Settlement Administrator 76. The Parties agree that, subject to Court approval, EAG shall be the Settlement Administrator. The Parties shall jointly oversee the Settlement Administrator. The Settlement Administrator shall fulfill the requirements set forth in the Preliminary Approval Order and the Agreement and comply with all applicable laws, including, but not limited to, the Due Process Clause of the United States Constitution.
77. The Settlement Administrator shall administer various aspects of the Settlement as described in the next paragraph and perform such other functions as are specified for the Settlement Administrator elsewhere in this Agreement, including, but not limited to, effectuating the Notice Program, handling the Claims process, administering the Settlement Fund, and distributing the Cash Payments to Settlement Class Members who submit Valid Claims.
78. The Settlement Administrator’s duties include to:
a. Complete the Court-approved Notice Program by noticing the Settlement Class by Postcard Notice, sending Long Form Notices and paper Claim Forms on request from individuals in the Settlement Class, reviewing Claim Forms, notifying Claimants of deficient Claim Forms using the Notice of Deficiency, and sending Settlement Class Member Benefits to Settlement Class Members who submit a Valid Claim;
b. Establish and maintain the Settlement Fund in the Escrow Account approved by the Parties;
c. Establish and maintain a post office box to receive opt-out requests from the Settlement Class and objections from Settlement Class Members, and Claim Forms;
d. Establish and maintain the Settlement Website to provide important information about the Settlement and allow electronic submission of Claim Forms;
e. Establish and maintain an automated toll-free telephone line for the Settlement Class to call with Settlement-related inquiries, and answer frequently asked questions of individuals in the Settlement Class who call with or otherwise communicate such inquiries;
f. Respond to any mailed Settlement Class member inquiries;
g. Process all opt-out requests from the Settlement Class;
h. Provide weekly reports to Class Counsel and Defendant’s Counsel that summarize the number of Claims submitted, Claims approved and rejected, Notices of Deficiency sent, opt-out requests and objections received that week, the total number of opt-out requests and objections received to date, and other pertinent information;
i. In advance of the Final Approval Hearing, prepare a declaration confirming the Notice Program was completed in accordance with the terms of this Agreement and the Preliminary Approval Order, describing how the Notice Program was completed, indicating the number of Claim Forms received, providing the names of each individual in the Settlement Class who timely and properly requested to opt-out from the Settlement Class, indicating the number of objections received, and other information as may be necessary to allow the Parties to seek and obtain Final Approval;
j. Distribute, out of the Settlement Fund, Cash Payments by electronic means or by paper check;
k. Send Settlement Class Members who elect Credit Monitoring emails instructing how to activate their Credit Monitoring service;
l. Pay Court-approved attorneys’ fees and costs, and Service Awards out of the Settlement Fund;
m. Pay Settlement Administration Costs out of the Settlement Fund following approval by Class Counsel; and
n. Any other Settlement Administration function at the instruction of Class Counsel and Defendant’s Counsel, including, but not limited to, verifying that the Settlement Fund has been properly administered and that the Cash Payments have been properly distributed.
79. The Notice Program and Notices will be reviewed and approved by the Settlement Administrator, but may be revised as agreed upon by the Parties prior to submission to the Court for approval. Immaterial revisions to the Notices may also be made prior to dissemination of Notice.
Settlement Class In the event of such dispute, the party raising the dispute shall be limited to seeking declaratory relief, and to no other form of relief. The declaratory relief available as to any such dispute shall be limited to deciding whether (y) the putative buying group is a properly organized bona fide buying group that complies with the requirements of this Paragraph, and/or (z) whether Visa negotiated in good faith with the putative buying group. The parties, including all members of the Rule 23(b)(2) Settlement Class, waive all rights to appeal from any such determinations. Upon resolution of the dispute by the Court, the losing party shall be responsible for all attorneys’ fees and expenses of the prevailing party unless the Court determines that the circumstances make such an award unjust.
Liquidation Settlement Procedures If at any time on or prior to the Termination Date for such Class the Aggregate Percentage Factor is greater than the Maximum Percentage Factor, then the Transferor shall immediately pay to the Administrative Agent, for the benefit of the Class Investors from previously received Collections, an amount equal to the amount such that, when applied in reduction of the Aggregate Net Investment, will result in an Aggregate Percentage Factor less than or equal to the Maximum Percentage Factor. Such amounts shall be applied pro rata to the reduction of the Net Investment for each Class of the Tranche Periods selected by the Class Agent for such Class. With respect to each Class, on the Termination Date for such Class and on each day thereafter, and on each day on which a Termination Event or Potential Termination Event has occurred and is continuing for such Class, the Collection Agent shall set aside and hold in trust for the applicable Class Investors for such Class (or deposit into the Collection Account if so required pursuant to Section 2.12 hereof) the Percentage Factor for such Class of all Collections received on such day and shall set aside and hold in trust for the Transferor such portion of Collections not allocated to the Class Investors. On each such Termination Date or the day on which a Termination Event or Potential Termination Event for such Class for which there is no grace period occurs, the Collection Agent shall deposit to the Administrative Agent’s account, for the benefit of the applicable Class Investors for such Class, any amounts set aside pursuant to Section 2.5 above. With respect to each Class, on the last day of each Tranche Period to occur on or after such Termination Date for such Class or during the continuance of a Termination Event or Potential Termination Event for such Class, the Collection Agent shall deposit to the Administrative Agent’s account to the extent not already so deposited, for the benefit of the Class Investors for such Class, the amounts so set aside for such Class Investors, pursuant to the second preceding sentence, but not to exceed the sum of (i) the accrued Discount (which, in the case of Discount computed by reference to the CP Rate with respect to any Class Conduit that utilizes “pool” funding, shall be determined for such purpose using the CP Rate most recently determined by the related Class Agent, multiplied by the Fluctuation Factor) for such Tranche Period (ii) the portion of the Net Investment allocated to such Tranche Period and (iii) all other Aggregate Unpaids owing to such Class Investors. On such day, the Collection Agent shall deposit to its account, from the amounts set aside for such Class, pursuant to the preceding sentence which remain after payment in full of the aforementioned amounts, the accrued Servicing Fee for such Tranche Period. If there shall be insufficient funds on deposit for the Collection Agent to distribute funds in payment in full of the aforementioned amounts, the Collection Agent shall distribute funds first, if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is not then the Collection Agent, to the Collection Agent’s account, in payment of the Servicing Fee payable to the Collection Agent, second, in payment of all fees payable by the Transferor to the Administrative Agent or any of the Class Investors, third, in payment of the accrued Discount to each Class, fourth, in reduction of the Net Investment allocated to any Tranche Period ending on such date, fifth, in payment of all other Aggregate Unpaids owing to the Class Investors, as applicable, and sixth, if the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is the Collection Agent, to its account as Collection Agent, in payment of the Servicing Fee payable to such Person as Collection Agent. The Administrative Agent, upon its receipt of such amounts in the Administrative Agent’s account, shall distribute such amounts to the Class Investors, each as entitled thereto as set forth above; provided that if the Administrative Agent shall have insufficient funds to pay all of the above amounts in full on any such date, the Administrative Agent shall pay such amounts in the order of priority set forth above and, with respect to any such category above for which the Administrative Agent shall have insufficient funds to pay all amounts owing on such date, ratably (based on the amounts in such categories owing to such Persons) among all such Persons entitled to payment thereof. Following the date after all Termination Dates on which the Aggregate Net Investment has been reduced to zero, all accrued Discount and Servicing Fees have been paid in full and all other Aggregate Unpaids have been paid in full, (i) the Collection Agent shall recompute the Percentage Factor for each Class, (ii) the Administrative Agent, on behalf of the Class Investors, shall be considered to have reconveyed to the Transferor all of the Class Investors’ right, title and interest in and to the Affected Assets (including the Transferred Interest), (iii) the Collection Agent shall pay to the Transferor any remaining Collections set aside and held by the Collection Agent pursuant to the third sentence of this Section 2.6 and (iv) the Administrative Agent, on behalf of the applicable Class Investor(s), shall execute and deliver to the Transferor, at the Transferor’s expense, such documents or instruments as are necessary to terminate the Class Investors’ respective interests in the Affected Assets. Any such documents shall be prepared by or on behalf of the Transferor. On the last day of each Tranche Period, the Collection Agent shall remit to the Transferor such portion of Collections set aside for the Transferor pursuant to this Section 2.6.
The Settlement Following mediation with a neutral party, a Settlement has been reached. As part of the Settlement, a Qualified Settlement Fund of $39,500,000 will be established to resolve the Class Action. The Net Settlement Amount is $39,500,000 minus any Administrative Expenses (including taxes and tax expenses), Court-approved Attorneys’ Fees and Costs, and Class Representative Compensation. The Net Settlement Amount will be allocated to Class Members according to a Plan of Allocation to be approved by the Court.
The Settlement Fund 34. The Escrow Account shall be established as a “qualified settlement fund” as defined in Section 1.468B-1(a) of the U.S. Treasury Regulations or other appropriate escrow account as agreed to by the Settling Parties.
35. After preliminary approval of the Settlement, Co-Lead Counsel may utilize up to $100,000 from the Notice Fund to provide notice of the Settlement to potential members of the Settlement Class and for notice administration, without an order from the Court. The amount spent or incurred for notice and notice administration is not refundable to Settling Defendants in the event the Settlement Agreement is disapproved, rescinded, or otherwise fails to become effective.
36. From the Notice Fund and the Settlement Fund shall be paid the cost of settlement notice, claims administration, class representatives’ incentive awards, attorneys’ fees, reimbursement of all actual expenses of the Action, any other litigation costs of Plaintiffs, and all applicable taxes, if any. The Settling Parties shall have the right to audit amounts paid from the Settlement Fund prior to the final approval of the Settlement.
37. The Settlement Fund shall be invested in United States Government Treasury obligations or United States Treasury money market funds. The Notice Fund may be deposited in a bank account, in which case it will be deposited in a federally insured interest-bearing account.
38. Settling Defendants shall not have any responsibility, financial obligation, or liability whatsoever with respect to the investment, distribution, use, or administration of the Settlement Fund, including, but not limited to, the costs and expenses of such investment, distribution, use or administration except as expressly otherwise provided in this Settlement Agreement.
39. Settling Defendants’ only payment obligation is to pay the Settlement Amount. Settling Defendants shall not be liable for any costs, expenses, or fees of any of Plaintiffs’ respective attorneys, experts, advisors, agents, or representatives. Payment of all such costs, expenses, and fees, as approved by the Court, shall be paid only out of the Settlement Fund or the Opt-Out Fee and Expense Account. No disbursements shall be made from the Notice Fund or the Settlement Fund prior to the Effective Date of this Settlement Agreement except as described in Paragraphs 35 and 36, above.
40. The distribution of the Settlement Fund shall be administered pursuant to a plan of allocation (the “Plan of Allocation”) proposed by Co-Lead Counsel and subject to the approval of the Court. If such approval is not obtained, Co-Lead Counsel shall revise the Plan of Allocation as necessary until approval of the Court is obtained. Settling Defendants shall have no participatory or approval rights with respect to the Plan of Allocation and the Court’s rejection of the Plan of Allocation shall not affect the validity or enforceability of this Settlement Agreement.
41. Settling Defendants will take no position on any application for fees and reimbursement of expenses made by Co-Lead Counsel or by the Settlement Class Members or any application for class representatives’ incentive awards out of the Settlement Fund.