregate amount
at any time outstanding for which the Dollar Equivalent Amount does not exceed
the amount of such Lender's Commitment; provided, however, that after giving
effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, repay, prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further
provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from one
Type to the other, and each continuation of Eurocurrency Rate Loans shall be
made upon the Borrower's irrevocable notice to the Administrative Agent, which
may be given by telephone. Each such notice must be received by the
Administrative Agent not later than 8:00 a.m. (i) three Business Days prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Dollars or of any conversion of
Eurocurrency Rate Loans denominated in Dollars to Base Rate Committed Loans, and
(ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(b) must be confirmed
promptly by delivery
32
to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurocurrency Rate Loans in Dollars shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Borrowing of, or conversion to or continuation of Eurocurrency
Rate Loans in Alternative Currencies shall be in a minimum principal Dollar
Equivalent amount of $5,000,000. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Committed Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $100,000 in excess
thereof. Each Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Committed Borrowing, a
conversion of Committed Loans from one Type to the other, or a continuation of
Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, (v) if applicable, the duration of the Interest Period with
respect thereto, and (vi) the currency of the Committed Loans to be borrowed;
provided, however, that if as of the date of any Committed Loan Notice
requesting a Committed Borrowing, there are Swing Line Loans and/or L/C
Borrowings outstanding, the Applicable Borrower shall be deemed to have
requested that a portion of the requested Committed Loans in a principal amount
equal to the outstanding principal amount of such Swing Line Loans and L/C
Borrowings be denominated in the respective currencies of such Swing Line Loans
and L/C Borrowings. If the Borrower fails to specify a Type of Committed Loan in
a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans; provided, however, that in
the case of a failure to timely request a continuation of Committed Loans
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 such automatic conversion to Base Rate Loans or automatic
continuation to additional one-month Interest Periods shall be effective as of
the last day of the Interest Period then in effect with respect to the
applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurocurrency Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. No Committed Loan may be converted
into or continued as a Committed Loan denominated in a different currency, but
instead must be prepaid in the original currency of such 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 of its Pro Rata Share of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Committed Loans denominated in an Alternative Currency, in each
case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to
the Administrative Agent in Same Day Funds at the Administrative Agent's Office
for the applicable currency not later than 10:00 a.m. in the case of any
Committed Loan denominated in Dollars, and not later than the Applicable Time
specified by the Administrative Agent in the case of any Committed Loan
denominated in an Alternative Currency, in each case on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in
33
Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section
5.01), the Administrative Agent shall make all funds so received available to
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of 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 Agent by the Borrower; provided, however, that if, on the date
the Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are Swing Line Loans or L/C Borrowings outstanding, then the
proceeds of such Borrowing shall be applied, first, to the payment in full of
any such L/C Borrowings, second, to the payment in full of any such Swing Line
Loans, and third, 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 Interest Period for such
Eurocurrency Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans without the
consent of the Required Lenders; and the Required Lenders may demand that any or
all of the then outstanding Eurocurrency Rate Loans denominated in an
Alternative Currency be prepaid on the last day of the then current Interest
Period with respect thereto.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurocurrency
Rate Loans upon determination of such interest rate. The determination of the
Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence
of manifest error. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in
Bank of America's prime rate used in determining the Base Rate 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 all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
(f) The failure of any Lender to make any Committed Loan on any date shall
not relieve any other Lender of any obligation to make a Committed Loan on such
date, but no Lender shall be responsible for the failure of any other Lender to
so make its Committed Loan.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day
during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or one
or more Alternative Currencies for the account of the Borrower, and to
amend or renew Letters of Credit previously issued by it, in accordance
with subsection (b) below, and (2) to honor drafts under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower; provided that the
34
L/C Issuer shall not be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Total Outstandings would exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of
all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed such Lender's Commitment, or
(z) the Outstanding Amount of the L/C Obligations would exceed the Letter
of Credit Sublimit. Within the foregoing limits, and subject to the terms
and conditions hereof, the Borrower's ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit
that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and
from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) The L/C Issuer shall be under no 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 or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good xxxxx
xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial Dollar Equivalent
amount less than $100,000, or is to be denominated in a currency other
than Dollars or an Alternative Currency.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit
35
in its amended form under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of
Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal 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 the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 8:00 a.m. at least two
Business Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for
an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount 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 drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer
(A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed
amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer's usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter
of Credit in an amount 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 L/C Issuer may, in its sole and absolute discretion, agree
to issue a Letter of Credit that has automatic renewal provisions (each, an
"Auto-Renewal Letter of Credit"); provided that any such Auto-Renewal
Letter of Credit must permit the L/C Issuer to prevent any such renewal at
least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the
beneficiary
36
thereof not later than a day (the "Nonrenewal Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not
be required to make a specific request to the L/C Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; provided, however,
that the L/C Issuer shall not permit any such renewal if (A) the L/C Issuer
has determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that
is five Business Days before the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit
such renewal or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section
5.02 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment. Upon receipt of such copy, the
Administrative Agent shall make good faith efforts to notify each Lender of
such Letter of Credit or amendment, provided, however, that the
Administrative Agent shall not incur any liability for its failure to do
so.
(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, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
8:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "Honor Date"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing and in the applicable currency. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Lender's Pro Rata Share thereof. In the case of any Letter of Credit
denominated in an Alternative Currency, the Unreimbursed Amount shall be
redenominated into Dollars and equal the Dollar Equivalent Amount thereof,
and the Administrative Agent shall so notify the Lenders in the notice
described in the preceding sentence. In the event of an unreimbursed
drawing, the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 5.02 (other than the
delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or
the Administrative Agent pursuant to this Section 2.03(c)(i) may be given
by telephone if
37
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer) shall
upon any notice pursuant to Section 2.03(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the
Administrative Agent's Office for Dollar-denominated payments in an amount
equal to its Pro Rata Share of the Unreimbursed Amount not later than 10:00
a.m. on the Business Day specified in such notice by the Administrative
Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each
Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 5.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/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 L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction 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 the L/C Issuer for any amount
drawn under any Letter of Credit, interest in respect of such Lender's Pro
Rata Share of such amount shall be solely for the account of the L/C
Issuer.
(v) Each Lender's obligation to make Committed Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender'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 otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under 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 the L/C Issuer any amount required to 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), the L/C Issuer shall be entitled to
recover from such Lender (acting through the
38
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the Federal Funds Rate from time to time in effect. A certificate
of the L/C Issuer submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's L/C Advance was outstanding) in
the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 11.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal
to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the transactions
contemplated hereby 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 the
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transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the 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 a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of
40
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i) if
the L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Expiration Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to the Dollar Equivalent of such Outstanding
Amount determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be). The Administrative Agent may, at any time
and from time to time after the initial deposit of Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the results
of exchange rate fluctuations; and, upon such request, the Borrower shall
immediately provide such additional Cash Collateral. For purposes hereof, "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the
L/C Obligations, cash or deposit account balances (collectively, "Cash
Collateral"), pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for the
benefit of the L/C Issuer and the Lenders, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing.
Cash Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.
(h) Applicability of ISP98. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit
(whether or not such maximum amount is then in effect under such Letter of
Credit); provided, however, that while any Event of Default exists, the Borrower
shall pay a Letter of Credit fee for each Letter of Credit equal to the Default
Rate times the daily maximum amount available to be drawn under such Letter of
Credit (whether or not such maximum amount is then in effect). Such letter of
credit fees shall be computed on a quarterly basis in arrears. Such letter of
credit fees shall be due and payable on the first 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 Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
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(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit in an amount equal to 0.125%
per annum times the Dollar Equivalent of the daily maximum amount available to
be drawn under such Letter of Credit (whether or not such maximum amount is then
in effect under such Letter of Credit). Such fronting fee shall be due and
payable quarterly in arrears on the first 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, and on the Letter of Credit Expiration Date.
In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein,
the Swing Line Lender agrees to make loans in Dollars (each such loan, a "Swing
Line Loan") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender,
may exceed the amount of such Lender's Commitment; provided, however, that after
giving effect to any Swing Line Loan, (i) the Total Outstandings shall not
exceed the Aggregate Commitments and (ii) the aggregate Outstanding Amount of
the Committed Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata Share of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's
Commitment, and provided, further, that the Borrower shall not use the proceeds
of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Swing Line Lender a risk participation in such Swing Line Loan in an amount
equal 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 Line Lender and the Administrative
Agent, which may be given by telephone. Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 10:00 a.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum of $250,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly
by delivery to the Swing Line Lender and the Administrative Agent of a written
Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer
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of the Borrower. Promptly after receipt by the Swing Line Lender of any
telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 11:00 a.m. on the date of the proposed Swing Line Borrowing (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of Section
2.04(a), or (B) that one or more of the applicable conditions specified in
Article V is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 12:00 noon on the borrowing
date specified in such Swing Line Loan Notice, make the amount of its Swing Line
Loan available to the Borrower.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each
Lender make a Base Rate Committed Loan in an amount equal to such Lender's
Pro Rata Share of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to
be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples
specified therein for the principal amount of Base Rate Loans, but subject
to the unutilized portion of the Aggregate Commitments and the conditions
set forth in Section 5.02. The Swing Line Lender shall furnish the Borrower
with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make
an amount equal to its Pro Rata Share of the amount specified in such
Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 10:00 a.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 to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by
such a Committed Borrowing in accordance with Section 2.04(c)(i), the
request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender
that each of the Lenders fund its risk participation in the relevant Swing
Line Loan and each Lender's payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required 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, such amount with interest thereon
43
for the period from the date such payment is required to the date on which
such payment is immediately available to the Swing Line Lender at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender's obligation to make Committed Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section
5.02. No such funding of risk participations shall relieve or otherwise
impair the obligation of the Borrower to repay Swing Line Loans, together
with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's risk participation was funded) in the same funds
as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by the Swing Line
Lender in its discretion), each Lender shall pay to the Swing Line Lender
its Pro Rata Share thereof 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 Federal Funds Rate. The
Administrative Agent will make such demand upon the request of the Swing
Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall
be responsible for invoicing the Borrower for interest on the Swing Line Loans.
Until each Lender funds its Base Rate Committed Loan or risk participation
pursuant to this Section 2.04 to refinance such 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 Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all
payments of principal and interest in respect of the Swing Line Loans in Dollars
and directly to the Swing Line Lender.
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2.05 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at any time
or from time to time voluntarily prepay Committed Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 8:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurocurrency Rate Loans (B) four Business Days (or
five, in the case of prepayment of Loans denominated in Special Notice
Currencies) prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (C) on the date of prepayment of Base
Rate Committed Loans; (ii) any prepayment 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 minimum Dollar Equivalent
principal amount of $5,000,000; and (iv) any prepayment of Base Rate Committed
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Committed Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurocurrency Rate
Loan shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall
be applied to the Committed Loans of the Lenders in 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 to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that
(i) such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 10:00 a.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $250,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
(c) If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments then in effect (or the Outstanding Amount of L/C
Obligations exceeds the Letter of Credit Sublimit), the Borrower shall
immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount sufficient to reduce the Total Outstandings to an amount not to
exceed the aggregate Commitments then in effect (or, as applicable, to reduce
the Outstanding Amount of L/C Obligations to an amount not to exceed the Letter
of Credit Sublimit); provided, however, that the Borrower shall not be required
to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)
unless after the prepayment in full of the Committed Loans and Swing Line Loans
the Total Outstandings exceed the Aggregate Commitments then in effect (or the
Outstanding Amount of L/C Obligations exceeds the Letter of Credit Sublimit then
in effect). The Administrative Agent may, at any time and from time to time
after the initial deposit of such Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the result of further
exchange rate fluctuations; and, upon
45
such request, the Borrower shall immediately deliver such additional Cash
Collateral to the Administrative Agent.
2.06 Termination or Reduction of Commitments. The Borrower may, upon notice
to the Administrative Agent, terminate the Aggregate Commitments, or from time
to time permanently reduce the Aggregate Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 8:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in 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 any
concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit
exceeds the amount of the Aggregate Commitments, each such sublimit, as
applicable, shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All facility fees and utilization fees accrued
until the effective date of any termination of the Aggregate Commitments shall
be paid on the effective date of such termination.
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders in the applicable currency on
the Maturity Date the aggregate principal amount of Committed Loans outstanding
on such date.
(b) The Borrower shall repay each Swing Line Loan in Dollars on the earlier
to occur of (i) demand by the Swing Line Lender for repayment and (ii) the
Maturity Date.
2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurocurrency
Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate
Committed Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate.
(b) If any amount payable by the Borrower under any Loan Document is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
while any Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Accrued
46
and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 Fees. In addition to certain fees described in subsections (i) and (j)
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 Rata Share, a facility fee
equal to the Applicable Rate times the actual daily amount of the Aggregate
Commitments (or, if the Aggregate Commitments have terminated, on the
Outstanding Amount of all Committed Loans, Swing Line Loans and L/C
Obligations), regardless of usage. The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Committed Loans,
Swing Line Loans or L/C Obligations remain outstanding), including at any time
during which one or more of the conditions in Article V is not met, and shall be
due and payable quarterly in arrears on the first 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). The facility fee shall be calculated quarterly in arrears, and if there
is any change in the Applicable Rate during any quarter, the actual daily amount
shall be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.
(b) Utilization Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a utilization
fee equal to the Applicable Rate times the Total Outstandings on each day that
the Total Outstandings exceed 50% of the actual daily amount of the Aggregate
Commitments. The utilization fee shall be due and payable quarterly in arrears
on the first 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. The utilization fee shall be calculated quarterly in arrears and if there
is any change in the Applicable Rate during any quarter, the daily amount shall
be computed and multiplied by the Applicable Rate for each period during which
such Applicable Rate was in effect. The utilization fee shall accrue at all
times, including at any time during which one or more of the conditions in
Article V is not met.
(c) Other Fees. (i) The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
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2.10 Computation of Interest and Fees. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), amount 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 in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and 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 of manifest error.
2.12 Payments Generally.
(a) 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 denominated in an Alternative Currency, all payments by the
Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders to which such payment is owed, at the Administrative
Agent's Office in Dollars and in immediately available funds not later than
11:00 a.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by any Borrower hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the
48
account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent's Office in such Alternative Currency and in
Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent (i) after 11:00 a.m., in the case of payments in Dollars, or (ii) later
than the Applicable Time specified by the Administrative Agent in the case of
payments in an Alternative Currency, shall in each case be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue.
(b) 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 next following Business Day,
and such extension of time shall be reflected in computing interest or fees, as
the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in Same Day Funds,
then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in Same Day Funds,
together with interest thereon in respect of each day from and including
the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent in
Same Day Funds at the applicable Overnight Rate from time to time in
effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
Same Day Funds, together with interest thereon for the period from the date
such amount was made available by the Administrative Agent to the Borrower
to the date such amount is recovered by the Administrative Agent (the
"Compensation Period") at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. If such Lender pays such amount
to the Administrative Agent, then such amount shall constitute such
Lender's Committed Loan included in the applicable Borrowing. If such
Lender does not pay such amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent may make a demand therefor upon
the Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
49
A notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this subsection (c) shall be conclusive, absent
manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any
Loan to be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension
set forth in Article V are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Committed Loans and to
fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Committed Loan or to fund any
such participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failure of any other Lender to so make its
Committed Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.13 Sharing of Payments. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Committed Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Committed Loans made by them and/or such subparticipations
in the participations in L/C Obligations or Swing Line Loans held by them, as
the case may be, as shall be necessary to cause such purchasing Lender to share
the excess payment in respect of such Committed Loans or such participations, as
the case may be, pro rata with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 11.06 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's ratable share (according
to the proportion of (i) the amount of such paying Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 11.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section and will in each case notify the
Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have
the right to give all notices, requests, demands,
50
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased.
2.14 Increase in Commitments.
(a) Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an amount (for all
such requests) not exceeding $150,000,000. At the time of sending such notice,
the Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender 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). Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to 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. The Administrative Agent
shall notify the Borrower and each Lender of the Lenders' responses to each
request made hereunder. To achieve the full amount of a requested increase, the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.
(b) 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.
The Administrative Agent shall promptly notify the Borrower and the Lenders of
the final allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions adopted
by such Loan Party approving or consenting to such increase, and (ii) in the
case of the Borrower, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article VI and the
other Loan Documents are true and correct on and as of the Increase Effective
Date, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.15, the
representations and warranties contained in subsections (a) and (b) of Section
6.05 shall be deemed to refer to the most recent statements furnished pursuant
to subsections (a) and (b), respectively, of Section 7.01, and (B) no Default
exists. The Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.05) to the extent necessary to keep the outstanding Committed Loans
ratable with any revised Pro Rata Shares arising from any nonratable increase in
the Commitments under this Section.
(c) This Section shall supersede any provisions in Sections 2.13 or 11.01
to the contrary.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable Laws, and (iv) within 30 days after the date of
such payment, the Borrower shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability (including additions to
tax, penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. Payment
under this subsection (d) shall be
52
made within 30 days after the date the Lender or the Administrative Agent makes
a demand therefor.
3.02 Illegality. If any Lender (or, in the case of Letters of Credit, the
L/C Issuer) determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender (or such
L/C Issuer) or its applicable Lending Office to issue, make, maintain or fund
Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative
Currency (the "Applicable Currency")) or Letters of Credit denominated in the
Applicable Currency, or to determine or charge interest rates based upon the
Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender (or such L/C Issuer) to purchase or
sell, or to take deposits of, any Applicable Currency in the applicable
interbank market, then, on notice thereof by such Lender (or L/C Issuer) to the
Borrower through the Administrative Agent, any obligation of such Lender (or L/C
Issuer) to make or continue Eurocurrency Rate Loans (or to issue Letters of
Credit, as applicable) in the Applicable Currency or, if the Applicable Currency
is Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans
shall be suspended until such Lender (or L/C Issuer) notifies the Administrative
Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower shall, upon demand
from such Lender (or L/C Issuer) (with a copy to the Administrative Agent),
prepay all such Eurocurrency Loans or, if applicable and such Loans are
denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender
to Base Rate Loans, in either case either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurocurrency Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount of any
Loan so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 Inability to Determine Rates. (a) If the Required Lenders (or, in the
case of Letters of Credit, the L/C Issuer) determine that for any reason (i)
deposits in an Applicable Currency are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable amount
and Interest Period of such Eurocurrency Rate Loan, (ii) adequate and reasonable
means do not exist for determining the Eurocurrency Base Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan, (iii) the
Eurocurrency Base Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Loan, or (iv) with respect to any Applicable
Currency, there shall have occurred any change in international financial,
political or economic conditions (including the imposition of or any change in
exchange controls) or currency exchange rates which would make it impractical to
make Loans or to issue Letters of Credit denominated in the Applicable Currency,
then the Administrative Agent will promptly so notify the Borrowers and each
Lender. Thereafter, the obligation of the Lenders (or such L/C Issuer, as
applicable) to make or maintain Eurocurrency Rate Loans (or to issue Letters of
Credit, as applicable) in the Applicable Currency shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders or L/C
Issuer, as applicable) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of
53
Eurocurrency Rate Loans (or issuance of Letters of Credit) in the Applicable
Currency or, failing that, will be deemed to have converted such request into a
request for a Committed Borrowing of Base Rate Loans (or issuance of Letters of
Credit, as applicable) in the Dollar Equivalent amount specified therein.
(b) If any Mandatory Cost Reference Lender's Commitment shall terminate
(otherwise than on termination of the Aggregate Commitments), or for any reason
whatsoever any Mandatory Cost Reference Lender shall cease to be a Lender
hereunder, such Mandatory Cost Reference Lender shall thereupon cease to be a
Mandatory Cost Reference Lender, and, when necessary, the Mandatory Cost Rate
shall be determined on the basis of the rates as notified by the remaining
Mandatory Cost Reference Lenders in accordance with Schedule 1.02-B, or if there
is no remaining Mandatory Cost Reference Lender that is a Lender, the
Administrative Agent shall designate one or more replacement Mandatory Cost
Reference Lenders from among the Lenders.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender (or, in the case of Letters of Credit, the L/C Issuer)
determines that as a result of the introduction of or any change in or in the
interpretation of any Law, or such Lender's compliance therewith, there shall be
any increase in the cost to such Lender of agreeing to make or making, funding
or maintaining Eurocurrency Rate Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount received or
receivable by such Lender in connection with any of the foregoing (excluding for
purposes of this subsection (a) any such increased costs or reduction in amount
resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Lending Office, and (iii) reserve requirements utilized in the
determination of the Eurocurrency Rate, then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.
3.05 Funding Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
54
(a) any continuation, conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any failure by the Applicable 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;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have funded each
Eurocurrency Rate Loan made by it at the Eurocurrency Base Rate used in
determining the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the applicable offshore interbank eurocurrency market for such
currency for a comparable amount and for a comparable period, whether or not
such Eurocurrency Rate Loan was in fact so funded.
3.06 Matters Applicable to all Requests for Compensation. A certificate of
the Administrative Agent or any Lender claiming compensation under this Article
III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
3.07 Survival. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
SECURITY
4.01 Facility Guaranty; Pledge Agreement.
(a) As security for the full and timely payment and performance of all
Obligations, Borrower shall on or before the Closing Date do or cause to be done
all things necessary to cause each Domestic Subsidiary that is a Significant
Subsidiary (other than Tech Data Finance SPV) to execute and deliver to
Administrative Agent for the benefit of the Lenders a Facility Guaranty and
shall further cause each Person who thereafter becomes a Domestic Subsidiary
that is a Significant Subsidiary to do all those things required by Section 7.13
hereof.
55
(b) As security for the full and timely payment and performance of (i) all
Obligations now existing or hereafter arising and (ii) if applicable, all
obligations of Guarantors under the Facility Guaranty, Borrower shall, and shall
cause each Domestic Subsidiary to, on or before the Closing Date deliver to
Collateral Agent, the Pledge Agreement which shall pledge to Collateral Agent
for the benefit of the Secured Parties, the Pledged Interests in each Direct
Foreign Subsidiary that is a Significant Subsidiary as are owned by Borrower or
any Domestic Subsidiary and shall take such further action and deliver or cause
to be delivered such further documents as required by the Pledge Agreement or
otherwise as Collateral Agent may reasonably request to effect the transactions
contemplated by this Article IV.
4.02 Further Assurances. At the request of the Collateral Agent or the
Administrative Agent from time to time, the Borrower will or will cause all
other Loan Parties, as the case may be, to execute, by their respective
Responsible Officers, alone or with the Collateral Agent, any certificate,
instrument, financing statement, control agreement, statement or document, or to
procure any such certificate, instrument, statement or document, or to take such
other action (and pay all connected costs) which the Collateral Agent or the
Administrative Agent reasonably deems necessary from time to time to create,
continue or preserve the Liens in Collateral (and the perfection and priority
thereof) of the Collateral Agent contemplated hereby and by the other Loan
Documents and specifically including all Collateral acquired by the Borrower or
any other Loan Party after the Closing Date and all Collateral moved to or from
time to time located at locations owned by third parties, including without
limitation all leased locations, bailees, warehousemen and third party
processors. The Collateral Agent is hereby irrevocably authorized to execute and
file or cause to be filed, with or if permitted by applicable law without the
signature of the Borrower or any Loan Party appearing thereon, all Uniform
Commercial Code financing statements reflecting the Borrower or any other Loan
Party as "debtor" and the Collateral Agent as "secured party", and continuations
thereof and amendments thereto, as the Collateral Agent reasonably deems
necessary or advisable to give effect to the transactions contemplated by this
Article IV and by the Pledge Agreement.
4.03 Information Regarding Collateral. The Borrower represents and warrants
as of the Closing Date and covenants that: (i) each exact legal name, type of
organization, jurisdiction of formation and chief executive office of the
Borrower and each other Person providing Collateral pursuant to the Pledge
Agreement (each, a "Grantor") at the Closing Date, (ii) the exact organizational
identification number of each Grantor at the Closing Date, (iii) each exact
legal name, type of organization, jurisdiction of formation, and chief executive
office of each Direct Foreign Subsidiary that is a Significant Subsidiary at the
Closing Date, and (iv) each exact legal name of each Person owning Subsidiary
Securities of any such Direct Foreign Subsidiaries and the number and class of
any such Subsidiary Securities owned by such Person, are specified on Schedule
4.03.
The Borrower further covenants that it shall not change, and shall not
permit any other Grantor or any Direct Foreign Subsidiary that is a Significant
Subsidiary to change, its name, jurisdiction of formation (whether by
reincorporation, merger or otherwise), the location of its chief executive
office, except upon giving written notice (prior to or immediately following
such change) to the Administrative Agent and the Collateral Agent and (prior to
such change or, if permitted by applicable Law, simultaneously with such change)
taking or causing to be taken all such action at Borrower's or such other
Grantor's expense as may be required by applicable Law
56
to maintain the perfection of the Lien of the Collateral Agent in all
Collateral. Without limiting the generality of the foregoing, the Borrower
covenants that it shall, and shall cause each Grantor to, (prior to such change
or, if later, immediately upon request) take all such action at Borrower's or
such other Grantor's expense as may be reasonably requested by the Collateral
Agent or the Administrative Agent to perfect or maintain the perfection of the
Lien of the Collateral Agent in Collateral.
4.04 Intercreditor Agreement. Notwithstanding anything to the contrary
herein or in the Pledge Agreement, in the event that Borrower or any Subsidiary
shall issue any Senior Parity Debt or is a party to the Tech Data TROL Facility,
each of Administrative Agent and Collateral Agent is authorized, without the
consent of the Lenders, to enter into one or more intercreditor agreements or
other similar arrangements with the Senior Parity Debt Holders and any Tech Data
TROL Creditors in order to effectuate pari passu status as to the Facility
Guaranties of (and proceeds of Collateral securing) the Obligations, such Senior
Parity Debt, and obligations under the Tech Data TROL Facility, provided that
such pari passu status shall not apply to the property financed by the Tech Data
TROL Facility or any Successor Synthetic Lease Facility (which property shall
secure only such facility). At the election of the Borrower, Senior Parity Debt
may either (i) benefit from a guaranty of payment by Domestic Subsidiaries that
are significant subsidiaries, or (ii) have the benefit of a pledge of the
Pledged Interests in Direct Foreign Subsidiaries that are Significant
Subsidiaries, or (iii) both of the foregoing. Administrative Agent and
Collateral Agent shall take all such further actions as are necessary to
effectuate the transactions contemplated by this Section 4.04, all at the sole
expense of Borrower.
ARTICLE V.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 Conditions of Amendment and Restatement. The effectiveness of this
Agreement as an amendment and restatement of the Existing Credit Agreement is
subject to the conditions precedent that:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and its legal
counsel:
(i) executed counterparts of this Agreement, the Facility Guaranty,
and the Amendment to Intercreditor Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan
Party as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible
57
Officer thereof authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which such Loan Party
is a party;
(iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, validly existing, in good standing and qualified to engage in
business in each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect, including certified copies of such Loan
Parties' Organization Documents, certificates of good standing and/or
qualification to engage in business;
(v) a favorable opinion of each of (A) Xxxxx Xxxxxx, General Counsel
of the Borrower, as to matters of Florida, Delaware and United States Law,
and (B) Brazilian, Peruvian and Cayman counsel, as to the Laws of their
respective jurisdictions, in each case as counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters
set forth in Exhibit G;
(vi) a certificate of a Responsible Officer of each Loan Party either
(A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party
and the validity against such Loan 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 circumstance since
the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) the current Debt Ratings;
(viii) one or more insurance certificates addressed to the
Administrative Agent, demonstrating that all insurance required to be
maintained pursuant to the Loan Documents has been obtained and is in
effect;
(ix) a Compliance Certificate signed by a Responsible Officer of the
Borrower demonstrating that the Borrower is in compliance with the
covenants set forth in Section 8.13;
(x) an amendment to the Tech Data TROL Facility, consenting to this
Agreement; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender
or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
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(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all Attorney Costs of the Administrative Agent to the extent 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 for any additional Attorney Costs in accordance with
Section 11.04).
(d) The Closing Date shall have occurred on or before May 7, 2003.
5.02 Conditions to all Credit Extensions. The obligation of each Lender to
honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article VI or any other Loan Document, or which are contained
in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier 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 shall be 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 L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
continuation of Eurocurrency Rate Loans) submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified 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 WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
6.01 Existence, Qualification and Power; Compliance with Laws. Each Loan
Party (a) is a corporation or other legal entity duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is
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licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license, and (d) is in compliance with all Laws;
except in each case referred to in clause (b)(i), (c) or (d), to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms 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
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.
6.03 Governmental Authorization; Other Consents. Except for consents which
have already been obtained, no approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental Authority or any
other Person which has not been obtained is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any Loan
Party of this Agreement or any other Loan Document.
6.04 Binding Effect. This Agreement has been, and each other Loan Document,
when delivered hereunder, will have been, duly executed and delivered by each
Loan Party that is party thereto. This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party
thereto in accordance with its terms.
6.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated financial statements of the Borrower and its
Subsidiaries dated October 31, 2002, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of the Borrower
and its Subsidiaries as of the date thereof and their results of operations for
the period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.
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(c) Since the date of the Audited Financial Statements, there has been no
event or circumstance, either individually or in the aggregate, that has had or
could reasonably be expected to have a Material Adverse Effect.
6.06 Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) if determined adversely, could
reasonably be expected to have a Material Adverse Effect.
6.07 No Default. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
6.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary
has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Liens permitted by Section 8.01.
6.09 Environmental Compliance. The Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of claims alleging
potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof
the Borrower has reasonably concluded that Environmental Laws and such claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.10 Insurance. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Borrower or the applicable Subsidiary operates none of
which insurance shall be provided by any Subsidiary or any other Affiliate of
the Borrower except to the extent that any such Affiliate has reinsured all
exposure related thereto with one or more financially sound and reputable
insurance or reinsurance companies none of which is an Affiliate of the
Borrower.
6.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state
and other material tax returns and reports required to be filed, and have paid
all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
61
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
6.12 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
6.13 Subsidiaries. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Schedule 6.13 and has no equity
investments in any corporation or entity that is not a Subsidiary other than
those specifically disclosed in Schedule 8.02.
6.14 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock. Following the
application of the proceeds of each Borrowing or drawing under each Letter of
Credit, not more than 25% of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis) subject to
the provisions of Section 8.01 or Section 8.05 or subject to any restriction
contained in any agreement or
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instrument between the Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section 9.01(e) will be margin
stock.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
6.15 Disclosure. The Borrower has disclosed to the Administrative Agent and
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
6.16 Compliance with Laws. Each of the Borrower and each Subsidiary is in
compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.17 Intangible Assets. The Borrower and its Subsidiaries own, or possess
the right to use, all trademarks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intangible assets that are used in the
conduct of their respective businesses as now operated, and none of such items,
to the best knowledge of Borrower, conflicts with the valid trademark, trade
name, copyright, patent, patent right or intangible asset of any other Person to
the extent that such conflict has a Material Adverse Effect.
6.18 Tax Shelter Regulations. The Borrower does not intend to treat the
Loans and/or Letters of Credit as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention, it will promptly
notify the Administrative Agent thereof. If the Borrower so notifies the
Administrative Agent, the Borrower acknowledges that one or more of the Lenders
may treat its Committed Loans and/or its interest in Swing Line Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Treasury Regulation. The
Borrower acknowledges that neither the Administrative Agent nor any
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Lender has provided any tax advice to the Borrower or any Subsidiary in
connection with this Agreement or any of the transactions contemplated hereby.
6.19 Off-Balance Sheet Liabilities. Neither the Borrower nor any Subsidiary
has any Off-Balance Sheet Liabilities other than those identified on Schedule
6.19.
ARTICLE VII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any 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 and 7.11) cause
each Subsidiary to:
7.01 Financial Statements. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent
and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower, consolidated and consolidating balance sheets
of the Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated and consolidating statements of income or operations,
shareholders' equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) as soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower,
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
and consolidating statements of income or operations, shareholders' equity and
cash flows for such fiscal quarter and for the portion of the Borrower's fiscal
year then ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations, shareholders' equity and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
As to any information contained in materials furnished pursuant to Section
7.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in subsections (a) and (b) above at the times specified
therein.
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7.02 Certificates; Other Information. Deliver to the Administrative Agent
and each Lender, in form and detail reasonably satisfactory to the
Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Section 7.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default under
the financial covenants set forth herein or, if any such Default shall exist,
stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements referred to
in Sections 7.01(a) and (b), (i) a duly completed Compliance Certificate signed
by a Responsible Officer of the Borrower and (ii) a certificate signed by a
Responsible Officer in form acceptable to the Administrative Agent setting forth
the amount of assets and revenues of each of the Borrower and each of its
Domestic Subsidiaries and Direct Foreign Subsidiaries;
(c) promptly after any request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;
(e) promptly after the Borrower has notified the Administrative Agent of
any intention by the Borrower to treat the Loans and/or Letters of Credit as
being a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;
(f) promptly upon the Borrower's or any Subsidiary's preparation or receipt
of a term sheet with respect to such Indebtedness, notice that the Borrower or a
Subsidiary is negotiating the terms of Indebtedness that it intends to be Senior
Parity Debt; and
(g) promptly, such additional information regarding the business, financial
or corporate affairs of the Borrower or any Subsidiary, or compliance with the
terms of the Loan Documents, as the Administrative Agent or any Lender may from
time to time reasonably request.
Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on Schedule 11.02; or (ii)
on
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which such documents are posted on the Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each Lender
of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 7.02(c) to the Administrative Agent and each of the Lenders. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
7.03 Notices. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;
(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 Subsidiary; and
(e) of any announcement by Xxxxx'x or S&P of any change or possible change
in a Debt Rating.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to Section 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
7.04 Payment of Obligations. Pay and discharge as the same shall become due
and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful
66
claims which, if unpaid, would by law become a Lien upon its property; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.
7.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 8.04 or 8.05; (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.
7.06 Maintenance of Properties. (a) Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its business
in good working order and condition, ordinary wear and tear excepted; and (b)
make all necessary repairs thereto and renewals and replacements thereof except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
7.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons, none of which insurance shall be provided by any Subsidiary or any
other Affiliate of the Borrower except to the extent that any such Affiliate has
reinsured all exposure related thereto with one or more financially sound and
reputable insurance or reinsurance companies none of which is an Affiliate of
the Borrower.
7.08 Compliance with Laws. Comply with the requirements of all Laws
(including all Environmental Laws) and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such
instances in which the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.
7.09 Books and Records. (a) Maintain proper books of record and account, in
which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.
7.10 Inspection Rights. Subject to Section 11.08, permit representatives
and independent contractors of the Administrative Agent and each Lender to visit
and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, at such reasonable times during normal business
hours as often as may be reasonably desired, and (so long as no Event of Default
exists) without unreasonably interfering with business operations of the
Borrower or such Subsidiary, and upon
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reasonable advance notice to the Borrower; provided, however, that when an Event
of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice.
7.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working
capital and capital expenditure purposes, refinancing of existing Indebtedness,
and other general corporate purposes not in contravention of any Law or of any
Loan Document.
7.12 New Subsidiaries. Notify the Administrative Agent at the time that any
Person becomes a Significant Subsidiary that is a Domestic Subsidiary or a
Foreign Subsidiary, and
(a) Within 30 days (in the case of clause (i)) and 60 days (in the case of
clause (ii)) of the formation or acquisition of any Significant Subsidiary or
the time at which a Domestic Subsidiary or Direct Foreign Subsidiary becomes a
Significant Subsidiary, including without limitation any time that any
Subsidiary Securities of a Direct Foreign Subsidiary that is a Significant
Subsidiary are acquired by a Domestic Subsidiary that has not previously
executed and delivered a Pledge Agreement, cause to be delivered to
Administrative Agent for the benefit of Administrative Agent and the Lenders:
(i) In the case of a Significant Subsidiary that is a Domestic
Subsidiary, (A) a Facility Guaranty substantially in the form of Exhibit F
or a Guaranty Joinder Agreement, in each case executed by such Significant
Subsidiary, (B) an opinion of counsel to the Significant Subsidiary dated
as of the date of delivery of the Facility Guaranty or Guaranty Joinder
Agreement provided for in this Section 7.12 and addressed to Administrative
Agent and the Lenders, in form and substance reasonably acceptable to
Administrative Agent, and (C) the Organization Documents of such
Significant Subsidiary;
(ii) In the case of a Significant Subsidiary that is a Direct Foreign
Subsidiary, (A) a Pledge Agreement in such form as may be acceptable to the
Administrative Agent or a Pledge Joinder Agreement, in each case executed
by the Borrower or any Domestic Subsidiary directly owning the stock of
such Significant Subsidiary which shall pledge the Pledged Interests in
such Subsidiary to the Collateral Agent for the benefit of the Secured
Parties, (B) opinions of counsel to each pledgor and to the Significant
Subsidiary that under the laws of the applicable foreign jurisdiction, all
agreements, notices and other documents required to be executed, delivered,
filed or recorded and all other action required to be taken, within or
pursuant to the laws of such jurisdiction to perfect the Lien conferred in
favor of Administrative Agent have been duly executed, delivered, filed,
recorded or taken, as the case may be, and (C) take such further action and
deliver or cause to be delivered such further documents as reasonably
requested by the Collateral Agent or the Administrative Agent to effect the
transactions contemplated herein;
provided, however, that such Facility Guaranty and opinion shall not be
required with respect to a Domestic Subsidiary that (1) is intended to be a
Significant Subsidiary only temporarily as part of a restructuring plan
otherwise permitted by this Agreement, and (2)
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in fact ceases to be a Significant Subsidiary in accordance with such plan
prior to the end of the 30-day period described above;
provided further that such Pledge Agreement, opinion and other perfection
actions shall not be required with respect to a Direct Foreign Subsidiary
that (1) is intended to be a Significant Subsidiary only temporarily as
part of a restructuring plan otherwise permitted by this Agreement and (2)
in fact ceases to be a Significant Subsidiary in accordance with such plan
prior to the end of the 60-day period described above; and
provided further that Tech Data Finance SPV shall not be required to
deliver a Facility Guaranty.
(b) If at any time the sum of the total assets (including interests in
their respective Subsidiaries) or total annual revenues (on a consolidated basis
with their respective Subsidiaries) of Domestic Subsidiaries (other than Tech
Data Finance SPV) that have not executed and delivered to Administrative Agent a
Facility Guaranty (or whose Facility Guaranty has been released) exceeds in the
aggregate $150,000,000, Borrower shall promptly cause there to be delivered to
Administrative Agent one or more additional Facility Guaranties of Domestic
Subsidiaries that do not constitute Significant Subsidiaries in order that after
giving effect to such additional Facility Guaranties, the sum of the total
assets or total revenues, in either or both cases, of Domestic Subsidiaries
(other than Tech Data Finance SPV) not having delivered a Facility Guaranty does
not exceed in the aggregate $150,000,000.
7.13 Compliance with Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default, (b) then being contested by any of them in good faith by appropriate
proceedings, or (c) if the failure to comply therewith does not have a Material
Adverse Effect.
7.14 Compliance with ERISA. Cause, and cause each of its ERISA Affiliates
to: (a) maintain each Pension Plan in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Pension Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required contributions to any
Pension Plan subject to Section 412 of the Code.
7.15 Certain Opinion of French Counsel. Within 60 days after the Closing
Date, cause the Lovells firm, French counsel to the French Subsidiaries, to
deliver to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent and its legal counsel, a favorable
legal opinion addressed to the Administrative Agent and each Lender, as to the
continued validity and perfection of the Lien on the Pledged Interests of each
French Subsidiary under the Pledge Agreement, after giving effect to this
Agreement and the amendment and restatement of the Existing Credit Agreement
effected hereby; provided, however, that such opinion shall not be required with
respect to a French Subsidiary if such French Subsidiary shall have ceased to be
a Direct Foreign Subsidiary prior to the end of such 60-day period in a
transaction otherwise permitted by this Agreement.
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7.16 Deliveries Prior to Repurchase of Convertible Subordinated Debentures.
(Prior to the repurchase by the Borrower of any Convertible Subordinated
Debentures pursuant to the exercise of the Debenture Put Option by the holder of
such debentures) deliver to the Administrative Agent (A) pro forma historical
financial statements as of the end of the most recently completed fiscal year of
the Borrower and most recent interim fiscal quarter, if applicable, giving
effect to such repurchase of Convertible Subordinated Debentures, (B) a
certificate of the Borrower stating whether a Default exists prior to such
repurchase, and (C) a certificate of the Borrower prepared on a historical pro
forma basis giving effect to such repurchase, which certificate shall
demonstrate whether a Default would exist immediately after giving effect to
such repurchase; and the Borrower hereby agrees that if any such item
demonstrates that a Default would exist before or (on a pro forma basis) after
giving affect to such repurchase, the Lenders shall not be required to make any
Credit Extension to finance such repurchase.
ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that the property covered thereby is
not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 8.03(b);
(c) Liens for taxes not yet due or which are being contested in good faith
and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases
(other than Indebtedness), statutory obligations, surety bonds (other than bonds
related to judgments or
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litigation, except to the extent permitted in clause (h) below), performance
bonds and other obligations of a like nature incurred in the ordinary course of
business;
(g) easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not substantial in amount,
and which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting an
Event of Default under Section 9.01(h) or securing appeal or other surety bonds
related to such judgments or posted as a condition (under applicable Law) to
maintaining a lawsuit otherwise permitted by this Agreement;
(i) Liens securing Indebtedness permitted under Section 8.03(d); provided
that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of acquisition;
(j) Liens on receivables arising in connection with the Trade Receivables
Purchase Facility or the European Trade Receivables Purchase Facility; and
(k) Liens arising under the Pledge Agreement securing the Tech Data TROL
Facility and Senior Parity Debt;
(l) Liens on the property financed under the Tech Data TROL Facility or any
Successor Tech Data Synthetic Lease Facility, which Liens secure such facility;
and
(m) Liens (in the nature of title retention arrangements) arising in the
ordinary course of business on inventory of any European Subsidiary, which Liens
(i) secure the purchase price owed by such Subsidiary to the European supplier
of such inventory, and (ii) are terminated within 45 days of the date such Liens
first encumber the respective inventory.
8.02 Investments. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of cash
equivalents;
(b) advances to officers, directors and employees of the Borrower and
Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes, provided that such advances are made in the ordinary course
of business consistent with the business practices of the Borrower and its
Subsidiaries as in effect on the Closing Date;
(c) Investments of the Borrower or any Subsidiary in the Borrower or in a
wholly-owned Domestic Subsidiary;
(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and
71
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(e) Guarantees permitted by Section 8.03;
(f) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations guaranteed by the United States of
America or any agency or instrumentality thereof, provided that such obligations
mature within one year from the date of acquisition thereof;
(g) Commercial paper rated A-1 or better by S&P or P-1 or better by
Xxxxx'x;
(h) Investments existing on the date hereof and described in Schedule 8.02;
(i) Investments permitted by Section 8.04;
(j) additional Investments in Foreign Subsidiaries after the date hereof in
excess of the $1,500,000,000 of Investments in Foreign Subsidiaries that are
existing on the date hereof and listed on Schedule 8.02, so long as such
additional Investments do not exceed in the aggregate the sum of (x) 25% of the
amount of Shareholders' Equity that existed on the last day of the fiscal
quarter of the Borrower most recently ended on or prior to the date of
determination and (y) 25% of the proceeds of the issuance of capital stock of
Borrower after the date hereof;
(k) Investments in Persons with whom Borrower or a Subsidiary are engaged
in a business relationship or which provide products or services to Borrower or
a Subsidiary, so long as the Investment does not exceed the Threshold Amount in
any one such Person or $50,000,000 in the aggregate;
(l) Investments by a Foreign Subsidiary in another Foreign Subsidiary; and
(m) Acquisitions permitted under Section 8.12.
8.03 Indebtedness. Create, incur, assume or suffer to exist any secured
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 extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Qualifying Swap Contracts;
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(d) purchase money Indebtedness (including Capital Leases) described in
Section 8.01(i) not to exceed an aggregate outstanding principal amount at any
time of $30,000,000, excluding those described on Schedule 8.03; and
(e) the Tech Data TROL Facility (or any Successor Tech Data Synthetic Lease
Facility) and Senior Parity Debt; and
(f) any obligations arising under the Trade Receivable Purchase Facility or
the European Trade Receivables Purchase Facility.
8.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
Domestic Subsidiaries or (iii) any joint venture, partnership or other Person,
so long as such joint venture, partnership and other Person will, as a result of
making such merger and all other contemporaneous related transactions, become a
Domestic Subsidiary, provided (in the case of clauses (ii) and (iii)) that (y)
(subject to clause (z) below) when any wholly-owned Subsidiary is merging with
another Subsidiary or any Person (other than the Borrower), the wholly-owned
Subsidiary shall be the continuing or surviving Person, and (z) when any
Guarantor is merging with another Subsidiary or any Person, the Guarantor shall
be the continuing or surviving Person;
(b) any Subsidiary may Dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or to a Domestic
Subsidiary; provided that (i) if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must either be the Borrower or a
wholly-owned Subsidiary and (ii) if the transferor in such a transaction is a
Guarantor, then the transferee must either be the Borrower or a Guarantor;
(c) any Foreign Subsidiary may merge into and may transfer assets to
another Foreign Subsidiary;
(d) the Permitted Liquidation Subsidiaries may liquidate in connection with
transactions permitted by that certain consent letter dated August 9, 2002 from
the Borrower to the Agent and consented to by the Required Lenders; and
(e) the Borrower may liquidate or dissolve one or more Subsidiaries, or
sell all or substantially all of the assets of one or more Subsidiaries, during
a fiscal year so long as the aggregate book value of the Subsidiaries liquidated
or dissolved or assets sold during such fiscal year does not exceed the
Threshold Amount.
8.05 Dispositions. Make any Disposition or enter into any agreement to make
any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
73
(b) Dispositions of inventory and other real or personal property in the
ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such
property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property or (iii) the
Borrower or any Subsidiary determines in good faith that the failure to replace
such equipment will not be detrimental to the business of Borrower or such
Subsidiary;
(d) Dispositions of assets and other property by any Subsidiary to the
Borrower or to a wholly-owned Subsidiary; provided that (i) if the transferor of
such property is a wholly-owned Subsidiary, the transferee must be either the
Borrower or a wholly-owned Subsidiary, and (ii) if the transferor of such
property is the Borrower or a Guarantor, the transferee thereof must either be
the Borrower or a Guarantor;
(e) Dispositions permitted by Section 8.04;
(f) Dispositions of receivables pursuant to the Transfer and Administration
Agreement (or any other Trade Receivables Purchase Facility) and the European
Trade Receivables Purchase Documents; and
(g) Dispositions by the Borrower and its Subsidiaries not otherwise
permitted under this Section 8.05; provided that (i) at the time of such
Disposition, no Default shall exist or would result from such Disposition and
(ii) the aggregate book value of all property Disposed of in reliance on this
clause (g) in any fiscal year shall not exceed the Threshold Amount;
provided, however, that any Disposition pursuant to clauses (a) through (d)
shall be for fair market value.
8.06 Restricted Payments. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Subsidiary may make Restricted Payments to the Borrower and to
wholly-owned Subsidiaries;
(b) the Borrower and each Subsidiary may declare and make dividend payments
or other distributions payable solely in the common stock or other common equity
interests of such Person;
(c) the Borrower may purchase shares of its common stock in one or more
series of open market purchases for an aggregate purchase price not to exceed
$200,000,000;
(d) the Borrower may purchase shares of its common stock for the purpose of
making required contributions to its employee benefit plans so long as the
aggregate dollar amount spent for such stock in any fiscal year of Borrower does
not exceed $10,000,000;
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(e) the Borrower may repurchase Convertible Subordinated Debentures
pursuant to the exercise of the Debenture Put Option by the holder of such
Debentures; and
(f) the Borrower or a Subsidiary may make a payment or payments (including
settlement payments or payments pursuant to a judgment) not exceeding $2,000,000
in the aggregate, in connection with the lawsuit brought by certain former
minority shareholders of Tech Data Germany AG relating to the purchase price for
their shares in such Subsidiary.
8.07 Change in Nature of Business. Engage in any material line of business
substantially different from those lines of business conducted by the Borrower
and its Subsidiaries on the date hereof or any business substantially related or
incidental thereto.
8.08 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of the Borrower, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favorable to
the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm's length transaction with a Person
other than an Affiliate, provided that the foregoing restriction shall not apply
to transactions between or among the Borrower and any of its Guarantors or
between and among any Guarantors.
8.09 Burdensome Agreements. Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that:
(a) limits the ability (i) of any Subsidiary to make Restricted Payments to
the Borrower or any Guarantor or to otherwise transfer property to the Borrower
or any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the
Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person; provided, however, that this
clause (iii) shall not prohibit (A) any Negative Pledge incurred or provided in
favor of any holder of Indebtedness permitted under Section 8.03(e) solely to
the extent any such Negative Pledge relates to the property financed by or the
subject of such Indebtedness, or (B) any Negative Pledge in connection with the
Tech Data TROL Facility, any Successor Tech Data Synthetic Lease Facility or any
other Senior Parity Debt so long as such Negative Pledge does not prohibit the
Pledge Agreement and is no more restrictive than Section 8.01 of this Agreement
(except that the Negative Pledge in the Tech Data TROL Facility or any Successor
Tech Data Synthetic Lease Facility may prohibit liens on the property financed
by such facility); or
(b) requires the grant of a Lien to secure an obligation of such Person if
a Lien is granted to secure another obligation of such Person; provided,
however, that this clause (b) shall not prohibit a provision of the Tech Data
TROL Facility, any Successor Tech Data Synthetic Lease Facility, or any other
Senior Parity Debt that requires such facility or such Senior Parity Debt to be
secured by the same property as the Obligations.
8.10 Use of Proceeds. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, 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 in effect on the date or dates
of such Credit Extension and such use of proceeds.
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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 Tech Data TROL
Facility and any renewal, extension or refinancing thereof; and
(b) leases (other than capital leases) entered into or assumed by Borrower
or any Subsidiary after the date hereof in the ordinary course of business.
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 or assets
are being acquired is in the same or similar line or lines of business as that
engaged in by Borrower and its Subsidiaries, (b) no Default occurs or is created
or results from such Acquisition, and (c) the Cost of Acquisition of such assets
or equity interests of any Person does not exceed 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 to the date of such Acquisition.
8.13 Financial Covenants.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth
at any time to be less than the sum of (a) $980,000,000, (b) an amount equal to
75% of the Consolidated Net Income earned in each full fiscal quarter ending
after January 31, 2003 (with no deduction for a net loss in any such fiscal
quarter) and (c) an amount equal to 100% of the aggregate increases in
Shareholders' Equity of the Borrower and its Subsidiaries after the date hereof
by reason of the issuance and sale of capital stock or other equity interests of
the Borrower or any Subsidiary (other than issuances to the Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt securities of
the Borrower into such capital stock or other equity interests.
(b) Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio at any time during any period of the Borrower set forth below to
be greater than the ratio set forth below opposite such period:
Maximum
Consolidated Total
Period Leverage Ratio
------------------------------------- ------------------
Closing Date through January 31, 2004 4.00 to 1.00
February 1, 2004 and thereafter 3.75 to 1.00
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio at any time to be greater than 3.25 to 1.00; and
(d) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest
Coverage Ratio as of the end of any period of four fiscal quarters of the
Borrower to be less than 3.50 to 1.00.
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8.14 Prohibition on Prepayment of Debt.
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof any Subordinated Indebtedness, except for the
repurchase of any Convertible Subordinated Debentures pursuant to the exercise
of the Debenture Put Option by the holder of such debentures, provided, however,
that if (i) a Default exists or (ii) any of the pro forma financial statements
or certificates delivered pursuant to Section 7.16 demonstrates that a Default
would exist after giving effect to such repurchase of Convertible Subordinated
Debentures, then, in either case, to the extent permitted under the Debenture
Put Option, the Borrower shall use only shares of capital stock of the Borrower
(and not cash) to pay for the Convertible Subordinated Debentures to be
repurchased; or
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in Section 8.03(b) or any lease so that the terms and
conditions thereof are less favorable to the Administrative Agent and the
Lenders than the terms of such Indebtedness or leases as of the Closing Date.
8.15 Guarantees. Create, incur, assume or suffer to exist the Guarantee of
payment of accounts receivable owed to the Borrower or a Subsidiary by one or
more of its customers except (a) those certain Guarantees by Azlan and its
Subsidiaries which Guarantees are outstanding on the date hereof and listed on
Schedule 8.15, and (b) other Guarantees of payment of accounts receivable (i)
which accounts receivable arise in the ordinary course of business, and (ii) the
aggregate outstanding amount of such Guarantees described in this clause (b) do
not exceed at any time $50,000,000.
8.16 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 8.03;
(b) Obligations arising under the Transfer and Administration Agreement (or
any other Trade Receivables Purchase Facility) or the European Trade Receivables
Purchase Documents.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.01 Events of Default. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, and in the currency required hereunder, any
amount of principal of any Loan or any L/C Obligation, or (ii) within three days
after the same becomes due, and in the currency 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
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(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, 7.12 or 7.16 or Article VIII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount of more than the Threshold Amount, or (B) fails to
observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any event
of default under such Swap Contract as to which the Borrower or any Subsidiary
is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than the Threshold Amount; (iii) there occurs a
Termination Event (as defined in the Transfer and Administration Agreement)
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 other Trade Receivables Purchase Facility which termination event or event
of default is not cured or waived within any applicable grace period; (v) there
occurs any event of default under any Tech Data TROL Operative Agreement which
is not cured or waived within any applicable grace period; (vi) there occurs any
termination event or event of default under any Successor Tech Data Synthetic
Lease Facility which is not cured or waived within any applicable grace period;
or (vii) there occurs any termination event or event of default under any
European Trade Receivables Purchase Documents or any Senior Parity Debt which is
not cured or waived within any applicable grace period.
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(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all or any material
part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the
application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law
relating to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; provided, however, that if a Foreign Subsidiary is being liquidated
in a transaction otherwise permitted by this Agreement and not involving (i) the
bankruptcy, insolvency, or any failure to pay obligations of such Subsidiary,
the Borrower or any other Subsidiary, (ii) the application of any Debtor Relief
Law, or (iii) any claim of any creditor, and if applicable foreign Law requires
the appointment of a liquidator to accomplish such liquidation in the
jurisdiction where such Foreign Subsidiary is organized, then the mere
appointment and operation of a liquidator for such purpose in such circumstances
shall not constitute an Event of Default under this clause (f); or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution
or similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated or fully bonded within
30 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary (i)
a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by insurance provided
by a Person described in Section 7.07 as to which the insurer (and any insurance
or reinsurance company reinsuring any such exposure) does not dispute coverage),
or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by
any creditor upon such judgment or order, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after its
execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document;
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or any Loan Party denies that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or
(k) Change of Control. There occurs any Change of Control with respect to
the Borrower.
9.02 Remedies Upon Event of Default. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the Dollar Equivalent Outstanding Amount 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 or applicable law;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
9.03 Application of Funds. After the exercise of remedies provided for in
Section 9.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), 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 and amounts
payable under Article III) payable to the Administrative Agent in its capacity
as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney
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Costs and amounts payable under Article III), ratably among them in proportion
to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause Third payable
to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders 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 Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Sixth, 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, including
amounts due to any of the Lenders or their affiliates in respect of Obligations
consisting of liabilities under any Qualifying Swap Contract with any of the
Lenders or their Affiliates on a pro rata basis according to the amounts owed;
and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth 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 all Letters 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 forth above.
ARTICLE X.
ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the
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term "agent" herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
10.03 Liability of Administrative Agent. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
10.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and
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other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders (or such greater number of Lenders as may be expressly required hereby
in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions specified in
Section 5.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
10.05 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with Article IX; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action
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under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.
10.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person's own gross negligence or willful misconduct;
provided, however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.
10.08 Administrative Agent in its Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent or the L/C Issuer hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America shall have the same rights and powers under this Agreement as
any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or the L/C Issuer, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
10.09 Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders; provided that any
such resignation by
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Bank of America shall also constitute its resignation as L/C Issuer and Swing
Line Lender. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented
to by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
Swing Line Lender and the respective terms "Administrative Agent," "L/C Issuer"
and "Swing Line Lender" shall mean such successor administrative agent, Letter
of Credit issuer and swing line lender, and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated and
the retiring L/C Issuer's and Swing Line Lender's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring L/C Issuer or Swing Line Lender or any other Lender, other than
the obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect to
such Letters of Credit. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article X and Sections
11.04 and 11.05 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(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/C Obligations and
all other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial
proceeding; and
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(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 Collateral and Guaranty Matters.
(a) Each Lender hereby irrevocably (subject to Section 10.09) appoints,
designates and authorizes the Collateral Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, the Collateral Agent shall not have any duties or responsibilities,
except those expressly set forth herein and in the Pledge Agreement, nor shall
the Collateral Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Collateral
Agent. Without limiting the generality of the foregoing sentence, the use of the
term "agent" in this Agreement with reference to the Collateral Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties. Without
limiting the generality of Section 10.08, each Lender hereby acknowledges and
agrees that the Collateral Agent is acting as a collateral agent for the
Collateral Agent, the Administrative Agent, the Lenders, the Tech Data TROL
Creditors and Senior Parity Debt Holders as provided in the Pledge Agreement and
authorizes the Collateral Agent to carry out all those obligations and shall be
entitled to all the rights and benefits of the collateral agent described in the
Pledge Agreement. The Collateral Agent shall have all of the benefits and
immunities (i) provided to Administrative Agent in this Article X with respect
to the Loan Documents and the transactions contemplated therein, including
without limitation any acts taken or omissions suffered by the Collateral Agent
in connection with or contemplated by such documents or transactions as fully as
if the term "Administrative Agent" as used in this Article X included the
Collateral Agent with respect to such documents, transactions, acts or
omissions, and (ii) as additionally provided in this
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Agreement, and specifically Article XI hereof, and the other Loan Documents with
respect to the Collateral Agent.
(b) Each of the Administrative Agent and the Collateral Agent is authorized
on behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to (i) take any action with respect
to any Collateral or the Pledge Agreement which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Pledge Agreement, and (ii) without limiting the
generality of the foregoing, to enter into agreements whereby the Pledge
Agreement, the Facility Guaranty or the Intercreditor Agreement are amended to
better conform the terms thereof to any form attached to this Agreement or to
make administrative or housekeeping corrections to any such agreement.
(c) The Lenders irrevocably authorize each of the Administrative Agent and
Collateral Agent, at its option and in its discretion,
(i) to release any Lien on any property granted to or held by the
Collateral Agent or the Administrative Agent under any Loan Document (A)
upon termination of the Aggregate Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (B) that is sold or to
be sold as part of or in connection with any sale permitted hereunder or
under any other Loan Document, or (C) subject to Section 11.01, if
approved, authorized or ratified in writing by the Required Lenders;
(ii) to subordinate any Lien on any property granted to or held by the
Collateral Agent or the Administrative Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section 8.01(i);
(iii) upon receipt by the Collateral Agent of information satisfactory
to the Collateral Agent that any Direct Foreign Subsidiary has ceased to be
a Significant Subsidiary as a result of a transaction or decline in
business permitted hereunder and no Default is then existing, to release
the Lien of the Pledge Agreement with respect to the Pledged Interests of
such Subsidiary;
(iv) 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
(v) upon receipt by the Administrative Agent of information
satisfactory to the Administrative Agent that any Domestic Subsidiary has
ceased to be a Significant Subsidiary as a result of a transaction or
decline in business permitted hereunder and no Default is then existing, to
release such Subsidiary from its obligations under the Facility Guaranty,
unless after giving effect to such release, the sum of the total assets
(including interests in their respective Subsidiaries) or total annual
revenues (on a consolidated basis with their respective Subsidiaries) of
those Domestic Subsidiaries (other than Tech Data Finance SPV) that have
not executed and delivered to Administrative Agent a Facility
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Guaranty (or whose Facility Guaranty has been released) would exceed in the
aggregate of $150,000,000.
Without limiting the generality of the foregoing, (A) each of TD
Fulfillment Services, LLC and Tech Data International Finance Holding, Inc. is
hereby released from its obligations under the Facility Guaranty, and (B) the
Lien of the Collateral Agent on the Pledged Interests of each of the Released
Foreign Subsidiaries is confirmed to have been released prior to the date
hereof. In addition, without limiting the generality of the foregoing, (Y) if
any French Subsidiary ceases to be Direct Foreign Subsidiary within sixty (60)
days after the Closing Date and no Default is then existing, the Collateral
Agent is hereby authorized to release its Lien on the Pledged Interests of such
French Subsidiary, and (Z) if Tech Data Worldwide Partner LLC or Tech Data
International Investment LLC ceases to be a Significant Subsidiary within sixty
(60) days after the Closing Date and no Default is then existing, the Collateral
Agent is hereby authorized to release such Subsidiary from its obligations under
the Facility Guaranty.
Upon request by the Collateral Agent or the Administrative Agent at any
time, the Required Lenders will confirm in writing the Collateral Agent's or
Administrative Agent's authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its
obligations under the Facility Guaranty pursuant to this Section 10.11.
Notwithstanding the release of any Subsidiary from its obligations under
the Facility Guaranty (or release of the Lien on any Pledged Interests of any
Subsidiary), if such Subsidiary is thereafter a Significant Subsidiary that is a
Domestic Subsidiary or Direct Foreign Subsidiary, the requirements of Section
7.12 shall again apply to such Subsidiary.
10.12 Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "co-syndication agent," "documentation agent," "co-agent,"
"book manager," "lead manager," "arranger," "lead arranger" or "co-arranger"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, in the case of such Lenders, those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders or other Persons so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
ARTICLE XI.
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific
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instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 5.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to
this Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; provided, however, that only the consent of the Required Lenders shall
be necessary to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest at the Default Rate;
(e) change Section 2.13 or Section 9.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender; or
(f) change any provision of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued 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 the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
11.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile
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number or (subject to subsection (c) below) electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the 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 or
to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the
other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a
notice to the Borrower, the Administrative Agent, the L/C Issuer and the
Swing Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant
to Article II shall not be effective until actually received by such Person. In
no event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in Section 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and
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liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.04 Attorney Costs, Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse the
Administrative Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 11.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.
11.05 Indemnification by the Borrower. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold
harmless each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
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currently or formerly owned or operated by the Borrower, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"), in all cases, whether or not caused by or arising, in whole or in
part, out of the negligence of the Indemnitee; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee. No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee have any liability for any indirect or consequential damages
relating to this Agreement or any other Loan Document or arising out of its
activities in connection herewith or therewith (whether before or after the
Closing Date). All amounts due under this Section 11.05 shall be payable within
ten Business Days after demand therefor. The agreements in this Section shall
survive the resignation of the Administrative Agent, the replacement of any
Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
11.06 Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof (or the Dollar
Equivalent amount thereof) is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect, in the applicable currency of such recovery or repayment.
11.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, (iii) by way
of pledge or assignment of a security
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interest subject to the restrictions of subsection (f) or (h) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans (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 (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this
Section) with respect to a Lender, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if "Trade Date"
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations under this Agreement with
respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to rights in respect of Swing Line Loans; (iii) any assignment
of a Commitment must be approved by the Administrative Agent, the L/C Issuer and
the Swing Line Lender unless the Person that is the proposed assignee is itself
a Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $4,000. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent's Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the
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Lenders, and the Commitments of, and principal amounts of the Loans and L/C
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 11.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.09 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
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"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, the L/C Issuer and the
Swing Line Lender, and (ii) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any Lender
that is a Fund may create a security interest in all or any portion of the Loans
owing to it and the Note, if any, held by it to the trustee for holders of
obligations owed, or securities issued, by such Fund as security for such
obligations or securities, provided that unless and until such trustee actually
becomes a Lender in compliance with the other provisions of this Section 11.07,
(i) no such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents and (ii) such trustee shall not be entitled to exercise
any of the rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest through
foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice
to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder, provided that such successor has consented to such appointment, and
provided further that no failure by the Borrower to appoint any such successor,
and no failure by any such successor to consent to such appointment, shall
affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all
the rights and obligations of the 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/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed Loans or fund risk
participations in Unreimbursed Amounts 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 provided for 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 the Lenders to make Base Rate Committed Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
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11.08 Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the written consent of the Borrower
or (h) 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 or any Lender on a nonconfidential basis from a source
other than the Borrower, provided (in the case of this clause (y)) that such
Information is not known to such Administrative Agent or such Lender to be bound
by another confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such Information. For purposes of this Section,
"Information" means all information received from any Loan Party relating to any
Loan Party or any of their respective businesses, other than any such
information that is Pre-Disclosure Information (defined below), provided that,
in the case of information received from a Loan Party after the date hereof,
such information is clearly identified at the time of delivery as confidential.
For the purposes of this Section 11.08, "Pre-Disclosure Information" means
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party, provided that such
information is not known by such Administrative Agent or such Lender to be bound
by another confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such information. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Notwithstanding anything herein to the contrary, "Information" shall not
include, and the Administrative Agent, each Lender and each other party hereto
may disclose without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transactions as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the Loans, Letters of
Credit and transactions contemplated hereby.
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11.09 Set-off. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender and each of such Lender's Affiliates is authorized at any
time and from time to time, without prior notice to the Borrower or any other
Loan Party, any such notice being waived by the Borrower (on its own behalf and
on behalf of each Loan Party) to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing by, such
Lender (or any such Affiliate) to or for the credit or the account of the
respective Loan Parties against any and all Obligations owing to such Lender
hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender or any Affiliate of such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
11.10 Interest Rate Limitation. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
11.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.12 Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
11.13 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and
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delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of
any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
11.14 Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.15 Tax Forms. (a) (i) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Foreign Lender shall (A) promptly
submit to the Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as may then be
available under then current United States laws and regulations to avoid, or
such evidence as is satisfactory to the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Foreign Lender by the Borrower
pursuant to this Agreement, (B) promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to act
for its own account with respect to any portion of any sums paid or payable to
such Lender under any of the Loan Documents (for example, in the case of a
typical participation by such Lender), shall deliver to the Administrative Agent
on the date when such Foreign Lender ceases to act for its own account with
respect to any portion of any such sums paid or payable, and at such other
98
times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies
of the forms or statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or
any successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its own
account with respect to a portion of any such sums payable to such Lender.
(iii) The Borrower shall not be required to pay any additional amount to
any Foreign Lender under Section 3.01 (A) with respect to any Taxes required to
be deducted or withheld on the basis of the information, certificates or
statements of exemption such Lender transmits with an IRS Form W-8IMY pursuant
to this Section 11.15(a) or (B) if such Lender shall have failed to satisfy the
foregoing provisions of this Section 11.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 11.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect to any
payment under any of the Loan Documents, nothing in this Section 11.15(a) shall
relieve the Borrower of its obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any change in any applicable law, treaty
or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Administrative Agent may, without reduction, withhold any Taxes
required to be deducted and withheld from any payment under any of the Loan
Documents with respect to which the Borrower is not required to pay additional
amounts under this Section 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
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11.16 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
the LAW OF THE STATE OF FLORIDA applicable to agreements made and to be
performed entirely within such State; PROVIDED THAT THE ADMINISTRATIVE Agent AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF FLORIDA SITTING
IN PINELLAS COUNTY OR HILLSBOROUGH COUNTY, FLORIDA, OR OF THE UNITED STATES FOR
THE MIDDLE DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. THE BORROWER, THE ADMINISTRATIVE Agent AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE
Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
11.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.18 JUDGMENT CURRENCY. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan Document
in one currency into another currency, the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due to the Administrative Agent or the Lenders
hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a
100
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent of any sum adjudged to be so due
in the Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent in the Agreement Currency, the
Borrower agrees, jointly and severally, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of the
Agreement Currency so purchased is greater than the sum originally due to the
Administrative Agent in such currency, the Administrative Agent agrees to return
the amount of any excess to the Borrower (or to any other Person who may be
entitled thereto under applicable law).
11.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
TECH DATA CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Vice President, Treasurer
and Secretary
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Principal
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Principal
BANK ONE, NA
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx XxXxxxx
---------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Group Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CITICORP USA, INC.
By: /s/ Xxxxx Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxx Xxxxxxxx
Title: Director
Global Media & Communications
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Director
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
KEY CORPORATE CAPITAL, INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Vice President
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
SCOTIABANC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK
AG, NEW YORK BRANCH
By: /s/ Xxxxx XxXxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxx
Title: Director
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ Nicolas Regent
---------------------------------------
Name: Nicolas Regent
Title: VP Multinational
By: /s/ Xxxxxx X. van Tulder
---------------------------------------
Name: Xxxxxx X. van Tulder
Title: Vice President & Manager
Multinational Group
