EX-10.1 2 nsit-ex101_17.htm EX-10.1 nsit-ex101_17.htm

EXHIBIT 10.1

 

CREDIT AGREEMENT

 

dated as of

 

August 30, 2019

 

among

 

INSIGHT ENTERPRISES, INC.,

PCM, INC.,

and

THE OTHER U.S. BORROWERS
FROM TIME TO TIME PARTY HERETO,

each, a U.S. Borrower,

 

INSIGHT DIRECT (UK) LTD

and

THE OTHER U.K. BORROWERS
FROM TIME TO TIME PARTY HERETO,

each, a U.K. Borrower

 

INSIGHT ENTERPRISES NETHERLANDS B.V.,

INSIGHT ENTERPRISES B.V.,

and

THE OTHER DUTCH BORROWERS
FROM TIME TO TIME PARTY HERETO,

each, a Dutch Borrower,

 

The Other Loan Parties From Time to Time Party Hereto,

 

The Lenders From Time to Time Party Hereto

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

___________________________

 

JPMORGAN CHASE BANK, N.A.,

WELLS FARGO BANK, N.A.,

and

BANK OF AMERICA, N.A.,

as Joint Bookrunners, Joint Lead Arrangers, and Co-Syndication Agents

 

BANK OF THE WEST,
BRANCH BANKING AND TRUST COMPANY,

PNC BANK, N.A.,

and

U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents

 

 

 


 

TABLE OF CONTENTS

Page

Article I

Definitions2

 

 

Section 1.01. Defined Terms

2

 

 

Section 1.02. Classification of Loans and Borrowings

58

 

 

Section 1.03. Terms Generally

58

 

 

Section 1.04. Accounting Terms; GAAP  

59

 

 

Section 1.05. Interest Rates; LIBOR Notifications

59

 

 

Section 1.06. Pro Forma Calculations

60

 

 

Section 1.07. Currency Translations; Currency Matters

60

 

 

Section 1.08. Québec Matters

61

 

 

Section 1.09. Limited Condition Transactions

61

 

 

Section 1.10. Reserves, Eligibility and Advances Rates

62

 

Article II

The Credits63

 

 

Section 2.01. Commitments

63

 

 

Section 2.02. Loans and Borrowings.

63

 

 

Section 2.03. Requests for Revolving Borrowings

64

 

 

Section 2.04. Protective Advances.

65

 

 

Section 2.05. Overadvances.

66

 

 

Section 2.06. Letters of Credit.

67

 

 

Section 2.07. Funding of Borrowings.

73

 

 

Section 2.08. Interest Elections.

74

 

 

Section 2.09. Termination and Reduction of Commitments; Increase in Commitments.

76

 

 

Section 2.10. Repayment of Loans; Evidence of Debt.

79

 

 

Section 2.11. Prepayment of Loans.

80

 

 

Section 2.12. Fees.

81

 

 

Section 2.13. Interest.

82

 

 

Section 2.14. Alternate Rate of Interest; Illegality.

83

 

 

Section 2.15. Increased Costs.

85

 

 

Section 2.16. Break Funding Payments

86

 

 

Section 2.17. Withholding of Taxes; Gross-Up

87

 

 

Section 2.18. Payments Generally; Allocation of Proceeds; Sharing of Setoffs.

97

 

 

Section 2.19. Mitigation Obligations; Replacement of Lenders.

101

 

 

Section 2.20. Defaulting Lenders

102

 

 

Section 2.21. Returned Payments  .

104

 

 

Section 2.22. Banking Services and Swap Agreements  .

104

 

 

Section 2.23. Extension of Maturity Date.

104

 

 

Section 2.24. Judgment Currency

106

 

Article III

Representations and Warranties.106

 

 

Section 3.01. Organization; Powers

107

 

 

Section 3.02. Authorization; Enforceability.

107

 

 

Section 3.03. Governmental Approvals; No Conflicts

107

 

 

Section 3.04. Financial Condition; No Material Adverse Change.

108

 

 

Section 3.05. Properties

108

 

 

Section 3.06. Litigation and Environmental Matters.

108

 

 

Section 3.07. Compliance with Laws and Agreements; No Default

109

 

i


 

 

Section 3.08. Investment Company Status

109

 

 

Section 3.09. Taxes

109

 

 

Section 3.10. ERISA; Foreign Benefit Arrangement; Canadian Pension Plan and Benefit Plan; UK Pensions.

109

 

 

Section 3.11. Disclosure.

110

 

 

Section 3.12. [Reserved].

110

 

 

Section 3.13. Solvency

110

 

 

Section 3.14. Insurance

111

 

 

Section 3.15. Subsidiaries

111

 

 

Section 3.16. Security Interest in Collateral

111

 

 

Section 3.17. Employment Matters

111

 

 

Section 3.18. Margin Regulations

112

 

 

Section 3.19. Use of Proceeds

112

 

 

Section 3.20. [Reserved].

112

 

 

Section 3.21. Anti-Corruption Laws and Sanctions

112

 

 

Section 3.22. [Reserved].

112

 

 

Section 3.23. Common Enterprise

112

 

 

Section 3.24. EEA Financial Institutions

112

 

 

Section 3.25. Plan Assets; Prohibited Transactions

113

 

 

Section 3.26. Centre of Main Interest and Establishments

113

 

 

Section 3.27. Fiscal Unity

113

 

Article IV

Conditions113

 

 

Section 4.01. Effective Date

113

 

 

Section 4.02. Each Credit Event after the Effective Date

116

 

Article V

Affirmative Covenants116

 

 

Section 5.01. Financial Statements; Borrowing Base and Other Information

116

 

 

Section 5.02. Notices of Material Events

120

 

 

Section 5.03. Existence; Conduct of Business

121

 

 

Section 5.04. Payment of Taxes

121

 

 

Section 5.05. Maintenance of Properties

121

 

 

Section 5.06. Books and Records; Inspection and Appraisal Rights

121

 

 

Section 5.07. Compliance with Laws and Material Contractual Obligations.

122

 

 

Section 5.08. Use of Proceeds.

123

 

 

Section 5.09. [Reserved].

123

 

 

Section 5.10. Insurance

123

 

 

Section 5.11. Casualty and Condemnation

124

 

 

Section 5.12. [Reserved].

124

 

 

Section 5.13. [Reserved].

124

 

 

Section 5.14. Additional Collateral; Further Assurances.

124

 

 

Section 5.15. Designation of Subsidiaries

125

 

 

Section 5.16. Foreign Loan Party Cash Management Provisions

126

 

 

Section 5.17. Transfer of Accounts of Foreign Loan Parties; Notification of Account Debtors

126

 

 

Section 5.18. U.K

127

 

 

Section 5.19. Dutch CIT Fiscal Unity

127

 

 

Section 5.20. [Reserved]

127

 

 

Section 5.21. Centre of Main Interest and Establishments

127

 

 

Section 5.22. Post-Closing Matters

127

 

ii


 

Article VI

Negative Covenants128

 

 

Section 6.01. Indebtedness

128

 

 

Section 6.02. Liens

131

 

 

Section 6.03. Fundamental Changes.

133

 

 

Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions

135

 

 

Section 6.05. Asset Sales

137

 

 

Section 6.06. Sale and Leaseback Transactions

140

 

 

Section 6.07. Swap Agreements

140

 

 

Section 6.08. Restricted Payments; Certain Payments of Indebtedness.

140

 

 

Section 6.09. Transactions with Affiliates

141

 

 

Section 6.10. Restrictive Agreements

142

 

 

Section 6.11. Amendment of Material Documents

142

 

 

Section 6.12. Fixed Charge Coverage Ratio

143

 

Article VII

Events of Default143

 

Article VIII

The Administrative Agent146

 

 

Section 8.01. Authorization and Action.

146

 

 

Section 8.02. Administrative Agent’s Reliance, Indemnification, Etc.

149

 

 

Section 8.03. Posting of Communications.

150

 

 

Section 8.04. The Administrative Agent Individually

152

 

 

Section 8.05. Successor Administrative Agent.

152

 

 

Section 8.06. Acknowledgements of Lenders and Issuing Bank.

153

 

 

Section 8.07. Collateral Matters

154

 

 

Section 8.08. Credit Bidding

155

 

 

Section 8.09. Certain ERISA Matters

155

 

 

Section 8.10. Flood Laws

157

 

 

Section 8.11. Appointment of Administrative Agent as U.K Security Trustee

157

 

 

Section 8.12. Parallel Debt Undertaking

160

 

Article IX

Miscellaneous161

 

 

Section 9.01. Notices.

161

 

 

Section 9.02. Waivers; Amendments.

163

 

 

Section 9.03. Expenses; Indemnity; Damage Waiver.

167

 

 

Section 9.04. Successors and Assigns.

169

 

 

Section 9.05. Survival

173

 

 

Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution.

173

 

 

Section 9.07. Severability

174

 

 

Section 9.08. Right of Setoff

174

 

 

Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process.

174

 

 

Section 9.10. WAIVER OF JURY TRIAL

176

 

 

Section 9.11. Headings

176

 

 

Section 9.12. Confidentiality

176

 

 

Section 9.13. Several Obligations; Nonreliance; Violation of Law

178

 

 

Section 9.14. USA PATRIOT Act; UK “Know Your Customer” Checks; Canadian Anti-Money Laundering.

178

 

 

Section 9.15. Disclosure

179

 

 

Section 9.16. Appointment for Perfection

179

 

 

Section 9.17. Interest Rate Limitation

179

 

 

Section 9.18. Marketing Consent

180

 

 

Section 9.19. Acknowledgement and Consent to Bail-In of EEA Financial Institutions

180

 

iii


 

 

Section 9.20. No Fiduciary Duty, etc.

180

 

 

Section 9.21. Acknowledgement Regarding Any Supported QFCs

181

 

 

Section 9.22. Dutch CIT Fiscal Unity

181

 

 

Section 9.23. English Language

182

 

Article X

Loan Guaranty of Global Loan Parties182

 

 

Section 10.01. Guaranty

182

 

 

Section 10.02. Guaranty of Payment

183

 

 

Section 10.03. No Discharge or Diminishment of Loan Guaranty.

183

 

 

Section 10.04. Defenses Waived

183

 

 

Section 10.05. Rights of Subrogation

184

 

 

Section 10.06. Reinstatement; Stay of Acceleration

184

 

 

Section 10.07. Information

184

 

 

Section 10.08. Termination

184

 

 

Section 10.09. Taxes

185

 

 

Section 10.10. Maximum Liability

185

 

 

Section 10.11. Contribution.

185

 

 

Section 10.12. Liability Cumulative

186

 

 

Section 10.13. Keepwell

186

 

Article XI

The Borrower Representative186

 

 

Section 11.01. Appointment; Nature of Relationship

186

 

 

Section 11.02. Powers

186

 

 

Section 11.03. Employment of Agents

187

 

 

Section 11.04. Successor Borrower Representative

187

 

 

Section 11.05. Execution of Loan Documents; Borrowing Base Certificate

187

 

Article XII

Collection Allocation Mechanism187

 

 

iv


 

SCHEDULES:

Commitment Schedule

Schedule 1.01(a) – Existing Letters of Credit

Schedule 1.01(b) – Unrestricted Subsidiaries

Schedule 3.05 – Real Property

Schedule 3.06 – Disclosed Matters

Schedule 3.15 – Subsidiaries

Schedule 5.22 – Post-Closing Matters

Schedule 6.01 – Existing Indebtedness

Schedule 6.02 – Existing Liens

Schedule 6.04 – Existing Investments

Schedule 6.10 – Existing Restrictions

 

EXHIBITS:

Exhibit A -- Form of Assignment and Assumption

Exhibit B -- Form of Borrowing Base Certificate

Exhibit C -- Form of Compliance Certificate

Exhibit D -- Joinder Agreement

Exhibit E – Form of Solvency Certificate

Exhibit F – Form of Borrowing Request

 

 

 

v


 

CREDIT AGREEMENT

CREDIT AGREEMENT dated as of August 30, 2019 (as it may be amended, amended and restated, supplemented or modified from time to time, this “Agreement”) by and among INSIGHT ENTERPRISES, INC., a Delaware corporation (“Insight”), INSIGHT NORTH AMERICA, INC., an Arizona corporation (“Insight NA”), INSIGHT DIRECT USA, INC., an Illinois corporation (“Insight Direct”), INSIGHT PUBLIC SECTOR, INC., an Illinois corporation (“Insight Public Sector”), INSIGHT RECEIVABLES, LLC, an Illinois limited liability company (“Insight Receivables”), CALENCE PHYSICAL SECURITY SOLUTIONS LLC, an Arizona limited liability company (“Calence Physical Security”), PCM, INC., a Delaware corporation (“PCM”), PCM LOGISTICS, LLC, a Delaware limited liability company (“PCM Logistics”), PCM SALES, INC., a California corporation (“PCM Sales”), PCMG, INC., a Delaware corporation (“PCMG”), ABREON, INC., a Delaware corporation (“Abreon”), M2 MARKETPLACE, INC., a Delaware corporation (“M2 Marketplace”), EN POINTE TECHNOLOGIES SALES, LLC, a Delaware limited liability company (“En Pointe Technologies”), CROSS LINE PRODUCTS, INC., a Delaware corporation (“Cross Line Products”), PCM BPO, LLC, a Delaware limited liability company (“PCM BPO”), ONSALE HOLDINGS, INC., an Illinois corporation (“OnSale Holdings”), PCM SERVICES, LLC, a Delaware limited liability company (“PCM Services”), STRATIFORM USA, LLC, a Delaware limited liability company (“Stratiform USA”), the other U.S. Borrowers (as defined below) from time to time party hereto, INSIGHT DIRECT (UK) LTD, a company incorporated under the laws of England with registration number 02579852 (“Insight UK”), INSIGHT NETWORKING SOLUTIONS LIMITED, a company incorporated under the laws of England with registration number 04482870 (“Insight Networking”), STACK TECHNOLOGY HOLDINGS LTD, a company incorporated under the laws of England with registration number 07170448 (“Stack Technology”), STACK DATA SOLUTIONS LTD, a company incorporated under the laws of England with registration number 01865047 (“Stack Data Solutions”), STACK TELECOMMUNICATIONS SOLUTIONS LTD, a company incorporated under the laws of England with registration number 07423212 (“Stack Telecommunications”), INTERCONNECT NETWORK SYSTEMS LIMITED, a company incorporated under the laws of England with registration number 03645464 (“Interconnect Network”), PCM TECHNOLOGY SOLUTIONS UK, LTD, a company incorporated under the laws of England with registration number 10326566 (“PCM Technology”), the other U.K. Borrowers (as defined below) from time to time party hereto, INSIGHT ENTERPRISES NETHERLANDS B.V., a besloten vennotschap met beperkte aansprakelijkheid, incorporated under the laws of The Netherlands, having its official seat in Apeldoorn, The Netherlands and registered with the Dutch trade register under number 08074503 (“Insight Netherlands”), INSIGHT ENTERPRISES B.V., a besloten vennotschap met beperkte aansprakelijkheid, incorporated under the laws of The Netherlands, having its official seat in The Hague, The Netherlands and registered with the Dutch trade register under number 27148512 (“Insight Enterprises”), the other Dutch Borrowers (as defined below) from time to time party hereto, the other Loan Parties (as defined below) from time to time party hereto, the Lenders (as defined below) from time to time party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent (as defined below).

RECITALS

WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of June 23, 2019 (as amended, supplemented, modified or otherwise in effect from time to time, and including all exhibits and schedules thereto, collectively, the “Trojan Merger Agreement”), entered into by and among Insight, Merger Sub, and PCM, Insight will, directly or indirectly, acquire by merger (the “Trojan Acquisition”), PCM (collectively with the Subsidiaries of PCM, the “Target”) pursuant to the terms of, and subject to the conditions set forth in, the Trojan Merger Agreement;

 


 

WHEREAS, on the Effective Date (as defined below), the Trojan Acquisition will be effected by merger of Merger Sub with and into PCM, with PCM being the surviving entity and a Wholly Owned Subsidiary of Insight;

WHEREAS, the Borrowers have requested, and the Lenders have agreed to extend to the Borrowers, revolving commitments of up to an aggregate principal amount of $1,200,000,000, subject to the terms and conditions herein; and

WHEREAS, the Lenders have indicated their willingness to lend, and the Issuing Banks have indicated their willingness to issue Letters of Credit, in each case, on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows:

Article I

Definitions

Section 1.01.  Defined Terms

.  As used in this Agreement, the following terms have the meanings specified below:

Abreon” has the meaning assigned to such term in the preamble hereto.

Account” has the meaning assigned to the term (a) “Accounts” in the U.S. Security Agreement, (b) “Book Debts” in the U.K. Debenture (with respect to Accounts of a U.K. Loan Party), (c) “Receivables” in the Dutch Omnibus Pledge (with respect to Accounts of a Dutch Loan Party), and (d) “Accounts” in the Canadian Security Agreement (with respect to Accounts of a Canadian Loan Party).

Account Advance Rate” means 85% (it being understood that the Borrower Representative shall have the ability to increase this advance rate to 90% for any two (2) consecutive calendar months of each year at its option by providing the Administrative Agent written notice of such increase at least ten (10) days prior to the beginning of such two calendar month period, and such increase shall apply with respect to each Borrowing Base).

Account Debtor” means any Person obligated on an Account.

Acquisition” means any transaction, or any series of related transactions, consummated on or after the Effective Date, by which any Loan Party or any Restricted Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person.

Additional Perfection Steps” means the provision of Collateral Documents or the taking of further perfection steps by the applicable Borrowers and/or Canadian Loan Guarantors, as applicable (including notification of any security to the relevant Account Debtors) (in each case to the extent requested by, and satisfactory to the Administrative Agent), during a Cash Dominion Period in respect of Accounts of Account Debtors of such Loan Parties to ensure, in the Administrative Agent’s Permitted

2


 

Discretion, that the Administrative Agent has a duly perfected and enforceable security interest and Lien on such Accounts under the laws of the applicable jurisdiction.

Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period or for any CBFR Borrowing, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

Adjusted One Month LIBOR Rate” means, for any day, an interest rate per annum equal to the sum of (i) 2.50% plus (ii) the Adjusted LIBO Rate for a one month interest period on such day (or if such day is not a Business Day, the immediately preceding Business Day); provided that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate at approximately 11:00 a.m. London time on such day; provided further, that, if the LIBO Screen Rate at such time shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders and collateral agent and hypothecary representative (pursuant to Section 8.01) for the Secured Parties hereunder or, as applicable, such branches or affiliates of JPMorgan Chase Bank, N.A. as it shall from time to time designate for the purposes of performing its obligations hereunder in such capacities.  References to the “Administrative Agent” shall include any branch or affiliate of JPMorgan Chase Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of performing its obligations in such capacity.

Administrative Agent Fee Letter” means that certain fee letter, dated June 23, 2019, by and between the Administrative Agent and the Borrower Representative.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Person.

Agent Indemnitee” has the meaning assigned to it in Section 9.03(c).

Aggregate Closing Excess Availability” means an amount equal to (a) the sum of the U.S. Line Cap and the European Line Cap minus (b) the Aggregate Exposure, in each case after giving effect to the Borrowings on the Effective Date; provided that on the Effective Date, solely for purposes of determining satisfaction of the condition set forth in Section 4.01(i), reserves imposed against the Borrowing Bases shall be limited to the following: (i) with respect to the portion of the Borrowing Bases attributable to the Target, Reserves consistent with the “Borrowing Bases” under the Existing Target Credit Agreement as described herein; provided that the aggregate amount of reserves imposed pursuant to this clause (i) shall not exceed $12,000,000; (ii) with respect to the U.S. Borrowing Base (excluding any portion of the U.S. Borrowing Base attributable to the Target, it being understood that reserves imposed against the portion of the U.S. Borrowing Base attributable to the Target shall be limited to the reserves contained in clause (i) hereto), (A) a rent reserve consisting of three (3) months’ rent for Insight’s two distribution centers in Hanover Park, Illinois (solely to the extent a reasonably satisfactory Collateral Access Agreement has not been executed and delivered to the Administrative Agent by the applicable landlords), (B) a Canadian Priority Payable Reserve with respect to general ledger liabilities recorded by Insight (equaling a Dollar Equivalent of $1,450,000 as at December 31, 2018, including liabilities for sales tax (equaling a Dollar Equivalent of $794,000 as at December 31, 2018), miscellaneous employee withholding in Canada (a Dollar Equivalent of $9,000 as at December 31, 2018) and a liability for WEPPA calculated at Cdn$2,000

3


 

per employee (equaling a Dollar Equivalent of $647,000 as at December 31, 2018)) and (C) a reserve equal to the principal amount of Secured Inventory Financing Indebtedness outstanding on the Effective Date; and (iii) with respect to the U.K. Borrowing Base (excluding any portion of the U.K. Borrowing Base attributable to the Target, it being understood that reserves imposed against the portion of the U.K. Borrowing Base attributable to the Target shall be limited to the reserves contained in clause (i) hereto), (A) a reserve in respect of liabilities related to The Insolvency Act of 1986 calculated at £1,000 per employee (equaling a Dollar Equivalent of $1,049,000 as at December 18, 2018), (B) a reserve in respect of net proceeds from the sale of the business assets to satisfy unsecured debts related to The Insolvency Act of 1986 (Prescribed Part) Order 2003 calculated as 50% of the first £10,000 of proceeds, plus 20% of the balance, up to a total of £600,000 (equaling a Dollar Equivalent of $762,000 as at December 18, 2018) and (C) a reserve in respect of liabilities related to partner alliance agreements (described in the field exam report received by the Administrative Agent prior to the Effective Date) accounts payable and goods received not invoiced (equaling a Dollar Equivalent of $18,049,000 as at December 18, 2018).

Aggregate Commitment” means, at any time, the aggregate of the Commitments of all of the Lenders, as increased or reduced from time to time pursuant to the terms and conditions hereof.  As of the Effective Date, the Aggregate Commitment is $1,200,000,000.

Aggregate Excess Availability” means, as of any date of determination, an amount equal to the sum of (a) the U.S. Excess Availability as of such time, plus (b) the European Excess Availability as of such time.

Aggregate Exposure” means, at any time, the aggregate Revolving Exposure of all the Lenders at such time.

Aggregate Line Cap” means, at any time of determination, an amount equal to the lesser of (a) the Aggregate Commitment and (b) the Global Borrowing Base.

Alternate Rate” means, for any day and for any Available Currency, the sum of (a) a rate per annum selected by the Administrative Agent, in its reasonable discretion based on market conditions and in consultation with the Borrower Representative, reflecting the cost to the Lenders of obtaining funds (such rate shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such rate), plus (b) the Applicable Rate for Eurocurrency Loans.  When used in reference to any Loan or Borrowing, “Alternate Rate” refers to whether such Loan, or the Loans comprising such Borrowing  are bearing interest at a rate determined by reference to the Alternate Rate.

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Loan Party or any of its Subsidiaries from time to time concerning or relating to bribery or corruption or money laundering, and includes the Canadian Anti-Money Laundering & Anti-Terrorism Legislation.

Applicable Parties” has the meaning assigned to it in Section 8.03(c).

Applicable Percentage” means, (a) with respect to any U.S. Tranche Lender in respect of a U.S. Tranche Credit Event, its U.S. Tranche Percentage, and (b) with respect to any European Tranche Lender in respect of a European Tranche Credit Event, its European Tranche Percentage.

Applicable Rate” means, for any day, with respect to any Loan, the applicable rate per annum set forth below under the caption “Revolver CBFR REVLIBOR30 Spread”, or “Revolver Overnight

4


 

LIBO/Eurocurrency Spread”, as the case may be, based upon the Average Aggregate Excess Availability during the most recently ended calendar quarter; provided that the “Applicable Rate” shall be the applicable rates per annum set forth below in Category 1 during the period from the Effective Date to, and including, the last day of the calendar quarter ending on or about December 31, 2019:

Average Aggregate Excess Availability

Revolver

CBFR REVLIBOR30 Spread

 

Revolver

Overnight LIBO/Eurocurrency Spread

 

Category 1

>50% of the Aggregate Commitment

1.25%

(or 0.00% if clause (y) to the proviso to the definition of REVLIBOR30 Rate is applicable)

1.25%

Category 2

<  50% of the Aggregate Commitment

1.50%

(or 0.00% if clause (y) to the proviso to the definition of REVLIBOR30 Rate is applicable)

1.50%

For purposes of the foregoing, each change in the Applicable Rate resulting from a change in Average Aggregate Excess Availability shall be effective during the period commencing on and including the first day of each calendar quarter and ending on the last day of such calendar quarter, it being understood and agreed that, for purposes of determining the Applicable Rate on the first day of any calendar quarter, the Average Aggregate Excess Availability during the most recently ended calendar quarter shall be used.  Notwithstanding the foregoing, if the Borrowers fail to deliver any Borrowing Base Certificate required to be delivered by them pursuant to Section 5.01(g) to the Administrative Agent within ten (10) Business Days of the time required to be delivered pursuant to the terms hereof, then upon written notice by the Administrative Agent to the Borrower Representative, the Average Aggregate Excess Availability shall be deemed to be in Category 2 until five (5) days after such Borrowing Base Certificate is so delivered to the Administrative Agent.

Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).

Approved Fund” has the meaning assigned to such term in Section 9.04.

Approved Jurisdiction” means any of the following jurisdictions: United Kingdom, Belgium, France, Germany, Ireland, Italy, The Netherlands, Spain, Switzerland, Norway, Denmark, Sweden, Finland, Austria, Portugal, Luxembourg, Australia, Singapore, and Hong Kong.

Arrangers” means, collectively, (a) JPMCB, (b) Wells Fargo Bank, N.A., and (c) Bank of America, N.A., in their capacities as joint bookrunners and joint lead arrangers hereunder.

Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent.

Attributable Indebtedness” means, in respect of a Sale and Leaseback Transaction that is a Capital Lease Obligation, at any date of determination, the amount of Indebtedness represented thereby according to the definition of “Capital Lease Obligation”.

5


 

Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

Available Commitment” means, at any time, the Aggregate Commitment minus the Aggregate Exposure (calculated, with respect to any Defaulting Lender, as if such Defaulting Lender had funded its Applicable Percentage of all outstanding Borrowings).

Available Currencies” means, collectively, U.S. Dollars, Euros, and Sterling.

Average Aggregate Excess Availability” means, for any period, an amount equal to the average daily Aggregate Excess Availability during such period, as determined by the Administrative Agent’s system of records; provided, that in order to determine Aggregate Excess Availability on any day for purposes of this definition, the Global Borrowing Base and each Borrower’s Borrowing Base for such day shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 4.01(h) (at all times prior to the first delivery of a Borrowing Base Certificate after the Effective Date pursuant to Section 5.01(g)) or Section 5.01(g) as of such day.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank Levy” means any amount payable by any Loan Party or its Subsidiaries on the basis of, or in relation to, (i) its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof (including, without limitation, the United Kingdom bank levy as set out in the Finance Act 2011, the French taxe de risque systémique as set out in article 235 ter ZE of the French Code général des impôts and the French taxe pour le financement du fonds de soutien aux collectivités territoriales as set out in article 235 ter ZE bis of the French Code général des impôts, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz), the Dutch bankenbelasting as set out in the Dutch bank levy act (Wet bankenbelasting), the Austrian bank levy as set out in the Austrian Stability Duty Act (Stabilitätsgesetz), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito) as set out in the Law 16/2012 of December 27, 2012, the Swedish bank levy as set out in the Swedish Precautionary Support Act (Sw. lag (2015:1017) om förebyggande statligt stöd till kreditinstitut) (as amended)) and any tax in any jurisdiction levied on a similar basis or for a similar purpose or (ii) any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated February 22, 2011 which has been enacted and which has been formally announced as proposed as at the date of this Agreement.

Banking Services” means each and any of the following bank services provided to any Loan Party (or its Subsidiaries if the Borrower Representative has provided written notice to the Administrative Agent that such services are to be included as “Banking Services” hereunder) by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts, cash pooling services,  and interstate depository network services), (e) Secured Inventory Financing Indebtedness, and (f) foreign exchange and currency management services.

6


 

Banking Services Obligations” means any and all obligations of the Loan Parties and their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.

Banking Services Reserves” means all Reserves which the Administrative Agent from time to time establishes in its Permitted Discretion in accordance with Section 1.10 for Banking Services then outstanding.

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof, provided that a Bankruptcy Event  shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such  ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the U.S., Canada, the United Kingdom, or The Netherlands or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality), to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

BHC Act Affiliate”: means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of a party.

Blocking Regulation” has the meaning assigned to it in Section 3.21.

Board” means the Board of Governors of the Federal Reserve System of the United States of America.

Borrowers” means, collectively, the U.S. Borrowers, the U.K. Borrowers, and the Dutch Borrowers, and “Borrower” means any of them.

Borrower Representative” has the meaning assigned to such term in Section 11.01.

7


 

Borrowing” means (a) Revolving Loans of the same Type and currency, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a Protective Advance and (c) an Overadvance.

Borrowing Base” means the Global Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing Base, or the Dutch Borrowing Base, as the context may require.

Borrowing Base Certificate” means a certificate setting forth the calculation of the Global Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing Base, and the Dutch Borrowing Base, signed and certified in all material respects as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B or another form which is acceptable to the Administrative Agent in its Permitted Discretion.

Borrowing Request” means a request by the Borrower Representative for a Borrowing in accordance with Section 2.03.

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, (a) when used in connection with a Eurocurrency Loan, a Loan accruing interest at REVLIBOR30 Rate without giving effect to the proviso contained in the definition of “REVLIBOR30 Rate”, or Loans to the U.K. Borrowers or the Dutch Borrowers, the term “Business Day” shall also exclude any day on which banks are not open for general business in London or Frankfurt, and (b) in relation to any date for payment in or purchase of Euros, the term “Business Day” shall also exclude any day on which the TARGET2 payment system is not open for the settlement payment of payment in Euros.

Calence Physical Security” has the meaning assigned to such term in the preamble hereto.

CAM” means the mechanism for the allocation and exchange of interests in the Tranches and the collections thereunder established under Article XII.

CAM Exchange” means the exchange of any Lender’s interests provided for in Article XII.

CAM Exchange Date” means the first date on which there shall occur (a) any event referred to in clause (h) or (i) of Article VII in respect of any Borrower or (b) an acceleration of Loans and termination of the Commitments pursuant to Article VII.

CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the sum of the Dollar Equivalents (determined on the basis of Spot Selling Rate prevailing on the CAM Exchange Date) of the Designated Obligations owed to such Lender (whether or not at the time due and payable) immediately prior to the CAM Exchange and (b) the denominator shall be the sum of the Dollar Equivalents (as so determined) of the Designated Obligations owed to all the Lenders (whether or not at the time due and payable) immediately prior to the CAM Exchange.

Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means, collectively, the Criminal Code, R.S.C. 1985, c. C-46, the Proceeds of Crime Act, c. 17 and the United Nations Act, R.S.C. 1985, c. U-2 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al Qaida and Taliban Regulations promulgated under the United Nations Act.

8


 

Canadian Blocked Person” means any Person that is a “politically exposed foreign person” as defined in the Freezing Assets of Corrupt Foreign Officials Act (Canada), or “terrorist group” as defined in Part II.1 of the Criminal Code (Canada).

Canadian Collateral Documents” means, collectively, the Canadian Security Agreement, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens on assets of any Loan Party to secure any of  the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, deeds of hypothec, debentures, share charges, pledges, powers of attorney, assignments, and financing statements, in each case now or hereafter executed by any Canadian Loan Guarantor and delivered to the Administrative Agent that are intended to create, perfect or evidence Liens on assets of any Canadian Loan Guarantor to secure any of the Secured Obligations.

Canadian Defined Benefit Plan” means a pension plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).

Canadian Economic Sanctions and Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.

Canadian ITA” means the Income Tax Act (Canada) and the regulations thereunder, as amended

Canadian Loan Guarantors” means, each of, and collectively, 3683371 Canada Inc., a Canadian corporation, Insight Canada Inc., an Ontario corporation, Insight Direct Canada, Inc., a Canadian corporation, PCM Ventes Canada, Inc. / PCM Sales Canada, Inc., a Quebec corporation, Acrodex Inc., an Alberta corporation and any other Restricted Subsidiary of Insight organized under applicable law of Canada or any province or territory of Canada which becomes a party to this Agreement pursuant to a Joinder Agreement and their successors and assigns, and the term “Canadian Loan Guarantor” means any one of them or all of them individually, as the context may require. For the avoidance of doubt, Canadian Loan Guarantors shall not include any Excluded Subsidiary.

Canadian Loan Party” means each Canadian Loan Guarantor.

Canadian Pension Event” means (a) the whole or partial withdrawal of the Canadian Loan Party or another Loan Party from a Canadian Pension Plan during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Pension Plan or the treatment of a Canadian Pension Plan amendment as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer a Canadian Pension Plan; or (d) any other event or condition which might constitute grounds for the termination of, winding up or partial termination of winding up or the appointment of trustee to administer, any Canadian Pension Plan.

Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Pension Benefits Act (Ontario) and the Income Tax Act (Canada) and that is either (a) maintained or sponsored by the Canadian Loan Party for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which the Canadian Loan Party is making or

9


 

accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions.

Canadian Priority Payable Reserves” means the Reserves established in the Permitted Discretion of the Administrative Agent in accordance with Section 1.10 for amounts owing by a Canadian Loan Party secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority to the Administrative Agent’s Liens and/or for amounts which may represent costs relating to the enforcement of the Administrative Agent’s Liens including, without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, salaries, commission or compensation, including vacation pay (including as provided for under WEPPA),  amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Income Tax Act (Canada), amounts currently or past due and not paid for realty, municipal or similar taxes, any and all solvency deficiencies, unfunded liabilities on wind-up or wind-up deficiencies in regards to any Canadian Pension Plan which is a defined benefit plan (to the extent impacting personal or moveable property) and all amounts currently or past due and not contributed, remitted or paid to any Canadian Pension Plan or under the Canada Pension Plan, the Pension Benefits Act (Ontario) or any similar legislation.

Canadian Security Agreement” means that certain Canadian Pledge and Security Agreement (including any and all supplements thereto), dated as of the date hereof, by and among the Canadian Loan Parties party thereto and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties.

Capital Expenditures” means, without duplication, any expenditure or commitment to expend money for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a consolidated balance sheet of Insight and its Restricted Subsidiaries prepared in accordance with GAAP.

Capital Lease Obligations” of any Person means, subject to Section 1.04(b), the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

Cash Dominion Period” means each period (a) commencing on the date that (i) Aggregate Excess Availability shall be less than (A) 7.5% of the Aggregate Commitment then in effect or (B) 10% of the Aggregate Commitment then in effect for three (3) consecutive Business Days, or (ii) a Specified Event of Default shall have occurred and be continuing, and (b) continuing until (i) to the extent that the Cash Dominion Period has occurred due to clause (a)(i) of this definition, during each of the preceding thirty (30) consecutive days, Aggregate Excess Availability has been equal to or more than an amount equal to 10% of the Aggregate Commitment then in effect or (ii) to the extent that the Cash Dominion Period has occurred due to clause (a)(ii) of this definition, until no Specified Event of Default shall be continuing.

Cash Management Obligations” means each and any of the following bank services provided to any Loan Party or any of its Restricted Subsidiaries: (a) credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or

10


 

arrangement, overdrafts, cash pooling services,  and interstate depository network services), and (e) foreign exchange and currency management services.

Cash Pooling Arrangements” means the cash pooling arrangements maintained by the Foreign Restricted Subsidiaries of Insight with Bank of America, N.A. (or any other financial institution reasonably acceptable to the Administrative Agent) in the ordinary course of business in order to manage currency fluctuations and overdrafts among deposit accounts of such Subsidiaries; provided that such arrangements are on a zero balance basis with a net positive aggregate balance at all times.

CB Floating Rate” means the Prime Rate; provided that the CB Floating Rate shall never be less than the Adjusted One Month LIBOR Rate on such day (or if such day is not a Business Day, the immediately preceding Business Day).  Any change in the CB Floating Rate due to a change in the Prime Rate or the Adjusted One Month LIBOR Rate shall be effective from and including the effective date of such change in the Prime Rate or the Adjusted One Month LIBOR Rate, respectively.

CBFR” means when used in reference to: (a) a rate of interest, refers to the REVLIBOR30 Rate and (b) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the REVLIBOR30 Rate.

Cdn$” means dollars in the lawful currency of Canada.

Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Insight; (b) occupation at any time of a majority of the seats (other than vacant seats) on the board of directors of Insight by Persons who were neither (i) (A) nominated by the board of directors of Insight, (B) appointed by the board of directors of Insight or (C) approved by the board of directors of Insight for consideration by the shareholders for election, nor (ii) appointed by directors so nominated, appointed or approved; or (c) except in a transaction permitted hereunder, Insight shall cease to own, directly or indirectly, 100% of the outstanding voting Equity Interests of the other Borrowers and Loan Parties.

Change in Law” means the occurrence after the date of this Agreement (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption of or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline, requirement or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof or any European equivalent regulation (such as the European Market and Infrastructure Regulation), and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

Charges” has the meaning assigned to such term in Section 9.17.

11


 

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Protective Advances or Overadvances.

Co-Documentation Agent” means each of (a) Bank of the West, (b) Branch Banking and Trust Company, (c) PNC Bank, N.A. and (d) U.S. Bank National Association.

Co-Syndication Agent” means each of (a) JPMCB, (b) Wells Fargo Bank, N.A. and (c) Bank of America, N.A.

Code” means the Internal Revenue Code of 1986, as amended from time to time.

Collateral” means the Global Collateral.

Collateral Access Agreement” has the meaning assigned to such term in the applicable Collateral Documents.

Collateral Documents” means, collectively, the Canadian Collateral Documents, the U.S. Collateral Documents, the U.K. Collateral Documents, the Dutch Collateral Documents, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens on assets of any Loan Party to secure any of the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, deeds of hypothec, debentures, share charges, pledges, powers of attorney, assignments, financing statements, in each case now or hereafter executed by any Loan Party and delivered to the Administrative Agent that are intended to create, perfect or evidence Liens on assets of any Loan Party to secure any of the Secured Obligations.

Collection Account” means, (a) with respect to the U.S. Loan Parties, as defined in the U.S. Security Agreement, (b) with respect to the Canadian Loan Guarantors, as defined in the Canadian Security Agreement, (c) with respect to the U.K. Loan Parties, each deposit account maintained by any U.K. Borrower into which cash, checks or other similar payments relating to or constituting payments made in respect of Accounts or other proceeds will be deposited, and (d) with respect to the Dutch Loan Parties, each deposit account maintained by any Dutch Borrower into which cash, checks or other similar payments relating to or constituting payments made in respect of Accounts or other proceeds will be deposited.

Commitment” means, with respect to each Lender, such Lender’s commitment to make Revolving Loans and to acquire participations in Letters of Credit, Overadvances and Protective Advances hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to (a) Section 2.09 and (b) assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption or other documentation or record (as such term is defined in Section 9-102(a)(70) of the New York Uniform Commercial Code) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have assumed its Commitment, as applicable.

Commitment Letter” means that certain Commitment Letter between JPMorgan Chase Bank, N.A. and Insight dated as of June 23, 2019, as supplemented by that certain Joinder Letter, dated July 12, 2019, from Wells Fargo Bank, N.A. as further supplemented by that certain Joinder Letter, dated July 12, 2019, from Bank of America, N.A., and as further amended by that certain letter agreement, dated August 12, 2019, by and among JPMCB, Bank of America, N.A., Wells Fargo Bank, N.A., and Insight.

Commitment Schedule” means the Commitment Schedule attached hereto identified as such.

12


 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Communications” has the meaning assigned to such term in Section 8.03(c).

Compliance Certificate” means a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C attached hereto.

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consolidating Financial Statements” means consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form only) from the consolidated financial statements of Insight and its Subsidiaries (it being agreed that no such Consolidating Financial Statements shall be required to be audited).

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

Convertible Debt Security” means debt securities, the terms of which provide for conversion into, or exchange for, Qualified Equity Interests of Insight (or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight), cash in lieu thereof or a combination of such Qualified Equity Interests of Insight (or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight) and cash in lieu thereof.

Covenant Testing Trigger Period” means the period (a) commencing on any date that the Aggregate Excess Availability is less than 10% of the Aggregate Commitment and (b) continuing until Aggregate Excess Availability has been greater than or equal to 10% of the Aggregate Commitment at all times for thirty (30) consecutive days.

Covered Entity” means any of the following:

(a)

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

(b)

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

(c)

a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Covered Party” has the meaning assigned to it in Section 9.21.

Credit Event” means a U.S. Tranche Credit Event or European Tranche Credit Event, as the context may require.

Credit Party” means the Administrative Agent, any Issuing Bank, or any other Lender.

Cross Line Products” has the meaning assigned to such term in the preamble hereto.

13


 

CTA” means the Corporation Tax Act 2009 (U.K.), as amended from time to time.

Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent  to funding (specifically identified and including the particular Default, if any) has not been satisfied; (b) has notified any Borrower or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding a Loan under this Agreement cannot be satisfied), (c) has failed, within three (3) Business Days after request by a Credit Party or any Borrower, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations as of the date of certification) to fund prospective Loans and participations in then outstanding Letters of Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s or such Borrower’s, as applicable, receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Deposit Account Control Agreement” has the meaning assigned to such term in each applicable Collateral Document.

Designated Non-Cash Consideration” means the fair market value (as determined by Insight in good faith) of non-cash consideration received by any Loan Party or any Restricted Subsidiary in connection with a Disposition designated as Designated Non-Cash Consideration pursuant to a certificate of a Financial Officer of the Borrower Representative setting forth the basis of such valuation, less the amount of cash or Permitted Investments received in connection with a subsequent sale of such Designated Non-Cash Consideration.

Designated Obligations” means all obligations of the Borrowers with respect to (a) principal of and interest on the Revolving Loans, Overadvances, and Protective Advances, (b) unreimbursed LC Disbursements and interest thereon and (c) all commitment fees and Letter of Credit participation fees.

Disclosed Matters” means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06.

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person (including pursuant to any sale and leaseback transaction), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

14


 

Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Equity Interests which do not otherwise constitute Disqualified Equity Interests and cash in lieu of fractional shares), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitment), (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests which do not otherwise constitute Disqualified Equity Interests and cash in lieu of fractional shares), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness (which is not permitted under Section 6.01) or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided, however, that (i) only the portion of such Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests and (ii) with respect to any Equity Interests issued to any employee or to any plan for the benefit of employees of Insight or any of its Subsidiaries, or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Insight or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability and if any class of Equity Interests of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Equity Interests, such Equity Interests shall not be deemed to be Disqualified Equity Interests.

Disqualified Institution” means (a) any Person that is (directly or through a controlled Subsidiary) a competitor of Insight or the Target that is separately identified in writing by the Borrower Representative to the Administrative Agent and the Arrangers from time to time prior to or after the Effective Date, or (b) any Affiliate of any Person identified in clause (a) (other than any Affiliate that is a bona fide debt fund or investment vehicle that is engaged primarily in making, purchasing, holding or otherwise investing in loans, commitments and similar extensions of credit in the ordinary course of business for financial investment purposes and with respect to which no personnel involved with the investment in the relevant competitor, or the management, control or operation thereof, directly or indirectly, possesses the power to direct or cause the investment policies of such fund, vehicle or entity) that is (i) identified in writing by the Borrower Representative from time to time after the Effective Date or (ii) clearly identifiable as an Affiliate solely on the basis of the similarity of its name; provided, however, any such designation of a Person as a Disqualified Institution shall not have retroactive effect to any prior assignment to any Lender permitted under this Agreement (but further assignments and participations shall be prohibited); provided, further, however, that any addition to the list of Disqualified Institutions made in accordance with this definition shall not be effective until the third (3rd) Business Day following the Administrative Agent’s receipt of the Borrower Representative’s written notice of such addition.  

Dividing Person” has the meaning assigned to it in the definition of “Division.”

Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

15


 

Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.  A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.

Document” or “Document of Title” has the meaning assigned to such term in the applicable Collateral Document.

Dollar Equivalent” means, on any date of determination, (a) with respect to any amount express in a currency other than U.S. Dollars, the amount of U.S. Dollars that would be required to purchase the amount of such currency based upon the Spot Selling Rate, as of such date of determination and (b) with respect to any amount expressed in U.S. Dollars, such amount.

Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the U.S.

Dutch Borrowers” means, each of, and collectively, Insight Enterprises, Insight Netherlands, and any other Restricted Subsidiary of Insight incorporated under the laws of The Netherlands approved by the Administrative Agent that joins this Agreement as a “Dutch Borrower” in accordance with the terms hereof, and “Dutch Borrower” means any of them or all of them individually, as the context may require.

Dutch Borrowing Base” means, at any time, the Dollar Equivalent of the result of, subject to the terms of Section 1.10:

(A)

the Account Advance Rate of the Dutch Eligible Accounts at such time, less

(B)

Reserves applicable to the Dutch Borrowing Base established by the Administrative Agent in its Permitted Discretion in accordance with Section 1.10.

Dutch CITA” means the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969).

Dutch CIT Fiscal Unity” means a fiscal unity (fiscale eenheid) for Dutch corporate income tax purposes (within the meaning of Article 15 of the Dutch CITA).

Dutch CIT Fiscal Unity Member” has the meaning assigned to such term in Section 9.22.

Dutch Civil Code” means the Dutch Civil Code (Burgerlijk Wetboek).

Dutch Collateral Documents” means, collectively, the Dutch Omnibus Pledge and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure any of the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, debentures, share charges, pledges, powers of attorney, assignments, financing statements, in each case now or hereafter executed by any Dutch Loan Party and delivered to the Administrative Agent that are intended to create, perfect or evidence Liens on assets of any Dutch Loan Party to secure any of the Secured Obligations.

Dutch Eligible Accounts” means the Eligible Accounts owned by a Dutch Borrower billed from and collected in The Netherlands or any other jurisdiction satisfactory to the Administrative Agent in its Permitted Discretion owing by an Account Debtor in the United States, Canada or an Approved

16


 

Jurisdiction that comply in all material respects with each of the representations and warranties respecting Eligible Accounts that are Dutch Eligible Accounts made in the Loan Documents.

Dutch Loan Parties” means, each of, and collectively, the Dutch Borrowers, Insight Enterprises C.V., a limited partnership (commanditaire vennootschap), incorporated under the laws of The Netherlands and registered with the Dutch trade register under number 24410231, Insight Enterprises Holdings B.V., a besloten vennootschap met beperkte aansprakelijkheid, incorporated under the laws of The Netherlands, having its official seat in Den Haag, The Netherlands and registered with the Dutch trade register under number 08154117 and any other Restricted Subsidiary of Insight organized under applicable law of The Netherlands who becomes a party to this Agreement pursuant to a Joinder Agreement and their respective successors and assigns, and the term “Dutch Loan Party” means any one of them or all of them individually, as the context may require.  For the avoidance of doubt, Dutch Loan Parties shall not include any Excluded Subsidiary.

Dutch Omnibus Pledge” means the Dutch law governed omnibus pledge entered into on or about the date of this Agreement by and among the Dutch Loan Parties, as pledgors, and the Administrative Agent, as pledgee.

EBITDA” means, for any Test Period, the sum of (a) Net Income for such Test Period plus (b) to the extent deducted in determining Net Income for such Test Period, (i) Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) any non-cash or nonrecurring non-cash charges or losses incurred other than in the ordinary course of business, (vi) any non-cash compensation charge arising from any grant of stock, stock options or other equity-based awards, (vii) any cash expenses or charges related to any issuance of Equity Interests, Permitted Acquisition or other Investment, Disposition, recapitalization or the incurrence, prepayment, amendment, modification, restructuring or refinancing of Indebtedness, in each case, (x) solely to the extent such transaction is not prohibited by this Agreement and (y) whether or not such transaction is consummated in an aggregate amount not to exceed $50,000,000 during any Test Period, (viii) costs, expenses and fees incurred in connection with the Transactions and (ix) cash restructuring charges (including in connection with headcount reductions, costs related to the closure, consolidation and integration of facilities, IT infrastructure and legal entities, severance costs and retention bonuses) in an amount, when aggregated with the amount of any increase to EBITDA pursuant to clause (y) of the last sentence of the definition of “Pro Forma Basis,” not to exceed 10% of EBITDA for such Test Period (calculated prior to giving effect to any increase pursuant to this clause (ix) or clause (y) of the last sentence of the definition of “Pro Forma Basis”), all calculated for Insight and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that, from and after the Borrower Representative’s written notice to the Administrative Agent of its irrevocable election to deliver the Consolidating Financial Statements for all Test Periods ending after such written notice (for so long as any Unrestricted Subsidiaries exist), EBITDA shall be calculated for Insight and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that Insight shall be required to deliver to the Administrative Agent the related Consolidated Financial Statements with each set of consolidated financial statements referred to in Sections 5.01(a) and (b) with respect to the applicable Test Period ending after such written notice).

ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.

EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any

17


 

institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, the United Kingdom, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date” means August 30, 2019.

Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Electronic System” means any electronic system, including e-mail, e-fax, web portal access for such Borrower and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.

Eligible Accounts” means, at any time, the Accounts of a Borrower or, in respect of the U.S. Borrowing Base, a Canadian Loan Guarantor or En Pointe JV, that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below or established in accordance with Section 1.10, in each case subject to the terms of Section 1.10.  Eligible Accounts shall not include any Account of a Borrower or a Canadian Loan Guarantor or En Pointe JV:

(a)which is not subject to a first priority perfected security interest in favor of the Administrative Agent;

(b)which is subject to any Lien other than (i) a Lien in favor of the Administrative Agent and (ii) a Lien permitted under Section 6.02 which does not have priority over (and is not pari passu with) the Lien in favor of the Administrative Agent;

(c)(i) which is unpaid more than (A) with respect to any Accounts of any Account Debtor with a corporate family rating of Baa3 (or higher) according to Moody’s or BBB- (or higher) according to S&P, 150 days after the date of the original invoice therefor or (B) with respect to any Accounts of any other Account Debtor, ninety (90) days after the date of the original invoice therefor, or (ii) which has been written off the books of such Borrower or such Canadian Loan Guarantor or En Pointe JV or otherwise designated by a Loan Party as uncollectible;

(d)which is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor and its Affiliates are ineligible pursuant to clause (c) above;

(e)which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates to all Borrowers, all Canadian Loan Guarantors and En Pointe JV, exceeds 25% of the aggregate amount of Eligible Accounts of all Borrowers, all Canadian Loan Guarantors and En Pointe JV, in each case solely to the extent of such excess;

18


 

(f)with respect to which any covenant, representation or warranty contained in this Agreement or in any Collateral Document has been breached in any material respect or is not true in any material respect (except that such materiality qualifier shall not be applicable to any covenant, representation or warranty that already is qualified or modified by materiality in the text thereof);

(g)which (i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation satisfactory to the Administrative Agent in its Permitted Discretion which has been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent upon such Borrower’s or such Canadian Loan Guarantor’s or En Pointe JV’s completion of any further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of interest (but only to the extent thereof);

(h)other than with respect to up to $100,000,000 of customer owned Inventory that is segregated from Eligible Inventory of the U.S. Borrowers, for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by such Borrower or such Canadian Loan Guarantor or En Pointe JV, as applicable, or if such Account was invoiced more than once;

(i)with respect to which any check or other instrument of payment has been returned uncollected for any reason;

(j)which is owed by an Account Debtor which has (i) applied for, suffered, or consented to the appointment of any receiver, interim receiver, monitor, custodian, trustee, administrator, administrative receiver, compulsory manager or liquidator of its assets or similar official for such Account Debtor or its assets, (ii) had possession of all or a material part of its property taken by any receiver, interim receiver, monitor, custodian, trustee, administrator, administrative receiver, compulsory manager or liquidator, (iii) filed, or had filed against it, any assignment, application, request or petition for liquidation, administration, reorganization, arrangement, compromise, adjustment of debts, stay of proceedings, adjudication as bankrupt, winding-up, or voluntary or involuntary case or proceeding under any Insolvency Laws, (iv) admitted in writing its inability, or is generally unable to, pay its debts as they become due, (v) become insolvent, or (vi) ceased operation of its business;

(k)which is owed by any Account Debtor which has sold all or substantially all of its assets;

(l)which is owed by an Account Debtor which (i) does not maintain its chief executive office (or the equivalent in the applicable jurisdiction) in the U.S., Canada or an Approved Jurisdiction or (ii) is not organized under applicable law of the U.S., any state of the U.S., the District of Columbia, Canada, any province of Canada, or an Approved Jurisdiction unless, in any such case, such Account is backed by a letter of credit or other credit support acceptable to the Administrative Agent in its Permitted Discretion which is in the possession of, and is directly drawable by, the Administrative Agent;

(m)which, in respect of any Account of any U.K. Borrower or any Dutch Borrower, the contract or agreement underlying such Account is governed by (or, if no governing law is expressed therein, is deemed to be governed by) the laws of any jurisdiction other than England and Wales or The Netherlands;

19


 

(n)which, in respect of any U.K. Borrower or any Dutch Borrower, is subject to any limitation on assignment or other restriction (whether arising by operation of law, by agreement or otherwise) which would under the local governing law of the contract have the effect of restricting the assignment for or by way of security or the creation of security;

(o)which is owed in any currency other than (i) U.S. Dollars, Euros or Sterling in the case of any U.S. Borrower, any U.K. Borrower and/or any Dutch Borrower, and (ii) U.S. Dollars or Cdn$ in the case of any Canadian Loan Guarantor;

(p)which is owed by (i) any government (or any department, agency, public corporation, or instrumentality thereof) of any country other than the U.S, U.K. or Canada unless such Account is backed by a letter of credit or other credit support acceptable to the Administrative Agent in its Permitted Discretion which is in the possession of, and is directly drawable by, the Administrative Agent, (ii) any government of the United States or any department, agency, public corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.) applies thereto, and any other steps necessary to perfect the Lien of the Administrative Agent in such Account have been complied with to the Administrative Agent’s satisfaction in its Permitted Discretion; provided, however, that Accounts in an aggregate amount not to exceed $100,000,000 at any one time owing by any government of the United States or any department, agency, public corporation, or instrumentality thereof, shall not be excluded solely on account of this clause (p)(ii), (iii) the federal government of Canada or any department, agency, public/crown corporation, or instrumentality thereof, unless the provisions of the Financial Administration Act (Canada) are complied with, and any other steps necessary to perfect the Lien of the Administrative Agent in such Account, have been complied with to the Administrative Agent’s satisfaction in its Permitted Discretion, or (iv) any government of  any province or territory of Canada, if the provisions of provincial or territorial laws are required to be complied with in order to perfect the Lien of the Administrative Agent in such Account, unless such provisions have been complied with to the Administrative Agent’s satisfaction in its Permitted Discretion;

(q)which is owed by any Affiliate of any Loan Party or En Pointe JV, or any employee, officer, director, agent or stockholder of any Loan Party, En Pointe JV, or any of their respective Affiliates;

(r)which is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Borrower, any Canadian Loan Guarantor or En Pointe JV is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;

(s)which is subject to any counterclaim, deduction, defense, setoff or dispute but only to the extent of any such counterclaim, deduction, defense, setoff or dispute;

(t)which is evidenced by any promissory note, chattel paper or instrument;

(u)which is owed by an Account Debtor (i) located in any jurisdiction which requires filing of a “Notice of Business Activities Report” or other similar report in order to permit such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, to seek judicial enforcement in such jurisdiction of payment of such Account, unless such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, has filed such report or qualified to do business in such jurisdiction or (ii) which is a Sanctioned Person;

20


 

(v)with respect to which such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business but only to the extent of any such reduction, or any Account which was partially paid and such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, created a new receivable for the unpaid portion of such Account;

(w)which does not comply in all material respects with the requirements of all applicable laws and regulations, whether Federal, state, provincial, territorial, local, or those of a foreign jurisdiction, including without limitation the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the Board;

(x)which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any Person other than such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable,  has or has had an ownership interest in such goods, or which indicates any party other than such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, as payee or remittance party;

(y)which was created on cash on delivery terms;

(z)which are Accounts Disposed of by the applicable Borrowers pursuant to Section 6.05(d);

(aa)which are subject to any valid extended  retention of title right; or

(bb)to the extent such Accounts are created by En Pointe JV, which do not constitute Eligible En Pointe JV Accounts

In determining the amount of an Eligible Account of a Borrower or a Canadian Loan Guarantor, as applicable, the face amount of an Account may, in the Administrative Agent’s Permitted Discretion, be reduced by, without duplication hereunder or under the foregoing eligibility criteria or Reserves and, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that such Borrower or such Canadian Loan Guarantor or En Pointe JV, as applicable, is obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by such Borrower or such Canadian Loan Guarantor, as applicable, to reduce the amount of such Account.

Furthermore and notwithstanding anything to contrary herein or any other Loan Document, Accounts owed to a Borrower, a Canadian Loan Guarantor, or En Pointe JV, as applicable, located in an Approved Jurisdiction shall be eligible from and after the Effective Date so long as such Accounts satisfy the eligibility criteria set forth above in this definition of Eligible Accounts; provided that during a Cash Dominion Period, the Administrative Agent may request that Additional Perfection Steps be taken by the applicable Borrowers and/or Canadian Loan Guarantors in relation to such Accounts and, if the relevant Borrowers or Canadian Loan Guarantors are not able to complete such Additional Perfection Steps within the timeframe specified for a particular Approved Jurisdiction by the Administrative Agent in its sole discretion, such Approved Jurisdiction shall cease to be an Approved Jurisdiction during a Cash Dominion Period.

21


 

Eligible En Pointe JV Accounts” means, subject to the terms of Section 1.10, Accounts generated by En Pointe JV if:

(a)

such Accounts have been assigned to PCM Sales and PCM in accordance with the En Pointe JV Documents with no further action required by any Person;

(b)

the assignment of such Accounts from En Pointe JV to PCM Sales and PCM is subject to a true sale opinion in form and substance reasonably satisfactory to the Administrative Agent;

(c)

such Accounts do not constitute more than five percent (5%) of all otherwise Eligible Accounts of the U.S. Borrowers and the Canadian Loan Guarantors (but the portion of the Accounts not in excess of such percentage may be deemed Eligible En Pointe JV Accounts);

(d)

PCM Sales and PCM have perfected the transfer of such Accounts of En Pointe JV by filing a UCC-1 financing statement in form and substance reasonably satisfactory to the Administrative Agent, and such UCC-1 financing statement has been assigned to the Administrative Agent; and

(e)

the En Pointe JV Documents have not been amended since the Effective Date in a manner adverse to the Lenders other than amendments approved by the Administrative Agent in its Permitted Discretion.

Eligible Finished Goods Inventory” means, subject to the terms of Section 1.10, Eligible Inventory constituting finished goods to be sold by a U.S. Borrower in the ordinary course of business of such U.S. Borrower, excluding Eligible Work-in-Process Inventory of such U.S. Borrower.

Eligible Inventory” means, at any time, the Inventory of a U.S. Borrower which is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below or established in accordance with Section 1.10, in each case subject to the terms of Section 1.10, Eligible Inventory of a U.S. Borrower shall not include any Inventory:

(a)which is not subject to a first priority perfected Lien in favor of the Administrative Agent;

(b)which is subject to any Lien other than (i) a Lien in favor of the Administrative Agent and (ii) a Lien permitted under Section 6.02 which does not have priority over (and is not pari passu with) the Lien in favor of the Administrative Agent;

(c)which is, in the Administrative Agent’s Permitted Discretion, slow moving, obsolete, unmerchantable, defective, used, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category and/or quantity;

(d)with respect to which any covenant, representation or warranty contained in this Agreement or in the U.S. Security Agreement has been breached in any material respect or is not true in any material respect (except that such materiality qualifier shall not be applicable to any covenant, representation or warranty that already is qualified or modified by materiality in the text thereof) and which does not conform to all standards imposed by any Governmental Authority;

22


 

(e)in which any Person other than such U.S. Borrower shall (i) have any direct or indirect ownership, interest or title or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;

(f)which constitutes raw materials, spare or replacement parts, subassemblies, packaging and shipping material, manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return or repossessed goods (other than goods that are undamaged and are able to be resold in the ordinary course of business), defective or damaged goods, goods held on consignment, or goods which are not of a type held for sale in the ordinary course of business;

(g)which is not located in the U.S. or is in transit with a common carrier from vendors and suppliers;

(h)which is located in any location leased by such U.S. Borrower unless (A)(i) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Rent Reserve has been established by the Administrative Agent in its Permitted Discretion and (B) at least $1,000,000 of Inventory of the U.S. Borrowers is located at such location (it being agreed that up to $10,000,000 in the aggregate of Inventory shall not be excluded solely on account of this clause (h)(B) or clause (i)(B) below);

(i)which is located in any third party warehouse or is in the possession of a bailee (other than a third party processor) and is not evidenced by a Document, unless (A)(i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion in accordance with Section 1.10 and (B) at least $1,000,000 of Inventory of the U.S. Borrowers is located at such third party warehouse or in possession of such bailee (it being agreed that up to $10,000,000 in the aggregate of Inventory shall not be excluded solely on account of this clause (i)(B) or clause (h)(B) above);

(j)which is being processed offsite at a third party location or outside processor, or is in-transit to or from such third party location or outside processor;

(k)which is a discontinued product or component thereof;

(l)which is the subject of a consignment by such U.S. Borrower as consignor;

(m)which is perishable;

(n)which contains or bears any intellectual property rights licensed to such U.S. Borrower unless the Administrative Agent is satisfied that it may sell or otherwise dispose of such Inventory without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such Inventory under the current licensing agreement;

(o)which is not reflected in a current perpetual inventory report of such U.S. Borrower;

(p)for which reclamation rights have been asserted by the seller; or

(q)which has been acquired from a Sanctioned Person.

23


 

Eligible Work-In-Process Inventory” means, subject to the terms of Section 1.10, Eligible Inventory of a U.S. Borrower constituting work-in-process, excluding Eligible Finished Goods Inventory of such U.S. Borrower.

En Pointe JV” means En Pointe IT Solutions, LLC, a Delaware limited liability company.

En Pointe JV Documents” means, collectively, (a) that certain Amended and Restated Master Services Agreement, dated as of January 1, 2016, by and among En Pointe JV, PCM Sales and PCM, as amended by that certain First Amendment to Amended and Restated Master Services Agreement, entered into on May 17, 2019 and effective as of April 27, 2017, (b) that certain Amended and Restated Limited Liability Company Agreement of En Pointe JV, effective as of December 19, 2016, and (c) any other agreements, documents and/or instruments related thereto.

En Pointe Technologies” has the meaning assigned to such term in the preamble hereto.

Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, orders-in-council, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to (a) the environment, (b) preservation or reclamation of natural resources, (c) the management, Release or threatened Release of any Hazardous Material or (d) health and safety matters.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Loan Party or Restricted Subsidiary directly or indirectly resulting from or based upon (a) any violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) the presence of or any exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing, but excluding any debt securities convertible into any of the foregoing, but excluding any and all Convertible Debt Securities, Permitted Convertible Debt Hedge Transactions, and Permitted Share Repurchase Transactions.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with a Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the thirty (30)‑day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Loan Party or any ERISA Affiliate of

24


 

any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from any Plan or Multiemployer Plan; or (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, in critical or endangered status, within the meaning of Title IV of ERISA.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Euro” or “EUR” means the single currency of the Participating Member States.

Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.

European Borrowers” means, collectively, the U.S. Borrowers, the U.K. Borrowers and the Dutch Borrowers.

European Borrowing Base” means, at any time of determination, an amount equal to the sum of (a) the U.K. Borrowing Base as of such time, plus (b) the Dutch Borrowing Base as of such time.

European Excess Availability” means, at any time of determination, any amount equal to (a) the European Line Cap minus (b) the aggregate European Tranche Revolving Exposure of all European Tranche Lenders.

European Line Cap” means, at any time of determination, an amount equal to the lesser of (a) the aggregate amount of the European Tranche Commitments of all European Tranche Lenders and (b) the European Borrowing Base.

European Loan Parties” means, collectively, the U.K. Loan Parties and the Dutch Loan Parties, and the term “European Loan Party” means any one of them or all of them individually, as the context may require.

European Tranche” means the European Tranche Commitments, the European Tranche Revolving Loans and the European Tranche LC Exposure.

European Tranche Commitment” means, with respect to each European Tranche Lender, the commitment, if any, of such European Tranche Lender to make European Tranche Revolving Loans and to acquire participations in European Tranche Letters of Credit, Overadvances, and Protective Advances hereunder, as such commitment may be reduced or increased pursuant to (a) Section 2.09 and (b) assignments by and to such European Tranche Lender pursuant to Section 9.04. The initial amount of each European Tranche Lender’s European Tranche Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption (or other documentation contemplated by this Agreement) pursuant to which such European Tranche Lender shall have assumed its European Tranche Commitment, as applicable.  The aggregate principal amount of the European Tranche Commitments as of the Effective Date is $150,000,000.

25


 

European Tranche Credit Event” means a European Tranche Revolving Borrowing, the issuance, amendment, renewal or extension of a European Tranche Letter of Credit, the making of an Overadvance or a Protective Advance that the European Tranche Lenders are required to participate in pursuant to the terms hereof, or any of the foregoing.

European Tranche LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Equivalent of all outstanding European Tranche Letters of Credit at such time plus (b) the aggregate Dollar Equivalent of all LC Disbursements in respect of European Tranche Letters of Credit that have not yet been reimbursed by or behalf of the European Borrowers at such time.  The European Tranche LC Exposure of any European Tranche Lender at any time shall be its European Tranche Percentage of the total European Tranche LC Exposure at such time.

European Tranche Lender” means a Lender with a European Tranche Commitment or any European Tranche Revolving Exposure.

European Tranche Letter of Credit” means any Letter of Credit issued under the European Tranche Commitments pursuant to this Agreement.

European Tranche Percentage” means, with respect to any European Tranche Lender, percentage equal to a fraction the numerator of which is such European Tranche Lender’s European Tranche Commitment and the denominator of which is the aggregate European Tranche Commitments of all European Tranche Lenders; provided that, if the European Tranche Commitments have terminated or expired, the European Tranche Percentages shall be determined based upon such Lender’s share of the aggregate European Tranche Revolving Exposures of all European Tranche Lenders at that time; provided further that, in accordance with Section 2.20, so long as any European Tranche Lender shall be a Defaulting Lender, such European Tranche Lender’s European Tranche Commitment shall be disregarded in the foregoing calculation.

European Tranche Revolving Borrowing” means a Borrowing comprised of European Tranche Revolving Loans.

European Tranche Revolving Exposure” means, with respect to any European Tranche Lender at any time, and without duplication, the sum of (a) the Dollar Equivalent of the outstanding principal amount of such European Tranche Lender’s European Tranche Revolving Loans plus (b) the Dollar Equivalent of such European Tranche Lender’s European Tranche LC Exposure plus (c) an amount equal to such European Tranche Lender’s European Tranche Percentage of the aggregate outstanding principal amount of Overadvances at such time that European Tranche Lenders have purchased participations in pursuant to the terms hereof plus (d) an amount equal to such European Tranche Lender’s European Tranche Percentage of the aggregate outstanding principal amount of Protective Advances at such time that European Tranche Lenders have purchased participations in pursuant to the terms hereof.

European Tranche Revolving Loan” means a Loan made by a European Tranche Lender pursuant to Section 2.01.

European Union Regulation” means Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).

Event of Default” has the meaning assigned to such term in Article VII.

Excess Availability” means the U.S. Excess Availability or the European Excess Availability, as the context may require.

26


 

Excluded Assets” means, with respect to any assets of any Loan Party: (a) any Equity Interest in any Excluded Subsidiary, (b) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of any Loan Party if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or Lien therein is (i) prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement, (ii) would require governmental consent or authorization or (iii) would create a right of termination in favor of, or require the consent of, any other party thereto and such prohibition,  restriction or right of termination has not been waived or such governmental consent or authorization or the consent of such other parties to such contract, lease, permit, license or license agreement has not been obtained (provided, that (A) the foregoing exclusions of this clause (b) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC or other applicable law, or (2) to apply to the extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or Lien to attach notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of this clause (b) shall in no way be construed to limit, impair, or otherwise affect any of the Administrative Agent’s continuing security interests in and Liens upon any rights or interests of any Loan Party in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license or license agreement, or (2) any proceeds from the sale, license, lease, or other Dispositions of any such contract, lease, permit, license or license agreement), (c) if the Borrower Representative and the Administrative Agent in good faith determine the cost, burden or consequences of obtaining or perfecting a security interest in such assets is excessive in relation to the practical benefit afforded thereby, (d) trust or fiduciary accounts, escrow accounts and deposit accounts solely used for the purposes of making payments in respect of payroll, withholding taxes and employee wages and benefits, (e) any fixed assets subject to a permitted purchase money security interest, (f) any assets to the extent a security interest in such assets would result in material adverse tax consequences as reasonably determined by the Borrower Representative and the Administrative Agent in good faith, (g) any asset or property to the extent providing or perfecting such security would result in any risk to the directors or officers of the relevant Loan Party of contravention of its fiduciary duties and/or of civil or criminal liability as determined by such Loan Party in good faith, (h) other than with respect to Loan Parties organized or incorporated in the United States or Canada, pledges and security interests prohibited by laws and regulations relating to financial assistance, fiduciary duties, corporate benefit, fraudulent preference or similar principles, and (i) any Letter-of-Credit Right (as defined in the UCC) in which a security interest therein may not be perfected by a financing statement under the UCC; provided that, with respect to any Loan Party organized or incorporated in England and Wales, the Global Collateral shall include all of the assets of such Loan Party (whether consisting of real, personal, tangible or intangible property, including all of the outstanding Equity Interests of such Loan Party’s Subsidiaries) subject to a floating charge under English law.

Excluded Subsidiary” means, collectively, (a) any Immaterial Subsidiary (unless such Immaterial Subsidiary is a Loan Guarantor or a Borrower at the election of Insight with the consent of the Administrative Agent with respect to any such election with respect to a Borrower (such consent not to be unreasonably withheld and it being agreed that all Borrowers existing on the Effective Date are acceptable to the Administrative Agent)), (b) any special purpose entity, captive insurance Subsidiary or not for profit Subsidiaries, (c) any Subsidiary to the extent that the burden or cost of obtaining a guaranty outweighs the benefit afforded thereby as determined by the Borrower Representative and the Administrative Agent together in good faith, (d) any Unrestricted Subsidiary, (e) any Subsidiary prohibited or restricted (including, by any consent requirement) from providing any Guarantee by (i) applicable law or regulation (including but not limited to those relating to financial assistance, fiduciary duties, corporate benefit and fraudulent preference or similar principles), (ii) any permitted purchase money Indebtedness, capital lease or Sale and Leaseback Transaction, provided such Subsidiary has no

27


 

material assets other than those financed thereby, or (iii) any contract (including any Indebtedness permitted pursuant to Section 6.01) entered into prior to (and not entered into in contemplation of) the Effective Date or the Acquisition of such Subsidiary, (f) any Subsidiary (other than any Subsidiary of Insight or PCM organized or incorporated under the laws of the United States, Canada, or the United Kingdom) if providing such Guarantee would result in any risk to the directors or officers of the relevant Subsidiary of contravention of their fiduciary duties and/or of civil or criminal liability, and (g) any Subsidiary that is organized under the laws of any jurisdiction other than the United States, Canada, or the United Kingdom; provided that none of the foregoing exceptions (other than as set forth in the foregoing clauses (d), (e)(i) or (f) (and in each case of clauses (e)(i) and (f), solely to the extent any change in applicable law has retroactive effect)) shall be applicable to any Global Loan Party.

Excluded Swap Obligation” means, with respect to any Loan Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Guarantor of, or the grant by such Loan Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Guarantor’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Guarantor or the grant of such security interest becomes or would become effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

Excluded Taxesmeans any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant to an assignment request by the Borrowers under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (j); (d) without duplication, any withholding Tax payable under Part XIII of the Canadian ITA that is imposed on amounts payable to or for the account of a Recipient as a consequence of the Recipient (i) not dealing at arm’s length (within the meaning of the Canadian ITA) with any Canadian Loan Guarantor at the time of such payment or (ii) being a “specified non-resident shareholder” (within the meaning of subsection 18(5) of the Canadian ITA) of any Canadian Loan Guarantor, or not dealing at arm’s length (within the meaning of the Canadian ITA) with a “specified shareholder”) (within the meaning of subsection 18(5) of the Canadian ITA) of any Canadian Loan Guarantor (in each case, other than where the non-arm’s length relationship arises or the Recipient is a “specified non-resident shareholder”, or the Recipient does not deal at arm’s length with a “specified shareholder”, as a result of the Recipient having executed, delivered or performed its obligations under, received payment under, or enforced any rights under, this Agreement or any Loan Document), (e) any withholding Taxes imposed under FATCA, and (f) any Bank Levy.

Existing Collection Account” has the meaning assigned to such term in Section 5.17.

28


 

Existing Indebtedness” means outstanding loans, commitments and notes under: (a) the Existing Target Credit Agreement; (b) the Fourth Amended and Restated Credit Agreement, dated as of June 23, 2016 (as amended, supplemented or otherwise modified and in effect immediately prior to the Effective Date), among Insight, the lenders and other parties party thereto from time to time and JPMCB, as administrative agent; (c) the Receivables Purchase Agreement, dated as of December 31, 2002 (as amended, supplemented or otherwise modified and in effect immediately prior to the Effective Date), among Insight Receivables, LLC, Insight, Jupiter Securitization Company LLC, Bank One N.A., and the entities party thereto from time to time as financial institutions; (d) the Credit Agreement, dated as of July 7, 2016 (as amended, supplemented or otherwise modified and in effect immediately prior to the Effective Date), by and between Castle Pines Capital LLC, and PCM, as reseller; and (e) the Second Amended and Restated Credit Agreement, dated as of June 23, 2016 (as amended, supplemented or otherwise modified and in effect immediately prior to the Effective Date), by and among Calence, Insight Direct and Insight Public Sector, as resellers, Castle Pines Capital LLC, as administrative agent, Wells Fargo Capital Finance, LLC, as collateral agent, syndication agent and administrative agent, and the lenders party thereto.

Existing Letters of Credit” means those letters of credit outstanding immediately prior to the effectiveness of this Agreement as described on Schedule 1.01(a).

Existing Target Credit Agreement” means that certain Fifth Amended and Restated Loan and Security Agreement, dated as of October 24, 2017, by and among PCM, PCM Sales, PCM Logistics, PCMG, M2 Marketplace, Abreon, Cross Line Products, PCM BPO, En Pointe Technologies, Onsale Holdings, PCM Services, Stratiform USA, PCM Sales Canada, Inc., Acrodex Inc., Stratiform Inc., and PCM Technology Solutions UK, LTD, as borrowers, Wells Fargo Capital Finance, LLC,  as administrative and collateral agent for the lenders party thereto, and the lenders and other parties party thereto, as amended, supplemented or otherwise modified and in effect immediately prior to the Effective Date.

Extenuating Circumstance” means any period during which the Administrative Agent has determined in its sole discretion (i) that due to unforeseen and/or nonrecurring circumstances, it is impractical and/or not feasible to submit or receive a Borrowing Request or Interest Election Request by email or fax or through Electronic System, and (ii) to accept a Borrowing Request or Interest Election Request telephonically.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

FATCA Deduction” means a deduction or withholding for a payment under a Loan Document required by FATCA.

FATCA Exempt Party” means any party to this Agreement that is entitled to receive payments free from any FATCA Deduction.

Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that, if the Federal Funds

29


 

Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.

Fee Letter” means the Administrative Agent Fee Letter and/or the Joint Fee Letter, as the context may require.

Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of a Borrower or any director of any Dutch Borrower who fulfills an equivalent role.

Fixed Charge Coverage Ratio” means, at any date, the ratio of (a) EBITDA minus Unfinanced Capital Expenditures of Insight and its Subsidiaries (other than any Capital Expenditures made in an amount equal to (x) all or part of the proceeds of any casualty insurance, condemnation or eminent domain or any amount otherwise reimbursed by third parties during such period or (y) all or part of the proceeds of any sale of assets of Insight and its Subsidiaries during such period so long as such proceeds were in fact applied to make Capital Expenditures within twelve (12) months following receipt thereof) to (b) Fixed Charges, all calculated for the period of four consecutive fiscal quarters ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter most recently ended prior to such date for which financial statements are available); provided that, from and after the Borrower Representative’s written notice to the Administrative Agent of its irrevocable election to deliver the Consolidating Financial Statements for all Test Periods ending after such written notice (for so long as any Unrestricted Subsidiaries exist), Fixed Charge Coverage Ratio shall be calculated for Insight and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that Insight shall be required to deliver to the Administrative Agent the related Consolidating Financial Statements with each set of consolidated financial statements referred to in Sections 5.01(a) and (b) with respect to each such applicable Test Period ending after such written notice).

Fixed Charges” means, for any period, without duplication, (a) Interest Expense (other than the amortization of deferred financing costs) for such period paid or payable in cash, net of interest income, plus (b) the aggregate amount of federal, state, local and foreign income, capital or profits taxes, including foreign withholding taxes, expenses during such period to the extent paid in cash, plus (c) the aggregate principal amount of all regularly scheduled principal or amortization payments on Indebtedness for borrowed money and Capital Lease Obligations of Insight and its Subsidiaries (other than prepaid amounts, payments in respect of intercompany Indebtedness among Insight and its Subsidiaries or any payments paid in cash from the proceeds of any refinancing thereof) made in cash during such period, plus (d) solely for purpose of calculating compliance with Payment Conditions (and not, for the avoidance of doubt, for calculating compliance with Section 6.12), Restricted Payments paid by any Loan Party (other than Restricted Payments (i) solely made by a Loan Party to another Loan Party, (ii) solely made by any non-Loan Party to any other non-Loan Party, and (iii) any Restricted Payments made by any Loan Party to any non-Loan Party as part of a series of transactions whereby such Restricted Payment is ultimately made to a Loan Party) in cash during period, all calculated for Insight and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that, from and after the Borrower Representative’s written notice to the Administrative Agent of its irrevocable election to deliver the Consolidating Financial Statements for all Test Periods ending after such written notice (for so long as any Unrestricted Subsidiaries exist), Fixed Charges shall be calculated for Insight and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that Insight shall be required to deliver to the Administrative Agent the related Consolidating Financial Statements with each set of consolidated financial statements referred to in Sections 5.01(a) and (b) with respect to each such applicable Test Period ending after such written notice).

30


 

Flood Laws” has the meaning assigned to such term in Section 8.10.

Foreign Benefit Arrangement” means any employee benefit arrangement in existence at the date of this Agreement or at any time thereafter which is mandated by non-U.S. law (other than Canadian law) and that is maintained or contributed to by any Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Subsidiaries).

Foreign Benefit Arrangement Event” means (a) the failure of a Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted Subsidiaries) to make its required material contributions in respect of any Foreign Benefit Arrangement when such contributions are payable; (b) the failure of a Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted Subsidiaries) to administer any Foreign Benefit Arrangement in any material respect in accordance with its terms and all applicable laws, statutes, rules, regulations and orders (to the extent that any Loan Party or Restricted Subsidiary (other than any Canadian Loan Party or its Restricted Subsidiaries) is required by law to administer); (c) the occurrence of an act or omission in respect of any Foreign Benefit Arrangement which could give rise to the imposition on a Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted Subsidiaries) of material fines, penalties or related charges under applicable laws, statutes, rules, regulations and orders; (d) the assertion of a material claim (other than a routine claim for benefits) against a Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted Subsidiaries) in respect of a Foreign Benefit Arrangement; (e) the imposition of a Lien affecting the assets of a Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted Subsidiaries) in respect of any Foreign Benefit Arrangement; (f) the whole or partial withdrawal of a Loan Party or a Restricted Subsidiary (other than any Canadian Loan Party or its Restricted Subsidiaries) from a Foreign Benefit Arrangement; or (g) any event or condition which might constitute grounds for, or otherwise causes, the termination, in whole or in part, of any Foreign Benefit Arrangement or the appointment of a trustee by a Governmental Authority to administer any Foreign Benefit Arrangement.

Foreign Currency” or “Foreign Currencies” means Available Currencies other than U.S. Dollars.

Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Equivalent of the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the Dollar Equivalent of the aggregate amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.

Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign Currency.

Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.

Foreign Loan Parties” means, each of, and collectively, the Loan Parties other than the U.S. Loan Parties, and the term “Foreign Loan Party” means any one of them or all of them individually, as the context may require.  

Foreign Restricted Subsidiary” means any Restricted Subsidiary that is a Foreign Subsidiary.

Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.

31


 

Funding Account” means the deposit account(s) of each applicable Borrower to which the Administrative Agent is authorized by the Borrowers to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.

GAAP” means, subject to Section 1.04, generally accepted accounting principles in the U.S.

Global Borrowing Base” means, at any time of determination, an amount equal to the sum of (a) the U.S. Borrowing Base as of such time, plus (b) the European Borrowing Base as of such time.

Global Collateral” means any and all property owned, leased or operated by a Global Loan Party covered by the Collateral Documents and any and all other property of any Global Loan Party, now existing or hereafter acquired, that may at any time be, become or be intended to be, subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure the Secured Obligations; provided, however, that, in respect of the assets of any Global Loan Party, “Global Collateral” shall not include any Excluded Assets.

Global Guaranteed Obligations” has the meaning assigned to such term in Section 10.01.

Global Loan Parties” means the Loan Parties.

Global Secured Obligations” means all Obligations, together with all (i) Banking Services Obligations and (ii) Swap Agreement Obligations owing to one or more Lenders or their respective Affiliates, in each case owing by any Loan Party or any Subsidiary thereof; provided, however, that the definition of “Global Secured Obligations” shall not create any guarantee by any Loan Guarantor of (or grant of security interest or other Lien by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor.

Governmental Authority” means the government of the United States, Canada, The Netherlands, the United Kingdom, or any other nation or any political subdivision thereof, whether state, provincial, territorial or local, the European Central Bank, the Council of Ministers of the European Union, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity (including any European supranational body) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

Hazardous Materials” means:  (a) any substance, material, or waste that is included within the definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic substances,” “toxic materials,” “toxic waste,” or words of similar import in any Environmental Law; (b) those

32


 

substances listed as hazardous substances by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency or similar applicable foreign agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical.

IBA” has the meaning assigned to such term in Section 1.05.

Immaterial Subsidiary” means any Restricted Subsidiary that (i) on an individual basis, accounts for less than five percent (5%) of EBITDA of Insight and its Subsidiaries and (ii) together with its Subsidiaries that are Restricted Subsidiaries and every other Immaterial Subsidiary, accounts for less than fifteen percent (15%) of EBITDA of Insight and its Subsidiaries, in each case for the four fiscal quarters ended on the last day of the most recently ended fiscal quarter of Insight for which financial statements have been delivered pursuant to Section 4.01(b) (at all times prior to the first delivery of financial statements after the Effective Date under Section 5.01(a)or (b)) or Section 5.01(a) or (b).

Impacted Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.

Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) current accounts payable, deferred compensation and accrued expenses, in each case incurred in the ordinary course of business and (ii) any bona-fide earn-out obligation until such obligation becomes (or should become) a liability on the balance sheet of such Person in accordance with GAAP and if not paid after being due and payable), (e) all Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty (except to the extent cash collateralized in a manner permitted hereunder), (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) any Disqualified Equity Interests of such Person, and (k) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction; provided that the term “Indebtedness” shall not include (w) deferred or prepaid revenue arising in the ordinary course of business, (x) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller, (y) intercompany liabilities arising from their cash management, tax, and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business, and (z) obligations with respect to any Permitted Convertible Debt Hedge Transaction and any Permitted Share Repurchase Transaction. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

33


 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in the foregoing clause (a) hereof, Other Taxes.

Indemnitee” has the meaning assigned to such term in Section 9.03(b).

Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).

Information” has the meaning assigned to such term in Section 9.12.

Insight” has the meaning assigned to such term in the preamble hereto.

Insight Direct” has the meaning assigned to such term in the preamble hereto.

Insight Enterprises” has the meaning assigned to such term in the preamble hereto.

Insight NA” has the meaning assigned to such term in the preamble hereto.

Insight Netherlands” has the meaning assigned to such term in the preamble hereto.

Insight Networking” has the meaning assigned to such term in the preamble hereto.

Insight Public Sector” has the meaning assigned to such term in the preamble hereto.

Insight Receivables” has the meaning assigned to such term in the preamble hereto.

Insight UK” has the meaning assigned to such term in the preamble hereto.

Insolvency Laws” means each of the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), Dutch Bankruptcy Act (Faillissementswet), the Insolvency Act 1986 (UK), and the European Union Regulation, in each case as amended, and any other applicable state, provincial, territorial or federal bankruptcy, liquidation, conservatorship, assignment for the benefit of creditors, administration, examinership, moratorium, rearrangement, receivership, insolvency, judicial management, reorganization, or similar debtor relief laws, each as now and hereafter in effect, any successors to such statutes and any other applicable insolvency or other similar law of any jurisdiction, including any corporate law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it and including any rules and regulations pursuant thereto.

Interconnect Network” has the meaning assigned to such term in the preamble hereto.

Interest Election Request” means a request by the Borrower Representative to convert or continue a Borrowing in accordance with Section 2.08.

Interest Expense” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of Insight and its Subsidiaries for such period with respect to all outstanding Indebtedness of Insight and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP), calculated on a consolidated basis for Insight and its Subsidiaries for such period in accordance with GAAP; provided that, from and after the Borrower Representative’s written notice to the Administrative Agent of its irrevocable election to deliver the Consolidating Financial

34


 

Statements for all Test Periods ending after such written notice (for so long as any Unrestricted Subsidiaries exist), Interest Expense shall be calculated for Insight and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that Insight shall be required to deliver to the Administrative Agent the related Consolidating Financial Statements with each set of consolidated financial statements referred to in Sections 5.01(a) and (b) with respect to each such applicable Test Period ending after such written notice).

Interest Payment Date” means (a) with respect to any CBFR Loan or Overnight LIBO Loan, the first (1st) Business Day of each calendar quarter and the Maturity Date, and (b) with respect to any Eurocurrency Loan, the last day of each Interest Period applicable to the Borrowing of which such Loan is a part (and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period) and the Maturity Date.

Interest Period” means, with respect to any Eurocurrency Borrowing, the period commencing on the date of such Eurocurrency Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (or, if consented to by each applicable Lender, such other period), as the Borrower Representative may elect; provided, that to the extent applicable (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time; provided, that if any Interpolated rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Inventory” has the meaning assigned to such term in the applicable Collateral Documents.

Inventory Financing Facilitiesmeans those certain inventory finance transactions from time to time entered into by any Loan Party or any Restricted Subsidiary with any of MUFG Bank, Ltd., Wells Fargo Capital Finance, LLC and any of their respective Affiliates and any other Person reasonably acceptable to the Administrative Agent.

Investment” has the meaning assigned to such term in Section 6.04.  For purposes of the definition of “Unrestricted Subsidiary” and Section 6.04:

(a)

“Investments” shall include the portion (proportionate to Insight’s and its Restricted Subsidiaries’ Equity Interests in such subsidiary) of the fair market value of the net assets of a subsidiary of Insight at the time that such subsidiary is designated an Unrestricted Subsidiary; and

35


 

(b)

Any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by Insight.

IRS” means the United States Internal Revenue Service.

Issuing Bank” means, individually and collectively, (a) each of JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and any other Lender from time to time designated by the Borrower Representative as an Issuing Bank, with the consent of such Lender and the Administrative Agent (such consent of the Administrative Agent not to be unreasonably withheld, delayed or conditioned), (b) with respect to Existing Letters of Credit, each issuer thereof, and (c) in each case, their respective successors in such capacity as provided in Section 2.06(i).  Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause such Affiliate to, comply with the requirements of Section 2.06 with respect to such Letters of Credit).  At any time there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.

ITA” means the Income Tax Act 2007 (U.K.), as amended from time to time.

Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit D.

Joint Fee Letter” means that certain Fee Letter, dated as of June 23, 2019, by and between JPMCB and the Borrower Representative as supplemented by that certain Joinder Letter, dated July 12, 2019, from Wells Fargo Bank, N.A. and as further supplemented by that certain Joinder Letter, dated July 12, 2019, from Bank of America, N.A.

JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.

Junior Indebtedness” means any Subordinated Indebtedness of the Loan Parties or any Restricted Subsidiary thereof.

LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).

LC Disbursement” means any payment made by an Issuing Bank pursuant to a Letter of Credit.

LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit, plus (b) the aggregate amount of all LC Disbursements relating to Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers.  The LC Exposure of any Lender at any time shall be its Applicable Percentage of the aggregate LC Exposure at such time.

LCT Election” has the meaning assigned to such term in Section 1.09.

Lender Presentation” means the Lender Presentation dated July 2019 relating to the Borrowers and the Transactions, and delivered to the Administrative Agent prior to the Effective Date.

Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or

36


 

otherwise, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption or otherwise.  Unless the context otherwise requires, the term “Lenders” includes the Issuing Bank.

Letters of Credit” means the letters of credit (including any standby letter of credit, time (usance), or documentary letter of credit or any indemnity, or bank guarantee or similar form of credit support) issued pursuant to this Agreement and shall include the Existing Letters of Credit, and the term “Letter of Credit” means any one of them or each of them singularly, as the context may require.

Letter of Credit Agreement” has the meaning assigned to it in Section 2.06(b).

LIBO Rate” means, with respect to any Eurocurrency Borrowing for any applicable Interest Period or for any CBFR Borrowing, LIBO Screen Rate at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period (or in the case any Eurocurrency Loan denominated in Sterling, 11:00 a.m., London time, on the day of commencement of such Interest Period); provided that, if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”), then the LIBO Rate shall be the Interpolated Rate, subject to Section 2.14 in the event that the Administrative Agent shall conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error).  Notwithstanding the above, to the extent that “LIBO Rate” or “Adjusted LIBO Rate” is used in connection with a CBFR Borrowing, such rate shall be determined as modified by the definition of Adjusted One Month LIBOR Rate.

LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Borrowing for any Interest Period or for any CBFR Borrowing, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for the relevant currency) for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement; provided, further, that to the extent a comparable or successor rate is approved by the Administrative Agent and the Borrowers, the approved rate shall be applied in a manner consistent with market practice (provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined mutually by the Administrative Agent and the Borrowers).

Lien” means, with respect to any asset, (a) any lien, hypothecation, pledge, encumbrance, charge in the nature of a security interest or security interest in, on or of such asset, and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.

Limited Condition Acquisition Agreement” means the definitive acquisition agreement governing a Limited Condition Transaction.

Limited Condition Eligible Transaction” means any Acquisition or similar Investment by any Loan Party or one or more of the Restricted Subsidiaries, including by way of merger or amalgamation, of any assets, business or Person permitted pursuant to this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

37


 

Limited Condition Transaction” means any Limited Condition Eligible Transaction with respect to which the Borrower Representative has made an LCT Election.

Loan Documents” means, collectively, this Agreement, each Fee Letter, any promissory notes issued pursuant to this Agreement, any Letter of Credit Agreement, the Collateral Documents, each Compliance Certificate, any Loan Guaranty, and all other agreements, instruments, documents and certificates executed and delivered by or on behalf of any Loan Party to, or in favor of, the Administrative Agent or any Lender in connection with this Agreement.  Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.

Loan Guarantor” means each Global Loan Party in the case of Article X and the related obligations and rights thereunder.

Loan Guaranty” means Article X of this Agreement and, to the extent applicable, each separate Guarantee, in form and substance reasonably satisfactory to the Administrative Agent, delivered by each Loan Guarantor that is a Foreign Subsidiary (which Guarantee shall be governed by the laws of the country in which such Foreign Subsidiary is located).

Loan Parties” means, collectively, the U.S. Loan Parties, the Canadian Loan Parties, the U.K. Loan Parties, the Dutch Loan Parties, and any other Restricted Subsidiary of Insight who becomes a party to this Agreement pursuant to a Joinder Agreement (and the execution of any Guarantee, as applicable) and their respective successors and assigns, and the term “Loan Party” shall mean any one of them or all of them individually, as the context may require.  For the avoidance of doubt, Loan Parties shall not include any Excluded Subsidiary.

Loans” means the loans and advances made by the Lenders pursuant to this Agreement, including Overadvances and Protective Advances.

Local Time” means (a) (i) local time in New York with respect to a Loan, Letter of Credit, Borrowing or LC Disbursement made, repaid, or requested, as applicable, by or on behalf of any U.S. Borrower denominated in U.S. Dollars, and (ii) local time in London with respect to a Loan, Letter of Credit, Borrowing or LC Disbursement made, repaid, or requested, as applicable, by or on behalf of any U.S. Borrower denominated in any Available Currency (other than Dollars), and (b) local time in London with respect to a Loan, Letter of Credit, Borrowing or LC Disbursement made, repaid, or requested, as applicable, by or on behalf of any Dutch Borrower or any U.K. Borrower.

M2 Marketplace” has the meaning assigned to such term in the preamble hereto.

Margin Stock” means margin stock within the meaning of Regulations T, U and X, as applicable.

Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, or financial condition of the Borrowers and their Restricted Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under the Loan Documents to which it is a party, (c) a material portion of the Collateral, or the Administrative Agent’s liens (on behalf of itself and the Lenders) on a material portion of the Collateral or the priority of such liens, or (d) the material rights of or benefits available to the Administrative Agent, the Issuing Banks or the Lenders in connection with the Loan Documents.

38


 

Material Indebtedness” means Indebtedness (other than the Obligations), or obligations in respect of one or more Swap Agreements, of any one or more of the Loan Parties and their Restricted Subsidiaries in an aggregate principal amount exceeding $50,000,0000.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Loan Party or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Loan Party or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

Material Subsidiary” means any Restricted Subsidiary other than an Immaterial Subsidiary.

Maturity Date” means August 30, 2024 or any earlier date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof.

Maximum Rate” has the meaning assigned to such term in Section 9.17.

Merger Sub” means Trojan Acquisition Corp., a Delaware corporation and a Wholly Owned Subsidiary of Insight prior to the Trojan Acquisition.

Moody’s” means Moody’s Investors Service, Inc.

Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Income” means, for any period, the consolidated net income (or loss) of Insight and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that, from and after the Borrower Representative’s written notice to the Administrative Agent of its irrevocable election to deliver the Consolidating Financial Statements for all Test Periods ending after such written notice (for so long as any Unrestricted Subsidiaries exist), Net Income shall be calculated for Insight and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it being understood that Insight shall be required to deliver to the Administrative Agent the related Consolidating Financial Statements with each set of consolidated financial statements referred to in Sections 5.01(a) and (b) with respect to each such applicable Test Period ending after such written notice).

Net Orderly Liquidation Value” means, with respect to Inventory (or any category thereof) of any Person, the orderly liquidation value thereof as determined by reference to the most recent inventory appraisal received by the Administrative Agent by an appraiser acceptable to the Administrative Agent in its Permitted Discretion, net of all costs of liquidation thereof.

New Collection Account” has the meaning assigned to such term in Section 5.17.

New JPM Collection Account” has the meaning assigned to such term in Section 5.17.

Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d).

NYFRB” means the Federal Reserve Bank of New York.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day(or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds

39


 

broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the Loan Parties to any of the Lenders, the Administrative Agent, the Issuing Bank or any indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, in each case arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof; provided, however, that the definition of “Obligations” shall not create any guarantee by any Loan Guarantor of (or grant of security interest or other Lien by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor.

OECD” means the Organisation for Economic Co-operation and Development.

OnSale Holdings” has the meaning assigned to such term in the preamble hereto.

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or any Loan Document).

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19).

Overadvance” has the meaning assigned to such term in Section 2.05(b).

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.

Overnight Foreign Currency Rate” means, for any amount payable in a currency other than Dollars, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related credit event, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to,

40


 

the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.

Overnight LIBO” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Overnight LIBO Rate.

Overnight LIBO Rate” means, with respect to any Overnight LIBO Borrowing on any day, (a) a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for overnight deposits of an Available Currency as displayed on the applicable Reuters screen page (LIBOR01 or LIBOR02) (or, in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., London time, on such day; provided that if the Overnight LIBO Rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement, plus (b) any mandatory or other reserve cost.

Paid in Full” or “Payment in Full” means, (a) the indefeasible payment in full in cash of all outstanding Loans and LC Disbursements, together with accrued and unpaid interest thereon, (b) the termination, expiration, or cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of a cash deposit, or at the discretion of the Administrative Agent a backup standby letter of credit reasonably satisfactory to the Administrative Agent and the applicable Issuing Bank, in an amount equal to 103% of the LC Exposure as of the date of such payment), (c) the indefeasible payment in full in cash of the accrued and unpaid fees, (d) the indefeasible payment in full in cash of all reimbursable expenses and other Secured Obligations (other than Unliquidated Obligations for which no claim has been made and other obligations expressly stated to survive such payment and termination of this Agreement), together with accrued and unpaid interest thereon, (e) the termination of all Commitments, and (f) the termination of the Swap Agreement Obligations and the Banking Services Obligations or entering into other arrangements reasonably satisfactory to the Secured Parties counterparties thereto.

Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

Participating Member States” means, at any time, any member state of the European Union which has the Euro as its lawful currency in accordance with the legislation of the European Union relating to the Economic and Monetary Union.

Participant” has the meaning assigned to such term in Section 9.04(c).

Participant Register” has the meaning assigned to such term in Section 9.04(c).

Payment Conditions” means, at any applicable time of determination with respect to a specified transaction, event, or payment that is subject to the satisfaction of the Payment Conditions, that:

(a)

no Specified Event of Default has then occurred and is continuing or would result after giving effect to such specified transaction, event or payment,

(b)

either (i) pro forma Aggregate Excess Availability on the date of such specified transaction, event or payment and the pro forma Average Aggregate Excess Availability for the thirty (30)-consecutive day period immediately preceding such specified transaction, event or

41


 

payment (in each case, calculated on a pro forma basis to include the borrowing of any Revolving Loans or issuance of any Letters of Credit in connection with such specified transaction, event or payment) exceeds the greater of (A) 15% of the Aggregate Commitment then in effect and (B) $180,000,000, or (ii) both (A) the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for the most recent fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 4.01(b) (at all times prior to the first delivery of financial statements after the Effective Date under Section 5.01(a) or (b)) or Section 5.01(a) or (b) after giving effect to such specified transaction, event or payment, is at least 1.0 to 1.0 and (B) pro forma Aggregate Excess Availability on the date of such proposed transaction, event or payment and the pro forma Average Aggregate Excess Availability for the thirty (30)-consecutive day period immediately preceding such specified transaction, event or payment (in each case, calculated on a pro forma basis to include the borrowing of any Revolving Loans or issuance of any Letters of Credit in connection with such proposed transaction, event or payment) is at least the greater of (1) 12.5% of the Aggregate Commitment and (2) $150,000,000, and

(c)

in the case of any such transaction, event or payment involving more than $10,000,000, the Borrower Representative shall have delivered a customary officer’s certificate to the Administrative Agent certifying as to compliance with the requirements of clauses (a) and (b).

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

PCM” has the meaning assigned to such in the preamble hereto.

PCM BPO” has the meaning assigned to such term in the preamble hereto.

PCM Logistics” has the meaning assigned to such term in the preamble hereto.

PCM Sales” has the meaning assigned to such term in the preamble hereto.

PCM Services” has the meaning assigned to such term in the preamble hereto.

PCM Technology” has the meaning assigned to such term in the preamble hereto.

PCMG” has the meaning assigned to such term in the preamble hereto.

Permitted Acquisition” means (a) the Trojan Acquisition and (b) any other Acquisition by any Loan Party or any Restricted Subsidiary, in the case of clause (b) in a transaction that satisfies each of the following requirements:

(r)such Acquisition is not a hostile or contested acquisition;

(s)the business or Person acquired in connection with such Acquisition is engaged  in or constitutes a business permitted pursuant to Section 5.03(b);

(t)no Event of Default exists at the time of such Acquisition or would result therefrom; provided that, solely with respect to Limited Condition Transactions, the condition set forth in this clause (b) shall be required to be satisfied only at the time of execution of the applicable Limited Condition Acquisition Agreement;

42


 

(u)the Payment Conditions are satisfied with respect to such Acquisition (or, at the option of the Borrower Representative, if such Acquisition is a Limited Condition Transaction, the condition set forth in this clause (d) shall be required to be satisfied only at the time of execution of the applicable Limited Condition Acquisition Agreement; provided, however, compliance with any Aggregate Excess Availability or Average Aggregate Excess Availability requirement set forth in the definition of “Payment Conditions” shall be tested as of the date of consummation of such Limited Condition Transaction);

(v)to the extent the aggregate consideration for such Acquisition exceeds $75,000,000 (or, in the case of an Acquisition of assets by a Loan Party, $50,000,000), then not less than fifteen (15) Business Days (or such shorter time as may be agreed to by the Administrative Agent) prior to such Acquisition, the Borrower Representative has provided the Administrative Agent (i) notice of such Acquisition and (ii) a copy of all business and financial information (including pro forma financial statements and all Borrowing Base projections) relating to the acquired business reasonably requested by the Administrative Agent and available to the Borrower Representative;

(w)if the Accounts and Inventory acquired in connection with such Acquisition are proposed to be included in the determination of the applicable Borrowing Base, unless waived by the Administrative Agent in its sole discretion, the Administrative Agent shall have conducted an audit and field examination of such Accounts and Inventory, as applicable, the results of which shall be satisfactory to the Administrative Agent in its Permitted Discretion; provided, however, that Accounts and Inventory acquired in connection with Permitted Acquisitions shall not be deemed ineligible solely on account of this clause (f) to the extent the aggregate value of all such Accounts and Inventory does not exceed $75,000,000 at any one time (provided, that, the advance rate against Eligible Accounts included in accordance with this proviso shall be deemed to be 70% and the advance rate against Eligible Inventory included in accordance with this proviso shall be deemed to be 50%, in each case, until such time as an appraisal and field examination with respect to the applicable target or business, reasonably satisfactory to the Administrative Agent, has been completed);

(x)if such Acquisition is an acquisition of Equity Interests, such Acquisition will not result in any violation of Regulation U;

(y)all actions required to be taken with respect to any newly acquired or formed Wholly Owned Subsidiary of a Borrower or a Loan Party, as applicable, required under Section 5.14 shall have been taken or shall be taken within the times required thereby; and

(z)to the extent the aggregate consideration for such Acquisition exceeds $75,000,000 (or, in the case of an Acquisition of assets by a Loan Party, $50,000,000), the Borrower Representative shall have delivered to the Administrative Agent (i) the substantially final form documentation relating to such Acquisition within five (5) days (or such later date as the Administrative Agent may agree) prior to the consummation thereof to the extent available to the Borrower Representative, and (ii) the final executed documentation relating to such Acquisition within three (3) days (or such later date as the Administrative Agent may agree) following the consummation thereof.

Permitted Bond Hedge” means any Swap Agreement that is settled (after payment of any premium or any prepayment thereunder) through the delivery of cash, Qualified Equity Interests of Insight (or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight) or a combination of cash and Qualified Equity Interests of Insight

43


 

(or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight) and is entered into in connection with any Convertible Debt Securities of Insight, one of the purposes of which is, together with any Permitted Warrant entered into concurrently therewith, to provide for an effectively higher conversion premium.

Permitted Convertible Debt Hedge Transaction” means (a) any Permitted Bond Hedge and any Permitted Warrant or (b) any capped call or similar transaction having substantially the same economic effect as the foregoing.

Permitted Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

Permitted Encumbrances” means:

(aa)Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;

(bb)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s landlords’ and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than sixty (60) days or are being contested in compliance with Section 5.04;

(cc)pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(dd)deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature or obligations in respect of letters of credit issued in support thereof, in each case in the ordinary course of business;

(ee)judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and

(ff)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of any Borrower or any Restricted Subsidiary;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clause (d) (solely with respect to Letters of Credit) or (e) above.

Permitted Investments” means:

(gg)direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States or Canada (or by any agency thereof to the extent such obligations are backed by the full faith and credit of such government), in each case maturing within one year from the date of acquisition thereof;

44


 

(hh)investments in commercial paper maturing within one (1) year from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(ii)investments in certificates of deposit, bankers’ acceptances and time deposits maturing within one (1) year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States, Canada or any State, province or territory thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

(jj)fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;

(kk)money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, and (ii) are rated AAA by S&P and Aaa by Moody’s;

(ll)cash denominated in Available Currencies or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business; and

(mm)in the case of any Foreign Subsidiary, high quality, short‑term liquid Investments made by such Foreign Subsidiary in the ordinary course of managing its surplus cash position in investments in any OECD country of similar quality as those described in clauses (a) through (f) above.

Permitted Share Repurchase Transaction” means an accelerated share repurchase transaction or other structured share repurchase transaction entered into by Insight for the purpose of purchasing its Qualified Equity Interests.

Permitted Warrant” means one or more call options settled through the delivery of cash, Qualified Equity Interests of Insight (or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight) or a combination of cash and Qualified Equity Interests of Insight (or other securities or property following a merger event, reclassification or other change of such Qualified Equity Interests of Insight), sold concurrently with the entry into one or more Permitted Bond Hedges and having an initial strike or exercise price (howsoever defined) that is greater than the strike or exercise price (howsoever defined) of such Permitted Bond Hedge.

Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.

45


 

PPSA” means the Personal Property Security Act (Ontario), as amended from time to time (or any successor statute) including the regulations thereto; provided that, if validity, perfection or the effect of perfection or non-perfection or opposability or the priority of any Lien created hereunder on the Collateral is governed by the personal (movable) property security legislation or other applicable legislation with respect to personal (movable) property security in effect in a jurisdiction other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including, without limitation, the Civil Code of Quebec) in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such validity, perfection, effect of perfection or non-perfection or opposability or priority.

Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

Priority Payable Reserve” means, with respect to jurisdictions other than the U.S. (or any state thereof) and Canada (or any province or territory thereof), any Reserve established in the Permitted Discretion of the Administrative Agent in accordance with Section 1.10 for amounts which rank or are capable of ranking prior to the Liens granted to the Administrative Agent under the Collateral Documents, including, without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, or vacation pay, severance pay, employee deductions, income tax, insolvency costs (including the expenses and liabilities incurred by any administrator or other insolvency officer) and any remuneration of such administrator or other insolvency officer, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or movable property), sales tax and pension obligations and, to the extent prescribed pursuant to English law and statute then in force, the “prescribed part” of floating charge realizations held for unsecured creditors.

Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.

Pro Forma Basis means, as to any Person, for all Specified Transactions that occur subsequent to the commencement of an applicable Test Period except as set forth in Section 1.06, all calculations of the Fixed Charge Coverage Ratio and EBITDA will give pro forma effect to such Specified Transactions as if such Specified Transactions occurred on the first day of such Test Period.  Whenever any calculation is made on a Pro Forma Basis hereunder, such calculation shall be made in good faith by a Financial Officer of the Borrower Representative; provided that no such calculation shall include cost savings or synergies unless such cost savings and synergies are either (x) in compliance with Regulation S-X under the Securities Act of 1933, as amended or (y) based on actions taken or to be taken within 12 months of the relevant transaction and in an amount for any Test Period, when aggregated with the amount of any increase to EBITDA for such Test Period pursuant to clause (b)(ix) of the definition of “EBITDA,” that does not exceed 10% of EBITDA for such Test Period (calculated prior to giving effect to any increase pursuant to this clause (y) or clause (b)(ix) of the definition of “EBITDA”).

Projections” has the meaning assigned to such term in Section 5.01(f).

Protective Advance” has the meaning assigned to such term in Section 2.04(a).

46


 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public-Sider” means a Lender whose representatives may trade in securities of the Borrowers or their Controlling Persons or any of their Subsidiaries while in possession of the financial statements provided by the Loan Parties under the terms of this Agreement.

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

QFC Credit Support” has the meaning assigned to it in Section 9.21.

Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualified Equity Interests” means any Equity Interests that do not constitute Disqualified Equity Interests.

Recipient” means, as applicable, (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any combination thereof (as the context requires).

Refinance Indebtedness” has the meaning assigned to such term in Section 6.01(f).

Refinancing” means prior to, or substantially contemporaneously with the consummation of the initial Borrowing on the Effective Date, all Existing Indebtedness will be repaid, redeemed, defeased, discharged or terminated and, as applicable, all commitments, guarantees, liens and security interests thereunder will be terminated (or arrangements reasonably satisfactory to the Arrangers for such termination shall have been made).

Register” has the meaning assigned to such term in Section 9.04(b).

Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

Related Parties” means, with respect to any specified Person, (a) any controlling Person or controlled Affiliate of such Person, (b) the respective directors, officers, or employees of such Person or any of its controlling Persons or controlled Affiliates, and (c) the respective agents of such Person or any of its controlling Persons or controlled Affiliates, in the case of this clause (c), acting on behalf of or at

47


 

the instructions of such Person, controlling Person or controlled Affiliate; provided that each reference to a controlled Affiliate in this definition pertains to a controlled Affiliate involved in the negotiation or syndication of the Loan Documents and the Loans hereunder.

Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping of any substance into the environment.

Rent Reserve” means, if and to the extent that the Administrative Agent has not received a Collateral Access Agreement with respect to any location where Eligible Inventory or books and records are located, an amount equal to no more than three (3) months’ rent or charges payable in respect to such location, together with all other accrued and unpaid fees, costs and expenses owing by the applicable Borrower in connection therewith.

Report” means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the assets of the Borrowers, the Canadian Loan Guarantors, and En Pointe JV from information furnished by or on behalf of the Borrowers, the Canadian Loan Guarantors, and En Pointe JV, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent.

Required Lenders” means, subject to Section 2.20, at any time, Lenders having Revolving Exposure and unused Commitments representing more than 50% of the sum of the Aggregate Exposure and unused Commitments at such time.

Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, or other organizational or governing documents of such Person and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator or court or other Governmental Authority (including Environmental Laws), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Reserves” means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, to maintain in accordance with Section 1.10 (including, without limitation, reserves for accrued and unpaid interest on any of the Secured Obligations, Priority Payable Reserves, Canadian Priority Payable Reserves, Banking Services Reserves, reserves in respect of Secured Inventory Financing Indebtedness solely in connection with the U.S. Borrowing Base, Rent Reserves and reserves for consignee’s, processor’s, warehousemen’s and bailee’s charges in respect of Eligible Inventory, reserves for dilution of Accounts (not to exceed the amount necessary to reduce advance rates by one percentage point (or fraction thereof, rounding to the nearest one-tenth of one percentage point) for each percentage point (or fraction thereof, rounding to the nearest one-tenth of one percentage point) by which dilution exceeds five percent (5.0%)), reserves for Inventory shrinkage, reserves for customs charges and shipping charges related to any Inventory in transit, reserves for Swap Agreement Obligations, reserves for uninsured losses in respect of Inventory of any U.S. Borrower, and reserves for unpaid taxes, fees, assessments, and other governmental charges) with respect to the Collateral or any Loan Party.

Responsible Officer” means the president, Financial Officer or other executive officer of a Loan Party.

48


 

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Insight or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or any option, warrant or other right to acquire any such Equity Interests.

Restricted Subsidiary” means, collectively, any existing or future direct or indirect Subsidiary of any Loan Party, other than any Unrestricted Subsidiary but including, at all times, the Borrowers (other than Insight).

REVLIBOR30 Rate” means the London interbank offered rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for Dollars) for a one (1) month period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as shall be selected by the Administrative Agent in its reasonable discretion; in each case the “REVLIBOR30 Screen Rate”) at approximately 11:00 a.m., London time, two (2) Business Days prior to the first (1st) Business Day of each month, adjusted monthly on the first (1st) Business Day of each month; provided that, (x) if the REVLIBOR30 Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement and (y) if the REVLIBOR30 Screen Rate shall not be available at such time for such a period, then the REVLIBOR30 Rate shall be equal to the CB Floating Rate.

Revolving Exposure” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate principal amount of Protective Advances outstanding at such time, plus (c) an amount equal to its Applicable Percentage of the aggregate principal amount of Overadvances outstanding at such time.

Revolving Exposure Limitations” shall have the meaning assigned to such term in Section 2.01.

Revolving Loan” means a Loan made pursuant to Section 2.01.

S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.

Sale and Leaseback Transaction” has the meaning assigned to such term in Section 6.06.

Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba (only with respect to Loan Parties organized outside of Canada or any province or territory thereof), Iran, North Korea and Syria).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the Government of Canada, the United Nations Security Council, the European Union or any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses, (a) or (b), or (d) any Person otherwise the subject of any Sanctions, including a Canadian Blocked Person.

49


 

Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the Government of Canada (including the Canadian Economic Sanctions and Export Control Laws), or (c) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.

SEC” means the Securities and Exchange Commission of the U.S.

Secured Inventory Financing Indebtedness” means any Indebtedness of any Loan Party under any inventory supply chain financing secured by the Collateral pursuant to the terms of the Loan Documents; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed $100,000,000.

Secured Obligations” means the Global Secured Obligations.

Secured Parties” means (a) the Administrative Agent, (b) the Lenders, (c) each Issuing Bank, (d) each provider of Banking Services, to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (e) each counterparty to any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, (f) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document, and (g) the successors and assigns of each of the foregoing.

Specified Event of Default” means an Event of Default set forth in clause (a), (b), (c) (solely in respect of any material misrepresentation set forth in any Borrowing Base Certificate), (d) (solely in respect of failure to comply with Section 6.12), (e) (solely in respect of the failure (x) to deliver a Compliance Certificate as required pursuant to Section 5.01(e) (y) to deliver a Borrowing Base Certificate as required pursuant to Section 5.01(g), or (z) failure to comply with Section 5.16 or 5.17), or (h) or (i) of Article VII, or an Event of Default as a result of a breach of Article 7 of the U.S. Security Agreement and/or the Canadian Security Agreement.

Specified Merger Agreement Representations” means the representations and warranties made by PCM in the Trojan Merger Agreement as are material to the interests of the Lenders, but only to the extent that Insight (or Insight’s applicable Affiliates) have the right (determined without regard to any notice requirement) not to consummate the transactions as contemplated by the Trojan Merger Agreement or to terminate Insight’s (or such Affiliates’) obligations under the Trojan Merger Agreement, as a result of a breach of such representations and warranties.

Specified Representations” means those representations and warranties made by the Loan Parties (after giving effect to the Trojan Acquisition) in Sections 3.01(a) (solely as to the Loan Parties), 3.02(a), 3.03(b), 3.08, 3.13, 3.16 (subject to the last paragraph of Section 4.01), 3.18, 3.19, and 3.21.

Specified Transaction” means any Disposition outside the ordinary course of business involving the Disposition of assets with an aggregate book value in excess of $25,000,000 and any Permitted Acquisition or other Investment permitted hereunder or occurring prior to the Effective Date involving an aggregate consideration in excess of $25,000,000 (or any similar transaction or transactions).

Spot Selling Rate” means, on any date of determination, the spot selling rate posted by ICE Data Services for the sale of the applicable currency for U.S. Dollars at approximately 11:00 a.m., Local Time, two (2) Business Days prior to such date (the “Applicable Quotation Date”); provided that if, for any reason, no such spot rate is being quoted, the spot selling rate shall be determined by reference to such

50


 

publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent, or, in the event no such service is selected, such spot selling rate shall instead be the rate determined by the Administrative Agent as the spot rate of exchange in the market where its foreign currency exchange operations in respect of the applicable currency are then being conducted, at or about 11.00 a.m. Local Time, on the Applicable Quotation Date for the purchase of the relevant currency for delivery two (2) Business Days later.

Stack Data Solutions” has the meaning assigned to such term in the preamble hereto.

Stack Technology” has the meaning assigned to such term in the preamble hereto.

Stack Telecommunications” has the meaning assigned to such term in the preamble hereto.

Statements” has the meaning assigned to such term in Section 2.18(g).

Stratiform USA” has the meaning assigned to such term in the preamble hereto.

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D).  Such reserve percentages shall include those imposed pursuant to Regulation D of the Board.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D of the Board or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Sterling” and “£” means the lawful currency of the United Kingdom.

Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the Secured Obligations to the written satisfaction of the Administrative Agent.

subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent and/or one or more subsidiaries of the parent.

Subsidiary” means any direct or indirect subsidiary of Insight or another Loan Party, as applicable.

Supermajority European Tranche Lenders” means, at any time, European Tranche Lenders (other than Defaulting Lenders) having European Tranche Revolving Exposures and unused European Tranche Commitments representing at least 66 2/3% of the sum of the aggregate European Tranche

51


 

Revolving Exposures of all European Tranche Lenders and unused European Tranche Commitments at such time.

Supermajority U.S. Tranche Lenders” means, at any time, U.S. Tranche Lenders (other than Defaulting Lenders) having U.S. Tranche Revolving Exposures and unused U.S. Tranche Commitments representing at least 66 2/3% of the sum of the aggregate U.S. Tranche Revolving Exposures of all U.S. Tranche Lenders and unused U.S. Tranche Commitments at such time.

Supported QFC” has the meaning assigned to in Section 9.21.

Swap Agreementmeans any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions (including, for the avoidance of doubt, any Permitted Convertible Debt Hedge Transaction and any Permitted Share Repurchase Transaction); provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrowers or the Subsidiaries shall be a Swap Agreement.

Swap Agreement Obligations” means any and all obligations of the Loan Parties and their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction permitted hereunder with a Lender or an Affiliate of a Lender.

Swap Obligation” means, with respect to any Loan Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.

TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) which utilizes a single shared platform and which was launched on 19 November 2007 for the settlement of payments in Euros.

Target” has the meaning set forth in the recitals hereto.

Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

(a)

a company resident in the United Kingdom for United Kingdom tax purposes; or

(b)

a partnership each member of which is:

(i)a company so resident in the United Kingdom; or

(ii)a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the

52


 

CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

Tax Deduction” means a deduction or withholding for or on account of Taxes from a payment under a Loan Document, other than a FATCA Deduction.

Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings, (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Test Period” means each period of four consecutive fiscal quarters of Insight and its Subsidiaries then most recently ended.

Tranche” means the U.S. Tranche and/or the European Tranche, as the context may require.

Transactions” means the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof, the issuance of Letters of Credit hereunder, and the consummation of the Trojan Acquisition, in each case on the Effective Date.

Trojan Acquisition” has the meaning set forth in the recitals hereto.

Trojan Merger Agreement” has the meaning set forth in the recitals hereto.

Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, CBFR, or the Overnight LIBO Rate.

UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.

U.K. Borrowers” means, each of, and collectively, Insight UK, Insight Networking, Stack Technology, Stack Data Solutions, Stack Telecommunications, Interconnect Network, PCM Technology, any other Restricted Subsidiary incorporated under the laws of England and Wales approved by the Administrative Agent that joins this Agreement as a “U.K. Borrower” in accordance with the terms hereof, and “U.K. Borrower” means any of them or all of them individually, as the context may require.

U.K. Borrowing Base” means, at any time, the Dollar Equivalent of the result of, subject to the terms of Section 1.10:

(nn)the Account Advance Rate of the U.K. Eligible Accounts at such time, less

(oo)Reserves applicable to the U.K. Borrowing Base established by the Administrative Agent in its Permitted Discretion in accordance with Section 1.10.

53


 

U.K. Collateral Documents” means, collectively, the U.K. Debenture and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure any of the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, debentures, share charges, pledges, powers of attorney, assignments, financing statements, in each case now or hereafter executed by any U.K. Loan Party and delivered to the Administrative Agent that are intended to create, perfect or evidence Liens on assets of any U.K. Loan Party to secure any of the Secured Obligations.

U.K. Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant U.K. Borrower, which: (a) where it relates to a U.K. Treaty Lender that is a party to this Agreement as a Lender as at the date of the Agreement, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in the Commitment Schedule, and is filed with HM Revenue & Customs within thirty (30) days of the date of this Agreement; or (b) where it relates to a U.K. Treaty Lender that is not a party to this Agreement as a Lender as at the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the Assignment and Assumption which it executes on becoming a party to this Agreement as a Lender, and is filed with HM Revenue & Customs within thirty (30) days of the date on which that U.K. Treaty Lender becomes a Party to this Agreement as a Lender.

U.K. Debenture” means the English law debenture dated as of the date hereof, by and among the U.K. Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties.

U.K. Eligible Accounts” means the Eligible Accounts owned by a U.K. Borrower billed from and collected in the United Kingdom or any other jurisdiction satisfactory to the Administrative Agent in its Permitted Discretion owing by an Account Debtor in the United States, Canada or an Approved Jurisdiction that comply in all material respects with each of the representations and warranties respecting Eligible Accounts that are U.K. Eligible Accounts made in the Loan Documents.

U.K. Loan Parties” means, each of, and collectively, the U.K. Borrowers, Insight Enterprises UK Limited, a company incorporated under the laws of England with registration number 4051772, and any other Restricted Subsidiary of Insight organized under the laws of England and Wales who becomes a party to this Agreement pursuant to a Joinder Agreement and their respective successors and assigns, and the term “U.K. Loan Party” means any one of them or all of them individually, as the context may require.  For the avoidance of doubt, U.K. Loan Parties shall not include any Excluded Subsidiary.

U.K. Non-Bank Lender” means (a) a Lender identified in the Commitment Schedule as a “U.K. Non-Bank Lender”; and (b) a Lender which becomes a party to this Agreement after the Effective Date and which gives a Tax Confirmation in the Assignment and Assumption which it executes on becoming a party to this Agreement as a Lender.

U.K. Qualifying Lender” means (a) a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is (i) a Lender: (A) that is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or (B) in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that such advance was made and is within the charge to United Kingdom corporation tax with respect to any payments of interest made in respect of that advance; or (ii) a Lender which is: (A) a company resident in the United Kingdom for United Kingdom tax purposes; (B) a partnership, each member of which is: (1) a company so resident in the

54


 

United Kingdom; or (2) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a  permanent establishment and which brings into account in computing its chargeable profits (within the  meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance falls to it by reason of Part 17 of the CTA; or (C) a company not so resident in the United Kingdom which  carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or (iii) a U.K. Treaty Lender; or (b) a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Loan Document.

U.K. Treaty Lender” means a Lender which: (a) is treated as a resident of a U.K. Treaty State for the purposes of the relevant U.K. Treaty; (b) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in any advance is effectively connected; and (c) fulfils any other conditions which must be fulfilled under the relevant U.K. Treaty by residents of that U.K. Treaty State (subject to the completion of any necessary procedural or filing requirements) for such residents to obtain full exemption from United Kingdom taxation on interest payable to that Lender in respect of an advance under a Loan Document.

U.K. Treaty State” means a jurisdiction having a double taxation agreement (a “U.K. Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

Unfinanced Capital Expenditures” means, for any period, Capital Expenditures made during such period which are not financed from the proceeds of any Indebtedness (other than the Revolving Loans; it being understood and agreed that, to the extent any Capital Expenditures are financed with Revolving Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures).

Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.

Unrestricted Subsidiary” means (a) as of the Effective Date, each Subsidiary of Insight (if any) listed on Schedule 1.01(b), (b) any Subsidiary of Insight designated by Insight as an Unrestricted Subsidiary pursuant to Section 5.15 subsequent to the Effective Date and (c) any Subsidiary of an Unrestricted Subsidiary; provided that (i) notwithstanding the foregoing clauses (a), (b) and (c), in no event shall any Borrower be an Unrestricted Subsidiary and (ii) subject to the provisions of Section 5.15, any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary shall cease to be an Unrestricted Subsidiary.

U.S.” means the United States of America.

U.S. Borrowers” means, each of, and collectively, Insight, Insight NA, Insight Direct, Insight Public Sector, Insight Receivables, Calence Physical Security, PCM, PCM Logistics, PCM Sales, PCMG, Abreon, M2 Marketplace, En Pointe Technologies, Cross Line Products, PCM BPO, OnSale Holdings, PCM Services, Stratiform USA, Merger Sub, any other Restricted Subsidiary of Insight incorporated under the laws of the United States approved by the Administrative Agent that joins this Agreement as a “U.S. Borrower” in accordance with the terms hereof, and “U.S. Borrower” means any of them or all of them individually, as the context may require.

55


 

U.S. Borrowing Base” means, collectively, at any time, the Dollar Equivalent of the result of, subject to the terms of Section 1.10:

(a)

the sum of (i) the Account Advance Rate of the U.S. Eligible Accounts of each U.S. Borrower and each Canadian Loan Guarantor at such time, (ii) the lesser of (A) $60,000,000 and (B) the Account Advance Rate of the U.S. Borrowers’ Eligible Accounts at such time billed from and collected in the United States (or any other jurisdiction acceptable to the Administrative Agent) owing by an Account Debtor in an Approved Jurisdiction, and (iii) the lesser of (A) $10,000,000 and (B) the Account Advance Rate of the Eligible Accounts of each Canadian Loan Guarantor at such time billed from and collected in Canada owing by an Account Debtor in an Approved Jurisdiction, plus

(b)

the lesser of (i) 70% of the U.S. Borrowers’ Eligible Finished Goods Inventory (valued at the lower of cost (FIFO) or market) at such time, and (ii) the product of 85% multiplied by the Net Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered by the Administrative Agent multiplied by the U.S. Borrowers’ Eligible Finished Goods Inventory (valued at the lower of cost (FIFO) or market) at such time, plus

(c)

the product of 85% multiplied by the Net Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered by the Administrative Agent multiplied by the U.S. Borrowers’ Eligible Work-In-Process Inventory at such time, less

(d)

Reserves applicable to the U.S. Borrowing Base (which include for greater certainty, Canadian Priority Payable Reserves) established by the Administrative Agent in its Permitted Discretion in accordance with Section 1.10.

U.S. Collateral Documents” means, collectively, the U.S. Security Agreement, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure any of the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, debentures, share charges, pledges, powers of attorney, assignments, financing statements, in each case now or hereafter executed by any U.S. Loan Party and delivered to the Administrative Agent that are intended to create, perfect or evidence Liens on assets of any U.S. Loan Party to secure any of the Secured Obligations.

U.S. Dollar” or “$” refers to the lawful money of the U.S.

U.S. Eligible Accounts” means, (a) the Eligible Accounts owned by a U.S. Borrower billed from and collected in the United States or any other jurisdiction satisfactory to the Administrative Agent in its Permitted Discretion owing by an Account Debtor in the United States or Canada, and (b) the Eligible Accounts owned by a Canadian Loan Guarantor billed and collected in Canada owing by an Account Debtor in the United States or Canada, in each case, that comply in all material respects with each of the representations and warranties respecting Eligible Accounts that are U.S. Eligible Accounts made in the Loan Documents.

U.S. Excess Availability” means, at any time of determination, any amount equal to (a) the U.S. Line Cap minus (b) the aggregate U.S. Tranche Revolving Exposure of all U.S. Tranche Lenders.

U.S. Line Cap” means, at any time of determination, an amount equal to the lesser of (a) the aggregate amount of the U.S. Tranche Commitments of all U.S. Tranche Lenders and (b) the U.S. Borrowing Base.

56


 

U.S. Loan Parties” means, each of, and collectively, the U.S. Borrowers, Insight Direct Worldwide, Inc., an Arizona corporation, Insight Canada Holdings, Inc., an Arizona corporation, Insight Technology Solutions, Inc., a Delaware corporation, Insight Receivables Holding, LLC, an Illinois limited liability company, Calence, LLC, a Delaware limited liability company, and any other Restricted Subsidiary of Insight organized under the laws of the United States who becomes a party to this Agreement pursuant to a Joinder Agreement and their respective successors and assigns, and the term “U.S. Loan Party” means any one of them or all of them individually, as the context may require.  For the avoidance of doubt, U.S. Loan Parties shall not include any Excluded Subsidiary.

U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Restricted Subsidiary” means each Restricted Subsidiary that is not a Foreign Restricted Subsidiary.

U.S. Security Agreement” means that certain U.S. Pledge and Security Agreement (including any and all supplements thereto), dated as of the date hereof, by and among the U.S. Loan Parties party thereto and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties.

U.S. Special Resolution Regime” has the meaning assigned to it in Section 9.21.

U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).

U.S. Tranche” means the U.S. Tranche Commitments, the U.S. Tranche Revolving Loans and the U.S. Tranche LC Exposure.

U.S. Tranche Commitment” means, with respect to each U.S. Tranche Lender, the commitment, if any, of such U.S. Tranche Lender to make U.S. Tranche Revolving Loans and to acquire participations in U.S. Tranche Letters of Credit, Overadvances, and Protective Advances hereunder, as such commitment may be reduced or increased pursuant to (a) Section 2.09 and (b) assignments by and to such U.S. Tranche Lender pursuant to Section 9.04. The initial amount of each U.S. Tranche Lender’s U.S. Tranche Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption (or other documentation contemplated by this Agreement) pursuant to which such U.S. Tranche Lender shall have assumed its U.S. Tranche Commitment, as applicable.  The aggregate principal amount of the U.S. Tranche Commitments as of the Effective Date is $1,050,000,000.

U.S. Tranche Credit Event” means a U.S. Tranche Revolving Borrowing, the issuance, amendment, renewal or extension of a U.S. Tranche Letter of Credit, the making of an Overadvance or a Protective Advance that the U.S. Tranche Lenders are required to participate in pursuant to the terms hereof, or any of the foregoing.

U.S. Tranche LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Equivalent of all outstanding U.S. Tranche Letters of Credit at such time plus (b) the aggregate Dollar Equivalent of all LC Disbursements in respect of U.S. Tranche Letters of Credit that have not yet been reimbursed by or behalf of the U.S. Borrowers at such time.  The U.S. Tranche LC Exposure of any U.S. Tranche Lender at any time shall be its U.S. Tranche Percentage of the total U.S. Tranche LC Exposure at such time.

57


 

U.S. Tranche Lender” means a Lender with a U.S. Tranche Commitment or any U.S. Tranche Revolving Exposure.

U.S. Tranche Letter of Credit” means any Letter of Credit issued under the U.S. Tranche Commitments pursuant to this Agreement.

U.S. Tranche Percentage” means, with respect to any U.S. Tranche Lender, percentage equal to a fraction the numerator of which is such U.S. Tranche Lender’s U.S. Tranche Commitment and the denominator of which is the aggregate U.S. Tranche Commitments of all U.S. Tranche Lenders; provided that, if the U.S. Tranche Commitments have terminated or expired, the U.S. Tranche Percentages shall be determined based upon such Lender’s share of the aggregate U.S. Tranche Revolving Exposures of all U.S. Tranche Lenders at that time; provided further that, in accordance with Section 2.20, so long as any U.S. Tranche Lender shall be a Defaulting Lender, such U.S. Tranche Lender’s U.S. Tranche Commitment shall be disregarded in the foregoing calculation.

U.S. Tranche Revolving Borrowing” means a Borrowing comprised of U.S. Tranche Revolving Loans.

U.S. Tranche Revolving Exposure” means, with respect to any U.S. Tranche Lender at any time, and without duplication, the sum of (a) the Dollar Equivalent of the outstanding principal amount of such U.S. Tranche Lender’s U.S. Tranche Revolving Loans plus (b) the Dollar Equivalent of such U.S. Tranche Lender’s U.S. Tranche LC Exposure plus (c) an amount equal to such U.S. Tranche Lender’s U.S. Tranche Percentage of the aggregate outstanding principal amount of Overadvances at such time that U.S. Tranche Lenders have purchased participations in pursuant to the terms hereof plus (d) an amount equal to such U.S. Tranche Lender’s U.S. Tranche Percentage of the aggregate outstanding principal amount of Protective Advances at such time that U.S. Tranche Lenders have purchased participations in pursuant to the terms hereof.

U.S. Tranche Revolving Loan” means a Loan made by a U.S. Tranche Lender pursuant to Section 2.01.

USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

VAT” means (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.  

WEPPA” means the Wage Earner Protection Program Act (Canada).

Wholly Owned Subsidiary” means, with respect to any Person at any date, a subsidiary of such Person of which securities or other ownership interests representing 100% of the Equity Interests (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) are, as of such date, owned, controlled or held by such Person or one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

58


 

Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.02.  Classification of Loans and Borrowings

.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Loan”).  Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Borrowing”).

Section 1.03.  Terms Generally

.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply) and all judgments, orders and decrees of all Governmental Authorities.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, amended and restated, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignments set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference in any definition to the phrase “at any time” or “for any period” shall refer to the same time or period for all calculations or determinations within such definition, and (g) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Section 1.04.  Accounting Terms; GAAP.  (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if after the date hereof there occurs any change in GAAP or in the application thereof on the operation of any provision hereof and the Borrower Representative notifies the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of such change in GAAP or in the application thereof (or if the Administrative Agent notifies the Borrower Representative that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith

. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or

59


 

any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Restricted Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.

(b)Notwithstanding anything to the contrary contained in Section 1.04(a) or in the definition of “Capital Lease Obligations,” any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2018, such lease shall not be considered a capital lease, and all calculations and deliverables (other than financial statements) under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.

Section 1.05.  Interest Rates; LIBOR Notifications

.  The interest rate on Eurocurrency Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate.  The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market.  In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Loans.  In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate.  In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 2.14(c) of this Agreement, such Section 2.14(c) provides a mechanism for determining an alternative rate of interest.  The Administrative Agent will notify the Borrower Representative, pursuant to Section 2.14, in advance of any change to the reference rate upon which the interest rate on Eurocurrency Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.14(c), will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

Section 1.06.  Pro Forma Calculations

.  For purposes of any calculation of the Fixed Charge Coverage Ratio or EBITDA, in the event that any Specified Transaction has occurred during the Test Period for which the Fixed Charge Coverage Ratio or EBITDA is being calculated or, except for purposes of determining whether an Event of Default under Section 6.12 has occurred, following the end of such Test Period but prior to the date that financial statements have been delivered pursuant to Section 5.01(a) or (b), such calculation shall be made on a Pro Forma Basis.

60


 

Section 1.07.  Currency Translations; Currency Matters

.  

(a)For purposes of this Agreement and the other Loan Documents, where the permissibility of a transaction or determinations of required actions or circumstances depend upon compliance with, or are determined by reference to, amounts stated in Dollars, such amounts shall be deemed to refer to Dollars or Dollar Equivalents and any requisite currency translation shall be based on the Spot Selling Rate; provided, however, that for purposes of determining compliance with Article VI with respect to the amount of any Indebtedness, Investment, Disposition or Restricted Payment in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred or Disposition or Restricted Payment made.  In particular, without limitation, for purposes of computations hereunder, unless expressly provided otherwise, where a reference is made to a Dollar amount, the amount is to be considered as the amount in Dollars and, therefore, each other currency shall be converted into the Dollar Equivalent thereof in Dollars, as applicable.

(b)For purposes of all calculations and determinations under this Agreement, any amount in any currency other than Dollars shall be deemed to refer to Dollars or Dollar Equivalents and any requisite currency translation shall be based on the Spot Selling Rate, and all certificates delivered under this Agreement, shall express such calculations or determinations in Dollars or Dollar Equivalents.

(c)The Administrative Agent shall determine the Dollar Equivalent of (i) the Revolving Exposure based on the Spot Selling Rate (A) on or about the date of the related notice requesting any extension of credit hereunder and (B) on any other date, in its reasonable discretion and (ii) any other amount to be converted into Dollars in accordance with the provisions hereof at the time of such conversion.

(d)Each payment owing by any Loan Party hereunder shall be made in the relevant currency specified herein or, if not specified herein, specified in any other Loan Document executed by the Administrative Agent and the Lenders (the “Currency of Payment”) at the place specified herein (such requirements are of the essence to this Agreement).  If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum due hereunder in a Currency of Payment into another currency, the parties hereto agree that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase such Currency of Payment with such other currency at the Spot Selling Rate on the Business Day preceding that on which final judgment is given.  The obligations in respect of any sum due hereunder to any Secured Party shall, notwithstanding any adjudication expressed in a currency other than the Currency of Payment, be discharged only to the extent that, on the Business Day following receipt by such Secured Party of any sum adjudged to be so due in such other currency, such Secured Party may, in accordance with normal banking procedures, purchase the Currency of Payment with such other currency.  Each Loan Party agrees that (i) if the amount of the Currency of Payment so purchased is less than the sum originally due to such Secured Party in the Currency of Payment, as a separate obligation and notwithstanding the result of any such adjudication, such Loan Party shall immediately pay the shortfall (in the Currency of Payment) to such Secured Party and (ii) if the amount of the Currency of Payment so purchased exceeds the sum originally due to such Secured Party, such Secured Party shall promptly pay the excess over to such Loan Party in the currency and to the extent actually received.

Section 1.08.  Québec Matters

.  For purposes of any assets, liabilities or entities located in the Province of Québec (Canada) and for all other purposes pursuant to which the interpretation or

61


 

construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall include “movable property”, (b) “real property” or “real estate” shall include “immovable property”, (c) “tangible property” shall include “corporeal property”, (d) “intangible property” shall include “incorporeal property”, (e) “security interest” and “lien” shall include a “hypothec”, “right of retention”, “prior claim”, “reservation of ownership” and a resolutory clause, (f) all references to filing, perfection, priority, remedies, registering or recording under the Uniform Commercial Code or a Personal Property Security Act shall include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” liens or security interest shall include a reference to an “opposable” or “set up” lien or security interest as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall include a “right of compensation”, (i) “goods” shall include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall include a “mandatary”, (k) “construction liens” or “mechanics, materialmen, repairmen, construction contractors or other like Liens” shall include “legal hypothecs” and “legal hypothec in favour of Persons having taken part in the construction or renovation of an immovable”; (l) “joint and several” shall include “solidary”; (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”; (n) “beneficial ownership” shall include “ownership on behalf of another as mandatary”; (o) “easement” shall include “servitude”; (p) “priority” shall include “prior claim”, as applicable; (q) “survey” shall include “certificate of location and plan”; (r) “state” shall include “province”; (s) “fee simple title” shall include “absolute ownership”; (t) “accounts” shall include “claims”, (u) “legal title” shall include “holding title on behalf of an owner as mandatory or prête‑nom”; (v) “leasehold interest” shall include a “valid lease”; (w) “lease” shall include a “leasing contract” and (x) “guaranty” and “guarantor” shall include “suretyship” and “surety”, respectively. Within one month of the delivery of any financial statements or other information written in a language other than English, at the request of the Administrative Agent or any Lender, the Borrower Representative shall deliver to the Administrative Agent (for distribution to the Lenders) an English translation of such financial statements.

Section 1.09.  Limited Condition Transactions

.  Notwithstanding any other provision of this Agreement, in connection with any action being taken in connection with a Limited Condition Transaction, for purposes of (a) determining compliance with any provision of this Agreement that requires the calculation of the Fixed Charge Coverage Ratio, (b) testing availability under baskets set forth in this Agreement or (c) determining the accuracy of representations and warranties and/or whether a Default or Event of Default or Specified Event of Default shall have occurred and be continuing (other than with respect to Section 4.02), in each case, at the option of the Borrower Representative (the Borrower Representative’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be the date the definitive agreements with respect to such Limited Condition Transaction are entered into, in the case of a Limited Condition Eligible Transaction (in each case, the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent period of four consecutive fiscal quarters ending on or prior to the LCT Test Date (or, if such date is not the last day of any fiscal quarter, the most recently completed fiscal quarter for which financial statements are required to have been delivered pursuant to Section 4.01(b) (at all times prior to the first delivery of financial statements after the Effective Date under Section 5.01(a) or (b)) or Section 5.01(a) or (b)), the Borrower Representative could have taken such action on the relevant LCT Test Date in compliance with such ratio, basket or requirement with respect to the accuracy of representations and warranties or absence of Defaults or Events of Default or Specified Event of Default, such ratio, basket or requirement shall be deemed to have been complied with; provided, with respect to any provision that requires minimum Aggregate Excess Availability or Average Aggregate Excess Availability, compliance with such Aggregate Excess Availability or Average Aggregate Excess Availability test shall be made at the time any Limited Condition Transaction is consummated instead of on the LCT Test Date.  If the

62


 

Borrower Representative has made an LCT Election for any Limited Condition Transaction, then, in connection with any subsequent calculation of the ratios or baskets on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis (or Pro Forma Basis, if applicable) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated.

Section 1.10.  Reserves, Eligibility and Advances Rates

.  The Administrative Agent may, in its Permitted Discretion, but without duplication, (i) establish additional standards of eligibility upon at least five (5) Business Days’ prior written notice to the Borrower Representative (which notice shall include a reasonably detailed description of such additional standards of eligibility), provided that no such additional standards of eligibility may be imposed after the Effective Date based on circumstances, conditions, events or contingencies known to the Administrative Agent as of the Effective Date and for which no eligibility standards were imposed on the Effective Date, unless such circumstances, conditions, events or contingencies shall have changed in any material adverse respect since the Effective Date, (ii) upon the occurrence of and during the continuation of an Event of Default, reduce the advance rates set forth in the definition of any applicable Borrowing Base, and (iii) establish Reserves against eligibility or adjust Reserves upon at least five (5) Business Days’ prior written notice to the Borrower Representative (which notice shall include a reasonably detailed description of such Reserve being established or the adjustment thereto); provided that no such prior notice shall be required for changes to any Reserves resulting solely by virtue of mathematical calculations of the amount of the Reserves in accordance with the methodology of calculation previously utilized; provided, further, that, other than with respect to Banking Services Reserves, no Reserves may be taken after the Effective Date based on circumstances, conditions, events or contingencies known to the Administrative Agent as of the Effective Date and for which no Reserves were imposed on the Effective Date, unless such circumstances, conditions, events or contingencies shall have changed in any material adverse respect since the Effective Date or such Reserve relates to changes in law coming into force after the Effective Date.  During such five (5) Business Day period, (x) the Administrative Agent shall, if requested by the Borrower Representative, discuss any such establishment of a Reserve or additional standard of eligibility or adjustment to a Reserve with the Borrower Representative, and the Borrower Representative may take such action as may be required so that the event, condition or matter that is the basis for such Reserve or additional standard of eligibility or adjustment no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in an additional standard of eligibility more favorable to the Borrowers or result in a lesser adjustment, in each case in a manner and to the extent reasonably satisfactory to the Administrative Agent and (y) no Borrower shall be permitted to request a Borrowing if an Overadvance would result after giving effect to such Reserves, adjustments or additional standards of eligibility.  Notwithstanding anything to the contrary in this Agreement, (1) the amount of any such Reserve or adjustment or additional standard of eligibility shall have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve or such adjustment or such additional standard of eligibility, and (2) no Reserves or changes shall be duplicative of Reserves or adjustments already accounted for through eligibility criteria (including collection/advance rates).

Article II

The Credits

Section 2.01.  Commitments

.  Subject to the terms and conditions set forth herein, (a) each U.S. Tranche Lender severally (and not jointly) agrees to make U.S. Tranche Revolving Loans to the U.S. Borrowers in U.S. Dollars and (b) each European Tranche Lender severally (and not jointly) agrees to

63


 

make European Tranche Revolving Loans to the European Borrowers in Available Currencies, in each case from time to time during the Availability Period in an aggregate principal amount that will not result in:

(i)such U.S. Tranche Lender’s U.S. Tranche Revolving Exposure exceeding such U.S. Tranche Lender’s U.S. Tranche Commitment;

(ii)such European Tranche Lender’s European Tranche Revolving Exposure exceeding such European Tranche Lender’s European Tranche Commitment;

(iii)the Aggregate Exposure exceeding the Aggregate Line Cap;

(iv)the aggregate U.S. Tranche Revolving Exposure of all U.S. Tranche Lenders exceeding the U.S. Line Cap; or

(v)the aggregate European Tranche Revolving Exposure of all European Tranche Lenders exceeding the European Line Cap;

subject, in each case, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances or Overadvances pursuant to the terms of Sections 2.04 and 2.05. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. The limitations on Borrowing referred to in clauses (i) through (v) above are referred to collectively as the “Revolving Exposure Limitations”.

Section 2.02.  Loans and Borrowings.

(a)Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class, Type and currency made by the Lenders ratably in accordance with their respective Commitments of the applicable Class.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.  Any Protective Advance and any Overadvance shall be made in accordance with the procedures set forth in Sections 2.04 and 2.05.

(b)Subject to Section 2.14, (i) each U.S. Tranche Revolving Borrowing denominated in U.S. Dollars and made to the U.S. Borrowers shall be comprised entirely of CBFR Loans or Eurocurrency Loans, (ii) each Revolving Borrowing denominated in U.S. Dollars and made to the U.S. Borrowers that is not a U.S. Tranche Revolving Borrowing shall be comprised entirely of Eurocurrency Loans or Overnight LIBO Loans, (iii) each Revolving Borrowing denominated in an Available Currency (other than U.S. Dollars) and made to the U.S. Borrowers shall be comprised entirely of Eurocurrency Loans or Overnight LIBO Loans, (iv) each Borrowing denominated in an Available Currency and made to the U.K. Borrowers shall be comprised entirely of Eurocurrency Loans or Overnight LIBO Loans, and (v) each Borrowing denominated in an Available Currency and made to the Dutch Borrowers shall be comprised entirely of Eurocurrency Loans or Overnight LIBO Loans, in each case as the Borrower Representative or the applicable Borrower may request in accordance herewith, provided that all Borrowings made to the U.S. Borrowers under the U.S. Tranche on the Effective Date must be made as CBFR Borrowings but may be converted into Eurocurrency Borrowings in accordance with Section 2.08, and all Borrowings made to the U.K. Borrowers, the Dutch Borrowers, and/or the U.S. Borrowers under the European Tranche must be made as Overnight LIBO Borrowings but may be converted into Eurocurrency Borrowings in accordance with Section 2.08. Each

64


 

Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the relevant Borrowers to repay such Loan in accordance with the terms of this Agreement.

(c)At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 (or, if such Borrowing is denominated in an Available Currency (other than U.S. Dollars), the Dollar Equivalent thereof) and not less than $500,000 (or, if such Borrowing is denominated in an Available Currency (other than U.S. Dollars), the Dollar Equivalent thereof).  CBFR Borrowings and Overnight LIBO Borrowings may be in any amount. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of twenty (20) Eurocurrency Borrowings outstanding.

(d)Notwithstanding any other provision of this Agreement, the Borrower Representative shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

Section 2.03.  Requests for Revolving Borrowings

.  To request a Revolving Borrowing, the Borrower Representative shall notify the Administrative Agent of such request either in writing (delivered by hand or fax) by delivering a Borrowing Request in the form of Exhibit F attached hereto (or such other form reasonably approved by the Administrative Agent) signed by a Responsible Officer of the Borrower Representative or through an Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone) not later than (a) in the case of a Eurocurrency Borrowing, 12:00 noon, Local Time, three (3) Business Days before the date of the proposed Borrowing, (b) in the case of an CBFR Borrowing, 12:00 noon (or 1:00 p.m. for the first 90 days after the Effective Date), Local Time, on the date of the proposed Borrowing, and (c) in the case of an Overnight LIBO Borrowing, 10:00 a.m., Local Time, on the date of the proposed Borrowing; provided that any such notice of a Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 12:00 noon, Local Time, on the date of such proposed Borrowing.  Each such Borrowing Request shall be irrevocable (unless otherwise agreed by the Administrative Agent) and each such telephonic Borrowing Request, if permitted, shall be confirmed promptly upon the cessation of the Extenuating Circumstance by hand delivery, facsimile or a communication through an Electronic System to the Administrative Agent of a written Borrowing Request in the form of Exhibit F (or such other form reasonably approved by the Administrative Agent) and signed by a Responsible Officer of the Borrower Representative.  Each such written (or if permitted, telephonic) Borrowing Request shall specify the following information in compliance with Section 2.02:

(i)the name of the applicable Borrower(s);

(ii)the aggregate amount of the requested Borrowing and a breakdown of the separate wires comprising such Borrowing;

(iii)the date of such Borrowing, which shall be a Business Day;

(iv)whether such Borrowing is a U.S. Tranche Borrowing or European Tranche Borrowing;

(v)whether such Borrowing is to be an CBFR Borrowing, a Eurocurrency Borrowing or an Overnight LIBO Borrowing;

65


 

(vi)in the case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and

(vii)the currency of the Loan comprising such Borrowing.

If no election as to the Type of Revolving Borrowing is specified, then (1) in the case of a U.S. Tranche Revolving Borrowing, the requested Revolving Borrowing shall be a CBFR Borrowing, (2) in the case of a Revolving Borrowing made to a U.S. Borrower that is not a U.S. Tranche Revolving Borrowing, the requested Revolving Borrowing shall be a Eurocurrency Borrowing, and (3) in the case of a Revolving Borrowing made to a U.K. Borrower or a Dutch Borrower, the requested Revolving Borrowing shall be a Eurocurrency Borrowing.  If no Interest Period is specified with respect to any requested Eurocurrency Borrowing, then the applicable Borrower(s) shall be deemed to have selected an Interest Period of one month’s duration for such Eurocurrency Borrowing.  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

Section 2.04.  Protective Advances.

(a)Subject to the limitations set forth below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall not have the obligation to), (i) to make Loans (collectively, the “U.S. Tranche Protective Advances”) to the U.S. Borrowers in U.S. Dollars on behalf of the U.S. Tranche Lenders or (ii) make Loans (collectively, the “European Tranche Protective Advances”; and together with the U.S. Tranche Protective Advances, collectively, the “Protective Advances”) to the European Borrowers in any Available Currency on behalf of the European Tranche Lenders, in each case which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (x) to preserve or protect the Collateral, or any portion thereof, (y) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (z) during the occurrence and continuation of an Event of Default or in order to prevent an Event of Default, to pay any other amount chargeable to or required to be paid by the Loan Parties pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 9.03) and other sums payable under the Loan Documents; provided that, (A) the aggregate amount of Protective Advances outstanding at any time and made on behalf of the U.S. Tranche Lenders shall not exceed ten percent (10%) of the aggregate U.S. Tranche Commitments of all U.S. Tranche Lenders at such time, (B) the Dollar Equivalent of the aggregate amount of Protective Advances outstanding at any time and made on behalf of the European. Tranche Lenders shall not exceed ten percent (10%) of the aggregate European Tranche Commitments of all European Tranche Lenders at such time, (C) the U.S. Tranche Revolving Exposure of each U.S. Tranche Lender after giving effect to any U.S. Tranche Protective Advance shall not exceed the U.S. Tranche Commitment of such U.S. Tranche Lender, (D) the European Tranche Revolving Exposure of each European Tranche Lender after giving effect to any European Tranche Protective Advance shall not exceed the European Tranche Commitment of such European Tranche Lender, and (E) the Aggregate Exposure after giving effect to the Protective Advances being made shall not exceed the Aggregate Commitment.  Protective Advances may be made even if the conditions precedent set forth in Section 4.02 have not been satisfied.  The Protective Advances shall be secured by the Liens in favor of the Administrative Agent in and to the applicable Collateral and, all Protective Advances shall constitute Obligations hereunder.  All Protective Advances made to the U.S. Borrowers denominated in U.S. Dollars shall be CBFR Borrowings, all Protective Advances made to the U.S. Borrowers denominated in any other Available Currency (other than

66


 

U.S. Dollars) shall be Overnight LIBO Borrowings, all Protective Advances made to the U.K. Borrowers and/or the Dutch Borrowers denominated in any Available Currency shall be Overnight LIBO Borrowings.  The making of a Protective Advance on any one occasion shall not obligate the Administrative Agent to make any Protective Advance on any other occasion.  The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders.  Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof.  At any time that there is sufficient Aggregate Excess Availability and the conditions precedent set forth in Section 4.02 have been satisfied, the Administrative Agent may request the applicable Lenders to make a Loan pursuant to Section 2.01 to repay a Protective Advance.  At any other time the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.04(b).

(b)Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default), each U.S. Tranche Lender (in the case of any Protective Advance made on behalf of the U.S. Tranche Lenders), or each European Tranche Lender (in the case of any Protective Advance made on behalf of the European Tranche Lenders), as applicable, shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent, without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Applicable Percentage.  From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance.

Section 2.05.  Overadvances.

(a)[Reserved].

(b)Any provision of this Agreement to the contrary notwithstanding, at the request of the Borrower Representative, the Administrative Agent may in its sole discretion (but with absolutely no obligation), on behalf of the U.S. Tranche Lenders or the European Tranche Lenders, (i) make Loans to the applicable Borrowers in amounts such that the requested Loans are not in compliance of the Revolving Exposure Limitations (any such Loans made not in compliance of the Revolving Exposure Limitations, to the extent not in compliance of such limitations, are herein referred to collectively as “Overadvances”) or (ii) (A) deem the amount of U.S. Tranche Revolving Loans outstanding to the U.S. Borrowers that are in excess of the U.S. Excess Availability to be Overadvances or (B) deem the amount of Loans outstanding to the European Borrowers that are in excess of the European Excess Availability to be Overadvances; provided that, no Overadvance shall result in a Default due to Borrowers’ failure to comply with Section 2.01 for so long as such Overadvance remains outstanding in accordance with the terms of this paragraph, but solely with respect to the amount of such Overadvance.  In addition, Overadvances may be made even if the condition precedent set forth in Section 4.02(c) has not been satisfied.  All Overadvances to the U.S. Borrowers shall constitute CBFR Borrowings.  All Overadvances to the U.K. Borrowers and/or the Dutch Borrowers shall constitute Overnight LIBO Borrowings.  The making of an Overadvance on any one occasion shall not obligate the Administrative Agent to make any Overadvance on any other occasion.  The authority of the Administrative Agent to make Overadvances on behalf of the U.S. Tranche Lenders shall be limited to an aggregate principal amount of ten percent (10%) of the aggregate U.S. Tranche Commitments of all U.S. Tranche Lenders at such time, and the authority of the Administrative Agent to made Overadvances on behalf of the European Tranche Lenders shall not exceed an

67


 

aggregate principal amount equal to the Dollar Equivalent of ten percent (10%) of the aggregate European Tranche Commitments of all European Tranche Lenders at such time.  No Overadvance on behalf of a U.S. Tranche Lender shall cause such Lender’s U.S. Tranche Revolving Exposure to exceed its U.S. Tranche Commitment, and no Overadvance on behalf of a European Tranche Lender shall cause such Lender’s European Tranche Revolving Exposure to exceed its European Tranche Commitment.  No Overadvance may remain outstanding for more than thirty (30) days.  Notwithstanding the foregoing, the Required Lenders may at any time revoke the Administrative Agent’s authorization to make Overadvances.  Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof.

(c)Upon the making of an Overadvance (whether before or after the occurrence of a Default), each U.S. Tranche Lender (in the case of any Overadvance made on behalf of the U.S. Tranche Lenders), and each European Tranche Lender (in the case of any Overadvance made on behalf of the European Tranche Lenders) shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent without recourse or warranty, an undivided interest and participation in such Overadvance in proportion to its Applicable Percentage of the U.S. Tranche Commitments and/or the European Tranche Commitments, as applicable.  The Administrative Agent may, at any time, require the Lenders to fund their participations.  From and after the date, if any, on which any Lender is required to fund its participation in any Overadvance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Overadvance.

Section 2.06.  Letters of Credit.

(a)General.  Subject to the terms and conditions set forth herein, the Borrower Representative may request the issuance of Letters of Credit for its own account or for the account of another Borrower denominated in an Available Currency as the applicant thereof for the support of its or its Restricted Subsidiaries’ obligations, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period, and the Issuing Bank may, but shall have no obligation, to issue such requested Letters of Credit pursuant to this Agreement.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, the applicable Issuing Bank shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (B) in any manner that would result in a violation of any Sanctions by any party to this Agreement, (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Requirement of Law relating to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it, or (iii) if the issuance of such Letter of Credit would violate one or more policies of such Issuing Bank

68


 

applicable to letters of credit generally; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed not to be in effect on the Effective Date for purposes of clause (ii) above, regardless of the date enacted, adopted, issued or implemented.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof.

(b)Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower Representative shall deliver by hand or facsimile (or transmit through an Electronic System, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (reasonably in advance of, but in any event no less than prior to 9:00 a.m., Local Time, at least three (3) Business Days prior to the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit (which Letter of Credit shall be in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank), or identifying the Letter of Credit to be amended, renewed or extended, and specifying the name of the applicable Borrower, whether such Letter of Credit is to constitute a U.S. Tranche Letter of Credit or a European Tranche Letter of Credit, the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with clause (c) of this Section), the amount of such Letter of Credit, the Available Currency applicable to such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  Each U.S. Tranche Letter of Credit shall be issued in U.S. Dollars for the account of a U.S. Borrower.  Each European Tranche Letter of Credit shall be issued in any Available Currency for the account of a European Borrower.  In addition, as a condition to any such Letter of Credit issuance, the applicable Borrower shall have entered into a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter of credit application in each case, as required by the applicable Issuing Bank and using such Issuing Bank’s standard form (each, a “Letter of Credit Agreement”).  A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, the Revolving Exposure Limitations shall be satisfied.

(c)Expiration Date.  Each Letter of Credit (other than the Existing Letters of Credit) shall expire (or be subject to termination or non-renewal by notice from the Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, including, without limitation, any automatic renewal provision, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date; provided that any Letter of Credit with a one-year tenor may provide for the renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (ii) above).  Borrowers understand and agree that Issuing Bank is not required to extend the expiration date of any Letter of Credit for any reason. With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of Credit, the

69


 

applicable Issuing Bank, in its sole and absolute discretion, may give notice of nonrenewal of such Letter of Credit and, if the applicable Borrower does not at any time want the then current expiration date of such Letter of Credit to be extended, such Borrower will so notify the Administrative Agent and the applicable Issuing Bank at least 30 calendar days (or such shorter period as the Administrative Agent and such Issuing Bank shall agree) before such Issuing Bank is required to notify the beneficiary of such Letter of Credit or any advising bank of such non-extension pursuant to the terms of such Letter of Credit.

(d)Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each U.S. Tranche Lender with respect to a U.S. Tranche Letter of Credit, and to each European Tranche Lender with respect to a European Tranche Letter of Credit, and each applicable Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such U.S. Tranche Letter of Credit and/or European Tranche Letter of Credit, as applicable.  In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement (in the same currency as such LC Disbursement) made by such Issuing Bank and not reimbursed by the applicable Borrowers on the date due as provided in clause (e) of this Section, or of any reimbursement payment required to be refunded to the applicable Borrowers for any reason.  Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of U.S. Tranche Letters of Credit and/or European Tranche Letters of Credit, as applicable, is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)Reimbursement.  If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, (x) each U.S. Borrower, in the case of any Letter of Credit issued at the request of or on behalf of the U.S. Borrowers, jointly and severally agrees and (y) each European Borrower, in the case of any Letter of Credit issued at the request of or on behalf of the European Borrowers, jointly and severally agrees, to reimburse such LC Disbursement in the same currency as such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local Time, on the next Business Day immediately following the day that the Borrower Representative receives notice of such LC Disbursement; provided that the Borrower Representative may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 (1) that such payment be financed with, to the extent such LC Disbursement was made in U.S. Dollars under the U.S. Tranche, a CBFR Borrowing in an equivalent amount and, to the extent so financed, the applicable Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting CBFR Borrowing, and (2) that such payment be financed with, to the extent such LC Disbursement was made in an Approved Currency under the European Tranche an Overnight LIBO Borrowing in an equivalent amount and, to the extent so financed, the applicable Borrowers’ obligation to make such payment shall be discharged and replaced by the resulting Overnight LIBO Borrowing.  If the applicable Borrowers fail to make such payment when due, the Administrative Agent shall notify each U.S. Tranche Lender (in the case of a U.S. Tranche Letter of Credit), or each European Tranche Lender (in the case of a European Tranche Letter of Credit), in each case of the applicable LC Disbursement, the payment then due from the applicable Borrowers in respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such

70


 

notice, each applicable Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the applicable Borrowers, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the Administrative Agent of any payment from the applicable Borrowers pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the applicable Issuing Bank, then to such Lenders and the applicable Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse the applicable Issuing Bank for any LC Disbursement (other than the funding of Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers of their obligation to reimburse such LC Disbursement.  

(f)Obligations Absolute.  The Borrowers’ joint and several obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) any payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrowers’ obligations hereunder.  None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to any Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by such Borrower that are caused by the applicable Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Bank (as finally determined by a court of competent jurisdiction), the applicable Issuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.  Without limiting anything in this Section 2.06, Borrower Representative will examine a copy of each Letter of Credit and any other documents sent by the applicable Issuing Bank in connection therewith and shall promptly

71


 

notify Issuing Bank (not later than three (3) Business Days following Borrowers’ receipt of documents from Issuing Bank) of any non-compliance with Borrowers’ instructions and of any discrepancy in any document under any presentment or other irregularity.

(g)Disbursement Procedures.  The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  The applicable Issuing Bank shall promptly notify the Administrative Agent and the applicable Borrower by telephone (confirmed by fax or through Electronic Systems) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Loan Parties of their obligation to reimburse the applicable Issuing Bank and the Lenders with respect to any such LC Disbursement.

(h)Interim Interest.  If an Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to (i) if such Borrower is a U.S. Borrower, CBFR Loans and (ii) if such Borrower is a European Borrower under the European Tranche, Overnight LIBO Loans, in each case such interest shall be payable on the date when such reimbursement is due; provided that, if any Borrower fails to reimburse such LC Disbursement when due pursuant to clause (e) of this Section, then Section 2.13(i) shall apply.  Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to clause (e) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i)Replacement and Resignation of an Issuing Bank.

(i)Any Issuing Bank may be replaced at any time by written agreement among the Borrower Representative, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such replacement, (A) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank being replaced under this Agreement with respect to Letters of Credit to be issued thereafter and (B) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

(ii)Subject to the appointment and acceptance of a successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Borrower Representative and the Lenders, in which case, such Issuing Bank shall be replaced in accordance with Section 2.06(i) above.

72


 

(j)Cash Collateralization.  If any Event of Default shall occur and be continuing, on the Business Day following the date that the Borrower Representative receives written notice from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this paragraph, there shall be deposited in one or more accounts with the Administrative Agent (collectively, the “LC Collateral Account”), (i) by the U.S. Borrowers in the name of the Administrative Agent and for the benefit of U.S. Tranche Lenders, an amount in cash equal to 103% of the U.S. Tranche LC Exposure as of such date plus accrued and unpaid interest thereon and (ii) by the European Borrowers in the name of the Administrative Agent and for the benefit of European Tranche Lenders, an amount in cash equal to 103% of the Dollar Equivalent amount of the European Tranche LC Exposure as of such date plus accrued and unpaid interest thereon; provided that (i) the portions of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that any Borrower is not late in reimbursing shall be deposited in the applicable Foreign Currencies in an amount equal to 103% of the actual amount of such undrawn Letters of Credit and LC Disbursements and (ii) the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence and during the continuance of any Event of Default with respect to any Borrower described in clause (h) or (i) of Article VII.  For the purposes of this paragraph, the Foreign Currency LC Exposure shall be calculated using the applicable Spot Selling Rate on the date notice demanding cash collateralization is delivered to the Borrower Representative.  Each applicable Borrower shall also deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.10(b), 2.11(b) or 2.20.  Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the applicable Secured Obligations.  The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collateral Account.  Each Borrower hereby grants the Administrative Agent a security interest in its respective LC Collateral Account and all money or other assets on deposit therein or credited thereto.  Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the applicable Borrowers’ risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in the LC Collateral Account.  Moneys in the applicable LC Collateral Account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the applicable Borrower(s) for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, be applied to satisfy other applicable Secured Obligations.  If any Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence and continuance of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three (3) Business Days after all such Events of Default have been cured or waived as confirmed in writing by the Administrative Agent.  The Administrative Agent shall return to the applicable Borrowers cash collateral required by Section 2.11(b) within three (3) Business Days following the date that such cash collateral is no longer required thereunder.  

(k)Issuing Bank Reports to the Administrative Agent.  Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals (provided that none of the foregoing shall apply to any renewal of a Letter of Credit pursuant to an automatic renewal provision set forth in such Letter of Credit when it is initially issued), all expirations and cancelations and all disbursements and reimbursements, (ii)

73


 

reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed) (provided that none of the foregoing shall apply to any renewal of a Letter of Credit pursuant to an automatic renewal provision set forth in such Letter of Credit when it is initially issued), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and Dollar Equivalent amount of such LC Disbursement, (iv) on any Business Day on which any Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement, and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.  All reporting from each Issuing Bank with respect to any Letter of Credit shall indicate whether each Letter of Credit constitutes a U.S. Tranche Letter of Credit or a European Tranche Letter of Credit.

(l)LC Exposure Determination.  For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.

(m)Letters of Credit Issued for Account of Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Restricted Subsidiary, or states that a Restricted Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from any rights of any Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Restricted Subsidiary in respect of such Letter of Credit, the Borrowers (i) shall reimburse, indemnify and compensate each Issuing Bank hereunder for, in the case of the U.S. Borrowers, such U.S. Tranche Letter of Credit (including to reimburse any and all drawings thereunder), and in the case of the European Borrowers, such European Tranche Letter of Credit (including to reimburse any and all drawings thereunder), in each case as if such Letter of Credit had been issued solely for the account of such Borrower and (ii) irrevocably waive any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Restricted Subsidiary in respect of such Letter of Credit.  Each Borrower hereby acknowledges that the issuance of such Letters of Credit for its Restricted Subsidiaries inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.

Section 2.07.  Funding of Borrowings.

(a)Each Lender shall make each Loan to be made by such Lender hereunder on the proposed date thereof solely by wire transfer of immediately available funds by 2:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Lender’s Applicable Percentage.  The Administrative Agent will make such Loans available to the relevant Borrowers by promptly crediting the funds so received in the aforesaid account of the Administrative Agent to the applicable Funding Account; provided that Loans made to finance the reimbursement of (i) an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank and (ii) a Protective Advance or an Overadvance shall be retained by the Administrative Agent.

74


 

(b)Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with clause (a) of this Section and may, in reliance upon such assumption, make available to the applicable Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrowers each severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including, without limitation, the Overnight Foreign Currency Rate in the case of Loans denominated in a currency other than U.S. Dollars) and (ii) in the case of the Borrowers, (A) if such amount is a Borrowing made to the U.S. Borrowers in U.S. Dollars, the interest rate applicable to CBFR Loans, (B) if such amount is a Borrowing made to the U.S. Borrowers in a Foreign Currency, the interest rate applicable to Overnight LIBO Loans, (C) if such amount is a Borrowing made to the U.K. Borrowers, the interest rate applicable to Overnight LIBO Loans, and (D) if such amount is a Borrowing made to the Dutch Borrowers, the interest rate applicable to Overnight LIBO Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing, provided, that any interest received from a Borrower by the Administrative Agent during the period beginning when Administrative Agent funded the Borrowing until such Lender pays such amount shall be solely for the account of the Administrative Agent.

Section 2.08.  Interest Elections.

(a)Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have an initial Interest Period as specified in such Borrowing Request (or, if not specified therein, an Interest Period of one (1) month’s duration).  Thereafter, the Borrower Representative may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower Representative may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to Overadvances or Protective Advances, which may not be converted or continued.  Notwithstanding anything to the contrary herein, this Section shall not be construed to permit any Borrower, or the Borrower Representative on its behalf, to (i) change the currency of any Borrowing, (ii) elect an Interest Period that does not comply with Section 2.02, or (iii) convert any Borrowing to a Borrowing of a Type not available under such Borrowing or to such Borrower as otherwise set forth herein.

(b)To make an election pursuant to this Section, the Borrower Representative shall notify the Administrative Agent of such election either in writing (delivered by hand or fax) by delivering an Interest Election Request signed by a Responsible Officer of the Borrower Representative or through Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower Representative were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such Interest Election Request shall be irrevocable

75


 

(unless the Administrative Agent otherwise agrees) and each such telephonic Interest Election Request, if permitted, shall be confirmed immediately upon the cessation of the Extenuating Circumstance by hand delivery, Electronic System or facsimile to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower Representative.

(c)Each written (or if permitted, telephonic) Interest Election Request (including requests submitted through an Electronic System) shall specify the following information in compliance with Section 2.02:

(i)the name of the applicable Borrower and the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii)the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)whether the resulting Borrowing, (A) if in Dollars to a U.S. Borrower is to be a CBFR Borrowing or a Eurocurrency Borrowing, (B) if in any Foreign Currency to a U.S. Borrower is to be a Eurocurrency Borrowing or Overnight LIBO Borrowing, (C) if to a U.K. Borrower, is to be a Eurocurrency Borrowing or Overnight LIBO Borrowing, or (D) if to a Dutch Borrower, is to be a Eurocurrency Borrowing or Overnight LIBO Borrowing; and

(iv)if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one month’s duration.  Notwithstanding anything to the contrary contained in this Section, this Section shall not be construed to permit any Borrower, or the Borrower Representative on its behalf, to change the currency of any Borrowing.

(d)Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)If the Borrower Representative fails to deliver a timely Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case of a Borrowing by the U.S. Borrowers denominated in Dollars, such Borrowing shall be converted to a CBFR Borrowing, (ii) in the case of a Borrowing by the U.S. Borrowers denominated in a Foreign Currency, such Borrowing shall automatically continue as a Eurocurrency Borrowing in the same Foreign currency with an Interest Period of one (1) month, (iii) in the case of a Borrowing by a U.K. Borrower, such Borrowing shall continue as a Eurocurrency Borrowing in the same Available Currency with an Interest Period of one (1) month, and (iv) in the case of a Borrowing by a Dutch Borrower, such Borrowing shall continue as a Eurocurrency Borrowing in the same Available Currency with an Interest Period of one (1)

76


 

month.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower Representative, then, so long as an Event of Default is continuing (1) no outstanding Revolving Borrowing denominated in U.S. Dollars and made to a U.S. Borrower may be converted to or continued as a Eurocurrency Borrowing, (2) unless repaid, each Eurocurrency Borrowing made to the U.S. Borrowers denominated in Dollars shall be converted to a CBFR Borrowing at the end of the Interest Period applicable thereto, (3) unless repaid, each Eurocurrency Borrowing denominated in a Foreign Currency and made to a U.S. Borrower shall automatically be continued as a Eurocurrency Borrowing with an Interest Period of (1) month (or such other period determined by the Administrative Agent in its sole discretion) and (4) unless repaid, each Eurocurrency Borrowing made to a U.K. Borrower or a Dutch Borrower shall at the end of the Interest Period applicable thereto be continued as a Eurocurrency Borrowing with an Interest Period of one (1) month (or such other period determined by the Administrative Agent in its sole discretion).

Section 2.09.  Termination and Reduction of Commitments; Increase in Commitments.

(a)Unless previously terminated, the Commitments shall terminate on the Maturity Date.

(b)The Borrowers may at any time terminate the Commitments upon the Payment in Full of the Secured Obligations.

(c)The Borrowers may from time to time reduce the Commitments; provided that (i) each reduction of the Commitments (applied to the U.S. Tranche Commitments and/or the European Tranche Commitments as designated by the Borrower Representative) shall be in a Dollar Equivalent amount that is an integral multiple of $5,000,000 and not less than $5,000,000 and (ii) the Borrowers shall not terminate or reduce the Commitments (or the U.S. Tranche Commitments or the European Tranche Commitments) if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.11, the Revolving Exposure Limitations would not be satisfied.

(d)The Borrower Representative shall notify the Administrative Agent of any election to terminate or reduce the Commitments under clause (b) or (c) of this Section at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower Representative pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Borrower Representative may state that such notice is conditioned upon the effectiveness of other credit facilities or any other transaction, in which case such notice may be revoked by the Borrower Representative (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

(e)The Borrowers shall have the right to increase the Commitments by obtaining additional Commitments (with a corresponding increase to the U.S. Tranche Commitments and/or the European Tranche Commitments, as designated by the Borrower Representative) (or, solely to the extent set forth in clause (h) below, provide commitments under a new facility consisting a Last-Out Incremental Tranche (as defined below)) (each, an “Incremental Commitment”), either

77


 

from one or more of the Lenders or another lending institution (each, an “Incremental Lender”) provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, (ii) the Borrower Representative, on behalf of the Borrowers, may make a maximum of ten (10) such requests, (iii) after giving effect thereto, the sum of the total of the Incremental Commitments does not exceed $500,000,000, (iv) the Administrative Agent and the Issuing Banks have approved the identity of any such new Incremental Lender, such approvals not to be unreasonably withheld, (v) any such new Incremental Lender assumes all of the rights and obligations of a “Lender” hereunder, (vi) the procedure described in Section 2.09(f) has been satisfied, (vii) the structuring, upfront and arranger fees and other similar fees in respect of such Incremental Commitment and the extension of credit thereunder shall be determined by the Borrowers, the Administrative Agent, the Issuing Banks, and the applicable Incremental Lenders, (viii) except as set forth in clause (vii) above or with respect to any Last-Out Incremental Tranche under clause (h) below, any Incremental Commitment shall be on the same terms and pursuant to the same documentation applicable to the applicable existing Commitments hereunder, and (ix) any Incremental Commitment may establish a Canadian facility where one or more Canadian Loan Parties may become borrowers pursuant to (A) customary restrictions and limitations required by local law, (B) an amendment to this Agreement (and delivery of all other additional Loan Documents) required to establish and reflect such Canadian facility, and (C) as agreed between the Borrower Representative and the Administrative Agent.  Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.

(f)Any amendment hereto for such an increase or addition shall be in form and substance reasonably satisfactory to the Administrative Agent and the Borrower Representative, and shall only require the written signatures of the Administrative Agent, the Issuing Banks, the Borrowers and each Incremental Lender being added or increasing its Commitment.  Subject to customary “SunGuard”  or other “certain funds” conditionality provisions to the extent the proceeds thereof are used to finance Acquisitions or similar Investments in each case permitted hereunder (but subject to clause (e)(viii) above), as a condition precedent to such an increase or addition, the Borrowers shall deliver to the Administrative Agent (i) a certificate of each Loan Party signed by an authorized officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (B) in the case of the Borrowers, certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be correct and in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects), and (2) no Event of Default exists or would result therefrom, and (ii) customary legal opinions, in each case to the extent requested by the Administrative Agent.

(g)On the effective date of any such increase or addition, (i) any Incremental Lender increasing (or, in the case of any newly added Incremental Lender, extending) its U.S. Tranche Commitment and/or European Tranche Commitment, as applicable, shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders that have a U.S. Tranche Commitment and/or European Tranche Commitment, as applicable, as being required in order to cause, after giving effect to such increase or addition and the use of such amounts to make payments to such other Lenders, each such Lender’s portion of the outstanding U.S. Tranche Revolving Loans or European Tranche Revolving Loans, as applicable, of all the Lenders to equal its revised Applicable Percentage of such outstanding U.S. Tranche Revolving Loans or European Tranche

78


 

Revolving Loans, as applicable, and the Administrative Agent shall make such other adjustments among the Lenders with respect to the U.S. Tranche Revolving Loans or European Tranche Revolving Loans, as applicable, then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to effect such reallocation and (ii) the applicable Borrowers shall be deemed to have repaid and reborrowed all outstanding U.S. Tranche Revolving Loans or European Tranche Revolving Loans, as applicable, as of the date of any increase (or addition) in the U.S. Tranche Commitment and/or the European Tranche Commitment, as applicable (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower Representative, in accordance with the requirements of Section 2.03).  The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the applicable Borrowers pursuant to the provisions of Section 2.16 if the deemed payment occurs other than on the last day of the related Interest Periods.  Within a reasonable time after the effective date of any increase or addition, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect such increase or addition and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrower Representative, whereupon such revised Commitment Schedule shall replace the old Commitment Schedule and become part of this Agreement.

(h)Any Incremental Commitment may be in the form of a separate “last‑out” tranche (the “Last-Out Incremental Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Rate or other Loans) among the Borrowers, the Administrative Agent and the Incremental Lenders providing the Last-Out Incremental Tranche so long as (i) any loans and related obligations in respect of the Last-Out Incremental Tranche are not guaranteed by any Person other than the Loan Guarantors and are not secured by any assets other than Collateral; (ii) as between (A) the Revolving Loans (other than the Last Out Incremental Tranche) and (B) the Last-Out Incremental Tranche, all proceeds from the liquidation or other realization of the Collateral or application of funds under Section 2.18(b) shall be applied, first to obligations owing under, or with respect to, the Revolving Loans (other than the Last-Out Incremental Tranche), and second to the Last-Out Incremental Tranche; (C) the Borrowers may not prepay Revolving Loans under the Last-Out Incremental Tranche or terminate or reduce the commitments in respect thereof at any time that other Revolving Loans and/or amounts owed in respect of Letters of Credit (unless Cash Collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent) are outstanding; (iii) the Required Lenders shall exercise control of remedies in respect of the Collateral; (iv) no changes affecting the priority status of the Revolving Loans (other than the Last-Out Incremental Tranche) vis‑à‑vis the Last-Out Incremental Tranche may be made without the consent of each of the Lenders (other than the Lenders under Last-Out Incremental Tranche), (v) the final maturity of any Last-Out Incremental Tranche shall not occur, and no Last-Out Incremental Tranche shall require mandatory commitment reductions prior to, the Maturity Date at such time and (vi) except as otherwise set forth in this clause (h), the terms of any Last-Out Incremental Tranche are reasonably satisfactory to the Administrative Agent and the Issuing Banks.

(i)Notwithstanding anything to the contrary in this Agreement, clauses (e) through (i) of this Section shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Section 2.10.  Repayment of Loans; Evidence of Debt.

79


 

(a)Each Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each U.S. Tranche Lender the then unpaid principal amount of each U.S. Tranche Revolving Loan made to such Borrower on the Maturity Date in the currency that such Loan was made, (ii) to the Administrative Agent for the account of each European Tranche Lender the then unpaid principal amount of each European Tranche Revolving Loan made to such Borrower on the Maturity Date in the currency that such Loan was made, (iii) to the Administrative Agent the then unpaid amount of each Protective Advance made for the account of such Borrower on the earlier of the Maturity Date and demand by the Administrative Agent in the currency that such Protective Advance was made, and (iv) to the Administrative Agent the then unpaid principal amount of each Overadvance made for the account of such Borrower on the earlier of the Maturity Date and demand by the Administrative Agent in the currency that such Overadvance was made.  

(b)On each Business Day during a Cash Dominion Period, the Administrative Agent shall apply all funds credited to any Collection Account on such Business Day or the immediately preceding Business Day (at the discretion of the Administrative Agent, whether or not the funds for checks are actually collected, on such Business Day or the immediately preceding Business Day), first to prepay any Protective Advances and Overadvances that may be outstanding, pro rata, denominated in like currency to the currency of the monies in such Collection Account and second to prepay the Loans and to cash collateralize outstanding LC Exposure, denominated in like currency to the currency of the monies in such Collection Account.  In the event and to the extent that any Protective Advances, Overadvances and Loans remain unapplied following such application as a result of a mismatch between the currencies of the amounts in the Collection Accounts and the currencies in which the outstanding Protective Advances, Overadvances, and/or Loans are denominated, the applicable Borrowers shall be deemed to have requested the Administrative Agent to convert any such excess funds to the currency or currencies of the outstanding Protective Advances, Overadvances and/or Loans, and apply such converted amounts to such outstanding Protective Advances, Overadvances and/or Loans  

(c)Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(d)The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class, the Available Currency and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(e)The entries made in the accounts maintained pursuant to clause (c) or (d) of this Section shall be, absent manifest error, prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.

(f)Any Lender may request that Loans made by it to any Borrower be evidenced by a promissory note.  In such event, the relevant Borrower(s) shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent and the

80


 

Borrowers.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form.

Section 2.11.  Prepayment of Loans.

(a)The Borrowers shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in accordance with clause (c) of this Section and, if applicable, payment of any break funding expenses under Section 2.16 but otherwise without premium or penalty.

(b)Except for Overadvances permitted under Section 2.05, (i) in the event and on such occasion that the aggregate U.S. Tranche Revolving Exposures exceed the U.S. Borrowing Base or otherwise is in excess of any of the Revolving Exposure Limitations, the U.S. Borrowers shall prepay their Loans and/or LC Exposure or cash collateralize their LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate amount equal to such excess and (ii) in the event and on such occasion that the aggregate European Tranche Revolving Exposures exceed the European Borrowing Base, or otherwise is in excess of any of the Revolving Exposure Limitations, the European Borrowers shall prepay their Loans and/or LC Exposure or cash collateralize the LC Exposure in an account with the Administrative Agent pursuant to Section 2.06(j), as applicable, in an aggregate amount equal to such excess; provided, that in the case of clause (i) or (ii) above, if such excess arises as a result of the Administrative Agent’s determination of the Dollar Equivalent of the U.S. Tranche Revolving Exposure or the European Tranche Revolving Exposure, as applicable, based on the Spot Selling Rate, then the Borrowers will have three (3) Business Days from the date that the Borrower Representative is notified of such excess to prepay the Loans or LC Exposure, as the case may be, as contemplated this clause (b).

(c)The Borrower Representative shall notify the Administrative  Agent by telephone (confirmed by fax) (except that in relating to Loans to the U.K. Borrowers and/or the Dutch Borrowers, any notice of amounts to be prepaid must be in writing) or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, of any prepayment hereunder not later than 12:00 noon, Local Time, (i) in the case of prepayment of a Eurocurrency Borrowing, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of a CBFR Borrowing or an Overnight LIBO Borrowing, not later than 12:00 noon, Local Time on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated by Section 2.09, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.09.  Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02.  Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.13 and, if applicable, subject to the requirements of Section 2.16.

81


 

Section 2.12.  Fees.

(a)The Borrowers agree to pay to the Administrative Agent for the account of each Lender (other than a Defaulting Lender) a commitment fee, which shall accrue at a rate equal to 0.25% per annum on the average daily amount of the Available Commitment of such Lender during the period from and including the Effective Date to but excluding the date on which the Commitments terminate.  Accrued commitment fees shall be payable in arrears on the first (1st) Business Day of each January, April, July and October and on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b)(i) (A) the U.S. Borrowers agree to pay, or cause to be paid, to the Administrative Agent for the account of each U.S. Tranche Lender (in the case of a U.S. Tranche Letter of Credit) and (B) the European Borrowers agree to pay, or cause to be paid, to the Administrative Agent for the account of each European Tranche Lender (in the case of a European Tranche Letter of Credit), in each case a participation fee with respect to the applicable Lender’s participations in the applicable Letters of Credit issued for the account of the applicable Borrower, which participation fee shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurocurrency Revolving Loans on the average daily amount of such Lender’s LC Exposure in respect thereof (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) each Borrower agrees to pay to each Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by such Issuing Bank for the account of such Borrower during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions with respect to the issuance, creation, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit issued for the account of such Borrower or processing of drawings or payments thereunder.  Participation fees and fronting fees accrued through and including the last day of each calendar quarter shall be payable on the first (1st) Business Day of each January, April, July and October following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10) Business Days after demand.  All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Participation fees and fronting fees in respect of Letters of Credit denominated in U.S. Dollars shall be paid in U.S. Dollars, and participation fees and fronting fees in respect of Letters of Credit denominated in a Foreign Currency shall be paid in such Foreign Currency.

(c)The Borrowers agree to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrowers and the Administrative Agent. In addition, the Borrowers agree to pay all fees payable in the amounts and at the times set forth in the Fee Letters.

82


 

(d)All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any circumstances.

Section 2.13.  Interest.

(a)The Loans (other than Protective Advances and Overadvances) comprising CBFR Borrowings shall bear interest at the CBFR plus the Applicable Rate.

(b)The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.

(c)The Loans (other than Protective Advances and Overadvances) comprising each Overnight LIBO Borrowing shall bear interest at the Overnight LIBO Rate plus the Applicable Rate.

(d)The Loans comprising each Alternate Rate Borrowing shall bear interest at the Alternate Rate plus, if such Loan is a Protective Advance or an Overadvance, 2.00%.

(e)Each Protective Advance and each Overadvance made to the U.S. Borrowers (i) in U.S. Dollars shall bear interest at the CBFR plus the Applicable Rate for Revolving Loans plus 2.00% and (ii) in any other Available Currency shall bear interest at the Overnight LIBO Rate plus the Applicable Rate plus 2.00%.

(f)Each Protective Advance and each Overadvance made to the U.K. Borrowers shall bear interest at the Overnight LIBO Rate plus the Applicable Rate plus 2.00%.

(g)Each Protective Advance and each Overadvance made to the Dutch Borrowers shall bear interest at the Overnight LIBO Rate plus the Applicable Rate plus 2.00%.

(h)[Reserved].

(i)Notwithstanding the foregoing, during the occurrence and continuance of an Event of Default pursuant to clause (a), (b) (h) or (i) of Article VII, if any principal of or interest on any Loan or any fee or other amount payable by the Borrowers hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus the  rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus the rate applicable to CBFR Loans as provided in paragraph (a) of this Section.

(j)Accrued interest on each Loan (for CBFR Loans and Overnight LIBO Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to clause (i) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of a CBFR Loan or an Overnight LIBO Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Loan prior to the end of the current

83


 

Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(k)All interest hereunder shall be computed on the basis of a year of 360 days, except that (i) interest computed by reference to the CB Floating Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) interest computed in reference to any Borrowings in Sterling shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and, in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable CB Floating Rate, Adjusted LIBO Rate, REVLIBOR30 Rate, Overnight LIBO Rate, or the applicable interest rate in respect of any Borrowings in Sterling shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

(l)All interest hereunder shall be paid in the currency in which the Loan giving rise to such interest is denominated.

Section 2.14.  Alternate Rate of Interest; Illegality.

(a)If prior to the commencement of any Interest Period for a Eurocurrency Borrowing or prior to the scheduled funding date of any Overnight LIBO Borrowing:

(i)the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate or the Overnight LIBO Rate, as applicable (including, without limitation, by means of an Interpolated Rate or because the LIBO Screen Rate is not available or published on a current basis) for such Interest Period or such Borrowing, as applicable; or

(ii)the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the LIBO Rate or the Overnight LIBO Rate, as applicable, for such Interest Period or such Borrowing, as applicable, will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period, as applicable;

then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lenders through Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing or Overnight LIBO Borrowing shall be ineffective and any such Eurocurrency Borrowing shall be repaid on the last day of the then current Interest Period applicable thereto, and (B) if any Borrowing Request requests a Eurocurrency Borrowing or Overnight LIBO Borrowing, such Borrowing (1) in the case of a Borrowing to the U.S. Borrowers under the U.S. Tranche, shall be made as a CBFR Borrowing, (2) in the case of a Borrowing to the U.S. Borrowers under the European Tranche, shall be made as an Alternate Rate Borrowing, (3) in the case of a Borrowing to the U.K. Borrowers, shall be made as an Alternate Rate Borrowing, and (4) in the case of a Borrowing to the Dutch Borrowers, shall be made as an Alternate Rate Borrowing; provided that if such circumstances only affect one Class or Type of Borrowing or currency, then the foregoing will only be applicable to the affected Class or Type of Borrowing or currency.

84


 

(b)If any Lender determines that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain, fund or continue any Eurocurrency Borrowing or Overnight LIBO Borrowings, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower Representative through the Administrative Agent, any obligations of such Lender to make, maintain, fund or continue Eurocurrency Loans or Overnight LIBO Borrowings or to convert CBFR Borrowings or Overnight LIBO Borrowings to Eurocurrency Borrowings or Eurocurrency Borrowings to Overnight LIBO Borrowings will be suspended and all Overnight LIBO Borrowings shall continue as Alternate Rate Borrowings and any request for Borrowings under the European Tranche shall be made as Alternate Rate Borrowings, in each case, until such Lender notifies the Administrative Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers will upon demand from such Lender (with a copy to the Administrative Agent), prepay all Eurocurrency Borrowings of such Lender, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans.  Upon any such prepayment, the Borrowers will also pay accrued interest on the amount so prepaid.

(c)If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower Representative shall endeavor to establish an alternate rate of interest to the LIBO Rate and Overnight LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate).  Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this clause (c) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.14(c), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective, (y) if any Borrowing Request requests a

85


 

Eurocurrency Borrowing for a U.S. Borrower in U.S. Dollars under the U.S. Tranche, such Borrowing shall be made as a CBFR Borrowing, and (z) if any Borrowing Request requests a Eurocurrency Borrowing or Overnight LIBO Borrowing under the European Tranche, such Borrowing shall be made as a Borrowing with a rate of interest determined by reference to the Alternative Rate.

Section 2.15.  Increased Costs.

(a)If any Change in Law shall:

(i)impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;

(ii)impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or

(iii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (f) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrowers will, following delivery by such Lender, Issuing Bank or other Recipient of the certificate as described in Section 2.15(c) below, pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered, as reasonably determined by such Lender, such Issuing Bank or such other Recipient (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of  such Lender, such Issuing Bank or such other Recipient, as applicable, under agreements having provisions similar to this Section 2.15, after consideration of such factors as such Lender, such Issuing Bank or such other Recipient, as applicable, then reasonably determines to be relevant; provided that none of such Lender, such Issuing Bank or such other Recipient, as applicable, shall be required to disclose any confidential or proprietary information in connection therewith).

(b)If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of, or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such

86


 

Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the applicable Borrowers will, following delivery by such Lender or such Issuing Bank of the certificate as described in Section 2.15(c) below, pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered, as reasonably determined by such Lender or such Issuing Bank (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of  such Lender or such Issuing Bank, as applicable, under agreements having provisions similar to this Section 2.15, after consideration of such factors as such Lender or such Issuing Bank, as applicable, then reasonably determines to be relevant; provided that none of  such Lender or such Issuing Bank, as applicable, shall be required to disclose any confidential or proprietary information in connection therewith).

(c)A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or an Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error.  The applicable Borrowers shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

(d)Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(e)Section 2.15(a) shall not apply with respect to a Loan or Commitment made to a U.K. Borrower to the extent any increased cost is attributable to a Tax Deduction required by law to be made by any Loan Party, or is compensated for by Section 2.17(l) (or would have been compensated for under Section 2.17(l) but was not so compensated solely because any of the exclusions in Section 2.17(l)(ii) applied).

Section 2.16.  Break Funding Payments

.  In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(d) and is revoked in accordance therewith), or (d) the assignment of any Eurocurrency Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower Representative pursuant to Section 2.19 or 9.02(d) or the CAM Exchange, then, in any such event, the applicable Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which

87


 

would have accrued on the principal amount of such Eurocurrency Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Eurocurrency Loan (exclusive of the Applicable Rate), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurocurrency Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for relevant currency of a comparable amount and period from other banks in the relevant market.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error.  The applicable Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

Section 2.17.  Withholding of Taxes; Gross-Up

.  The provisions of Sections 2.17(a) to (h) shall apply in respect of a U.K. Loan Party to the extent set out therein and where the provisions of Sections 2.17(l) to (r) (inclusive) apply in respect of any U.K. Loan Party, the provisions of Sections 2.17(a) to (h) (inclusive) of Section 2.17 shall not apply to the extent of any conflict with those provisions.

(a)Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law (which includes, for these purposes, the administrative practice of any relevant Governmental Authority).  If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law.  If such Tax is an Indemnified Tax and is payable with respect to a Loan or Commitment extended to a Borrower other than a U.K. Borrower, the sum payable shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.  In respect of any applicable increase to an amount payable as a result of the application of deductions and withholdings from payments with respect to a U.K. Loan Party, see Section 2.17(l) below.

(b)Payment of Other Taxes by the Loan Parties.  The applicable Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for, Other Taxes.

(c)Evidence of Payment.  Save in respect of a U.K. Loan Party, to which the provisions of Section 2.17(l)(v) shall apply, as soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d)Indemnification by the Loan Parties.  The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required

88


 

to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. Notwithstanding the foregoing, this Section 2.17(d) shall not apply to a U.K. Loan Party with respect to a Loan or Commitment extended to a U.K. Borrower, the relevant tax indemnity obligations of which with respect to this Section 2.17 shall be governed by Section 2.17(n).

(e)Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within ten (10) Business Days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this clause (e).

(f)Status of Lenders.  This Section 2.17(f) shall not apply in respect of a payment made under any Loan Document by a U.K. Loan Party.

(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and the Administrative Agent, at the time or times reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower Representative or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,

89


 

(A)any Lender that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent), an executed copy of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent), whichever of the following is applicable:

(1)in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed copy of IRS Form W-8ECI, and in the case of an applicable Foreign Lender, executed copies of IRS Form W-8EXP;

(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate in form and substance satisfactory to the Administrative Agent to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or

(4)to the extent a Foreign Lender is not the beneficial owner, an executed copy of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate in form and substance satisfactory to the Administrative Agent, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S.

90


 

Tax Compliance Certificate in form and substance satisfactory to the Administrative Agent on behalf of each such direct and indirect partner;

(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Representative or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower Representative or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.

(g)Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this clause (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the

91


 

indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.  This clause (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h)VAT.

(i)All amounts set out or expressed under a Loan Document to be payable by any Loan Party to any Credit Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Section 2.17(h)(ii), if VAT is or becomes chargeable on any supply made by any Credit Party to any Loan Party under a Loan Document, that Loan Party shall pay to the Credit Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and the relevant Credit Party shall promptly provide an appropriate VAT invoice to such Loan Party).

(ii)If VAT is or becomes chargeable on any supply made by any Credit Party (the “Supplier”) to any other Credit  Party (for purposes of this Section 2.17(h), the “Customer”) under a Loan Document, and any party other than the Customer (the “Relevant Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Customer in respect of that consideration):

(A)(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Customer must (where this Section 2.17(h)(ii)(A) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Customer receives from the relevant tax authority which the Customer reasonably determines relates to the VAT chargeable on that supply; and

(B)(where the Customer is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Customer, pay to the Customer an amount equal to the VAT chargeable on that supply but only to the extent that the Customer reasonably determines that it is not entitled to a credit or repayment from the relevant tax authority in respect of that VAT.

(iii)Where a Loan Document requires any Loan Party to reimburse or indemnify a Credit Party for any cost or expense, that Loan Party shall reimburse or indemnify (as the case may be) such Credit Party for the full amount of such cost or expense, including such part as represents VAT, save to the extent that such Credit Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(iv)Any reference in this Section 2.17(h) to any Loan Party shall, at any time when such Loan Party is treated as a member of a group or unity (or fiscal unity) for

92


 

VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Direction of 28 November 2006 (2006/112/EC) (or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union)) so that a reference to a Loan Party shall be construed as a reference to that Loan Party or the relevant group or unity (or fiscal unity) of which that Loan Party is a member for VAT purposes at the relevant time or the relevant member (or head) of such group or unity (or fiscal unity) at such time (as the case may be).

(v)In relation to any supply made by a Credit Party to any Loan Party under a Loan Document, if reasonably requested by such Credit Party, that Loan Party must promptly provide such Credit Party with details of that Loan Party’s VAT registration and such other information as is reasonably requested in connection with such Credit Party’s VAT reporting requirements in relation to such supply.

(i)Determination.  Except as otherwise expressly provided in Section 2.17, a reference to “determines” or “determined” in connection with tax provisions contained in Section 2.17 means a determination made in the absolute discretion of the person making the determination.

(j)Survival.  Each party’s obligations under this Section shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document (including the Payment in Full of the Secured Obligations).

(k)For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.

United Kingdom Tax Matters:

(l)Tax Gross-Up.

(i)A U.K. Loan Party shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Administrative Agent accordingly.  Similarly, a Lender shall promptly notify the Administrative Agent on becoming so aware in respect of a payment payable to that Lender.  If the Administrative Agent receives such notification from a Lender it shall notify the Borrower Representative.

(ii)If a Tax Deduction is required by law to be made by or on account of any U.K. Loan Party, the amount of the payment due from that U.K. Loan Party shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(iii)A payment by a U.K. Borrower shall not be increased under Section 2.17(i)(ii) above by reason of a Tax Deduction on account of Taxes imposed by the United Kingdom on interest if, on the date the payment falls due:

93


 

(A)the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a U.K. Qualifying Lender, but on that date that Lender is not or has ceased to be a U.K. Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or U.K. Treaty or any published practice or published concession of any relevant taxing authority; or

(B)the relevant Lender is a U.K. Qualifying Lender solely by virtue of sub-section (a)(ii) of the definition of U.K. Qualifying Lender, and:

(1)an officer of HM Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the U.K. Borrower making the payment a certified copy of that Direction; and

(2)the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

(C)the relevant Lender is a U.K. Qualifying Lender solely by virtue of sub-section (a)(ii) of the definition of U.K. Qualifying Lender and:

(1)the relevant Lender has not given a Tax Confirmation to the Borrower Representative; and

(2)the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Borrower Representative, on the basis that the Tax Confirmation would have enabled the applicable U.K. Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

(D)the relevant Lender is a U.K. Treaty Lender and the applicable U.K. Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Section 2.17(l)(vi) or (vii) (as applicable) below.

(iv)If a U.K. Loan Party is required to make a Tax Deduction, that U.K. Loan Party shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(v)Within thirty (30) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the U.K. Loan Party making that Tax Deduction shall deliver to the Administrative Agent for the benefit of the Lender entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

(vi)

94


 

(A)Subject to sub-section (B) below, a U.K. Treaty Lender and each U.K. Loan Party which makes a payment to which that U.K. Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that U.K. Loan Party to obtain authorization to make that payment without a Tax Deduction.

(B)

(1)A U.K. Treaty Lender which is a Lender on the Effective Date and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in the Commitment Schedule; and

(2)a U.K. Treaty Lender which is not a Lender on the Effective Date and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Administrative Agent and without liability to a U.K. Loan Party) in the Assignment and Assumption which it executes on becoming a party as a Lender by including its scheme reference number and its jurisdiction of tax residence in that Assignment and Assumption, and, having done so, that Lender shall be under no obligation pursuant to sub-section (A) above.

(vii)If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Section 2.17(l)(vi)(B) above and:

(A)a U.K. Borrower making a payment to that Lender has not made a U.K. Borrower DTTP Filing in respect of that Lender; or

(B)a U.K. Borrower making a payment to that Lender has made a U.K. Borrower DTTP Filing in respect of that Lender but:

(1)that U.K. Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

(2)HM Revenue & Customs has not given a U.K. Borrower authority to make payments to that Lender without a Tax Deduction within sixty (60) days of the date of the U.K. Borrower DTTP Filing,

and in each case, the applicable U.K. Borrower has notified that Lender in writing, that Lender and such U.K. Borrower shall co-operate in completing any additional procedural formalities necessary for that U.K. Borrower to obtain authorization to make that payment without a Tax Deduction.

(viii)If a Lender provides an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement, as described in Section 2.17(i)(vi)(B) above, a U.K. Borrower shall make a U.K. Borrower DTTP Filing in respect of such Lender, and shall promptly provide the Administrative Agent with a copy of that filing for delivery to the relevant Lender.

95


 

(ix)If a Lender has not provided an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement, as described in Section 2.17(i)(vi)(B) above, no U.K. Borrower shall file any form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s advance or its participation in any advance unless the Lender otherwise agrees.

(x)A U.K. Non-Bank Lender which becomes a party to this Agreement on the day on which this Agreement is entered into gives a Tax Confirmation to each U.K. Borrower by entering into this Agreement.

(xi)A U.K. Non-Bank Lender shall notify each U.K. Borrower and the Administrative Agent if there is any change in the position from that set out in a Tax Confirmation.

(m)Lender Status Confirmation.  Each Lender which becomes a party to this Agreement after the Effective Date with respect to a Loan or Commitment extended to a U.K. Borrower (each a “New Lender”) shall indicate, in the Assignment and Assumption which it executes on becoming a party, and for the benefit of the Administrative Agent and without liability to any U.K. Loan Party, which of the following categories it falls within (i) not a U.K. U.K. Qualifying Lender, (ii) a U.K. Qualifying Lender (other than a U.K. Treaty Lender), or (iii) a U.K. Treaty Lender.  If a New Lender fails to indicate its status in accordance with this Section 2.17(m), then such New Lender shall be treated for the purposes of this Agreement (including by each U.K. Loan Party) as if it is not a U.K. Qualifying Lender until such time as it notifies the Administrative Agent which category applies (and the Administrative Agent, upon receipt of such notification, shall inform the Borrower Representative).  For the avoidance of doubt, an Assignment and Assumption shall not be invalidated by any failure of a New Lender to comply with this Section 2.17(m).

(n)Tax indemnity.

(i)Any U.K. Loan Party shall (within three (3) Business Days of demand by the Administrative Agent) pay to a Lender an amount equal to the loss, liability or cost which that Lender determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Lender in respect of a Loan or Commitment extended to a U.K. Borrower.

(ii)Section 2.17(n)(i) above shall not apply:

(A)with respect to any Tax assessed on a Lender:

(1)under the law of the jurisdiction in which that Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Lender is treated as resident for Tax purposes; or

(2)under the law of the jurisdiction in which that Lender’s lending office is located in respect of amounts received or receivable in that jurisdiction,

if such Taxes are imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Lender; or

96


 

(B)to the extent a loss, liability or cost:

(1)is compensated for by an increased payment under Section 2.17(l)(ii); or

(2)would have been compensated for by an increased payment under Section 2.17(l)(ii) but was not so compensated solely because one of the exclusions in Section 2.17(l)(iii) applied; or

(3)relates to a FATCA Deduction.

(iii)A Lender making, or intending to make a claim under Section 2.17(l)(i) above shall promptly notify the Administrative Agent of the event which will give, or has given, rise to the claim, following which the Administrative Agent shall notify the U.K. Loan Party.

(iv)A Lender shall, on receiving a payment from a U.K. Loan Party under this Section 2.17(n), notify the Administrative Agent.

(o)[Reserved].

(p)FATCA Information.

(i)Subject to Section 2.17(p)(iii) below, each party shall, within ten (10) Business Days of a reasonable request by another party:

(A)confirm to that other party whether it is:

(1)a FATCA Exempt Party; or

(2)not a FATCA Exempt Party;

(B)supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party’s compliance with FATCA; and

(C)supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party’s compliance with any other law, regulation, or exchange of information regime.

(ii)If a party confirms to another party pursuant to Section 2.17(p)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.

(iii)Section 2.17(p)(i) above shall not oblige any Lender to do anything, and Section 2.17(p)(i)(C) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

(A)any law or regulation;

97


 

(B)any fiduciary duty; or

(C)any duty of confidentiality.

(iv)If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Section 2.17(p)(i)(A) or Section 2.17(p)(i)(B) above (including, for the avoidance of doubt, where Section 2.17(p)(iii) above applies), then such party shall be treated for the purposes of the Loan Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.

(q)FATCA Deduction.

(i)Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(ii)Each party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the party to whom it is making the payment and, in addition, shall notify the Borrower Representative and the Administrative Agent and the Administrative Agent shall notify the Lenders.

(r)Transfer and Assignment.

(i)a Lender assigns or transfers any of its rights or obligations under the Loan Documents or changes its applicable lending office; and

(ii)as a result of circumstances existing at the date the assignment, transfer or change occurs, a U.K. Loan Party would be obliged to make a payment to the New Lender or Lender acting through its new lending office under Section 2.15 or this Section 2.17,

then the New Lender or Lender acting through its new lending office is only entitled to receive payment under those Sections to the same extent as the existing Lender or Lender acting through its previous lending office would have been if the assignment, transfer or change had not occurred.

This Section 2.17(r) shall not apply:

(x)in respect of an assignment or transfer made in the ordinary course of the primary syndication of any Loan; or

(y)in relation to Section 2.17(l), to a U.K. Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with Section 2.17(l)(vi)(B) if the U.K. Borrower making the payment has not made a U.K. Borrower DTTP Filing in respect of that U.K. Treaty Lender; or

98


 

(z) in respect of an assignment or transfer made (A) at the request of a Loan Party, or (B) at a time when an Event of Default is continuing

Section 2.18.  Payments Generally; Allocation of Proceeds; Sharing of Setoffs.

(a)Each Borrower shall make each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on the date when due or the date fixed for any prepayment hereunder, in immediately available funds, without setoff, recoupment or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made (i) with respect to all payments of any Loans made by the U.S. Borrowers under the U.S. Tranche, to the Administrative Agent at its offices at 10 South Dearborn Street, Floor L2, Chicago, Illinois, and (ii) with respect to all payments of any Loans made by the U.S. Borrowers, U.K. Borrowers and/or the Dutch Borrowers under the European Tranche, in each case to the Administrative Agent at its offices at 25 Bank Street, Canary Wharf London E14 5JP, except payments to be made directly to any Issuing Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  Unless otherwise provided for herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists, or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, or the terms of this Agreement require the conversion of such Credit Event into U.S. Dollars, then all payments to be made by such Borrower hereunder in such currency shall, to the fullest extent permitted by law, instead be made when due in U.S. Dollars in an amount equal to the Dollar Equivalent of such amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations or conversion, and each Borrower agrees to indemnify and hold harmless each Issuing Bank, the Administrative Agent and each Lender from and against any loss resulting from any Credit Event made to or for the benefit of such Borrower denominated in a Foreign Currency that is not repaid to such Issuing Bank, the Administrative Agent or such Lender, as the case may be, in the Original Currency.

(b)All payments and any proceeds of Collateral received by the Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the applicable Borrowers), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Collection Account during a Cash Dominion Period (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements then due to the Administrative Agent and the Issuing Banks from the Borrowers (other than in connection with Banking Services Obligations or Swap Agreement Obligations), second, to pay

99


 

any fees, indemnities, or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services Obligations or Swap Agreement Obligations), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements, seventh, to pay an amount to the Administrative Agent equal to 103% of the aggregate LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing in respect of Banking Services Obligations and Swap Agreement Obligations (other than in respect of the Secured Inventory Financing Indebtedness) up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrowers, and tenth, to payment of any amounts owing in respect of the Secured Inventory Financing Indebtedness up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22. Notwithstanding the foregoing amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party.  Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurocurrency Loan of a Class, except (a) on the expiration date of the Interest Period applicable thereto or (b) in the event, and only to the extent, that (i) in the case of payments in U.S. Dollars under the U.S. Tranche, there are no outstanding CBFR Loans of the same Class, and (ii) in the case of payments in any Available Currency under the European Tranche, there are no outstanding Overnight LIBO Loans of the same class, and, in any such event under either clause (i) or (ii), the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.  

(c)At the election of the Administrative Agent, all scheduled payments of interest and all payments of fees required to be paid pursuant to Section 2.12(a) and (b) hereof may be (x) to the extent any Borrowings are outstanding at such time, paid from the proceeds of Borrowings made hereunder (whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section) or (y) to the extent no Borrowings are outstanding at such time, deducted from any deposit account of any Borrower maintained with the Administrative Agent (in each case, unless otherwise agreed between the Administrative Agent and the Borrower Representative).  Each U.S. Borrower hereby irrevocably authorizes (unless otherwise agreed between the Administrative Agent and the Borrower Representative) (i) the Administrative Agent, to the extent any Borrowings are outstanding at such time, to make a Borrowing for the purpose of paying each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder, and agrees that all such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent, to the extent no Borrowings are outstanding at such time, to charge any deposit account of the relevant U.S. Borrower maintained with the Administrative Agent for each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder.  Each U.K. Borrower hereby irrevocably authorizes (unless otherwise agreed between the Administrative Agent and the Borrower Representative) (i) the Administrative Agent, to the extent any Borrowings are outstanding at such time, to make a Borrowing for the purpose of paying each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder, and agrees that all

100


 

such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent, to the extent no Borrowings are outstanding at such time, to charge any deposit account of the relevant U.K. Borrower maintained with the Administrative Agent for each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder. Each Dutch Borrower hereby irrevocably authorizes (unless otherwise agreed between the Administrative Agent and the Borrower Representative) (i) the Administrative Agent, to the extent any Borrowings are outstanding at such time, to make a Borrowing for the purpose of paying each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder, and agrees that all such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent, to the extent no Borrowings are outstanding at such time, to charge any deposit account of the relevant Dutch Borrower maintained with the Administrative Agent for each scheduled payment of interest and each payment of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due hereunder.

(d)If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered,  such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).  Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.  

(e)Unless the Administrative Agent shall have received, prior to any date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank pursuant to the terms hereof or any other Loan Document (including any date that is fixed for prepayment by notice from the Borrower Representative to the Administrative Agent pursuant to Section 2.11(c)), notice from the Borrower Representative that the Borrowers will not make such payment or prepayment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as the case may be, the amount due.  In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be, severally agrees to repay to the

101


 

Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including, without limitation, the Overnight Foreign Currency Rate in the case of Loans denominated in an Available Currency other than Dollars).

(f)If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder.  Application of amounts pursuant to (i) and (ii) above shall be made in any order determined by the Administrative Agent in its discretion.

(g)The Administrative Agent may from time to time provide the Borrowers with account statements or invoices with respect to any of the Secured Obligations (the “Statements”).  The Administrative Agent is under no duty or obligation to provide Statements, which, if provided, will be solely for the Borrowers’ convenience.  Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations.  If the Borrowers pay the full amount indicated on a Statement on or before the due date indicated on such Statement, the Borrowers shall not be in default of payment with respect to the billing period indicated on such Statement; provided, that acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

Section 2.19.  Mitigation Obligations; Replacement of Lenders.

(a)If any Lender requests compensation under Section 2.15, or if any Loan Party is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Loan Parties hereby agree to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)If any Lender requests compensation under Section 2.15, or if any Loan Party is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, then the Loan Parties may, at their sole expense and effort, upon notice by the Borrower Representative to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04, with the Loan Parties or replacement lender responsible for paying any applicable processing and recordation fee), all its interests, rights (other than its existing rights to payments

102


 

pursuant to Section 2.15 or 2.17) and obligations under this Agreement and other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Loan Parties shall have received the prior written consent of the Administrative Agent (and in circumstances where its consent would be required under Section 9.04, each such Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Loan Parties (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments, (iv) such assignment does not conflict with applicable law, and (v) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.  Each party hereto agrees that (x) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower Representative, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (y) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.

Section 2.20.  Defaulting Lenders

.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a)fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);

(b)any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.18(b) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank hereunder; third, to cash collateralize each Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with this Section; fourth, as the Borrower Representative may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize each Issuing

103


 

Bank’s future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the Lenders and/or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;

(c)such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, Supermajority U.S. Tranche Lenders, and/or Supermajority European Tranche Lenders, as applicable, have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02) or under any other Loan Document; provided, that, except as otherwise provided in Section 9.02, this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender directly affected thereby;

(d)if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:

(i)all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s (A) Revolving Exposure to exceed its Commitment, (B) U.S. Tranche Revolving Exposure to exceed its U.S. Tranche Commitment, or (C) European Tranche Revolving Exposure to exceed its European Tranche Commitment, as applicable;

(ii)if the reallocation described in clause (i) above cannot, or can only partially, be effected, the applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent cash collateralize, for the benefit of the Issuing Banks, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in

104


 

accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;

(iii)if the applicable Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

(iv)if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and

(v)if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of the Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and

(e)so long as such Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend, renew, extend or increase any Letter of Credit, unless it is satisfied that such Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable Borrower in accordance with Section 2.20(d), and LC Exposure related to any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(d)(i) (and such Defaulting Lender shall not participate therein).

(f)If (i) a Bankruptcy Event or a Bail-In Action with respect to the Parent of any Lender shall occur following the date hereof and for so long as such event shall continue or (ii) any Issuing Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit, such Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless such Issuing Bank shall have entered into arrangements with the Borrowers or such Lender, satisfactory to the Issuing Bank to defease any risk to it in respect of such Lender hereunder.

(g)In the event that each of the Administrative Agent, the Borrowers and the Issuing Banks agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on the date of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.

Section 2.21.  Returned Payments.  If after receipt of any payment which is applied to the payment of all or any part of the Obligations (including a payment effected through exercise of a right of setoff), the Administrative Agent or any Lender is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason (including pursuant to any settlement entered into by the

105


 

Administrative Agent or such Lender in its discretion), then the Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by the Administrative Agent or such Lender.  The provisions of this Section 2.21