Execution Version 1 AMENDMENT NO. 1 (INCLUDING LIBOR HARDWIRE TRANSITION AMENDMENT) AMENDMENT NO. 1 (this “Agreement”), dated as of June 7, 2023, by and among CDW LLC, an Illinois limited liability company (the “Borrower”), the Lenders party hereto...
Execution Version 1 AMENDMENT NO. 1 (INCLUDING LIBOR HARDWIRE TRANSITION AMENDMENT) AMENDMENT NO. 1 (this “Agreement”), dated as of June 7, 2023, by and among CDW LLC, an Illinois limited liability company (the “Borrower”), the Lenders party hereto (which shall constitute the Required Lenders), and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”). RECITALS WHEREAS, the Borrower desires to amend Section 6.02 of that certain Credit Agreement, dated as of December 1, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and, the Existing Credit Agreement, as amended by this Agreement, the “Credit Agreement”), among the Borrower, each Guarantor party thereto (together with the Borrower, the “Loan Parties”) and the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent, in accordance with Section 9.02(b) of the Existing Credit Agreement as further described in Section 2 below (the “Required Lender Amendments”); WHEREAS, Section 9.02(b) of the Existing Credit Agreement provides that the Administrative Agent, the Borrower and those Lenders that constitute the Required Lenders may amend the Existing Credit Agreement for certain purposes; WHEREAS, the Borrower, the Administrative Agent and the Lenders party hereto (which constitute the Required Lenders) have agreed, on the terms and conditions set forth herein, to the Required Lender Amendments; WHEREAS, certain loans, commitments and/or other extensions of credit (the “Loans”) under the Existing Credit Agreement denominated in dollars incur or are permitted to incur interest, fees or other amounts based on the London interbank offered rate as administered by the ICE Benchmark Administration (“LIBOR”) in accordance with the terms of the Existing Credit Agreement; and WHEREAS, pursuant to Section 2.11(c) of the Existing Credit Agreement, the Administrative Agent has determined in accordance with the Existing Credit Agreement that LIBOR for dollars should be replaced with an alternate rate of interest in accordance with the Existing Credit Agreement and, in connection therewith, the Administrative Agent (in consultation with the Borrower) has determined that certain Benchmark Replacement Conforming Changes are necessary or advisable and such changes shall become effective, on July 1, 2023, without any further consent of any other party to the Existing Credit Agreement or any other Loan Document (the “Conforming Changes Effective Date”). NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings given to such terms in the Credit Agreement. 2. Required Lender Amendments. (a) Section 6.02 of the Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), subject to the terms and conditions set forth in Section 3 below,
2 hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) as set forth below: “The Borrower and the Subsidiary Guarantors will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:”. (b) Section 6.02(l) of the Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), subject to the terms and conditions set forth in Section 3 below, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth below: “Liens on cash securing amounts not to exceed the greater of $250,000,000 and 2% of Total Assets collected by the Borrower or any Subsidiary solely to the extent belonging to and owed to owned by leasing partners, finance companies or third parties, in each case, in connection with Bundled Solutions or consumer customer transaction financings in the ordinary course of business; provided that, in the case of any such Liens securing Indebtedness of the Borrower or any Subsidiary, such Indebtedness shall not exceed the greater of $250,000,000 and 2% of Total Assets;” 3. Conditions to Effectiveness of the Required Lender Amendments. The Required Lender Amendments shall become effective on the date (such date, if any, the “Amendment No. 1 Effective Date”) that the following conditions have been satisfied: (a) The Administrative Agent shall have received a counterpart of this Agreement (which, subject to Section 8, may include any Electronic Signatures transmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page) executed by the Borrower, the Lenders party hereto constituting the Required Lenders and the Administrative Agent; and (b) All reasonable and documented out-of-pocket expenses incurred by the Administrative Agent (but limited to, in the case of legal fees, the reasonable and documented fees, charges and disbursements of a single external U.S. counsel) shall have been paid on or prior to the Amendment No. 1 Effective Date, in each case, to the extent invoiced at least three (3) Business Days prior to the Amendment No. 1 Effective Date. 4. Conforming Changes Amendments. Effective as of the Conforming Changes Effective Date, the Existing Credit Agreement (as amended by the Required Lender Amendments following the Amendment No. 1 Effective Date) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth on Exhibit A attached hereto. 5. Reaffirmation; Reference to and Effect on the Loan Documents. (a) From and after each of the Amendment No. 1 Effective Date and the Conforming Changes Effective Date, each reference in the Existing Credit Agreement to “hereunder,” “hereof,” “this Agreement” or words of like import and each reference in the other Loan Documents to “Credit Agreement,” “thereunder,” “thereof” or words of like import shall, unless the context otherwise requires,
3 mean and be a reference to the Existing Credit Agreement as amended by the Required Lender Amendments and the Conforming Changes Amendments, as applicable. This Agreement is a Loan Document. (b) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. (c) In the event of any conflict between the terms of this Agreement and the terms of the Existing Credit Agreement or the other Loan Documents, the terms hereof shall control. 6. Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury Trial, Etc. SECTIONS 9.09 and 9.10 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS. 7. Amendments; Headings; Severability. This Agreement may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the parties hereto. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting this Agreement. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. 8. Execution in Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement that is an Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution”, “signed”, “signature”, “delivery”, and words of like import in or relating to this Agreement shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. 9. Notices. All notices hereunder shall be given in accordance with the provisions of Section 9.01 of the Credit Agreement. 10. Transition to Adjusted Term SOFR Rate. Notwithstanding any other provision herein or in the Existing Credit Agreement, the parties hereto acknowledge and agree that Eurocurrency Loans (as defined in the Existing Credit Agreement) that are outstanding immediately prior to the Conforming Changes Effective Date (the “Existing Eurocurrency Loans”) shall, after the Conforming Changes Effective Date, continue as Eurocurrency Loans and interest thereon shall continue to be calculated in a manner consistent with the interest calculated thereon prior to the Conforming Changes Effective Date until the end of the applicable Interest Period(s) currently in effect and applicable to such Existing Eurocurrency Loans; provided that, after the end of such applicable Interest Period(s) currently in effect and applicable to such
4 Existing Eurocurrency Loans, the Borrower shall be deemed to have selected a conversion of such Existing Eurocurrency Loans into Term Benchmark Loans with an Interest Period of one (1) month. [Remainder of Page Intentionally Left Blank; Signature Pages Follow]
[Signature Page to Amendment No. 1] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. CDW LLC, as the Borrower By: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Vice President
[Signature Page to Amendment No. 1] CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender By: Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Duly Authorized Signatory
[Signature Page to Amendment No. 1] MIZUHO BANK, LTD., as a Lender By: Name: ▇▇▇▇▇ ▇▇▇▇ Title: Executive Director
[Signature Page to Amendment No. 1] MUFG Bank, LTD., as a Lender By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director
[Signature Page to Amendment No. 1] The Bank of Nova Scotia, as a Lender By: Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Director
[Signature Page to Amendment No. 1] BNP PARIBAS, as a Lender By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Title: Managing Director By: Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Director
[Signature Page to Amendment No. 1] INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED., NEW YORK BRANCH, , as a Lender By:_________________________________ Name: ▇▇ ▇▇▇▇ Title: Director By:_________________________________ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Title: Executive Director
[Signature Page to Amendment No. 1] PNC BANK, NATIONAL ASSOCIATION, as a Lender By: Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Assistant Vice President
Regions Bank, as a Lender By: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President [Signature Page to Amendment No. 1]
[Signature Page to Amendment No. 1] SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: Name: ▇▇▇▇▇ ▇▇▇ Title: Director
[Signature Page to Amendment No. 1] THE HUNTINGTON BANK, as a Lender By: Name: Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Director
[Signature Page to Amendment No. 1] THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Lender By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Authorized Signatory
[Signature Page to Amendment No. 1] BMO ▇▇▇▇▇▇ Bank, N.A., as a Lender By: Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director
[Signature Page to Amendment No. 1] The Northern Trust Company, as a Lender By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Title: SVP
Exhibit A (Attached hereto)
Exhibit ACREDIT AGREEMENTdated as ofDecember 1, 2021,amongCDW LLC,as the Borrower,the GUARANTORS Party Hereto,the LENDERS Party Hereto,JPMORGAN CHASE BANK, N.A.,as the Administrative Agent,andJPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC.,▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and ▇▇▇▇▇ FARGO SECURITIES, LLC,as Joint Lead Arrangers and Bookrunners,andJPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A.,▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and ▇▇▇▇▇ FARGO BANK, N.A.,as Syndication Agents,andCAPITAL ONE, NATIONAL ASSOCIATION,MIZUHO BANK LTD. and MUFG BANK, LTD,as Documentation Agents
TABLE OF CONTENTS PageARTICLE IDefinitions 1SECTION 1.01. Defined Terms 1SECTION 1.02. Classification of Loans and Borrowings 3735SECTION 1.03. Terms Generally 3735SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations 3736SECTION 1.05. Currency Translation 3937SECTION 1.06. Rounding 3938SECTION 1.07. Interest Rates 3938SECTION 1.08. Divisions 4038SECTION 1.09. Times of Day 4038SECTION 1.10. Timing of Payment and Performance 4039SECTION 1.11. Leases 4039ARTICLE IIThe Credits 4039SECTION 2.01. Commitments 4039SECTION 2.02. Loans and Borrowings 4039SECTION 2.03. Requests for Borrowings 4139SECTION 2.04. Funding of Borrowings 4240SECTION 2.05. Interest Elections 4241SECTION 2.06. Termination of Commitments 4342SECTION 2.07. Repayment of Loans; Amortization; Evidence of Debt 4342SECTION 2.08. Prepayment of Loans 4442SECTION 2.09. Fees 4443SECTION 2.10. Interest 4443SECTION 2.11. Inability to Determine Rates 4544SECTION 2.12. Increased Costs; Illegality 4846SECTION 2.13. Break Funding PaymentsLosses 5048SECTION 2.14. Taxes 5049SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs 5452SECTION 2.16. Mitigation Obligations; Replacement of Lenders 5553SECTION 2.17. Defaulting Lenders 5654SECTION 2.18. Certain Permitted Amendments 5756ARTICLE IIIRepresentations and Warranties 5857SECTION 3.01. Organization; Powers 5857SECTION 3.02. Authorization; Enforceability 5957SECTION 3.03. Governmental Approvals; Absence of Conflicts 5957SECTION 3.04. Financial Condition; No Material Adverse Change 5958i
SECTION 3.05. Properties 6058SECTION 3.06. Litigation and Environmental Matters 6059SECTION 3.07. Compliance with Laws 6059SECTION 3.08. Investment Company Status 6159SECTION 3.09. Taxes 6159SECTION 3.10. ERISA 6159SECTION 3.11. Solvency 6160SECTION 3.12. Disclosure 6260SECTION 3.13. Federal Reserve Regulations 6261SECTION 3.14. Use of Proceeds 6261SECTION 3.15. Ranking of Obligations 6261SECTION 3.16. Labor Matters 61SECTION 3.17. Subsidiaries 61ARTICLE IVConditions 6361SECTION 4.01. Effective Date 6361SECTION 4.02. Each Credit Event 6463ARTICLE VAffirmative Covenants 6563SECTION 5.01. Financial Statements and Other Information 6563SECTION 5.02. Notices of Material Events 6665SECTION 5.03. Existence; Conduct of Business 6665SECTION 5.04. Payment of Taxes 6765SECTION 5.05. Maintenance of Properties and Rights 6765SECTION 5.06. Insurance 6766SECTION 5.07. Books and Records; Inspection and Audit Rights 6766SECTION 5.08. Compliance with Laws 6866SECTION 5.09. Use of Proceeds 6867SECTION 5.10. Guaranty 6867SECTION 5.11. Business of the Borrower and its Subsidiaries 6968SECTION 5.12. Transactions with Affiliates 6968SECTION 5.13. Post-Closing Obligations 70ARTICLE VINegative Covenants 7170SECTION 6.01. Limitation on Non-Guarantor Subsidiary Indebtedness and Issuance of Non-Guarantor Preferred Stock 7170SECTION 6.02. Liens 7473SECTION 6.03. Sale/Leaseback Transactions 7776SECTION 6.04. Fundamental Changes 7776SECTION 6.05. Restrictive Agreements 7877SECTION 6.06. Leverage Ratio 7978ii
ARTICLE VIIEvents of Default 7978SECTION 7.01. Events of Default; Remedies 7978ARTICLE VIIIThe Administrative Agent 8281ARTICLE IXMiscellaneous 8887SECTION 9.01. Notices 8887SECTION 9.02. Waivers; Amendments 8988SECTION 9.03. Expenses; Indemnity; Damage Waiver 9291SECTION 9.04. Successors and Assigns 9493SECTION 9.05. Survival 9998SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution 9998SECTION 9.07. Severability 10099SECTION 9.08. Right of Setoff 10099SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 101100SECTION 9.10. WAIVER OF JURY TRIAL 101100SECTION 9.11. Headings 102101SECTION 9.12. Confidentiality 102101SECTION 9.13. Interest Rate Limitation 103102SECTION 9.14. USA PATRIOT Act Notice 103102SECTION 9.15. No Fiduciary Relationship 103102SECTION 9.16. Non-Public Information 103102SECTION 9.17. Judgment Currency 104103SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 104103ARTICLE XGuarantees 105104SECTION 10.01. The Guarantees 105104SECTION 10.02. Guarantee Unconditional 105104SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in CertainCircumstances 106105SECTION 10.04. Subrogation 106105SECTION 10.05. Waivers 106105SECTION 10.06. Limit on Liability 107106SECTION 10.07. Stay of Acceleration 107106SECTION 10.08. Benefit to Guarantors 107106SECTION 10.09. Guarantor Covenants 107106iii
SCHEDULES:Schedule 1.01(a) — Disqualified InstitutionsSchedule 1.01(b) — Immaterial SubsidiariesSchedule 2.01 — CommitmentsSchedule 3.06 — LitigationSchedule 3.16 — Labor MattersSchedule 3.17 — SubsidiariesSchedule 5.13 — Post-Closing ObligationsSchedule 6.01 — Existing IndebtednessSchedule 6.02 — Existing LiensSchedule 6.03 — Certain Sale/Leaseback TransactionsSchedule 6.05 — Restrictive AgreementsSchedule 9.01 — Administrative Agent’s Office; Certain Addresses for NoticesEXHIBITS:Exhibit A — Form of Assignment and AssumptionExhibit B — Form of Borrowing RequestExhibit C — Form of Compliance CertificateExhibit D — Form of Interest Election RequestExhibit E — Form of Solvency CertificateExhibit F — Form of Additional Guarantor SupplementExhibit G — Form of Notice of Loan PrepaymentExhibit H — [Reserved]Exhibit I — Form of U.S. Tax Compliance Certificatesiv
CREDIT AGREEMENT dated as of December 1, 2021, among CDW LLC, an Illinois limitedliability company (the “Borrower”), the GUARANTORS party hereto, the LENDERS party hereto andJPMORGAN CHASE BANK, N.A., as the Administrative Agent.The parties hereto agree as follows: ARTICLE IDefinitionsSECTION 1.01. Defined Terms. As used in this Agreement, the following terms have themeanings specified below:“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or theLoans comprising such Borrowing, are bearing interest at a rate determined by reference to the AlternateBase Rate.“Accepting Lender” has the meaning specified in Section 2.18(a).“Acquired Debt” means, with respect to any specified Person:(1) Indebtedness of any other Person existing at the time such other Person is merged with orinto or became a Subsidiary of such specified Person, including Indebtedness incurred in connection with,or in contemplation of, or to provide all or any portion of the funds or credit support utilized inconnection with, such other Person merging with or into, or becoming a Subsidiary of, such specifiedPerson; provided, however, that any Indebtedness of such acquired Person that is redeemed, defeased,retired or otherwise repaid at the time of or immediately upon consummation of the transactions by whichsuch Person merges with or into, consolidates, amalgamates or otherwise combines with or becomes aSubsidiary of such Person shall not be considered to be Acquired Debt; and(2) Indebtedness secured by an existing Lien encumbering any asset acquired by suchspecified Person.“Acquisition” means any acquisition, or series of related acquisitions (including pursuant to anyamalgamation, merger or consolidation), of property that constitutes (a) assets comprising all orsubstantially all of a division, business or operating unit or product line of any Person or (b) all orsubstantially all of the Equity Interests in a Person.“Acquisition Indebtedness” means any Indebtedness of the Borrower or any Subsidiary thathas been incurred for the purpose of financing, in whole or in part, an Acquisition and any relatedtransactions (including for the purpose of refinancing or replacing all or a portion of any related bridgefacilities or any pre-existing Indebtedness of the Persons or assets to be acquired); provided that either(x) the release of the proceeds thereof to the Borrower and the Subsidiaries is contingent upon thesubstantially simultaneous consummation of such Acquisition (and, if the definitive agreement forsuch Acquisition is terminated prior to the consummation of such Acquisition, or if such Acquisition isotherwise not consummated by the date specified in the definitive documentation evidencing,governing the rights of the holders of or otherwise relating to such Indebtedness, then, in each case,such proceeds are, and pursuant to the terms of such definitive documentation are required to be,promptly applied to satisfy and discharge all obligations of the Borrower and the Subsidiaries inrespect of such Indebtedness) or (y) such Indebtedness contains a “special mandatory redemption”provision (or a similar provision) if such Acquisition is not consummated by the date specified in the
definitive documentation evidencing, governing the rights of the holders of or otherwise relating tosuch indebtedness (and, if the definitive agreement for such Acquisition is terminated prior to theconsummation of such Acquisition or such Acquisition is otherwise not consummated by the date sospecified, such Indebtedness is, and pursuant to such “special mandatory redemption” (or similar)provision is required to be, redeemed or otherwise satisfied and discharged promptly after suchtermination or such specified date, as the case may be).“Additional Guarantor Supplement” has the meaning specified in Section 10.01.“Adjusted Daily Simple RFR” means, with respect to any RFR Borrowing denominated inDollars, an interest rate per annum equal to (a) the Daily Simple RFR for Dollars, plus (b) 0.100%;provided that if the Adjusted Daily Simple RFR Rate as so determined would be less than the Floor, suchrate shall be deemed to be equal to the Floor for the purposes of this Agreement.“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any InterestPeriod, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a)the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided, however,that in no event shall the Adjusted LIBO Rate be less than zero.“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowingdenominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFRRate for such Interest Period, plus (b) 0.100%; provided that if the Adjusted Term SOFR Rate as sodetermined would be less than the Floor, such rate shall be deemed to be equal to the Floor for thepurposes of this Agreement.“Administrative Agent” means JPMorgan, in its capacity as the administrative agent hereunderand under the other Loan Documents, and its successors in such capacity as provided in Article VIII.“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by theAdministrative Agent.“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK FinancialInstitution.“Affiliate” means, with respect to a specified Person, another Person that directly or indirectlyControls, is Controlled by or is under common Control with the Person specified.“Agent Fee Letter” means the Agency Fee Letter, dated December 1, 2021 (as amended fromtime to time), between the Borrower and JPMorgan Chase Bank, N.A.“Agreement” means this Credit Agreement.“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the PrimeRate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00% perannum and (c) the Adjusted LIBOTerm SOFR Rate onfor a one month Interest Period as published twoU.S. Government Securities Business Days prior to such day (or if such day is not a U.S. GovernmentSecurities Business Day, the immediately preceding U.S. Government Securities Business Day) for adeposit in dollars with a maturity of one month plus 1.00% per annum; provided that if such rate shall beless than 1.00%, such rate shall be deemed to be 1.00%. For purposes of clause (c) abovefor the purposeof this definition, the Adjusted LIBOTerm SOFR Rate on any day shall be based on the LIBO ScreenRate on such day for a deposit in dollars with a maturity of one monthTerm SOFR Reference Rate at2
approximately 11:005:00 a.m., LondonChicago time, on such day (or any amended publication time forthe Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFRReference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate,the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate shall be effective from andincluding the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or theAdjusted LIBOTerm SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternaterate of interest pursuant to Section 2.11 hereof (for the avoidance of doubt, only until the BenchmarkReplacement has been determined pursuant to Section 2.11(b)), then the Alternate Base Rate shall be thegreater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For theavoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than1.00%, such rate shall be deemed to be 1.00% for purposes of the Agreement.“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, asamended, 15 U.S.C. §§ 78dd-1, et seq. and all other laws, rules, and regulations of any jurisdictionapplicable to the Borrower or any of its Affiliates from time to time concerning or relating to bribery,corruption or money laundering.“Applicable Creditor” has the meaning set forth in Section 9.17.“Applicable Rate” means, for any day, with respect to any Loan that is an ABR Loan or aEurocurrencyTerm Benchmark Loan, the applicable rate per annum set forth below under the applicablecaption “ABR Spread” or “EurocurrencyTerm Benchmark Spread”, as the case may be, based upon theSenior Unsecured Ratings in effect on such date.Senior Unsecured Ratings(S&P/▇▇▇▇▇’▇/Fitch) ABR Spread(per annum) EurocurrencyTermBenchmarkSpread (perannum)Level 1BBB+/Baa1/BBB+ or above 0.000% 1.000%Level 2BBB/Baa2/BBB 0.125% 1.125%Level 3BBB-/Baa3/BBB- 0.250% 1.250%Level 4BB+/Ba1/BB+ 0.625% 1.625%Level 5 BB/Ba2/BB or below 0.750% 1.750%For purposes of the foregoing, (a) if any Rating Agency shall not have in effect a Senior UnsecuredRating (other than by reason of the circumstances referred to in the last sentence of this paragraph), then(i) if only one Rating Agency shall not have in effect a Senior Unsecured Rating, the Level then in effectshall be determined by reference to the remaining two effective Senior Unsecured Ratings, (ii) if twoRating Agencies shall not have in effect a Senior Unsecured Rating, one of such Rating Agencies shall bedeemed to have in effect a Senior Unsecured Rating in Level 5 and the Level then in effect shall be3
determined by reference to such deemed Senior Unsecured Rating and the remaining effective SeniorUnsecured Rating and (iii) if no Rating Agency shall have in effect a Senior Unsecured Rating, thenLevel 5 shall apply, (b) if the Senior Unsecured Ratings in effect or deemed to be in effect shall fallwithin different Levels, then (i) if three Senior Unsecured Ratings are in effect, then either (x) if twoof the three Senior Unsecured Ratings are in the same Level, such Level shall apply or (y) if all threeof the Senior Unsecured Ratings are in different Levels, then the Level corresponding to the middleSenior Unsecured Rating shall apply and (ii) if only two Senior Unsecured Ratings are in effect ordeemed to be in effect, the Level then in effect shall be based on the higher of the two SeniorUnsecured Ratings unless one of the two Senior Unsecured Ratings is two or more Levels lower thanthe other, in which case the Level then in effect shall be determined by reference to the Level nextbelow that of the higher of the two Senior Unsecured Ratings, and (c) if the Senior UnsecuredRatings established or deemed to have been established by any Rating Agency shall be changed(other than as a result of a change in the rating system of such Rating Agency), such change shall beeffective as of the date on which it is first publicly announced by such Rating Agency, irrespective ofwhen notice of such change shall have been furnished by the Borrower to the Administrative Agentand the Lenders pursuant to this Agreement or otherwise. Each change in the Applicable Rate for anychange in Senior Unsecured Ratings shall apply during the period commencing on the effective date ofsuch change and ending on the date immediately preceding the effective date of the next such change.If the rating system of any Rating Agency shall change, or if any Rating Agency shall cease to be inthe business of rating corporate debt obligations, the Borrower and the Lenders shall negotiate ingood faith to amend this definition to reflect such changed rating system or the unavailability of aSenior Unsecured Rating from such Rating Agency and, pending the effectiveness of any suchamendment, the Applicable Rate shall be determined by reference to the Senior Unsecured Rating ofsuch Rating Agency most recently in effect prior to such change or cessation.“Approved Fund” means any Person (other than a natural person) that is engaged in making,purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinarycourse of its activities and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or(c) an entity or an Affiliate of an entity that administers or manages a Lender.“Arrangers” means JPMorgan, BofA Securities, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. andWells Fargo Securities, LLC in their capacities as joint lead arrangers and bookrunners for the Term LoanFacility.“Assignment and Assumption” means an assignment and assumption entered into by a Lenderand an Eligible Assignee, with the consent of any Person whose consent is required by Section 9.04, andaccepted by the Administrative Agent, in the form of Exhibit A or any other form approved by theAdministrative Agent.“Assumption Agreement” has the meaning set forth in Section 6.04(a).“Attributable Debt” means, with respect to any Sale/Leaseback Transaction, the present value(discounted at the rate set forth or implicit in the terms of the lease included in such Sale/LeasebackTransaction) of the total obligations of the lessee for rental payments (other than amounts required tobe paid on account of taxes, maintenance, repairs, insurance, assessments, utilities, operating andlabor costs and other items that do not constitute payments for property rights) during the remainingterm of the lease included in such Sale/Leaseback Transaction (including any period for which suchlease has been extended). In the case of any lease that is terminable by the lessee upon payment of apenalty, the Attributable Debt shall be the lesser of the Attributable Debt determined assumingtermination on the first date such lease may be terminated (in which case the Attributable Debt shallalso include the amount of the penalty, but no rent shall be considered as required to be paid under4
such lease subsequent to the first date upon which it may be so terminated) or the Attributable Debtdetermined assuming no such termination.“Available Tenor” means, as of any date of determination and with respect to the then-currentBenchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period forinterest calculated with reference to such Benchmark (or component thereof), as applicable, that is or maybe used for determining the length of an Interest Period for any term rate or otherwise, for determiningany frequency of making payments of interest calculated pursuant to this Agreement as of such date andnot including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from thedefinition of “Interest Period” pursuant to clause (e) of Section 2.11.“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by theapplicable Resolution Authority in respect of any liability of an Affected Financial Institution.“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, theimplementing law, regulation rule or requirement for such EEA Member Country from time to time whichis described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I ofthe United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation orrule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investmentfirms or other financial institutions or their affiliates (other than through liquidation, administration or otherinsolvency proceedings).“Bankruptcy Event” means, with respect to any Person, that such Person has become the subjectof a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee,administrator, custodian, assignee for the benefit of creditors or similar Person charged with thereorganization or liquidation of its business appointed for it, or, in the good faith determination of theAdministrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of oracquiescence in, any such proceeding or appointment (unless, in the case of any such Person that is aLender hereunder, the Borrower and the Administrative Agent shall be satisfied that such Lender intends,and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder);provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or theacquisition of any ownership interest, in such Person by a Governmental Authority; provided, however,that such ownership interest does not result in or provide such Person with immunity from the jurisdictionof courts within the United States of America or from the enforcement of judgments or writs ofattachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate,disavow or disaffirm any agreements made by such Person.“Benchmark” means, initially, with respect to any Eurocurrency(i) RFR Loan, Daily SimpleSOFR or (ii) Term Benchmark Loan, the Adjusted LIBOTerm SOFR Rate; provided that if a BenchmarkTransition Event, and the related Benchmark Replacement Date have occurred with respect to theapplicable Relevant Rate or the then-current BenchmarkDaily Simple SOFR or the Term SOFR Rate, asapplicable, then “Benchmark” means the applicable Benchmark Replacement to the extent that suchBenchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.11.“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in theorder below that can be determined by the Administrative Agent for the applicable BenchmarkReplacement Date:(1) in the case of any Loan denominated in Dollars, the Adjusted Term SOFR Rate;5
(21) in the case of any Loan denominated in Dollars, the Adjusted Daily Simple RFR;(32) the sum of: (a) the alternate benchmark rate that has been selected by theAdministrative Agent and the Borrower as the replacement for the then-current Benchmark forthe applicable Corresponding Tenor giving due consideration to (i) any selection orrecommendation of a replacement benchmark rate or the mechanism for determining such a rateby the Relevant Governmental Body or (ii) any evolving or then-prevailing market conventionfor determining a benchmark rate as a replacement for the then-current Benchmark for syndicatedcredit facilities denominated in Dollars at such time in the United States and (b) the relatedBenchmark Replacement Adjustment;If the Benchmark Replacement as determined pursuant to clause (1), or (2) or (3) above would beless than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of thisAgreement and the other Loan Documents.“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period andAvailable Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, ormethod for calculating or determining such spread adjustment (which may be a positive or negative valueor zero) that has been selected by the Administrative Agent and the Borrower for the applicableCorresponding Tenor giving due consideration to (i) any selection or recommendation of a spreadadjustment, or method for calculating or determining such spread adjustment, for the replacement of suchBenchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Bodyon the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing marketconvention for determining a spread adjustment, or method for calculating or determining such spreadadjustment, for the replacement of such Benchmark with the applicable Unadjusted BenchmarkReplacement for syndicated credit facilities denominated in Dollars at such time.“Benchmark Replacement Conforming Changes” means, with respect to any BenchmarkReplacement and/or any EurocurrencyTerm Benchmark Loan, any technical, administrative oroperational changes (including changes to the definition of “Alternate Base Rate,” the definition of“Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “RFRBusiness Day,” the definition of “Interest Period,” timing and frequency of determining rates and makingpayments of interest, timing of borrowing requests or prepayment, conversion or continuation notices,length of lookback periods, the applicability of breakage provisions, and other technical, administrative oroperational matters) that the Administrative Agent (in consultation with the Borrower) decides may beappropriate to reflect the adoption and implementation of such Benchmark and to permit theadministration thereof by the Administrative Agent in a manner substantially consistent with marketpractice (or, if the Administrative Agent decides (in consultation with the Borrower) that adoption of anyportion of such market practice is not administratively feasible or if the Administrative Agent determinesthat no market practice for the administration of such Benchmark exists, in such other manner ofadministration as the Administrative Agent decides (in consultation with the Borrower) is reasonablynecessary in connection with the administration of this Agreement and the other Loan Documents).“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur ofthe following events with respect to such then-current Benchmark:(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”,the later of (a) the date of the public statement or publication of information referenced thereinand (b) the date on which the administrator of such Benchmark (or the published component used6
in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors ofsuch Benchmark (or such component thereof); or(2) in the case of clause (3) of the definition of “Benchmark Transition Event”, thefirst date on which such Benchmark (or the published component used in the calculation thereof)has been determined and announced by the regulatory supervisor for the administrator of suchBenchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publicationreferenced in such clause (c3) and even if any Available Tenor of such Benchmark (or suchcomponent thereof) continues to be provided on such date.For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Dateoccurs on the same day as, but earlier than, the Reference Time in respect of any determination, theBenchmark Replacement Date will be deemed to have occurred prior to the Reference Time for suchdetermination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case ofclause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events setforth therein with respect to all then-current Available Tenors of such Benchmark (or the publishedcomponent used in the calculation thereof).“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one ormore of the following events with respect to such then-current Benchmark:(1) a public statement or publication of information by or on behalf of the administratorof such Benchmark (or the published component used in the calculation thereof) announcing thatsuch administrator has ceased or will cease to provide all Available Tenors of such Benchmark(or such component thereof), permanently or indefinitely, provided that, at the time of suchstatement or publication, there is no successor administrator that will continue to provide anyAvailable Tenor of such Benchmark (or such component thereof);(2) a public statement or publication of information by the regulatory supervisor for theadministrator of such Benchmark (or the published component used in the calculation thereof),the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvencyofficial with jurisdiction over the administrator for such Benchmark (or such component), aresolution authority with jurisdiction over the administrator for such Benchmark (or suchcomponent) or a court or an entity with similar insolvency or resolution authority over theadministrator for such Benchmark (or such component), in each case, which states that theadministrator of such Benchmark (or such component) has ceased or will cease to provide allAvailable Tenors of such Benchmark (or such component thereof) permanently or indefinitely;provided that, at the time of such statement or publication, there is no successor administrator thatwill continue to provide any Available Tenor of such Benchmark (or such component thereof); or(3) a public statement or publication of information by the regulatory supervisor for theadministrator of such Benchmark (or the published component used in the calculation thereof)announcing that all Available Tenors of such Benchmark (or such component thereof) are nolonger, or as of a specified future date will no longer be, representative.For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurredwith respect to any Benchmark if a public statement or publication of information set forth above hasoccurred with respect to each then-current Available Tenor of such Benchmark (or the publishedcomponent used in the calculation thereof). 7
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any)(x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of thatdefinition has occurred if, at such time, no Benchmark Replacement has replaced such then-currentBenchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.11and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark forall purposes hereunder and under any Loan Document in accordance with Section 2.11.“Beneficial Ownership Certification” means a certification regarding beneficial ownership asrequired 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 ERISA) that is subjectto Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Personwhose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISAor Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.“Board of Governors” means the Board of Governors of the Federal Reserve System of theUnited States of America.“Borrower” has the meaning assigned to such term in the preamble.“Borrowing” means Loans of the same Type made, converted or continued on the same date and,in the case of EurocurrencyTerm Benchmark Loans, as to which a single Interest Period is in effect.“Borrowing Request” means a request by the Borrower for a Borrowing in accordance withSection 2.03, which shall be, in the case of any such written request, in the form of Exhibit B or any otherform approved by the Administrative Agent.“Bundled Solutions” means sales and/or leasing by the Borrower, its Subsidiaries and thirdparties in the ordinary course of business of equipment together with items invoiced on a subscriptionbasis including (but not limited to) software and services relating to such equipment provided by theBorrower, its Subsidiaries and such third parties under a combined invoice pursuant to which theproceeds from such invoice (including proceeds belonging to third parties) (a) are collected by theBorrower, its Subsidiaries or such third parties and comingled with other collections of the Borrower, itsSubsidiaries or such third parties, (b) are directed into a segregated deposit account or trust account or (c)are collected pursuant to an arrangement with a financial institution or such third party.“Business Day” means, as applicable, (a) any day that is not a Saturday, Sunday or other day onwhich commercial banks in New York City are authorized or required by law to remain closed and (b) inrelation to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments ofany such RFR Loan, or any other dealings in Dollars of such RFR Loan, any such day that is only an RFRBusiness Day; provided that, when used in connection with a Eurocurrency Loan, the term “BusinessDay” shall also exclude any day on which banks are not open for dealings in dollar deposits in theinternational interbank ▇▇▇▇▇▇.▇▇ addition to the foregoing, a Business Day shall be (i) in relation to RFRLoans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFRLoan, or any other dealings of such RFR Loan, and (ii) in relation to Loans referencing the AdjustedTerm SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of anysuch Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencingthe Adjusted Term SOFR Rate, any such day that is only a U.S. Government Securities Business Day.8
“Canadian Dollars” or “C$” means dollars in lawful currency of Canada.“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent orother amounts under any lease of (or other arrangement conveying the right to use) real or personalproperty, or a combination thereof, which obligations are required to be classified and accounted for ascapital leases on a balance sheet of such Person under GAAP; and the amount of such obligations shall bethe capitalized amount thereof determined in accordance with GAAP. For purposes of Section 6.02, aCapital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and suchproperty shall be deemed to be owned by the lessee.“Cash Equivalents” means:(a) dollars,Dollars, Canadian Dollars, Euros and Sterling;(b) in the case of the Borrower or a Subsidiary, such local currencies held by themfrom time to time in the ordinary course of business;(c) securities issued or directly and fully and unconditionally guaranteed or insuredby the U.S. government or any agency or instrumentality thereof the securities of which areunconditionally guaranteed as a full faith and credit obligation of such government withmaturities of 24 months or less from the date of acquisition;(d) certificates of deposit, time deposits and eurodollar time deposits with maturitiesof one year or less from the date of acquisition, bankers’ acceptances with maturities notexceeding one year and overnight bank deposits, in each case with any commercial bank havingcapital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (orthe Dollar Equivalent as of the date of determination) in the case of non-U.S. banks;(e) repurchase obligations for underlying securities of the types described in clauses(c) and (d) entered into with any financial institution meeting the qualifications specified inclause (d) above;(f) commercial paper rated at least P-2 by ▇▇▇▇▇’▇ or at least A-2 by S&P and ineach case maturing within 24 months after the date of creation thereof;(g) marketable short-term money market and similar securities having a rating of atleast P-1 or A-1 from either ▇▇▇▇▇’▇ or S&P, respectively (or, if at any time neither ▇▇▇▇▇’▇ norS&P shall be rating such obligations, an equivalent rating from another Rating Agency) and ineach case maturing within 24 months after the date of creation thereof;(h) investment funds investing 95% of their assets in securities of the types describedin clauses (a) through (g) above;(i) readily marketable direct obligations issued by any state, commonwealth orterritory of the United States or any political subdivision or taxing authority thereof having anInvestment Grade Rating from either ▇▇▇▇▇’▇ or S&P with maturities of 24 months or less fromthe date of acquisition;(j) [Intentionally Reserved]; 9
(k) Investments with average maturities of 12 months or less from the date ofacquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P or Aaa(or the equivalent thereof) or better by ▇▇▇▇▇’▇;(l) shares of investment companies that are registered under the InvestmentCompany Act of 1940 and substantially all the investments of which are one or more of the typesof securities described in clauses (a) through (k) above; and(m) in the case of any Foreign Subsidiary, investments of comparable tenure andcredit quality to those described in the foregoing clauses (a) through (l) or other high quality shortterm in-vestments, in each case, customarily utilized in countries in which such ForeignSubsidiary operates for short term cash management purposes.Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated incurrencies other than those set forth in clauses (a) and (b) above, provided that such amounts areconverted into any currency listed in clause (a) and (b) as promptly as practicable and in any event withinten Business Days following the receipt of such amounts.“Cash Management Obligations” means Obligations under any facilities or services related tocash management, including treasury, depository, overdraft, credit or debit card, automated clearinghouse fund transfer services, purchase card, electronic funds transfer (including non-card e-payables services) and other cash management arrangements and commercial credit card and merchantcard services.“Cash Netting Amount” means the aggregate amount of Cash and Cash Equivalents (other thanRestricted Cash), in each case, included on the consolidated balance sheet of the Borrower and itsSubsidiaries as of such date in an aggregate amount not to exceed $250.0 million.“Cash Pooling Arrangements” means a deposit account arrangement among a single depositoryinstitution, the Borrower and one or more Foreign Subsidiaries involving the pooling of cash deposits inand overdrafts in respect of one or more deposit accounts (each located outside of the United States andany States and territories thereof) with such institution by the Borrower and such Foreign Subsidiaries forcash management purposes.“CDW UK” means CDW Finance Holdings Limited, a private limited company incorporatedunder the laws of England & Wales with company number 05872067, having its registered office addressat 3rd Floor ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, EC4M 9AF“CFC” means a Foreign Subsidiary of the US Borrower that is a “controlled foreign corporation”within the meaning of Section 957 of the Code.A “Change in Control” shall be deemed to have occurred if (a) any Person or group of Persons(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 as in effect onthe date hereof, but excluding any employee benefit plan of the Borrower and its Subsidiaries, and anyPerson or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any suchplan), shall have acquired beneficial ownership (within the meaning of Section 13(d) or 14(d) of theExchange Act and the applicable rules and regulations thereunder) of more than 40% of the outstandingVoting Shares in the Borrower, (b) a “change in control” (or similar event, however denominated), underand as defined in any indenture, credit agreement or other agreement or instrument evidencing, governingthe rights of the holders of or otherwise relating to any Material Indebtedness of the Borrower or anySubsidiary, shall have occurred with respect to the Borrower or (c) Holdings shall directly or indirectly10
own, beneficially and of record, less than 100% of the issued and outstanding Equity Interests of theBorrower.“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,regulation or treaty or in the administration, interpretation, implementation or application thereof by anyGovernmental Authority or (c) the making or issuance of any request, rule, guideline or directive(whether or not having the force of law) by any Governmental Authority; provided that, notwithstandinganything herein to the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act andall requests, rules, guidelines or directives thereunder or issued in connection therewith or in theimplementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank forInternational Settlements, the Basel Committee on Banking Supervision (or any successor or similarauthority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall ineach case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated orissued or implemented.“Charges” has the meaning set forth in Section 9.13.“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited asadministrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successoradministrator).“Code” means the U.S. Internal Revenue Code of 1986, as amended.“Commitment” means, with respect to each Lender, the commitment, if any, of such Lender tomake a Loan on the Effective Date, expressed as an amount representing the maximum principal amountof the Loan to be made by such Lender, as such commitment may be reduced or increased from time totime pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of eachLender’s Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant towhich such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of theLenders’ Commitment is $1,420,000,000.“Communications” means, collectively, any notice, demand, communication, information,document or other material provided by or on behalf of the Borrower pursuant to any Loan Document orthe transactions contemplated therein that is distributed to the Administrative Agent or any Lender bymeans of electronic communications pursuant to Section 9.01, including through the Platform.“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit Cor any other form approved by the Administrative Agent in its reasonable discretion.“Consolidated Depreciation and Amortization Expense” means, with respect to any Person, forany period, the total amount of depreciation and amortization expense, including the amortization ofdeferred financing fees and amortization of unrecognized prior service costs and actuarial gains andlosses related to pensions and other post-employment benefits, of such Person and its Subsidiaries forsuch period on a consolidated basis and otherwise determined in accordance with GAAP.“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated NetIncome of such Person and its Subsidiaries for such period(a) increased (without duplication) by:11
(i) provision for taxes based on income or profits or capital (or anyalternative tax in lieu thereof), including, without limitation, payroll taxes related tocompensation, foreign, state, franchise and similar taxes and foreign withholding taxes ofsuch Person and such subsidiaries paid or accrued during such period deducted (and notadded back) in computing Consolidated Net Income, including payments made pursuantto any tax sharing agreements or arrangements among the Borrower, its Subsidiaries andany direct or indirect parent company of the Borrower (so long as such tax sharingpayments are attributable to the operations of the Borrower and its Subsidiaries); plus(ii) Fixed Charges of such Person and such subsidiaries for such period tothe extent the same was deducted (and not added back) in calculating such ConsolidatedNet Income; plus(iii) Consolidated Depreciation and Amortization Expense of such Person andsuch subsidiaries for such period to the extent the same were deducted (and not addedback) in computing Consolidated Net Income; plus(iv) any fees, costs, commissions, expenses or other charges (other thanConsolidated Depreciation and Amortization Expense but including the effects ofpurchase accounting adjustments) related to the Transactions, any issuance of EquityInterests, Investment, acquisition, disposition, dividend or similar Restricted Payment,recapitalization or the incurrence, repayment, amendment or modification ofIndebtedness permitted to be incurred under this Agreement (including a refinancingthereof) and any charges or non-recurring merger costs incurred during such period (ineach case whether or not successful), including (x) any expensing of bridge, commitmentor other financing fees, (y) any such fees, costs (including call premium), commissions,expenses or other charges related to any amendment or other modification of theRevolving Facility, the Term Loan Facility and the Senior Notes and (z) commissions,discounts, yield and other fees and charges (including any interest expense) related to anyReceivables Facility, and, in each case, deducted (and not added back) in computingConsolidated Net Income; plus(v) any other non-cash charges, expenses or losses including any write offsor write downs and any non-cash expense relating to the vesting of warrants, reducingConsolidated Net Income for such period (provided that if any such non-cash chargesrepresent an accrual or reserve for potential cash items in any future period, the cashpayment in respect thereof in such future period shall be subtracted from ConsolidatedEBITDA in such future period to the extent paid, and excluding amortization of a prepaidcash item that was paid in a prior period); plus(vi) the amount of loss on sale of receivables and related assets to theReceivables Subsidiary in connection with a Receivables Facility deducted (and notadded back) in computing Consolidated Net Income; plus(vii) (A) non-cash compensation or other expense recorded from grants ofstock appreciation or similar rights, stock options, restricted stock or other rights and(B) other costs or expenses deducted (and not added back) in computing ConsolidatedNet Income pursuant to any management equity plan or stock option plan or any othermanagement or employee benefit plan or agreement or any stock subscription orshareholder agreement, to the extent that such costs or expenses are funded with cash12
proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance ofEquity Interest of the Borrower (other than Disqualified Stock); plus(viii) any adjustments (including pro forma adjustments) of the type reflectedin any quality of earnings report made available to the Administrative Agent andprepared by accounting, appraisal or investment banking firm or consultant, in each caseof nationally recognized standing that is, in the good faith determination of the Borrower,qualified to perform the task for which it has been engaged or otherwise reasonablyacceptable to the Administrative Agent (which shall include any of the “Big Four”accounting firms, BDO, ▇▇▇▇▇▇▇ & Marsal, FTI and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇); provided that theaggregate amount added pursuant to this clause (viii) and clause (ix) for any period(together with the amount of Pro Forma Adjustments taken under Section 1.04) shall notexceed an amount equal to the greater of (x) $175,000,000 and (y) 10% of ConsolidatedEBITDA of the Borrower for the period of four consecutive fiscal quarters most recentlyended prior to the determination date (calculated after giving effect to any adjustmentspursuant to this clause (viii), clause (ix) or pursuant to Section 1.04);(ix) the amount of cost savings and synergies projected by the Borrower ingood faith to be realizable during such period as a result of actions taken, committed tobe taken or expected to be taken in connection with any acquisition or investment ordisposition by the Borrower or any Subsidiary, any restructuring, operational initiatives,business optimization, operational or technology improvements and including “run rate”cost savings and synergies from any such initiatives (calculated on a pro forma basis asthough such cost savings or synergies had been realized on the first day of such period),in each case as a result of actions taken, committed to be taken or expected to be taken inconnection with any such transaction or initiative by the Borrower or any Subsidiary, netof the amount of actual benefits realized during such period that are otherwise included inthe calculation of Consolidated EBITDA from such actions; provided that (A) such costsavings and synergies are reasonably identifiable and factually supportable and (B) suchactions are taken, committed to be taken or expected to be taken within 18 months afterthe consummation or commencement, as applicable, of any change that is expected toresult in such cost savings or synergies and (C) the aggregate amount added pursuant tothis clause (ix) and clause (viii) for any period (together with the amount of Pro FormaAdjustments taken under Section 1.04) shall not exceed an amount equal to the greater of(x) $175,000,000 and (y) 10% of Consolidated EBITDA of the Borrower for the periodof four consecutive fiscal quarters most recently ended prior to the determination date(calculated after giving effect to any adjustments pursuant to this clause (ix), clause (viii)or pursuant to Section 1.04); plus(x) any net after-tax non-recurring, extraordinary, exceptional, infrequent orunusual gains or losses (less all fees and expenses relating thereto), special items orexpenses; plus(xi) to the extent covered by insurance and actually reimbursed or otherwisepaid, or, so long as the Borrower has made a determination that there exists reasonableevidence that such amount will in fact be reimbursed or otherwise paid by the insurer andonly to the extent that such amount is (A) not denied by the applicable carrier in writingwithin 180 days and (B) in fact reimbursed or otherwise paid within 365 days of the dateof such evidence (with a deduction for any amount so added back to the extent not so13
reimbursed or otherwise paid within such 365 days), expenses with respect to liability orcasualty events and expenses or losses relating to business interruption; plus(xii) expenses to the extent covered by contractual indemnification orrefunding provisions in favor of the Borrower or a Subsidiary and actually paid orrefunded, or, so long as the Borrower has made a determination that there existsreasonable evidence that such amount will in fact be paid or refunded by theindemnifying party or other obligor and only to the extent that such amount is (A) notdenied by the applicable indemnifying party or obligor in writing within 90 days and(B) in fact reimbursed within 180 days of the date of such evidence (with a deduction forany amount so added back to the extent not so reimbursed within such 180 days); plus(xiii) any non-cash increase in expenses (A) resulting from the revaluation ofinventory (including any impact of changes to inventory valuation policy methodsincluding changes in capitalization of variances) or (B) due to purchase accountingassociated with any future acquisitions; plus(xiv) the amount of loss from the early extinguishment of Indebtedness orHedging Obligations or other derivative instruments;(b) decreased by (without duplication) non-cash gains increasing Consolidated NetIncome of such Person and such subsidiaries for such period, excluding any non-cashgains to the extent they represent the reversal of an accrual or reserve for a potential cashitem that reduced Consolidated EBITDA in any prior period; and(c) increased or decreased by (without duplication):(i) any net gain or loss resulting in such period from Hedging Obligationsand the application of Statement of Financial Accounting Standards No. 133 andInternational Accounting Standards No. 39 and their respective related pronouncementsand interpretations; plus or minus, as applicable,(ii) any net gain or loss included in calculating Consolidated Net Incomeresulting in such period from currency translation gains or losses related to currencyremeasurements of indebtedness (including any net loss or gain resulting from hedgeagreements for currency exchange risk), plus or minus, as applicable,(iii) the cumulative effect of a change in accounting principles during suchperiod, plus or minus, as applicable,(iv) any net gain or loss from disposed or discontinued operations and anynet gains or losses on disposal of disposed, abandoned or discontinued operations, plus orminus, as applicable, and(v) the amount of gains or losses (less all accrued fees and expenses relatingthereto) attributable to asset dispositions other than in the ordinary course of business,plus or minus, as applicable.“Consolidated Interest Expense” means, with respect to any Person for any period, withoutduplication, the sum of: 14
(a) consolidated interest expense of such Person and its Subsidiaries for such period, to the extentsuch expense was deducted (and not added back) in computing Consolidated Net Income (including(i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par,(ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankersacceptances, (iii) non-cash interest expense (but excluding any non-cash interest expense attributable tothe movement in the mark to market valuation of Hedging Obligations or other derivative instrumentspursuant to GAAP), (iv) the interest component of Capital Lease Obligations, (v) net payments, if any,pursuant to interest rate Hedging Obligations with respect to Indebtedness; (vi) net losses on HedgingObligations or other derivative instruments entered into for the purpose of hedging interest rate risk and(vii) costs of surety bonds in connection with financing activities and excluding (x) amortization ofdeferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge,commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges(including any interest expense) related to any Receivables Facility); plus(b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whetherpaid or accrued; minus(c) interest income of such Person and its Subsidiaries for such period.For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrueat an interest rate reasonably determined by the Borrower to be the rate of interest implicit in such CapitalLease Obligation in accordance with GAAP.“Consolidated Net Income” means, with respect to any Person for any period, the net income(loss) of such Person and its subsidiaries that are Subsidiaries for such period, determined on aconsolidated basis in accordance with GAAP; provided, however, that (without duplication) the netincome for such period of any Person that is not a subsidiary or that is accounted for by the equity methodof accounting, shall be excluded; provided that Consolidated Net Income of such Person shall beincreased by the amount of dividends or distributions or other payments that are actually paid in cash (orto the extent converted into cash) to such Person or a subsidiary thereof that is the Borrower or aSubsidiary in respect of such period.“Consolidated Total Indebtedness” means, as of any date of determination, the sum, withoutduplication, of (a) the total amount of Indebtedness under clauses (a)(i), (a)(ii) (but excluding suretybonds, performance bonds or other similar instruments), (a)(iii) (but, in the case of clause (iii), only to theextent of any unreimbursed drawings thereunder) and (a)(iv) (only with respect to the principal portionthereof) of the definition thereof of the Borrower and its Subsidiaries, plus (b) the greater of the aggregateliquidation value and maximum fixed repurchase price without regard to any change of control orredemption premiums of all Disqualified Stock of the Borrower and the Guarantors and all PreferredStock of its Subsidiaries that are not Guarantors, in each case, as determined on a consolidated basis inaccordance with GAAP.“Control” means the possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies, or the dismissal or appointment of the management, of a Person,whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and“Controlled” have meanings correlative thereto.“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor(including overnight) or an interest payment period having approximately the same length (disregardingbusiness day adjustment) as such Available Tenor. 15
“Credit Party” means the Administrative Agent and each Lender.“Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annumequal to, for any RFR Loan denominated in Dollars, Daily Simple SOFR.“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFRfor the day (such day “SOFR Determination Date”) that is five (5) RFR Business Days prior to (i) if suchSOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not anRFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in each case, assuch SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any changein Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective dateof such change in SOFR without notice to the Borrower.“Default” means any event or condition that constitutes, or upon notice, lapse of time or bothhereunder would constitute, an Event of Default.“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the daterequired to be funded or paid, (i) to fund any portion of its Loans or (ii) to pay to any Credit Party anyother amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lendernotifies the Administrative Agent in writing that such failure is the result of such ▇▇▇▇▇▇’s good faithdetermination that a condition precedent to funding (not otherwise waived in accordance with the termshereof) (specifically identified in such writing, including, if applicable, by reference to a specific Default)has not been satisfied, (b) has notified the Borrower or the Administrative Agent in writing, or has made apublic statement to the effect, that it does not intend or expect to comply with any of its fundingobligations under this Agreement (unless such writing or public statement indicates that such position isbased on such ▇▇▇▇▇▇’s good-faith determination that a condition precedent (specifically identified insuch writing, including, if applicable, by reference to a specific Default) to funding a Loan cannot besatisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, withinthree Business Days after request by the Administrative Agent made in good faith, to provide acertification in writing from an authorized officer of such Lender that it will comply with its obligationsto fund prospective Loans under this Agreement, provided that such Lender shall cease to be aDefaulting Lender pursuant to this clause (c) upon the Administrative Agent’s receipt of suchcertification in form and substance satisfactory to it, or (d) has become, or is a subsidiary of a Personthat has become, the subject of a Bankruptcy Event or a Bail-In Action. Any determination by theAdministrative Agent that a Lender is a Defaulting Lender under any of the foregoing clauses, and theeffective date of such status, shall be conclusive and binding absent manifest error, and such Lendershall be deemed to be a Defaulting Lender (subject to Section 2.17) as of the date established thereforby the Administrative Agent in a written notice of such determination, which shall be delivered by theAdministrative Agent to the Borrower and each other Lender promptly following such determination.“Disposition” means any sale, transfer or other disposition, or series of related sales, transfers, ordispositions (including pursuant to any merger, amalgamation or consolidation), of property thatconstitutes (a) assets comprising all or substantially all of a division, business or operating unit or productline of any Person or (b) all or substantially all of the Equity Interests in a Person.“Disqualified Institutions” means (a) those institutions set forth on Schedule 1.01(a) hereto, (b)any Person who is a competitor of the Borrower and its subsidiaries that are separately identified inwriting by the Borrower to the Administrative Agent from time to time and (c) any affiliate of any Persondescribed in clauses (a) and (b) above (other than bona fide debt fund affiliates that have not themselvesbeen identified in accordance with clause (a) above) that are either (1) identified in writing by you fromtime to time or (2) clearly identifiable as affiliates solely on the basis of such affiliate’s name. It is16
understood and agreed that (i) the foregoing provisions shall not apply retroactively to any person if suchPerson shall have previously acquired an assignment or participation interest (or shall have previouslyentered into a trade therefor) prior thereto, but shall disqualify such Person from taking any furtherassignment or participation thereafter, (ii) each written supplement shall become effective two (2)Business Days after delivery thereof to the Administrative Agent and (iii) the Administrative Agent, uponprior request of any potential assignee or participant, may confirm, on a confidential basis, if a specifiedPerson is on the list.“Disqualified Stock” means, with respect to any Person, any Equity Interest of such Personwhich, by its terms, or by the terms of any security into which it is convertible or for which it is puttableor exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other thansolely for Equity Interest which is not Disqualified Stock and cash in lieu of fractional shares) pursuant toa sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (in each case,other than solely as a result of a change of control, asset sale or similar events), in whole or in part, ineach case prior to the date that is 91 days after the date set forth in the definition of Maturity Date;provided, however, that if such Equity Interest is issued to any plan for the benefit of employees, officers,directors, managers or consultants of Holdings (or any direct or indirect parent thereof), the Borrower orits Subsidiaries or by any such plan to such employees, officers, directors, managers or consultants, suchEquity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchasedin order to satisfy applicable statutory or regulatory obligations or as a result of the termination, death ordisability of such officers, directors, managers or consultants.“Documentation Agents” means Capital One, National Association, Mizuho Bank Ltd. andMUFG Bank, Ltd. in their capacities as documentation agents for the Term Loan Facility.“Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if suchamount is expressed in dollarsDollars, such amount, (b) if such amount is expressed in an alternativecurrency, the equivalent of such amount in dollarsDollars determined by using the rate of exchange forthe purchase of dollarsDollars with the alternative currency last provided (either by publication orotherwise provided to the Administrative Agent) by Reuters on the Business Day (New York City time)immediately preceding the date of determination or if such service ceases to be available or ceases toprovide a rate of exchange for the purchase of dollarsDollars with the alternative currency, as provided bysuch other publicly available information service which provides that rate of exchange at such time inplace of Reuters as agreed upon by the Administrative Agent and the Borrower (or if such service ceasesto be available or ceases to provide such rate of exchange, the equivalent of such amount in dollarsDollarsas mutually determined by the Administrative Agent and the Borrower ) and (c) if such amount isdenominated in any other currency, the equivalent of such amount in dollarsDollars as determined by theAdministrative Agent using procedures similar to clause (b) above or otherwise using any method ofdetermination mutually determined by the Administrative Agent and the Borrower.“dollarsDollars” or “$” refers to lawful money of the United States of America.“Domestic Subsidiaries” means, with respect to any Person, any subsidiary of such Person otherthan a Foreign Subsidiary.“DQ List” has the meaning assigned to such term in Section 9.04(e)(iv).“EEA Financial Institution” means (a) any credit institution or investment firm established in anyEEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entityestablished in an EEA Member Country that is a parent of any Person described in clause (a) above, or17
(c) any entity established in an EEA Member Country that is a subsidiary of any Person described inclause (a) or (b) above and is subject to consolidated supervision with its parent.“EEA Member Country” means any of the member states of the European Union, Iceland,Liechtenstein and Norway.“EEA Resolution Authority” means any public administrative authority or any Person entrustedwith public administrative authority of any EEA Member Country (including any delegee) havingresponsibility for the resolution of any EEA Financial Institution.“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied(or waived in accordance with Section 9.02).“Effective Date Refinancing” means the refinancing of (a) that certain Third Amended andRestated Revolving Loan Credit Agreement, dated as of March 26, 2021 (as amended, amended andrestated, supplemented or otherwise modified from time to time, the “Existing Revolving CreditAgreement”), by and among the Borrower, CDW UK, the other parties thereto from time to time as aborrower or guarantor, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., asadministrative agent and the other parties from time to time party thereto and (b) that certain Amendedand Restated Term Loan Credit Agreement, dated as of April 17, 2016 (as amended, amended andrestated, supplemented or otherwise modified from time to time, the “Existing Term Loan CreditAgreement”), by and among the Borrower, the other parties thereto from time to time as guarantors, thelenders from time to time party thereto, Barclays Bank PLC, as administrative agent and the other partiesfrom time to time party thereto.“Electronic Signature” means an electronic sound, symbol, or process attached to, or associatedwith, a contract or other record and adopted by a Person with the intent to sign, authenticate or acceptsuch contract or record.“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and(d) any other Person, other than, in each case, a natural person, a Disqualified Institution, a DefaultingLender, the Borrower or any Subsidiary or other Affiliate of the Borrower.“Environmental Laws” means all rules, regulations, codes, ordinances, judgments, orders,decrees, directives, laws, injunctions or binding agreements issued, promulgated or entered into by orwith any Governmental Authority and relating in any way to the environment, to preservation orreclamation of natural resources, to the management, generation, use, handling, transportation, storage,treatment, disposal, Release or threatened Release or the classification, registration, disclosure or importof, or exposure to, any toxic or hazardous materials, substance or waste or to related health or safetymatters.“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost,contingent or otherwise (including any liability for damages, costs of environmental remediation, fines,penalties and indemnities), directly or indirectly resulting from or based upon (a) any EnvironmentalLaw, (b) the generation, use, handling, transportation, storage, treatment or disposal of any HazardousMaterial, (c) any exposure to any Hazardous Material, (d) the Release or threatened Release of anyHazardous Material or (e) any contract, agreement or other consensual arrangement pursuant to whichliability is assumed or imposed with respect to any of the foregoing.“Equity Interests” means shares of capital stock, partnership interests, membership interests,beneficial interests or other ownership interests, whether voting or nonvoting, in, or interests in the18
income or profits of, a Person, and any warrants, options or other rights entitling the holder thereof topurchase or acquire any of the foregoing (other than, prior to the date of conversion, Indebtedness thatis convertible into any such Equity Interests).“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from timeto time, and the rules and regulations promulgated thereunder.“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together withthe Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or 414(c) of theCode or Section 4001(a)(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412of the Code, is treated as a single employer under Section 414(m) or 414(o) of the Code.“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or theregulations issued thereunder with respect to a Plan (other than an event for which the 30-day noticeperiod is waived), (b) any failure by any Plan to satisfy the “minimum funding standard” (within themeaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each casewhether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISAof an application for a waiver of the minimum funding standard with respect to any Plan, (d) adetermination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) ofERISA or Section 430(i)(4) of the Code), (e) the incurrence by the Borrower or any of its ERISAAffiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (f) thereceipt by the Borrower or any of its ERISA Affiliates from the PBGC or a plan administrator of anynotice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer anyPlan, (g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect tothe withdrawal or partial withdrawal (including under Section 4062(e) of ERISA) of the Borrower orany of its ERISA Affiliates from any Plan or Multiemployer Plan, or (h) the receipt by the Borrower orany of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borroweror any of its ERISA Affiliates of any notice, concerning the imposition upon the Borrower or any of itsERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or isexpected to be, insolvent, within the meaning of Title IV of ERISA or in endangered or critical status,within the meaning of Section 305 of ERISA.“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by theLoan Market Association (or any successor person), as in effect from time to time.“Euro” or “€” 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, bear interest at a rate determined by reference to the AdjustedLIBO Rate.“Events of Default” has the meaning set forth in Section 7.01.“Exchange Act” means the United States Securities Exchange Act of 1934.“Excluded Subsidiary” means (a) any subsidiary that is not a wholly-owned Subsidiary, (b) anyImmaterial Subsidiary, (c) any subsidiary that is prohibited by applicable law or contractual obligationsfrom guaranteeing the Obligations, (d) (i) any direct or indirect Domestic Subsidiary of a CFC or (ii) anyFSHCO, (e) any captive insurance subsidiary, (f) any not-for-profit subsidiary, (g) any other subsidiarywith respect to which in the reasonable judgment of the Administrative Agent and the Borrower, the costor other consequences of providing a guarantee of the Obligations shall be excessive in view of the19
benefits to be obtained by the Lenders therefrom (it being agreed that the cost and other consequences ofa Foreign Subsidiary providing a guarantee are excessive in view of the benefits except as elected (andsolely as so elected) by the Borrower pursuant to Section 5.10), (i) any Receivables Subsidiary and (j) anysubsidiary that is a special purpose entity“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient orrequired to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured bynet income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposedas a result of such Recipient being organized under the laws of, or having its principal office or, in thecase of any Lender, its applicable lending office or permanent establishment located in, the jurisdictionimposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in thecase of any Lender, with respect of any Loan made to the Borrower, U.S. federal withholding Taxesimposed on amounts payable to or for the account of such Recipient with respect to an applicable interestin a Loan pursuant to a law in effect on the date on which (i) such Lender acquires the applicable interestin the applicable Commitment to which such Loan relates (other than pursuant to an assignment requestby the Borrower under Section 2.16) or (ii) such Lender changes its lending office, except in each case tothe extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to suchLender’s assignor, if any, immediately before such Lender acquired such applicable interest in theapplicable Commitment or to such Lender immediately before it changed its lending office, (c) Taxesattributable to such Recipient’s failure to comply with Section 2.14(f), (d) any Taxes imposed underFATCA and (e) any U.S. federal backup withholding taxes.“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (orany amended or successor version that is substantively comparable and not materially more onerous tocomply with), any current or future regulations thereunder or official interpretations thereof, anyagreements entered into pursuant to current Section 1471(b) of the Code (or any amended or successorversion described above), any intergovernmental agreement (and related fiscal or regulatory legislation,rules or official administrative guidance) implementing the foregoing.“Federal Funds Effective Rate” means, for any day, the rate per annum calculated by the FederalReserve Bank of New York based on such day’s federal funds transactions by depository institutions (asdetermined in such manner as the Federal Reserve Bank of New York shall set forth on its public websitefrom time to time) and published on the next succeeding Business Day by the Federal Reserve Bank ofNew York as the federal funds effective rate; provided that if the Federal Funds Effective Rate as sodetermined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of theUnited States of America.“Financial Officer” means, with respect to any Person, the chief financial officer, principalaccounting officer, vice president-treasury, treasurer or controller of such Person.“Fitch” means Fitch Ratings, Inc., or any successor to its rating agency business.“Fixed Charges” means, with respect to any Person for any period, the sum, without duplication,of: (a) Consolidated Interest Expense of such Person and Subsidiaries for such period; plus20
(b) all cash dividends or other distributions paid to any Person other than such Person or anysuch Subsidiary (excluding items eliminated in consolidation) on any series of Preferred Stock of theBorrower or a Subsidiary during such period; plus(c) all cash dividends or other distributions paid to any Person other than such Person or anysuch Subsidiary (excluding items eliminated in consolidation) on any series of Disqualified Stock of theBorrower or a Subsidiary during such period.“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of theexecution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise)with respect to the Adjusted Daily Simple RFR or the Adjusted Term SOFR Rate. For the avoidance ofdoubt, the initial Floor for the Adjusted Daily Simple RFR and the Adjusted Term SOFR Rate shall bezero. “Floorplan Facility” means the “Floorplan Facility” under (and as defined in) the RevolvingCredit Agreement.“Floorplan Loans” means the “Floorplan Loans” under (and as defined in) the Revolving CreditAgreement.“Foreign Subsidiary” means, with respect to any Person, any subsidiary of such Person that isorganized and existing under the laws of any jurisdiction other than the United States of America, anystate thereof or the District of Columbia.“FSHCO” means any Domestic Subsidiary of the US Borrower that has no material assets otherthan the Equity Interests of one or more CFCs.“GAAP” means, subject to Section 1.04(a), generally accepted accounting principles in theUnited States of America, applied in accordance with the consistency requirements thereof.“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses andexemptions of, registrations and filings with, and reports to, Governmental Authorities.“Governmental Authority” means the government of the United States of America or any othernation or any political subdivision of any thereof, and any agency, authority, instrumentality, regulatorybody, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (including any supra-national bodyexercising such powers or functions, such as the European Union or the European Central Bank).“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent orotherwise, of the guarantor 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 theguarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase orpayment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for thepurchase of) any security for the payment thereof, (b) to purchase or lease property, securities orservices for the purpose of assuring the owner of such Indebtedness or other obligation of the paymentthereof, (c) to maintain working capital, equity capital or any other financial statement condition orliquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or otherobligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued tosupport such Indebtedness or other obligation; provided that the term “Guarantee” shall not includeendorsements for collection or deposit in the ordinary course of business. The amount, as of any date of21
determination, of any Guarantee shall be the principal amount outstanding on such date of theIndebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms ofwhich limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does nothave a principal amount, the maximum monetary exposure as of such date of the guarantor under suchGuarantee (as determined, in the case of clause (i), pursuant to such terms or, in the case of clause (ii),reasonably and in good faith by the chief financial officer of the Borrower)).“Guarantor” and “Guarantors” has the meaning set forth in Section 5.10(a).“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes orother pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials,polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes ofany nature regulated pursuant to any Environmental Law.“Hedging Agreement” means any agreement with respect to any swap, forward, future orderivative transaction, or any option or similar agreement, involving, or settled by reference to, one ormore rates, currencies, commodities, prices of equity or debt securities or instruments, or economic,financial or pricing indices or measures of economic, financial or pricing risk or value, or any similartransaction or combination of the foregoing transactions; provided that no phantom stock or similar planproviding for payments only on account of services provided by current or former directors, officers,employees or consultants of the Borrower or the Subsidiaries shall be a Hedging Agreement. The amountof the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any timeshall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower orsuch Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.“Hedging Obligations” means, with respect to any Person, the obligations of such Person underany Hedging Agreement.“Holdings” means CDW Corporation, a Delaware corporation, and shall include any successorsto such Person or assigns.“IBM Inventory Financing Agreement” means, collectively, (i) that certain Agreement forWholesale Financing - Credit Agreement, dated December 1, 2021, by and between IBM Credit LLC, aDelaware limited liability company, CDW Logistics LLC, an Illinois limited liability company, as thesame may be amended, amended and restated, supplemented or otherwise modified from time to time and(ii) that certain Agreement for Wholesale Financing - Credit Agreement, dated December 1, 2021, by andbetween IBM Credit LLC, a Delaware limited liability company, and Sirius Computer Solutions, Inc., aTexas corporation, as the same may be amended, amended and restated, supplemented or otherwisemodified from time to time.“Immaterial Subsidiary” means each of the Subsidiaries of the Borrower for which (a) (i) theassets of such Subsidiary constitute less than 2.5% of the total assets of the Borrower and its Subsidiarieson a consolidated basis and (ii) the Consolidated EBITDA of such Subsidiary accounts for less than 2.5%of the Consolidated EBITDA of the Borrower and its Subsidiaries on a consolidated basis and (b) (i) theassets of all relevant Subsidiaries constitute 5.0% or less than the total assets of the Borrower and itsSubsidiaries on a consolidated basis, and (ii) the Consolidated EBITDA of all relevant Subsidiariesaccounts for less than 5.0% of the Consolidated EBITDA of the Borrower and its Subsidiaries on aconsolidated basis, in each case that has been designated as such by the Borrower in a written noticedelivered to the Administrative Agent (or, on the Effective Date, listed on Schedule 1.01(b)) other than22
any such Subsidiary as to which the Borrower has revoked such designation by written notice to theAdministrative Agent.“Impacted Loans” has the meaning specified in Section 2.11(a).“Indebtedness” means, with respect to any Person, without duplication:(a) any indebtedness (including principal and premium) of such Person, whether or notcontingent (i) in respect of borrowed money;(ii) evidenced by bonds, notes, debentures or similar instruments;(iii) evidenced by letters of credit or bankers’ acceptances (or, without duplication,reimbursement agreements in respect thereof);(iv) Capital Lease Obligations;(v) representing the balance deferred and unpaid of the purchase price of anyproperty (other than Capital Lease Obligations); or(vi) representing any Hedging Obligations;if and to the extent that any of the foregoing Indebtedness (other than letters of credit, bankers’acceptances and Hedging Obligations) would appear as a liability upon a balance sheet (excluding thefootnotes thereto) of such Person prepared in accordance with GAAP;(b) to the extent not otherwise included, any obligation by such Person to be liable for, or topay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (a) of a thirdPerson (whether or not such items would appear upon the balance sheet of such obligor or guarantor),other than by endorsement of negotiable instruments for collection in the ordinary course of business;(c) Disqualified Stock of such Person; and(d) to the extent not otherwise included, the obligations of the type referred to in clause (a) ofa third Person secured by a Lien on any asset owned by such first Person, whether or not suchIndebtedness is assumed by such first Person;provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include(A) contingent obligations incurred in the ordinary course of business, (B) obligations under or in respectof Receivables Facilities, (C) Floorplan Loans, other Inventory financing arrangements incurred in theordinary course of business and any obligations under any customer financing arrangements incurred inthe ordinary course of business, (D) any such balance that constitutes a trade payable or similar obligationto a trade creditor, in each case accrued in the ordinary course of business, (E) liabilities accrued in theordinary course of business, (F) earn-outs and other contingent payments in respect of acquisitions exceptto the extent that the liability on account of any such earn-outs or contingent payment becomes fixed,(G) deferred or prepaid revenue and (H) purchase price holdbacks in respect of a portion of the purchaseprice of an asset to satisfy warranty or other unperformed obligations of the seller. The amount ofIndebtedness of any Person under clause (c) above shall be deemed to equal the lesser of (x) the aggregateunpaid amount of such Indebtedness secured by such Lien and (y) the fair market value of the property23
encumbered thereby as reasonably determined by such Person in good faith. The Indebtedness of anyperson shall include the Indebtedness of any other Person (including any partnership in which suchPerson is a general partner) to the extent such Person is liable therefor as a result of such Person’sownership interest in or other relationship with such other Person, except to the extent the terms of suchIndebtedness provide that such Person is not liable therefor.“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect toany payment made by or on account of any obligation of the Borrower or any Guarantor under any LoanDocument and (b) to the extent not otherwise described in clause (a), Other Taxes.“Indemnitee” has the meaning set forth in Section 9.03(b).“Interest Election Request” means a request by the Borrower to convert or continue a Borrowingin accordance with Section 2.05, which shall be, in the case of any such written request, substantially inthe form of Exhibit D or any other form approved by the Administrative Agent.“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of eachMarch, June, September and December and, (b) with respect to any EurocurrencyRFR Loan, (1) each datethat is on the numerically corresponding day in each calendar month that is one month after theBorrowing of such Loan (or, if there is no such numerically corresponding day in such month, then thelast day of such month) and (2) the Maturity Date and (c) with respect to any Term Benchmark Loan, thelast day of theeach Interest Period applicable to the Borrowing of which such Loan is a part (and, in thecase of a EurocurrencyTerm Benchmark Borrowing with an Interest Period of more than three months’duration, sucheach day or days prior to the last day of such Interest Period as shall occurthat occurs atintervals of three months’ duration after the first day of such Interest Period), and the Maturity Date.“Interest Period” means, with respect to any EurocurrencyTerm Benchmark Borrowing, theperiod commencing on the date of such Borrowing and ending on the numerically corresponding day inthe calendar month that is one, three or six months thereafter (or such shorter or longer period as shallhave been consented to by each Lender participating in such Borrowing) (in each case, subject to theavailability for the Benchmark applicable to the relevant Loan or Commitment), as the Borrower mayelect; provided that (a) if any Interest Period would end on a day other than a Business Day, such InterestPeriod shall be extended to the next succeeding Business Day unless such next succeeding Business Daywould fall in the next calendar month, in which case such Interest Period shall end on the next precedingBusiness Day, (b) any Interest Period that commences on the last Business Day of a calendar month (oron a day for which there is no numerically corresponding day in the last calendar month of such InterestPeriod) shall end on the last Business Day of the last calendar month of such Interest Period and, (c) noInterest Period shall extend beyond the Maturity Date and (d) no tenor that has been removed from thisdefinition pursuant to Section 2.11(e) shall be available for specification in such Borrowing Request orInterest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date onwhich such Borrowing is made and thereafter shall be the effective date of the most recent conversion orcontinuation of such Borrowing.“Interpolated Rate” means, at any time, for any interest period, the rate per annum (rounded tothe 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 thatresults from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (forwhich the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) theLIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the24
Impacted Interest Period, in each case, at such time; provided that if any Interpolated Rate shall be lessthan zero, such rate shall be deemed to be zero for the purposes of this Agreement.“Inventory Financing Agreements” means the ▇▇▇▇▇ Fargo Inventory Financing Agreement andthe IBM Inventory Financing Agreement and any other inventory financing arrangement entered into inthe ordinary course of business.“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) byMoody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.“Judgment Currency” has the meaning set forth in Section 9.17.“Lender-Related Person” has the meaning assigned to it in Section 9.03(d).“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall havebecome a party hereto pursuant to an Assignment and Assumption, other than any such Person that shallhave ceased to be a party hereto pursuant to an Assignment and Assumption.“Leverage Ratio” means, on any date, the ratio of (a) Consolidated Total Indebtedness as of suchdate minus the Cash Netting Amount to (b) Consolidated EBITDA for the period of four consecutivefiscal quarters of the Borrower most recently ended on or prior to such date.“Liabilities” means any actual losses, claims (including intraparty claims), demands, damages orliabilities of any kind.“LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, theLIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to thecommencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available atsuch time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be theInterpolated Rate. Notwithstanding the foregoing, if the LIBO Rate, determined as provided above,would otherwise be less than zero, then the LIBO Rate shall be deemed to be zero for all purposes.“LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Borrowingfor any Interest Period, or with respect to any determination of the Alternate Base Rate pursuant to clause(c) of the definition thereof, the London interbank offered rate as administered by the ICE BenchmarkAdministration (or any other Person that takes over the administration of such rate) for deposits in dollars(for delivery on the first day of such Interest Period) for a period equal in length to such Interest Period asdisplayed on either the Reuters screen page or the Bloomberg screen page, as selected by theAdministrative Agent, that displays such rate (currently page LIBOR01 or LIBOR02) or, in the eventsuch rate does not appear on a page of the Reuters screen or the Bloomberg screen, on the appropriatepage of such other information service that publishes such rate from time to time as selected by theAdministrative Agent in its reasonable discretion; provided that if the LIBO Screen Rate as so determinedwould be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,hypothecation, charge, security interest or other encumbrance on, in or of such asset, and (b) the interestof a vendor or a lessor under any conditional sale agreement or title retention agreement (or any financing25
lease having substantially the same economic effect as any of the foregoing) relating to such asset;provided that in no event shall an operating lease or occupancy agreement be deemed to constitute a Lien.“Loan Documents” means this Agreement, the Assumption Agreement (if any), the SubsidiaryGuaranties (if any), the Agent Fee Letter and, except for purposes of Section 9.02, any promissory notesdelivered pursuant to Section 2.07(c).“Loan Modification Agreement” means a Loan Modification Agreement in form and substancereasonably satisfactory to the Administrative Agent and the Borrower, among the Borrower, one or moreAccepting Lenders and the Administrative Agent.“Loan Modification Offer” has the meaning specified in Section 2.18(a).“Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.“Material Adverse Effect” means a material adverse effect on (a) the business, assets, liabilities,operations, results of operations or financial condition of the Borrower and the Subsidiaries, taken as awhole, or (b) the material rights of or remedies available to the Lenders under the Loan Documents, takenas a whole.“Material Indebtedness” means Indebtedness (other than under the Loan Documents or anyFloorplan Facility), or obligations in respect of one or more Hedging Agreements, of any one or more ofthe Borrower and the Subsidiaries in an aggregate outstanding principal amount of $200,000,000 or more.For purposes of determining Material Indebtedness, the “principal amount” of the obligations of theBorrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximumaggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary wouldbe required to pay if such Hedging Agreement were terminated at such time.“Material Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”under Rule 1-02(w) of Regulation S-X under the Securities Act, as amended.“Maturity Date” means the fifth anniversary of the Effective Date.“Maximum Rate” has the meaning set forth in Section 9.13.“MNPI” means material information concerning the Borrower, any Subsidiary or anyControlled Affiliate of any of the foregoing, or any of their securities, that has not been disseminated ina manner making it available to investors generally, within the meaning of Regulation FD under theSecurities Act and the Exchange Act. For purposes of this definition, “material information” meansinformation concerning the Borrower, the Subsidiaries or any Controlled Affiliate of any of theforegoing, or any of their securities, that could reasonably be expected to be material for purposes of theUnited States federal and state securities laws.“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor to the rating agencybusiness thereof.“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.“Non-Accepting Lender” has the meaning specified in Section 2.18(a).26
“Non-Guarantor Indebtedness” means any Indebtedness of a Subsidiary that is not a Guarantor;provided that Indebtedness of CDW UK solely as it relates to the “Obligations” (as defined in theRevolving Credit Agreement) shall not be included as “Non-Guarantor Indebtedness”.“Non-Guarantor Preferred Stock” has the meaning set forth under Section 6.01.“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shallbe substantially in the form of Exhibit G or such other form as may be approved by the AdministrativeAgent (including any form on an electronic platform or electronic transmission system as shall beapproved by the Administrative Agent), appropriately completed and signed by a Responsible Officer ofthe Borrower.“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 effecton such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not aBusiness Day, for the immediately preceding Business Day); provided that if none of such rates arepublished for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal fundstransaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal fundsbroker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as sodetermined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.“NYFRB’s Website” means the website of the NYFRB at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or anysuccessor source.“Obligations” means (a) the due and punctual payment by the Borrower of the principal of andpremium, if any, and interest (including interest accruing, at the rate specified herein, during the pendencyof any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed orallowable in such proceeding) on all Loans, when and as due, whether at maturity, by acceleration, uponone or more dates set for prepayment or otherwise and (b) the due and punctual payment or performanceby the Borrower of all other monetary obligations under this Agreement or any other Loan Document,including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed orotherwise (including monetary obligations accruing, at the rate specified herein or therein, or incurredduring the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardlessof whether allowed or allowable in such proceeding).“OFAC” means the United States Treasury Department Office of Foreign Assets Control.“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of apresent or former connection between such Recipient and the jurisdiction (or political subdivisionsthereof) imposing such Tax (other than connections arising from such Recipient having executed,delivered, become a party to, performed its obligations under, received payments under, received orperfected a security interest under, engaged in any other transaction pursuant to or enforced any LoanDocument).“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, orotherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxesimposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).27
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federalfunds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices ofdepository institutions, as such composite rate shall be determined by the NYFRB as set forth on theNYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRBas an overnight bank funding rate.“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, theNYFRB Rate and (b) with respect to any amount denominated in any other currency, an overnight ratedetermined by the Administrative Agent in accordance with banking industry rules on interbankcompensation.“Participant Register” has the meaning set forth in Section 9.04(c)(ii).“Participants” has the meaning set forth in Section 9.04(c)(i).“Participating Member State” means any member state of the European Union that has theeuroEuro as its lawful currency in accordance with legislation of the European Union relating toEconomic and Monetary Union.“Payment” has the meaning set forth in Article VIII.“Payment Notice” has the meaning set forth in Article VIII.“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA andany successor entity performing similar functions.“Permitted Amendment” has the meaning specified in Section 2.18(c).“Permitted Inventory Financing Liens” means Liens securing obligations under an InventoryFinancing Agreement.“Permitted Liens” means:(a) Liens imposed by law for Taxes that are not required to be paid in accordancewith Section 5.04;(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and otherlike Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) of the Codeor Section 303(k) or 4068 of ERISA or a violation of Section 436 of the Code), arising in theordinary course of business and securing obligations that are not overdue by more than 90 days orare being contested in good faith by appropriate proceedings;(c) Liens made (i) in the ordinary course of business in compliance with workers’compensation, unemployment insurance and other social security laws (other than any Lienimposed pursuant to Section 430(k) of the Code or Section 303(k) or 4068 of ERISA or aviolation of Section 436 of the Code) and (ii) in respect of letters of credit, bank guarantees orsimilar instruments issued for the account of the Borrower or any Subsidiary in the ordinarycourse of business supporting obligations of the type set forth in clause (i) above;(d) Liens made (i) to secure the performance of bids, trade contracts (other than forpayment of Indebtedness), leases (other than Capital Lease Obligations), statutory obligations28
(other than any Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) or 4068of ERISA or a violation of Section 436 of the Code), surety and appeal bonds, performance bondsand other obligations of a like nature, in each case in the ordinary course of business and (ii) inrespect of letters of credit, bank guarantees or similar instruments issued for the account of theBorrower or any Subsidiary in the ordinary course of business supporting obligations of the typeset forth in clause (i) above;(e) judgment liens in respect of judgments that do not constitute an Event ofDefault under clause (k) of Section 7.01;(f) easements, zoning restrictions, rights-of-way and similar encumbrances on realproperty imposed by law or arising in the ordinary course of business that do not secure anymonetary obligations and do not materially detract from the value of the affected property orinterfere with the ordinary conduct of business of the Borrower and the Subsidiaries, taken as awhole; (g) banker’s liens, rights of setoff or similar rights and remedies as to depositaccounts or other funds maintained with depository institutions and securities accounts and otherfinancial assets maintained with securities intermediaries; provided that such deposit accounts orfunds and securities accounts or other financial assets are not established or deposited for thepurpose of providing collateral for any Indebtedness and are not subject to restrictions on accessby the Borrower or any Subsidiary in excess of those required by applicable banking regulations;(h) Liens arising by virtue of Uniform Commercial Code financing statement filings(or similar filings under applicable law) regarding operating leases entered into by the Borrowerand the Subsidiaries in the ordinary course of business;(i) Liens representing any interest or title of a licensor, lessor or sublicensor orsublessor, or a licensee, lessee or sublicensee or sublessee, in the property (including anyintellectual property) subject to any lease (other than Capital Lease Obligations), license orsublicense or concession agreement in the ordinary course of business;(j) Liens in favor of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods;(k) Liens on specific items of inventory or other goods and proceeds thereof of anyPerson securing such Person’s obligations in respect of bankers’ acceptances or letters of creditissued or created for the account of such Person to facilitate the purchase, shipment or storage ofsuch inventory or other goods in the ordinary course of business;(l) deposits of cash with the owner or lessor of premises leased and operated by theBorrower or any Subsidiary to secure the performance of its obligations under the lease for suchpremises, in each case in the ordinary course of business;(m) Liens on cash and cash equivalents deposited with a trustee or a similar Person todefease or to satisfy and discharge any Indebtedness, provided that such defeasance orsatisfaction and discharge is permitted hereunder;(n) Liens that are contractual rights of set-off, including (i) relating to theestablishment of depository relations with banks not given in connection with the issuance ofIndebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its29
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinarycourse of business of the Borrower and its Subsidiaries or (iii) relating to purchase orders andother agreements entered into with customers of the Borrower or any of its Subsidiaries in theordinary course of business;(o) Liens on cash deposits of the Borrower and Foreign Subsidiaries subject to aCash Pooling Arrangement or otherwise over bank accounts of the Borrower and ForeignSubsidiaries maintained as part of the Cash Pooling Arrangement, in each case securing liabilitiesfor overdrafts of the Borrower and Foreign Subsidiaries participating in such Cash PoolingArrangements;(p) Liens arising out of consignment or similar arrangements for the sale of goodsentered into by the Borrower or any Subsidiary in the ordinary course of business;(q) pledges or deposits made in the ordinary course of business to secure liability toinsurance carriers and Liens on insurance policies and the proceeds thereof (whether accrued ornot), rights or claims against an insurer or other similar asset securing insurance premiumfinancings; and(r) Liens on property subject to Sale/Leaseback Transactions permitted hereunderand general intangibles related thereto;provided that the term “Permitted Liens” shall not include any Lien securing Indebtedness, other thanLiens referred to clauses (c), (d), (e), (k) or (m) above securing letters of credit, bank guarantees or similarinstruments.“Person” means any natural person, corporation, limited liability company, trust, joint venture,association, company, partnership, Governmental Authority or other entity.“Plan” means any “employee pension benefit plan,” as defined in Section 3(2) of ERISA (otherthan a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of theCode or Section 302 of ERISA, and in respect of which the Borrower or any of its ERISA Affiliates is (or,if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” asdefined in Section 3(5) of ERISA.“Platform” has the meaning set forth in Section 9.01(d).“Pre-Adjustment Successor Rate” has the meaning specified in Section 2.11(c).“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends orupon liquidation, dissolution, or winding up.“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “PrimeRate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interestrate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (SelectedInterest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar ratequoted therein (as determined by the Administrative Agent) or any similar release by the Federal ReserveBoard (as determined by the Administrative Agent). Each change in the Prime Rate shall be effectivefrom and including the date such change is publicly announced or quoted as being effective.30
“Private Side Lender Representatives” means, with respect to any Lender, representatives of suchLender that are not Public Side Lender Representatives.“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 Side Lender Representatives” means, with respect to any Lender, representatives of suchLender that do not wish to receive MNPI.“Qualified Acquisition” means any Acquisition or other investment that involves cashconsideration (it being understood, for the avoidance of doubt, that proceeds from an equity offering shallnot constitute cash consideration) of at least $750.0 million and causes the pro forma Leverage Ratio to begreater than the Leverage Ratio immediately prior to giving effect to such Acquisition or otherinvestment.“Rating Agencies” means S&P, ▇▇▇▇▇’▇ and Fitch.“Receivables Facility” means any of one or more receivables financing facilities as amended,supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations ofwhich are non-recourse (except for customary representations, warranties, covenants and indemnitiesmade in connection with such facilities) to the Borrower or any of its Subsidiaries (other than aReceivables Subsidiary) pursuant to which any Subsidiary sells its accounts receivable to either (A) aPerson that is not a Subsidiary or (B) a Receivables Subsidiary that in turn sells its accounts receivable toa Person that is not a Subsidiary.“Receivables Fees” means distributions or payments made directly or by means of discounts withrespect to any accounts receivable or participation interest therein issued or sold in connection with, andother fees paid to a Person that is not a Subsidiary in connection with, any Receivables Facility.“Receivables Subsidiary” means any subsidiary formed for the purpose of, and that solelyengages only in one or more Receivables Facilities and other activities reasonably related thereto.“Recipient” means the Administrative Agent or any Lender, as applicable.“Reference Time” with respect to any setting of the then-current Benchmark means (1) if suchBenchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. GovernmentSecurities Business Days preceding the date of such setting, (2) if the RFR for such Benchmark is DailySimple SOFR, then four U.S. Government Securities Business Days prior to such setting, or (3) if suchBenchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by theAdministrative Agent in its reasonable discretion.“Register” has the meaning set forth in Section 9.04(b)(iv).“Related Indemnitee Parties” means, with respect to any specified Person, (a) any controllingPerson or controlled Affiliate of such Person, (b) the respective directors, officers or employees of suchPerson or any of its controlling Persons or controlled Affiliates, and (c) the respective agents of suchPerson or any of its controlling Persons or controlled Affiliates, in the case of this clause (c), acting at theinstructions of such Person, controlling person or such controlled Affiliate.31
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and thedirectors, officers, partners, members, trustees, employees, agents, administrators, managers,representatives and advisors of such Person and of such Person’s Affiliates.“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit,disposal, discharge, dispersal, leaching or migration into or through the environment or within or uponany building, structure, facility or fixture.“Relevant Governmental Body” means, with respect to a Benchmark Replacement in respect ofLoans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, the CME Term SOFRAdministrator, as applicable, or a committee officially endorsed or convened by the Federal ReserveBoard and/or the NYFRB or, in each case, any successor thereto.“Relevant Rate” means, with respect to any Eurocurrency Borrowing, the Adjusted LIBO Rate.“Relevant Screen Rate” means, (i) with respect to any EurocurrencyTerm Benchmark Borrowing,the LIBO Screen RateAdjusted Term SOFR Rate or (ii) with respect to any RFR Borrowing, the AdjustedDaily Simple RFR, as applicable.“Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having TermLoans representing more than 50% of the aggregate outstanding principal amount of all the Term Loans atsuch time.“Resolution Authority” means an EEA Resolution Authority or, with respect to any UKFinancial Institution, a UK Resolution Authority.“Responsible Officer” means, with respect to any Person, the Financial Officer or any executivevice president, senior vice president, vice president, secretary or assistant secretary of such Person andany other officer or similar official thereof responsible for the administration of the obligations of suchPerson in respect of this Agreement and, as to any document delivered on the Effective Date, anysecretary or assistant secretary of such Person.“Restricted Cash” means Cash and Cash Equivalents held by the Borrower and its Subsidiariesthat are contractually restricted from being distributed to the Borrower or that are classified as “restrictedcash” on the consolidated balance sheet of the Borrower prepared in accordance with GAAP.“Revolving Credit Agreement” means the Revolving Credit Agreement, dated as of December 1,2021, among the Borrower, CDW Finance Holdings Limited, the guarantors party thereto, the lendersparty thereto, JPMorgan, as administrative agent, ▇▇▇▇▇ Fargo Commercial Distribution Finance, LLC, asfloorplan funding agent, and the other parties party thereto, as amended, restated, supplemented, orotherwise modified.“Revolving Facility” means the Revolving Facility under (and as defined in) the Revolving CreditAgreement.“Revolving Loan Documents” has the meaning assigned to the term “Loan Documents” (orsimilar term) in the Revolving Credit Agreement.“Revolving Loans” has the meaning assigned to the term “Loans” in the Revolving CreditAgreement and any modification, replacement, refinancing, refunding, renewal, or extension thereof.32
“RFR” means, for any RFR Loan denominated in Dollars, Daily Simple SOFR.“RFR Administrator” means the SOFR Administrator.“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing.“RFR Business Day” means, for any Loan denominated in Dollars, a U.S. Government SecuritiesBusiness Day.“RFR Interest Day” has the meaning specified in the definition of “Daily Simple RFR”.“RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple RFR.“S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLCbusiness, or any successor to its rating agency business.“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Borroweror any Subsidiary whereby the Borrower or such Subsidiary sells or transfers such property to any Personand the Borrower or any Subsidiary leases such property from such Person or its Affiliates.“Sanctioned Country” means, at any time, a country, region or territory that is itself or whosegovernment is the subject or target of any Sanctions (at the date of this Agreement, Crimea, Cuba, Iran,North Korea and Syria).“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list ofdesignated Persons maintained by OFAC or the U.S. Department of State or by the United NationsSecurity Council, the European Union, any European Union member state, HerHis Majesty’s Treasury ofthe United Kingdom, or any other relevant sanctions authority, (b) any Person operating, organized orresident in a Sanctioned Country, (c) any Person owned or controlled by any Person or Persons describedin the preceding clauses (a) and (b), or (d) any Person otherwise the subject of any Sanctions.“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered orenforced from time to time by (a) the U.S. government, including those administered by OFAC or theU.S. Department of State, or (b) the United Nations Security Council, the European Union, any EuropeanUnion member state or HerHis Majesty’s Treasury of the United Kingdom, or any other relevantsanctions authority.“SEC” means the United States Securities and Exchange Commission.“Securities Act” means the United States Securities Act of 1933.“Similar Business” means any business and any services, activities or businesses directly relatedor similar to, or incidental, corollary, synergistic or complementary to any line of business engaged in bythe Borrower and its subsidiaries on the Effective Date or any business activity that is a reasonableextension, development or expansion thereof or ancillary thereto.“Senior Notes” means the $575 million aggregate principal amount of 5.50% senior notes dueDecember 1, 2024, the $600 million aggregate principal amount of 4.125% senior notes due May 1, 2025,the $600 million aggregate principal amount of 4.25% senior notes due April 1, 2028, the $700 millionaggregate principal amount of 3.25% senior notes due February 15, 2029, the $1,000 million 2.670%33
senior notes due 2026, the $500 million 3.276% senior notes due 2028 and the $1,000 million 3.569%senior notes due 2031, in each case, issued by the Borrower and CDW Finance Corporation.“Senior Unsecured Rating” means, with respect to any Rating Agency as of any date ofdetermination, (a) the rating by such Rating Agency of the senior unsecured long-term indebtednessof the Borrower or (b) if, and only if, such Rating Agency shall not have in effect the rating referredto in clause (a), the Borrower’s “corporate credit” (however denominated) rating assigned by suchRating Agency.“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFRAdministrator.“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnightfinancing rate).“SOFR Administrator’s Website” means the NYFRB’s website, currently athttp://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source for the secured overnight financing rate identified assuch by the SOFR Administrator from time to time.“SOFR Determination Date” has the meaning specified in the definition of “Daily SimpleSOFR”.“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is thenumber one and the denominator of which is the number one minus the aggregate of the maximumreserve percentages (including any marginal, special, emergency or supplemental reserves), expressed asa decimal, established by the Board of Governors for eurocurrency funding (currently referred to as“Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve percentages shallinclude those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constituteeurocurrency funding and to be subject to such reserve requirements without benefit of or credit forproration, exemptions or offsets that may be available from time to time to any Lender under suchRegulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automaticallyon and as of the effective date of any change in any reserve percentage.“Sterling” means the lawful currency of the United Kingdom.“subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person theaccounts of which would be consolidated with those of the parent in the parent’s consolidated financialstatements if such financial statements were prepared in accordance with GAAP as of such date and (b)any other Person (i) of which Equity Interests representing more than 50% of the equity value or morethan 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the generalpartnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date,otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one ormore subsidiaries of the parent.“Subsidiary” means any subsidiary of the Borrower.“Subsidiary Guarantor” has the meaning set forth in Section 5.10(a).34
“Subsidiary Guaranty” and “Subsidiary Guaranties” has the meaning set forth in Section5.10(a). “Syndication Agents” means JPMorgan Chase Bank, N.A., Bank of America, N.A., MorganStanley Senior Funding, Inc. and ▇▇▇▇▇ Fargo Bank, N.A., each in its capacity as syndication agent forthe Term Loan Facility.“Target Entities” means Granite Parent, Inc. and its subsidiaries to be acquired pursuant to thatcertain Purchase and Sale Agreement, dated as of October 15, 2021, by and among the Company andSirius Computer Solutions Holdco, LP, a Delaware limited partnership.“Taxes” means 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 and penalties applicable thereto.“Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether suchLoan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference tothe Adjusted Term SOFR Rate.“Term Loan Facility” means the term loan facility provided for herein, including theCommitments and the Term Loans.“Term Lender” means a Lender with a Commitment or holding a Term Loan.“Term Loan” means a Loan made pursuant to Section 2.01.“Term SOFR Determination Day” has the meaning assigned to it under the definition of TermSOFR Reference Rate.“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated inDollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate atapproximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to thecommencement of such tenor comparable to the applicable Interest Period, as such rate is published bythe CME Term SOFR Administrator.“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFRDetermination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and forany tenor comparable to the applicable Interest Period, the rate per annum determinedpublished by theCME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking termrate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the“Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFRAdministrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred,then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFRReference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate aspublished in respect of the first preceding U.S. Government Securities Business Day for which such TermSOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such firstpreceding U.S. Government Securities Business Day is not more than five (5) U.S. Government SecuritiesBusiness Days prior to such Term SOFR Determination Day.35
“Termination Date” means the date upon which all Commitments have terminated and the Loans,together with all interest, fees and other non-contingent Obligations, have been paid in full in cash.“Total Assets” means total assets of the US Borrower and its Subsidiaries on a consolidated basisprepared in accordance with GAAP, shown on the most recent balance sheet of the US Borrower and itsSubsidiaries as may be expressly stated.“Transactions” means (a) the execution, delivery and performance by the Borrower of the LoanDocuments, the borrowing of the Loans and the use of proceeds thereof, (b) the Effective DateRefinancing, (c) the consummation of the acquisition of all of the issued and outstanding Equity Interestsin Granite Parent, Inc., a Delaware corporation, pursuant to that certain Purchase Agreement, dated as ofOctober 15, 2021 (as may be amended, amended and restated, supplemented or otherwise modified fromtime to time), by and between the Borrower and Sirius Computer Solutions Holdco LP, a Delawarelimited partnership, (d) the issuance of the $1,000 million 2.670% senior notes due 2026, the $500 million3.276% senior notes due 2028 and the $1,000 million 3.569% senior notes due 2031 and (e) the paymentof fees and expenses in connection with the foregoing.“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of intereston such Loan, or on the Loans comprising such Borrowing, is determined by reference to the AdjustedLIBO Rate, the Adjusted Term SOFR Rate, the Adjusted Daily Simple RFR or the Alternate Base Rate.“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under ▇▇▇▇▇▇ Rulebook (as amended from time to time) promulgated by the United Kingdom PrudentialRegulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended fromtime to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certaincredit institutions and investment firms, and certain affiliates of such credit institutions or investmentfirms. “UK Resolution Authority” means the Bank of England or any other public administrativeauthority having responsibility for the resolution of any UK Financial Institution.“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excludingthe related Benchmark Replacement Adjustment.“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) aSunday or (iii) a day on which the Securities Industry and Financial Markets Association recommendsthat the fixed income departments of its members be closed for the entire day for purposes of trading inUnited States government securities.“USA PATRIOT Act” means the Uniting and Strengthening America by Providing AppropriateTools Required to Intercept and Obstruct Terrorism Act of 2001.“Voting Shares” means, with respect to any Person, outstanding shares of capital stock or otherEquity Interests of any class of such Person entitled to vote in the election of directors, or otherwise toparticipate in the direction of the management and policies, of such Person, excluding shares or otherEquity Interests entitled so to vote or participate only upon the happening of some contingency.“▇▇▇▇▇ Fargo Inventory Financing Agreement” means that certain Inventory FinancingAgreement, dated as of October 12, 2007, by and among ▇▇▇▇▇ Fargo Commercial Distribution Finance,LLC (as successor to GE Commercial Distribution Finance Corporation), CDW Logistics, Inc., an Illinoiscorporation, CDW Technologies, Inc., a Wisconsin corporation, CDW Direct, LLC, an Illinois limited36
liability company, and CDW Government LLC, an Illinois limited liability company, as the same may beamended, amended and restated, restated, supplemented or otherwise modified from time to time.“wholly owned”, when used in reference to a subsidiary of any Person, means that all the EquityInterests in such subsidiary (other than directors’ qualifying shares and other nominal amounts of EquityInterests that are required to be held by other Persons under applicable law) are owned, beneficially andof record, by such Person, another wholly owned subsidiary of such Person or any combination thereof.“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete orpartial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of TitleIV of ERISA.“Write-Down and Conversion Powers” means, (a) with respect to any EEA ResolutionAuthority, the write-down and conversion powers of such EEA Resolution Authority from time to timeunder the Bail-In Legislation for the applicable EEA Member Country, which write-down andconversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to theUnited Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation tocancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contractor instrument under which that liability arises, to convert all or part of that liability into shares,securities or obligations of that person or any other person, to provide that any such contract orinstrument is to have effect as if a right had been exercised under it or to suspend any obligation inrespect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillaryto any of those powers.SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,Loans and Borrowings may be classified and referred to by Type (e.g., a “EurocurrencyTerm BenchmarkLoan” or “ABR Loan” or “EurocurrencyTerm Benchmark Borrowing” or “ABR Borrowing”).SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to thesingular and plural forms of the terms defined. Whenever the context may require, any pronoun shallinclude the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and“including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall beconstrued to have the same meaning and effect as the word “shall”. The words “asset” and “property”shall be construed to have the same meaning and effect and to refer to any and all real and personal,tangible and intangible assets and properties. The word “law” shall be construed as referring to allstatutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunderhaving the force of law or with which affected Persons customarily comply), and all judgments, orders,writs and decrees, of all Governmental Authorities. All references to “in the ordinary course of business”of the Borrower or any Subsidiary thereof means (i) in the ordinary course of business of, or infurtherance of an objective that is in the ordinary course of business of the Borrower or such Subsidiary,as applicable, (ii) customary and usual in the industry or industries of the Borrower and its Subsidiaries inthe United States or any other jurisdiction in which the Borrower or any Subsidiary does business, asapplicable, or (iii) generally consistent with the past or current practice of the Borrower or suchSubsidiary, as applicable, or any similarly situated businesses of the United States or any otherjurisdiction in which the Borrower or any Subsidiary does business, as applicable. With respect to anyDefault or Event of Default, the words “exists”, “is continuing” or similar expressions with respectthereto shall mean that the Default or Event of Default has occurred and has not yet been cured or waived.Except as otherwise provided herein and unless the context requires otherwise, (a) any definition of orreference to any agreement, instrument or other document (including this Agreement and the other LoanDocuments) shall be construed as referring to such agreement, instrument or other document as from timeto time amended, restated, supplemented or otherwise modified (subject to any restrictions on such37
amendments, restatements, supplements or modifications set forth herein), (b) any definition of orreference to any statute, rule or regulation shall be construed as referring thereto as from time to timeamended, supplemented or otherwise modified, and all references to any statute shall be construed asreferring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder,(c) any reference herein to any Person shall be construed to include such Person’s successors and assigns(subject to any restrictions on assignment set forth herein) and, in the case of any GovernmentalAuthority, 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 referto this Agreement in its entirety and not to any particular provision hereof and (e) all references herein toArticles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, andExhibits and Schedules to, this Agreement.SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations. (a) Except as otherwiseexpressly provided herein, all terms of an accounting or financial nature used herein shall be construed inaccordance with GAAP as in effect from time to time; provided that (i) if the Borrower, by notice to theAdministrative Agent, shall request an amendment to any provision hereof to eliminate the effect of anychange occurring after the date hereof in GAAP or in the application thereof on the operation of suchprovision (or if the Administrative Agent or the Required Lenders, by notice to the Borrower, shallrequest an amendment to any provision hereof for such purpose), regardless of whether any such notice isgiven before or after such change in GAAP or in the application thereof, then such provision shall beinterpreted on the basis of GAAP as in effect and applied immediately before such change shall havebecome effective until such notice shall have been withdrawn or such provision amended in accordanceherewith and (ii) notwithstanding any other provision contained herein, all terms of an accounting orfinancial nature used herein shall be construed (other than for purposes of Sections 3.04, 5.01(a) and5.01(b)), and all computations of amounts and ratios referred to herein shall be made, (A) withoutgiving effect to (x) any election under Financial Accounting Standards Board Accounting StandardsCodification 825 (or any other Accounting Standards Codification having a similar result or effect) (andrelated interpretations) to value any Indebtedness at “fair value”, as defined therein, or (y) any otheraccounting principle that results in any Indebtedness being reflected on a balance sheet at an amountless than the stated principal amount thereof, (B) without giving effect to any treatment of Indebtednessin respect of convertible debt instruments under Accounting Standards Codification 470-20 (or anyother Accounting Standards Codification having a similar result or effect) (and related interpretations)to value any such Indebtedness in a reduced or bifurcated manner as described therein, and suchIndebtedness shall at all times be valued at the full stated principal amount thereof, and (C) withoutgiving effect to any change in accounting for leases resulting from the implementation of FinancialAccounting Standards Board ASU No. 2016-02, Leases (Topic 842), to the extent any lease (or similararrangement conveying the right to use) would be required to be treated as a capital lease where suchlease (or similar arrangement) would not have been required to be so treated under GAAP as in effect onDecember 31, 2016.(b) All pro forma computations required to be made hereunder giving effect to any transaction shallbe calculated after giving pro forma effect thereto (and, in the case of any pro forma computations madehereunder to determine whether such transaction is permitted to be consummated hereunder, to any othersuch transaction consummated since the first day of the period covered by any component of such proforma computation and on or prior to the date of such computation) as if such transaction had occurred onthe first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter forwhich financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior tothe delivery of any such financial statements, ending with the last fiscal quarter included in the financialstatements referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings andcash flows associated with the assets acquired or disposed of and any related incurrence or reduction ofIndebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any38
Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on suchIndebtedness shall be calculated as if the rate in effect on the date of determination had been theapplicable rate for the entire period (taking into account any Hedging Agreement applicable to suchIndebtedness if such Hedging Agreement has a remaining term in excess of 12 months).(c) Whenever the Borrower elects to give pro forma effect in accordance with Section 1.04(b) abovefor the implementation of any restructuring, operational initiative, business optimization, operational ortechnology change or improvement, the pro forma calculations shall be made in good faith by a financialofficer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” costsavings, operating expense reductions, operating initiatives, other operating improvements and synergiesprojected by the Borrower in good faith to be realizable as a result of specified actions taken, committedto be taken or expected to be taken in the good faith determination of the Borrower (calculated on a proforma basis as though such cost savings, operating expense reductions, operating initiatives, otheroperating improvements and synergies had been realized in full on the first day of such period and as ifsuch cost savings, operating expense reductions, operating initiatives, other operating improvements andsynergies were realized in full during the entirety of such period and “run-rate” means the full recurringbenefit for a period that is associated with any action taken, committed to be taken or with respect towhich substantial steps have been taken or are expected to be taken (including any savings expected toresult from the elimination of a public target’s compliance costs with public company requirements),whether prior to or following the Effective Date, net of the amount of actual benefits realized during suchperiod from such actions, and any such adjustments (herein, the “Pro Forma Adjustments”) shall beincluded in the initial pro forma calculations of such financial ratios or tests and during any subsequentfour quarter period in which the effects thereof are expected to be realizable) relating to such transactionsor actions; provided that (a) such amounts are reasonably identifiable and factually supportable, (b) suchactions are taken, committed to be taken or expected to be taken (in the good faith determination of theBorrower) no later than eighteen (18) months after the consummation or commencement, as applicable, ofany change that is expected to result in such cost savings or synergies, (c) no amounts shall be added tothe extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA(or any other components thereof), whether through a pro forma adjustment or otherwise, with respect tosuch period and (d) the aggregate amount of such Pro Forma Adjustments (together with all amountsadded back under clauses (a)(viii) and (a)(ix) of the definition of Consolidated EBITDA) shall not exceedthe greater of (x) $175,000,000 and (y) 10% of EBITDA of the Borrower for the period of fourconsecutive fiscal quarters most recently ended prior to the determination date (calculated after givingeffect to any adjustments pursuant to this Section 1.04(c) and clauses (a)(viii) and (a)(ix) of the definitionof Consolidated EBITDA).SECTION 1.05. Currency Translation. All references in the Loan Documents to Loans,Obligations, covenant baskets and other amounts shall be denominated in dollarsDollars unless expresslyprovided otherwise. Compliance with all such dollar denominated amounts shall be based on the DollarEquivalent of any amounts denominated or reported under a Loan Document in a currency other thandollarsDollars and shall be determined by the Administrative Agent on any determination date. All feespayable under Section 2.09 shall be payable in dollarsDollars. Notwithstanding anything to the contraryin this Agreement, with respect to the amount of any Indebtedness, Lien, or affiliate transaction, noDefault or Event of Default shall be deemed to have occurred solely as a result of any dollar basket beingexceeded due to a change in the rate of currency exchange occurring after the time of any such specifiedtransaction so long as such specified transaction was permitted at the time incurred, made, acquired,committed, entered or declared. No Default or Event of Default shall arise as a result of any limitation orthreshold set forth in dollarsDollars in Section 7.01(f), (g) or (k) being exceeded solely as a result ofchanges in currency exchange rates from those rates applicable on the last day of the fiscal quarter39
immediately preceding the fiscal quarter in which such determination occurs or in respect of which suchdetermination is being made.SECTION 1.06. Rounding. The calculation of any financial ratios under this Agreement shallbe calculated by dividing the appropriate component by the other component, carrying the result to oneplace more than the number of places by which such ratio is expressed herein and rounding the result upor down to the nearest number (with a rounding-down if there is no nearest number).SECTION 1.07. Interest Rates. The interest rate on a Loan denominated in dollarsDollarsmay be derived from an interest rate benchmark that may be discontinued or is, or may in the futurebecome, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section2.11(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agentdoes not warrant or accept any responsibility for, and shall not have any liability with respect to, theadministration, submission, performance or any other matter related to any interest rate used in thisAgreement, 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, successoror replacement reference rate will be similar to, or produce the same value or economic equivalence of,the existing interest rate being replaced or have the same volume or liquidity as did any existing interestrate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or otherrelated entities may engage in transactions that affect the calculation of any interest rate used in thisAgreement or any alternative, successor or alternative rate (including any Benchmark Replacement)and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. TheAdministrative Agent may select information sources or services in its reasonable discretion to ascertainany interest rate used in this Agreement, any component thereof, or rates referenced in the definitionthereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower,any Lender or any other person or entity for damages of any kind, including direct or indirect, special,punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract orotherwise and whether at law or in equity), for any error or calculation of any such rate (or componentthereof) provided by any such information source or service.SECTION 1.08. Divisions. For all purposes under the Loan Documents, in connection withany division or plan of division under Delaware law (or any comparable event under a differentjurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,obligation or liability of a different Person, then it shall be deemed to have been transferred from theoriginal Person to the subsequent Person, and (b) if any new Person comes into existence, such newPerson shall be deemed to have been organized and acquired on the first date of its existence by theholders of its Equity Interests at such time.SECTION 1.09. Times of Day. Unless otherwise specified, all references herein to times ofday shall be references to Eastern time (daylight or standard, as applicable).SECTION 1.10. Timing of Payment and Performance. When the payment of any obligation orthe performance of any covenant, duty or obligation is stated to be due or performance required on a daywhich is not a Business Day, the date of such payment or performance shall extend to the immediatelysucceeding Business Day and such extension of time shall be reflected in computing interest or fees, asthe case may be.SECTION 1.11. Leases. Notwithstanding anything herein to the contrary, all leases ofequipment (whether operating or Capital Lease Obligations) entered into by the Borrower and itsSubsidiaries in connection with Bundled Solutions shall be disregarded with respect to any calculationinvolving leases to the extent such leases are assigned to a Bundled Solutions customer or are otherwise40
supported by back-to-back leases of such equipment to a Bundled Solutions customer, in each case in theordinary course of business. ARTICLE IIThe CreditsSECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, eachLender agrees to make Loans in dollarsDollars to the Borrower on the Effective Date in a principalamount not exceeding its Commitment. Amounts repaid or prepaid in respect of Term Loans may not bereborrowed.SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowingconsisting of Loans of the same Type made by the Lenders ratably in accordance with their respectiveCommitments. The failure of any Lender to make any Loan required to be made by it shall not relieve anyother Lender of its obligations hereunder; provided that the Commitments of the Lenders are several andno Lender shall be responsible for any other Lender’s failure to make Loans as required.(b) Subject to Sections 2.11 and 2.12, each Borrowing shall be comprised entirely of ABR Loans orEurocurrencyTerm Benchmark Loans as the Borrower may request in accordance herewith. Each Lenderat its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender tomake such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowerto repay such Loan in accordance with the terms of this Agreement.(c) At the commencement of each Interest Period for any EurocurrencyTerm Benchmark Borrowing,such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not lessthan $1,000,000; provided that a EurocurrencyTerm Benchmark Borrowing that results from acontinuation of an outstanding EurocurrencyTerm Benchmark Borrowing may be in an aggregate amountthat is equal to such outstanding Borrowing. At the time that each ABR Borrowing and/or RFRBorrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of$1,000,000 and not less than $1,000,000. Borrowings of more than one Type may be outstanding at thesame time; provided that there shall not at any time be more than a total of fifteen (15) EurocurrencyTermBenchmark Borrowings and RFR Borrowings outstanding.(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled torequest, or to elect to convert to or continue, any Eurocurrency Borrowing if the Interest Period requestedwith respect thereto would end after the Maturity Date.SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower shall notifythe Administrative Agent of such request by telephone or in writing (a) in the case of aEurocurrencyTerm Benchmark Borrowing, not later than 12:30 p.m., New York City time, three U.S.Government Securities Business Days before the date of the proposed Borrowing or (b) in the case of anABR Borrowing, not later than 12:30 p.m., New York City time, on the day of the proposed Borrowing.Each such telephonic and written Borrowing Request shall be irrevocable and shall be made (or, iftelephonic, confirmed promptly) by hand delivery or facsimile to the Administrative Agent of an executedwritten Borrowing Request. Each such telephonic and written Borrowing Request shall specify thefollowing information in compliance with Section 2.02:(i) the aggregate amount of such Borrowing;41
(ii) the date of such Borrowing, which shall be a Business Day;(iii) whether such Borrowing is to be an ABR Borrowing or a EurocurrencyTermBenchmark Borrowing,;(iv) in the case of a EurocurrencyTerm Benchmark Borrowing, the initial InterestPeriod to be applicable thereto, which shall be a period contemplated by the definition of the term“Interest Period”; and(v) the location and number of the account of the applicable Borrower to whichfunds are to be disbursed.If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be anABR Borrowing. If no Interest Period is specified with respect to any requested EurocurrencyTermBenchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of onemonth’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, theAdministrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’▇▇▇▇▇ to be made as part of the requested Borrowing.Notwithstanding the foregoing, in no event shall the Borrower be permitted to request an RFRLoan (it being understood and agreed that Adjusted Daily Simple RFR shall only apply to the extentprovided in Sections 2.11(a) and 2.11(f)).SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan to be madeby it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m.,New York City time (or, in the case of ABR Loans, such later time as shall be two hours after the deliveryby the Borrower of a Borrowing Request therefor in accordance with Section 2.03), in each case, to theaccount of the Administrative Agent most recently designated by it for such purpose by notice to theLenders. The Administrative Agent will make such Loans available to the Borrower by promptlyremitting the amounts so received, in like funds, to an account of the Borrower.(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposeddate of any Borrowing that such Lender will not make available to the Administrative Agent suchLender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made suchshare available on such date in accordance with paragraph (a) of this Section and may, in reliance on suchassumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not infact made its share of the applicable Borrowing available to the Administrative Agent, then the applicableLender and the Borrower severally agree to pay to the Administrative Agent forthwith on written demandsuch corresponding amount with interest thereon, for each day from and including the date such amount ismade available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) inthe case of a payment to be made by such Lender, the greater of the applicable Overnight Rate and a ratedetermined by the Administrative Agent in accordance with banking industry rules on interbankcompensation or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable toABR Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for thesame or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amountof such interest paid by the Borrower for such period. If such Lender pays such amount to theAdministrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against aLender that shall have failed to make such payment to the Administrative Agent.42
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall be of the Type and, inthe case of a EurocurrencyTerm Benchmark Borrowing, shall have an initial Interest Period as specifiedin the applicable Borrowing Request or as otherwise provided in Section 2.03. Thereafter, the Borrowermay elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowingand, in the case of a EurocurrencyTerm Benchmark Borrowing, may elect Interest Periods therefor, all asprovided in this Section. The Borrower may elect different options with respect to different portions ofthe affected Borrowing, in which case each such portion shall be allocated ratably among the Lendersholding the Loans comprising such Borrowing, and the Loans comprising each such portion shall beconsidered a separate Borrowing.(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agentof such election by telephone or in writing by the time that a Borrowing Request would be required underSection 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to bemade on the effective date of such election. Each such telephonic and written Interest Election Requestshall be irrevocable and shall be made (or, if telephonic, confirmed promptly) by hand delivery orfacsimile to the Administrative Agent of an executed written Interest Election Request. Each telephonicand written Interest Election Request shall specify the following information in compliance with Section2.02: (i) the Borrowing to which such Interest Election Request applies and, ifdifferent options are being elected with respect to different portions thereof, the portionsthereof to be allocated to each resulting Borrowing (in which case the information to bespecified pursuant to clauses (iii) and (iv) below shall be specified for each resultingBorrowing);(ii) the effective date of the election made pursuant to such Interest ElectionRequest, which shall be a Business Day;(iii) whether the resulting Borrowing is to be an ABR Borrowing or aEurocurrencyTerm Benchmark Borrowing; and(iv) if the resulting Borrowing is to be a EurocurrencyTerm BenchmarkBorrowing, 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 EurocurrencyTerm Benchmark Borrowing butdoes not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Periodof one month’s duration.(c) Promptly following receipt of an Interest Election Request in accordance with this Section, theAdministrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of eachresulting Borrowing.(d) If the Borrower fails to deliver a timely Interest Election Request with respect to aEurocurrencyTerm Benchmark Borrowing in dollarsDollars prior to the end of the Interest Periodapplicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such InterestPeriod such Borrowing shall be deemed to have been continued as a EurocurrencyTerm BenchmarkBorrowing for an additional Interest Period of one month. Notwithstanding any contrary provisionhereof, if an Event of Default under clause (h) or (i) of Section 7.01 has occurred and is continuing withrespect to the Borrower, or if any other Event of Default has occurred and is continuing and theAdministrative Agent, at the request of the Required Lenders, has notified the Borrower of the election to43
give effect to this sentence on account of such other Event of Default, then, in each such case, so long assuch Event of Default is continuing, (i) no outstanding Borrowing may be converted to or continuedas a EurocurrencyTerm Benchmark Borrowing or an RFR Borrowing and (ii) unless repaid, eachEurocurrencyTerm Benchmark Borrowing and RFR Borrowing shall be converted to an ABRBorrowing at the end of the Interest Period or Interest Payment Date applicable thereto.SECTION 2.06. Termination of Commitments. Unless previously terminated, theCommitment of each Term Lender shall automatically terminate immediately after the making of theTerm Loan by such Term Lender on the Effective Date.SECTION 2.07. Repayment of Loans; Amortization; Evidence of Debt. (a) The Borrower(x) shall repay to the Administrative Agent for the account of each Term Lender (which repayments shallbe adjusted from time to time pursuant to Section 2.08) on the last day of each fiscal quarter of theBorrower (commencing on the last day of the first full fiscal quarter of the Borrower ending after theEffective Date) or, if any such date is not a Business Day, on the next succeeding Business Day, aprincipal amount in respect of the Term Loans equal to (A) in the case of each quarterly payment for thefirst four (4) full fiscal quarters following the Effective Date, 0.625% of the aggregate principal amountof the Term Loans incurred on the Effective Date and (B) in the case of each quarterly payment for eachfiscal quarter following the fourth full fiscal quarter following the Effective Date, 1.25% of the aggregateprincipal amount of such Term Loans incurred on the Effective Date and (y) hereby unconditionallypromises to pay to the Administrative Agent for the account of each Term Lender the then unpaidprincipal amount of each Term Loan of such Term Lender on the Maturity Date.(b) The records maintained by the Administrative Agent and the Lenders shall (in the case of theLenders, to the extent they are not inconsistent with the records maintained by the Administrative Agentpursuant to Section 9.04(b)(iv)) be prima facie evidence of the existence and amounts of the obligationsof the Borrower in respect of the Loans, interest and fees due or accrued hereunder; provided that thefailure of the Administrative Agent or any Lender to maintain such records or any error therein shall notin any manner affect the obligation of the Borrower to pay any amounts due hereunder in accordance withthe terms of this Agreement.(c) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event,the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lenderand its registered assigns and in a form approved by the Administrative Agent. Thereafter, the Loansevidenced by such promissory note and interest thereon shall at all times (including after assignmentpursuant to Section 9.04) be represented by one or more promissory notes in such form payable to thepayee named therein and its registered assigns.SECTION 2.08. Prepayment of Loans. (a) The Borrower shall have the right at any time andfrom time to time to prepay any Borrowing in whole or in part, without premium or penalty, subject to therequirements of this Section.(b) The Borrower shall notify the Administrative Agent by delivery of a Notice of Loan Prepaymentof any optional prepayment hereunder (i) in the case of prepayment of (1) a EurocurrencyTermBenchmark Borrowing, not later than 12:30 p.m., New York City time, three Business Days before thedate of prepayment or (2) an RFR Borrowing, not later than 12:30 p.m., New York City time, threeBusiness Days before the date of prepayment, and (ii) in the case of prepayment of an ABR Borrowing,not later than 12:30 p.m., New York City time, one Business Day before the date of prepayment. Eachsuch notice shall be irrevocable and shall specify the prepayment date, the Borrowing or Borrowings to beprepaid and the principal amount of each such Borrowing or portion thereof to be prepaid; provided that aNotice of Loan Prepayment may state that such notice is conditioned upon the occurrence of one or more44
events specified therein, in which case such notice may be revoked by the Borrower (by notice to theAdministrative Agent) on or prior to the specified effective date if such condition is not satisfied.Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of thecontents thereof. Each partial prepayment of any Borrowing shall be in an amount that would bepermitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02. Eachprepayment of a Borrowing shall be applied ratably to the Loans to scheduled installments of principal setforth in Section 2.07(a) above in the direct order of maturity. Prepayments shall be accompanied byaccrued interest to the extent required by Section 2.10.SECTION 2.09. Fees. (a) [Reserved].(b) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in theamounts and at the times separately agreed upon between the Borrower and the Administrative Agent,including pursuant to the Agent Fee Letter.(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to theAdministrative Agent. Fees paid shall not be refundable under any circumstances.SECTION 2.10. Interest(a) . (a)(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rateplus the Applicable Rate.(b) The Loans comprising each EurocurrencyTerm Benchmark Borrowing shall bear interestat the Adjusted LIBOTerm SOFR Rate for the Interest Period in effect for such Borrowing plus theApplicable Rate.(c) Each RFR Loan shall bear interest at a rate per annum equal to the Adjusted DailySimple RFR plus the Applicable Rate.(d) (c) Notwithstanding the foregoing, if an Event of Default under Section 7.01(a) or (b)shall have occurred and be continuing, whether at stated maturity, upon acceleration or otherwise, then,upon the written request of the Required Lenders until the related defaulted amount shall have been paidin full, to the extent permitted by law, such overdue amount shall bear interest, after as well as beforejudgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% perannum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of thisSection or (ii) in the case of overdue interest, overdue fees or any other amounts on any Loan, 2.00%per annum plus the rate applicable to ABR Loans, as provided in paragraph (a) of this Section 2.10.(e) (d) Accrued interest on each Loan shall be payable in arrears on each Interest PaymentDate for such Loan; provided that (i) interest accrued pursuant to paragraph (cd) of this Section shall bepayable on written demand of the Required Lenders, (ii) in the event of any repayment or prepayment ofany Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of suchrepayment or prepayment and (iii) in the event of any conversion of a EurocurrencyTerm BenchmarkLoan o prior to the end of the current Interest Period therefor, accrued interest on such Loan shall bepayable on the effective date of such conversion. Any accrued and unpaid interest on any Loan shall bedue and payable on the date such Loan is repaid.(f) (e) Interest computed by reference to the LIBOTerm SOFR Rate hereunder shall becomputed on the basis of a year of 360 days. Interest computed by reference to the Alternate Base Rateonly at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a45
year of 365 days (or, in the case of Alternate Base Rate, 366 days in a leap year). In each case interestshall be payable for the actual number of days elapsed (including the first day but excluding the last day).All interest hereunder on any Loan shall be computed on a daily basis based upon the outstandingprincipal amount of such Loan as of the applicable date of determination. TheAny determination of theapplicable Alternate Base Rate, Adjusted LIBOTerm SOFR Rate, LIBOTerm SOFR Rate, Adjusted DailySimple RFR or Daily Simple RFR shall be determined by the Administrative Agent, and suchdetermination shall be conclusive absent manifest error.SECTION 2.11. Inability to Determine Rates.(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:(i) the Administrative Agent determines (which determination shall be conclusiveabsent manifest error) (A) prior to the commencement of any Interest Period for aEurocurrencyTerm Benchmark Borrowing, that adequate and reasonable means do not exist forascertaining the Adjusted LIBO Rate, the LIBO Rate, the Adjusted Term SOFR Rate or the TermSOFR Rate (including because the Relevant ScreenTerm SOFR Reference Rate is not available orpublished on a current basis), for the applicable currency and such Interest Period or (B) at anytime, that adequate and reasonable means do not exist for ascertaining the applicable AdjustedDaily Simple RFR, Daily Simple RFR or RFR for the applicable currency; or(ii) the Administrative Agent is advised by the Required Lenders that (A) prior to thecommencement of any Interest Period for a EurocurrencyTerm Benchmark Borrowing, theAdjusted LIBO Rate or the Adjusted Term SOFR Rate for the applicable currency and suchInterest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) ofmaking or maintaining their Loans (or its Loan) included in such Borrowing for the applicablecurrency and such Interest Period or (B) at any time, the applicable Adjusted Daily Simple RFRor RFR for the applicable currency 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 forthe applicable currency;then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone,telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agentnotifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer existwith respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request inaccordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms ofSection 2.03, (1) any Interest Election Request that requests the conversion of any Borrowing to, orcontinuation of any Borrowing as, a EurocurrencyTerm Benchmark Borrowing and any BorrowingRequest that requests a EurocurrencyTerm Benchmark Borrowing shall instead be deemed to be anInterest Election Request or a Borrowing Request, as applicable, for (x) a Term Benchmark Borrowing solong as the Term Benchmark for Borrowings is not also the subject of Section 2.11(a)(i) or (ii) above, (y)if the Term Benchmark for Borrowings is also the subject of Section 2.14(a)(i) or (ii), an RFR Borrowingso long as the Adjusted Daily Simple RFR is not also the subject of Section 2.11(a)(i) or (ii) above or (zy)if the Adjusted Daily Simple RFR for dollarDollar Borrowings also is the subject of Section2.142.11(a)(i) or (ii) above, an ABR Borrowing and (2) any Borrowing Request that requests aEurocurrencyTerm Benchmark Borrowing shall instead be deemed to be a Borrowing Request, asapplicable, for a Term Benchmark Borrowing, an RFR Borrowing or an ABR Borrowing, as applicable;provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then allother Types of Borrowings shall be permitted. Furthermore, if any EurocurrencyTerm Benchmark Loanis outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referredto in this Section 2.11(a) with respect to a Relevant Rate applicable to such EurocurrencyTerm46
Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that thecircumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y)the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.05 or anew Borrowing Request in accordance with the terms of Section 2.03, any EurocurrencyTerm BenchmarkLoan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding BusinessDay if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute,(x) Term Benchmark Borrowing so long as the Term Benchmark for Borrowings is not also the subject ofSection 2.11(a)(i) or (ii) above, (y) if the Term Benchmark for Borrowings is also the subject of Section2.14(a)(i) or (ii), an RFR Borrowing so long as the Adjusted Daily Simple RFR is not also the subject ofSection 2.11(a)(i) or (ii) above or (zy) an ABR Loan if the Adjusted Daily Simple RFR also is the subjectof Section 2.11(a)(i) or (ii) above, on such day.(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a BenchmarkTransition Event and its related Benchmark Replacement Date have occurred prior to the Reference Timein respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement isdetermined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for suchBenchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for allpurposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequentBenchmark settings without any amendment to, or further action or consent of any other party to, thisAgreement or any other Loan Document and (y) if a Benchmark Replacement is determined inaccordance with clause (32) of the definition of “Benchmark Replacement” for such BenchmarkReplacement Date, such Benchmark Replacement will replace such Benchmark for all purposeshereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (NewYork City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement isprovided to the Lenders without any amendment to, or further action or consent of any other party to, thisAgreement or any other Loan Document so long as the Administrative Agent has not received, by suchtime, written notice of objection to such Benchmark Replacement from Lenders comprising the RequiredLenders.(c) Notwithstanding anything to the contrary herein or in any other Loan Document, theAdministrative Agent (in consultation with the Borrower) will have the right to make BenchmarkReplacement Conforming Changes from time to time and, notwithstanding anything to the contraryherein or in any other Loan Document, any amendments implementing such Benchmark ReplacementConforming Changes will become effective without any further action or consent of any other party tothis Agreement or any other Loan Document.(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) anyoccurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement,(iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal orreinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement orconclusion of any Benchmark Unavailability Period. Any determination, decision or election that may bemade by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrenceor non-occurrence of an event, circumstance or date and any decision to take or refrain from taking anyaction or any selection, will be conclusive and binding absent manifest error and may be made in its ortheir sole discretion and without consent from any other party to this Agreement or any other LoanDocument, except, in each case, as expressly required pursuant to this Section 2.11.(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time(including in connection with the implementation of a Benchmark Replacement), (i) if the then-currentBenchmark is a term rate (including the LIBO Rate or Term SOFR Rate) and either (A) any tenor for47
such Benchmark is not displayed on a screen or other information service that publishes such rate fromtime to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatorysupervisor for the administrator of such Benchmark has provided a public statement or publication ofinformation announcing that any tenor for such Benchmark is or will be no longer representative, then theAdministrative Agent may modify the definition of “Interest Period” for any Benchmark settings at orafter such time to remove such unavailable or non-representative tenor and (ii) if a tenor that wasremoved pursuant to clause (i) above either (A) is subsequently displayed on a screen or informationservice for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to anannouncement that it is or will no longer be representative for a Benchmark (including a BenchmarkReplacement), then the Administrative Agent may modify the definition of “Interest Period” for allBenchmark settings at or after such time to reinstate such previously removed tenor.(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark UnavailabilityPeriod, the Borrower may revoke any request for a EurocurrencyTerm Benchmark Borrowing or RFRBorrowing of, conversion to or continuation of EurocurrencyTerm Benchmark Loans to be made,converted or continued during any Benchmark Unavailability Period and, failing that, either the Borrowerwill be deemed to have converted any request for (1) a Eurocurrencyany request for a Term BenchmarkBorrowing into a request for a Borrowing of or conversion to (A) a Term Benchmark Borrowing so longas the Term Benchmark for Borrowings is not also the subject of a Benchmark Transition Event, (B) ifthe Term Benchmark for Borrowings is also the subject of a Benchmark Transition Event, an RFRBorrowing so long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Eventor (CB) an ABR Borrowing if the Adjusted Daily Simple RFR is the subject of a Benchmark TransitionEvent or (2) any such request for an RFR Borrowing into a request for an ABR Borrowing. During anyBenchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not anAvailable Tenor, the component of ABR based upon the then-current Benchmark or such tenor for suchBenchmark, as applicable, will not be used in any determination of ABR. Furthermore, if anyEurocurrencyTerm Benchmark Loan or RFR Loan is outstanding on the date of the Borrower’s receipt ofnotice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rateapplicable to such EurocurrencyTerm Benchmark Loan or RFR Loan, then until such time as aBenchmark Replacement is implemented pursuant to this Section 2.11, (1) any EurocurrencyTermBenchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the nextsucceeding Business Day if such day is not a Business Day), be converted by the Administrative Agentto, and shall constitute, (x) a Term Benchmark Borrowing denominated in dollars so long as the TermBenchmark for dollar Borrowings is not also the subject of a Benchmark Transition Event, (y) if the TermBenchmark for dollar Borrowings is also the subject of Benchmark Transition Event, an RFR Borrowingso long as the Adjusted Daily Simple RFR is not the subject of a Benchmark Transition Event or (zy) anABR Loan if the Adjusted Daily Simple RFR is the subject of a Benchmark Transition Event, on ▇▇▇▇▇▇▇ and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, andshall constitute, an ABR Loan. Notwithstanding anything herein or in any other Loan Document to thecontrary, in determining an alternative rate of interest, the Administrative Agent will use commerciallyreasonable efforts, to the extent the Administrative Agent is permitted to select an alternate benchmarkrate or spread adjustment, to implement any proposal reasonably requested by the Borrower and notadverse to the Lenders that is intended to prevent the use of an alternative rate of interest pursuant to thisSection 2.11 from resulting in a deemed exchange of any Indebtedness hereunder under Section 1001 ofthe Code.SECTION 2.12. Increased Costs; Illegality. (a) If any Change in Law shall:(i) impose, modify or deem applicable any reserve, special deposit,compulsory loan, insurance charge or similar requirement against assets of, deposits withor for the account of, or credit extended or participated in by, any Lender (except any48
such reserve requirement reflected in the Adjusted LIBO Rate or the Adjusted TermSOFR Rate, as applicable);(ii) impose on any Lender or the internationalapplicable offshore interbankmarket any other condition, cost or expense (other than Taxes) affecting this Agreementor the Loans made by such Lender; or(iii) subject any Recipient to any Taxes (other than Indemnified Taxes orExcluded Taxes) with respect to its loans, letters of credit, commitments or otherobligations, 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 other Recipient ofmaking, converting to, continuing or maintaining any Loan or of maintaining its obligation to make anyLoan, or to reduce the amount of any sum received or receivable by such Lender or other Recipienthereunder (whether of principal, interest or any other amount) then, from time to time within 10 daysfollowing request of such Lender or other Recipient (accompanied by a certificate in accordance withparagraph (c) of this Section), the Borrower will pay to such Lender or other Recipient, as the case maybe, such additional amount or amounts as will compensate such Lender or other Recipient for suchadditional costs or expenses incurred or reduction suffered; provided that such Lender or other Recipientshall only be entitled to seek such additional amounts if such Person is generally seeking the payment ofsimilar additional amounts from similarly situated borrowers in comparable credit facilities to the extent itis entitled to do so.(b) If any Lender determines that any Change in Law affecting such Lender or any lending office ofsuch Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements hashad or would have the effect of reducing the rate of return on such Lender’s capital or on the capital ofsuch Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of suchLender or the Loans made by such Lender to a level below that which such Lender or such Lender’sholding company could have achieved but for such Change in Law (taking into consideration suchLender’s policies and the policies of such ▇▇▇▇▇▇’s holding company with respect to capital adequacy andliquidity), then, from time to time within 10 days following request of such Lender (accompanied by acertificate in accordance with paragraph (c) of this Section), the Borrower will pay to such Lender suchadditional amount or amounts as will compensate such Lender or such Lender’s holding company for anysuch reduction suffered; provided that such Lender shall only be entitled to seek such additional amountsif such Person is generally seeking the payment of similar additional amounts from similarly situatedborrowers in comparable credit facilities to the extent it is entitled to do so.(c) A certificate of a Lender setting forth the basis for and, in reasonable detail (to the extentpracticable), computation of the amount or amounts necessary to compensate such Lender or its holdingcompany, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to theBorrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amountshown as due on any such certificate within 30 days after receipt thereof.(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shallnot constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrowershall not be required to compensate a Lender pursuant to this Section for any increased costs or expensesincurred or reductions suffered more than 180 days prior to the date that such Lender notifies theBorrower of the Change in Law giving rise to such increased costs or expenses or reductions and of suchLender’s intention to claim compensation therefor; provided further that if the Change in Law giving riseto such increased costs, expenses or reductions is retroactive, then the 180-day period referred to aboveshall be extended to include the period of retroactive effect thereof. The protection of this Section shall49
be available to each Lender regardless of any possible contention of the invalidity or inapplicability of theChange in Law that shall have occurred or been imposed; provided that if, after the payment of anyamounts by the Borrower under this Section, any Change in Law in respect of which a payment was madeis thereafter determined to be invalid or inapplicable to the relevant Lender, then such Lender shall,within 30 days after such determination, repay any amounts paid to it by the Borrower hereunder inrespect of such Change in Law.(e) If any Lender determines that any Change in Law has made it unlawful, or that any GovernmentalAuthority has asserted that it is unlawful, for such Lender or the applicable lending office of such Lenderto make, maintain or fund any EurocurrencyTerm Benchmark Loan or to charge interest with respect toany Loan, or to determine or charge interest rates, based upon the LIBOTerm SOFR Rate, or anyGovernmental Authority has imposed material restrictions on the authority of such Lender to purchase orsell, or to take deposits of, dollars in the LondonDollars in the applicable offshore interbank market, then,upon notice thereof by such Lender to the Borrower and the Administrative Agent, (i) any obligation ofsuch Lender to make, maintain or fund any EurocurrencyTerm Benchmark Loan, or to continue anyEurocurrencyTerm Benchmark Loan or convert any ABR Loan into a EurocurrencyTerm BenchmarkLoan, or to charge interest with respect to any Loan, or to determine or charge interest rates, based uponthe LIBOTerm SOFR Rate, in each case, shall be suspended, and (ii) if such notice asserts the illegality ofsuch Lender making or maintaining ABR Loans the interest rate on which is determined by reference tothe Adjusted LIBOTerm SOFR Rate component of the Alternate Base Rate, the interest rate on whichABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by theAdministrative Agent without reference to the Adjusted LIBOTerm SOFR Rate component of theAlternate Base Rate, in each case until such Lender notifies the Administrative Agent and theBorrower that the circumstances giving rise to such determination no longer exist. Upon receipt ofsuch notice, (A) the Borrower shall, upon demand from such Lender (with a copy to theAdministrative Agent) prepay or, if applicable, convert all EurocurrencyTerm Benchmark Loans ofsuch Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessaryto avoid such illegality, be determined by the Administrative Agent without reference to the AdjustedLIBOTerm SOFR Rate component of the Alternate Base Rate), either on the last day of the InterestPeriod therefor, if such Lender may lawfully continue to maintain such EurocurrencyTerm BenchmarkLoans to such day, or immediately, if such Lender may not lawfully continue to maintain suchEurocurrencyTerm Benchmark Loans and (B) if such notice asserts the illegality of such Lenderdetermining or charging interest rates based upon the LIBOTerm SOFR Rate, the AdministrativeAgent shall during the period of such suspension compute the Alternate Base Rate applicable to suchLender without reference to the Adjusted LIBOTerm SOFR Rate component thereof until theAdministrative Agent is advised in writing by such Lender that it is no longer illegal for such Lenderto determine or charge interest rates based upon the LIBOTerm SOFR Rate. Upon any suchprepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid orconverted.SECTION 2.13. Break Funding PaymentsLosses.(a) InWith respect to Loans that are not RFR Loans, in the event of (i) the payment of anyprincipal of any Eurocurrency Loan or any Term Benchmark Loan other than on the last day of anInterest Period applicable thereto (including as a result of an Event of Default or an optional or mandatoryprepayment of Loans), (ii) the conversion of any Eurocurrency Loan or any Term Benchmark Loan otherthan on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert or,continue any Eurocurrency Loan oror prepay any Term Benchmark Loan on the date specified in anynotice delivered pursuant hereto (whether or not such notice may be revoked in accordance with the termshereof), (iv) the failure to prepay any Eurocurrency Loan or any Term Benchmark Loan on a datespecified therefor in any notice of prepayment given by the Borrower (whether or not such notice may be50
revoked in accordance with the terms hereof) or (v) the assignment of any Eurocurrency Loan or anyTerm Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of arequest by the Borrower pursuant to Section 2.16, then, in any such event, the Borrower shall compensateeach Lender for the loss, cost and expense attributable to such event (but not lost profits) within 15 daysfollowing written request of such Lender (accompanied by a certificate described below in this Section).Such loss, cost or expense to any Lender shall be deemed to include an amount determined by suchLender to be the excess, if any, of (i) the amount of interest that would have accrued on the principalamount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have beenapplicable to such Loan (but not including the Applicable Rate applicable thereto), for the period from thedate of such event to the last day of the then current Interest Period therefor (or, in the case of a failure toborrow, convert or continue, for the period that would have been the Interest Period for such Loan), over(ii) the amount of interest that would accrue on such principal amount for such period at the interest ratesuch Lender would bid if it were to bid, at the commencement of such period, for dollar deposits of acomparable amount and period from other banks in the international interbank market. A certificate ofany Lender delivered to the Borrower and setting forth the basis for and, in reasonable detail (to the extentpracticable), computation of any amount or amounts that such Lender is entitled to receive pursuant tothis Section shall be conclusive absent manifest error. The Borrower shall pay such Lender the amountshown as due on any such certificate within 15 days after receipt thereof.(b) With respect to RFR Loans, in the event of (i) the payment of any principal of any RFRLoan other than on the Interest Payment Date applicable thereto (including as a result of an Event ofDefault or an optional or mandatory prepayment of Loans), (ii) the failure to borrow or prepay any RFRLoan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice maybe revoked under Section 2.11(bf) and is revoked in accordance therewith) or (iii) the assignment of anyRFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by theBorrower pursuant to Section 2.16, then, in any such event, the Borrowers shall compensate each Lenderfor the loss, cost and expense attributable to such event. A certificate of any Lender setting forth the basisfor and, in reasonable detail, computation of any amount or amounts that such Lender is entitled toreceive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifesterror. The Borrowers shall pay such Lender the amount shown as due on any such certificate within 15days after receipt thereof.SECTION 2.14. Taxes. (a) Payments Free of Taxes. All payments by or on account of anyobligation of the Borrower or any Guarantor under any Loan Document shall be made without deductionor withholding for any Taxes, except as required by applicable law. If any applicable law (as determinedin the good faith discretion of an applicable withholding agent) requires the deduction or withholding ofany Tax in respect of any such payment by any applicable withholding agent, then the applicablewithholding agent shall be entitled to make such deduction or withholding and shall timely pay the fullamount deducted or withheld to the relevant Governmental Authority in accordance with applicable ▇▇▇▇▇▇, if such Tax is an Indemnified Tax, then the sum payable by the Borrower or such Guarantor, asapplicable, shall be increased as necessary so that after all such deductions or withholdings have beenmade (including such deductions and withholdings applicable to additional sums payable under thisSection 2.14) the applicable Lender (or, in the case of a payment received by the Administrative Agentfor its own account, the Administrative Agent) receives an amount equal to the sum it would havereceived had no such deduction or withholding been made.(b) Payment of Other Taxes. Without limitation or duplication of Section 2.14(a), the Borrower andthe Guarantors shall timely pay to the relevant Governmental Authority in accordance with applicablelaw, or at the option of the Administrative Agent, timely reimburse the Administrative Agent for thepayment of, any Other Taxes. 51
(c) Evidence of Payment. As soon as practicable after any payment of Taxes by the Borrower or aGuarantor to a Governmental Authority pursuant to this Section, the Borrower or such Guarantor, asapplicable, shall deliver to the Administrative Agent the original or a certified copy of a receipt issued bysuch Governmental Authority evidencing such payment, a copy of the return reporting such payment orother evidence of such payment reasonably satisfactory to the Administrative Agent.(d) Indemnification by the Borrower and the Guarantors. Without limitation or duplication ofSection 2.14(a) or (b) above, the Borrower and the Guarantors shall jointly and severally indemnify eachRecipient, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes(including Indemnified Taxes imposed or asserted on or attributable to amounts payable under thisSection 2.14) payable or paid by such Recipient or required to be withheld or deducted from a payment tosuch Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto,whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority; provided that if, after the payment of any amounts by the Borrower under thisSection 2.14(d) any such Indemnified Taxes in respect of which a payment was made are thereafterdetermined to have been incorrectly or illegally imposed, then the relevant Recipient shall usecommercially reasonable efforts to cooperate with the Borrower to obtain a refund of such Taxes (whichshall be repaid to the Borrower in accordance with Section 2.14(g)) so long as such efforts would not, inthe sole determination of such Recipient, result in any additional out-of-pocket costs or expenses notreimbursed by the Borrower or be otherwise materially disadvantageous to such Recipient; provided,further, that the Borrower shall not be required to indemnify the Administrative Agent or any Lenderpursuant to this Section 2.14(d) for any amounts to the extent such Recipient fails to notify the Borrowerof the relevant possible indemnification claim within six months after such Recipient receives writtennotice from the applicable Governmental Authority of the specific Tax assessment given rise to suchindemnification claim. A certificate as to the amount of such payment or liability delivered to theBorrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on itsown behalf or on behalf of a Lender, shall be conclusive absent manifest error.(e) [Reserved].(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction ofwithholding Tax with respect to any payments made under any Loan Document shall deliver to theBorrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or theAdministrative Agent, such properly completed and executed documentation reasonably requested by theBorrower or the Administrative Agent as will permit such payments to be made without withholding or ata reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or theAdministrative Agent, shall deliver such other documentation prescribed by applicable law or reasonablyrequested by the Borrower or the Administrative Agent as will enable the Borrower and theAdministrative Agent to determine whether or not such Lender is subject to backup withholding orinformation reporting requirements.(ii) Without limiting the generality of the foregoing, with respect to any Loansextended to the Borrower,(A) any Lender that is a U.S. Person shall deliver to the Borrower and theAdministrative Agent on or prior to the date on which such Lender becomes a Lenderunder this Agreement (and from time to time thereafter upon the reasonable request of theBorrower or the Administrative Agent), two properly completed and executed copies ofIRS Form W-9 certifying that such Lender is exempt from U.S. federal backupwithholding tax; 52
(B) any Foreign Lender shall, to the extent it is legally eligible to do so,deliver to the Borrower and the Administrative Agent on or prior to the date on whichsuch Foreign Lender becomes a Lender under this Agreement (and from time to timethereafter upon the reasonable request of the Borrower or the Administrative Agent), twoof whichever of the following is applicable:(1) in the case of a Foreign Lender claiming the benefits of anincome tax treaty to which the United States is a party, a properly completed andexecuted copies of IRS Form W-8BEN-E or IRS Form W-8BEN, as applicable,establishing an exemption from, or reduction of, U.S. federal withholding Taxpursuant to such tax treaty;(2) in the case of a Foreign Lender claiming that its extension ofcredit will generate U.S. effectively connected income, properly completed andexecuted copies of IRS Form W-8ECI;(3) in the case of a Foreign Lender claiming the benefits of theexemption for portfolio interest under Section 881(c) of the Code, (x) acertificate substantially in the form of Exhibit I-1 to the effect that such ForeignLender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a“10 percent shareholder” of the Borrower within the meaning of Section881(c)(3)(B) of the Code, or a “controlled foreign corporation” described inSection 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and nopayments under any Loan Document are effectively connected with suchLender’s conduct of a U.S. trade or business and (y) properly completed andexecuted originals of IRS Form W-8BEN-E or IRS Form W-8BEN; or(4) to the extent a Foreign Lender is not the beneficial owner (forexample, where such Foreign Lender is a partnership or a participating Lender), aproperly completed and executed copies of IRS Form W-8IMY, accompanied byproperly completed and executed copies of IRS Form W-8ECI, IRS Form W-8BEN-E, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially inthe form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certificationdocuments from each beneficial owner, as applicable; provided that if theForeign Lender is a partnership (and not a participating Lender) and one or moredirect or indirect partners of such Foreign Lender are claiming the portfoliointerest exemption, such Foreign Lender may provide a U.S. Tax ComplianceCertificate substantially in the form of Exhibit I-4 on behalf of such direct andindirect partner(s); and(5) any Foreign Lender shall, to the extent it is legally eligible to doso, deliver to the Borrower and the Administrative Agent on or prior to the dateon which such Foreign Lender becomes a Lender under this Agreement (andfrom time to time thereafter upon the reasonable request of the Borrower or theAdministrative Agent), executed copies of any other documentation prescribedby applicable law as a basis for claiming exemption from or a reduction in U.S.federal withholding Tax, duly completed, together with such supplementarydocumentation as may be prescribed by applicable law to permit the Borrower orthe Administrative Agent to determine the withholding or deduction required tobe made. 53
(iii) If a payment made to a Lender or the Administrative Agent under anyLoan Document would be subject to Taxes imposed by FATCA if such Lender or theAdministrative Agent were to fail to comply with the applicable reporting requirementsof FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, asapplicable), such Lender or the Administrative Agent shall deliver to the Borrower andthe Administrative Agent at the time or times prescribed by law and at such time or timesreasonably requested by the Borrower or the Administrative Agent such documentationprescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of theCode) and such additional documentation reasonably requested by the Borrower or theAdministrative Agent as may be necessary for the Borrower and the AdministrativeAgent to comply with their obligations under FATCA, and to determine whether suchLender has complied with such Lender’s obligations under FATCA or to determine theamount, if any, to deduct and withhold from such payment. Solely for purposes of thisSection 2.14(f)(iii), “FATCA” shall include any amendments made to FATCA after thedate of this Agreement.Each Lender agrees that if any documentation it previously delivered expires or becomes obsoleteor inaccurate in any respect, it shall promptly update such documentation and deliver such documentationto the Borrower and the Administrative Agent or promptly notify the Borrower and the AdministrativeAgent in writing of its legal ineligibility to do so.Notwithstanding any other provisions of this Section 2.14(f), a Lender shall not be required todeliver any documentation that such Lender is not legally eligible to deliver.On or before the date the Administrative Agent (or any successor thereto) becomes a party to thisAgreement, the Administrative Agent shall provide to the Borrower, two properly completed andexecuted copies of the documentation prescribed in clause (i) or (ii) below, as applicable (together withall required attachments thereto): (i) IRS Form W-9 or any successor thereto, or (ii) (A) IRS Form W-8ECI or any successor thereto, with respect to amounts received for its own account and (B) with respectto payments received on account of any Lender, IRS Form W-8IMY evidencing its agreement with theBorrower to be treated as a “United States person” within the meaning of Section 7701(a)(30) of theCode. At any time thereafter, the Administrative Agent shall provide updated documentation previouslyprovided (or a successor form thereto) when any documentation previously delivered has expired orbecome obsolete or invalid or otherwise upon the reasonable request of the Borrower. Notwithstandingany other provisions of this Section 2.14(f), the Administrative Agent shall not be required to deliver anydocumentation that the Administrative Agent is not legally eligible to deliver as a result of a Change inLaw after the date of this Agreement.(g) Treatment of Certain Refunds. If any Lender determines, in its sole discretion exercised in goodfaith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to thisSection 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shall payto the indemnifying party an amount equal to such refund (but only to the extent of indemnity paymentsmade under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocketexpenses (including Taxes) of such indemnified party and without interest (other than any interest paid bythe relevant Governmental Authority with respect to such refund). Such indemnifying party, upon therequest of such indemnified party, shall repay to such indemnified party the amount paid over pursuant tothis Section 2.14(g) (plus any penalties, interest or other charges imposed by the relevant GovernmentalAuthority) in the event that such indemnified party is required to repay such refund to such GovernmentalAuthority. Notwithstanding anything to the contrary in this Section 2.14(g), in no event will theindemnified party be required to pay any amount to an indemnifying party pursuant to this Section2.14(g) the payment of which would place the indemnified party in a less favorable net after-Tax position54
than the indemnified party would have been in if the Tax subject to indemnification and giving rise tosuch refund had not been deducted, withheld or otherwise imposed and the indemnification payments oradditional amounts with respect to such Tax had never been paid. This Section 2.14(g) shall not beconstrued to require any indemnified party to make available its Tax returns (or any other informationrelating to its Taxes that it deems confidential) to the indemnifying party or any other Person.(h) The agreements in this Section 2.14 shall survive the resignation and/or replacement of theAdministrative Agent, any assignment of rights by, or the replacement of, a Lender, the consummation ofthe transactions contemplated hereby, the repayment of the Loans and the expiration or termination of theRevolving Commitments, the expiration of any Letter of Credit or the termination of this Agreement orany provision hereof.(i) For purposes of this Section, the term “applicable law” includes FATCA.SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) TheBorrower shall make each payment or prepayment required to be made by it hereunder or under any otherLoan Document prior to the time required hereunder or under such other Loan Document for suchpayment (or, if no such time is expressly required, prior to 3:00 p.m., New York City time), on the datewhen due or the date fixed for any prepayment hereunder, in immediately available funds, without anydefense, setoff, recoupment or counterclaim. Any amounts received after such time on any date may, inthe discretion of the Administrative Agent, be deemed to have been received on the next succeedingBusiness Day for purposes of calculating interest thereon. All such payments shall be made to suchaccount as may be specified by the Administrative Agent, except that payments pursuant to Sections 2.12,2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to otherLoan Documents shall be made to the Persons specified therein. The Administrative Agent shall distributeany such payment received by it for the account of any other Person to the appropriate recipient promptlyfollowing receipt thereof. If any payment under any Loan Document shall be due on a day that is not aBusiness Day, the date for payment shall be extended to the next succeeding Business Day and, in thecase of any payment accruing interest, interest thereon shall be payable for the period of such extension.All payments under each Loan Document shall be made in dollarsDollars.(b) If at any time insufficient funds are received by and available to the Administrative Agent to payfully all amounts of principal, interest and fees then due hereunder, such funds shall be applied towardspayment of the amounts then due hereunder ratably among the parties entitled thereto, in accordance withthe amounts then due to such parties.(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtainpayment in respect of any principal of or interest on any Loan resulting in such Lender receivingpayment of a greater proportion of the aggregate amount of any Loan and accrued interest thereon thanthe proportion received by any other Lender, then the Lender receiving such greater proportion shallnotify the Administrative Agent of such fact and shall purchase (for cash at face value) participationsin the Loans of other Lenders to the extent necessary so that the amount of all such payments shall beshared by the Lenders ratably in accordance with the aggregate amounts of principal of and accruedinterest on their Loans; provided that (i) if any such participations are purchased and all or any portionof the payment giving rise thereto is recovered, such participations shall be rescinded and the purchaseprice restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraphshall not be construed to apply to any payment made by the Borrower pursuant to and in accordancewith the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time) orany payment obtained by a Lender as consideration for the assignment of or sale of a participation in anyof its Loans to any Person that is an Eligible Assignee (as such term is defined herein from time to time).The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable55
law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exerciseagainst the Borrower rights of setoff and counterclaim with respect to such participation as fully as if suchLender were a direct creditor of the Borrower in the amount of such participation.(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the dateon which any payment is due to the Administrative Agent for the account of the Lenders that theBorrower will not make such payment, the Administrative Agent may assume that the Borrower has madesuch payment on such date in accordance herewith and may, in reliance upon such assumption, distributeto the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, theneach of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand theamount so distributed to such Lender with interest thereon, for each day from and including the date suchamount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greaterof the applicable Overnight Rate and a rate determined by the Administrative Agent in accordance withbanking industry rules on interbank compensation.(e) If any Lender shall fail to make any payment required to be made by it hereunder to or for theaccount of the Administrative Agent, then the Administrative Agent may, in its discretion(notwithstanding any contrary provision hereof), apply any amounts thereafter received by theAdministrative Agent for the account of such Lender to satisfy such Lender’s obligations in respect ofsuch payment until all such unsatisfied obligations have been discharged.SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requestscompensation under Section 2.12, or if the Borrower is required to pay any Indemnified Taxes oradditional amounts to any Lender or to any Governmental Authority for the account of any Lenderpursuant to Section 2.14, then such Lender shall (at the request of the Borrower) use commerciallyreasonable efforts to designate a different lending office for funding or booking its Loans hereunder or toassign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if,in the judgment of such Lender, such designation or assignment and delegation (i) would eliminate orreduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and (ii) wouldnot subject such Lender to any unreimbursed cost or expense and would not otherwise bedisadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expensesincurred by any Lender in connection with any such designation or assignment and delegation within 10days following request of such Lender (accompanied by reasonable (to the extent practicable) back-updocumentation relating thereto).(b) If (i) any Lender requests compensation under Section 2.12, (ii) any Lender delivers a noticeunder Section 2.12(e), (iii) the Borrower is required to pay any Indemnified Taxes or additional amountsto any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14,(iv) any Lender has become a Defaulting Lender, (v) any Lender has failed to consent to a proposedamendment, waiver, discharge or termination that under Section 9.02 requires the consent of all theLenders (or all or the majority of the affected Lenders) and with respect to which the Required Lendersshall have granted their consent, or (vi) in connection with the replacement of any non-Accepting Lender,then the Borrower may, at its sole expense and effort, upon notice to such Lender and the AdministrativeAgent, either (i) require such Lender to assign and delegate, without recourse (in accordance with andsubject to the restrictions contained in Section 9.04), it being understood that the processing andrecordation fee referred to in such Section shall be paid by the Borrower or the assignee (and the assignorLender shall not be responsible therefor), all its interests, rights (other than its existing rights to paymentspursuant to Section 2.12 or 2.14) and obligations under this Agreement and the other Loan Documents(or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all itsinterests, rights and obligations under this Agreement and the other Loan Documents as a Lender) to anEligible Assignee that shall assume such obligations (which may be another Lender, if a Lender ▇▇▇▇▇▇▇▇▇
such assignment and delegation) or (ii) so long as no Event of Default shall have occurred and becontinuing, repay all Obligations of the Borrower owing (and the amount of all accrued interest and feesin respect thereof) to such Lender relating to the Loans held by such Lender as of such termination date;provided that (A) such Lender shall have received payment of an amount equal to the outstandingprincipal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder(if applicable, in each case only to the extent such amounts relate to its interest as a Lender) from theassignee (in the case of such principal and accrued interest and fees) or the Borrower (in the case of allother amounts), (B) in the case of any such assignment and delegation resulting from a claim forcompensation under Section 2.12 or payments required to be made pursuant to Section 2.14, suchassignment will result in a reduction in such compensation or payments, (C) such assignment does notconflict with applicable law and (D) in the case of any such assignment and delegation resulting from thefailure to provide a consent, the assignee shall have given such consent and, as a result of such assignmentand delegation and any contemporaneous assignments and delegations and consents, the applicableamendment, waiver, discharge or termination can be effected. A Lender shall not be required to make anysuch assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender orotherwise, the circumstances entitling the Borrower to require such assignment and delegation haveceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to thisparagraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, theAdministrative Agent and the assignee and that the Lender required to make such assignment anddelegation need not be a party thereto.SECTION 2.17. Defaulting Lenders. Notwithstanding any provision of this Agreement to thecontrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for solong as such Lender is a Defaulting Lender:(a) [reserved];(b) the Term Loans of such Defaulting Lender shall not be included in determiningwhether the Required Lenders or any other requisite Lenders have taken or may take any actionhereunder or under any other Loan Document (including any consent to any amendment, waiveror other modification pursuant to Section 9.02); provided that any amendment, waiver or othermodification requiring the consent of all Lenders or all Lenders adversely affected thereby shall,except as otherwise provided in Section 9.02, require the consent of such Defaulting Lender inaccordance with the terms hereof; and(c) so long as such Lender is a Defaulting Lender, any amount payable to suchDefaulting Lender hereunder (whether on account of principal, interest, fees or otherwise andincluding any amount that would otherwise be payable to such Defaulting Lender pursuant toSection 2.15) shall, in lieu of being distributed to such Defaulting Lender, be retained by theAdministrative Agent in a segregated account (for the avoidance of doubt, it is noted that anyamounts retained pursuant to this Section 2.17(c) shall for all other purposes be treated as havingbeen paid to such Defaulting Lender) and, subject to any applicable requirements of law, beapplied at such time or times as may be determined by the Administrative Agent (i) first, to thepayment of any amounts owing by such Defaulting Lender to the Administrative Agenthereunder; (ii) second, to the funding of any Loan in respect of which such Defaulting Lenderhas failed to fund its portion thereof as required by this Agreement, as determined by theAdministrative Agent; (iii) third, if the Administrative Agent or the Borrower (with the consentof the Administrative Agent) so determines, held in such account as cash collateral for futurefunding obligations of the Defaulting Lender in respect of any Loans under this Agreement;(iv) fourth, to the payment of any amounts owing to the Lenders as a result of any judgment ofa court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a57
result of such Defaulting Lender’s breach of its obligations under this Agreement; (v) fifth, solong as no Event of Default has occurred and is continuing, to the payment of any amountsowing to the Borrower as a result of any judgment of a court of competent jurisdictionobtained by the Borrower against such Defaulting Lender as a result of such DefaultingLender’s breach of its obligations under this Agreement; and (vi) sixth, to such DefaultingLender or as otherwise directed by a court of competent jurisdiction; provided that if suchpayment is a payment of the principal amount of any Loans in respect of which suchDefaulting Lender has not fully funded its appropriate share, such payment shall be appliedsolely to pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being appliedto the payment of any Loans of such Defaulting Lender until such time as all Loans are heldby the Lenders pro rata in accordance with the Commitments.If the Administrative Agent and the Borrower each agrees that a Defaulting Lender hasadequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such datesuch Lender shall take such actions as the Administrative Agent may determine to be appropriate inconnection with such Term Lender ceasing to be a Defaulting Lender, and such Term Lender shallthereupon cease to be a Defaulting Lender (and all amendments, waivers or modifications effectedwithout its consent in accordance with the provisions of Section 9.02 and this Section during such periodshall be binding on it)..The rights and remedies against, and with respect to, a Defaulting Lender under this Section arein addition to, and cumulative and not in limitation of, all other rights and remedies that theAdministrative Agent, any Lender or the Borrower may at any time have against, or with respect to,such Defaulting Lender.SECTION 2.18. Certain Permitted Amendments.(a) The Borrower may, by written notice to the Administrative Agent from time to time beginningafter the Effective Date, but not more than five times during the term of this Agreement (and with nomore than one such offer outstanding at any one time), make one or more offers (each, a “LoanModification Offer”) to all the Lenders to make one or more Permitted Amendments pursuant toprocedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower.Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) thedate on which such Permitted Amendment is requested to become effective. Notwithstanding anything tothe contrary in Section 9.02, each Permitted Amendment shall only require the consent of the Borrower,the Administrative Agent and those Lenders that accept the applicable Loan Modification Offer (suchLenders, the “Accepting Lenders”), and each Permitted Amendment shall become effective only withrespect to the Loans of the Accepting Lenders. In connection with any Loan Modification Offer, theBorrower may, at its sole option, with respect to one or more of the Lenders that are not AcceptingLenders (each, a “Non-Accepting Lender”) replace such Non-Accepting Lender pursuant to Section2.16(b). Upon the effectiveness of any Permitted Amendment and any assignment of any Non-AcceptingLender’s Loans pursuant to Section 2.16(b), subject to the payment of applicable amounts pursuant toSection 2.13 in connection therewith, the Borrower shall be deemed to have made such borrowings andrepayments of the Loans, and the Lenders shall make such adjustments of outstanding Loans between andamong them, as shall be necessary to effect the reallocation of the Loans such that, after giving effectthereto, the Loans shall be held by the Lenders (including the Eligible Assignees as the new Lenders)ratably in accordance with their pro rata share of the Loans.58
(b) The Borrower and each Accepting Lender shall execute and deliver to the Administrative Agent aLoan Modification Agreement and such other documentation as the Administrative Agent shallreasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditionsthereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each LoanModification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of anyLoan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to theextent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby andonly with respect to the Loans of the Accepting Lenders, including any amendments necessary to treat theapplicable Loans of the Accepting Lenders as a new “Class” or “Tranche” of loans and/or commitmentshereunder. Notwithstanding the foregoing, no Permitted Amendment shall become effective unless theAdministrative Agent, to the extent reasonably requested by the Administrative Agent, shall havereceived legal opinions, board resolutions, officer’s and secretary’s certificates and other documentationconsistent with those delivered on the Effective Date under this Agreement.(c) “Permitted Amendments” means any or all of the following: (i) an extension of the Maturity Dateapplicable solely to the Loans of the Accepting Lenders, (ii) an increase in the interest rate with respect tothe Loans of the Accepting Lenders, (iii) the inclusion of additional fees to be payable to the AcceptingLenders in connection with the Permitted Amendment (including any commitment fees and upfrontfees), (iv) a decrease in the scheduled amortization pursuant to Section 2.07 with respect to the Loansof the Accepting Lenders, (v) such amendments to this Agreement and the other Loan Documents asshall be appropriate, necessary or advisable, in the reasonable judgment of the Administrative Agentand the Borrower, to provide the rights and benefits of this Agreement and other Loan Documents toeach new “Class” or “Tranche” of loans and/or commitments resulting therefrom; provided thatextensions of Borrowings shall be made pro rata across “Classes” or “Tranches” of loans and/orcommitments and payments of principal and interest on Loans (including Loans of AcceptingLenders) shall continue to be shared pro rata in accordance with Section 2.15, except thatnotwithstanding Section 2.15 the Loans of the Non-Accepting Lenders may be repaid and terminatedon the Maturity Date, and may be so repaid or terminated without any pro rata reduction of thecommitments and repayment of Loans of Accepting Lenders with a different Maturity Date and (vi)such other amendments to this Agreement and the other Loan Documents as shall be appropriate,necessary or advisable, in the reasonable judgment of the Administrative Agent and the Borrower, togive effect to the foregoing Permitted Amendments.(d) This Section 2.18 shall supersede any provision in Section 9.02 to the contrary. Notwithstandingany reallocation into extending and non-extending “Classes” or “Tranches” in connection with aPermitted Amendment, all Loans to the Borrower under this Agreement shall rank pari passu in right ofpayment. ARTICLE IIIRepresentations and WarrantiesThe Borrower and each Guarantor represents and warrants (it being understood that, for purposesof the representations and warranties made in the Loan Documents on the Effective Date, suchrepresentations and warranties shall be construed as though the Transactions have been consummated) tothe Administrative Agent and each of the Lenders, on the Effective Date and on each other date on whichrepresentations and warranties are required to be, or are deemed to be, made under the Loan Documents,that: SECTION 3.01. Organization; Powers. The Borrower, Holdings, each Guarantor and eachother Material Subsidiary is duly organized, validly existing and (to the extent the concept is applicable in59
such jurisdiction) in good standing under the laws of the jurisdiction of its organization, has all power andauthority and all material Governmental Approvals required for the ownership and operation of itsmaterial properties and the conduct of its material business as now conducted and, except where thefailure to do so, individually or in the aggregate, would not reasonably be expected to result in a MaterialAdverse Effect, is qualified to do business, and is in good standing, in every jurisdiction where suchqualification is required.SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by theBorrower and each Guarantor are within the Borrower’s and such Guarantor’s corporate or otherorganizational powers and have been duly authorized by all necessary corporate or other organizationaland, if required, stockholder or other equityholder action of the Borrower and each Guarantor. ThisAgreement has been duly executed and delivered by the Borrower and each Guarantor and constitutes,and each other Loan Document, when executed and delivered by the Borrower and each Guarantor, willconstitute, a legal, valid and binding obligation of the Borrower or such Guarantor, as applicable,enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,reorganization, moratorium, winding-up or other laws affecting creditors’ rights generally and to generalprinciples of equity, regardless of whether considered in a proceeding in equity or at law.SECTION 3.03. Governmental Approvals; Absence of Conflicts. The Transactions(a) do not require any consent or approval of, registration or filing with or any other action by anyGovernmental Authority, except such as have been obtained or made and are in full force andeffect and except to the extent failure to obtain any such consent, approval, registration, filing orother action would not reasonably be expected to result in a Material Adverse Effect, (b) will notviolate any applicable law, including any order of any Governmental Authority, except to theextent any such violations, individually or in the aggregate, would not reasonably be expected toresult in a Material Adverse Effect, (c) do not require consent or approval, except such as havebeen obtained and are in full force and effect, under, and will not violate, the certificate orformation or limited liability company agreement of the Borrower, (d) will not violate or result(alone or with notice or lapse of time or both) in a default under any indenture or other agreementor instrument in respect of Material Indebtedness binding upon the Borrower, Holdings or anySubsidiary or any of their assets, or give rise to a right thereunder to require any payment,repurchase or redemption to be made by the Borrower, Holdings or any Subsidiary, or give rise toa right of, or result in, any termination, cancellation, acceleration or right of renegotiation of anyobligation thereunder, in each case except to the extent that the foregoing, individually or in theaggregate, would not reasonably be expected to result in a Material Adverse Effect and (e) exceptfor Permitted Liens or other Liens permitted under Section 6.02, will not result in the creation orimposition of any Lien on any asset of the Borrower, Holdings or any Subsidiary.SECTION 3.04. Financial Condition; No Material Adverse Change.(a) The Borrower has heretofore furnished to the Lenders its audited consolidated balance sheet andrelated consolidated statements of operations, shareholders’ equity and cash flows as of and for the fiscalyear ended December 31, 2020, and (b) as of and for the fiscal quarter and the portion of the fiscal yearended September 30, 2021. Such financial statements present fairly, in all material respects, the financialposition, results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of suchdates and for such periods in accordance in all material respects with GAAP, subject to normal year-endaudit adjustments and the absence of footnotes in the case of the statements referred to in clause (b)above. 60
(b) Since December 31, 2020, there has been no event or condition that has resulted, or wouldreasonably be expected to result, in a material adverse change in the business, assets, liabilities,operations or financial condition of the Borrower and the Subsidiaries, taken as a whole.SECTION 3.05. Properties.(a) The Borrower and each Subsidiary has good title to, or valid leasehold interests in, or rights touse, all its property material to its business, subject to Liens permitted by Section 6.02 and except (i) fordefects in title that, individually or in the aggregate, do not materially detract from the value of theaffected property or materially interfere with the ordinary conduct of business of the Borrower or anySubsidiary or (ii) for any failure to do so that, individually or in the aggregate, would not reasonably beexpected to result in a Material Adverse Effect.(b) The Borrower and each Subsidiary owns, or is licensed to use, all patents, trademarks, copyrights,licenses, technology, software, domain names and other intellectual property that is necessary for theconduct of its business as currently conducted, without conflict with the rights of any other Person, exceptto the extent that such failure to own or license, or any such conflict, individually or in the aggregate,would not reasonably be expected to result in a Material Adverse Effect. No patents, trademarks,copyrights, licenses, technology, software, domain names or other intellectual property used by theBorrower or any Subsidiary in the operation of its business infringes upon, misappropriates or otherwiseviolates the rights of any other Person, except for any such infringements, misappropriations or otherviolations that, individually or in the aggregate, would not reasonably be expected to result in a MaterialAdverse Effect. No claim or litigation regarding any patents, trademarks, copyrights, licenses,technology, software, domain names or other intellectual property owned or used by the Borrower or anySubsidiary is pending or, to the knowledge of the Borrower or any Subsidiary, threatened in writingagainst the Borrower or any Subsidiary that, individually or in the aggregate, has a reasonable likelihoodof an adverse determination and such adverse determination would reasonably be expected to result in aMaterial Adverse Effect.SECTION 3.06. Litigation and Environmental Matters.(a) Except as set forth in Schedule 3.06, there are no actions, suits or proceedings by or before anyGovernmental Authority or arbitrator pending against or, to the knowledge of the Borrower or anySubsidiary, threatened in writing against the Borrower or any Subsidiary that (i) has a reasonablelikelihood of an adverse determination and such adverse determination would reasonably be expected,individually or in the aggregate, to result in a Material Adverse Effect or (ii) involve any of the LoanDocuments.(b) Except with respect to any matters that, individually or in the aggregate, would not reasonably beexpected to result in a Material Adverse Effect: neither the Borrower nor any Subsidiary (i) has failed tocomply with any Environmental Law or to obtain, maintain or comply with any Governmental Approvalrequired under any Environmental Law, (ii) is subject to any Environmental Liability, (iii) has receivedwritten notice of any claim with respect to any Environmental Liability or (iv) knows of any fact,incident, event or condition that could reasonably be expected to form the basis for any EnvironmentalLiability. 61
SECTION 3.07. Compliance with Laws.(a) The Borrower and each Subsidiary is in compliance with all laws, including all orders ofGovernmental Authorities, applicable to it or its property, except where the failure to comply,individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.(b) The Borrower has implemented and maintains in effect policies and procedures designed toensure compliance by the Borrower and the Subsidiaries (subject to Section 5.08) and their respectivedirectors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and theCompany and the Subsidiaries and their respective officers and directors and, to the knowledge of theBorrower, Holdings or any Subsidiary, their respective employees and agents are in compliance withAnti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower,Holdings, any Subsidiary or their respective directors or officers or, to the knowledge of the Borrower,Holdings or any Subsidiary, any of their respective employees, or (b) to the knowledge of the Borrower,Holdings or any Subsidiary, any agent of the Borrower, Holdings or any Subsidiary that will act in anycapacity in connection with or benefit from any credit facility established hereby, is a Sanctioned Person.The Transactions do not violate any Anti-Corruption Law, the USA PATRIOT Act or applicableSanctions.SECTION 3.08. Investment Company Status. None of Holdings, the Borrower or anySubsidiary Guarantor is an “investment company” as defined in, or subject to regulation under, theInvestment Company Act of 1940.SECTION 3.09. Taxes. The Borrower and each Subsidiary has timely filed or caused to befiled all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxesrequired to have been paid by it, except where (a) (i) the validity or amount thereof is being contested ingood faith by appropriate proceedings, (ii) the Borrower or such Subsidiary, as applicable, has set asideon its books reserves with respect thereto to the extent required by GAAP and (iii) such contesteffectively suspends collection of the contested obligation and the enforcement of any Lien securing suchobligation or (b) the failure to do so would not, individually or in the aggregate, reasonably be expectedto result in a Material Adverse Effect.SECTION 3.10. ERISA. No ERISA Events have occurred or are reasonably expected tooccur that would, in the aggregate, reasonably be expected to result in a Material Adverse Effect. TheBorrower and each ERISA Affiliate has fulfilled its obligations under the minimum funding standards ofERISA and the Code with respect to each Plan and is in compliance with the presently applicableprovisions of ERISA and the Code with respect to each Plan, in each case, except as would not,individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except aswould not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor anyERISA Affiliate has (a) sought a waiver of the minimum funding standard under Section 412 of the Codein respect of any Plan, (b) failed to make any contribution or payment to any Plan or Multiemployer Plan,or made any amendment to any Plan that has resulted or could result in the imposition of a Lien or theposting of a bond or other security under ERISA or the Code, or (c) incurred any liability under Title IVof ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA that are not pastdue. The Borrower does not and will not hold “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA).SECTION 3.11. Solvency. On the Effective Date, immediately after giving effect to theconsummation of the Transactions to occur on such date, including the making of any Loans and theapplication of the proceeds thereof, (i) the fair value of the assets of the Borrower and the Subsidiaries ona consolidated basis, at a fair valuation on a going concern basis, will exceed the debts and liabilities,62
direct, subordinated, contingent or otherwise, of the Borrower and the Subsidiaries on a consolidatedbasis; (ii) the present fair saleable value of the property of the Borrower and the Subsidiaries on aconsolidated and going concern basis will be greater than the amount that will be required to pay theprobable liability of the Borrower and the Subsidiaries on a consolidated basis on their debts and otherliabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities becomeabsolute and matured in the ordinary course of business; (iii) the Borrower and the Subsidiaries on aconsolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent orotherwise, as such debts and liabilities become absolute and matured in the ordinary course of business;and (iv) the Borrower and the Subsidiaries on a consolidated basis will not have unreasonably smallcapital with which to conduct the businesses in which they are engaged as such businesses are nowconducted.SECTION 3.12. Disclosure. Each of the written reports, financial statements, certificates andother written information (other than financial projections, budgets, estimates, other forward-lookinginformation, and information of a general economic or industry-specific nature) furnished by or on behalfof the Borrower, Holdings or any Subsidiary to the Administrative Agent, any Arranger or any Lender inconnection with the negotiation of this Agreement or any other Loan Document is and will be, whenfurnished and taken as a whole, complete and correct in all material respects and does not and will not,when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state amaterial fact necessary to make the statements contained therein not materially misleading in light of thecircumstances under which such statements are made (in each case after giving effect to all supplementsand updates provided thereto prior to the Effective Date). The financial projections that have beenfurnished by or on behalf of the Borrower, Holdings or any Subsidiary to the Administrative Agent, anyArranger or any Lender in connection with the negotiation of this Agreement or any other LoanDocument have been prepared in good faith based upon assumptions that are believed by the Borrower tobe reasonable at the time such financial projections are furnished to the Administrative Agent, anyArranger or any Lender, it being understood and agreed that financial projections are as to future eventsand are not to be viewed as facts, are subject to significant uncertainties and contingencies, many ofwhich are out of the Borrower’s, or its Subsidiaries’ control, that no assurance can be given that anyparticular projections will be realized, that the financial projections is not a guarantee of financialperformance and that actual results during the period or periods covered by such projections may differsignificantly from the projected results and such differences may be material.SECTION 3.13. Federal Reserve Regulations. Neither the Borrower, Holdings nor anySubsidiary is engaged or will engage, principally or as one of its important activities, in the business ofpurchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), orextending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of theLoans will be used to purchase or carry margin stock, to extend credit for others to purchase or carrymargin stock or for any purpose that entails, and no other action will be taken by the Borrower, Holdingsand the Subsidiaries that would result in, a violation of Regulations T, U and X of the Board ofGovernors.SECTION 3.14. Use of Proceeds. The Borrower will use the proceeds of the Loans to(i) finance the Effective Date Refinancing, (ii) pay fees and expenses incurred in connection with theEffective Date Refinancing, the Transactions and the Revolving Credit Agreement and (iii) for workingcapital in the ordinary course of business and for general corporate purposes of the Borrower, Holdingsand the Subsidiaries. 63
SECTION 3.15. Ranking of Obligations. The obligations of the Borrower under the LoanDocuments rank at least equally with all of the unsubordinated unsecured Indebtedness of the Borrower,and ahead of all subordinated Indebtedness, if any, of the Borrower.SECTION 3.16. Labor Matters. Except as set forth in Schedule 3.16 and except in theaggregate to the extent the same has not had and could not be reasonably expected to have a MaterialAdverse Effect, (a) there are no strikes, lockouts, slowdowns or other labor disputes against any LoanParty or any Subsidiary pending or, to the knowledge of the Loan Parties, threatened in writing, and (b)the hours worked by and payments made to employees of the Loan Parties and the Subsidiaries have notbeen in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreignlaw dealing with such matters.SECTION 3.17. Subsidiaries. Schedule 3.17 sets forth as of the Effective Date a list of allSubsidiaries of the Borrower, the jurisdiction of their formation or organization, as the case may be, andthe percentage ownership interest of such Subsidiary’s parent company therein, and such Schedule shalldenote which subsidiaries as of the Effective Date are not Subsidiary Guarantors.ARTICLE IVConditionsSECTION 4.01. Effective Date. The effectiveness of this Agreement and the obligations ofthe Lenders to make Loans hereunder shall not become effective until the date on which each of thefollowing conditions shall be satisfied (or waived):(a) The Administrative Agent shall have received a counterpart of this Agreement executedby each party hereto (which, subject to Section 9.06(b), may include any Electronic Signaturestransmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image ofan actual executed signature page).(b) The Administrative Agent shall have received written opinions (addressed to theAdministrative Agent and the Lenders and dated the Effective Date) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP,special counsel for the Borrower and the Guarantors, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Wisconsin counselfor the applicable Guarantors, and ▇▇▇▇▇ & Associates, PLLC d/b/a FH+H, Virginia counsel forthe applicable Guarantors, in each case, in form and substance customary for financings of thistype.(c) The Administrative Agent shall have received a certificate of the Borrower and eachGuarantor, dated the Effective Date and executed by the secretary, an assistant secretary or adirector of the Borrower and each Guarantor, as applicable, attaching (i) a copy of eachorganizational document of the Borrower and each Guarantor which shall, to the extentapplicable, be certified as of the Effective Date or a recent date prior thereto by the appropriateGovernmental Authority, (ii) signature and incumbency certificates of the officers or directors, asapplicable, of the Borrower and each Guarantor, as applicable executing each Loan Document,(iii) resolutions of the board of directors or shareholders, as applicable, of the Borrower and eachGuarantor, as applicable approving and authorizing the execution, delivery and performance ofthe Loan Documents, certified as of the Effective Date by such secretary, assistant secretary ordirector as being in full force and effect without modification or amendment, and (iv) a goodstanding certificate (where relevant) from the Secretary of State or similar GovernmentalAuthority of the jurisdiction of organization or formation, if applicable, for the Borrower and64
each Guarantor, dated the Effective Date or a recent date prior thereto, in each case, in form andsubstance customary for financings of this type.(d) The Administrative Agent shall have received a certificate, dated the Effective Date andsigned by a Responsible Officer of the Borrower, certifying that, as of the Effective Date andafter giving effect to the Transactions that are to occur on such date, (i) the representations andwarranties of the Borrower and the Guarantors set forth in the Loan Documents are true andcorrect (A) in the case of the representations and warranties qualified as to materiality, in allrespects and (B) otherwise, in all material respects and (ii) no Default or Event of Default hasoccurred and is continuing.(e) The Administrative Agent shall have received a certificate substantially in the form ofExhibit E from the Borrower, dated the Effective Date and signed by a Responsible Officer of theCompany.(f) All reasonable out-of-pocket costs, expenses (including reasonable and documented legalfees and expenses of one outside counsel) and fees contemplated by the Loan Documents, orotherwise agreed by the Borrower with the Arrangers, to be reimbursable or payable by or onbehalf of the Borrower to the Arrangers (or their Affiliates), the Administrative Agent or theLenders shall have been paid on or prior to the Effective Date, in each case, to the extent requiredto be paid on or prior to the Effective Date and, in the case of such costs and expenses, invoicedat least three (3) Business Days prior to the Effective Date.(g) The Lenders shall have received at least three (3) Business Days prior to the EffectiveDate, to the extent reasonably requested by the Administrative Agent or any Lender at least tenBusiness Days prior to the Effective Date, all documentation and other information required byregulatory authorities under applicable “know your customer” and anti-money laundering rulesand regulations, including, without limitation, the USA PATRIOT Act and the BeneficialOwnership Regulation, including, to each Lender that so requests, a Beneficial OwnershipCertification to the extent the Borrower qualifies as a “legal entity” customer under the BeneficialOwnership Regulation.(h) The Effective Date Refinancing shall have occurred substantially concurrently with theTransactions.For purposes of determining compliance with the conditions specified in this Section 4.01, theAdministrative Agent and each Lender as of the Effective Date shall, upon the execution and delivery bythe Administrative Agent and each such Lender of their respective signature pages to this Agreement, bedeemed to have consented to, approved or accepted or to be satisfied with, each document or other matterrequired hereunder to be consented to or approved by or acceptable or satisfactory to the AdministrativeAgent and each such Lender.The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and suchnotice shall be conclusive and binding.SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on theoccasion of each Borrowing (other than any conversion or continuation of any outstanding Loans) issubject to receipt of the Borrowing Request therefor in accordance herewith and to the satisfaction of thefollowing conditions: 65
(a) The representations and warranties of the Borrower and the Guarantors set forth in theLoan Documents (other than, after the Effective Date, the representations set forth in Sections3.04(b) and 3.06(a)) shall be true and correct (i) in the case of the representations and warrantiesqualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each caseon and as of the date of such Borrowing, except in the case of any such representation or warrantythat expressly relates to a prior date, in which case such representation or warranty shall be sotrue and correct (i) in the case of the representations and warranties qualified as to materiality, inall respects and (ii) otherwise, in all material respects, in each case, on and as of such prior date.(b) At the time of and immediately after giving effect to such Borrowing, no Default orEvent of Default shall have occurred and be continuing.On the date of any Borrowing (other than any conversion or continuation of any outstandingLoans), the Borrower shall be deemed to have represented and warranted that the conditions specified inparagraphs (a) and (b) of this Section have been satisfied.ARTICLE VAffirmative CovenantsThe Borrower and the Subsidiary Guarantors covenant and agree with each Lender that, until theTermination Date:SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish tothe Administrative Agent, on behalf of each Lender:(a) within 90 days after the end of each fiscal year of the Borrower, commencing with thefiscal year ending December 31, 2021, its audited consolidated balance sheet and relatedconsolidated statements of operations, shareholders’ equity and cash flows as of the end of andfor such fiscal year, setting forth in each case in comparative form the figures for the prior fiscalyear, all audited by and accompanied by the opinion of ▇▇▇▇▇ & Young LLP or anotherindependent registered public accounting firm of recognized national standing (without a “goingconcern” or like qualification or exception (other than any qualification or exception with respectto or resulting from (i) an upcoming scheduled final maturity of any Loans, Revolving Loans,Senior Notes or other Indebtedness occurring within one year from the time such opinion isdelivered or (ii) any prospective or actual default or event of default under the financial covenanthereunder or a financial covenant in any other Indebtedness) and without any qualification,exception or emphasis as to the scope of such audit) to the effect that such consolidated financialstatements present fairly, in all material respects, the financial position, results of operations andcash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis as of the endof and for such year in accordance in all material respects with GAAP;(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year ofthe Borrower, its consolidated balance sheet as of the end of such fiscal quarter, the relatedconsolidated statements of operations for such fiscal quarter and the then elapsed portion of thefiscal year and the related statements of cash flows for the then elapsed portion of the fiscal year,in each case setting forth in comparative form the figures for the corresponding period or periodsof (or, in the case of the balance sheet, as of the end of) the prior fiscal year, all certified by aFinancial Officer of the Borrower as presenting fairly, in all material respects, the financialposition, results of operations and cash flows of the Borrower and its consolidated Subsidiaries ona consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscal year66
in accordance with in all material respects GAAP, subject to normal year-end audit adjustmentsand the absence of certain footnotes;(c) concurrently with each delivery of financial statements under clause (a) or (b) above, acompleted Compliance Certificate signed by a Financial Officer of the Borrower, (i) certifying asto whether a Default has occurred and is continuing on such date and, if a Default has occurredand is continuing on such date, specifying the details thereof and any action taken or proposed tobe taken with respect thereto and (ii) setting forth reasonably detailed calculations demonstratingcompliance with Section 6.06;(d) promptly after the same become publicly available, copies of all periodic and otherreports, proxy statements and other materials filed by the Borrower, Holdings or any Subsidiarywith the SEC or with any national securities exchange;(e) promptly after any request therefor, such other information regarding the operations,business affairs, assets, liabilities and financial condition of the Borrower or any Subsidiary(subject to the limitations described in the last sentence of Section 5.07), or compliance with theterms of any Loan Documents, as the Administrative Agent or any Lender (through theAdministrative Agent) may reasonably request in writing; and(f) promptly following any request therefor, provide information and documentationreasonably requested by the Administrative Agent or any Lender for purposes of compliance withapplicable “know your customer” and anti-money-laundering rules and regulations, including,without limitation, the USA PATRIOT Act and the Beneficial Ownership Regulation.Notwithstanding anything to the contrary in this Section 5.01, none of the Borrower, Holdings nor anySubsidiary will be required to disclose or permit the inspection or discussion of, any document,information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietaryinformation, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or theirrespective representatives or contractors) is prohibited by law or any binding agreement or (iii) that issubject to attorney client or similar privilege or constitutes attorney work product.Information required to be delivered pursuant to clause (a), (b) or (d) of this Section shall be deemed tohave been delivered to the Lenders if such information, or one or more annual or quarterly reportscontaining such information, shall have been posted by the Administrative Agent on an IntraLinks orsimilar site to which the Lenders have been granted access or shall be available on the website of the SECat ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ or on the website of the Borrower. Information required to be delivered pursuantto this Section to the Administrative Agent may also be delivered by electronic communications pursuantto procedures approved by the Administrative Agent.SECTION 5.02. Notices of Material Events. Promptly after any Responsible Officer of theBorrower or any Subsidiary Guarantor obtains actual knowledge thereof, the Borrower will furnish to theAdministrative Agent written notice of the following:(a) the occurrence of, or receipt by the Borrower or any Subsidiary Guarantor of any writtennotice claiming the occurrence of, any Default;(b) the filing or commencement of any action, suit or proceeding by or before any arbitratoror Governmental Authority against the Borrower, Holdings or any Subsidiary, or any adversedevelopment in any such pending action, suit or proceeding not previously disclosed in writingby the Borrower to the Administrative Agent and the Lenders, that in each case has a reasonable67
likelihood of an adverse determination and such determination would reasonably be expected toresult in a Material Adverse Effect or that in any manner questions the validity of any LoanDocument;(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Eventsthat have occurred would reasonably be expected to result in a Material Adverse Effect; or(d) any other development that has resulted, or would reasonably be expected to result, in aMaterial Adverse Effect.Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer ofthe Borrower setting forth the details of the event or development requiring such notice and any actiontaken or proposed to be taken with respect thereto.SECTION 5.03. Existence; Conduct of Business. The Borrower and each SubsidiaryGuarantor will, and will cause each Subsidiary to, do or cause to be done all things necessary to preserve,renew and keep in full force and effect (a) its legal existence and (b) the rights, licenses, permits,privileges and franchises material to the conduct of the business of the Borrower, Holdings and itsSubsidiaries taken as a whole, except, in the case of this clause (b), where the failure to do so,individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;provided that the foregoing shall not prohibit any transaction permitted under Article VI.SECTION 5.04. Payment of Taxes. The Borrower and each Subsidiary Guarantor will, andwill cause each Subsidiary to, pay its Taxes before the same shall become delinquent or in default bymore than forty-five (45) days, except where (a) (i) the validity or amount thereof is being contested ingood faith by appropriate proceedings, (ii) the Borrower or such Subsidiary has set aside on its booksreserves with respect thereto to the extent required by GAAP and (iii) such contest effectively suspendscollection of the contested obligation and the enforcement of any Lien securing such obligation or (b) thefailure to make payment would not, individually or in the aggregate, reasonably be expected to result in aMaterial Adverse Effect.SECTION 5.05. Maintenance of Properties and Rights. The Borrower and each SubsidiaryGuarantor will, and will cause each Subsidiary to, keep and maintain all property material to the conductof its business in good working order and condition, ordinary wear and tear and casualty andcondemnation excepted, and will take all actions reasonably necessary to maintain and protect all patents,trademarks, copyrights, licenses, technology, software, domain names and other intellectual propertyrights necessary to the conduct of its business as currently conducted and proposed to be conducted,except in each case (i) for the abandonment of intellectual property rights in the ordinary course ofbusiness, which in the reasonable and good faith determination of the Borrower are not material to theconduct of the business of the Borrower, Holdings and the Subsidiaries, taken as a whole, (ii) the lapse orexpiration of registered intellectual property rights at the end of the applicable statutory term, and (iii)where the failure to maintain or take any such actions, individually or in the aggregate, would notreasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall notprohibit any transaction permitted under Article VI.SECTION 5.06. Insurance. The Borrower and each Subsidiary Guarantor will, and will causeeach Subsidiary to, maintain, with insurance companies that the Borrower believes (in the good faithjudgment of the management of the Borrower) are financially sound and reputable (including captiveinsurance subsidiaries), insurance in such amounts (with no greater risk retention) and against such risks68
as is customarily maintained by companies of established repute engaged in the same or similarbusinesses operating in the same or similar locations.SECTION 5.07. Books and Records; Inspection and Audit Rights. The Borrower and eachSubsidiary Guarantor will, and will cause each Subsidiary to, keep proper books of record and account inwhich full, true and correct entries in accordance, in all material respects, with GAAP and applicable ▇▇▇▇▇▇ made of all material dealings and transactions in relation to its business and activities. The Borrowerand each Subsidiary Guarantor will, and will cause each Subsidiary to, permit the Administrative Agent(acting on its own behalf or on behalf of any of the Lenders), and any agent designated by theAdministrative Agent, upon reasonable prior notice, (a) to visit and reasonably inspect its properties, (b)to examine and make extracts from its books and records and (c) to discuss its operations, businessaffairs, assets, liabilities and financial condition with its officers and independent accountants, all at suchreasonable times during normal business hours and as often as reasonably requested; provided that, theAdministrative Agent collectively may not exercise such rights more often than once during any calendaryear and unless an Event of Default exists, the costs and expenses of such a visitation or inspection shallbe the responsibility of the inspecting party or parties; provided, further, that when an Event of Defaultexists, the Administrative Agent (or any of their agents) may do any of the foregoing (at the reasonableexpense of the Borrower) at any time during normal business hours and upon reasonable advance notice.The Administrative Agent shall give the Borrower the opportunity to participate in any discussions withthe ▇▇▇▇▇▇▇▇’s independent accountants. Notwithstanding anything to the contrary in this Section,neither the Borrower, Holdings nor any Subsidiary shall be required to disclose, permit the inspection,examination or making copies or abstracts of, or discussion of, any document, information or other matterthat (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect ofwhich disclosure to the Administrative Agent (or its agents) is prohibited by applicable law or anybinding confidentiality agreement between the Borrower or any Subsidiary and a Person that is not theBorrower or any Subsidiary not entered into in contemplation of preventing such disclosure, inspection,examination or discussion or (iii) is subject to attorney-client or similar privilege or constitutes attorneywork-product.SECTION 5.08. Compliance with Laws. The Borrower and each Subsidiary Guarantor will,and will cause each Subsidiary to, comply with all laws, including all Environmental Laws and ERISA,and all orders of any Governmental Authority, applicable to it, its operations or its property, except wherethe failure to do so, individually or in the aggregate, would not reasonably be expected to result in aMaterial Adverse Effect. The Borrower and each Subsidiary Guarantor will maintain in effect andenforce policies and procedures reasonably designed to promote compliance by the Borrower, Holdings,the Subsidiaries and their respective directors, officers, employees and agents (in each case, in theirrespective capacities as such) with Anti-Corruption Laws and Sanctions (it being understood and agreedthat, with respect to the Target Entities, (x) the Target Entities will, within 90 days of the Effective Date,adopt and maintain such policies and procedures of the Company and (y) prior to the adoption of suchpolicies and procedures of the Company, the Target Entities will maintain in effect and enforce theirexisting Code of Conduct and Employee Handbook).SECTION 5.09. Use of Proceeds.(a) The proceeds of the Loans will be used (a) on the Effective Date to (i) finance the Effective DateRefinancing, (ii) finance in part the other Transactions, (iii) pay fees and expenses incurred in connectionwith the Effective Date Refinancing and the Transactions and (b) on and after the Effective Date used forworking capital in the ordinary course of business and general corporate purposes of the Borrower,Holdings and the Subsidiaries. 69
(b) The Borrower will not request any Borrowing, and the Borrower will not use, and will procurethat Holdings and the Subsidiaries and its or their respective directors, officers, employees and agents willnot use the proceeds of any Borrowing (i) in furtherance of an offer, payment, promise to pay, orauthorization of the payment or giving of money, or anything else of value, to any Person in violation ofany Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, businessor transaction of or with any Sanctioned Person, or in any Sanctioned Country, (iii) in any manner thatwould result in the violation of any Sanctions applicable to any party hereto, or (iv) to purchase or carrymargin stock or to extend credit to others for the purpose of purchasing or carrying margin stock or forany other purpose that would result in a violation of Regulations T, U and X of the Board of Governors.SECTION 5.10. Guaranty.(a) The payment and performance of the Obligations of the Borrower shall be unconditionallyguaranteed by (x) Holdings (the “Holdings Guaranty”) and (y) each Subsidiary (other than a ForeignSubsidiary or an Excluded Subsidiary), in each case, pursuant to Article X hereof or pursuant to one ormore supplements hereto or other guaranty agreements in form and substance reasonably acceptable tothe Administrative Agent, as the same may be amended, modified or supplemented from time to time(individually a “Subsidiary Guaranty” and collectively the “Subsidiary Guaranties”; each Subsidiaryparty to this Agreement and each additional Subsidiary, upon the execution and delivery of the applicableSubsidiary Guaranty, a “Subsidiary Guarantor” and collectively the “Subsidiary Guarantors” and,together with Holdings, the “Guarantors”).(b) In the event that (x) any Subsidiary (other than a Foreign Subsidiary or an Excluded Subsidiary)is acquired or created or ceases to be an Excluded Subsidiary after the Effective Date or (y) the Company(in its sole discretion) otherwise elects to designate a Subsidiary as a Guarantor after the Effective Date,the Company shall cause such Person to execute and deliver to the Administrative Agent, (i) within 60days after acquisition, creation or cessation in the case of clause (x) and (ii) at the time of designation inthe case of clause (y), an Additional Guarantor Supplement substantially in the form attached as Exhibit For such other form reasonably acceptable to the Administrative Agent, and the Borrower shall also deliverto the Administrative Agent, or cause such Person to deliver to the Administrative Agent, at theBorrower’s cost and expense, such other instruments, documents, certificates and opinions of the typedelivered on the Effective Date pursuant to Section 4.01(b), 4.01(c) and 4.01(d), to the extent reasonablyrequired by the Administrative Agent in connection therewith.(c) Upon delivery of written notice to the Administrative Agent by a Responsible Officer of theBorrower certifying that, as to a particular Guarantor, (i) such Guarantor is electing (in its sole discretion)to be released from its Guarantee hereunder and (ii) the conditions set forth in clause (a) that wouldrequire such Guarantor to remain a Guarantor do not apply or, after giving effect to any substantiallyconcurrent transactions, including any repayment of Indebtedness or release of a guaranty, will not apply,or such Guarantor is, or after giving effect to any substantially concurrent transactions will be, anExcluded Subsidiary, such Guarantor shall be automatically released from its obligations (including itsSubsidiary Guaranty) hereunder without further required action by any Person. The AdministrativeAgent, at the Borrower’s expense, shall execute and deliver to the applicable Guarantor any documents orinstruments as such Guarantor may reasonably request to evidence the release of such SubsidiaryGuaranty.(d) For the avoidance of doubt, in the event any Guarantor is released from its Guarantee pursuant toclause (c) above, the requirements of Section 5.10(a) shall no longer apply going forward with respect tosuch former Guarantor (and Section 5.10(a) shall not cause any springing Guarantee with respect to suchreleased Guarantor after such release occurs). 70
SECTION 5.11. Business of the Borrower and its Subsidiaries. The Borrower and theSubsidiary Guarantors will not, and will cause the Subsidiaries to not, engage in any line of businessmaterial to the Borrower and its Subsidiaries taken as a whole other than (a) those lines of businessconducted by the Borrower or any Subsidiary on the Effective Date or (b) any Similar Business.SECTION 5.12. Transactions with Affiliates. The Borrower and the Subsidiary Guarantorswill not, and will cause its Subsidiaries to not, engage in transactions by or among the Borrower and theSubsidiary Guarantors, sell or transfer any property or assets to, or purchase or acquire any property orassets from, or otherwise engage in any other transactions with, any of its Affiliates, involving aggregatepayments or consideration in excess of $25,000,000 in any fiscal year unless:(a) such transaction is on terms that are not materially less favorable to the Borrower or therelevant Subsidiary than those that would have been obtained in a comparable transaction by theBorrower or such Subsidiary with an unrelated Person on an arm’s-length basis; and(b) the Borrower delivers to the Administrative Agent with respect to any such transaction orseries of related transactions involving aggregate payments or consideration in excess of $50,000,000, aresolution adopted by the majority of the board of directors of the Borrower approving such transactionand set forth in an Officer’s Certificate certifying that such transaction complies with clause (a) above.(c) The foregoing provisions will not apply to the following:(i) transactions among the Borrower, Holdings and its Subsidiaries or any entity thatbecomes a Subsidiary as a result of such transaction;(ii) [Intentionally Reserved];(iii) the Transactions and the payment of the Transaction Expenses;(iv) issuances by the Borrower and its Subsidiaries of Equity Interests not prohibitedunder this Agreement;(v) reasonable and customary fees payable to any directors of the Borrower and itsSubsidiaries (or any direct or indirect parent of the Borrower) and reimbursement of reasonable out-of-pocket costs of the directors of the Borrower and its subsidiaries (or any direct or indirect parentof the Borrower) in the ordinary course of business, in the case of any direct or indirect parent to theextent reasonably attributable to the ownership or operations of the Borrower and its Subsidiaries;(vi) expense reimbursement and employment, severance and compensationarrangements entered into by the Borrower and its Subsidiaries with their officers, employees andconsultants in the ordinary course of business, including, without limitation, the payment of staybonuses and incentive compensation and/or such officer’s, employee’s or consultant’s equityinvestment in certain Subsidiaries;(vii) payments by the Borrower and its Subsidiaries to each other pursuant to tax sharingagreements or arrangements among Holdings and its subsidiaries on customary terms (including,without limitation, transfer pricing initiatives);(viii) the payment of reasonable and customary indemnities to directors, officers andemployees of the Borrower and its Subsidiaries (or any direct or indirect parent of the Borrower) in71
the ordinary course of business, in the case of any direct or indirect parent to the extent attributableto the operations of the Borrower and its Subsidiaries;(ix) transactions pursuant to permitted agreements in existence on the Effective Dateand disclosed to the Lenders prior to the Effective Date and any amendment thereto to the extentsuch an amendment is not adverse to the interests of the Lenders in any material respect;(x) [reserved];(xi) [reserved];(xii) loans and other transactions among the Borrower and its Subsidiaries (and anydirect and indirect parent company of the Borrower) to the extent permitted under this Article V;(xiii) the existence of, or the performance by the Borrower or any of its Subsidiaries of itsobligations under the terms of, any stockholders agreement, principal investors agreement(including any registration rights agreement or purchase agreement related thereto) to which it is aparty as of the Effective Date and any similar agreements entered into thereafter; provided,however, that the existence of, or the performance by the Borrower or any of its Subsidiaries ofobligations under any future amendment to any such existing agreement or under any similaragreement entered into after the Effective Date shall only be permitted by this clause (xiii) to theextent that the terms of any such amendment or new agreement are not otherwise disadvantageousto the Lenders when taken as a whole;(xiv) transactions with customers, clients, suppliers, or purchasers or sellers of goods orservices, in each case in the ordinary course of business which are fair to the Borrower and itsSubsidiaries, in the reasonable determination of the board of directors of the Borrower or the seniormanagement thereof, or are on terms at least as favorable as might reasonably have been obtained atsuch time from an unaffiliated party;(xv) sales of accounts receivable, or participations therein, by any Subsidiary that is nota Subsidiary Guarantor in connection with any Receivables Facility;(xvi) payments or loans (or cancellation of loans) to employees or consultants of theBorrower, any of its direct or indirect parent companies or any of its Subsidiaries which, for anysuch payments or loans in excess of $1,000,000, are approved by a majority of the board of directorsof the Borrower in good faith; and(xvii) transactions among Foreign Subsidiaries for tax planning and tax efficiencypurposes.SECTION 5.13. Post-Closing Obligations. Take all necessary actions to satisfy the itemsdescribed on Schedule 5.13 within the applicable period of time specified therein (or such longer periodas the Administrative Agent may agree in its reasonable discretion).72
ARTICLE VINegative CovenantsEach of the Borrower and the Subsidiary Guarantors covenants and agrees with each Lender that,until the Termination Date:SECTION 6.01. Limitation on Non-Guarantor Subsidiary Indebtedness and Issuance of Non-Guarantor Preferred Stock.(a) The Borrower and the Guarantors will not permit any Subsidiary that is not a Guarantor to create,incur, assume, guarantee or permit to exist, with respect to (collectively, “incur”) any Non-Guarantor Indebtedness (including Acquired Debt). Notwithstanding the foregoing, this Section 6.01shall not apply to Indebtedness of CDW UK solely as it relates to the Obligations (as defined in theRevolving Credit Agreement) under the Revolving Credit Agreement.(b) The foregoing restriction shall not apply to the following items:(i) Indebtedness existing on the Effective Date that either is set forth onSchedule 6.01 or has a committed or principal amount of not greater than $25,000,000individually or $50,000,000 in the aggregate;(ii) any Indebtedness of a Person existing at the time such Person is merged into orconsolidated with or otherwise acquired by the Borrower or any Subsidiary or at the time of asale, lease or other disposition of the properties and assets of such Person (or a division or line ofbusiness thereof) as an entirety or substantially as an entirety to any Subsidiary and is assumed bysuch Subsidiary; provided that such Indebtedness was not incurred in contemplation thereof;(iii) any Indebtedness of a Person existing at the time such Person becomes aSubsidiary; provided that such Indebtedness was not incurred in contemplation thereof;(iv) Indebtedness incurred by any Subsidiary in respect of letters of credit, bankguarantees and similar instruments issued in the ordinary course of business, including withoutlimitation (A) in respect of workers’ compensation claims, health, disability or other employeebenefits or property, casualty or liability insurance or self-insurance or other Indebtedness withrespect to reimbursement type obligations regarding workers’ compensation claims, (B) in thenature of security deposit (or similar deposit or security) given to a lessor under an operatinglease of real property under which such Person is a lessee, (C) in respect of other operatingpurposes, including customer or vendor obligations or (D) in respect of bids, trade contracts,leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of alike nature and other obligations that do not constitute Indebtedness; provided, however, thatupon the drawing of such letters of credit, bank guarantees, similar instruments or the incurrenceof such Indebtedness, such obligations are reimbursed within 60 days following such drawing orincurrence;(v) Indebtedness arising from agreements of a Subsidiary providing forindemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, inconnection with any joint ventures or minority investments or incurred or assumed in connectionwith the disposition or acquisition of a portion or all of any business line or division, assets or a73
Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or anyportion of such business, assets or a Subsidiary for the purpose of financing such acquisition;(vi) Indebtedness of a Subsidiary owed to and held by the Borrower, or any otherSubsidiary; provided, however, that any subsequent issuance or transfer of any Equity Interests orany other event that results in any such Subsidiary ceasing to be a Subsidiary or any subsequenttransfer of any such Indebtedness (except to the Borrower or a Subsidiary or any pledge of suchIndebtedness constituting a Lien permitted pursuant to Section 6.02 hereof) shall be deemed, ineach case, to constitute the incurrence of such Indebtedness not permitted by this clause (vi);(vii) [reserved];(viii) Hedging Obligations and/or Cash Management Obligations of any Subsidiary(excluding Hedging Obligations entered into for speculative purposes);(ix) obligations in respect of customs, stay, bid, appeal, performance and suretybonds, appeal bonds and other similar types of bonds and performance and completion guaranteesand other obligations of a like nature provided by any Subsidiary or obligations in respect ofletters of credit related thereto, in each case in the ordinary course of business or consistent withpast practice;(x) (x) any guarantee by a Subsidiary or any co-issuance by a Subsidiary that is afinance corporation formed for the sole purpose of acting as a co-issuer of debt securities andwhich does not have any material assets, in each case, of Indebtedness or other obligations of anySubsidiary so long as the incurrence of such Indebtedness or other obligations incurred by suchSubsidiary or for which such Subsidiary is acting as a co-issuer, as applicable, is not prohibitedunder the terms of this Agreement and (y) any guarantee by a Subsidiary or any co-issuance by aSubsidiary that is a finance corporation formed for the sole purpose of acting as a co-issuer ofdebt securities and which does not have any material assets, in each case, of Indebtedness or otherobligations of the Company so long as the incurrence of such Indebtedness or other obligations isnot prohibited under the terms of this Agreement;(xi) any extension, renewal, replacement, refinancing or refunding of anyIndebtedness referred to in clauses (i), (ii) and (iii); provided that the principal amount of theIndebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed (w) theprincipal amount of Indebtedness being extended, renewed, replaced, refinanced or refunded plus(x) any premium or fee (including tender premiums) or other amount paid, and fees and expensesincurred, in connection with such extension, renewal, replacement, refinancing or refunding, plus(y) an amount equal to any existing unutilized commitment relating to such extended, renewed,replaced, refinanced or refunded Indebtedness, solely to the extent such unutilized commitment ispermitted to be drawn immediately prior to the incurrence of such extended, renewed, replaced,refinanced or refunded Indebtedness, and (z) other amounts permitted to be incurred inaccordance with any other clause in this Section 6.01(b) (solely to the extent increases pursuant tothis clause (z) reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant tosuch other clause);(xii) Cash Management Obligations and Indebtedness in respect of netting services,overdraft facilities, employee credit card programs, Cash Pooling Arrangements or similararrangements in connection with cash management and deposit accounts;74
(xiii) Indebtedness representing deferred compensation to employees of the Borroweror any Subsidiary incurred in the ordinary course of business;(xiv) Indebtedness arising from the honoring by a bank or financial institution of acheck, draft or similar instrument drawn against insufficient funds in the ordinary course ofbusiness; provided that such Indebtedness is extinguished within five Business Days of itsincurrence;(xv) Indebtedness owing to any insurance company in connection with the financingof insurance premiums permitted by such insurance company in the ordinary course of business;(xvi) [reserved];(xvii) [reserved];(xviii) Indebtedness issued to future, current or former officers, directors, employeesand consultants of such Subsidiary or any direct or indirect parent thereof, their respective estates,heirs, family members, spouses or former spouses, in each case to finance the purchase orredemption of Equity Interests of the Borrower, a Subsidiary or any of their respective direct orindirect parent companies;(xix) Indebtedness of any Foreign Subsidiary or of any foreign Persons that areacquired by the Borrower or any Subsidiary or merged into a Subsidiary that is a ForeignSubsidiary in accordance with the terms of this Agreement; provided that the aggregate amountoutstanding of any such Indebtedness shall not at any time exceed $200,000,000;(xx) Indebtedness (i) incurred to finance or refinance the acquisition, construction orimprovement of any fixed or capital assets, including Capital Lease Obligations; provided thatsuch Indebtedness is incurred prior to or within 270 days after such acquisition or the completionof such construction or improvement and the principal amount of such Indebtedness does notexceed the cost of acquiring, constructing or improving such fixed or capital assets, or(ii) assumed in connection with the acquisition of any fixed or capital assets, and, in each case,any renewals, replacements, extensions or refinancings thereof; provided that the principalamount of such Indebtedness is not increased at the time of such renewal, replacement, extensionor refinancing thereof except by (x) an amount equal to any premium or other amount paid, andfees and expenses incurred, in connection with such renewal, extension, replacement orrefinancing, plus (y) an amount equal to any existing unutilized commitment relating to suchextended, renewed, replaced or refinanced Indebtedness, solely to the extent such unutilizedcommitment is permitted to be drawn immediately prior to the incurrence of extended, renewed,replaced or refinanced Indebtedness, plus (z) other amounts permitted to be incurred inaccordance with any other clause in this Section 6.01(b) (solely to the extent increases pursuant tothis clause (z) reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant tosuch other clause); provided, further, that the aggregate principal amount of Indebtednessincurred pursuant to this clause (xx) does not exceed the greater of $90,000,000 and 1% of TotalAssets; and(xxi) other Non-Guarantor Indebtedness; provided that at the time of and after givingpro forma effect to the incurrence of any such Non-Guarantor, the sum, without duplication, of(i) the aggregate principal amount of Non-Guarantor Indebtedness incurred pursuant to thisclause (xxi), (ii) the aggregate principal amount of the outstanding Indebtedness secured by Lienspermitted by Section 6.02(k) and (iii) the Attributable Debt in respect of all outstanding75
Sale/Leaseback Transactions permitted by Section 6.03, does not exceed the greater of$1,200,000,000 and 10% of Total Assets.For purposes of determining compliance with any dollar-denominated restriction on theincurrence of Indebtedness, the Dollar Equivalent principal amount of Indebtedness denominated in aforeign currency shall be calculated based on the relevant currency exchange rate in effect on the datesuch Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolvingcredit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated ina foreign currency, and such refinancing would cause the applicable dollar-denominated restriction to beexceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing,such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principalamount of such refinancing Indebtedness does not exceed the principal amount of such Indebtednessbeing refinanced.For purposes of determining compliance with this Section 6.01, if any item of Indebtedness meetsthe criteria of more than one of the categories of Indebtedness described in clauses (i) through (xxi)above, the Borrower shall, in its sole discretion, classify such item of Indebtedness (or any portionthereof) and may include the amount and type of such Indebtedness in one or more of the above clauses,and the Borrower may later reclassify such item of Indebtedness (or any portion thereof) and include it inanother of such clauses in which it could have been included at the time it was incurred.SECTION 6.02. Liens. The Borrower and the Subsidiary Guarantors will not, and will notpermit any Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned orhereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rightsin respect of any thereof, except:(a) Permitted Liens;(b) any Lien on any asset of the Borrower or any Subsidiary existing on the Effective Dateand that either is set forth on Schedule 6.02 or encumbers property or assets with a fair marketvalue, and securing obligations having a committed or principal amount, in each case, of notgreater than $25,000,000 individually or $50,000,000 in the aggregate; provided that (i) suchLien shall not apply to any other asset of the Borrower or any Subsidiary (other thanimprovements, proceeds or accessions thereto and the proceeds thereof) and (ii) such Lien shallsecure only those obligations that it secures on the Effective Date and extensions, replacements,renewals and refinancings thereof that do not increase the outstanding principal amount thereofexcept by an amount equal to (x) any premium or other amount paid, and fees and expensesincurred, in connection with such extension, renewal or refinancing, plus (y) an amount equal toany existing unutilized commitment relating to such extended, renewed, replaced, refinanced orrefunded Indebtedness, solely to the extent such unutilized commitment is permitted to be drawnimmediately prior to the incurrence of such extended, renewed, replaced, refinanced or refundedIndebtedness, and (z) other amounts permitted to be incurred in accordance with any other clausein this Section 6.02 (solely to the extent increases pursuant to this clause (b) reduce capacity, on adollar-for-dollar basis, available to be incurred pursuant to such other clause); provided furtherthat individual financings otherwise permitted to be secured hereunder provided by any Person(or its Affiliates) may be cross-collateralized to other such financings provided by such Person(or its Affiliates);(c) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or anySubsidiary securing Indebtedness, including Capital Lease Obligations, or other obligationsincurred to finance such acquisition, construction or improvement and extensions, replacements,76
renewals and refinancings thereof that do not increase the outstanding principal amount thereofexcept by (x) an amount equal to any premium or other amount paid, and fees and expensesincurred, in connection with such extension, replacement, renewal or refinancing plus (y) anamount equal to any unutilized commitment relating to such extended, renewed, replaced, orrefinanced Indebtedness or obligations, solely to the extent such unutilized commitment ispermitted to be drawn immediately prior to the incurrence of such extended, renewed, replaced,or refinanced Indebtedness or obligations and (z) other amounts permitted to be incurred inaccordance with any other clause in this Section 6.02 (solely to the extent increases pursuant tothis clause (z) reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant tosuch other clause); provided that (i) such Liens and the Indebtedness secured thereby are incurredprior to or within 270 days after such acquisition or the completion of such construction orimprovement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring,constructing or improving such fixed or capital assets and (iii) such Liens shall not apply to anyother assets of the Borrower or any Subsidiary (other than improvements, proceeds or accessionsthereto and the proceeds thereof), provided further that individual financings of equipment orother fixed or capital assets otherwise permitted to be secured hereunder provided by any Person(or its Affiliates) may be cross-collateralized to other such financings provided by such Person(or its Affiliates);(d) any Lien on any asset acquired by the Borrower or any Subsidiary after the EffectiveDate existing at the time of the acquisition thereof or existing on any asset of any Person thatbecomes a Subsidiary (or of any Person not previously a Subsidiary that is merged, amalgamatedor consolidated with or into the Borrower or a Subsidiary in a transaction permitted hereunder)after the Effective Date and prior to the time such Person becomes a Subsidiary (or is so merged,amalgamated or consolidated), provided that (i) such Lien is not created in contemplation of or inconnection with such acquisition or such Person becoming a Subsidiary (or such merger,amalgamation or consolidation), as the case may be, (ii) such Lien shall not apply to any otherassets of the Borrower or any Subsidiary (other than improvements, proceeds or accessionsthereto and the proceeds thereof) and (iii) such Lien shall secure only those obligations that itsecures on the date of such acquisition or the date such Person becomes a Subsidiary (or is somerged, amalgamated or consolidated), as the case may be, and extensions, replacements,renewals and refinancings thereof that do not increase the outstanding principal amount thereofexcept by (x) an amount equal to any premium or other amount paid, and fees and expensesincurred, in connection with such extension, renewal or refinancing plus (y) an amount equal toany existing unutilized commitment relating to such extended, renewed or refinanced obligations,solely to the extent such unutilized commitment is permitted to be drawn immediately prior to theincurrence of such extended, renewed or refinanced obligations and (z) other amounts permittedto be incurred in accordance with any other clause in this Section 6.02 (solely to the extentincreases pursuant to this clause (z) reduce capacity, on a dollar-for-dollar basis, available to beincurred pursuant to such other clause); provided further that individual financings otherwisepermitted to be secured hereunder provided by any Person (or its Affiliates) may be cross-collateralized to other such financings provided by such Person (or its Affiliates);(e) in connection with the sale or transfer of any Equity Interests or other assets in atransaction permitted under Section 6.04, customary rights and restrictions contained inagreements relating to such sale or transfer pending the completion thereof;(f) in the case of (i) any Subsidiary that is not a wholly owned Subsidiary or (ii) the EquityInterests in any Person that is not a Subsidiary, any encumbrance or restriction, including any putand call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth77
in the organizational documents of such Subsidiary or such other Person or any related jointventure, shareholders’ or similar agreement;(g) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits, escrow arrangements or similararrangements made by the Borrower or any Subsidiary in connection with any letter of intent orpurchase agreement for an Acquisition or other transaction permitted hereunder;(h) Liens deemed to exist in connection with Sale/Leaseback Transactions set forth onSchedule 6.03 or permitted by Section 6.03(a);(i) (i) deposits made in the ordinary course of business to secure obligations to insurancecarriers providing casualty, liability or other insurance to the Borrower and the Subsidiaries and(ii) Liens on insurance policies and the proceeds thereof securing the financing of the premiumswith respect thereto;(j) Liens on the net cash proceeds of any Acquisition Indebtedness held in escrow by a thirdparty escrow agent prior to the release thereof from escrow;(k) other Liens, provided that at the time of and after giving pro forma effect to theincurrence of any such Lien (or any Indebtedness secured thereby and the application of theproceeds thereof), the sum, without duplication, of (i) the aggregate principal amount of Non-Guarantor Indebtedness incurred pursuant to Section 6.01(b)(xxi), (ii) the aggregate principalamount of the outstanding Indebtedness secured by Liens permitted by this clause (k) and (iii) theAttributable Debt in respect of all outstanding Sale/Leaseback Transactions permitted by Section6.03, does not exceed the greater of $1,200,000,000 and 10% of Total Assets;(l) Liens on cash securing amounts not to exceed the greater of $250,000,000 and 2% ofTotal Assetscollected by the Borrower or any Subsidiary solely to the extent belonging to andowed toowned by leasing partners, finance companies or third parties, in each case, in connectionwith Bundled Solutions or consumercustomer transaction financingfinancings in the ordinarycourse of business; provided that, in the case of any such Liens securing Indebtedness of theBorrower or any Subsidiary, such Indebtedness shall not exceed the greater of $250,000,000 and2% of Total Assets;(m) Liens on inventory or equipment of the Borrower or any of its Subsidiaries granted in theordinary course of business to the Borrower’s or such Subsidiary’s vendors, clients, customers,landlords or bailees;(n) Permitted Inventory Financing Liens and Liens securing any obligations under anycustomer financing arrangements incurred in the ordinary course of business; provided that, at thetime of and after giving effect to the incurrence of any such Lien, the sum, without duplication, of(i) the aggregate principal amount of the obligations secured by ▇▇▇▇▇ permitted by this clause (n)and (ii) the aggregate principal amount of the outstanding Indebtedness secured by Lienspermitted by clause (o) below, does not exceed $1,500,000,000;(o) Liens on accounts receivable and related assets incurred in connection with a ReceivablesFacility; provided that, at the time of and after giving pro forma effect to the incurrence of anysuch Lien, the sum, without duplication, of (i) the aggregate principal amount of the obligationssecured by Liens permitted by clause (n) above and (ii) the aggregate principal amount of the78
outstanding Indebtedness secured by ▇▇▇▇▇ permitted by this clause (o), does not exceed$1,500,000,000; and(p) Liens securing Hedging Obligations so long as, in the case of Hedging Obligationsrelated to interest, the related Indebtedness is secured by a Lien on the same property securingsuch Hedging Obligations.For purposes of determining compliance with this Section 6.02, if any Lien (or any portionthereof) meets the criteria of more than one of the categories of Liens described in clauses (a) through (p)above and/or one or more of the clauses contained in the definition of “Permitted Liens”, the Borrowershall, in its sole discretion, classify such Lien (or such portion thereof) and may include such Lien (orsuch portion thereof) in one or more of such clauses, and the Borrower may later reclassify such Lien (orany portion thereof) and include it in another of such clauses in which it could have been included at thetime it was incurred (but, except as set forth below with respect to clause (k), not into any clause underwhich it could not have been included at the time it was incurred) or, solely in the case of clause (k)above, at the time of such reclassification.SECTION 6.03. Sale/Leaseback Transactions. Each of the Borrower and the SubsidiaryGuarantors will not, and will not permit any Subsidiary to, enter into any Sale/Leaseback Transaction,except Sale/Leaseback Transactions set forth on Schedule 6.03 and the following:(a) any Sale/Leaseback Transaction entered into to finance the acquisition or construction ofany fixed or capital assets by the Borrower or any Subsidiary, provided that such Sale/LeasebackTransaction is entered into prior to or within 270 days after such acquisition or the completion ofsuch construction and the Attributable Debt in respect thereof does not exceed the cost ofacquiring or constructing such fixed or capital assets; and(b) other Sale/Leaseback Transactions;provided that at the time of and after giving pro forma effect to any such Sale/Leaseback Transaction, thesum, without duplication, of (i) the Attributable Debt in respect of all outstanding Sale/LeasebackTransactions permitted under this Section 6.03, (ii) the aggregate principal amount of Non-GuarantorIndebtedness incurred pursuant to Section 6.01(b)(xxi) and (iii) the aggregate principal amount of theoutstanding Indebtedness secured by Liens permitted by Section 6.02(k), does not exceed the greater of$1,200,000,000 and 10% of Total Assets.SECTION 6.04. Fundamental Changes.(a) The Borrower and each Subsidiary Guarantor will not, and will not permit any Subsidiary to,amalgamate with, merge into or consolidate with any other Person, or permit any other Person toamalgamate with, merge into or consolidate with it, or liquidate or dissolve, except that if at the timethereof and immediately after giving effect thereto no Event of Default shall have occurred and becontinuing and, in the case of clause (D) below, the Borrower shall be in compliance on a pro forma basiswith the covenant set forth in Section 6.06, (A) any Person may amalgamate, merge or consolidate withthe Borrower in a transaction in which the Borrower is the surviving entity, (B) the Borrower mayamalgamate, merge or consolidate with any Person in a transaction in which such Person is the survivingentity, provided that (1) such Person is a corporation or limited liability company organized under thelaws of the United States or any state thereof, (2) prior to or substantially concurrently with theconsummation of such amalgamation, merger or consolidation, (x) such Person shall execute and deliverto the Administrative Agent an assumption agreement (the “Assumption Agreement”), in form andsubstance reasonably satisfactory to the Administrative Agent, pursuant to which such Person shall79
assume all of the obligations of the Borrower under this Agreement and the other Loan Documents, and(y) such Person shall deliver to the Administrative Agent such documents, certificates and opinions as theAdministrative Agent may reasonably request relating to such Person, such amalgamation, merger orconsolidation or the Assumption Agreement, and (3) the Lenders shall have received, at least fiveBusiness Days prior to the date of the consummation of such amalgamation, merger or consolidation,(x) all documentation and other information regarding such Person required by bank regulatoryauthorities under applicable “know your customer” and anti-money laundering rules and regulations,including, without limitation, the USA PATRIOT Act, that has been reasonably requested by theAdministrative Agent or any Lender and (y) to the extent such Person qualifies as a “legal entitycustomer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation tosuch Person, it being agreed that upon the execution and delivery to the Administrative Agent of theAssumption Agreement and the satisfaction of the other conditions set forth in this clause (B), suchPerson shall become a party to this Agreement, shall succeed to and assume all the rights and obligationsof the Borrower under this Agreement and the other Loan Documents (including all obligations in respectof outstanding Loans) and shall thenceforth, for all purposes of this Agreement and the other LoanDocuments, be the “Borrower”, (C) any Person (other than the Borrower) may amalgamate, merge orconsolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (D) anySubsidiary may amalgamate with, merge into or consolidate with any Person (other than the Borrower) ina transaction not prohibited under paragraph (b) of this Section in which, after giving effect to suchtransaction, the surviving entity is not a Subsidiary and (E) any Subsidiary may liquidate or dissolve if theBorrower determines in good faith that such liquidation or dissolution is in the best interests of theBorrower and its Subsidiaries taken as a whole and is not materially disadvantageous to the Lenders.(b) The Borrower and the Subsidiary Guarantors will not, and will not permit its Subsidiaries to, sell,transfer, lease or otherwise dispose of, directly or through any amalgamation, merger or consolidation andwhether in one transaction or in a series of transactions, assets (including Equity Interests in Subsidiaries)representing all or substantially all of the assets of the Borrower and its Subsidiaries (whether now ownedor hereafter acquired), taken as a whole.SECTION 6.05. Restrictive Agreements. The Borrower and the Subsidiary Guarantors willnot, and will not permit any Subsidiary to enter into, incur or permit to exist any agreement or otherarrangement with any Person (other than any such agreements or arrangements between or among theBorrower and the Subsidiaries) that prohibits, restricts or imposes any condition upon the ability of anySubsidiary to pay dividends or other distributions with respect to its Equity Interests or to make or repayloans or advances to the Borrower or any Subsidiary, in each case, except to the extent the Borrower hasreasonably determined that such agreement or arrangement will not materially impair the Borrower’sability to make payments under this Agreement when due; provided that the foregoing shall not apply to(a) prohibitions, restrictions or conditions imposed by law or by the Loan Documents, (b) prohibitions,restrictions or conditions contained in, or existing by reason of, any agreement or instrument set forth onSchedule 6.05 (but shall apply to any amendment or modification expanding the scope of any suchprohibition, restriction or condition), (c) in the case of any Subsidiary that is not a wholly ownedSubsidiary, prohibitions, restrictions and conditions imposed by its organizational documents or anyrelated joint venture, shareholders’ or similar agreement; provided that such prohibitions, restrictions andconditions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, (d) customaryprohibitions, restrictions and conditions contained in agreements relating to the sale of a Subsidiary thatare applicable solely pending such sale; provided that such prohibitions, restrictions and conditions applyonly to the Subsidiary that is to be sold, (e) prohibitions, restrictions and conditions imposed byagreements relating to Indebtedness of any Subsidiary in existence at the time such Subsidiary became aSubsidiary and not created in contemplation thereof or in connection therewith (but shall apply to anyamendment or modification expanding the scope of any such restriction or condition); provided that suchprohibitions, restrictions and conditions apply only to such Subsidiary, and (f) prohibitions, restrictions80
and conditions imposed by agreements relating to any Indebtedness of the Borrower or any Subsidiarypermitted hereunder to the extent, in the good faith judgment of the Borrower, such prohibitions,restrictions and conditions, at the time such Indebtedness is incurred, are on customary market terms forIndebtedness of such type.SECTION 6.06. Leverage Ratio. The Borrower will not permit the Leverage Ratio on the lastday of any fiscal quarter of the Borrower to exceed, (i) initially, 4.50 to 1.00 and (ii) from and after thefiscal quarter ending on or about March 31, 2023, 4.00 to 1.00; provided that, in the event the Borrowerconsummates a Qualified Acquisition after the fiscal quarter ending on or about December 31, 2022, theBorrower may elect (a “Qualified Acquisition Election”) upon notice to the Administrative Agent (whichQualified Election may be made (x) at any time on or prior to the date that the next ComplianceCertificate is delivered pursuant to Section 5.01(c) following the consummation of such QualifiedAcquisition or (y) in such Compliance Certificate) that the Leverage Ratio level set forth above be (and,subject to this proviso, the Leverage Ratio level set forth above shall be) (1) 4.50 to 1.00 for the next fourconsecutive fiscal quarters (including the fiscal quarter in which the Qualified Acquisition wasconsummated) and (2) thereafter, the Leverage Ratio shall be 4.00 to 1.00; provided, further, that (A) theBorrower may not make a Qualified Acquisition Election unless the Borrower has maintained a LeverageRatio of less than or equal to 4.00 to 1.00 for the two consecutive fiscal quarters immediately precedingthe consummation of the applicable Qualified Acquisition and (B) the Borrower shall not be permitted tomake a Qualified Acquisition Election more than two times during the term of the Term Loan Facility.ARTICLE VIIEvents of DefaultSECTION 7.01. Events of Default; Remedies. If any of the following events (“Events ofDefault”) shall occur:(a) default shall be made in the payment of any principal of any Loan when and as the sameshall become due and payable, whether at the due date thereof or at a date fixed for prepaymentthereof or by acceleration thereof or otherwise;(b) default shall be made in the payment of any interest on any Loan or any fee or any otheramount (other than an amount referred to in clause (a) of this Section) payable under thisAgreement or any other Loan Document, when and as the same shall become due and payable,and such failure shall continue unremedied for a period of five Business Days;(c) any representation, warranty or statement made or deemed made in any Loan Documentor any amendment or modification thereof or waiver thereunder shall prove to have beenincorrect in any material respect when made or deemed made and, solely to the extent suchrepresentation, warranty or statement is capable of being corrected or cured, shall remainincorrect for 30 days after the earlier of (x) the Borrower’s knowledge of such default and (y)receipt by the Borrower of written notice thereof from the Administrative Agent;(d) the Borrower or any Guarantor shall fail to observe or perform any covenant, condition oragreement contained in Sections 5.02(a), 5.03 (with respect to the existence of the Borrower) or5.09 or in Article VI;(e) the Borrower or any Guarantor shall fail to observe or perform any covenant, condition oragreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) ofthis Section), and such failure shall continue unremedied for a period of 30 days after written81
notice thereof from the Administrative Agent or any Lender to the Borrower (with a copy to theAdministrative Agent in the case of any such notice from a Lender);(f) the Borrower, any Guarantor or any Subsidiary shall fail to make any payment (whetherof principal, interest or otherwise) in respect of any Material Indebtedness, when and as the sameshall become due and payable after giving effect to any applicable grace period and notices;(g) any event or condition occurs that results in any Material Indebtedness becoming due orbeing terminated or required to be prepaid, repurchased, redeemed or defeased prior to itsscheduled maturity, or that enables or permits the holder or holders of any Material Indebtednessor any trustee or agent on its or their behalf, or, in the case of any Hedging Agreement, theapplicable counterparty, to cause (after delivery of any notice if required and after giving effect toany waiver, amendment, cure or grace period) such Material Indebtedness to become due, or torequire the prepayment, repurchase, redemption or defeasance thereof, or, in the case of aHedging Agreement, to terminate any related hedging transaction, in each case prior to itsscheduled maturity or termination; provided that this clause (g) shall not apply to (i) any securedIndebtedness that becomes due as a result of the voluntary sale or transfer of, or any casualty withrespect to, assets securing such Indebtedness, (ii) any prepayment, repurchase, redemption ordefeasance of any Acquisition Indebtedness if the related Acquisition is not consummated, (iii)any Indebtedness that becomes due as a result of a voluntary prepayment, repurchase, redemptionor defeasance thereof, or any refinancing thereof, permitted under this Agreement, (iv) in the caseof any Hedging Agreement, termination events or equivalent events pursuant to the terms of suchHedging Agreement not arising as a result of a default by the Borrower or any Subsidiarythereunder, (v) any Indebtedness if (x) the sole remedy of the holder thereof in the event of thenon-payment of such Indebtedness or the non-payment or non-performance of obligations relatedthereto or (y) sole option is to elect, in each case, to convert such Indebtedness into EquityInterests and cash in lieu of fractional shares (other than Disqualified Stock or, in the case of aSubsidiary, Disqualified Stock or Preferred Stock), (vi) in the case of Indebtedness which theholder thereof may elect to convert into Equity Interests (other than Disqualified Stock or, in thecase of a Subsidiary, Disqualified Stock or Preferred Stock), such Indebtedness from and after thedate, if any, on which such conversion has been effected and (vii) any breach or default that is(I) remedied by the Borrower or the applicable Subsidiary or (II) waived (including in the form ofamendment) by the required holders of the applicable item of Indebtedness, in either case, prior toany termination of the Commitments or the acceleration of Loans pursuant to thisSection 7.01(g);(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filedseeking (i) liquidation, reorganization, moratorium, winding-up or other relief in respect of theBorrower, Holdings or any Material Subsidiary or its debts, or of a substantial part of its assets,under any United States (Federal or state) or foreign bankruptcy, insolvency, receivership,winding-up or similar law now or hereafter in effect or (ii) the appointment of a receiver,liquidator, trustee, custodian, sequestrator, conservator or similar official for the Borrower,Holdings or any Material Subsidiary or for a substantial part of its assets, and, in any such case,such proceeding or petition shall continue undismissed for 60 days or an order or decreeapproving or ordering any of the foregoing shall be entered;(i) the Borrower, Holdings or any Material Subsidiary shall (i) voluntarily commence anyproceeding or file any petition seeking liquidation, reorganization, winding-up or other reliefunder any United States (Federal or state) or foreign bankruptcy, insolvency, receivership,winding-up or similar law now or hereafter in effect (other than, in the case of any Subsidiary, avoluntary liquidation or dissolution permitted by Section 6.04(a)(ii)(E)), (ii) consent to the82
institution of, or fail to contest in a timely and appropriate manner, any proceeding or petitiondescribed in sub-clause (i) above, (iii) apply for or consent to the appointment of a receiver,liquidator, trustee, custodian, sequestrator, conservator or similar official for the Borrower or anyMaterial Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the materialallegations of a petition filed against it in any such proceeding or (v) make a general assignmentfor the benefit of creditors, or the Board of Directors (or similar governing body) of the Borroweror any Material Subsidiary (or any committee thereof) shall adopt any resolution or otherwiseauthorize any action to approve any of the actions referred to above in this clause (i) or clause (h)of this Section;(j) the Borrower, Holdings or any Material Subsidiary shall become unable, admit in writingits inability or fail generally to pay its debts as they become due;(k) one or more final judgments for the payment of money in an aggregate amount in excessof $200,000,000 (to the extent not covered by insurance as to which an insurance company hasnot denied coverage or by an indemnification agreement, with another creditworthy (asreasonably determined by the Borrower) indemnitor, as to which the indemnifying party has notdenied liability) shall be rendered against the Borrower, Holdings, any Material Subsidiary or anycombination thereof and the same shall remain undischarged for a period of 30 consecutive daysduring which execution shall not be effectively stayed, or any action shall be legally taken by ajudgment creditor to attach or levy upon any assets of the Borrower, Holdings or any MaterialSubsidiary to enforce any such judgment;(l) one or more ERISA Events shall have occurred that, individually or in the aggregate,would reasonably be expected to result in a Material Adverse Effect;(m) a Change in Control shall occur; or(n) any Subsidiary Guaranty, the Holdings Guaranty or any material provision of any LoanDocument, at any time after its execution and delivery and for any reason other than as permittedhereunder or thereunder or satisfaction in full of all the Obligations (other than contingentobligations that survive the termination of this Agreement), ceases to be in full force and effectother than in accordance with the terms hereof; or the Borrower or any Guarantor contests inwriting the validity or enforceability of any Subsidiary Guaranty or the Holdings Guaranty or anymaterial provision of any Loan Document; or the Borrower or any Guarantor denies in writingthat it has any or further liability or obligation under any Subsidiary Guaranty or the HoldingsGuaranty or any material provision of any Loan Document, or in writing purports to revoke,terminate or rescind any Subsidiary Guaranty or the Holdings Guaranty for any reason other thanas expressly permitted hereunder or thereunder;then, and in every such event (other than an event with respect to the Borrower described in clause (h) or(i) of this Section), and at any time thereafter during the continuance of such event, the AdministrativeAgent, at the request of the Required Lenders, shall by notice to the Borrower, take any or all of thefollowing actions, at the same or different times: (A) terminate the Commitments and thereupon theCommitments shall terminate immediately, and (B) declare the Loans then outstanding to be due andpayable in whole (or in part, in which case any principal not so declared to be due and payable maythereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to bedue and payable, together with accrued interest thereon and all fees and other obligations of the Borrowerhereunder, shall become due and payable immediately, in each case without presentment, demand, protestor other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any eventwith respect to the Borrower described in clause (h) or (i) of this Section, the Commitments shall83
automatically terminate, the principal of the Loans then outstanding, together with accrued interestthereon and all fees and other obligations of the Borrower hereunder, shall immediately and automaticallybecome due and payable, in each case without presentment, demand, protest or other notice of any kind,all of which are hereby waived by the Borrower.ARTICLE VIIIThe Administrative AgentEach of the Lenders hereby irrevocably appoints the entity named as the Administrative Agent inthe heading of this Agreement and its successors to serve in the applicable capacity under the LoanDocuments, and authorizes the Administrative Agent to take such actions and to exercise such ▇▇▇▇▇▇ ▇▇▇▇▇ delegated to the Administrative Agent by the terms of the Loan Documents, together with suchactions and powers as are reasonably incidental thereto.The Person serving as the Administrative Agent hereunder shall have the same rights andpowers in its capacity as a Lender as any other Lender and may exercise the same as though it were notthe Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to,own securities of, act as the financial advisor or in any other advisory capacity for and generally engagein any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Personwere not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.The Administrative Agent and the Arrangers, as applicable, shall not have any duties orobligations except those expressly set forth in the Loan Documents, and their duties hereunder shall beadministrative in nature. Without limiting the generality of the foregoing, the Administrative Agent andthe Arrangers, as applicable: (a) shall not be subject to any fiduciary or other implied duties, regardlessof whether a Default has occurred and is continuing (and it is understood and agreed that the use of theterm “agent” herein or in any other Loan Documents (or any other similar term) with reference to theAdministrative Agent is not intended to connote any fiduciary or other implied (or express) obligationsarising under agency doctrine of any applicable law, and that such term is used as a matter of marketcustom and is intended to create or reflect only an administrative relationship between contractingparties), (b) shall not have any duty to take any discretionary action or to exercise any discretionarypower, except discretionary rights and powers expressly contemplated by the Loan Documents that theAdministrative Agent is required to exercise as directed in writing by the Required Lenders (or suchother number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shallbelieve in good faith to be necessary, under the circumstances as provided in the Loan Documents),provided that the Administrative Agent shall not be required to take any action that, in its opinion, couldexpose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, (c)shall not have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, toany Lender or any credit or other information concerning the business, prospects, operations, property,financial and other condition or creditworthiness of the Borrower or any of its Affiliates, that iscommunicated to, obtained or in the possession of, the Administrative Agent, the Arrangers or any oftheir Related Parties in any capacity, except for notices, reports and other documents expressly required tobe furnished to the Lenders by the Administrative Agent herein, (d) shall not be liable for any actiontaken or not taken by it with the consent or at the request of the Required Lenders (or such othernumber or percentage of the Lenders as shall be necessary, or as the Administrative Agent shallbelieve in good faith to be necessary, under the circumstances as provided in the Loan Documents) ▇▇▇▇ the absence of its own gross negligence or willful misconduct (such absence to be presumed unlessotherwise determined by a court of competent jurisdiction by a final and nonappealable judgment), (e)shall be deemed not to have knowledge of any Default unless and until written notice thereof (statingthat it is a “notice of default”) is given to the Administrative Agent by the Borrower or any Lender,84
and shall not be responsible for or have any duty to ascertain or inquire into (i) any statement,warranty or representation made in or in connection with any Loan Document, (ii) the contents of anycertificate, report or other document delivered thereunder or in connection therewith, (iii) theperformance or observance of any of the covenants, agreements or other terms or conditions set forthin any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability,effectiveness or genuineness of any Loan Document or any other agreement, instrument or document(including, for the avoidance of doubt, in connection with the Administrative Agent’s or eachArranger’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or any otherelectronic means that reproduces an image of an actual executed signature page), or (v) the satisfactionof any condition set forth in Article IV or elsewhere in any Loan Document, other than to confirmreceipt of items expressly required to be delivered to the Administrative Agent or satisfaction of anycondition that expressly refers to the matters described therein being acceptable or satisfactory to theAdministrative Agent.The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying,upon any notice, request, certificate, consent, statement, instrument, document or other writing(including any electronic message, Internet or intranet website posting or other distribution) believedby it in good faith to be genuine and to have been signed, sent or otherwise authenticated by the properPerson (whether or not such Person in fact meets the requirements set forth in the Loan Documents forbeing the signatory, sender or authenticator thereof). The Administrative Agent also shall be entitledto rely, and shall not incur any liability for relying, upon any statement made to it orally or bytelephone and believed by it in good faith to be made by the proper Person (whether or not suchPerson in fact meets the requirements set forth in the Loan Documents for being the signatory, senderor authenticator thereof), and may act upon any such statement prior to receipt of written confirmationthereof. In determining compliance with any condition hereunder to the making of a Loan that by itsterms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume thatsuch condition is satisfactory to such Lender unless the Administrative Agent shall have receivednotice to the contrary from such Lender prior to the making of such Loan. The Administrative Agentmay consult with legal counsel (who may be counsel for the Borrower), independent accountants andother experts selected by it with reasonable care, and shall not be liable for any action taken or nottaken by it in accordance with the advice of any such counsel, accountants or experts. Notwithstandinganything herein to the contrary, the Administrative Agent shall not have any liability arising from, or beresponsible for any loss, cost or expense suffered on account of, (i) any errors or omissions in the recordsmaintained by the Administrative Agent as contemplated by Section 9.04(b)(iv) or (ii) any determinationby the Administrative Agent that any Lender is a Defaulting Lender, or the effective date of such status, itbeing further understood and agreed that the Administrative Agent shall not have any obligation todetermine whether any Lender is a Defaulting Lender.The Administrative Agent may perform any of and all its duties and exercise its rights andpowers hereunder or under any other Loan Document by or through any one or more sub-agentsappointed by the Administrative Agent (other than a Disqualified Institution). The AdministrativeAgent and any such sub-agent may perform any of and all their duties and exercise their rights andpowers through their respective Related Parties. The exculpatory provisions of this Article shallapply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as the Administrative Agent. The AdministrativeAgent shall not be responsible for the negligence or misconduct of any of its sub-agents except to theextent that a court of competent jurisdiction determines in a final and nonappealable judgment thatthe Administrative Agent acted with gross negligence, bad faith or willful misconduct in the selectionof such sub-agents. 85
Subject to the terms of this paragraph, the Administrative Agent may resign at any time from itscapacity as such. In connection with such resignation, the Administrative Agent shall give notice of itsintent to resign to the Lenders and the Borrower. Upon receipt of any such notice of resignation, theRequired Lenders shall have the right, subject to the consent of the Borrower (not to be unreasonablywithheld, conditioned or delayed) so long as no Event of Default under clause (a), (b), (h) or (i) ofSection 7.01 shall have occurred and be continuing, to appoint a successor (other than a DisqualifiedInstitution). If no successor shall have been so appointed by the Required ▇▇▇▇▇▇▇ and shall haveaccepted such appointment within 30 days after the retiring Administrative Agent gives notice of ▇▇▇▇▇▇▇▇▇ to resign, then the retiring Administrative Agent may, on behalf of the Lenders, appoint, subject ▇▇▇▇▇ ▇▇▇▇▇▇▇▇’s prior written consent, a successor Administrative Agent, which shall be a bank with anoffice in New York, New York, or an Affiliate of any such bank. If the Person serving as theAdministrative Agent is a Defaulting Lender, the Required Lenders or the Borrower may, to the extentpermitted by applicable law, by notice in writing to the Borrower and such Person remove such Personas the Administrative Agent and, subject to the consent of the Borrower (not to be unreasonablywithheld, conditioned or delayed) so long as no Event of Default under clause (a), (b), (h) or (i) ofSection 7.01 shall have occurred and be continuing, appoint a successor. Upon the acceptance of itsappointment as the Administrative Agent hereunder by a successor, such successor shall succeed to andbecome vested with all the rights, powers, privileges and duties of the retiring or removedAdministrative Agent, and the retiring or removed Administrative Agent shall be discharged from itsduties and obligations hereunder and under the other Loan Documents. The fees payable by theBorrower to a successor Administrative Agent shall be the same as those payable to its predecessorunless otherwise agreed by the Borrower and such successor. Notwithstanding the foregoing, in theevent no successor Administrative Agent shall have been so appointed and shall have accepted suchappointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign,the retiring Administrative Agent may give notice of the effectiveness of its resignation to theLenders and the Borrower, whereupon, on the date of effectiveness of such resignation stated in suchnotice, (a) the retiring Administrative Agent shall be discharged from its duties and obligationshereunder and under the other Loan Documents, and (b) the Required Lenders shall succeed to andbecome vested with all the rights, powers, privileges and duties of the retiring Administrative Agent,provided that (i) all payments required to be made hereunder or under any other Loan Document tothe retiring Administrative Agent for the account of any Person other than the retiring AdministrativeAgent shall be made directly to such Person and (ii) all notices and other communications required orcontemplated to be given or made to the retiring Administrative Agent shall also directly be given ormade to each Lender. Following the effectiveness of the Administrative Agent’s resignation orremoval from its capacity as such, the provisions of this Article and Section 9.03, as well as anyexculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken byany of them while it was acting as the Administrative Agent.Each Lender expressly acknowledges that none of the Administrative Agent nor any Arranger hasmade any representation or warranty to it, and that no act by the Administrative Agent or any Arrangerhereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of theBorrower or any Affiliate thereof, shall be deemed to constitute any representation or warranty by theAdministrative Agent or the Arrangers to any Lender as to any matter, including whether theAdministrative Agent or the Arrangers have disclosed material information in their (or their RelatedParties’) possession. Each Lender represents to the Administrative Agent and the Arrangers that it has,independently and without reliance upon the Administrative Agent, the Arrangers, any other Lender orany of their Related Parties and based on such documents and information as it has deemed appropriate,made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations,property, financial and other condition and creditworthiness of the Borrower and its Subsidiaries, and all86
applicable bank or other regulatory laws relating to the transactions contemplated hereby, and made itsown decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lenderalso acknowledges that it will, independently and without reliance upon the Administrative Agent, theArrangers, any other Lender or any of their Related Parties and based on such documents and informationas it shall from time to time deem appropriate, continue to make its own credit analysis, appraisals anddecisions in taking or not taking action under or based upon this Agreement, any other Loan Document orany related agreement or any document furnished hereunder or thereunder, and to make suchinvestigations as it deems necessary to inform itself as to the business, prospects, operations, property,financial and other condition and creditworthiness of the ▇▇▇▇▇▇▇▇.▇▇ case of the pendency of any proceeding with respect to the Borrower under any United States(Federal or state) or foreign bankruptcy, insolvency, receivership, winding-up or similar law now orhereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall thenbe due and payable as herein expressed or by declaration or otherwise and irrespective of whether theAdministrative Agent shall have made any demand on the Borrower) shall be entitled and empowered(but not obligated) by intervention in such proceeding or otherwise:(a) to file and prove a claim for the whole amount of the principal and interest owingand unpaid in respect of the Loans and all other Obligations that are owing and unpaid by theBorrower and to file such other documents as may be necessary or advisable in order to have theclaims of the Lenders and the Administrative Agent (including any claim under Sections 2.12,2.13, 2.14 and 9.03) allowed in such judicial proceeding; and(b) to collect and receive any monies or other property payable or deliverable onany such claims and to distribute the same;and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any suchproceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and,in the event that the Administrative Agent shall consent to the making of such payments directly to theLenders, to pay to the Administrative Agent any amount due to it, in its capacity as the AdministrativeAgent, under the Loan Documents (including under Section 9.03).Each Lender (x) represents and warrants, as of the date such Person became a Lender partyhereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date suchPerson ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangersand their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower,that at least one of the following is and will be true: (i) such Lender is not using “plan assets” (withinthe meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more BenefitPlans in connection with the Loans or the Commitments, (ii) the transaction exemption set forth in oneor more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independentqualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involvinginsurance company general accounts), PTE 90-1 (a class exemption for certain transactions involvinginsurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactionsinvolving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactionsdetermined by in-house asset managers), is applicable, and the conditions of such exemption have beensatisfied, with respect to such ▇▇▇▇▇▇’s entrance into, participation in, administration of andperformance of the Loans, the Commitments and this Agreement, (iii) (A) such Lender is an investmentfund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of suchLender to enter into, participate in, administer and perform the Loans, the Commitments and thisAgreement, (C) the entrance into, participation in, administration of and performance of the Loans, the87
Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I ofPTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I ofPTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of andperformance of the Loans, the Commitments and this Agreement or (iv) such other representation,warranty and covenant as may be agreed in writing between the Administrative Agent, in its solediscretion, and such ▇▇▇▇▇▇.▇▇ addition, unless clause (i) of the immediately preceding paragraph is true with respect to aLender or such Lender has provided another representation, warranty and covenant as provided inclause (iv) of the immediately preceding paragraph, such Lender further (a) represents and warrants,as of the date such Person became a Lender party hereto, to and (b) covenants, from the date suchPerson became a Lender party hereto to the date such Person ceases being a Lender party hereto, forthe benefit of the Administrative Agent, the Arrangers and their Affiliates, and not, for the avoidanceof doubt, to or for the benefit of the Borrower, that: none of the Administrative Agent, the Arrangersor any of their Affiliates is a fiduciary with respect to the assets of such Lender (including inconnection with the reservation or exercise of any rights by the Administrative Agent under thisAgreement, any Loan Document or any documents related hereto or thereto).The Administrative Agent and the Arrangers hereby inform the Lenders that each such Person isnot undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, inconnection with the transactions contemplated hereby, and that such Person has a financial interest in theTransactions in that such Person or an Affiliate thereof (a) may receive interest or other payments withrespect to the Loans, the Commitments and this Agreement, (b) may recognize a gain if it extended theLoans or the Commitments for an amount less than the amount being paid for an interest in the Loans orthe Commitments by such Lender or (c) may receive fees or other payments in connection with theTransactions, the Loan Documents or otherwise, including structuring fees, commitment fees,arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrativeagent fees, utilization fees, minimum usage fees, fronting fees, deal-away or alternate transaction fees,amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other earlytermination fees or fees similar to the ▇▇▇▇▇▇▇▇▇.▇▇ the extent required by any applicable Law, the Administrative Agent may withhold from anypayment to any Lender an amount equivalent to any applicable withholding Tax. If the U.S. InternalRevenue Service or any other Governmental Authority asserts a claim that the Administrative Agent didnot properly withhold Tax from amounts paid to or for the account of any Lender for any reason,including because the appropriate form was not delivered or was not properly executed or because suchLender failed to notify the Administrative Agent of a change in circumstance which rendered theexemption from, or reduction of, withholding Tax ineffective, or if the Administrative Agent reasonablydetermines that a payment was made to a Lender pursuant to this Agreement without deduction ofapplicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agentfully, within 10 days after written demand therefor, for all amounts paid, directly or indirectly, by theAdministrative Agent as Tax or otherwise, together with all expenses (including legal expenses, allocatedinternal costs and out-of-pocket expenses) incurred, whether or not such Tax was correctly or legallyimposed or asserted. A certificate as to the amount of such payment or liability delivered to any Lenderby the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizesthe Administrative Agent to set off and apply any amounts at any time owing to such Lender under thisAgreement or any other Loan Document or from any other sources against any amounts due theAdministrative Agent under this paragraph. The agreements in this paragraph shall survive theresignation and/or replacement of the Administrative Agent, any assignment of rights by, or thereplacement of, a Lender, the consummation of the transactions contemplated hereby, the repayment of88
the Loans and the expiration or termination of the Commitments or the termination of this Agreement orany provision hereof.Notwithstanding anything herein to the contrary, the Arrangers shall not have any duties orobligations under this Agreement or any other Loan Document (except in their capacities, as applicable,as an Administrative Agent or a Lender), but all such Persons shall have the benefit of the indemnitiesand exculpatory provisions provided for hereunder or thereunder.The Lenders irrevocably authorize and direct the release of any Guarantor from its obligationsunder its Subsidiary Guaranty automatically as set forth in Section 5.10(c) and authorize and direct theAdministrative Agent to, at the Borrower’s expense, execute and deliver to the applicable Guarantor anydocuments or instruments as such Guarantor may reasonably request to evidence the release of suchSubsidiary Guaranty.Each Lender represents and warrants that (i) the Loan Documents set forth the terms of acommercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and inproviding other facilities set forth herein as may be applicable to such Lender, in each case in the ordinarycourse of business, and not for the purpose of purchasing, acquiring or holding any other type of financialinstrument (and each Lender agrees not to assert a claim in contravention of the foregoing), (iii) it has,independently and without reliance upon the Administrative Agent, the Arrangers, any SyndicationAgent, any Documentation Agent or any other Lender, or any of the Related Parties of any of theforegoing, and based on such documents and information as it has deemed appropriate, made its owncredit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loanshereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercialloans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, orthe Person exercising discretion in making its decision to make, acquire and/or hold such commercialloans or to provide such other facilities, is experienced in making, acquiring or holding such commercialloans or providing such other facilities. Each Lender also acknowledges that it will, independently andwithout reliance upon the Administrative Agent, the Arrangers, any Syndication Agent, anyDocumentation Agent or any other Lender, or any of the Related Parties of any of the foregoing, andbased on such documents and information (which may contain material, non-public information withinthe meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shallfrom time to time deem appropriate, continue to make its own decisions in taking or not taking actionunder or based upon this Agreement, any other Loan Document or any related agreement or anydocument furnished hereunder or thereunder.Each Lender, by delivering its signature page to this Agreement on the Effective Date, ordelivering its signature page to an Assignment and Assumption or any other Loan Document pursuant towhich it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, andconsented to and approved, each Loan Document and each other document required to be delivered to, orbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that theAdministrative Agent has determined in its reasonable discretion that any funds received by such Lenderfrom the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repaymentof principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneouslytransmitted to such Lender (whether or not known to such Lender), and demands the return of suchPayment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Daythereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as towhich such a demand was made in same day funds, together with interest thereon in respect of each dayfrom and including the date such Payment (or portion thereof) was received by such Lender to the date89
such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a ratedetermined by the Administrative Agent in accordance with banking industry rules on interbankcompensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lendershall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense orright of set-off or recoupment with respect to any demand, claim or counterclaim by the AdministrativeAgent for the return of any Payments received, including without limitation any defense based on“discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender underthis Article VIII shall be conclusive, absent manifest error.Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent orany of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in anotice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment(a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be onnotice, in each such case, that an error has been made with respect to such Payment. Each Lender agreesthat, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have beensent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upondemand from the Administrative Agent, it shall promptly, but in no event later than one Business Daythereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as towhich such a demand was made in same day funds, together with interest thereon in respect of each dayfrom and including the date such Payment (or portion thereof) was received by such Lender to the datesuch amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a ratedetermined by the Administrative Agent in accordance with banking industry rules on interbankcompensation from time to time in effect.The Borrower and each other Loan Party hereby agree that (x) in the event an erroneous Payment(or portion thereof) are not recovered from any Lender that has received such Payment (or portionthereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender withrespect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwisesatisfy any Obligations owed by the Borrower or any other Loan Party.The three immediately preceding paragraphs shall not be interpreted to increase (or accelerate thedue date for), or have the effect of increasing (or accelerating the due date for), the Obligations of theBorrowers relative to the amount (and/or timing for payment) of the Obligations that would have beenpayable had such Payment not been made by the Administrative Agent; provided, further, that, for theavoidance of doubt, the three immediately preceding paragraphs shall not apply to the extent any suchPayment is, and solely with respect to the amount of such Payment that is, comprised of funds receivedby the Administrative Agent from the Borrowers for the purpose of making such Payment.Each party’s obligations under this Article VIII shall survive the resignation or replacement of theAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, thetermination of the Commitments or the repayment, satisfaction or discharge of all Obligations under anyLoan Document. ARTICLE IXMiscellaneousSECTION 9.01. Notices. (a) Except in the case of notices and other communicationsexpressly permitted to be given by telephone and subject to paragraph (b) of this Section, all notices and90
other communications provided for herein shall be in writing and shall be delivered by hand or overnightcourier service, mailed by certified or registered mail or sent by fax, as follows:(i) if to the Borrower or the Administrative Agent to the address (or faxnumber) or electronic mail address specified for such Person on Schedule 9.01; and(ii) if to any Lender, to it at its address (or fax number) set forth in itsAdministrative Questionnaire.Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shallbe deemed to have been given when received; notices sent by fax shall be deemed to have been givenwhen sent (but if not given during normal business hours for the recipient, shall be deemed to have beengiven at the opening of business on the next business day for the recipient); and notices delivered throughelectronic communications to the extent provided in paragraph (b) of this Section shall be effective asprovided in such paragraph.(b) Notices and other communications to the Lenders hereunder may be delivered or furnished byelectronic communications (including email and Internet and intranet websites) pursuant to proceduresapproved by the Administrative Agent; provided that the foregoing shall not apply to notices underArticle II to any Lender if such ▇▇▇▇▇▇ has notified the Administrative Agent that it is incapable ofreceiving notices under such Article by electronic communication. Any notices or other communicationsto the Administrative Agent or the Borrower may be delivered or furnished by electronic communicationspursuant to procedures approved in advance by the recipient thereof; provided that approval of suchprocedures may be limited or rescinded by such Person by written notice to each other such Person.Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intendedrecipient (such as by the “return receipt requested” function, as available, return e-mail or other writtenacknowledgment); provided that if such notice or other communication is not sent during the normalbusiness hours of the recipient, such notice or communication shall be deemed to have been sent at theopening of business on the next business day for the recipient; and (ii) notices or communicationsposted to an Internet or intranet website shall be deemed received upon the deemed receipt by theintended recipient at its e-mail address as described in the foregoing clause (i) of notification that suchnotice or communication is available and identifying the website address therefor.(c) Any party hereto may change its address, fax number or email address for notices and othercommunications hereunder by notice to the other parties hereto.(d) The Administrative Agent may, but shall not be obligated to, make any Communication byposting such Communication on Debt Domain, IntraLinks, SyndTrak or a similar electronic transmissionsystem (the “Platform”). The Platform is provided “as is” and “as available”. None of the AdministrativeAgent nor any of its Related Parties warrants, or shall be deemed to warrant, the adequacy of thePlatform, and the Administrative Agent expressly disclaims liability for errors or omissions in theCommunications. No warranty of any kind, express, implied or statutory, including any warranty ofmerchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom fromviruses or other code defects, is made, or shall be deemed to be made, by the Administrative Agent or anyof its Related Parties in connection with the Communications or the Platform. In no event shall theAdministrative Agent, any of its Related Parties, the Borrower or any Lender have any liability to anyother Person party hereto or any other Person for damages of any kind, including direct or indirect,special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise),91
arising out of the Borrower’s or the Administrative Agent’s transmission of Communications through thePlatform.SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative Agentor any Lender in exercising any right or power hereunder or under any other Loan Document shalloperate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or anyabandonment or discontinuance of steps to enforce such a right or power, preclude any other or furtherexercise thereof or the exercise of any other right or power. The rights and remedies of the AdministrativeAgent and the Lenders hereunder and under the other Loan Documents are cumulative and are notexclusive of any rights or remedies that they would otherwise have. No waiver of any provision of anyLoan Document or consent to any departure by the Borrower therefrom shall in any event be effectiveunless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shallbe effective only in the specific instance and for the specific purpose for which given.(b) Subject to Section 2.11(b), (c) and (d) and Section 9.02(c) below, and except for those actionsexpressly permitted to be taken by the Administrative Agent, none of this Agreement, any other LoanDocument or any provision hereof or thereof may be waived, amended or modified except, in the case ofthis Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower, theAdministrative Agent and the Required Lenders and, in the case of any other Loan Document, pursuant ▇▇▇▇ agreement or agreements in writing entered into by the Administrative Agent and the Borrower, ineach case with the consent of the Required Lenders; provided that no such agreement shall (i) increase theCommitment of any Lender without the written consent of such Lender (but not the Required Lenders) (itbeing understood that the waiver of any condition precedent, the wavier of any obligation of the Borrowerto pay interest at the default rate or the waiver of any Default, Event of Default or mandatory prepaymentof the Loans shall not constitute such an extensions or increase), (ii) reduce the principal amount of anyLoan or reduce the rate of interest thereon or reduce any fees payable hereunder, without the writtenconsent of each Lender directly and adversely affected thereby (but not the Required Lenders) (it beingunderstood that the waiver of any condition precedent, the wavier of any obligation of the Borrower topay interest at the default rate or the waiver of any Default, Event of Default or mandatory prepayment ofthe Loans shall not constitute such an extensions or increase), (iii) postpone the scheduled maturity dateof any Loan, or any date for the payment of any principal (other than voluntary prepayments), interest orfees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone thescheduled date of expiration of any Commitment, without the written consent of each Lender directly andadversely affected thereby (but not the Required Lenders) (subject to an extension of the Maturity Date,and/or decrease of any scheduled amortization, in respect of the Loans of any Lender, in each case, inaccordance with Section 2.18) (it being understood that the waiver of any condition precedent, the wavierof any obligation of the Borrower to pay interest at the default rate or the waiver of any Default, Event ofDefault or mandatory prepayment of the Loans shall not constitute such an extensions or increase),(iv) change Section 2.08, 2.15(b) or 2.15(c) in a manner that would alter the pro rata sharing of paymentsrequired thereby without the written consent of each Lender directly and adversely affected thereby (butnot the Required Lenders), (v) change any of the provisions of this paragraph or reduce the percentage setforth in (x) the definition of the term “Required Lenders” or (y) any other provision of any LoanDocument specifying the number or percentage of Lenders required to waive, amend or modify any rightsthereunder or make any determination or grant any consent thereunder, without the written consent ofeach Lender directly and adversely affected thereby (but not the Required Lenders); provided that, withthe consent of the Required Lenders, the provisions of this paragraph and the definition of the term“Required Lenders” may be amended to include references to any new class of loans created under thisAgreement (or to lenders extending such loans) or (vi) release all or substantially all of the Guarantorsfrom their obligations under the Loan Documents without the written consent of each Lender directly andadversely affected thereby (but not the Required Lenders) (except as otherwise provided for in Section5.01(c) or otherwise in the Loan Documents); provided further that no such agreement shall amend,92
modify, extend or otherwise affect the rights or obligations of the Administrative Agent in an adversemanner in any material respect without the written consent of the Administrative Agent.(c) Notwithstanding anything to the contrary in paragraph (b) of this Section:(i) (A) any provision of this Agreement or any other Loan Document maybe amended by an agreement in writing entered into by the Borrower and theAdministrative Agent to cure any ambiguity, mistake, omission, defect or inconsistencyso long as, in each case, the Lenders shall have received at least five Business Days’ priorwritten notice thereof and the Administrative Agent shall not have received, within fiveBusiness Days of the date of such notice to the Lenders, a written notice from theRequired Lenders stating that the Required Lenders object to such amendment and (B)the Administrative Agent and the Borrower shall be permitted to enter into any newagreement or instrument, to be consistent with this Agreement and the other LoanDocuments or as required by local law to give effect to any guaranty, so that the guarantycomplies with applicable Law, and in each case, such amendments, documents andagreements shall become effective without any further action or consent of any otherparty to any Loan Document;(ii) no consent with respect to any amendment, waiver or other modificationof this Agreement or any other Loan Document shall be required of any DefaultingLender, except with respect to any amendment, waiver or other modification referred toin clauses (i), (ii), (iii) or (iv) of the first proviso of paragraph (b) of this Section and thenonly in the event such Defaulting Lender shall be directly and adversely affected by suchamendment, waiver or other modification;(iii) if, in connection with any proposed amendment, waiver or consentrequiring the consent of “each Lender”, “each Lender affected thereby”, or such similarphrase, the consent of the Required Lenders is obtained, but the consent of othernecessary Lenders is not obtained (any such Lender whose consent is necessary but notobtained being referred to herein as a “Non-Consenting Lender”), then the Borrower mayelect to replace a Non-Consenting Lender as a Lender party to this Agreement; providedthat, concurrently with such replacement, the Borrower shall pay to such Non-ConsentingLender in same day funds on the day of such replacement (1) all interest, fees and otheramounts then accrued but unpaid to such Non-Consenting Lender by the Borrowerhereunder to and including the date of termination and (2) an amount, if any, equal to thepayment which would have been due to such Lender on the day of such replacementunder Section 2.13 (if any) had the Loans of such Non-Consenting Lender been prepaidon such date rather than sold to the replacement Lender. Each Lender hereby grants tothe Administrative Agent an irrevocable power of attorney (which power of attorney iscoupled with an interest) to execute and deliver, on behalf of such Lender as assignor,any Assignment and Acceptance necessary to effectuate any assignment of such ▇▇▇▇▇▇’▇▇▇▇▇▇▇▇▇▇ hereunder in respect of the circumstances contemplated by thisSection 9.02(c)(iii);(iv) this Agreement and the other Loan Documents may be amended in themanner provided in Sections 2.11 and 2.18; and(v) an amendment to this Agreement contemplated by the last sentence ofthe definition of the term “Applicable Rate” may be made pursuant to an agreement or93
agreements in writing entered into by the Borrower, the Administrative Agent and theRequired Lenders.(d) The Administrative Agent may, but shall have no obligation to, with the concurrence of anyLender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment,waiver or other modification effected in accordance with this Section shall be binding upon each Personthat is at the time thereof a Lender and each Person that subsequently becomes a Lender.(e) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) withthe written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one ormore additional credit facilities to this Agreement, to permit the extensions of credit from time to timeoutstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefitsof this Agreement and the other Loan Documents with the Loans and the accrued interest and fees inrespect thereof and to include appropriately the Lenders holding such credit facilities in any determinationof the Required Lenders and (ii) to change, modify or alter Section 2.15 or any other provision hereofrelating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of theamendments (or amendments and restatements) enumerated in clause (e)(i) above.SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) allreasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangersand their Affiliates (but limited to, in the case of legal fees, the reasonable and documented fees, chargesand disbursements of a single external U.S. counsel, and, if reasonably necessary, a single local counsel ineach other relevant material jurisdiction (which may be a single local counsel acting in multiplejurisdictions), in each case, for the Administrative Agent, any Arranger and their Affiliates taken as awhole, in connection with the structuring, arrangement and syndication of the credit facilities provided forherein, including the preparation, execution and delivery of this Agreement, the other Loan Documents orany amendments, modifications or waivers of the provisions hereof or thereof (whether or not thetransactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable anddocumented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and the Lenders(but limited to, in the case of legal fees, to the fees, charges and disbursements of one external counsel inconnection with the enforcement or protection of its rights in connection with the Loan Documents,including its rights under this Section, or in connection with the Loans made hereunder, including duringthe continuance of an Event of Default all such reasonable out-of-pocket expenses incurred during anyworkout, restructuring or negotiations in respect of such Loans (but limited to a single U.S. counsel, ifreasonably necessary, and, if reasonably necessary, a single local counsel in each other relevant materialjurisdiction (which may be a single local counsel acting in multiple jurisdictions), in each case, for theAdministrative Agent, the Arrangers and the Lenders, taken as a whole and, in the case of an actual orperceived conflict of interest, where the party affected by such conflict informs the Borrower of suchconflict and thereafter retains its own counsel, of another external firm of U.S. counsel, if reasonablynecessary, and, if reasonably necessary, one local counsel in each other relevant material jurisdiction(which may include a single local counsel acting in multiple jurisdictions) for all such affected Personstaken as a whole).(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), theArrangers, the Syndication Agents, the Documentation Agents, each Lender and each Related Party ofany of the foregoing (each such Person being called an “Indemnitee”) against, and hold each Indemniteeharmless from, any and all Liabilities and related reasonable and documented out-of-pocket expenses,including the fees, charges and disbursements of any counsel for any Indemnitee (but limited to a singleU.S. counsel, if reasonably necessary, and, if reasonably necessary, a single local counsel in each otherrelevant material jurisdiction (which may be a single local counsel acting in multiple jurisdictions), ineach case, for the Indemnitees, taken as a whole and, in the case of an actual or perceived conflict of94
interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict andthereafter retains its own counsel, of another firm of U.S. counsel, if reasonably necessary, and, ifreasonably necessary, one local counsel in each other relevant material jurisdiction (which may include asingle local counsel acting in multiple jurisdictions) for each group of similarly affected Indemnitees(taken as a whole)), incurred by or asserted against any Indemnitee arising out of, in connection with, oras a result of (i) the structuring, arrangement and syndication of the credit facilities provided for herein,the preparation, execution, delivery and administration of this Agreement, the other Loan Documents, theperformance by the parties to this Agreement or the other Loan Documents of their obligations thereunderor the consummation of the Transactions, (ii) any Loan or the use of the proceeds therefrom or proposeduse of proceeds, (iii) any actual or alleged presence or Release of Hazardous Materials on or from anyproperty currently or formerly owned or operated by the Borrower or any Subsidiary (or Person that wasformerly a Subsidiary) of any of them, or any other Environmental Liability related in any way to theBorrower or any Subsidiary (or Person that was formerly a Subsidiary) of any of them, or (iv) any actualor prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whetherbased on contract, tort or any other theory and whether initiated against or by any party to this Agreementor any other Loan Document, any Affiliate of any of the foregoing or any third party (and regardless ofwhether any Indemnitee is a party thereto); provided that such indemnity shall not, as to any Indemnitee,be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses (A)are determined by a court of competent jurisdiction by final and nonappealable judgment to have resultedfrom (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its RelatedIndemnitee Parties or (2) a material breach of the obligations of such Indemnitee or any of its RelatedIndemnitee Parties under this Agreement or any other Loan Document or (B) arise from any disputeamong the Indemnitees or any of their Related Indemnitee Parties, other than any claim, litigation,investigation or proceeding against the Administrative Agent, the Arrangers, Syndication Agents orDocumentation Agents or any other titled person in its capacity or in fulfilling its role as such and otherthan any claim, litigation, investigation or proceeding arising out of any act or omission on the part of theBorrower or any of its Affiliates. Each Indemnitee shall be obligated to refund and return promptly anyand all amounts actually paid by the Borrower to such Indemnitee under this paragraph for any Liabilitiesor expenses to the extent such Indemnitee is subsequently determined, by a court of competentjurisdiction by final and nonappealable judgment, to not be entitled to payment of such amounts inaccordance with the terms of this paragraph. This paragraph shall not apply with respect to Taxes otherthan any Taxes that represent losses, claims, damages, etc., arising from any non-Tax claim.(c) To the extent that the Borrower fails to pay any amount required under paragraph (a) or (b) of thisSection to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of theforegoing (and without limiting its obligation to do so), each Lender severally agrees to pay to theAdministrative Agent (or any such sub-agent) or such Related Party, as the case may be, such ▇▇▇▇▇▇’▇▇▇▇ rata share (determined as of the time that the applicable unreimbursed expense or indemnity paymentis sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,damage, liability or related expense, as the case may be, was incurred by or asserted against theAdministrative Agent (or such sub-agent) in its capacity as such, or against any Related Party of any ofthe foregoing acting for the Administrative Agent (or any such sub-agent). For purposes of this Section, aLender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount ofthe Loans at the time outstanding or in effect (or most recently outstanding or in effect, if none of theforegoing shall be outstanding or in effect at such time).(d) To the fullest extent permitted by applicable law, the parties hereto shall not assert, or permit anyof their respective Affiliates or Related Parties to assert, and the parties hereto hereby waives, any claimagainst the other parties hereto and each Related Party of any of the foregoing (each such Person beingcalled a “Related Person”) (i) for any damages arising from the use by others of information or othermaterials obtained through telecommunications, electronic or other information transmission systems95
(including the Internet) other than for direct, actual damages resulting from the gross negligence, badfaith, material breach or willful misconduct of such Related Person as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (ii) on any theory of liability, for special,indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, inconnection with, or as a result of this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.(e) To the fullest extent permitted by applicable law, the Administrative Agent, the Arranger and theLenders shall not assert, or permit any of their respective Affiliates or Related Parties to assert, and eachof them hereby waives, any claim against the Borrower, on any theory of liability, for special, indirect,consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connectionwith, or as a result of this Agreement, any other Loan Document or any agreement or instrumentcontemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof; provided,that nothing in this paragraph (e) shall limit the Borrower’s indemnity and reimbursement obligations setforth in this Section or separately agreed.(f) In addition, the indemnity set forth herein shall not, as to any Indemnitee, be available withrespect to any settlements effected without the Borrower’s prior written consent (which consent shall notbe unreasonably withheld or delayed), but if settled with the Borrower’s consent, the Borrower agrees toindemnify and hold harmless each Indemnitee in the manner set forth above (for the avoidance of doubt,it being understood that if there is a final judgment in any such proceeding, the indemnity set forth aboveshall apply (subject to the exceptions thereto set forth above)). Each Indemnitee shall take all reasonablesteps to mitigate any losses, claims, damages, liabilities and expenses in connection with the matterscovered in this Section 9.03.(g) All amounts due under this Section shall be payable promptly after written demand therefor.SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and their respective successors and assignspermitted hereby, except that (i) other than as expressly provided in Section 6.04(a)(ii)(B), the Borrowermay not assign or otherwise transfer any of its rights or obligations hereunder without the prior writtenconsent of the Administrative Agent and each Lender (and any attempted assignment or transfer by theBorrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transferits rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, theirrespective successors and assigns permitted hereby, sub-agents of the Administrative Agent, Participants(to the extent provided in paragraph (c) of this Section), the Arranger and, to the extent expresslycontemplated hereby, the Related Parties of the foregoing) any legal or equitable right, remedy or claimunder or by reason of this Agreement.(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one ormore Eligible Assignees all or a portion of its rights and obligations under this Agreement (including ▇▇▇▇▇ a portion of its Commitments and the Loans at the time owing to it) with the prior written consent(such consent not to be unreasonably withheld, delayed or conditioned) of:(A) the Borrower; provided that no consent of the Borrower shall be required (x) ▇▇▇▇▇ assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (y) if an Event ofDefault under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing;provided further, in each case, that the Borrower shall be deemed to have consented to any96
assignment unless it shall object thereto by written notice to the Administrative Agent within 10Business Days after having received notice thereof; and(B) the Administrative Agent; provided that no consent of the Administrative Agentshall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.(ii) Assignments shall be subject to the following additional conditions:(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or anApproved Fund or an assignment of the entire remaining amount of the assigning ▇▇▇▇▇▇’▇▇▇▇▇▇▇▇▇▇▇ or Loans, the amount of the Commitment or Loans of the assigning Lender subjectto each such assignment (determined as of the date the Assignment and Assumption with respectto such assignment is delivered to the Administrative Agent) shall not be less than $2,000,000unless each of the Borrower and the Administrative Agent otherwise consents; provided that (1)no such consent of the Borrower shall be required if an Event of Default under clause (a), (b), (h)or (i) of Section 7.01 shall have occurred and be continuing and (2) the Borrower shall be deemedto have consented to any assignment unless it shall object thereto by written notice to theAdministrative Agent within 10 Business Days after having received notice thereof;(B) each partial assignment shall be made as an assignment of a proportionate partof all the assigning Lender’s rights and obligations under this Agreement;(C) the parties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Assumption (or an agreement incorporating by reference a form ofAssignment and Assumption posted on the Platform), together with a processing and recordationfee of $3,500, provided that only one such processing and recordation fee shall be payable in theevent of simultaneous assignments from any Lender or its Approved Funds to one or more otherApproved Funds of such Lender; and(D) the assignee, if it shall not already be a Lender, shall deliver to theAdministrative Agent an Administrative Questionnaire in which the assignee designates one ormore credit contacts to whom all syndicate-level information (which may contain MNPI) will bemade available and who may receive such information in accordance with the assignee’scompliance procedures and applicable law, including United States (Federal or State) and foreignsecurities laws.(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of thisSection, from and after the effective date specified in each Assignment and Assumption (or anagreement incorporating by reference a form of Assignment and Assumption posted on the Platform)the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by suchAssignment and Assumption, have the rights and obligations of a Lender under this Agreement, andthe assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment andAssumption, be released from its obligations under this Agreement (and, in the case of an Assignmentand Assumption covering all of the assigning Lender’s rights and obligations under this Agreement,such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections2.12, 2.13, 2.14, 9.03 and 9.17); provided, that except to the extent otherwise expressly agreed by theaffected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim ofany party hereunder arising from such ▇▇▇▇▇▇ having been a Defaulting Lender. Any assignment ortransfer by a Lender of rights or obligations under this Agreement that does not comply with this Section97
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rightsand obligations in accordance with Section 9.04(c).(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent ofthe Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption withrespect to the Term Loan Facility delivered to it and records of the names and addresses of theLenders, and the Commitments of, and principal amount (and related interest) of the Loans owing to,each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in theRegister shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and theLenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof ▇▇▇ ▇▇▇▇▇▇ hereunder for all purposes of this Agreement, notwithstanding any notice to the contrary. TheRegister shall be available for inspection by the Borrower, the Administrative Agent and, as to entriespertaining to it, any Lender, at any reasonable time and from time to time upon reasonable priornotice. (v) Upon receipt by the Administrative Agent of an Assignment and Assumption (or anagreement incorporating by reference a form of Assignment and Assumption posted on the Platform)executed by an assigning Lender and an assignee, the assignee’s completed AdministrativeQuestionnaire (unless the assignee shall already be a Lender hereunder) and the processing andrecordation fee referred to in this Section, the Administrative Agent shall accept such Assignment andAssumption and record the information contained therein in the Register; provided that theAdministrative Agent shall not be required to accept such Assignment and Assumption or so recordthe information contained therein if the Administrative Agent reasonably believes that suchAssignment and Assumption lacks any written consent required by this Section or is otherwise not inproper form, it being acknowledged that the Administrative Agent shall have no duty or obligation(and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such writtenconsent or with respect to the form of (or any defect in) such Assignment and Assumption, any suchduty and obligation being solely with the assigning Lender and the assignee. No assignment shall beeffective for purposes of this Agreement unless it has been recorded in the Register as provided in thisparagraph, and following such recording, unless otherwise determined by the Administrative Agent(such determination to be made in the sole discretion of the Administrative Agent, whichdetermination may be conditioned on the consent of the assigning Lender and the assignee), shall beeffective notwithstanding any defect in the Assignment and Assumption relating thereto. Eachassigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption,shall be deemed to have represented to the Administrative Agent that all written consents required bythis Section with respect thereto (other than the consent of the Administrative Agent) have beenobtained and that such Assignment and Assumption is otherwise duly completed and in proper form,and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed tohave represented to the assigning Lender and the Administrative Agent that such assignee is anEligible Assignee.(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sellparticipations to one or more Eligible Assignees (“Participants”) in all or a portion of such Lender’s rightsand/or obligations under this Agreement (including all or a portion of its Commitments and Loans);provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) suchLender shall remain solely responsible to the other parties hereto for the performance of such obligationsand (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely anddirectly with such Lender in connection with such ▇▇▇▇▇▇’s rights and/or obligations under thisAgreement. Any agreement or instrument pursuant to which a Lender sells such a participation shallprovide that such Lender shall retain the sole right to enforce this Agreement and to approve anyamendment, modification or waiver of any provision of this Agreement or any other Loan Document;98
provided that such agreement or instrument may provide that such Lender will not, without the consent ofthe Participant, agree to any amendment, modification or waiver described in the first proviso to Section9.02(b) that affects such Participant or requires the approval of all the Lenders. The Borrower agrees thateach Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 (subject to therequirements and limitations therein, including the requirements under Section 2.14(f) (it beingunderstood that the documentation required under Section 2.14(f) shall be delivered solely to theparticipating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignmentpursuant to paragraph (b) of this Section; provided that such Participant (x) agrees to be subject to theprovisions of Sections 2.15 and 2.16 as if it were an assignee under paragraph (b) of this Section and (y)shall not be entitled to receive any greater payment under Section 2.12 or 2.14 with respect to anyparticipation than its participating Lender would have been entitled to receive, except to the extent suchentitlement to receive a greater payment results from a Change in Law that occurs after the Participantacquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’srequest and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisionsof Section 2.16(b) with respect to any Participant. To the extent permitted by law, each Participant alsoshall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participantshall be subject to Section 2.15(c) as though it were a Lender.(ii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain records of the name and address of each Participant and theprincipal amounts (and related interest) of each Participant’s interest in the Loans or other obligationsunder this Agreement or any other Loan Document (the “Participant Register”); provided that no Lendershall have any obligation to disclose all or any portion of the Participant Register (including the identityof any Participant or any information relating to a Participant’s interest in any Commitments, Loans orother rights and/or obligations under this Agreement or any other Loan Document) to any Person exceptto the extent that such disclosure is necessary to establish that any such Commitment, Loan or otherobligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shalltreat each Person whose name is recorded in the Participant Register as the owner of such participationfor all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance ofdoubt, the Administrative Agent (in its capacity as the Administrative Agent) shall not have anyresponsibility for maintaining a Participant Register.(d) Any Lender may at any time pledge or grant a security interest in all or any portion of its rightsunder this Agreement to secure obligations of such Lender, including any pledge or grant to secureobligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any suchpledge or grant of a security interest; provided that no such pledge or grant of a security interest shallrelease a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for suchLender as a party hereto.(e) Disqualified Institutions.(i) Notwithstanding anything to the contrary herein, no assignment orparticipation shall be made to any Person that was a Disqualified Institution as of the date(the “Trade Date”) on which the assigning Lender entered into a binding agreement tosell and assign or grant a participation in all or a portion of its rights and obligationsunder this Agreement to such Person (unless the Borrower has consented to suchassignment or participation in writing in its sole and absolute discretion, in which casesuch Person will not be considered a Disqualified Institution for the purpose of suchassignment or participation). For the avoidance of doubt, with respect to any assignee orparticipant that becomes a Disqualified Institution after the applicable Trade Date99
(including as a result of the delivery of a written supplement to the list of “DisqualifiedInstitutions” referred to in the definition of “Disqualified Institution”), (x) such assigneeor participant shall not retroactively be disqualified from becoming a Lender orparticipant and (y) the execution by the Borrower of an Assignment and Acceptance withrespect to such assignee will not by itself result in such assignee no longer beingconsidered a Disqualified Institution. Any assignment or participation in violation of thisclause (e)(i) shall not be void, but the other provisions of this clause (e) shall apply.(ii) If any assignment or participation is made to any Disqualified Institutionwithout the Borrower’s prior written consent in violation of clause (i) above, or if anyPerson becomes a Disqualified Institution after the applicable Trade Date, the Borrowermay, at its sole expense and effort, upon notice to the applicable Disqualified Institutionand the Administrative Agent, require such Disqualified Institution to assign, withoutrecourse (in accordance with and subject to the restrictions contained in this Section9.04), all of its interest, rights and obligations under this Agreement to one or morePersons (other than a Disqualified Institution) at the lesser of (x) the principal amountthereof and (y) the amount that such Disqualified Institution paid to acquire suchinterests, rights and obligations in each case plus accrued interest, accrued fees and allother amounts (other than principal amounts) payable to it hereunder.(iii) Notwithstanding anything to the contrary contained in this Agreement,Disqualified Institutions (A) will not have the right to (x) receive information, reports orother materials provided to Lenders by the Borrower, the Administrative Agent or anyother Lender, (y) attend or participate in meetings attended by the Lenders (or any ofthem) and the Administrative Agent, or (z) access any electronic site established for theLenders or confidential communications from counsel to or financial advisors of theAdministrative Agent or the Lenders, (B) for purposes of any consent to any amendment,waiver or modification of, or any action under, and for the purpose of any direction to theAdministrative Agent or any Lender to undertake any action (or refrain from taking anyaction) under this Agreement or any other Loan Document, each Disqualified Institutionwill be deemed to have consented in the same proportion as the Lenders that are notDisqualified Institutions consented to such matter, and (C) for purposes of voting on anyplan of reorganization or plan of liquidation pursuant to the Bankruptcy Code or anyDebtor Relief Laws (a “Bankruptcy Plan”), each Disqualified Institution party heretohereby agrees (1) not to vote on such Bankruptcy Plan, (2) if such Disqualified Institutiondoes vote on such Bankruptcy Plan notwithstanding the restriction in the foregoing clause(1), such vote will be deemed not to be in good faith and shall be “designated” pursuantto Section 1126(e) of the Bankruptcy Code (or any similar provision in any other DebtorRelief Laws), and such vote shall not be counted in determining whether the applicableclass has accepted or rejected such Bankruptcy Plan in accordance with Section 1126(c)of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and(3) not to contest any request by any party for a determination by the Bankruptcy Court(or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).(iv) The Administrative Agent shall have the right, and the Borrower herebyexpressly authorizes the Administrative Agent to (A) post the list of DisqualifiedInstitutions provided by the Borrower and any updates thereto from time to time(collectively, the “DQ List”) on an Approved Electronic Platform, including that portionof such Approved Electronic Platform that is designated for “public side” Lenders and/or(B) provide the DQ List to each Lender or potential Lender requesting the same.100
(v) The Administrative Agent shall not be responsible or have any liabilityfor, or have any duty to ascertain, inquire into, monitor or enforce, compliance with theprovisions hereof relating to Disqualified Institutions. Without limiting the generality ofthe foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor orinquire as to whether any other Lender or participant or prospective Lender or participantis a Disqualified Institution or (y) have any liability with respect to or arising out of anyassignment or participation of Loans, or disclosure of confidential information, by anyother Person to any Disqualified Institution.SECTION 9.05. Survival. All covenants, agreements, representations and warranties made bythe Borrower and the Guarantors in the Loan Documents and in the certificates or other instrumentsdelivered in connection with or pursuant to this Agreement or any other Loan Document shall beconsidered to have been relied upon by the other parties hereto or thereto and shall survive the executionand delivery of the Loan Documents and the making of any Loans, regardless of any investigation madeby any such other party or on its behalf and notwithstanding that any of the Administrative Agent, theArrangers, the Syndication Agents, the Documentation Agents, the Lenders or any Related Party of anyof the foregoing may have had notice or knowledge of any Default or incorrect representation or warrantyat the time any Loan Document was executed and delivered or any credit was extended hereunder, ▇▇▇▇▇▇▇▇ continue in full force and effect as long as the principal of or any interest accrued on any Loan orany fee or any other amount payable under this Agreement is outstanding and unpaid (other thancontingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as towhich no claim has been made) and so long as any of the Commitments have not expired or terminated.The provisions of Sections 2.12, 2.13, 2.14, 2.15(d), 2.15(e), 9.03 and 9.17 and Article VIII shall surviveand remain in full force and effect regardless of the resignation and/or replacement of the AdministrativeAgent, any assignment of rights by, or the replacement of, a Lender, the consummation of the transactionscontemplated hereby, the repayment of the Loans and the expiration or termination of the Commitmentsor the termination of this Agreement or any provision hereof.SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution. (a) ThisAgreement may be executed in counterparts (and by different parties hereto on different counterparts),each of which shall constitute an original, but all of which when taken together shall constitute a singlecontract. This Agreement and the other Loan Documents constitute the entire contract among the partiesrelating to the subject matter hereof and supersede any and all previous agreements and understandings,oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreementshall become effective when it shall have been executed by the Administrative Agent and theAdministrative Agent shall have received counterparts hereof that, when taken together, bear thesignatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefitof the parties hereto and their respective successors and assigns.(b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other LoanDocument and/or (z) any document, amendment, approval, consent, information, notice (including, forthe avoidance of doubt, any notice delivered pursuant to Section 9.01), certificate, request, statement,disclosure or authorization related to this Agreement, any other Loan Document and/or the transactionscontemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signaturetransmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actualexecuted signature page shall be effective as delivery of a manually executed counterpart of thisAgreement, such other Loan Document or such Ancillary Document, as applicable. The words“execution”, “signed”, “signature”, “delivery”, and words of like import in or relating to this Agreement,any other Loan Document and/or any Ancillary Document shall be deemed to include ElectronicSignatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy,emailed pdf. or any other electronic means that reproduces an image of an actual executed signature101
page), each of which shall be of the same legal effect, validity or enforceability as a manually executedsignature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be;provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in anyform or format without its prior written consent and pursuant to procedures approved by it; provided,further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept anyElectronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on suchElectronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party withoutfurther verification thereof and without any obligation to review the appearance or form of any suchElectronic signature and (ii) upon the request of the Administrative Agent or any Lender, any ElectronicSignature shall be promptly followed by a manually executed counterpart. Without limiting thegenerality of the foregoing, the Borrower and each Loan Party hereby (A) agrees that, for all purposes,including without limitation, in connection with any workout, restructuring, enforcement of remedies,bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and theLoan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic meansthat reproduces an image of an actual executed signature page and/or any electronic images of thisAgreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect,validity and enforceability as any paper original, (B) the Administrative Agent and each of the Lendersmay, at its option, create one or more copies of this Agreement, any other Loan Document and/or anyAncillary Document in the form of an imaged electronic record in any format, which shall be deemedcreated in the ordinary course of such Person’s business, and destroy the original paper document (and allsuch electronic records shall be considered an original for all purposes and shall have the same legaleffect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contestthe legal effect, validity or enforceability of this Agreement, any other Loan Document and/or anyAncillary Document based solely on the lack of paper original copies of this Agreement, such other LoanDocument and/or such Ancillary Document, respectively, including with respect to any signature pagesthereto and (D) waives any claim against any Lender-Related Person for any Liabilities arising solelyfrom the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/ortransmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of ▇▇▇▇▇▇▇▇ executed signature page, including any Liabilities arising as a result of the failure of any Borrowerand/or any Loan Party to use any available security measures in connection with the execution, deliveryor transmission of any Electronic Signature, except to the extent that such claim or Liabilities aredetermined by a court of competent jurisdiction by final and nonappealable judgment to have resultedfrom the gross negligence, bad faith or willful misconduct of the Administrative Agent and/or suchLender. SECTION 9.07. Severability. Any provision of this Agreement held to be invalid, illegal orunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of suchinvalidity, illegality or unenforceability without affecting the validity, legality and enforceability of theremaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shallnot invalidate such provision in any other jurisdiction.SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and becontinuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time,to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general orspecial, time or demand, provisional or final, in whatever currency) or other amounts at any time held andother obligations (in whatever currency) at any time owing by such Lender or by such Affiliate to or forthe credit or the account of the Borrower against any of and all the obligations then due of the Borrowernow or hereafter existing under this Agreement held by such Lender, irrespective of whether or not suchLender shall have made any demand under this Agreement and although such obligations of the Borrowerare owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliateholding such deposit or obligated on such indebtedness; provided that, in the event that any Defaulting102
Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately tothe Administrative Agent for further application in accordance with the provisions of Section 2.17 and,pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemedheld in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lendershall provide promptly to the Administrative Agent a statement describing in reasonable detail theObligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights ofeach Lender and each Affiliate of any Lender under this Section are in addition to other rights andremedies (including other rights of setoff) that such Lender or Affiliate may have. Each Lender agrees tonotify the Borrower and the Administrative Agent promptly after any such setoff and application;provided that the failure to give notice shall not affect the validity of such setoff and application.SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) ThisAgreement shall be governed by, and construed in accordance with, the law of the State of New York.(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, tothe jurisdiction of the United States District Court of the Southern District of New York sitting in NewYork County (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of NewYork sitting in New York County), and any appellate court from any thereof, in any suit, action orproceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition orenforcement of any judgment, and the Borrower hereby irrevocably and unconditionally agrees that allclaims arising out of or relating to this Agreement or any other Loan Document brought by it or any of itsAffiliates shall be brought, and shall be heard and determined, exclusively in such United States DistrictCourt or, if that court does not have subject matter jurisdiction, such Supreme Court. Each party heretoagrees that a final judgment in any such suit, action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothingin this Agreement shall affect any right that the Administrative Agent or any Lender may otherwise haveto bring any suit, action or proceeding relating to this Agreement or any other Loan Document against theBorrower or any of its properties in the courts of any jurisdiction.(c) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extentpermitted by law, any objection that it may now or hereafter have to the laying of venue of any suit,action or proceeding arising out of or relating to this Agreement or any other Loan Document in any courtreferred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to thefullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit,action or proceeding in any such court.(d) Each party to this Agreement irrevocably consents to service of process in the manner providedfor notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affect the rightof any party to this Agreement to serve process in any other manner permitted by law.(e) [Reserved].(f) In the event the Borrower or any of its assets has or hereafter acquires, in any jurisdiction inwhich judicial proceedings may at any time be commenced with respect to this Agreement or any otherLoan Document, any immunity from jurisdiction, legal proceedings, attachment (whether before or afterjudgment), execution, judgment or setoff, the Borrower hereby irrevocably agrees not to claim and herebyirrevocably and unconditionally waives such immunity.SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBYIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY103
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOANDOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHERBASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTYHAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULDNOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCEDTO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERSAND CERTIFICATIONS IN THIS SECTION.SECTION 9.11. Headings. Article and Section headings and the Table of Contents usedherein are for convenience of reference only, are not part of this Agreement and shall not affect theconstruction of, or be taken into consideration in interpreting, this Agreement.SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Arrangers and theLenders agrees to maintain the confidentiality of, and not disclose, the Information (as defined below),except that Information may be disclosed (a) to its Related Parties, including accountants, legal counseland other agents and advisors, it being understood that the Persons to whom such disclosure is ▇▇▇▇▇▇▇▇▇▇ are informed of the confidential nature of such Information and instructed to keep suchInformation confidential or are subject to customary confidentiality obligations of employment orprofessional practice, provided that the disclosing Person shall be responsible for such Person’scompliance with keeping the Information confidential in accordance with this Section, (b) to the extentrequired or requested by any Governmental Authority purporting to have jurisdiction over such Personor its Related Parties (including any self-regulatory authority, such as the National Association ofInsurance Commissioners) (in which case such Person agrees to inform the Borrower promptly thereofprior to such disclosure to the extent practicable and not prohibited by applicable law (except withrespect to any audit or examination conducted by bank accountants or any Governmental Authorityexercising examination or regulatory authority)), (c) to the extent required by applicable law or by anysubpoena or similar legal process (in which case such Person agrees to inform the Borrower promptlythereof prior to such disclosure to the extent practicable and not prohibited by applicable law), (d) toany other party to this Agreement, (e) in connection with the exercise of any remedies under thisAgreement or any other Loan Document or any suit, action or proceeding relating to this Agreement orany other Loan Document, the enforcement of rights hereunder or thereunder or any Transactions, (f)subject to an agreement containing confidentiality undertakings substantially similar to those of thisSection (which shall be deemed to include those required to be made in order to obtain access toinformation posted on IntraLinks, SyndTrak or any other Platform), to (i) any assignee of or Participantin (or its Related Parties), or any prospective assignee of or Participant in (or its Related Parties), any ofits rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its RelatedParties) to any swap or derivative transaction relating to the Borrower or any Subsidiary and theirrespective obligations or (iii) any actual or prospective credit insurance brokers or providers for anycredit insurance products relating to the Borrower’s obligations under this Agreement or the other LoanDocuments, (g) on a confidential basis to (i) any rating agency in connection with rating the Borroweror its Subsidiaries or the credit facilities provided for herein or (ii) the CUSIP Service Bureau or anysimilar agency in connection with the issuance and monitoring of CUSIP numbers with respect to thecredit facilities provided for herein, (h) with the prior written consent of the Borrower, (i) to market datacollectors, similar service providers to the lending industry and service providers to the AdministrativeAgent and the Lenders in connection with the administration and management of this Agreement or anyother Loan Documents; provided that such information is limited to the information about this Agreementand the other Loan Documents, (j) to the extent such Information (i) becomes publicly available otherthan as a result of a breach of this Section or other obligations owed to the Borrower and itsSubsidiaries, (ii) becomes available to the Administrative Agent, any Lender or any Affiliate of any of104
the foregoing on a nonconfidential basis from a source other than the Borrower or any Subsidiary that isnot known by the Administrative Agent, Lender or Affiliate to be prohibited from disclosing suchInformation to such Person by a legal, contractual, or fiduciary obligation owed to the Borrower or anyof its Subsidiaries or (iii) is independently developed by the Administrative Agent, any Lender or anyAffiliate of the foregoing, or (k) to any credit insurance provider relating to the Borrower and itsObligations. For purposes of this Section, “Information” means all information received from theBorrower or any Subsidiary relating to the Borrower or any Subsidiary or its businesses, other than anysuch information that is available to the Administrative Agent, any Lender or any Affiliate of any of theforegoing on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary. It is agreedthat, notwithstanding the restrictions of any prior confidentiality agreement binding on the AdministrativeAgent or the Arranger, such Persons may disclose Information as provided in this Section.SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, ifat any time the interest rate applicable to any Loan, together with all fees, charges and other amounts thatare treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed themaximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received orreserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payablein respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited tothe Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable inrespect of such Loan but were not payable as a result of the operation of this Section shall be cumulatedand the interest and Charges payable to such Lender in respect of other Loans or periods shall beincreased (but not above the Maximum Rate therefor) until such cumulated amount, together with interestthereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by suchLender. SECTION 9.14. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Borrower and the Guarantors that pursuant tothe requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation it is required toobtain, verify and record information that identifies the Borrower and the Guarantors, which informationincludes the name and address of the Borrower and the Guarantors and other information that will allowsuch Lender or the Administrative Agent, as applicable, to identify the Borrower and the Guarantors inaccordance with the USA PATRIOT Act and the Beneficial Ownership Regulation.SECTION 9.15. No Fiduciary Relationship. The Borrower, on behalf of itself and theSubsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and anycommunications in connection therewith, the Borrower, the Subsidiaries and their Affiliates, on the onehand, and the Administrative Agent, the Lenders and their Affiliates, on the other hand, will have abusiness relationship that does not create, by implication or otherwise, any fiduciary duty on the part ofthe Administrative Agent, the Lenders or their Affiliates, and no such duty will be deemed to have arisenin connection with any such transactions or communications. The Administrative Agent, the Arrangers,the Lenders and their Affiliates may be engaged, for their own accounts or the accounts of customers, in abroad range of transactions that involve interests that differ from those of the Borrower and its Affiliates,and none of the Administrative Agent, the Arrangers, the Lenders or their Affiliates has any obligation todisclose any of such interests to the Borrower or any of its Affiliates. To the fullest extent permitted bylaw, the Borrower hereby waives and releases any claims that it or any of its Affiliates may have againstthe Administrative Agent, the Arrangers, the Lenders or their Affiliates with respect to any breach oralleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplatedhereby. SECTION 9.16. Non-Public Information. (a) Each Lender acknowledges that all information,including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent105
pursuant to or in connection with, or in the course of administering, this Agreement will be syndicate-level information, which may contain MNPI. Each Lender represents to the Borrower and theAdministrative Agent that (i) it has developed compliance procedures regarding the use of MNPI and thatit will handle MNPI in accordance with such procedures and applicable law, including Federal, state andforeign securities laws, and (ii) it has identified in its Administrative Questionnaire a credit contact whomay receive information that may contain MNPI in accordance with its compliance procedures andapplicable law, including United States (Federal or state) and foreign securities laws.(b) The Borrower and each Lender acknowledges that, if information furnished by or on behalf of theBorrower pursuant to or in connection with this Agreement is being distributed by the AdministrativeAgent through the Platform, (i) the Administrative Agent may post any information that the Borrower hasindicated as containing MNPI solely on that portion of the Platform designated for Private Side LenderRepresentatives and (ii) if the Borrower has not indicated whether any information furnished by itpursuant to or in connection with this Agreement contains MNPI, the Administrative Agent reserves theright to post such information solely on that portion of the Platform designated for Private Side LenderRepresentatives. The Borrower agrees to clearly designate all information provided to the AdministrativeAgent by or on behalf of the Borrower that is suitable to be made available to Public Side LenderRepresentatives, and the Administrative Agent shall be entitled to rely on any such designation by theBorrower without liability or responsibility for the independent verification thereof.(c) If the Borrower does not file this Agreement with the SEC, then the Borrower hereby authorizesthe Administrative Agent to distribute the execution version of this Agreement and the Loan Documentsto all Lenders, including their Public Side Lender Representatives. The Borrower acknowledges itsunderstanding that Lenders, including their Public Side Lender Representatives, may be trading insecurities of the Borrower and its Affiliates while in possession of the Loan Documents.(d) The Borrower represents and warrants that none of the information contained in the LoanDocuments constitutes or contains MNPI. To the extent that any of the executed Loan Documents at anytime constitutes MNPI, the Borrower agrees that it will promptly make such information publiclyavailable by press release or public filing with the SEC.SECTION 9.17. Judgment Currency. (a) If, for the purpose of obtaining judgment in anycourt, it is necessary to convert a sum owing hereunder in dollarsDollars into another currency, each partyhereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be thatat which in accordance with normal banking procedures in the relevant jurisdiction dollarsDollars couldbe purchased with such other currency on the Business Day immediately preceding the day on which finaljudgment is given.(b) The obligations of each party hereto in respect of any sum due to any other party hereto or anyholder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding anyjudgment in a currency (the “Judgment Currency”) other than dollarsDollars, be discharged only to theextent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to beso due in the Judgment Currency, the Applicable Creditor may in accordance with normal bankingprocedures in the relevant jurisdiction purchase dollarsDollars with the Judgment Currency; if the amountof dollarsDollars so purchased is less than the sum originally due to the Applicable Creditor indollarsDollars, such party agrees, as a separate obligation and notwithstanding any such judgment, toindemnify the Applicable Creditor against such deficiency. The obligations of the parties contained in thisSection shall survive the termination of this Agreement and the payment of all other amounts owinghereunder. 106
SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangementor understanding among any such parties, each party hereto acknowledges that any liability of anyAffected Financial Institution arising under any Loan Document may be subject to the Write-Down andConversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledgesand agrees to be bound by:(a) the application of any Write-Down and Conversion Powers by the applicableResolution Authority to any such liabilities arising hereunder which may be payable to it by anyparty hereto that is an Affected Financial Institution; and(b) the effects of any Bail-In Action on any such liability, including, if applicable:(i) a reduction in full or in part or cancellation of any such liability;(ii) a conversion of all, or a portion of, such liability into shares or otherinstruments of ownership in such Affected Financial Institution, its parent entity, or abridge institution that may be issued to it or otherwise conferred on it, and that suchshares or other instruments of ownership will be accepted by it in lieu of any rights withrespect to any such liability under this Agreement or any other Loan Document; or(iii) the variation of the terms of such liability in connection with the exerciseof the Write-Down and Conversion Powers of the applicable Resolution Authority.ARTICLE XGuaranteesSECTION 10.01. The Guarantees. To induce the Lenders to provide the Loans describedherein and in consideration of benefits expected to accrue to the Borrower by reason of the Commitmentsand the Loans and for other good and valuable consideration, receipt of which is hereby acknowledged,each Guarantor party hereto (including any Subsidiary executing an Additional Guarantor Supplement insubstantially the form attached hereto as Exhibit F (an “Additional Guarantor Supplement”) or such otherform reasonably acceptable to the Administrative Agent and the Borrower) hereby unconditionally andirrevocably guarantees jointly and severally to the Administrative Agent, for the ratable benefit of theAdministrative Agent and the Lenders, the due and punctual payment of all present and futureObligations of the Borrower, in each case as and when the same shall become due and payable, whether atstated maturity, by acceleration, or otherwise, according to the terms hereof or any other applicable LoanDocument (including all interest, costs, fees, and charges after the entry of an order for relief against theBorrower or such other obligor in a case under the United States Bankruptcy Code or any similarproceeding, whether or not such interest, costs, fees and charges would be an allowed claim against theBorrower or any such obligor in any such proceeding). In case of failure by the Borrower punctually topay any Obligations guaranteed hereby, each Guarantor of the Borrower’s Obligations under this Section10.01 hereby unconditionally agrees to make such payment or to cause such payment to be madepunctually as and when the same shall become due and payable, whether at stated maturity, byacceleration, or otherwise, and as if such payment were made by the Borrower.SECTION 10.02. Guarantee Unconditional. The obligations of each Guarantor under thisArticle X shall be unconditional and absolute and, without limiting the generality of the foregoing, shallnot be released, discharged, or otherwise affected by:107
(a) any extension, renewal, settlement, compromise, waiver, or release in respect ofany obligation of the Borrower or other obligor or of any other guarantor under this Agreement orany other Loan Document or by operation of law or otherwise;(b) any modification or amendment of or supplement to this Agreement or anyother Loan Document;(c) any change in the corporate existence, structure, or ownership of, or anyinsolvency, bankruptcy, reorganization, or other similar proceeding affecting, the Borrower orother obligor, any other guarantor, or any of their respective assets, or any resulting release ordischarge of any obligation of the Borrower or other obligor or of any other guarantor containedin any Loan Document;(d) the existence of any claim, set-off, or other rights which the Borrower or otherobligor or any other guarantor may have at any time against the Administrative Agent, anyLender or any other Person, whether or not arising in connection herewith;(e) any failure to assert, or any assertion of, any claim or demand or any exercise of,or failure to exercise, any rights or remedies against the Borrower or other obligor, any otherguarantor, or any other Person or property such Person;(f) any application of any sums by whomsoever paid or howsoever realized to anyobligation of the Borrower or other obligor, regardless of what obligations of the Borrower orother obligor remain unpaid;(g) any invalidity or unenforceability relating to or against the Borrower or otherobligor or any other guarantor for any reason of this Agreement or of any other Loan Documentor any provision of applicable law or regulation purporting to prohibit the payment by theBorrower or other obligor or any other guarantor of the principal of or interest on any Loan orany other amount payable under the Loan Documents; or(h) any other act or omission to act or delay of any kind by the AdministrativeAgent, any Lender or any other Person or any other circumstance whatsoever (other than paymentor performance of the Obligations) that might, but for the provisions of this paragraph, constitutea legal or equitable discharge of the obligations of any Guarantor under this Article X.Each Subsidiary Guaranty and the Holdings Guaranty hereunder shall be a guaranty of paymentand not of collection.SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in CertainCircumstances. Except as set forth in Section 5.10 or the fifteenth paragraph of Article VIII, eachGuarantor’s obligations under this Article X shall remain in full force and effect until the TerminationDate. If at any time any payment of the principal of or interest on any Loan or any other amount payableby the Borrower or other obligor or any Guarantor under the Loan Documents is rescinded or must beotherwise restored or returned upon the insolvency, bankruptcy, or reorganization of the Borrower orother obligor or of any Guarantor, or otherwise, each Guarantor’s obligations under this Article X withrespect to such payment shall be reinstated at such time as though such payment had become due but ▇▇▇▇▇▇ been made at such time.SECTION 10.04. Subrogation. Each Guarantor agrees it will not exercise any rights which itmay acquire by way of subrogation by any payment made hereunder, or otherwise, until the Termination108
Date. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time priorto the Termination Date, such amount shall be held in trust for the benefit of the Administrative Agentand the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Lenders orbe credited and applied upon the Obligations, whether matured or unmatured, in accordance with theterms of this Agreement.SECTION 10.05. Waivers. Each Guarantor irrevocably waives (to the extent permitted byapplicable law) acceptance hereof, presentment, demand, protest, and any notice not provided for herein,as well as any requirement that at any time any action be taken by the Administrative Agent, any Lenderor any other Person against the Borrower or other obligor, another guarantor, or any other Person.SECTION 10.06. Limit on Liability. The obligations of each Guarantor under this Article Xshall be limited to an aggregate amount equal to the largest amount that would not render such SubsidiaryGuaranty subject to avoidance under Section 548 of the United States Bankruptcy Code or anycomparable provisions of applicable law.SECTION 10.07. Stay of Acceleration. If acceleration of the time for payment of any amountpayable by the Borrower or other obligor under this Agreement or any other Loan Document is stayedupon the insolvency, bankruptcy or reorganization of the Borrower or such obligor, all such amountsotherwise subject to acceleration under the terms of this Agreement or the other Loan Documents shallnonetheless be payable by the Guarantors hereunder forthwith on demand by the Administrative Agentmade at the request of the Required Lenders.SECTION 10.08. Benefit to Guarantors. The Borrower and the Guarantors are engaged inrelated businesses and integrated to such an extent that the financial strength and flexibility of theBorrower has a direct impact on the success of each Guarantor. Each Guarantor will derive substantialdirect and indirect benefit from the extensions of credit hereunder.SECTION 10.09. Guarantor Covenants. Each Guarantor shall take such action as the Borroweris required by this Agreement to cause such Guarantor to take, and shall refrain from taking such action asthe Borrower is required by this Agreement to prohibit such Guarantor from taking.[Signature Pages Intentionally Omitted]109