Tech Data 10Q 2004 Q2 Quarterly report | TECD Filing

Exhibit 10AAr

SECOND AMENDED AND RESTATED LEASE AGREEMENT

Dated as of July 31, 2003

between

SUNTRUST EQUITY FUNDING, LLC

as Lessor

and

TECH DATA CORPORATION, as Lessee

This Second Amended and Restated Lease Agreement is subject to a security interest in favor of SunTrust Bank, as Agent (the “Agent”) under a Second Amended and Restated Security Agreement dated as of July 31, 2003, among SunTrust Equity Funding, LLC and the Agent, as amended, modified, supplemented, restated or replaced from time to time. This Second Amended and Restated Lease Agreement has been executed in several counterparts. To the extent, if any, that this Second Amended and Restated Lease Agreement constitutes chattel paper (as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), no security interest in this Second Amended and Restated Lease Agreement may be created through the transfer or possession of any counterpart other than the original counterpart containing the receipt therefor executed by the Agent on the signature page hereof.

TABLE OF CONTENTS

ARTICLE I

1.1	Definitions	1

ARTICLE II

2.1	Property	1

2.2	Lease Term	1

2.3	Title	2

2.4	Lease Supplements	2

2.5	Subsidiaries as Lessee	2

ARTICLE III

3.1	Rent	3

3.2	Payment of Basic Rent	3

3.3	Supplemental Rent	3

3.4	Performance on a Non-Business Day	4

3.5	Rent Payment Provisions	4

ARTICLE IV

4.1	Utility Charges; Taxes	4

ARTICLE V

5.1	Quiet Enjoyment	4

ARTICLE VI

6.1	Net Lease	5

6.2	No Termination or Abatement	5

ARTICLE VII

7.1	Ownership of the Properties	6

ARTICLE VIII

8.1	Condition of the Properties	6

8.2	Possession and Use of the Properties	7

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ARTICLE IX

9.1	Compliance with Legal Requirements and Insurance Requirements	8

ARTICLE X

10.1	Maintenance and Repair; Return	8

10.2	Environmental Inspection	10

ARTICLE XI

11.1	Modifications	10

ARTICLE XII

12.1	Warranty of Title	11

ARTICLE XIII

13.1	Permitted Contests Other Than in Respect of Indemnities	11

ARTICLE XIV

14.1	Public Liability and Workers’ Compensation Insurance	12

14.2	Hazard and Other Insurance	12

14.3	Coverage	13

14.4	Additional Insurance Requirements	13

ARTICLE XV

15.1	Casualty and Condemnation	14

15.2	Environmental Matters	15

15.3	Notice of Environmental Matters	16

ARTICLE XVI

16.1	Termination Upon Certain Events	16

16.2	Procedures	16

ARTICLE XVII

17.1	Lease Events of Default	16

17.2	Surrender of Possession	20

TABLE OF CONTENTS

17.3	Reletting	20

17.4	Damages	20

17.5	Final Liquidated Damages	21

17.6	Waiver of Certain Rights	22

17.7	Assignment of Rights Under Contracts	22

17.8	Environmental Costs	22

17.9	Remedies Cumulative	22

17.10	Notice of Default or Event of Default	22

17.11	Lessee’s Option to Cure by Purchase of All Properties	22

17.12	Liability Limited	23

ARTICLE XVIII

18.1	Lessor’s Right to Cure Lessee’s Lease Defaults	23

ARTICLE XIX

19.1	Provisions Relating to Lessee’s Exercise of its Purchase Option	23

19.2	No Termination With Respect to Less than All of a Property	23

ARTICLE XX

20.1	Purchase Prior to End of Term; Purchase, Renewal or Sale Option; Purchase of Excess Land	24

ARTICLE XXI

21.1	Renewal	25

ARTICLE XXII

22.1	Sale Procedure	25

22.2	Application of Proceeds of Sale	27

22.3	Indemnity for Excessive Wear	27

22.4	Appraisal Procedure	28

22.5	Certain Obligations Continue	28

ARTICLE XXIII

23.1	[RESERVED.]	28

iii

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ARTICLE XXIV

24.1	Risk of Loss	28

ARTICLE XXV

25.1	Assignment	28

25.2	Subleases	29

ARTICLE XXVI

26.1	No Waiver	30

ARTICLE XXVII

27.1	Acceptance of Surrender	30

27.2	No Merger of Title	30

ARTICLE XXVIII

28.1	Notices	30

ARTICLE XXIX

29.1	Miscellaneous	30

29.2	Amendments and Modifications	30

29.3	Successors and Assigns	30

29.4	Headings and Table of Contents	31

29.5	Counterparts	31

29.6	GOVERNING LAW	31

29.7	Calculation of Rent	31

29.8	Memoranda of Lease and Lease Supplements	31

29.9	Allocations between the Financing Parties	31

29.10	Limitations on Recourse	31

29.11	WAIVERS OF JURY TRIAL	31

29.12	Original Leases	31

29.13	Mortgage Grant and Remedies	32

29.14	Exercise of Lessor Rights	32

TABLE OF CONTENTS

EXHIBITS

EXHIBIT A	[Amended and Restated] Lease Supplement No.	A-3
EXHIBIT B	Form of Memorandum of Lease and Lease Supplement	B-1
EXHIBIT C	Form of Guaranty Agreement (Lessee Obligations)	C-1

SECOND AMENDED AND RESTATED LEASE AGREEMENT

THIS SECOND AMENDED AND RESTATED LEASE AGREEMENT (as amended, supplemented or modified from time to time, this “Lease”), dated as of July 31, 2003, is between SUNTRUST EQUITY FUNDING, LLC, having its principal office c/o Atlantic Financial Group, Ltd., 2808 Fairmont, Suite 250 LB9, Dallas, Texas 75201, as lessor (the “Lessor”), and TECH DATA CORPORATION, a Florida corporation, having its principal place of business at 5350 Tech Data Drive, Clearwater, Florida, as lessee (the “Lessee”).

WITNESSETH:

A.WHEREAS, the Wells Fargo Bank Northwest, National Association (as successor to First Security Bank, National Association), as Owner Trustee, and Lessee entered into an Amended and Restated Lease Agreement dated as of May 8, 2000 (as amended, the “Existing Lease”), pursuant to which Lessor agreed to lease certain Properties to Lessee (or to certain Subsidiaries acting as alternative lessees); and

B.WHEREAS, the Lessor, contemporaneously herewith, shall acquire the Properties by acquiring the Existing Holders’ Certificates and dissolving the TD 1996 Real Estate Trust; and

C.WHEREAS, the Lessor desires to amend and restate the Existing Lease on the terms and conditions set forth herein; and

D.WHEREAS, Lessor desires to lease to Lessee (or to certain alternative Lessees permitted bySection 2.5), and Lessee desires to lease (or cause such alternative Lessees to lease) from Lessor, each Property;

NOW, THEREFORE, in consideration of the foregoing, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Existing Lease Agreement is hereby amended and restated in its entirety, and the parties hereto agree as follows:

ARTICLE I

1.1Definitions. Capitalized terms used but not otherwise defined in this Lease have the respective meanings specified inAppendix A to the Second Amended and Restated Participation Agreement of even date herewith (as such may be amended, modified, supplemented, restated and/or replaced from time to time, the “Participation Agreement”) among the Lessee, the Lessor, the Lenders party thereto and the Agent.

ARTICLE II

2.1Property. Subject to the terms and conditions hereinafter set forth and contained in the respective Lease Supplement relating to each Property, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, each Property.

2.2Lease Term. The term of this Lease with respect to each Property (the “Term”) shall begin upon the earlier to occur of (a) the Property Closing Date for such Property or (b) the

date the Lessor takes title to such Property hereof (such date being referred to as the “Basic Term Commencement Date” for such Property) and shall end on July 30, 2008 (the “Basic Term Expiration Date”), unless the Term is earlier terminated in accordance with the provisions of this Lease or unless this Lease shall be renewed in accordance withSection 21.1 hereof. The Lessor and the Lessee acknowledge and agree that since the respective Property Closing Date (or date of Lessor taking title) for each Property has occurred prior to the Restatement Effective Date, the Term has already commenced (and is deemed to be in effect) with respect to the Properties in accordance with the first sentence of thisSection 2.2.

2.3Title. Each Property is leased to Lessee without any representation or warranty, express or implied, by Lessor and subject to the rights of parties in possession (if any), the existing state of title (including, without limitation, the Permitted Exceptions) and all applicable Legal Requirements. Lessee shall in no event have any recourse against Lessor for any defect in Lessor’s title to any Property other than for Lessor Liens.

2.4Lease Supplements. On or prior to the Basic Term Commencement Date, Lessee and Lessor shall have each executed and delivered a Lease Supplement for the Property leased effective as of such Basic Term Commencement Date in substantially the form ofExhibit A hereto. Lessee hereby irrevocably appoints Lessor as Lessee’s attorney-in-fact, with power of substitution, in the name of Lessor or the name of Lessee or otherwise, to execute any Lease Supplement which Lessee has failed or refused to sign in accordance with the terms of thisSection 2.4.

2.5Subsidiaries as Lessee. Subject to the consent of the Administrative Agent and the delivery of such agreements and documents as the Administrative Agent may require (including without limitation the Guaranty of Tech Data), documents perfecting the liens of the Owner Trustee, Agent and Financing Parties under the Operative Agreements and written opinions of counsel for the Lessee and any applicable Subsidiary, a Subsidiary of Tech Data may become party to this Lease as a Lessee (each, an “alternative Lessee”) of a Property, and shall be liable (jointly and severally with Tech Data) for all obligations as Lessee. Without limiting the generality of the foregoing, (a) Tech Data shall remain fully liable for all obligations as Lessee with respect to each Property, and (b) Tech Data, as and on behalf of the Lessee with respect to each Property, shall have the right to give any notice, consent or waiver, to exercise any option permitted under any Operative Agreement, and to agree to any amendment or modification with respect to any Operative Agreement or any Property (and each alternative Lessee hereby grants to Tech Data an irrevocable power-of-attorney to take any such actions) without the necessity of obtaining any consent of any alternative Lessee, and any other party to the Operative Agreements shall be fully protected in relying on any such actions taken by Tech Data or (with respect to the applicable Property) by an alternative Lessee. Without limiting the generality of the foregoing, any Operative Agreement may be amended or modified without obtaining the consent of any alternative Lessee.

ARTICLE III

3.1Rent.

(a) Lessee shall pay Basic Rent on each Payment Date, and on any date on which this Lease shall terminate with respect to any or all Properties during the Term. The Lessor and the Lessee acknowledge and agree that since the respective Closing Date for each Property has occurred prior to the Restatement Effective Date, the Basic Rent Commencement Date has already occurred for each Property, and the Lessee must pay Basic Rent from and after the date hereof for each Property.

(b) Basic Rent shall be due and payable in lawful money of the United States and shall be paid in immediately available funds on the due date therefor (or within the applicable grace period) to such account or accounts as Lessor shall from time to time direct.

(c) Lessee’s inability or failure to take possession of all or any portion of any Property when it was delivered by Lessor, whether or not attributable to any act or omission of the Lessor, Lessee, or any other Person, or for any other reason whatsoever, shall not delay or otherwise affect Lessee’s obligation to pay Rent for such Property in accordance with the terms of this Lease.

3.2Payment of Basic Rent. Basic Rent shall be paid absolutely net to Lessor or its designee, so that this Lease shall yield to Lessor the full amount of Basic Rent, without setoff, deduction or reduction.

3.3Supplemental Rent. Lessee shall pay to Lessor or its designee or to the Person entitled thereto any and all Supplemental Rent promptly as the same shall become due and payable, and if Lessee fails to pay any Supplemental Rent, Lessor shall have all rights, powers and remedies provided for herein or by law or equity or otherwise in the case of nonpayment of Basic Rent. Without limiting the generality of the definition of “Supplemental Rent,” Lessee shall pay to Lessor as Supplemental Rent, among other things, on demand, to the extent permitted by applicable Legal Requirements, (a) any and all unpaid fees, charges, prepayment penalties, Taxes, insurance costs, indemnities, expenses, payments and other obligations (except the obligations of Lessor to pay the principal amount of the Loans and of the Lessee to pay the Lessor Amount) due and owing by Lessor or the Lessee under the Credit Agreement or any other Operative Agreement and (b) interest and Yield at the applicable Overdue Rate on any installment of Basic Rent not paid when due (subject to the applicable grace period) for the period for which the same shall be overdue and on any payment of Supplemental Rent not paid when due or demanded by the appropriate Person for the period from the due date or the date of any such demand, as the case may be, until the same shall be paid. The expiration or other termination of Lessee’s obligations to pay Basic Rent hereunder shall not limit or modify the obligations of Lessee with respect to Supplemental Rent. Unless expressly provided otherwise in this Lease, in the event of any failure on the part of Lessee to pay and discharge any Supplemental Rent as and when due, Lessee shall also promptly pay and discharge any fine, penalty, interest or cost which may be assessed or added, pursuant to any Operative Agreement

or otherwise, in each case for nonpayment or late payment of such Supplemental Rent, all of which shall also constitute Supplemental Rent.

3.4Performance on a Non-Business Day. If any Basic Rent is required hereunder on a day that is not a Business Day, then such Basic Rent shall be due on the corresponding Scheduled Interest Payment Date. If any Supplemental Rent is required hereunder on a day that is not a Business Day, then such Supplemental Rent shall be due on the next succeeding Business Day.

3.5Rent Payment Provisions. Lessee shall make payment of all Basic Rent and Supplemental Rent when due regardless of whether any of the Operative Agreements pursuant to which same is calculated and is owing shall have been rejected, avoided or disavowed in any bankruptcy or insolvency proceeding involving any of the parties to any of the Operative Agreements. Such provisions of such Operative Agreements and their related definitions are incorporated herein by reference and shall survive any termination, amendment or rejection of any such Operative Agreements.

ARTICLE IV

4.1Utility Charges; Taxes. Lessee shall pay or cause to be paid all charges for electricity, power, gas, oil, water, telephone, sanitary sewer service and all other rents and utilities used in or on a Property and related real property during the Term. Lessee shall be entitled to receive any credit or refund with respect to any utility charge paid by Lessee,provided that Lessee must collect any such credit or refund from Lessor or the respective utility company (as the case may be) and shall not be entitled to offset any such amount owed to Lessee against Rent payable by the Lessee hereunder. Unless a Lease Default or Lease Event of Default shall have occurred and be continuing, the amount of any credit or refund received by Lessor on account of any utility charges paid by Lessee, net of the costs and expenses incurred by Lessor in obtaining such credit or refund, shall be promptly paid over to Lessee. In addition, Lessee shall pay or cause to be paid all taxes or tax assessments against a Property. All charges for utilities and all taxes or tax assessments imposed with respect to a Property for a billing period (or in the cases of tax assessments, a tax period) during which this Lease expires or terminates shall be adjusted and prorated on a daily basis between Lessor and Lessee, and each party shall pay or reimburse the other for such party’s pro rata share thereof.

ARTICLE V

5.1Quiet Enjoyment. Subject to the rights of Lessor contained inSections 17.2 and 17.3 and the other terms of this Lease and the other Operative Agreements and so long as no Lease Event of Default shall have occurred and be continuing, Lessee shall peaceably and quietly have, hold and enjoy each Property for the applicable Term, free of any claim or other action by Lessor or anyone rightfully claiming by, through or under Lessor (other than Lessee) with respect to any matters arising from and after the applicable Basic Term Commencement Date.

ARTICLE VI

6.1Net Lease. This Lease shall constitute a net lease. Lessee shall pay all operating expenses arising out of the use, operation or occupancy of each Property. Any present or future law to the contrary notwithstanding, this Lease shall not terminate, nor shall Lessee be entitled to any abatement, suspension, deferment, reduction, setoff, counterclaim, or defense with respect to the Rent, nor shall the obligations of Lessee hereunder be affected (except as expressly herein permitted and by performance of the obligations in connection therewith) by reason of: (a) any damage to or destruction of any Property or any part thereof; (b) any taking of any Property or any part thereof or interest therein by Condemnation or otherwise; (c) any prohibition, limitation, restriction or prevention of Lessee’s use, occupancy or enjoyment of any Property or any part thereof, or any interference with such use, occupancy or enjoyment by any Person or for any other reason; (d) any title defect, Lien or any matter affecting title to any Property; (e) any eviction by paramount title or otherwise; (f) any default by Lessor hereunder; (g) any action for bankruptcy, insolvency, reorganization, liquidation, dissolution or other proceeding relating to or affecting the Agent, any Financing Party, Lessor, Lessee or any Governmental Authority; (h) the impossibility or illegality of performance by Lessor, Lessee or both; (i) any action of any Governmental Authority or any other Person; (j) Lessee’s acquisition of ownership of all or part of any Property; (k) breach of any warranty or representation with respect to any Property or any Operative Agreement; (l) any defect in the condition, quality or fitness for use of any Property or any part thereof; or (m) any other cause or circumstance whether similar or dissimilar to the foregoing and whether or not Lessee shall have notice or knowledge of any of the foregoing. The foregoing clause (j) shall not prevent the termination of the Lease in accordance with the terms hereof if the Lessee purchases all of the Properties pursuant toSection 20.1, or the termination of the Lease with respect to an individual Property if the Lessee purchases such Property pursuant toSection 20.1. The parties intend that the obligations of Lessee hereunder shall be covenants, agreements and obligations that are separate and independent from any obligations of Lessor hereunder and shall continue unaffected unless such covenants, agreements and obligations shall have been modified or terminated in accordance with an express provision of this Lease. Lessor and Lessee acknowledge and agree that the provisions of thisSection 6.1 have been specifically reviewed and subject to negotiation.

6.2No Termination or Abatement. Lessee shall remain obligated under this Lease in accordance with its terms and shall not take any action to terminate, rescind or avoid this Lease, notwithstanding any action for bankruptcy, insolvency, reorganization, liquidation, dissolution, or other proceeding affecting Lessor, any other Person or any Governmental Authority, or any action with respect to this Lease or any Operative Agreement which may be taken by any trustee, receiver or liquidator of Lessor, any other Person or any Governmental Authority or by any court with respect to Lessor, any other Person or any Governmental Authority. Lessee hereby waives all right (a) to terminate or surrender this Lease (except as permitted under the terms of the Operative Agreements) or (b) to avail itself of any abatement, suspension, deferment, reduction, setoff, counterclaim or defense with respect to any Rent. Lessee shall remain obligated under this Lease in accordance with its terms and Lessee hereby waives any and all rights now or hereafter conferred by statute or otherwise to modify or to avoid strict compliance with its obligations under this Lease. Notwithstanding any such statute or otherwise, Lessee shall be bound by all of the terms and conditions contained in this Lease.

ARTICLE VII

7.1Ownership of the Properties.

(a) Lessor and Lessee intend that for federal and all state and local income tax purposes and other tax purposes, for bankruptcy purposes, creditor’s rights purposes, environmental law purposes, for purposes of exercising remedies against the Lessee or the Properties, and for all other legal purposes (A) this Lease will be treated as a loan and financing arrangement and not a true lease, (B) Lessee will be treated as the owner of the Properties and will be entitled to all tax benefits ordinarily available to owners of property similar to the Properties for such tax purposes, and (C) all payments of Basic Rent shall be deemed to be interest payments. Consistent with the foregoing, Lessee intends to claim depreciation and cost recovery deductions associated with the Property, and Lessor agrees not to take any inconsistent position on its income tax returns. Neither Lessor, the Agent nor any Financing Party makes any representation or warranty with respect to the foregoing matters described in thisSection 7.1 and will assume no liability for the Lessee’s accounting or tax treatment of this transaction.

(b) Lessor and Lessee further intend and agree that, for the purpose of securing Lessee’s obligations hereunder, (i) this Lease shall be deemed to be a security agreement and financing statement within the meaning of Article 9 of the Uniform Commercial Code respecting each of the Properties to the extent such is personal property and an irrevocable grant and conveyance of a lien and mortgage on each of the Properties to the extent such is real property; (ii) the acquisition of title (or to the extent applicable, a leasehold interest) in each Property referenced inArticle II shall be deemed to be (A) a grant by Lessee to Lessor of a lien on and security interest in all of Lessee’s right, title and interest in and to each Property and all proceeds (including without limitation insurance proceeds) of any of the Property, whether in the form of cash, investments, securities or other property, and (B) an assignment by Lessee to Lessor of all rents, profits and income produced by any of the Property; and (iii) notifications to Persons holding such property, and acknowledgments, receipts or confirmations from financial intermediaries, bankers or agents (as applicable) of Lessee shall be deemed to have been given for the purpose of perfecting such security interest under applicable law. Lessor and Lessee shall promptly take such actions as may be necessary or advisable in either party’s opinion (including without limitation the filing of Uniform Commercial Code Financing Statements or Uniform Commercial Code Fixture Filings) to ensure that the lien and security interest in each Property will be deemed to be a perfected lien and security interest of first priority under applicable law and will be maintained as such throughout the Term.

ARTICLE VIII

8.1Condition of the Properties. LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY “AS IS” WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY LESSOR AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF FACTS WHICH AN

ACCURATE SURVEY OR PHYSICAL INSPECTION MIGHT SHOW, (D) ALL APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY EXIST ON THE DATE OF THE APPLICABLE LEASE SUPPLEMENT. NEITHER LESSOR NOR THE AGENT NOR ANY FINANCING PARTY HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE, VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT NOR ANY FINANCING PARTY SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. THE LESSEE HAS OR WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH PROPERTY AND THE IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS THE LESSOR, THE AGENT, EACH FINANCING PARTY ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS BETWEEN THE LESSOR, THE AGENT, THE FINANCING PARTIES, ON THE ONE HAND, AND THE LESSEE, ON THE OTHER HAND, ARE TO BE BORNE BY LESSEE.

8.2Possession and Use of the Properties.

(a) At all times during the Term with respect to each Property, such Property shall be used by Lessee in the ordinary course of its business. Lessee shall pay, or cause to be paid, all charges and costs required in connection with the use of the Properties as contemplated by this Lease. Lessee shall not commit or permit any waste of the Properties or any part thereof.

(b) Lessee represents and warrants that its location (as defined in Section 9-307 of the Uniform Commercial Code of any applicable jurisdiction) is Florida, and Lessee will provide Lessor with prior written notice of any change of such location. Regarding each Property, Lessee represents and warrants that each Lease Supplement correctly identifies the initial location of the related Equipment and Improvements and contains an accurate legal description for the related parcel of Land. Lessee has no other places of business where the Equipment or Improvements will be located other than those identified on the applicable Lease Supplement; provided that, so long as no Lease Event of Default shall have occurred and be continuing, it is understood that the Lessee may relocate any Equipment (not constituting fixtures) with an aggregate Property Cost of $1,000,000 or less over the Term from any Property to another Property.

(c) Lessee will not attach or incorporate any item of Equipment to or in any other item of equipment or personal property or to or in any real property (except the Land identified in the Lease Supplement in which such Equipment is also described) in a

manner that could give rise to the assertion of any Lien (other than a Permitted Lien) on such item of Equipment by reason of such attachment or the assertion of a claim that such item of Equipment has become a fixture and is subject to a Lien in favor of a third party that is prior to the Liens thereon created by the Operative Agreements.

(d) Each Lease Supplement delivered under the terms of this Lease shall contain, in regard to the relevant Property, an Equipment Schedule that has a complete description of each item of Equipment, an Improvement Schedule that has a complete description of each Improvement and a legal description of the Land, to be leased hereunder as of such date. Simultaneously with the execution and delivery of each Lease Supplement, such Equipment, Improvements and Land shall be deemed to have been accepted by Lessee for all purposes of this Lease and to be subject to this Lease.

(e) At all times during the Term with respect to each Property, Lessee will comply with all obligations under, and (to the extent no Event of Default has occurred and is continuing and provided that such exercise will not impair the value of such Property) shall be permitted to exercise all rights and remedies under, all operation and easement agreements and related or similar agreements applicable to such Property.

ARTICLE IX

9.1Compliance with Legal Requirements and Insurance Requirements. Subject to the terms ofArticle XIII relating to permitted contests, Lessee, at its sole cost and expense, shall (i) comply with all Legal Requirements (including without limitation all Environmental Laws), and all Insurance Requirements relating to the Properties, including the use, development, construction, operation, maintenance, repair, refurbishment and restoration thereof, whether or not compliance therewith shall require structural or extraordinary changes in the Improvements or interfere with the use and enjoyment of the Properties, and (ii) procure, maintain and comply with all licenses, permits, orders, approvals, consents and other authorizations required for the construction, use, maintenance and operation of the Properties and for the use, development, construction, operation, maintenance, repair and restoration of the Improvements.

ARTICLE X

10.1Maintenance and Repair; Return.

(a) Lessee, at its sole cost and expense, shall maintain each Property in good condition, repair and working order (ordinary wear and tear excepted) and make all necessary repairs thereto, of every kind and nature whatsoever, whether interior or exterior, ordinary or extraordinary, structural or nonstructural, or foreseen or unforeseen, in each case as required by all Legal Requirements, Insurance Requirements, and manufacturer’s specifications and standards and on a basis consistent with the operation and maintenance of properties or equipment comparable in type and function to the applicable Property and in compliance with standard industry practice, subject, however, to the provisions ofArticle XV with respect to Condemnation and Casualty.

(b) Lessee shall not move or relocate any component of any Property beyond the boundaries of the Land described in the applicable Lease Supplement without

Lessor’s prior written consent, which consent shall not be unreasonably withheld or delayed; provided that it is understood that the Lessee may relocate Equipment (not constituting fixtures) with an aggregate Property Cost of $1,000,000 or less over the Term from any Property to another Property.

(c) If any material component of any Property becomes worn out, lost, destroyed, damaged beyond repair or otherwise permanently rendered unfit for use, Lessee, at its own expense, will within a reasonable time replace such component with a replacement component which is free and clear of all Liens (other than Permitted Liens) and has a value, utility and useful life at least equal to the component replaced. All components which are added to any Property (other than Severable Improvements not financed by Fundings) shall immediately become the property of, and title thereto shall vest in, Lessor, and shall be deemed incorporated in such Property and subject to the terms of this Lease as if originally leased hereunder. Lessee may remove, without the Lessor’s consent, any Severable Improvements that were not financed by Fundings so long as Lessee (at its own expense) repairs any damage to the Property as the result of such removal in accordance with the terms of thisSection 10.1.

(d) Upon reasonable advance notice, Lessor and its agents shall have the right to inspect each Property and all maintenance records with respect thereto at any reasonable time during normal business hours but shall not materially disrupt the business of Lessee and shall follow all security requirements and visitor’s rules.

(e) Lessor or the Agent (at Lessee’s sole expense) may cause to be prepared (at Lessee’s sole expense) any additional Appraisals (or reappraisals) as Lessor or the Agent may deem appropriate (i) if an Event of Default has occurred and is continuing, or (ii) if any one of Lessor, the Agent or, any Financing Party is required pursuant to any applicable Legal Requirement to obtain such an Appraisal (or reappraisal).

(f) Lessor shall under no circumstances be required to build any improvements on any Property, make any repairs, replacements, alterations or renewals of any nature or description to any Property, make any expenditure whatsoever in connection with this Lease or maintain any Property in any way. Lessor shall not be required to maintain, repair or rebuild all or any part of any Property, and Lessee waives the right to (i) require Lessor to maintain, repair, or rebuild all or any part of any Property (unless such repairs are needed to cure damage to a Property caused by the gross negligence or willful misconduct of the Lessor), or (ii) make repairs at the expense of Lessor pursuant to any Legal Requirement, Insurance Requirement, contract, agreement, covenants, condition or restriction at any time in effect.

(g) Lessee shall, upon the expiration of the Term or earlier termination of this Lease with respect to a Property, if Lessee shall not have exercised its Purchase Option with respect to such Property, surrender such Property to Lessor, or the third party purchaser, as the case may be, subject to Lessee’s obligations under this Lease (including without limitationSections 9.1, 10.1(a)-(f), 10.2, 11.1, 12.1, 15.1, 22.1 and23.1).

10.2Environmental Inspection. If Lessee has given notice, pursuant toSection 20.1(b) of its election to remarket the Properties pursuant toSection 22.1 then in any Pool not more than one hundred twenty (120) days nor less than sixty (60) days prior to the Expiration Date, Lessee shall, at its sole cost and expense, provide to Lessor and the Agent a report by a reputable environmental consultant selected by Lessee, which report shall be in form and substance reasonably satisfactory to Lessor and the Agent and shall include without limitation a “Phase I” environmental report (or update of a prior “Phase I” report that was previously delivered to the Lessor and the Agent) on each of the Properties in such Pool. If the report delivered pursuant to the preceding sentence recommends that a “Phase II” report or other supplemental report be obtained, the Lessee shall, at its own cost and expense, not less than thirty (30) days prior to the Expiration Date, provide to Lessor and the Agent such “Phase II” or other report, in form and substance reasonably satisfactory to Lessor and the Agent. If Lessee fails to provide such Phase I, Phase II or other supplemental reports with respect to any Property in such Pool within the time periods required by thisSection 10.2, or if such report or reports are not satisfactory in scope or content to the Agent or the Lessor (in their sole discretion), then notwithstanding any other provision of this Lease, Lessor may require Lessee to purchase all of the Properties in such Pool on the Expiration Date for the Termination Value thereof, plus all Rent due and payable, and all other amounts due and owing under any Operative Agreement.

ARTICLE XI

11.1Modifications. Lessee at its sole cost and expense, at any time and from time to time without the consent of Lessor may make alterations, renovations, improvements and additions to any Property or any part thereof and substitutions and replacements therefor (collectively, “Modifications”) (and shall make any Modification required by applicable Legal Requirements or by any Governmental Authority);provided, that: (i) except for any Modification required to be made pursuant to a Legal Requirement, no Modification shall materially impair the value, utility or useful life of any Property from that which existed immediately prior to such Modification; (ii) the Modification shall be done expeditiously and in a good and workmanlike manner; (iii) Lessee shall comply with all Legal Requirements (including all Environmental Laws) and Insurance Requirements applicable to the Modification, including without limitation the obtaining of all permits and certificates of occupancy, and the structural integrity of any Property shall not be adversely affected; (iv) to the extent required bySection 14.2(a), Lessee shall maintain builders’ risk insurance at all times when a Modification is in progress; (v) subject to the terms ofArticle XIII relating to permitted contests, Lessee shall pay all costs and expenses and discharge any Liens (other than Permitted Liens) arising with respect to the Modification; (vi) such Modification shall comply with the requirements of this Lease (including without limitationSections 8.2 and10.1); and (vii) no Improvements shall be demolished unless (x) such Improvement is a Severable Improvement and (y) Lessee shall finance the proposed Modification outside of this lease facility. Modifications that are Severable Improvements shall become property of the Lessee, and title to such Modifications shall rest with the Lessee. Except as set forth in the immediately preceding sentence, title to each Modification shall immediately vest in Lessor, and each such Modification shall be subject to this Lease.

ARTICLE XII

12.1Warranty of Title.

(a) Lessee agrees that, except as otherwise provided herein and subject to the terms ofArticle XIII relating to permitted contests, Lessee shall not directly or indirectly create or allow to remain, and shall promptly discharge at its sole cost and expense, (i) any Lien, defect, attachment, levy, title retention agreement or claim upon any Property or any Modifications or (ii) any Lien, attachment, levy or claim with respect to the Rent or with respect to any amounts held by the Agent pursuant to the Credit Agreement, in each case other than Permitted Liens and Lessor Liens. Lessee shall promptly notify Lessor in the event it receives actual knowledge that a Lien other than a Permitted Lien or Lessor Lien has occurred with respect to a Property, and Lessee represents and warrants to, and covenants with, Lessor that the Liens in favor of the Lessor created by the Operative Agreements are first priority perfected Liens subject only to Permitted Liens.

(b) Nothing contained in this Lease shall be construed as constituting the consent or request of Lessor, expressed or implied, to or for the performance by any contractor, mechanic, laborer, materialman, supplier or vendor of any labor or services or for the furnishing of any materials for any construction, alteration, addition, repair or demolition of or to any Property or any part thereof. NOTICE IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE, AND THAT NO MECHANIC’S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND TO ANY PROPERTY.

ARTICLE XIII

13.1Permitted Contests Other Than in Respect of Indemnities. Except to the extent otherwise provided for inSection 13 of the Participation Agreement, Lessee, on its own or on Lessor’s behalf but at Lessee’s sole cost and expense, may contest, by appropriate administrative or judicial proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any Legal Requirement, or utility charges payable pursuant toSection 4.1 or any Lien, attachment, levy, encumbrance or encroachment, and Lessor agrees not to pay, settle or otherwise compromise any such item, provided that (a) the commencement and continuation of such proceedings shall suspend the collection of any such contested amount from, and suspend the enforcement thereof against, the applicable Properties, Lessor, the Agent and each Financing Party; (b) there shall not be imposed a Lien (other than Permitted Liens) on any Property and no part of any Property nor any Rent shall be in any danger of being sold, forfeited, lost or deferred; (c) at no time during the permitted contest shall there be a risk of the imposition of criminal liability or material civil liability on Lessor, the Agent or any Financing Party for failure to comply therewith; and (d) in the event that, at any time, there shall be a material risk of extending the application of such item beyond the end of the Term, then Lessee shall deliver to Lessor an Officer’s Certificate certifying as to the matters set forth inclauses (a),(b) and(c) of thisSection 13.1. Lessor, at Lessee’s sole cost and expense, shall execute and

deliver to Lessee such authorizations and other documents as may reasonably be required in connection with any such contest and, if reasonably requested by Lessee, shall join as a party therein at Lessee’s sole cost and expense.

ARTICLE XIV

14.1Public Liability and Workers’ Compensation Insurance. During the Term of each Property, Lessee shall procure and carry, at Lessee’s sole cost and expense, commercial general liability insurance for claims for injuries or death sustained by persons or damage to property while on the Properties or the premises where the Equipment is located and such other public liability coverages as are then customarily carried by similarly situated companies conducting business similar to that conducted by Lessee. Such insurance shall be on terms and in amounts (and with deductibles and limitations on coverage) that are (a) reasonably satisfactory to Lessor and the Agent and (b) no less favorable than insurance maintained by Lessee with respect to similar properties and equipment that it owns and are then carried by similarly situated companies conducting business similar to that conducted by Lessee. The policies shall be endorsed to name Lessor, the Agent and the Financing Parties as additional insureds. The policies shall also specifically provide that such policies shall be considered primary insurance which shall apply to any loss or claim before any contribution by any insurance which Lessor, the Agent or any Financing Party may have in force. Lessee shall, in the operation of the Properties, comply with the applicable workers’ compensation laws and protect Lessor, the Agent and each Financing Party against any liability under such laws.

14.2Hazard and Other Insurance.

(a) During the Term for each Property, Lessee shall keep, or cause to be kept, such Property insured against loss or damage by fire and all other risks, and shall maintain builders’ risk insurance during construction of any Improvements or Modifications, in each case in amounts not less than the replacement value from time to time of such Property and on terms that (i) are no less favorable than insurance covering other similar properties owned by Lessee and (ii) are then carried by similarly situated companies conducting business similar to that conducted by Lessee. The policies shall be endorsed to name Lessor and the Agent (for itself and on behalf of the Financing Parties), to the extent of their respective interests, as additional insureds and loss payees;provided, that so long as no Lease Event of Default has occurred and is continuing, any loss payable under the insurance policies required by this Section will be paid to Lessee.

(b) If, during the Term with respect to a Property the area in which such Property is located is designated a “flood-prone” area pursuant to the Flood Disaster Protection Act of 1973, or any amendments or supplements thereto, then Lessee shall comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973. In addition, Lessee will fully comply with the requirements of the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as each may be amended from time to time, and with any other Legal Requirement concerning flood insurance to the extent that it may apply to any such Property.

14.3Coverage.

(a) As of the date of this Lease and annually thereafter, Lessee shall furnish Lessor and the Agent with certificates prepared by the insurers or insurance broker of Lessee showing the insurance required underSections 14.1 and14.2 to be in effect, naming (except with respect to workers’ compensation insurance) Lessor, the Agent and each Financing Party as an additional insured on all insurance described inSection 14.1, and the Agent (for itself and on behalf of the Financing Parties) as additional insured and loss payee on all insurance described inSection 14.2, and in each case evidencing the other requirements of thisArticle XIV. All such insurance shall be at the cost and expense of Lessee and provided by nationally recognized, financially sound insurance companies with an A.M. Best rating of not less than A- (A minus). Such certificates shall include a provision for thirty (30) days’ advance written notice by the insurer to Lessor and the Agent in the event of cancellation or material alteration of such insurance. If a Lease Event of Default has occurred and is continuing and Lessor so requests, Lessee shall deliver to Lessor copies of all insurance policies required bySections 14.1 and14.2.

(b) Lessee agrees that any insurance policy required bySections 14.1, 14.2(a) and14.2(b) shall include an appropriate provision that in respect of the interests of each additional insured, such policy will not be invalidated should Lessee waive any or all rights of recovery against any party for losses covered by such policy or due to any breach of warranty, fraud, action, inaction or misrepresentation by Lessee or any Person acting on behalf of Lessee. Lessee hereby waives any and all such rights against the Lessor, the Agent and the Financing Parties to the extent of payments made to any such Person under any such policy.

(c) Neither Lessor nor Lessee shall carry separate insurance concurrent in kind or form or contributing in the event of loss with any insurance required under thisArticle XIV, except that Lessor may carry separate liability insurance at Lessor’s sole cost so long as (i) Lessee’s insurance is designated as primary and in no event excess or contributory to any insurance Lessor may have in force which would apply to a loss covered under Lessee’s policy and (ii) each such insurance policy will not cause Lessee’s insurance required under thisArticle XIV to be subject to a coinsurance exception of any kind.

(d) Lessee shall pay as they become due all premiums for the insurance required bySection 14.1 andSection 14.2, shall renew or replace each policy prior to the expiration date thereof, and shall otherwise maintain the coverage required by such Sections without any lapse in coverage.

14.4Additional Insurance Requirements. Without limiting the generality ofSections 14.1 through14.3 above or any other provision of any Operative Agreement, Lessee shall obtain any and all additional insurance policies with regard to the Properties or otherwise with respect to the transactions contemplated by the Operative Agreements, as requested from time to time by Lessor.

ARTICLE XV

15.1Casualty and Condemnation.

(a) Subject to the provisions of thisArticle XV andArticle XVI (in the event Lessee delivers, or is obligated to deliver, a Termination Notice), and prior to the occurrence and continuation of a Lease Default or Lease Event of Default, Lessee shall be entitled to receive (and Lessor hereby irrevocably assigns to Lessee all of Lessor’s right, title and interest in) any award, compensation or insurance proceeds underSections 14.2(a) or(b) hereof to which Lessee or Lessor may become entitled by reason of their respective interests in a Property (i) if all or a portion of such Property is damaged or destroyed in whole or in part by a Casualty or (ii) if the use, access, occupancy, easement rights or title to such Property or any part thereof is the subject of a Condemnation;provided,however, if a Lease Default or Lease Event of Default shall have occurred and be continuing such award, compensation or insurance proceeds shall be paid directly to Lessor or, if received by Lessee, shall be held in trust for Lessor, and shall be paid over by Lessee to Lessor and held in accordance with the terms of this paragraph (a). All amounts held by Lessor hereunder on account of any award, compensation or insurance proceeds either paid directly to Lessor or turned over to Lessor shall be held as security for the performance of Lessee’s obligations hereunder.

(b) Lessee may appear in any proceeding or action to negotiate, prosecute, adjust or appeal any claim for any award, compensation or insurance payment on account of any such Casualty or Condemnation and shall pay all expenses thereof. At Lessee’s reasonable request, and at Lessee’s sole cost and expense, Lessor and the Agent shall participate in any such proceeding, action, negotiation, prosecution or adjustment. Lessor and Lessee agree that this Lease shall control the rights of Lessor and Lessee in and to any such award, compensation or insurance payment.

(c) If Lessee shall receive notice of a Casualty or a possible Condemnation of a Property or any interest therein where damage to the affected Property is estimated to equal or exceed ten percent (10%) of the Property Cost of such Property, Lessee shall give notice thereof to the Lessor and to the Agent promptly after the receipt of such notice.

(d) In the event of a Casualty or a Condemnation (regardless of whether notice thereof must be given pursuant to paragraph (c)), this Lease shall terminate with respect to the applicable Property in accordance withSection 16.1 if Lessee, within thirty (30) days after such occurrence, delivers to Lessor and the Agent a Termination Notice to such effect.

(e) If, pursuant to thisSection 15.1, this Lease shall continue in full force and effect following a Casualty or Condemnation with respect to the affected Property, Lessee shall, at its sole cost and expense and using, if available, the proceeds of any award, compensation or insurance with respect to such Casualty or Condemnation (including, without limitation, any such award, compensation or insurance which has been received by the Agent and which should be turned over to Lessee pursuant to the

terms of the Operative Agreements, and if not available or sufficient, using its own funds), promptly and diligently repair any damage to the applicable Property caused by such Casualty or Condemnation in conformity with the requirements ofSections 10.1 and11.1, using the as-built plans and specifications or manufacturer’s specifications for the applicable Improvements or Equipment (as modified to give effect to any subsequent Modifications, any Condemnation affecting the Property and all applicable Legal Requirements), so as to restore the applicable Property to substantially the same condition, operation, function and value as existed immediately prior to such Casualty or Condemnation. In such event, title to the applicable Property shall remain with Lessor.

(f) In no event shall a Casualty or Condemnation with respect to which this Lease remains in full force and effect under thisSection 15.1 affect Lessee’s obligations to pay Rent pursuant toSection 3.1.

(g) Notwithstanding anything to the contrary set forth inSection 15.1(a) or Section 15.1(e), if during the Term with respect to a Property a Casualty occurs with respect to such Property or Lessee receives notice of a Condemnation with respect to such Property, and following such Casualty or Condemnation, (i) the applicable Property cannot reasonably be restored, repaired or replaced on or before the 180th day prior to the Expiration Date to substantially the same condition as existed immediately prior to such Casualty or Condemnation, or (ii) on or before such day such Property is not in fact so restored, repaired or replaced, then Lessee shall be required to purchase such Property on the next Payment Date and pay Lessor the Termination Value for such Property, plus any and all Rent then due and owing, plus all other amounts then due and owing (including without limitation amounts described in clauseFIRST ofSection 22.2).

15.2Environmental Matters. Promptly upon Lessee’s actual knowledge of the presence of Hazardous Substances in any portion of any Property (or in any other property that is not subject to this Lease if Lessee has reason to believe that such Hazardous Substances may be caused by an emission from or on, or a condition on, any Property) in concentrations and conditions that constitute an Environmental Violation and as to which, in the reasonable opinion of Lessee, the cost to undertake any legally required response, clean up, remedial or other action might result in a cost to Lessee or loss in the value of such Property of more than $100,000, Lessee shall notify Lessor in writing of such condition. In the event of any Environmental Violation (regardless of whether notice thereof must be given to Lessor pursuant to the preceding sentence), Lessee shall, not later than sixty (60) days after Lessee has actual knowledge of such Environmental Violation, either deliver to Lessor a Termination Notice with respect to the applicable Property or Properties pursuant toSection 16.1, if applicable, or, at Lessee’s sole cost and expense, promptly and diligently undertake and complete any response, clean up, remedial or other action necessary to remove, cleanup or remediate the Environmental Violation in accordance with all Environmental Laws. If Lessee does not deliver a Termination Notice with respect to such Property pursuant toSection 16.1, Lessee shall, upon completion of remedial action by Lessee, cause to be prepared by a reputable environmental consultant acceptable to Lessor a report describing the Environmental Violation and the actions taken by Lessee (or its agents) in response to such Environmental Violation, and a statement by the consultant that the Environmental Violation has been remedied in full compliance with applicable Environmental Law.

15.3Notice of Environmental Matters. Promptly, but in any event within thirty (30) days from the date Lessee has actual knowledge thereof, Lessee shall provide to Lessor written notice of any pending or threatened Environmental Claim involving any Environmental Law or any Release on or in connection with any Property. All such notices shall describe in reasonable detail the nature of the claim, action or proceeding and Lessee’s proposed response thereto. In addition, Lessee shall provide to Lessor, within five (5) Business Days of receipt, copies of all material written communications with any Governmental Authority relating to any Environmental Law in connection with any Property. Lessee shall also promptly provide such detailed reports of any such material Environmental Claims as may reasonably be requested by Lessor.

ARTICLE XVI

16.1Termination Upon Certain Events. If any of the following occur: (i) if the requirements ofSection 15.1(c) are satisfied, or (ii) if the requirements ofSection 15.1(d) are satisfied and Lessee has determined pursuant to such section that following the applicable Casualty or Condemnation this Lease shall terminate with respect to the affected Property, or (iii) Lessee has determined pursuant to the second sentence ofSection 15.2 that, due to the occurrence of an Environmental Violation, this Lease shall terminate with respect to the affected Property, then Lessee shall be obligated to deliver, within sixty (60) days of its receipt of notice of the applicable Condemnation or the occurrence of the applicable Casualty or Environmental Violation, a written notice to the Lessor in the form described inSection 16.2(a) (a “Termination Notice”) of the termination of this Lease with respect to the applicable Property.

16.2Procedures.

(a) A Termination Notice shall contain: (i) notice of termination of this Lease with respect to the affected Property on a Payment Date not more than sixty (60) days after Lessor’s receipt of such Termination Notice (the “Termination Date”); and (ii) a binding and irrevocable agreement of Lessee to pay the Termination Value for the applicable Property, any and all Rent then due and owing and all other amounts then due and owing from Lessee under any of the Operative Agreements (including without limitation amounts described in clauseFIRST ofSection 22.2) and purchase such Property on such Termination Date.

(b) On each Termination Date, Lessee shall pay to Lessor the Termination Value for the applicable Property, any and all Rent then due and owing and all other amounts then due and owing from Lessee under any of the Operative Agreements (including without limitation amounts described in clauseFIRST ofSection 22.2), and Lessor shall convey such Property, or the remaining portion thereof, if any, to Lessee (or Lessee’s designee), all in accordance withSection 19.1.

ARTICLE XVII

17.1Lease Events of Default. If any one or more of the following events (each a “Lease Event of Default”) shall occur:

(a) Lessee shall fail to make payment of (i) any Basic Rent on the date the same is due or (ii) any Termination Value or Maximum Residual Guaranty Amount, on the date any such payment is due, or any payment of Basic Rent or Supplemental Rent due on the due date of any such payment of Termination Value or Maximum Residual Guaranty Amount, or any amount due on the Expiration Date;

(b) Lessee shall fail to make payment of any Supplemental Rent (other than Supplemental Rent referred to inSection 17(a)(ii)) due and payable within three (3) days after receipt of notice that such payment is due;

(c) Lessee shall fail to maintain insurance of the types, in the respective amounts and coverages, with the respective loss payees, additional insureds and insurors required byArticle XIV of this Lease;

(d) Lessee or any Guarantor shall fail to observe or perform any term, covenant or provision (including without limitation the Incorporated Covenants) under this Lease or any other Operative Agreement to which Lessee or such Guarantor is a party other than those set forth inSections 17.1(a), (b) (c) or(g) hereof, and such failure shall remain uncured for a period of thirty (30) days after the earlier of receipt of written notice from Lessor thereof or a Responsible Officer of Lessee becomes aware of such failure;

(e) The breach of any financial covenant or negative covenant set forth or incorporated by reference inSection 10.3A of the Participation Agreement (including without limitation any covenant set forth in Article VII or Article VIII of the Amended Tech Data Credit Agreement, to the extent incorporated by reference inSection 10.3A of the Participation Agreement);

(f)Other Defaults. The Lessee or any Guarantor fails to perform or observe any other covenant or agreement (not specified in subsection (a) through (e) above) contained in any Operative Agreement on its part to be performed or observed and such failure continues for 30 days;

(g)Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Lessee or any Guarantor herein, in any other Operative Agreement, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;

(h)Cross-Default. (i) The Lessee, any Guarantor 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 Lessee 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 Lessee, such Guarantor or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Lessee, such Guarantor 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; or (v) 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;

(i)Insolvency Proceedings, Etc. The Lessee, any Guarantor or any of their 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 the Operative Agreements and not involving (i) the bankruptcy, insolvency, or any failure to pay obligations of such Subsidiary, the Lessee 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 thisclause (i);

(j)Inability to Pay Debts; Attachment. (i) The Lessee 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;

(k)Judgments. There is entered against the Lessee, any Guarantor 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 inSection 7.07 of the Amended Tech Data Credit Agreement 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;

(l)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 Lessee 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 Lessee 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;

(m)Invalidity of Loan Documents. Any Operative Agreement, 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 Lessee or any Guarantor contests in any manner the validity or enforceability of any Operative Agreement; or Lessee or any Guarantor denies that it has any or further liability or obligation under any Operative Agreement, or purports to revoke, terminate or rescind any Operative Agreement;

(n)Change of Control. There occurs any Change of Control with respect to the Lessee;

(o) Any material Environmental Violation shall have occurred and be continuing; or

(p) Any material adverse change in (i) the business, condition (financial or otherwise) assets, liabilities or operations of Tech Data or any of its Subsidiaries, (ii) the ability of the Lessee or any of their Subsidiaries to perform its respective obligations

under any Operative Agreement to which it is a party, or (iii) the validity, priority or enforceability of any Lien on any Property created by any of the Operative Agreements,

then, in any such event, Lessor may, in addition to the other rights and remedies provided for in thisArticle XVII and inSection 18.1, terminate this Lease by giving Lessee fifteen (15) days notice of such termination, and this Lease shall terminate, and all rights of Lessee under this Lease shall cease. Lessee shall, to the fullest extent permitted by law, pay as Supplemental Rent all costs and expenses incurred by or on behalf of Lessor, including without limitation reasonable fees and expenses of counsel, as a result of any Lease Event of Default hereunder.

17.2Surrender of Possession. If a Lease Event of Default shall have occurred and be continuing, and whether or not this Lease shall have been terminated pursuant toSection 17.1, Lessee shall, upon thirty (30) days written notice, surrender to Lessor possession of the Properties. Lessor may enter upon and repossess the Properties by such means as are available at law or in equity, and may remove Lessee and all other Persons and any and all personal property and Lessee’s equipment and personalty and severable Modifications from the Properties. Lessor shall have no liability by reason of any such entry, repossession or removal performed in accordance with applicable law. Upon the written demand of Lessor, Lessee shall return the Properties promptly to Lessor, in the manner and condition required by, and otherwise in accordance with the provisions of,Section 22.1(c) hereof. During the five (5) days immediately following the repossession of any Property by the Lessor pursuant toSection 17.2, Lessee may, under the supervision of the Lessor and during business hours, remove Lessee’s equipment and personalty and Severable Improvements not funded with the proceeds of Fundings.

17.3Reletting. If a Lease Event of Default shall have occurred and be continuing, and whether or not this Lease shall have been terminated pursuant toSection 17.1, Lessor may, but shall be under no obligation to, relet any or all of the Properties, for the account of Lessee or otherwise, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) and on such conditions (which may include concessions or free rent) and for such purposes as Lessor may determine, and Lessor may collect, receive and retain the rents resulting from such reletting. Lessor shall not be liable to Lessee for any failure to relet any Property or for any failure to collect any rent due upon such reletting.

17.4Damages. Neither (a) the termination of this Lease as to all or any of the Properties pursuant toSection 17.1; (b) the repossession of all or any of the Properties; nor (c) the failure of Lessor to relet all or any of the Properties, the reletting of all or any portion thereof, nor the failure of Lessor to collect or receive any rentals due upon any such reletting, shall relieve Lessee of its liabilities and obligations hereunder, all of which shall survive any such termination, repossession or reletting. If any Lease Event of Default shall have occurred and be continuing and notwithstanding any termination of this Lease pursuant toSection 17.1, Lessee shall forthwith pay to Lessor all Rent and other sums due and payable hereunder to and including the date of such termination. Thereafter, on the days on which the Basic Rent or Supplemental Rent, as applicable, are payable under this Lease or would have been payable under this Lease if the same had not been terminated pursuant toSection 17.1 and until the end of the Term hereof or what would have been the Term in the absence of such termination, Lessee shall pay Lessor,

as current liquidated damages (it being agreed that it would be impossible accurately to determine actual damages) an amount equal to the Basic Rent and Supplemental Rent that are payable under this Lease or would have been payable by Lessee hereunder if this Lease had not been terminated pursuant toSection 17.1, provided that Lessee’s obligation to make payments of Basic Rent and Supplemental Rent under thisSection 17.4 shall continue only so long as Lessor shall not have received the amounts specified inSection 17.5. The amount of Lessee’s liabilities and obligations under this Lease shall not be reduced or offset by any proceeds Lessor may receive from any reletting of any Property,except that the net proceeds, if any, which are actually received by Lessor from reletting of any Property shall be offset against the final liquidated damages amount specified inSection 17.5. In calculating the amount of such net proceeds from reletting, there shall be deducted all of Lessor’s, the Agent’s and any Financing Party’s reasonable expenses in connection therewith, including repossession costs, brokerage or sales commissions, fees and expenses of counsel and any necessary repair or alteration costs and expenses incurred in preparation for such reletting. To the extent Lessor receives any damages pursuant to thisSection 17.4, such amounts shall be regarded as amounts paid on account of Rent. Lessee specifically acknowledges and agrees that its obligations under thisSection 17.4 shall be absolute and unconditional under any and all circumstances and shall be paid or performed, as the case may be, without notice or demand and without any abatement, reduction, diminution, setoff, defense, counterclaim or recoupment whatsoever.

17.5Final Liquidated Damages. If a Lease Event of Default shall have occurred and be continuing, whether or not this Lease shall have been terminated pursuant toSection 17.1 and whether or not Lessor shall have collected any current liquidated damages pursuant toSection 17.4, Lessor shall have the right to recover, by demand to Lessee and at Lessor’s election, and Lessee shall pay to Lessor, as and for final liquidated damages, but exclusive of the indemnities payable underSection 13 of the Participation Agreement, and in lieu of all current liquidated damages beyond the date of such demand (it being agreed that it would be impossible accurately to determine actual damages) the sum of (a) the Termination Value for all Properties remaining under this Lease,plus (b) all other amounts owing in respect of Rent, Supplemental Rent and other amounts then due and payable by Lessee under this Lease or any other Operative Agreement. It is intended and agreed that the foregoing amount is and will be liquidated damages and not a penalty. Upon payment of the amount specified pursuant to the first sentence of thisSection 17.5, Lessee shall be entitled to receive from Lessor, either at Lessee’s request or upon Lessor’s election, in either case at Lessee’s cost, an assignment of Lessor’s entire right, title and interest in and to the Properties, the Improvements, Fixtures, Modifications and Equipment, in each case in recordable form and otherwise in conformity with local custom and free and clear of the Lien of this Lease (including the release of any memoranda of Lease or the Lease Supplement recorded in connection therewith) and any Lessor Liens. The Properties shall be conveyed to Lessee “AS IS” “WHERE IS” and in their then present physical condition. If any statute or rule of law shall limit the amount of such final liquidated damages to less than the amount agreed upon, Lessor shall be entitled to the maximum amount allowable under such statute or rule of law;provided,however, Lessee shall not be entitled to receive an assignment of Lessor’s interest in the Properties, the Improvements, Fixtures, Modifications or Equipment or documents unless Lessee shall have paid in full the Termination Value and all other amounts due and owing by Lessee hereunder and under the other Operative Agreements. Lessee specifically acknowledges and agrees that its obligations under thisSection 17.5 shall be absolute and unconditional under any and all circumstances and shall be paid or performed, as the case may

be, without notice or demand (except as otherwise specifically provided herein) and without any abatement, reduction, diminution, setoff, defense, counterclaim or recoupment whatsoever.

17.6Waiver of Certain Rights. If this Lease shall be terminated pursuant toSection 17.1, Lessee waives, to the fullest extent permitted by law, (a) any notice of re-entry or the institution of legal proceedings to obtain re-entry or possession; (b) any right of redemption, re-entry or possession; (c) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt; and (d) any other rights which might otherwise limit or modify any of Lessor’s rights or remedies under thisArticle XVII.

17.7Assignment of Rights Under Contracts. If a Lease Event of Default shall have occurred and be continuing, and whether or not this Lease shall have been terminated pursuant toSection 17.1, Lessee shall upon Lessor’s demand immediately assign, transfer and set over to Lessor all of Lessee’s right, title and interest in and to each agreement executed by Lessee in connection with the purchase, construction, development, use or operation of the Properties (including, without limitation, all right, title and interest of Lessee with respect to all warranty, performance, service and indemnity provisions), as and to the extent that the same relate to the purchase, construction, use and operation of the Properties.

17.8Environmental Costs. If a Lease Event of Default shall have occurred and be continuing, and whether or not this Lease shall have been terminated pursuant toSection 17.1, Lessee shall pay directly to any third party (or at Lessor’s election, reimburse Lessor) for the cost of any environmental testing or remediation work undertaken respecting any Property as such testing or work is deemed appropriate in the reasonable judgment of Lessor. Lessee shall pay all amounts referenced in the immediately preceding sentence immediately upon the request by Lessor for such payment.

17.9Remedies Cumulative. The remedies herein provided shall be cumulative and in addition to (and not in limitation of) any other remedies available at law, equity or otherwise, including, without limitation, any mortgage foreclosure remedies.

17.10Notice of Default or Event of Default. Lessee shall promptly notify the Lessor and the Agent if any Responsible Officer of Lessee has received notice, or has actual knowledge, of any Default or Event of Default.

17.11Lessee’s Option to Cure by Purchase of All Properties. Notwithstanding anything in this Lease or in any of the other Operative Agreements to the contrary, the Lessee may cure a Lease Event of Default by purchasing all (but not less than all) of the Properties, such purchase to be consummated in accordance withSections 19.1 and20.1, except that such purchase must be consummated not more than 10 days after Lessee gives notice to the Agent and the Lessor of Lessee’s option to purchase the Properties The purchase price for the Properties shall be as set forth inSection 20.1, and shall include without limitation the Termination Value for all of the Properties and all Rent then due and owing and all other amounts then due and owing by the Lessee under this Lease or under any other Operative Agreement (including without limitation (a) any compensation that may be required pursuant toSection 13.3(b) or13.4 of Participation Agreement, and (b) amounts, if any, described in clauseFIRST ofSection 22.2).

17.12Liability Limited. Notwithstanding the provisions ofSection 17.5, the Lessee’s recourse liability to Lessor as a consequence of the occurrence of a Limited Event of Default shall be limited to the payment by the Lessee of the Maximum Residual Guaranty Amount; provided, however if Lessee or any Guarantor agrees or acknowledges in writing that an Event of Default has occurred, then the Lessor shall be entitled to exercise any of the remedies set forth in theSection 17.5.

ARTICLE XVIII

18.1Lessor’s Right to Cure Lessee’s Lease Defaults. Lessor, without waiving or releasing any obligation or Lease Event of Default, may (but shall be under no obligation to) remedy any Lease Event of Default for the account and at the sole cost and expense of Lessee, including the failure by Lessee to maintain the insurance required byArticle XIV, and may, to the fullest extent permitted by law, and notwithstanding any right of quiet enjoyment in favor of Lessee, enter upon any Property, or real property owned or leased by Lessee, take all such action thereon as may be necessary or appropriate therefor, and inspect or copy any records relating to any Property or the transactions contemplated hereby (and Lessee shall make available to Lessor, for inspection thereof, any such records). No such entry shall be deemed an eviction of any lessee. All reasonable out-of-pocket costs and expenses so incurred (including without limitation reasonable fees and expenses of counsel), together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid by Lessor, shall be paid by Lessee to Lessor on demand.

ARTICLE XIX

19.1Provisions Relating to Lessee’s Exercise of its Purchase Option. Subject toSection 19.2, in connection with any termination of this Lease with respect to any Property pursuant to the terms ofSection 16.1, or in connection with Lessee’s exercise of its Purchase Option or its option to purchase any Property pursuant toSection 20.1, upon the date on which this Lease is to terminate with respect to a Property or all of the Properties in any Pool, and upon tender by Lessee of the amounts set forth inSections 16.2(b) or20.1, as applicable, Lessor shall execute and deliver to Lessee (or to Lessee’s designee) at Lessee’s cost and expense a special warranty deed and quit claim bill of sale with respect to the applicable Property, in each case in recordable form and otherwise in conformity with local custom and free and clear of the Lien of this Lease and any Lessor Liens attributable to Lessor but without any other warranties (of title or otherwise) from the Lessor. The Lessor’s interest in the applicable Property shall be conveyed to Lessee (or to Lessee’s designee) “AS IS” “WHERE IS” and in then present physical condition. In addition, Lessor shall, upon Lessee’s request and at Lessee’s expense, execute and deliver any documents (including any appropriate releases of or amendments to financing statements or recorded memoranda of this Lease) necessary to release the Lien of this Lease on the applicable Property.

19.2No Termination With Respect to Less than All of a Property. Lessee shall not be entitled to exercise its Purchase Option separately with respect to Property consisting of Land, Equipment and Improvements but shall be required to exercise its Purchase Option with respect to an entire Property.

ARTICLE XX

20.1Purchase Prior to End of Term; Purchase, Renewal or Sale Option; Purchase of Excess Land.

(a)Purchase Option Prior to End of Term. Provided that (subject toSection 17.11) no Default or Event of Default shall have occurred and be continuing and provided that the Election Notice referred to in Section 20.1(b) has not been delivered, Lessee shall have the option, exercisable by giving the Agent and Lessor no less than thirty (30) days written notice of Lessee’s election to exercise such option, to purchase any Property, on the date identified in such written notice, at a price equal to the Termination Value for such Property and all Rent then due and owing and all other amounts then due and owing (by the Lessee) under this Lease or under any other Operative Agreement with respect to such Property and as a result of such Purchase (including without limitation amounts, if any, described in clauseFIRST ofSection 22.2) (which the parties do not intend to be a “bargain” purchase price); and, upon receipt of such amount, Lessor shall transfer to Lessee (or Lessee’s designee) all Lessor’s right, title and interest in and to such Property in accordance withSection 19.1 as of the Business Day on which such purchase occurs;provided that the Lessee may not purchase more than four Properties pursuant to thisSection 20.1(a). For the avoidance of doubt Lessee may purchase Properties pursuant to thisSection 20.1(a) in one or more transactions and the purchase of Excess Land shall not constitute a purchase of a Property pursuant to thisSection 20.1(a).

(b)Purchase, Renewal or Sale Option at End of Term. (i) Not less than nine months prior to the Expiration Date, Lessee may give Lessor and Agent irrevocable written notice (a “Renewal Notice”) that Lessee is electing to exercise the option to renew the Lease with respect to all but not less than all, of the Properties on such Expiration Date (pursuant toSection 21.1 the “Renewal Option”) or (ii) provided that no notice pursuant toclause (i) above shall have been delivered and the Financing Parties shall have agreed to renew the Lease, not less than 180 days prior to the Expiration Date, Lessee may give Lessor and Agent irrevocable written notice (the “Election Notice”) that Lessee is electing to exercise either (a) the option to purchase all, but not less than all, of the Properties in any Pool on such Expiration Date (the “Purchase Option”) or (b) the option to remarket all of the Properties in any Pool and cause a sale of all of the Properties in such Pool pursuant to the terms ofSection 22.1 (the “Sale Option”), such sale to occur on such Expiration Date. If Lessee does not give an Election Notice or Renewal Notice as set forth above, then Lessee shall be deemed to have elected the Purchase Option for the Expiration Date. Lessor shall have no obligation to sell any Property unless all of the Properties in the related Pool are sold on the Expiration Date. If Lessee shall (i) elect (or be deemed to elect) to exercise the Purchase Option, or (ii) elect to remarket all of the Properties in a Pool pursuant toSection 22.1 and fail to deliver the environmental report required bySection 10.2 at the time specified in such Section or fail to comply with its other obligations underSection 22.1, then in each case, Lessee shall pay to Lessor on the Expiration Date an amount (the “Purchase Option Price”) equal to the Termination Value for all the Properties in such Pool (which the parties do not intend to be a “bargain” purchase) plus all Rent and other amounts then due and payable (by

Lessee) under this Lease or under any other Operative Agreement (including without limitation the amounts described in clauseFIRST ofSection 22.2) with respect to such Pool, and, upon receipt of such amount, Lessor shall transfer to Lessee (or Lessee’s designee) all of Lessor’s right, title and interest in and to the Properties in such Pool in accordance withSection 19.1 and the Term of this Lease shall terminate. Lessee may not elect the Sale Option, and Lessor shall have no obligation to sell any Property pursuant toSection 22.1, if a Lease Event of Default has occurred and is continuing on the date of the Election Notice or the Sale Date.

(c)Purchase of Excess Land. Provided that (subject toSection 17.11) no Default or Event of Default shall have occurred and be continuing and provided that the Election Notice referred to in Section 20.1(b) has not been delivered, Lessee shall have the option, exercisable by giving the Agent and Lessor no less than thirty (30) days written notice of Lessee’s election to exercise such option, to purchase any Excess Land, on the date identified in such written notice, at a price equal to the Excess Land Purchase Price for such Excess Land (which the parties do not intend to be a “bargain” purchase price) plus any amounts due to any Financing Party pursuant toSection 13.3 of the Participation Agreement as a result of such Purchase; and, upon receipt of such amount, Lessor shall transfer to Lessee (or a third party designated by the Lessee) all Lessor’s right, title and interest in and to such Excess Land in accordance withSection 19.1 as of the Business Day on which such purchase occurs and upon such purchase such Excess Land shall no longer constitute part of the related Property.

ARTICLE XXI

21.1Renewal. Subject to the conditions set forth herein, Lessee may, by written notice to Lessor and the Agent given not later than nine (9) months, prior to the Expiration Date, request to renew this Lease for all, but not less than all, Properties for up to five (5) additional years (each such additional period, a “Renewal Term”), commencing on the date following such Expiration Date; provided that the Term, including all Renewal Terms, shall not exceed ten (10) years. No later than the date that is ninety (90) days after the date the request to renew has been delivered to each of Lessor and the Agent, the Agent will notify Lessee whether or not Lessor and the Financing Parties consent to such renewal request (which consent may be granted or denied in the Lessor’s and each Financing Party’s sole discretion and may be conditioned on such conditions precedent as may be specified by Lessor or such Financing Party). If the Agent fails to respond in such time frame, such failure shall be deemed to be a rejection of such request.

ARTICLE XXII

22.1Sale Procedure.

(a) During the Marketing Period, Lessee, on behalf of the Lessor, shall use commercially reasonable efforts to obtain bids for the cash purchase of all of the Properties in the related Pool in connection with a sale to one or more purchasers (other than Lessee or any Subsidiary or Affiliate of Lessee) to be consummated on the Expiration Date for the highest price available, shall notify Lessor promptly of the name and address of each prospective purchaser and the cash price which each prospective

purchaser shall have offered to pay for any Property and shall provide Lessor with such additional information about the bids and the bid solicitation procedure as Lessor may reasonably request from time to time. Lessor may reject any and all bids and may assume sole responsibility for obtaining bids by giving Lessee written notice to that effect;provided,however, that notwithstanding the foregoing, Lessor may not reject the highest bid for any Property in such Pool submitted by the Lessee if (i) such bid is greater than or equal to the sum of the Limited Recourse Amount for such Property, plus all reasonable costs and expenses referred to in clauseFIRST ofSection 22.2, and represents a bona fide offer from one or more third party purchasers, and (ii) prior to Lessor’s acceptance of any such bid, Lessee has delivered to the Agent cash collateral in an amount not less than the anticipated Deficiency Balance (as defined inSection 22.1(b) below) as determined by the Agent. If the price which a prospective purchaser shall have offered to pay for any Property is less than the sum of the Limited Recourse Amount for such Property plus all reasonable costs and expenses referred to in clauseFIRST ofSection 22.2, Lessor may elect to retain such Property by giving Lessee prior written notice of Lessor’s election to retain such Property, and upon receipt of such notice, Lessee shall surrender such Property to Lessor pursuant toSection 10.1. Unless Lessor shall have elected to retain any Property pursuant to the preceding sentence, Lessee shall arrange for Lessor to sell the Properties in the related Pool free and clear of the Lien of this Lease and any Lessor Liens attributable to it, without recourse or warranty (of title or otherwise), for cash on the last day of the Marketing Period (such date being hereafter referred to as the “Sale Date”) to the purchaser or purchasers identified by Lessee or Lessor, as the case may be;provided,however, solely as to Lessor, any Lessor Lien shall not constitute a Lessor Lien so long as Lessor is diligently contesting such Lessor Lien by appropriate proceedings in good faith; andprovided further that Lessor shall have no obligation to sell any Property if a Lease Event of Default has occurred and is continuing on the date of the Election Notice or the Sale Date. Lessee shall surrender the Property so sold or subject to such documents to each purchaser in the condition specified inSection 10.1. Lessee shall not take or fail to take any action which would have the effect of unreasonably discouraging bona fide third party bids for any Property. Lessor shall have no obligation to sell any Property on the Sale Date unless Lessor has received full payment therefor in cash in the amount required pursuant to thisSection 22.1 on the Sale Date.

(b) If any Property in the related Pool is sold on the Sale Date in accordance with the terms ofSection 22.1(a) and the purchase price paid for such Property minus the sum of all costs and expenses referred to in clauseFIRST ofSection 22.2 is less than the Termination Value for such Property plus all Rent and other amounts then due and payable by the Lessee under this Lease and under any other Operative Agreements with respect to such Property (hereinafter such difference shall be referred to as the “Deficiency Balance”), then the Lessee hereby unconditionally promises to pay to the Lessor on the Sale Date the lesser of (i) the Deficiency Balance, or (ii) the Maximum Residual Guarantee Amount for such Property. If any Property in such Pool is retained by the Lessor pursuant to an affirmative election made by the Lessor pursuant to the third sentence ofSection 22.1(a) or is not sold (subject to the Lessee’s having satisfied its obligations under thisSection 22.1), then the Lessee hereby unconditionally promises to

pay to the Lessor on the Sale Date an amount equal to the Maximum Residual Guarantee Amount for such Property.

(c) In the event that the Properties in the related Pool are either sold to one or more third party purchasers on the Sale Date or retained by the Lessor, then in either case on the Sale Date (i) the Lessee shall provide Lessor or such third party purchasers with (A) all permits, certificates of occupancy, governmental licenses and authorizations necessary to use and operate such Property for its intended purposes, (B) such easements, licenses, rights-of-way and other rights and privileges in the nature of an easement as are reasonably necessary or desirable in connection with the use, repair, access to or maintenance of such Property for its intended purpose or otherwise as the Lessor shall reasonably request, and (C) a services agreement covering such services as Lessor or such third party purchaser may request in order to use and operate a Property for its intended purposes at such rates (not in excess of arm’s-length fair market rates) as shall be acceptable to Lessee and Lessor or such third party purchaser, and (ii) the Term of this Lease shall terminate with respect to each Property in such Pool. All assignments, licenses, easements, agreements and other deliveries required byclauses (i)(A) and(B) of thisparagraph (c) shall be in form reasonably satisfactory to the Lessor or such third party purchaser, as applicable, and shall be fully assignable (including both primary assignments and assignments given in the nature of security) without payment of any fee, cost or other charge.

22.2Application of Proceeds of Sale. The Lessor shall apply the proceeds of sale of any Property in the following order of priority:

(a)FIRST, to pay or to reimburse Lessor for the payment of all reasonable costs and expenses incurred by Lessor in connection with the sale;

(b)SECOND, so long as the Participation Agreement or the Credit Agreement is in effect and any Loan, Lessor Advance or any other amount is owing to the Financing Parties, the Lessor or any other Person under any Operative Agreement, to the Agent to be applied in accordance with the terms (including the inter-creditor provisions among the Financing Parties and the Lessor) contained in the Operative Agreements; and

(c)THIRD, to the Lessee.

22.3Indemnity for Excessive Wear. If the proceeds of the sale described inSection 22.1 with respect to any Property, less all expenses incurred by Lessor in connection with such sale, shall be less than the Limited Recourse Amount with respect to such Property, and at the time of such sale it shall have been reasonably determined (pursuant to the Appraisal Procedure) that the Fair Market Sales Value of the Property, shall have been impaired by greater than expected wear and tear during the term of the Lease, Lessee shall pay to Lessor within ten (10) days after receipt of Lessor’s written statement (i) the amount of such excess wear and tear determined by the Appraisal Procedure or (ii) the amount of the Net Sale Proceeds Shortfall, whichever amount is less.

22.4Appraisal Procedure. For determining the Fair Market Sales Value of any Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the “Appraisal Procedure”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two qualified appraisers, one chosen by Lessee and one chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two appraisers or, failing agreement as to such third appraiser within (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two shall be discarded and such average shall be binding on Lessor and Lessee;provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraisers appointed by Lessee and by Lessor shall be paid by Lessee.

22.5Certain Obligations Continue. During the Marketing Period, the obligation of Lessee to pay Rent with respect to the Properties in the related Pool (including the installment of Basic Rent due on the Expiration Date) shall continue undiminished until payment in full to Lessor of the sale proceeds, if any, the Maximum Residual Guarantee Amount, the amount due underSection 22.3, if any, and all other amounts due to Lessor with respect to all Properties in such Pool. Lessor shall have the right, but shall be under no duty, to solicit bids, to inquire into the efforts of Lessee to obtain bids or otherwise to take action in connection with any such sale, other than as expressly provided in thisArticle XXII.

ARTICLE XXIII

23.1 [RESERVED.]

ARTICLE XXIV

24.1Risk of Loss. During the Term, unless Lessee shall not be in actual possession of the Property in question solely by reason of Lessor’s exercise of its remedies of dispossession underArticle XVII, the risk of loss or decrease in the enjoyment and beneficial use of such Property as a result of the damage or destruction thereof by fire, the elements, casualties, thefts, riots, wars or otherwise is assumed by Lessee, and Lessor shall in no event be answerable or accountable therefor.

ARTICLE XXV

25.1Assignment.

(a) (Other than permitting a Subsidiary of Lessee to be an alternative Lessee pursuant toSection 2.5) Lessee may not assign, mortgage, pledge or encumber this Lease

or any of its rights or obligations hereunder in whole or in part to any Person without the prior written consent of the Agent, the Lessor, and the Majority Financing Parties, with such consent to be given or withheld in the sole discretion of each such party.

(b) No such assignment or other relinquishment of possession to any Property shall in any way discharge or diminish any of the obligations of Lessee to Lessor hereunder and Lessee shall remain directly and primarily liable under this Lease.

25.2Subleases.

(a) Except as set forth in thisSection 25.2, Lessee may not sublet any Property or portion thereof without first obtaining the prior written consent of the Lessor and the Agent, which consent may be given or withheld in the sole discretion of each such party.

(b) Lessee may, without the consent of Lessor or the Agent, sublet a Property only if:

(i) Lessee remains fully liable for all obligations (including without limitation all Rent and other obligations with respect to such subleased Properties and any other Properties) under this Lease, each Lease Supplement and the other Operative Agreements;

(ii) Such sublease is in writing and is expressly subject and subordinate to the rights of the Agent and the Financing Parties under this Lease, the Security Agreement, each Mortgage Instrument and all other Operative Agreements; and

(iii) Such sublease is on commercially reasonable terms and at market rates and such Property is at all times used for the purposes set forth in this paragraph and in the definition of “Property.”

(c) No sublease or other relinquishment of possession to any Property shall in any way discharge or diminish any of Lessee’s obligations to Lessor hereunder and Lessee shall remain directly and primarily liable under this Lease as to the Property so sublet.

(d) Each insurance policy carried by Lessee pursuant toArticle XIV hereof shall be endorsed to name each sublessee under any such sublease as an additional insured. Prior to the effectiveness of any such sublease, Lessee shall deliver a copy thereof to the Lessor and the Agent.

(e) Promptly but in any event within five (5) days following the execution and delivery of any sublease permitted by thisArticle XXV, Lessee shall notify Lessor and the Agent of the execution of such sublease. As of the date of each Lease Supplement, Lessee shall lease the respective Properties described in such Lease Supplement from Lessor, and (without limiting the generality ofSections 25.2(a) - (d)) any existing tenant

respecting such Property shall automatically be deemed to be a subtenant of Lessee and not a tenant of Lessor.

ARTICLE XXVI

26.1No Waiver. No failure by Lessor or Lessee to insist upon the strict performance of any term hereof or to exercise any right, power or remedy upon a default hereunder, and no acceptance of full or partial payment of Rent during the continuance of any such default, shall constitute a waiver of any such default or of any such term. To the fullest extent permitted by law, no waiver of any default shall affect or alter this Lease, and this Lease shall continue in full force and effect with respect to any other then existing or subsequent default.

ARTICLE XXVII

27.1Acceptance of Surrender. No surrender to Lessor of this Lease or of all or any portion of any Property or of any part of any thereof or of any interest therein shall be valid or effective unless agreed to and accepted in writing by Lessor and the Agent, and no act by Lessor or the Agent or any representative or agent of Lessor or the Agent, other than a written acceptance, shall constitute an acceptance of any such surrender.

27.2No Merger of Title. There shall be no merger of this Lease or of the leasehold estate created hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, in whole or in part, (a) this Lease or the leasehold estate created hereby or any interest in this Lease or such leasehold estate, (b) any right, title or interest in any Property, (c) any Notes, or (d) a beneficial interest in Lessor.

ARTICLE XXVIII

28.1Notices. Unless otherwise expressly specified or permitted by the terms hereof, all notices, requests, demands, directions, agreements and documents delivered in connection with this Agreement shall be delivered as provided inSection 14.3 of the Participation Agreement.

ARTICLE XXIX

29.1Miscellaneous. Anything contained in this Lease to the contrary notwithstanding, all claims against and liabilities of Lessee or Lessor arising from events commencing prior to the expiration or earlier termination of this Lease shall survive such expiration or earlier termination. If any provision of this Lease shall be held to be unenforceable in any jurisdiction, such unenforceability shall not affect the enforceability of any other provision of this Lease and such jurisdiction or of such provision or of any other provision hereof in any other jurisdiction.

29.2Amendments and Modifications. None of the terms or provisions of this Agreement may be terminated, amended, supplemented, waived or modified except in accordance with the terms ofSection 14.5 of the Participation Agreement.

29.3Successors and Assigns. All the terms and provisions of this Lease shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

29.4Headings and Table of Contents. The headings and table of contents in this Lease are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

29.5Counterparts. This Lease may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same instrument.

29.6GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS, EXCEPT TO THE EXTENT THE LAWS OF THE STATE IN WHICH A PROPERTY IS LOCATED MAY GOVERN MATTERS RELATING TO THE PERFECTION, FORECLOSURE AND ENFORCEMENT OF LIENS ON SUCH PROPERTY.

29.7Calculation of Rent. All calculation of Rent payable hereunder shall be computed based on the actual number of days elapsed over a year of 360 days.

29.8Memoranda of Lease and Lease Supplements. This Lease shall not be recorded; provided Lessor and Lessee shall promptly record a Memorandum of this Lease and of the applicable Lease Supplement (in substantially the form ofExhibit B attached hereto) regarding each Property promptly after the acquisition thereof in the local filing office with respect thereto in all cases at Lessee’s cost and expense, and as required under applicable law to sufficiently evidence this Lease or any such Lease Supplement in the applicable real estate filing records.

29.9Allocations between the Financing Parties. Notwithstanding any other term or provision of this Lease to the contrary, the allocations of the proceeds of the Properties and any and all other Rent and other amounts received hereunder shall be subject to the inter-creditor provisions between the Financing Parties contained in the Operative Agreements (or as otherwise agreed among the Financing Parties from time to time).

29.10Limitations on Recourse. Notwithstanding anything contained in this Lease to the contrary, Lessee agrees to look solely to Lessor’s estate and interest in the Properties for the collection of any judgment requiring the payment of money by Lessor in the event of liability by Lessor, and no other property or assets of Lessor or any shareholder, member, owner or partner (direct or indirect) in or of Lessor, or any manager, director, officer, employee, beneficiary, Affiliate of any of the foregoing shall be subject to levy, execution or other enforcement procedure for the satisfaction of the remedies of Lessee under or with respect to this Lease, the relationship of Lessor and Lessee hereunder or Lessee’s use of the Properties or any other liability of Lessor to Lessee,except to the extent expressly provided inSection 10.2 or14.11(b) of the Participation Agreement. Nothing in this Section shall be interpreted so as to limit the terms ofSections 6.1 or6.2.

29.11WAIVERS OF JURY TRIAL. THE LESSOR AND THE LESSEE IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE OR ANY COUNTERCLAIM THEREIN.

29.12Original Leases.The single executed original of this Lease marked “THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART” on the signature page

thereof and containing the receipt of the Agent therefor on or following the signature page thereof shall be the original executed counterpart of this Lease (the “Original Executed Counterpart”). To the extent that this Lease constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease may be created through the transfer or possession of any counterpart other than the Original Executed Counterpart.

29.13Mortgage Grant and Remedies. Without limiting any other remedies set forth in this Lease, in the event that a court of competent jurisdiction rules that this Lease constitutes a mortgage, deed of trust, security deed or other secured financing, as is the intent of the parties, then the Lessor and the Lessee agree that the Lessee hereby grants, bargains, sells, conveys, mortgages, and grants a security interest in each Property to Lessor WITH POWER OF SALE to secure the payment of all sums due and owing by Lessee hereunder or under any other Operative Agreement, and that, upon the occurrence of any Event of Default, the Lessor shall have the power and authority, to the extent provided by law or the Operative Agreements, after prior notice and lapse of such time as may be required by law, to foreclose its interest (or cause such interest to be foreclosed) in all or any part of any Property, to appoint or obtain the appointment of a receiver for all or any part of the Property, and to exercise any other right or remedy that may be available under applicable law to the holder of a mortgage, deed of trust, security deed or other secured financing.

29.14Exercise of Lessor Rights. The Lessee hereby acknowledges and agrees that the rights and powers of the Lessor under this Lease have been collaterally assigned to the Agent pursuant to the terms of the Security Agreement and the other Operative Agreements, and that the Lessor has encumbered the Properties by various Mortgage Instruments made by the Lessor in favor of the Agent, all as security for certain indebtedness and obligations described therein of the Lessor to the Agent and the Financing Parties under the Operative Agreements. Lessee hereby consents to said assignment and said Mortgage Instruments in favor of the Agent and further acknowledges and agrees as follows:

(a) In the event that a court of competent jurisdiction rules that this Lease constitutes a mortgage, deed of trust, security deed or other secured financing as is the intent of the parties, then the Lessor and the Lessee agree that the Lessor’s collateral assignment of this Lease to the Agent shall be deemed to be a collateral assignment of such mortgage, deed of trust, security deed or other secured financing, and the Agent as such collateral assignee shall be entitled to exercise any and all rights and remedies of the Lessor set forth herein during the existence of any Event of Default, including without limitation the Lessor’s rights to obtain a receiver, to obtain possession of the Properties and the rents and revenues thereof, to foreclose this Lease, to sell the Lessee’s interest in the Properties, and to exercise any other rights or remedies that may then be available to the Lessor under applicable law on account of such Event of Default.

(b) Lessee’s interest in the Properties is junior and subordinate to the lien of any Mortgage Instruments made by the Lessor in favor of the Agent against the respective Properties from time to time in connection with the Operative Agreements; provided, however, that for so long as no Event of Default shall have occurred and be continuing, (i) the Agent shall not disturb Lessee’s possession of the Properties through

any foreclosure or other remedial action against the Properties under any Mortgage Instrument, and (ii) if Lessor’s interest in any Property shall be transferred to any Person other than the Lessee as the result of the Agent’s foreclosure or other remedial action under any Mortgage Instrument, the Lessee shall (upon request of the Agent) attorn to such transferee and recognize the transferee as the Lessee’s landlord under this Lease.

(c) During the existence of an Event of Default, the Agent as holder of the Mortgage Instruments and as collateral assignee of this Lease may exercise any and all rights and remedies that may then be available under applicable law to the Agent in either or both capacities, whether exercised singly, successively or concurrently. Without limiting the generality of the foregoing, the Agent as collateral assignee may enforce the Lessee’s payment obligations under this Lease (regardless of whether this Lease shall be deemed a mortgage, deed of trust, security deed or other secured financing) even if Lessee’s interest and estate in any Property under this Lease shall have been extinguished or forfeited under applicable law through the foreclosure or other enforcement of any Mortgage Instrument.

[Signatures on following page.]

IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed and delivered as of the date first above written.

WITNESSES:		TECH DATA CORPORATION, as Lessee

By:	/s/ Allison Godwin	By:	/s/ Charles V. Dannewitz
Name: Allison Godwin		Name: Charles V. Dannewitz
		Title: Senior Vice President and Treasurer
By:	/s/ Peter D. Kantor Jr.
Name: Peter D. Kantor

WITNESSES:		SUNTRUST EQUITY FUNDING, LLC

By:	/s/ Allison Godwin	By:	/s/ David H. Eidson
Name: Allison Godwin		Name: David H. Eidson
		Title: Senior Vice President
By:	/s/ Peter D. Kantor Jr.
Name: Peter D. Kantor

Receipt of this original counterpart of the foregoing Lease is hereby acknowledged as of the date hereof

SUNTRUST BANK, as Agent

By:
Name:

S-1

				Acknowledged and Agreed to:

WITNESSES:				TECH DATA PRODUCT MANAGEMENT, INC., as an alternative Lessee

By:				By:
Name:				Name: Charles V. Dannewitz
				Title: Senior Vice President and Treasurer
By:
Name:

WITNESSES:				TD FACILITIES, LTD., as an alternative Lessee

By:				By:
Name:				Name: Charles V. Dannewitz
				Title: Senior Vice President and Treasurer
By:
Name:

S-2

[MAY BE MODIFIED, IF AGREEABLE TO LESSEE, LESSOR AND AGENT TO

CONFORM TO REQUIREMENTS OF LOCAL LAW WHERE PROPERTY IS LOCATED]

EXHIBIT A TO THE LEASE

[[SECOND] AMENDED AND RESTATED] LEASE SUPPLEMENT NO.

THIS [[SECOND] AMENDED AND RESTATED] LEASE SUPPLEMENT NO. (this “Lease Supplement”) dated as of [ ] between SUNTRUST EQUITY FUNDING, LLC, as lessor (the “Lessor”), and TECH DATA CORPORATION, as lessee (the “Lessee”).

WHEREAS, the Lessor is the owner or will be the owner of the Property described onSchedule I hereto (the “Leased Property”) and wishes to lease the same to Lessee;

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Definitions; Rules of Usage. For purposes of this Lease Supplement, capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them inAppendix A to the Second Amended and Restated Participation Agreement, dated as of July 31, 2003, among Lessee, the Lessor, the Lenders party thereto, and SunTrust Bank, as Agent for the Lenders (as such agreement may be amended, modified, supplemented or restated from time to time).

SECTION 2. The Properties. Attached hereto as Schedule I is the description of the Leased Property, with an Equipment Schedule attached hereto as Schedule I-A, an Improvement Schedule attached hereto as Schedule I-B and a legal description of the Land for such Project attached hereto as Schedule I-C. Effective upon the execution and delivery of this Lease Supplement by the Lessor and the Lessee, the Leased Property shall be subject to the terms and provisions of the Lease.

SECTION 3. Use of Property. At all times during the Term with respect to each Property, Lessee will comply with all obligations under and (to the extent no Event of Default has occurred and is continuing and provided that such exercise will not impair the value of such Property) shall be permitted to exercise all rights and remedies under, all operation and easement agreements and related or similar agreements applicable to such Property.

SECTION 4. Ratification. Except as specifically modified hereby, the terms and provisions of the Lease and the Operative Agreements are hereby ratified and confirmed and remain in full force and effect.

SECTION 5. Original Lease Supplement. The single executed original of this Lease Supplement marked “THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART” on the signature page thereof and containing the receipt of the Agent therefor on or following the signature page thereof shall be the original executed counterpart of this Lease

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Supplement (the “Original Executed Counterpart”). To the extent that this Lease Supplement constitutes chattel paper, as such term is defined in the Uniform Commercial Code as in effect in any applicable jurisdiction, no security interest in this Lease Supplement may be created through the transfer or possession of any counterpart other than the Original Executed Counterpart.

SECTION 6. GOVERNING LAW. AS TO MATTERS RELATING TO THE CREATION, PERFECTION, AND FORECLOSURE OF LIENS, AND ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST THE LEASED PROPERTY, THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THIS LEASE SUPPLEMENT SHALL IN ALL OTHER RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.

SECTION 7. MORTGAGE GRANT AND REMEDIES. Without limiting any other remedies set forth in the Lease, in the event that a court of competent jurisdiction rules that the Lease constitutes a mortgage, deed of trust, security deed or other secured financing as is the intent of the parties, then the Lessor and the Lessee agree that the Lessee hereby grants, bargains, sells, conveys, mortgages, and grants a security interest in each Property to Lessor WITH POWER OF SALE to secure the payment of all sums due and owing by Lessee or the Construction Agent hereunder or under any other Operative Agreement, and that, upon the occurrence of any Event of Default, the Lessor shall have the power and authority, to the extent provided by law or the Operative Agreements, after prior notice and lapse of such time as may be required by law, to foreclose its interest (or cause such interest to be foreclosed) in all or any part of any Property, to appoint or obtain the appointment of a receiver for all or any part of the Property, and to exercise any other right or remedy that may be available under applicable law to the holder of a mortgage, deed of trust, security deed or other secured financing.

SECTION 8. EXERCISE OF LESSOR RIGHTS. The Lessee hereby acknowledges and agrees that the rights and powers of the Lessor under the Lease have been collaterally assigned to the Agent pursuant to the terms of the Security Agreement and the other Operative Agreements, and that the Lessor has encumbered the Properties by various Mortgage Instruments made by the Lessor in favor of the Agent, all as security for certain indebtedness and obligations described therein of the Lessor to the Agent and the Financing Parties under the Operative Agreements. Lessee hereby consents to said assignment and said Mortgage Instruments in favor of the Agent and further acknowledges and agrees as follows:

(i) In the event that a court of competent jurisdiction rules that the Lease constitutes a mortgage, deed of trust, security deed or other secured financing as is the intent of the parties, then the Lessor and the Lessee agree that the Lessor’s collateral assignment of the Lease to the Agent shall be deemed to be a collateral assignment of such mortgage, deed of trust, security deed or other secured financing, and the Agent as such collateral assignee shall be entitled to exercise any and all rights and remedies of the Lessor set forth herein during the existence of any Event of Default, including without limitation the Lessor’s rights to obtain a receiver, to obtain possession of the Properties and the rents and revenues thereof, to foreclose the Lease, to sell the Lessee’s interest in

A-4

the Properties, and to exercise any other rights or remedies that may then be available to the Lessor under applicable law on account of such Event of Default.

(ii) Lessee’s interest in the Properties is junior and subordinate to the lien of any Mortgage Instruments made by the Lessor in favor of the Agent against the respective Properties from time to time in connection with the Operative Agreements; provided, however, that for so long as no Lease Event of Default shall have occurred and be continuing, (i) except to the extent permitted bySection 5.1 of the Lease, the Agent shall not disturb Lessee’s possession of the Properties through any foreclosure or other remedial action against the Properties under any Mortgage Instrument, and (ii) if Lessor’s interest in any Property shall be transferred to any Person other than the Lessee as the result of the Agent’s foreclosure or other remedial action under any Mortgage Instrument, the Lessee shall (upon request of the Agent) attorn to such transferee and recognize the transferee as the Lessee’s landlord under the Lease.

(iii) During the existence of an Event of Default, the Agent as holder of the Mortgage Instruments and as collateral assignee of the Lease may exercise any and all rights and remedies that may then be available under applicable law to the Agent in either or both capacities, whether exercised singly, successively or concurrently. Without limiting the generality of the foregoing, the Agent as collateral assignee may enforce the Lessee’s payment obligations under the Lease (regardless of whether the Lease shall be deemed a mortgage, deed of trust, security deed or other secured financing) even if Lessee’s interest and estate in any Property under this Lease shall have been extinguished or forfeited under applicable law through the foreclosure or other enforcement of any Mortgage Instrument.

SECTION 9. Counterpart Execution. This Lease Supplement may be executed in any number of counterparts and by each of the parties hereto in separate counterparts, all such counterparts together constituting but one and the same instrument.

[Remainder of page intentionally left blank.]

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[If necessary, modify to put in recordable form.]

IN WITNESS WHEREOF, each of the parties hereto has caused this Lease Supplement to be duly executed by an officer thereunto duly authorized as of the date and year first above written.

SUNTRUST EQUITY FUNDING, LLC, as Lessor

By:
Name:
Title:

LESSEE:

TECH DATA CORPORATION, as Lessee

By:
Name:
Title:

A-6

Receipt of this original counterpart of the foregoing Lease Supplement is hereby acknowledged as the date hereof.

SUNTRUST BANK, as Agent

By:
Name:
Title:

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STATE OF )

) ss:

COUNTY OF )

The foregoing Lease Supplement was acknowledged before me, the undersigned Notary Public, in the County and State aforesaid of this day of , 200 , by , as of SUNTRUST EQUITY FUNDING, LLC, a Delaware limited liability company, on behalf of the limited liability company.

[Notarial Seal]

My commission expires:

Notary Public

STATE OF )

) ss:

COUNTY OF )

The foregoing Lease Supplement was acknowledged before me, the undersigned Notary Public, in the County and State aforesaid this day of , 200 , by , as of TECH DATA CORPORATION, a Florida corporation, on behalf of the corporation.

[Notarial Seal]

My commission expires:

Notary Public

STATE OF )

) ss:

COUNTY OF )

The foregoing Lease Supplement was acknowledged before me, the undersigned Notary Public, in the County and State aforesaid this day of , 200 , by , as of SUNTRUST BANK, a Georgia banking corporation, as Agent.

[Notarial Seal]

My commission expires:

Notary Public

A-8

SCHEDULE I

TO LEASE SUPPLEMENT NO.

A-9

SCHEDULE I-A

TO LEASE SUPPLEMENT NO.

(Equipment)

A-10

SCHEDULE I-B

TO LEASE SUPPLEMENT NO.

(Improvements)

A-11

SCHEDULE I-C

TO LEASE SUPPLEMENT NO.

(Land)

A-12

EXHIBIT B TO THE LEASE

[FORM OF MEMORANDUM OF LEASE AND LEASE SUPPLEMENT]

B-1

EXHIBIT C TO THE LEASE

FORM OF GUARANTY AGREEMENT

(LESSEE OBLIGATIONS)

C-1

ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF

SUNTRUST EQUITY FUNDING, LLC

STATE OF GEORGIA

COUNTY OF

Before me, the undersigned, a Notary Public in and for said County and State on this day of July, 2003 A.D., personally appeared David H. Eidson, known to be the Senior Vice President and Manager of SunTrust Equity Funding, LLC (the “Lessor”), who, being by me duly sworn, says he works at 303 Peachtree Street, Atlanta, Georgia 30308, and that by authority duly given by, and as the act of, the Lessor, the foregoing and annexed Second Amended and Restated Lease Agreement dated as of July 31, 2003, was executed by him in the State and County aforesaid as said Manager on behalf of the Lessor.

Witness my hand and official seal this day of July, 2003.

Notary Public

(SEAL)

My commission expires:

ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF

TECH DATA CORPORATION

STATE OF

COUNTY OF

Before me, the undersigned, a Notary Public in and for said County and State on this day of July, 2003 A.D., personally appeared Charles V. Dannewitz, known to be the Senior Vice President and Treasurer of Tech Data Corporation (the “Lessee”), who being by me duly sworn, says he works at 5350 Tech Data Drive, Clearwater, Florida, and that by authority duly given by, and as the act of, the Lessee, the foregoing and annexed Second Amended and Restated Lease Agreement dated as of July 31, 2003, was executed by him as said the day of July, 2003 on behalf of the Lessee, in the aforesaid State and County.

Witness my hand and official seal this day of July, 2003.

Notary Public

(SEAL)

My commission expires:

AFFIDAVIT OF DAVID H. EIDSON

The undersigned, being first duly sworn, deposes and says that:

1. He is a Senior Vice President and Manager of SunTrust Equity Funding LLC, and works at 303 Peachtree Street, Atlanta, Georgia 30308.

2. Reference is made to the Second Amended and Restated Lease Agreement (the “Lease”) dated as of July 31, 2003, of SunTrust Equity Funding, LLC (the “Lessor”) and Tech Data Corporation (the “Lessee”).

3. The Lease was executed by the undersigned on behalf of the Lessor in Atlanta, Georgia, and delivered by the Lessor to SunTrust Bank as collateral assignee of the Lease to Mayer, Brown, Rowe & Maw, 190 South LaSalle Street, Chicago, IL 60603 as of July , 2003.

This the day of July, 2003.

Name: David H. Eidson

Title: Senior Vice President and Manager

Acknowledgment of Execution

STATE OF GEORGIA

COUNTY OF

Before me, the undersigned, a Notary Public in and for said County and State on this day of July, 2003 A.D., personally appeared who before me affixed his signature to the above Affidavit.

Witness my hand and official seal this day of July, 2003.

Notary Public

(SEAL)

My Commission Expires:

AFFIDAVIT OF CHARLES V. DANNEWITZ

The undersigned, being first duly sworn, deposes and says that:

1. He is a Senior Vice President and Treasurer of Tech Data Corporation, and works at 5350 Tech Data Drive, Clearwater, Florida

3. The Lease was executed by the undersigned on behalf of the Lessee and delivered by the Lessee to the Lessor, the execution occurring in Atlanta, Georgia and the delivery occurring in Chicago, Illinois as of July , 2003.

This the day of July, 2003.


Name:
Title:

Acknowledgment of Execution

STATE OF

COUNTY OF

Before me, the undersigned, a Notary Public in and for said County and State on this day of July, 2003 A.D., personally appeared Charles V. Dannewitz who before me affixed his signature to the above Affidavit.

Witness my hand and official seal this day of July, 2003.

Notary Public

(SEAL)

My Commission Expires:

Positive
Negative
Uncertain
Constraining
Legalese
Litigous
Readability	H.S. freshman Avg

Tech Data (TECD) 10-Q2004 Q2 Quarterly report

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