0000932696
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0000932696
2024-05-14
2024-05-14
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 14, 2024
INSIGHT ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
_____________________________
Delaware 0-25092 86-0766246
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
2701 East Insight Way,
Chandler, Arizona 85286
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(
480
)
333-3000
Not Applicable
(Former name or former address, if changed since last report)
_____________________________
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol Name of each exchange on which registered
Common stock, par value $0.01 NSIT The NASDAQ Global Select Market
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s) 230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 ((s) 240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
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Item 1.01. Entry into a Material Definitive Agreement.
On May 14 2024, Insight Enterprises, Inc. (the "Company") entered into a
fourth amendment to credit agreement (the "Fourth Amendment") with JPMorgan
Chase Bank, N.A., as Administrative Agent (the "Agent"), the lenders party
thereto, certain of Insight's subsidiaries organized in the United States, the
United Kingdom, the Netherlands and Australia, as additional borrowers
(collectively with Insight, the "Borrowers"), and certain of Insight's
subsidiaries organized in the United States, the United Kingdom, the
Netherlands, Australia and Canada, as guarantors (collectively, the
"Guarantors"), which amends the credit agreement, dated as of August 30, 2019
(as amended, the "ABL Credit Agreement"), among Insight, the other Borrowers
party thereto, the Guarantors party thereto, the lenders party thereto and the
Agent, to, among other things, release certain immaterial guarantors from
their obligations under the ABL Credit Agreement.
The foregoing summary of the ABL Credit Agreement in this Item 1.01 does not
purport to be complete and is subject to and qualified in its entirety by
reference to the full text of the ABL Credit Agreement, which is filed as
Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
Item 8.01. Other Events.
On May 15, 2024, the Company issued a press release announcing its plan to
offer, subject to market and other conditions, $500 million aggregate
principal amount of senior notes due 2032. A copy of the press release is
attached hereto as Exhibit 99.1 and is incorporated herein by this reference.
The information contained in this report is for informational purposes only
and is neither an offer to sell nor a solicitation of an offer to buy any
security and shall not constitute an offer to sell or a solicitation of an
offer to buy, or a sale of, any security in any jurisdiction in which such
offer, solicitation, or sale is unlawful.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Description
Number
10.1 Fourth Amendment to Credit Agreement, dated as of May 14, 2024, by
and among Insight Enterprises, Inc., the subsidiaries of Insight
Enterprises, Inc. party thereto as borrowers and guarantors, JPMorgan
Chase Bank, N.A., as administrative agent, and the lenders party thereto.
99.1 Press release dated May 15, 2024 of Insight Enterprises, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Insight Enterprises, Inc.
Date: May 15, 2024 By: /s/ Rachael A. Crump
Rachael A. Crump
Chief Accounting Officer
Execution Version 899507.02-LACSR02A - MSW DB2/ 48015900.9 FOURTH AMENDMENT TO
CREDIT AGREEMENT This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of May 14, 2024, is entered into by and among (a) INSIGHT
ENTERPRISES, INC., a Delaware corporation, INSIGHT NORTH AMERICA, INC., an
Arizona corporation, INSIGHT DIRECT USA, INC., an Illinois corporation,
INSIGHT PUBLIC SECTOR, INC., an Illinois corporation, INSIGHT RECEIVABLES,
LLC, an Illinois limited liability company, INSIGHT PHYSICAL SECURITY
SOLUTIONS, LLC (FORMERLY KNOWN AS CALENCE PHYSICAL SECURITY SOLUTIONS LLC), an
Arizona limited liability company ("Insight Physical Security"), PCM, INC., a
Delaware corporation, PCM LOGISTICS, LLC, a Delaware limited liability company
("PCM Logistics"), TIGERDIRECT, LLC (FORMERLY KNOWN AS PCM SALES, LLC WHICH
WAS FORMERLY KNOWN AS PCM SALES, INC.), a California limited liability company
("TigerDirect"), PCMG, INC., a Delaware corporation ("PCMG"), M2 MARKETPLACE,
INC., a Delaware corporation ("M2 Marketplace"), EN POINTE TECHNOLOGIES SALES,
LLC, a Delaware limited liability company ("En Pointe Technologies"), INSIGHT
DIRECT PHILIPPINES, LLC (FORMERLY KNOWN AS PCM BPO, LLC), a Delaware limited
liability company, and SADA SYSTEMS, LLC, a Delaware limited liability
company, (collectively, the "U.S. Borrowers"), (b) INSIGHT DIRECT (UK) LTD, a
company incorporated under the laws of England with registration number
02579852, INSIGHT NETWORKING SOLUTIONS LIMITED, a company incorporated under
the laws of England with registration number 04482870, STACK TECHNOLOGY
HOLDINGS LTD, a company incorporated under the laws of England with
registration number 07170448, STACK DATA SOLUTIONS LTD, a company incorporated
under the laws of England with registration number 01865047, STACK
TELECOMMUNICATIONS SOLUTIONS LTD, a company incorporated under the laws of
England with registration number 07423212, INTERCONNECT NETWORK SYSTEMS
LIMITED, a company incorporated under the laws of England with registration
number 03645464, PCM TECHNOLOGY SOLUTIONS UK, LTD, a company incorporated
under the laws of England with registration number 10326566 (collectively, the
"U.K. Borrowers"), (c) INSIGHT ENTERPRISES NETHERLANDS B.V., a besloten
vennotschap met beperkte aansprakelijkheid, incorporated under the laws of The
Netherlands, having its official seat in Apeldoorn, The Netherlands and
registered with the Dutch trade register under number 08074503, INSIGHT
ENTERPRISES B.V., a besloten vennotschap met beperkte aansprakelijkheid,
incorporated under the laws of The Netherlands, having its official seat in
The Hague, The Netherlands and registered with the Dutch trade register under
number 27148512 (collectively, the "Dutch Borrowers"), (d) INSIGHT ENTERPRISES
AUSTRALIA PTY LTD ACN 058 645 677, a company registered in New South Wales,
Australia with its registered address at 'Building C', Level 3, 114 Old
Pittwater Road, Brookvale NSW 2100 (the "Australian Borrower" and, together
with the U.S. Borrowers, the U.K. Borrowers, and the Dutch Borrowers, the
"Borrowers"), (e) the other Loan Parties (as defined in the Credit Agreement)
signatory hereto, (f) the Lenders (as defined in the Credit Agreement)
signatory hereto, and (g) JPMORGAN CHASE BANK, N.A., as Administrative Agent
and Australian Security Trustee (each as defined in the Credit Agreement).
RECITALS A. The Borrowers, the other Loan Parties, the Lenders and the
Administrative Agent have previously entered into that certain Credit
Agreement, dated as of August 30, 2019 (as previously amended by that certain
First Amendment to Credit Agreement, dated as of July 31, 2020, that certain
Second Amendment to Credit Agreement, dated as of December 30, 2021, and that
certain Third Amendment to the Credit Agreement, dated as of July 22, 2022,
the "Existing Credit Agreement"; and the Existing Credit Agreement as amended
by this Amendment, and as the same may be further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
pursuant to which the Lenders have made certain loans and financial
accommodations available to the Borrowers. Terms used DB2/ 48015900.9 2 herein
without definition shall have the meanings ascribed to them in the Credit
Agreement (after giving effect to this Amendment). B. The Borrowers have
requested that the Administrative Agent and the Lenders (i) amend certain
provisions of the Existing Credit Agreement on the terms and conditions set
forth herein and (ii) release (x) Insight Physical Security, PCM Logistics,
TigerDirect, PCMG, M2 Marketplace, En Pointe Technologies and Calence, LLC, a
Delaware limited liability company (collectively, the "Released Loan Parties")
as Loan Parties and (y) any Liens granted pursuant to the Collateral Documents
on the assets of and Equity Interests in the Released Loan Parties. C. The
Administrative Agent and the Required Lenders are willing to (i) amend the
Existing Credit Agreement and (ii) release (x) the Released Loan Parties as
Loan Parties and (y) any Liens granted pursuant to the Collateral Documents on
the assets of and Equity Interests in the Released Loan Parties, in each case,
on the terms and conditions set forth herein. D. Each Borrower and each other
Loan Party is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of the
Administrative Agent's or any Lender's rights or remedies as set forth in the
Existing Credit Agreement and the other Loan Documents are being waived or
modified by the terms of this Amendment. AGREEMENT NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows: 1.
Amendments to Credit Agreement. Subject to the satisfaction in full of the
conditions precedent set forth in Section 2 hereof, effective as of the
Amendment Effective Date (as defined below), the Existing Credit Agreement is
hereby amended (other than any Exhibits, Schedules or signature pages thereto)
as set forth in Exhibit A attached hereto such that all of the newly inserted
bold, double-underlined text (indicated textually in the same manner as the
following examples: double-underlined text and double- underlined text) and
any formatting changes attached hereto shall be deemed to be inserted in the
text of the Credit Agreement and all of the deleted stricken text (indicated
textually in the same manner as the following examples: stricken text and
stricken text) shall be deemed to be deleted from the text of the Credit
Agreement. An unmarked draft of the Credit Agreement (but not including any
Exhibits or Schedules thereto), as amended by this Amendment, is attached
hereto as Exhibit B. 2. Conditions Precedent to Effectiveness of this
Amendment. This Amendment shall become effective as of the date on which each
of the following conditions precedent has been satisfied in full (the
"Amendment Effective Date"): (a) Amendment. Each of the Borrowers, the other
Loan Parties, the Administrative Agent and the Required Lenders shall have
duly executed and delivered this Amendment and the Administrative Agent shall
have received a fully executed counterpart hereof. (b) Representations and
Warranties. The representations and warranties of the Borrowers and the other
Loan Parties set forth in Section 3(d) of this Amendment shall be true and
correct in all material respects (it being understood and agreed (i) that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date and (ii) that any representation or warranty which is
subject to any materiality qualifier shall be required to be true and correct
in all respects).
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DB2/ 48015900.9 3 3. Representations and Warranties. Each Borrower and each
other Loan Party represents and warrants to the Administrative Agent and the
Lenders as follows: (a) Authorization; Powers. The execution, delivery and
performance by each Loan Party of this Amendment, and the performance by each
Loan Party of its obligations under the Loan Documents, as amended by this
Amendment, in each case are within such Loan Party's corporate or other
organizational powers and have been duly authorized by all necessary corporate
or other organizational actions on the part of such Loan Party and, if
required, actions by such Loan Party's equity holders, including, with respect
to each Dutch Loan Party, to the extent applicable, an unconditional,
positive, written advice from any works council in relation to the
transactions contemplated by this Amendment and any other document required
for compliance with the Dutch Works Council Act (Wet op de Ondernemingsraden).
(b) Enforceability. This Amendment has been duly executed and delivered by
such Loan Party and constitutes a legal, valid and binding obligation of such
Loan Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law. The
choice of governing law provisions contained in this Amendment are enforceable
in the jurisdictions where any European Loan Party is organized or
incorporated or any Collateral of such European Loan Party is located. Any
judgment obtained in connection with this Amendment or any other Loan Document
in the jurisdiction of the governing law this Amendment or such other Loan
Document will be recognized and be enforceable in the jurisdictions where such
European Loan Party is organized or any Collateral of such European Loan Party
is located, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and subject to (i) general principles of equity,
regardless of whether considered in a proceeding at equity or at law, and (ii)
the matters which are set out as qualifications or reservations as to matters
of law of general applicability in the legal opinions provided to the
Administrative Agent in accordance with Section 4.01(a) of the Credit
Agreement. (c) Governmental Approvals; No Conflicts. The execution, delivery
and performance by each Loan Party of this Amendment, and the performance by
the Borrowers of their obligations under the Credit Agreement, as amended by
this Amendment, (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except (A)
such as have been obtained or made and are in full force and effect, (B) for
filings necessary to perfect Liens created pursuant to the Loan Documents, and
(C) those consents, approvals, registrations, filings or actions, the failure
of which to obtain or make would not reasonably be expected to have a Material
Adverse Effect, (ii) will not violate any charter, articles or certificate of
organization or formation, bylaws, operating agreements, constitution or other
organizational or governing documents of any Loan Party, (iii) will not
violate any Requirement of Law applicable to any Loan Party or any Restricted
Subsidiary in a manner which would reasonably be expected to have a Material
Adverse Effect, (iv) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Loan Party or any
Restricted Subsidiary or the assets of any Loan Party or any Restricted
Subsidiary in a manner which would reasonably be expected to have a Material
Adverse Effect, or give rise to a right thereunder (other than any Loan
Document) to require any payment to be made by any Loan Party or any
Restricted Subsidiary in a manner which would reasonably be expected to have a
Material Adverse Effect, and (v) will not result in the creation or imposition
of, or the requirement to create, any Lien on any asset of any Loan Party or
any Restricted Subsidiary, except Liens permitted under Section 6.02 of the
Credit Agreement, as amended by this Amendment. DB2/ 48015900.9 4 (d)
Representations and Warranties in Loan Documents. The representations and
warranties of the Borrowers and the other Loan Parties set forth in the Credit
Agreement (as amended hereby) and the other Loan Documents are true and
correct in all material respects (it being understood and agreed (i) that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date and (ii) that any representation or warranty which is
subject to any materiality qualifier shall be required to be true and correct
in all respects). (e) No Default. No event has occurred and is continuing that
constitutes a Default or Event of Default. (f) Immaterial Subsidiaries. As of
the date hereof and prior to giving effect to this Amendment, each of the
Released Loan Parties constitutes an Immaterial Subsidiary in accordance with
the definition thereof in the Credit Agreement. (g) No Borrowings or Borrowing
Base Assets. As of the date hereof and prior to giving effect to this
Amendment, no Borrowing is outstanding to any Released Loan Party and neither
any Released Loan Party nor En Pointe JV (as defined in the Existing Credit
Agreement) contributes any assets to the Borrowing Base. (h) Dissolution of
OnSale Holdings. Prior to the date hereof, OnSale Holdings was dissolved and
such dissolution was permitted under the Existing Credit Agreement at the time
thereof. 4. Release of Released Loan Parties. (a) Effective as of the
Amendment Effective Date, each Released Loan Party is hereby automatically
released from its respective obligations under the Loan Documents and shall
cease to be a Loan Party and, as applicable, a Borrower, U.S. Borrower,
Foreign Borrower and Loan Guarantor for all purposes under the Loan Documents.
Each of the Loan Parties acknowledges and agrees that the release of each
Released Loan Party described in this Section 4(a) relates solely to the
Released Loan Parties and nothing contained in this Amendment or in any
release documentation delivered pursuant to this Amendment shall release any
Loan Party other than the Released Loan Parties or discharge, release, affect,
or impair the Obligations of any Loan Party other than the Released Loan
Parties. (b) Effective as of the Amendment Effective Date, any Liens granted
to the Administrative Agent pursuant to the Collateral Documents on the assets
of and Equity Interests in each Released Loan Party are hereby automatically
released (such assets and Equity Interests, the "Released Property"). Each of
the Loan Parties acknowledges and agrees that the release of Liens described
in this Section 4(b) relates solely to the Released Property, and nothing
contained in this Amendment or in any release documentation delivered pursuant
to this Amendment shall in any manner discharge, release, affect, or impair
any Lien held by the Administrative Agent in any other Collateral. (c) The
Lenders party hereto hereby authorize and instruct the Administrative Agent to
release its Liens on the Released Property and to (i) enter into and deliver
and file or record, as applicable, any release documentation (including but
not limited to UCC-3 terminations and account control agreement terminations)
related to the release of the Administrative Agent's Liens on the Released
Property and (ii) return any physical collateral evidencing
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DB2/ 48015900.9 5 the Released Property held in the possession of the
Administrative Agent (or its agents or designees) to the applicable Loan
Parties and Released Loan Parties. (d) If after the Amendment Effective Date,
any Released Loan Party ceases to be an Excluded Subsidiary under the Credit
Agreement, the Loan Parties agree to comply with the provisions of Section
5.14(e) of the Credit Agreement in respect of any such Released Loan Party. 5.
Release; Covenant Not to Sue. (a) Each Released Loan Party for itself and on
behalf of its successors, assigns, officers, directors, members, managers,
employees, agents, partners, advisors, representatives, heirs and attorneys,
and any Person acting for or on behalf of, or claiming through it (excluding
other Loan Parties acting on their own behalf), hereby fully, unconditionally
and forever waives, releases, acquits and discharges Administrative Agent, the
Australian Security Trustee, each Lender, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns of the foregoing (collectively, the
"Released Parties") and each of the Released Parties' present, former and
future directors, officers, managers, members, employees, agents, partners,
trustees, attorneys, advisors or other representatives and other persons
and/or entities connected therewith (collectively, the "Releasees") from any
and all claims, suits, liens, lawsuits, adverse consequences, amounts paid in
settlement, debts, deficiencies, diminution in value, disbursements, demands,
obligations, liabilities, causes of action, damages, losses, costs and
expenses of any kind or character, whether based in equity, law, contract,
tort, implied or express warranty, strict liability, criminal or civil statute
or common law, whether known or unknown, fixed or contingent, direct,
indirect, or derivative, asserted or unasserted, matured or unmatured,
foreseen or unforeseen, past or present, liquidated or unliquidated, suspected
or unsuspected, of every kind and nature, that each Released Loan Party or any
of their respective successors, assigns, heirs, or representatives at any time
had, now have, or hereafter can have against any of the Releasees which arise
from or relate to any actions, omissions, matters, causes or things whatsoever
arising on or prior to the date hereof under or related to the Credit
Agreement, this Amendment, the Loan Documents and/or any documents executed
and/or delivered in connection with the foregoing which any of the Releasees
have and/or may have taken or have and/or may have omitted to take
(collectively, the "Released Matters"). (b) Each Released Loan Party (i)
understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be
instituted, prosecuted or attempted in breach of the provisions of such
release and (ii) agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above. (c) Each Released Loan Party, on behalf of itself and
its successors, assigns, and other legal representatives (excluding other Loan
Parties acting on their own behalf), hereby absolutely, unconditionally and
irrevocably, covenants and agrees with and in favor of each Releasee above
that it will not sue (at law, in equity, in any regulatory proceeding or
otherwise) any Releasee on the basis of any claim released, remised and
discharged by each Released Loan Party pursuant to the above release. If any
Released Loan Party or any of their successors, assigns or other legal
representatives violates the foregoing DB2/ 48015900.9 6 covenant, each
Released Loan Party, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any
Releasee may sustain as a result of such violation, all reasonable attorneys'
fees and costs incurred by such Releasee as a result of such violation. (d) If
after the Amendment Effective Date, any Released Loan Party ceases to be an
Excluded Subsidiary under the Credit Agreement and becomes a Loan Party
pursuant to Section 5.14(e) of the Credit Agreement, the Loan Parties agree to
comply with the provisions of Section 9.03 of the Credit Agreement in respect
of any such Released Loan Party, and such provisions will supersede the
provisions in clauses (a) through (c) of this Section 5. 6. Choice of Law.
This Amendment shall be governed by and construed in accordance with the laws
of the State of New York. 7. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties and separate counterparts,
each of which when so executed and delivered, shall be deemed an original, and
all of which, when taken together, shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Amendment by telecopy, emailed pdf. or other electronic means that complies
with the federal Electronic Signatures in Global and National Commerce Act,
state enactments of the Uniform Electronic Transactions Act, or any other
relevant and applicable electronic signatures law shall be effective as
delivery of a manually executed counterpart of this Amendment. Each party
agrees that this Amendment and any other documents to be delivered in
connection herewith may be electronically signed, and that any electronic
signatures appearing on this Amendment or such other documents are the same as
handwritten signatures for the purposes of validity, enforceability, and
admissibility. As used herein, "electronic signatures" mean any electronic
sound, symbol, or process attached to or logically associated with a record
and executed and adopted by a party with the intent to sign such record.
Notwithstanding the foregoing, Borrowers and the other Loan Parties hereby
agree to provide the Administrative Agent with original counterparts of their
respective signature pages hereto. 8. Reference to and Effect on the Loan
Documents. (a) Upon and after the Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the other
Loan Documents to "the Credit Agreement", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified and amended hereby. (b) Except as specifically set forth
in this Amendment, the Credit Agreement and all other Loan Documents are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed and shall constitute the legal, valid, binding, and
enforceable obligations of the Borrowers and the other Loan Parties to the
Administrative Agent and the Lenders without defense, offset, claim, or
contribution. (c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power, or remedy of the Administrative Agent or any Lender under any of
the Loan Documents, nor constitute a waiver of any provision of any of the
Loan Documents. 9. Ratification. Each Borrower and each other Loan Party (in
each case, other than any Released Loan Party) hereby restates, ratifies and
reaffirms each and every term and condition set forth in
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DB2/ 48015900.9 7 the Credit Agreement, as amended hereby, and the other Loan
Documents effective as of the date hereof. Each Borrower and each other Loan
Party (in each case, other than any Released Loan Party) acknowledges and
agrees that the Liens granted to the Administrative Agent, for the benefit of
each of the Secured Parties, pursuant to the Collateral Documents in all of
their right, title, and interest in all then existing and thereafter acquired
or arising Collateral (other than any Released Property) in order to secure
prompt payment and performance of the Secured Obligations, is continuing and
is and shall remain unimpaired and continue to constitute a first priority
Lien (except in the case of (a) Liens permitted by Section 6.02 of the Credit
Agreement, to the extent such Liens would have priority over the Liens in
favor of the Administrative Agent pursuant to any applicable law or agreement
and (b) Liens perfected only by possession (including possession of any
certificate of title) to the extent the Administrative Agent has not obtained
or does not maintain possession of such Collateral) in favor of the
Administrative Agent, for the benefit of each of the Secured Parties, with the
same force, effect and priority in effect immediately prior to entering into
this Amendment. 10. Integration. This Amendment, together with the other Loan
Documents and any separate letter agreements with respect to fees payable to
the Administrative Agent, constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. 11. Severability. Any provision of this Amendment or any other Loan
Document 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 thereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. [Remainder of Page
Intentionally Left Blank; Signature Pages Follow.] [Insight - Signature Page
to Fourth Amendment to Credit Agreement] IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed and delivered by their
duly authorized signatories as of the day and year first above written.
BORROWERS: INSIGHT ENTERPRISES, INC., a Delaware corporation, as a U.S.
Borrower and a Foreign Borrower INSIGHT NORTH AMERICA, INC., an Arizona
corporation, as a U.S. Borrower and a Foreign Borrower INSIGHT DIRECT USA,
INC., an Illinois corporation, as a U.S. Borrower and a Foreign Borrower
INSIGHT RECEIVABLES, LLC, a Delaware limited liability company, as a U.S.
Borrower and a Foreign Borrower By: Name: Lynn Willden Title: Treasurer
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): INSIGHT PHYSICAL SECURITY SOLUTIONS, LLC (FORMERLY KNOWN AS CALENCE
PHYSICAL SECURITY SOLUTIONS, LLC), an Arizona limited liability company, as a
U.S. Borrower and a Foreign Borrower By: Name: Lynn Willden Title: Treasurer
[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): PCM, INC., a Delaware corporation, as a U.S. Borrower and a Foreign
Borrower PCM LOGISTICS, LLC, a Delaware limited liability company, as a U.S.
Borrower and a Foreign Borrower TIGERDIRECT, LLC (FORMERLY KNOWN AS PCM SALES
LLC), a California limited liability company, as a U.S. Borrower and a Foreign
Borrower M2 MARKETPLACE, INC., a Delaware corporation, as a U.S. Borrower and
a Foreign Borrower EN POINTE TECHNOLOGIES SALES, LLC, a Delaware limited
liability company, as a U.S. Borrower and a Foreign Borrower INSIGHT DIRECT
PHILIPPINES, LLC (FORMERLY KNOWN AS PCM BPO, LLC), a Delaware limited
liability company, as a U.S. Borrower and a Foreign Borrower SADA SYSTEMS,
LLC, an Delaware limited liability company, as a U.S. Borrower and a Foreign
Borrower By: Name: Lynn Willden Title: Treasurer
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): INSIGHT PUBLIC SECTOR, INC., an Illinois corporation, as a U.S.
Borrower and a Foreign Borrower PCMG, INC., a Delaware corporation, as a U.S.
Borrower and a Foreign Borrower By: Name: Sharon O. Ennis Title: Secretary
[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): SIGNED for and on behalf of INSIGHT DIRECT (UK) LTD, a company
incorporated under the laws of England with registration number 02579852, as a
U.K. Borrower and a Foreign Borrower By: Name: Glynis A. Bryan Title: Director
SIGNED for and on behalf of INSIGHT NETWORKING SOLUTIONS LIMITED, a company
incorporated under the laws of England with registration number 04482870, as a
U.K. Borrower and a Foreign Borrower By: Name: Russell Leighton Title: Director
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): SIGNED for and on behalf of STACK TECHNOLOGY HOLDINGS LTD, a company
incorporated under the laws of England with registration number 07170448, as a
U.K. Borrower and a Foreign Borrower By: Name: Glynis A. Bryan Title: Director
SIGNED for and on behalf of STACK DATA SOLUTIONS LTD, a company incorporated
under the laws of England with registration number 01865047, as a U.K.
Borrower and a Foreign Borrower By: Name: Glynis A. Bryan Title: Director
SIGNED for and on behalf of STACK TELECOMMUNICATIONS SOLUTIONS LTD, a company
incorporated under the laws of England with registration number 07423212, as a
U.K. Borrower and a Foreign Borrower By: Name: Glynis A. Bryan Title: Director
[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): SIGNED for and on behalf of INTERCONNECT NETWORK SYSTEMS LIMITED, a
company incorporated under the laws of England with registration number
03645464, as a U.K. Borrower and a Foreign Borrower By: Name: Glynis A. Bryan
Title: Director SIGNED for and on behalf of PCM TECHNOLOGY SOLUTIONS UK, LTD,
a company incorporated under the laws of England with registration number
10326566, as a U.K. Borrower and a Foreign Borrower By: Name: Glynis A. Bryan
Title: Director
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] BORROWERS
(CONT'D): INSIGHT ENTERPRISES NETHERLANDS B.V., a besloten vennotschap met
beperkte aansprakelijkheid, incorporated under the laws of The Netherlands,
having its official seat in Apeldoorn, The Netherlands and registered with the
Dutch trade register under number 08074503, as a Dutch Borrower and a Foreign
Borrower By: Name: Russell Leighton Title: Director INSIGHT ENTERPRISES B.V.,
a besloten vennotschap met beperkte aansprakelijkheid, incorporated under the
laws of The Netherlands, having its official seat in The Hague, The
Netherlands and registered with the Dutch trade register under number
27148512, as a Dutch Borrower and a Foreign Borrower By: Name: Russell
Leighton Title: Director [Insight - Signature Page to Fourth Amendment to
Credit Agreement] Executed by INSIGHT ENTERPRISES AUSTRALIA PTY LTD ACN 058
645 677 in accordance with section 127 of the Corporations Act 2001:
Director/company secretary Director LYNN WILLDEN GLYNIS A. BRYAN Name of
director/company secretary (BLOCK LETTERS) Name of director (BLOCK LETTERS)
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] OTHER LOAN
PARTIES: INSIGHT DIRECT WORLDWIDE, INC., an Arizona corporation, as a Loan
Guarantor INSIGHT CANADA HOLDINGS, INC., an Arizona corporation, as a Loan
Guarantor INSIGHT TECHNOLOGY SOLUTIONS, INC., a Delaware corporation, as a
Loan Guarantor INSIGHT RECEIVABLES HOLDING, LLC, an Illinois limited liability
company, as a Loan Guarantor CALENCE, LLC, a Delaware limited liability
company, as a Loan Guarantor By: Name: Lynn Willden Title: Treasurer [Insight
- Signature Page to Fourth Amendment to Credit Agreement] OTHER LOAN PARTIES
(CONT'D): 3683371 CANADA INC., a Canadian corporation, as a Loan Guarantor By:
Name: Lynn Willden Title: Treasurer INSIGHT CANADA INC., an Ontario
corporation, as a Loan Guarantor By: Name: Lynn Willden Title: Treasurer
INSIGHT DIRECT CANADA, INC., a Canadian corporation, as a Loan Guarantor By:
Name: Lynn Willden Title: Treasurer PCM VENTES CANADA, INC. / PCM SALES
CANADA, INC., a Quebec corporation, as a Loan Guarantor By: Name: Lynn Willden
Title: Treasurer
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] OTHER LOAN
PARTIES (CONT'D): SIGNED for and on behalf of INSIGHT ENTERPRISES UK LIMITED,
a company incorporated under the laws of England with registration number
4051772, as a Loan Guarantor By: Name: Glynis A. Bryan Title: Director INSIGHT
ENTERPRISES C.V., a limited partnership (commanditaire vennootschap),
incorporated under the laws of The Netherlands and registered with the Dutch
trade register under number 24410231, as a Loan Guarantor By: INSIGHT DIRECT
USA, INC., as general partner By: Name: Lynn Willden Title: Treasurer INSIGHT
ENTERPRISES HOLDINGS B.V., a besloten vennootschap met beperkte aansprakelijkhei
d, incorporated under the laws of The Netherlands, having its official seat in
Den Haag, The Netherlands and registered with the Dutch trade register under
number 08154117, as a Loan Guarantor By: Name: Russell Leighton Title:
Director [Insight - Signature Page to Fourth Amendment to Credit Agreement]
Executed by INSIGHT AUSTRALIA HOLDINGS PTY LTD ACN 073 091 406 in accordance
with section 127 of the Corporations Act 2001: Director/company secretary
Director LYNN WILLDEN GLYNIS A. BRYAN Name of director/company secretary
(BLOCK LETTERS) Name of director (BLOCK LETTERS) Executed by Ignia Pty Ltd ACN
093 490 834 in accordance with section 127 of the Corporations Act 2001:
Director/company secretary Director LYNN WILLDEN GLYNIS A. BRYAN Name of
director/company secretary (BLOCK LETTERS) Name of director (BLOCK LETTERS)
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] LENDERS
(CONT'D): ZIONS BANCORPORATION, N.A. DBA NATIONAL BANK OF ARIZONA, as a Lender
By: Name: Jeff Byers Title: Senior Vice President
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Patricia Del Busto Authorized Signatory [Insight - Signature Page to Fourth
Amendment to Credit Agreement] LENDERS (CONT'D): WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Lender By: Name: Bryan Wei Title: Authorized Signatory
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] LENDERS
(CONT'D): PNC BANK, NATIONAL ASSOCIATION, as a Lender By: Name: Title: Conrad
Hirose Assistant Vice President [Insight - Signature Page to Fourth Amendment
to Credit Agreement] LENDERS (CONT'D): HSBC BANK USA, N.A., as a Lender By:
Name: Stephen Santini Title: Senior Vice President
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[Insight - Signature Page to Fourth Amendment to Credit Agreement] LENDERS
(CONT'D): TRUIST BANK (FORMERLY KNOWN AS BRANCH BANKING AND TRUST COMPANY), as
a Lender By: Name: Terry B. Snider Title: Vice President [Insight - Signature
Page to Fourth Amendment to Credit Agreement] LENDERS (CONT'D): COMERICA BANK,
as a Lender By: Name: Randall Mitchell Title: Vice President
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DB2/ 48015900.9 EXHIBIT A MARKED CREDIT AGREEMENT Please see attached.
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CONFORMED THROUGH THIRDFOURTH AMENDMENT 899508.02-LACSR02A - MSW DB2/
43463576.548024258.7 CREDIT AGREEMENT dated as of August 30, 2019 among
INSIGHT ENTERPRISES, INC., PCM, INC., and THE OTHER U.S. BORROWERS FROM TIME
TO TIME PARTY HERETO, each, a U.S. Borrower, INSIGHT DIRECT (UK) LTD and THE
OTHER U.K. BORROWERS FROM TIME TO TIME PARTY HERETO, each, a U.K. Borrower,
INSIGHT ENTERPRISES NETHERLANDS B.V., INSIGHT ENTERPRISES B.V., and THE OTHER
DUTCH BORROWERS FROM TIME TO TIME PARTY HERETO, each, a Dutch Borrower,
INSIGHT ENTERPRISES AUSTRALIA PTY LTD and THE OTHER AUSTRALIAN BORROWERS FROM
TIME TO TIME PARTY HERETO, each, an Australian Borrower, The Other Loan
Parties From Time to Time Party Hereto, The Lenders From Time to Time Party
Hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent __________________
_________ JPMORGAN CHASE BANK, N.A., WELLS FARGO BANK, N.A., BANK OF AMERICA,
N.A., and U.S. BANK NATIONAL ASSOCIATION as Joint Bookrunners, Joint Lead
Arrangers, and Co-Syndication Agents BANK OF THE WEST, TRUIST BANK, and PNC
BANK, NATIONAL ASSOCIATION as Co-Documentation Agents i 877026.02899508.02-LACSR
02A - MSW DB2/ 43463576.548024258.7 TABLE OF CONTENTS Page ARTICLE I
DEFINITIONS 2 SECTION 1.01. Defined Terms 2 SECTION 1.02. Classification of
Loans and Borrowings 75 SECTION 1.03. Terms Generally 75 SECTION 1.04.
Accounting Terms; GAAP 76 SECTION 1.05. Interest Rates; Benchmark
Notifications 76 SECTION 1.06. Pro Forma Calculations 77 SECTION 1.07.
Currency Translations; Currency Matters 77 SECTION 1.08. Quebec Matters 78
SECTION 1.09. Limited Condition Transactions 79 SECTION 1.10. Reserves,
Eligibility and Advances Rates 79 SECTION 1.11. Divisions. 80 SECTION 1.12.
Australian matters. 80 ARTICLE II THE CREDITS 81 SECTION 2.01. Commitments 81
SECTION 2.02. Loans and Borrowings. 82 SECTION 2.03. Requests for Borrowings
83 SECTION 2.04. Protective Advances. 84 SECTION 2.05. Revolving Overadvances
and FILO Overadvances. 85 SECTION 2.06. Letters of Credit. 87 SECTION 2.07.
Funding of Borrowings 94 SECTION 2.08. Interest Elections. 94 SECTION 2.09.
Termination and Reduction of Revolving Commitments and FILO Commitments;
Increase in Revolving Commitments. 97 SECTION 2.10. Repayment of Loans;
Evidence of Debt. 102 SECTION 2.11. Prepayment of Loans. 103 SECTION 2.12.
Fees. 105 SECTION 2.13. Interest. 107 SECTION 2.14. Alternate Rate of
Interest; Illegality. 108 SECTION 2.15. Increased Costs. 112 SECTION 2.16.
Break Funding Payments 114 SECTION 2.17. Withholding of Taxes; Gross-Up 114
SECTION 2.18. Payments Generally; Allocation of Proceeds; Sharing of Setoffs.
126 SECTION 2.19. Mitigation Obligations; Replacement of Lenders. 129 SECTION
2.20. Defaulting Lenders 130 SECTION 2.21. Returned Payments 133 SECTION 2.22.
Banking Services and Swap Agreements 133 SECTION 2.23. Extension of Maturity
Date. 133 SECTION 2.24. Judgment Currency 135 ARTICLE III REPRESENTATIONS AND
WARRANTIES. 136 SECTION 3.01. Organization; Powers 136
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DB2/ 43463576.548024258.7 ii 877026.02-LACSR02A - MSW SECTION 3.02.
Authorization; Enforceability. 136 SECTION 3.03. Governmental Approvals; No
Conflicts 136 SECTION 3.04. Financial Condition; No Material Adverse Change.
137 SECTION 3.05. Properties 137 SECTION 3.06. Litigation and Environmental
Matters. 137 SECTION 3.07. Compliance with Laws and Agreements; No Default 138
SECTION 3.08. Investment Company Status 138 SECTION 3.09. Taxes 138 SECTION
3.10. ERISA; Foreign Benefit Arrangement; Canadian Pension Plan and Benefit
Plan; UK Pensions. 138 SECTION 3.11. Disclosure. 139 SECTION 3.12. [Reserved].
140 SECTION 3.13. Solvency 140 SECTION 3.14. Insurance 140 SECTION 3.15.
Subsidiaries 140 SECTION 3.16. Security Interest in Collateral 140 SECTION
3.17. Employment Matters 140 SECTION 3.18. Margin Regulations 141 SECTION
3.19. Use of Proceeds 141 SECTION 3.20. [Reserved]. 141 SECTION 3.21.
Anti-Corruption Laws and Sanctions 141 SECTION 3.22. [Reserved]. 141 SECTION
3.23. Common Enterprise 141 SECTION 3.24. Affected Financial Institutions 142
SECTION 3.25. Plan Assets; Prohibited Transactions 142 SECTION 3.26. Centre of
Main Interest and Establishments 142 SECTION 3.27. Fiscal Unity 142 SECTION
3.28. Australian Tax Consolidation and Payment of Taxes. 142 SECTION 3.29.
Commercial Benefit. 142 SECTION 3.30. No Immunity. 142 ARTICLE IV CONDITIONS
142 SECTION 4.01. Effective Date 142 SECTION 4.02. Each Credit Event after the
Effective Date 145 ARTICLE V AFFIRMATIVE COVENANTS 146 SECTION 5.01. Financial
Statements; Borrowing Base and Other Information 146 SECTION 5.02. Notices of
Material Events 149 SECTION 5.03. Existence; Conduct of Business 150 SECTION
5.04. Payment of Taxes 151 SECTION 5.05. Maintenance of Properties 151 SECTION
5.06. Books and Records; Inspection and Appraisal Rights 151 SECTION 5.07.
Compliance with Laws and Material Contractual Obligations. 152 SECTION 5.08.
Use of Proceeds. 152 SECTION 5.09. [Reserved]. 153 SECTION 5.10. Insurance 153
SECTION 5.11. Casualty and Condemnation 154 DB2/ 43463576.548024258.7 iii
877026.02-LACSR02A - MSW SECTION 5.12. [Reserved]. 154 SECTION 5.13.
[Reserved]. 154 SECTION 5.14. Additional Collateral; Further Assurances. 154
SECTION 5.15. Designation of Subsidiaries 155 SECTION 5.16. Foreign Loan Party
Cash Management Provisions 156 SECTION 5.17. Transfer of Accounts of Foreign
Loan Parties; Notification of Account Debtors 156 SECTION 5.18. U.K 157
SECTION 5.19. Dutch CIT Fiscal Unity 157 SECTION 5.20. [Reserved]. 157 SECTION
5.21. Centre of Main Interest and Establishments 157 SECTION 5.22.
Post-Closing Matters 157 ARTICLE VI NEGATIVE COVENANTS 158 SECTION 6.01.
Indebtedness 158 SECTION 6.02. Liens 161 SECTION 6.03. Fundamental Changes.
163 SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
165 SECTION 6.05. Asset Sales 167 SECTION 6.06. Sale and Leaseback
Transactions 170 SECTION 6.07. Swap Agreements 170 SECTION 6.08. Restricted
Payments; Certain Payments of Indebtedness. 170 SECTION 6.09. Transactions
with Affiliates 172 SECTION 6.10. Restrictive Agreements 172 SECTION 6.11.
Amendment of Material Documents 172 SECTION 6.12. Fixed Charge Coverage Ratio
173 SECTION 6.13. Australian Tax Matters.. 173 ARTICLE VII EVENTS OF DEFAULT
173 ARTICLE VIII THE ADMINISTRATIVE AGENT 177 SECTION 8.01. Authorization and
Action. 177 SECTION 8.02. Administrative Agent's Reliance, Limitation of
Liability, Etc. 180 SECTION 8.03. Posting of Communications. 181 SECTION 8.04.
The Administrative Agent Individually 183 SECTION 8.05. Successor
Administrative Agent. 183 SECTION 8.06. Acknowledgements of Lenders and
Issuing Bank. 184 SECTION 8.07. Collateral Matters 187 SECTION 8.08. Credit
Bidding 187 SECTION 8.09. Certain ERISA Matters 188 SECTION 8.10. Flood Laws
190 SECTION 8.11. Appointment of Administrative Agent as U.K Security Trustee
190 SECTION 8.12. Parallel Debt Undertaking 193 SECTION 8.13. Appointment of
Administrative Agent as Australian Security Trustee. 194 ARTICLE IX
MISCELLANEOUS 195
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DB2/ 43463576.548024258.7 iv 877026.02-LACSR02A - MSW SECTION 9.01. Notices.
195 SECTION 9.02. Waivers; Amendments. 197 SECTION 9.03. Expenses; Indemnity;
Limitation of Liability; Etc. 201 SECTION 9.04. Successors and Assigns. 203
SECTION 9.05. Survival 207 SECTION 9.06. Counterparts; Integration;
Effectiveness; Electronic Execution. 208 SECTION 9.07. Severability 209
SECTION 9.08. Right of Setoff 209 SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process. 209 SECTION 9.10. WAIVER OF JURY TRIAL 211
SECTION 9.11. Headings 211 SECTION 9.12. Confidentiality 211 SECTION 9.13.
Several Obligations; Nonreliance; Violation of Law 212 SECTION 9.14. USA
PATRIOT Act; UK "Know Your Customer" Checks; Canadian Anti-Money Laundering;
Australian "Know Your Customer" Checks. 212 SECTION 9.15. Disclosure 215
SECTION 9.16. Appointment for Perfection 215 SECTION 9.17. Interest Rate
Limitation 215 SECTION 9.18. Marketing Consent 215 SECTION 9.19. Acknowledgement
and Consent to Bail-In of Affected Financial Institutions 216 SECTION 9.20.
No Fiduciary Duty, etc. 216 SECTION 9.21. Acknowledgement Regarding Any
Supported QFCs 217 SECTION 9.22. Dutch CIT Fiscal Unity 217 SECTION 9.23.
Future Non-US Loan Parties. 218 SECTION 9.24. English Language 218 ARTICLE X
LOAN GUARANTY OF GLOBAL LOAN PARTIES 218 SECTION 10.01. Guaranty 218 SECTION
10.02. Guaranty of Payment 219 SECTION 10.03. No Discharge or Diminishment of
Loan Guaranty. 219 SECTION 10.04. Defenses Waived 219 SECTION 10.05. Rights of
Subrogation 220 SECTION 10.06. Reinstatement; Stay of Acceleration 220 SECTION
10.07. Information 220 SECTION 10.08. Termination 220 SECTION 10.09. Taxes 221
SECTION 10.10. Maximum Liability 221 SECTION 10.11. Contribution. 221 SECTION
10.12. Liability Cumulative 222 SECTION 10.13. Keepwell 222 ARTICLE XI THE
BORROWER REPRESENTATIVE 222 SECTION 11.01. Appointment; Nature of Relationship
222 SECTION 11.02. Powers 222 SECTION 11.03. Employment of Agents 223 DB2/
43463576.548024258.7 v 877026.02-LACSR02A - MSW SECTION 11.04. Successor
Borrower Representative 223 SECTION 11.05. Execution of Loan Documents;
Borrowing Base Certificate 223 ARTICLE XII COLLECTION ALLOCATION MECHANISM 223
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i 877026.02899508.02-LACSR02A - MSW DB2/ 43463576.548024258.7 SCHEDULES:
Commitment Schedule Schedule 1.01(a) - Existing Letters of Credit Schedule
1.01(b) - Unrestricted Subsidiaries Schedule 3.05 - Real Property Schedule
3.06 - Disclosed Matters Schedule 3.15 - Subsidiaries Schedule 5.22 -
Post-Closing Matters Schedule 6.01 - Existing Indebtedness Schedule 6.02 -
Existing Liens Schedule 6.04 - Existing Investments Schedule 6.10 - Existing
Restrictions EXHIBITS: Exhibit A -- Form of Assignment and Assumption Exhibit
B -- Form of Borrowing Base Certificate Exhibit C -- Form of Compliance
Certificate Exhibit D - Form of Joinder Agreement Exhibit E - Form of Solvency
Certificate Exhibit F - Form of Borrowing Request Exhibit G-1 - Form of U.S.
Tax Compliance Certificate Exhibit G-2 - Form of U.S. Tax Compliance
Certificate Exhibit G-3 - Form of U.S. Tax Compliance Certificate Exhibit G-4
- Form of U.S. Tax Compliance Certificate 877026.02-LACSR02A - MSW DB2/
43463576.548024258.7 CREDIT AGREEMENT CREDIT AGREEMENT dated as of August 30,
2019 (as it may be amended, amended and restated, supplemented or modified
from time to time, this "Agreement") by and among INSIGHT ENTERPRISES, INC., a
Delaware corporation ("Insight"), INSIGHT NORTH AMERICA, INC., an Arizona
corporation ("Insight NA"), INSIGHT DIRECT USA, INC., an Illinois corporation
("Insight Direct"), INSIGHT PUBLIC SECTOR, INC., an Illinois corporation
("Insight Public Sector"), INSIGHT RECEIVABLES, LLC, an Illinois limited
liability company ("Insight Receivables"), INSIGHT PHYSICAL SECURITY SOLUTIONS
LLC (FORMERLY KNOWN AS CALENCE PHYSICAL SECURITY SOLUTIONS LLC), an Arizona
limited liability company ("Insight Physical Security"), PCM, INC., a Delaware
corporation ("PCM"), PCM LOGISTICS, LLC, a Delaware limited liability company
("PCM Logistics"), TIGERDIRECT, LLC (FORMERLY KNOWN AS PCM SALES, LLC WHICH
WAS FORMERLY KNOWN AS PCM SALES, INC.), a California corporation ("TigerDirect")
, PCMG, INC., a Delaware corporation ("PCMG"), M2 MARKETPLACE, INC., a
Delaware corporation ("M2 Marketplace"), EN POINTE TECHNOLOGIES SALES, LLC, a
Delaware limited liability company ("En Pointe Technologies"), INSIGHT DIRECT
PHILIPPINES, LLC (FORMERLY KNOWN AS PCM BPO, LLC), a Delaware limited
liability company ("Insight Direct Philippines"), ONSALE HOLDINGS, INC., an
Illinois corporation ("OnSale HoldingsSADA SYSTEMS, LLC, a Delaware limited
liability company ("SADA Systems"), the other U.S. Borrowers (as defined
below) from time to time party hereto, INSIGHT DIRECT (UK) LTD, a company
incorporated under the laws of England with registration number 02579852
("Insight UK"), INSIGHT NETWORKING SOLUTIONS LIMITED, a company incorporated
under the laws of England with registration number 04482870 ("Insight
Networking"), STACK TECHNOLOGY HOLDINGS LTD, a company incorporated under the
laws of England with registration number 07170448 ("Stack Technology"), STACK
DATA SOLUTIONS LTD, a company incorporated under the laws of England with
registration number 01865047 ("Stack Data Solutions"), STACK TELECOMMUNICATIONS
SOLUTIONS LTD, a company incorporated under the laws of England with
registration number 07423212 ("Stack Telecommunications"), INTERCONNECT
NETWORK SYSTEMS LIMITED, a company incorporated under the laws of England with
registration number 03645464 ("Interconnect Network"), PCM TECHNOLOGY
SOLUTIONS UK, LTD, a company incorporated under the laws of England with
registration number 10326566 ("PCM Technology"), the other U.K. Borrowers (as
defined below) from time to time party hereto, INSIGHT ENTERPRISES NETHERLANDS
B.V., a besloten vennotschap met beperkte aansprakelijkheid, incorporated
under the laws of The Netherlands, having its official seat in Apeldoorn, The
Netherlands and registered with the Dutch trade register under number 08074503
("Insight Netherlands"), INSIGHT ENTERPRISES B.V., a besloten vennotschap met
beperkte aansprakelijkheid, incorporated under the laws of The Netherlands,
having its official seat in The Hague, The Netherlands and registered with the
Dutch trade register under number 27148512 ("Insight Enterprises"), the other
Dutch Borrowers (as defined below) from time to time party hereto, INSIGHT
ENTERPRISES AUSTRALIA PTY LTD ACN 058 645 677, a company registered in New
South Wales, Australia with its registered address at 'Building C', Level 3,
114 Old Pittwater Road, Brookvale NSW 2100 ("Insight Australia"), the other
Australian Borrowers (as defined below) from time to time party hereto, the
other Loan Parties (as defined below) from time to time party hereto, the
Lenders (as defined below) from time to time party hereto, and JPMORGAN CHASE
BANK, N.A., as Administrative Agent (as defined below) and Australian Security
Trustee. RECITALS WHEREAS, pursuant to that certain Agreement and Plan of
Merger, dated as of June 23, 2019 (as amended, supplemented, modified or
otherwise in effect from time to time, and including all exhibits and
schedules thereto, collectively, the "Trojan Merger Agreement"), entered into
by and among Insight, Merger Sub, and PCM, Insight will, directly or
indirectly, acquire by merger (the "Trojan Acquisition"),
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DB2/ 43463576.548024258.7 2 PCM (collectively with the Subsidiaries of PCM,
the "Target") pursuant to the terms of, and subject to the conditions set
forth in, the Trojan Merger Agreement; WHEREAS, on the Effective Date (as
defined below), the Trojan Acquisition will be effected by merger of Merger
Sub with and into PCM, with PCM being the surviving entity and a Wholly Owned
Subsidiary of Insight; WHEREAS, the Borrowers have requested, and the Lenders
have agreed to extend to the Borrowers, Revolving Commitments (as defined
below) of up to an aggregate principal amount of $1,800,000,000, subject to
the terms and conditions herein; and WHEREAS, the Lenders have indicated their
willingness to lend, and the Issuing Banks have indicated their willingness to
issue Letters of Credit, in each case, on the terms and subject to the
conditions set forth herein. In consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows: ARTICLE I
Definitions SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below: "Acceptable Real Estate
Appraisal" has the meaning assigned to such term in the definition of
"Eligible Real Property". "Account" has the meaning assigned to the term (a)
"Accounts" in the U.S. Security Agreement, (b) "Book Debts" in the U.K.
Debenture (with respect to Accounts of a U.K. Loan Party), (c) "Receivables"
in the Dutch Omnibus Pledge (with respect to Accounts of a Dutch Loan Party),
(d) "Accounts" in the Canadian Security Agreement (with respect to Accounts of
a Canadian Loan Party) and (e) account in the Australian PPSA (with respect to
Accounts of an Australian Loan Party or Accounts owed by Account Debtors
located in Australia). "Account Advance Rate" means (i) with respect to
Eligible Accounts owing from Investment Grade Account Debtors, 90% and (ii)
with respect to Eligible Accounts owing from all other Account Debtors, 85%
(it being understood that the Borrower Representative shall have the ability
to increase this advance rate to 90% under this clause (ii) for any two (2)
consecutive calendar months of each year at its option by providing the
Administrative Agent written notice of such increase at least ten (10) days
prior to the beginning of such two calendar month period, and such increase
shall apply with respect to each Borrowing Base) (other than the FILO
Borrowing Base)). "Account Debtor" means any Person obligated on an Account.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Effective Date, by which any Loan Party or any
Restricted Subsidiary (a) acquires any going business or all or substantially
all of the assets of any Person, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the Equity Interests of a Person which has ordinary voting
power for the election of directors or other similar management personnel of a
Person DB2/ 43463576.548024258.7 3 (other than Equity Interests having such
power only by reason of the happening of a contingency) or a majority of the
outstanding Equity Interests of a Person. "Additional Perfection Steps" means
the provision of Collateral Documents or the taking of further perfection
steps by the applicable Borrowers and/or Canadian Loan Guarantors, as
applicable (including notification of any security to the relevant Account
Debtors) (in each case to the extent requested by, and satisfactory to the
Administrative Agent), during a Cash Dominion Period in respect of Accounts of
Account Debtors of such Loan Parties to ensure, in the Administrative Agent's
Permitted Discretion, that the Administrative Agent has a duly perfected and
enforceable security interest and Lien on such Accounts under the laws of the
applicable jurisdiction. "Adjusted Daily Simple RFR" means, (i) with respect
to any RFR Borrowing denominated in Sterling, an interest rate per annum equal
to the Daily Simple RFR for Sterling and (ii) with respect to any RFR
Borrowing denominated in U.S. Dollars, an interest rate per annum equal to the
Daily Simple RFR for Dollars plus the Credit Adjustment Spread. "Adjusted
Daily Simple ESTR" means, with respect to any Overnight Rate Loan denominated
in Euros, an interest rate per annum equal to the Daily Simple ESTR for Euros.
"Adjusted EURIBOR Rate" means, with respect to any Term Benchmark Borrowing
denominated in Euros for any Interest Period, an interest rate per annum equal
to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate. "Adjusted REVSOFR30 Rate" (i) means an interest rate
per annum equal to (a) the REVSOFR30 Rate plus (b) the Credit Adjustment
Spread; provided that (x) if the Adjusted REVSOFR30 Rate as so determined
would be less than the Floor, such rate shall be deemed to be equal to the
Floor for the purposes of this Agreement and (y) if the REVSOFR30 Rate shall
not be available, then the Adjusted REVSOFR30 Rate shall be equal to the CB
Floating Rate (unless an alternate rate is established in accordance with
Section 2.14); and (ii) when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted REVSOFR30
Rate. "Adjusted Term SOFR Rate" means, with respect to any Term Benchmark
Borrowing denominated in U.S. Dollars for any Interest Period, an interest
rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus
(b) the Credit Adjustment Spread; provided that if the Adjusted Term SOFR Rate
as so determined would be less than the Floor, such rate shall be deemed to be
equal to the Floor for the purposes of this Agreement. "Administrative Agent"
means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for
the Lenders and collateral agent (including as Australian Security Trustee)
and hypothecary representative (pursuant to Section 8.01) for the Secured
Parties hereunder or, as applicable, such branches or affiliates of JPMorgan
Chase Bank, N.A. as it shall from time to time designate for the purposes of
performing its obligations hereunder in such capacities. References to the
"Administrative Agent" shall include any branch or affiliate of JPMorgan Chase
Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of
performing its obligations in such capacity. "Administrative Agent Fee Letter"
means that certain fee letter, dated June 23, 2019, by and between the
Administrative Agent and the Borrower Representative.
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DB2/ 43463576.548024258.7 4 "Administrative Questionnaire" means an
Administrative Questionnaire in a form supplied by the Administrative Agent.
"Affected Financial Institution" means (a) any EEA Financial Institution or
(b) any U.K. Financial Institution. "Affiliate" means, with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the specified Person. "Agent-Related Person" has the meaning assigned to
it in Section 9.03(c). "Aggregate Combined Commitment" means, at any time, the
sum of (a) the Aggregate Revolving Commitment at such time plus (b) the
Aggregate FILO Commitment at such time. "Aggregate Combined Exposure" means,
at any time, the sum of (a) the Aggregate Revolving Exposure at such time plus
(b) the Aggregate FILO Exposure at such time. "Aggregate Excess Availability"
means, as of any date of determination, an amount equal to the sum of (a) the
U.S. Excess Availability as of such time, plus (b) the Foreign Excess
Availability as of such time, plus (c) the FILO Excess Availability as of such
time. "Aggregate FILO Commitment" means, at any time, the aggregate of the
FILO Commitments of all of the Lenders at such time, as in effect or reduced
from time to time pursuant to the terms and conditions hereof. "Aggregate FILO
Exposure" means, at any time, the aggregate FILO Exposure of all the Lenders
at such time. "Aggregate Revolving Commitment" means, at any time, the
aggregate of the Revolving Commitments of all of the Lenders, as increased or
reduced from time to time pursuant to the terms and conditions hereof. As of
the Third Amendment Effective Date, the Aggregate Revolving Commitment is
$1,800,000,000. "Aggregate Revolving Exposure" means, at any time, the
aggregate Revolving Exposure of all the Lenders at such time. "Aggregate
Revolving Line Cap" means, at any time of determination, an amount equal to
the lesser of (a) the Aggregate Revolving Commitment and (b) the Global
Revolving Borrowing Base. "Alternate Rate" means, for any day and for any
Available Currency, the sum of (a) a rate per annum selected by the
Administrative Agent, in its reasonable discretion based on market conditions
and in consultation with the Borrower Representative, reflecting the cost to
the Lenders of obtaining funds (such rate shall become effective without any
further action or consent of any other party to this Agreement so long as the
Administrative Agent shall not have received, within five (5) Business Days of
the date notice of such alternate rate of interest is provided to the Lenders,
a written notice from the Required Lenders stating that such Required Lenders
object to such rate), plus (b) the Applicable Rate for Term Benchmark Loans.
When used in reference to any Loan or Borrowing, "Alternate Rate" refers to
whether such Loan, or the Loans comprising such Borrowing are bearing interest
at a rate determined by reference to the Alternate Rate. DB2/ 43463576.548024258
.7 5 Revolver RFR Spread/ Overnight Rate Spread Percentage set forth in FILO
Amendment Percentage set forth in FILO Amendment FILO CBFR/ REVSOFR30 Spread
Average Aggregate Excess Availability Category 2 < 50% of the Aggregate
Combined Commitment FILO Term Benchmark Spread 1.50% (or 0.00% if clause (y)
to the proviso to the definition of Adjusted REVSOFR30 Rate is applicable)
1.50% 1.50% Revolver CBFR/ REVSOFR30 Spread Percentage set forth in FILO
Amendment Category 1 >50% of the Aggregate Combined Commitment Percentage set
forth in FILO Amendment "Amortization Fixed Amount" means, as any time, an
amount equal to the lesser of (a) $120,000,000, and (b) 80% of the fair market
value of the Eligible Real Property as set forth in the most recent Acceptable
Real Estate Appraisal received by the Administrative Agent at such time.
"Anti-Corruption Laws" means all laws, rules, and regulations of any
jurisdiction applicable to any Loan Party or any of its Subsidiaries from time
to time concerning or relating to bribery or corruption or money laundering,
and includes the Canadian Anti-Money Laundering & Anti-Terrorism Legislation,
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder, and the U.K. Bribery Act of 2010. "Applicable Parties"
has the meaning assigned to it in Section 8.03(c). "Applicable Percentage"
means, (a) with respect to any U.S. Tranche Lender in respect of a U.S.
Tranche Credit Event, its U.S. Tranche Percentage, (b) with respect to any
Foreign Tranche Lender in respect of a Foreign Tranche Credit Event, its
Foreign Tranche Percentage, and (c) with respect to any FILO Lender in respect
of a FILO Credit Event, its FILO Percentage. "Applicable Rate" means, for any
day, with respect to any Loan, the applicable rate per annum set forth below
under the caption "Revolver CBFR/REVSOFR30 Spread", "Revolver Term Benchmark
Spread", "Revolver RFR Spread/Overnight Rate Spread", "FILO CBFR/REVSOFR30
Spread" or "FILO Term Benchmark Spread", as the case may be, based upon the
Average Aggregate Excess Availability during the most recently ended calendar
quarter; provided that the "Applicable Rate" shall be the applicable rates per
annum set forth below in Category 1 during the period from the Effective Date
to, and including, the last day of the calendar quarter ending on or about
December 31, 2019: For purposes of the foregoing, each change in the
Applicable Rate resulting from a change in Average Aggregate Excess
Availability shall be effective during the period commencing on and 1.25% (or
0.00% if clause (y) to the proviso to the definition of Adjusted REVSOFR30
Rate is applicable) Revolver Term Benchmark Spread 1.25% 1.25%
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DB2/ 43463576.548024258.7 6 including the first day of each calendar quarter
and ending on the last day of such calendar quarter, it being understood and
agreed that, for purposes of determining the Applicable Rate on the first day
of any calendar quarter, the Average Aggregate Excess Availability during the
most recently ended calendar quarter shall be used. Notwithstanding the
foregoing, if the Borrowers fail to deliver any Borrowing Base Certificate
required to be delivered by them pursuant to Section 5.01(g) to the
Administrative Agent within ten (10) Business Days of the time required to be
delivered pursuant to the terms hereof, then upon written notice by the
Administrative Agent to the Borrower Representative, the Average Aggregate
Excess Availability shall be deemed to be in Category 2 until five (5) days
after such Borrowing Base Certificate is so delivered to the Administrative
Agent. "Approved Electronic Platform" has the meaning assigned to it in
Section 8.03(a). "Approved Fund" has the meaning assigned to such term in
Section 9.04. "Approved Jurisdiction" means any of the following jurisdictions:
United Kingdom, Belgium, France, Germany, Ireland, Italy, The Netherlands,
Spain, Switzerland, Norway, Denmark, Sweden, Finland, Austria, Portugal,
Luxembourg, Australia, New Zealand, Singapore, and Hong Kong. "Arrangers"
means, collectively, (a) JPMCB, (b) Wells Fargo Bank, N.A., (c) Bank of
America, N.A. and (d) U.S. Bank National Association in their capacities as
joint bookrunners and joint lead arrangers hereunder. "Assignment and
Assumption" means an assignment and assumption agreement entered into by a
Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form (including electronic records generated by
the use of an electronic platform) approved by the Administrative Agent.
"Attributable Indebtedness" means, in respect of a Sale and Leaseback
Transaction that is a Capital Lease Obligation, at any date of determination,
the amount of Indebtedness represented thereby according to the definition of
"Capital Lease Obligation". "AUD Interpolated Rate" means, at any time, the
rate per annum determined by the Administrative Agent to be equal to the rate
that results from interpolating on a linear basis between: (a) the AUD Screen
Rate for the longest period for which that AUD Screen Rate is available that
is shorter than the Impacted AUD Rate Interest Period and (b) the AUD Screen
Rate for the shortest period for which that AUD Screen Rate is available that
exceeds the Impacted AUD Rate Interest Period, in each case, at such time. If
at any time the AUD Interpolated Rate is less than the Floor, the AUD
Interpolated Rate shall be deemed to be the Floor for purposes of this
Agreement. "AUD Rate" means, with respect to any Term Benchmark Borrowing
denominated in Australian Dollars and for any Interest Period, an interest
rate per annum equal to the AUD Screen Rate at approximately 11:00 A.M.,
Sydney, Australia time, on the first Business Day of such Interest Period;
provided, that, if the AUD Screen Rate shall not be available at such time for
such Interest Period (an "Impacted AUD Rate Interest Period"), then the AUD
Rate shall be the AUD Interpolated Rate. "AUD Screen Rate" means with respect
to any Interest Period, Australian Bank Bill Swap Reference Rate (Bid)
administered by ASX Benchmarks Pty Limited (ACN 616 075 417) (or any other
Person that takes over the administration of such rate) for Australian Dollar
bills of exchange with a tenor equal in length to such Interest Period as
displayed on page BBSY of the Reuters screen (or, in the event such rate does
not appear on such Reuters page, on any successor or substitute page on such
screen that displays such rate, or on the appropriate page of such other
information service that publishes such DB2/ 43463576.548024258.7 7 rate as
shall be selected by the Administrative Agent from time to time in its
reasonable discretion) at or about 11:00 a.m. (Sydney, Australia time) on the
first day of such Interest Period. If the AUD Screen Rate shall be less than
the Floor, the AUD Screen Rate shall be deemed to be the Floor for purposes of
this Agreement. "Australian Borrowers" means, each of, and collectively,
Insight Australia and any other Restricted Subsidiary registered under the
laws of Australia approved by the Administrative Agent that joins this
Agreement as an "Australian Borrower" in accordance with the terms hereof, and
"Australian Borrower" means any of them or all of them individually, as the
context may require. "Australian Borrowing Base" means, at any time, the
Dollar Equivalent of the result of, subject to the terms of Section 1.10: (A)
the Account Advance Rate of the Australian Eligible Accounts at such time,
less (B) Reserves applicable to the Australian Borrowing Base (which include
for greater certainty, Australian Priority Payable Reserves) established by
the Administrative Agent in its Permitted Discretion in accordance with
Section 1.10. "Australian Collateral Documents" means, collectively, the
Australian Specific Security Deed, the Australian General Security Deed and
any other agreements, instruments and documents executed in connection with
this Agreement that are intended to create, perfect or evidence Liens to
secure any of the Secured Obligations, including, without limitation, all
other security agreements, pledge agreements, debentures, share charges,
pledges, powers of attorney, assignments, financing statements, in each case
now or hereafter executed by any Australian Loan Party and delivered to the
Administrative Agent that are intended to create, perfect or evidence Liens on
assets of any Australian Loan Party to secure any of the Secured Obligations.
"Australian Corporations Act" means the Corporations Act 2001 (Cth) of
Australia. "Australian Dollars" or "A$" means dollars in the lawful currency
of Australia. "Australian Eligible Accounts" means the Eligible Accounts owned
by an Australian Borrower billed from and collected in Australia or any other
jurisdiction satisfactory to the Administrative Agent in its Permitted
Discretion owing by an Account Debtor in the United States, Canada or an
Approved Jurisdiction that comply in all material respects with each of the
representations and warranties respecting Eligible Accounts that are
Australian Eligible Accounts made in the Loan Documents. "Australian General
Security Deed" means that certain General Security Deed, dated as of the Third
Amendment Effective Date, by and among the Australian Loan Parties party
thereto and the Australian Security Trustee, for the benefit of the Australian
Security Trustee and the other Secured Parties. "Australian Loan Parties"
means, each of, and collectively, the Australian Borrowers, Ignia Pty Ltd ACN
093 490 823, a company registered in Western Australia, Australia, with its
registered address at 'Building C', Level 3, 120 Old Pittwater Road, Brookvale
NSW 2100, Insight Australia Holdings Pty Ltd ACN 073 091 406, a company
registered in New South Wales, Australia, with its registered address at
'Building C', Level 3, 120 Old Pittwater Road, Brookvale NSW 2100, and any
other Restricted Subsidiary of Insight organized under the laws of Australia
who becomes a party to this Agreement pursuant to a Joinder Agreement and
their respective successors and assigns, and the term "Australian
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DB2/ 43463576.548024258.7 8 Loan Party" means any one of them or all of them
individually, as the context may require. For the avoidance of doubt,
Australian Loan Parties shall not include any Excluded Subsidiary. "Australian
Overnight Rate" means, for any day in respect of Loans made to any Australian
Borrowers under the Foreign Tranche, with respect to any amount denominated in
U.S. Dollars, the Overnight Lending Rate. "Australian Pension Plan" means a
superannuation, retirement benefit or pension fund (whether established by
deed or under any statute of Australia or any state or territory of Australia)
contributed to by, or to which there is or may be an obligation to contribute
by, any Loan Party in respect of its Australian employees and officers or
former employees and officers. "Australian PPSA" means the Personal Property
Securities Act 2009 (Cth) of Australia and includes any regulations made
thereunder. "Australian Priority Payable Reserves" means, with respect to any
Australian Loan Party, a reserve established by the Administrative Agent in
its Permitted Discretion in accordance with Section 1.10 with respect to
amounts which rank or are capable of ranking senior to or pari passu with
Liens securing the Secured Obligations on any Collateral under any applicable
law, including without limitation, any such amounts due or which may become
due and not paid for wages, long service leave, retrenchment, payment in lieu
of notice, or vacation pay (including in all respects amounts protected by or
payable pursuant to the Fair Work Act 2009 (Cth) of Australia), any
preferential claims as set out in the Australian Corporations Act, amounts due
or which may become due and not paid under any legislation relating to
workers' compensation or to employment insurance, all amounts deducted or
withheld and not paid and remitted when due under the Taxation Administration
Act 1953 (Cth) of Australia (but excluding "Pay as You Go" income withholding
tax) and amounts in the future, currently or past due and not contributed,
remitted or paid in respect of any Australian Pension Plan, together with any
charges which may be levied by a Governmental Authority as a result of any
default in payment obligations in respect of any Australian Pension Plan.
"Australian Qualifying Lender" means, in respect of a payment by or in respect
of a Borrower that is tax resident in Australia, a Lender which is
beneficially entitled to interest payable to that Lender in respect of a Loan
Document and is (a) a resident of Australia (and not lending in carrying on
business at or through a permanent establishment outside Australia) or is a
non-resident of Australia and is lending in carrying on business at or through
a permanent establishment in Australia or (b) an Australian Treaty Lender.
"Australian Security Trust Deed" means the security trust deed, dated as of
the Third Amendment Effective Date, between the Australian Loan Parties and
the Australian Security Trustee. "Australian Security Trustee" means the
Administrative Agent and shall include its successors and assigns. "Australian
Specific Security Deed" means the specific security deed (marketable
securities), dated as of the Third Amendment Effective Date, between the
Australian Loan Parties and the Australian Security Trustee, for the benefit
of the Australian Security Trustee and the other Secured Parties. "Australian
Tax Act" means the Income Tax Assessment Act 1936 (Cth) of Australia or the
Income Tax Assessment Act 1997 (Cth) of Australia, as relevant. DB2/
43463576.548024258.7 9 "Australian Tax Consolidated Group" means a
"Consolidated Group" or an "MEC Group" as defined in the applicable Australian
Tax Act. "Australian Tax Consolidated Group Liabilities" means "group
liabilities" (as described in Section 721-10 of the Australian Tax Act) of the
Australian Tax Consolidated Group. "Australian Treaty" means a double tax
agreement between Australia and another jurisdiction. "Australian Treaty
Lender" means, in relation to a payment of interest by or in respect of a
Borrower resident in Australia for tax purposes under a Loan Document, a
Lender which (a) is treated as a resident of an Australian Treaty State for
the purposes of the Australian Treaty; (b) does not carry on a business in
Australia at or through a permanent establishment with which that Lender's
participation in a Loan, Letter of Credit or Revolving Commitment is
effectively connected; and (c) fulfils any other conditions which must be
fulfilled under the Australian Treaty and the laws of Australia by residents
of that Australian Treaty State for such residents to obtain full exemption
from taxation on interest in Australia (including the completion of any
necessary procedural formalities). "Australian Treaty State" means a
jurisdiction which is party to an Australian Treaty which makes provision for
full exemption from tax imposed by Australia on interest. "Available
Currencies" means, collectively, U.S. Dollars, Euros, Australian Dollars and
Sterling; provided that in respect of any Borrowings by, Loans made to or
Letters of Credit issued for the account of any Borrower that is (x) not an
Australian Borrower, the term "Available Currencies" shall not include
Australian Dollars and (y) an Australian Borrower, the term "Available
Currencies" shall only mean Australian Dollars and U.S. Dollars. "Available
FILO Commitment" means, at any time, the Aggregate FILO Commitment minus the
Aggregate FILO Exposure (calculated, with respect to any Defaulting Lender, as
if such Defaulting Lender had funded its Applicable Percentage of all
outstanding FILO Borrowings). "Available Revolving Commitment" means, at any
time, the Aggregate Revolving Commitment minus the Aggregate Revolving
Exposure (calculated, with respect to any Defaulting Lender, as if such
Defaulting Lender had funded its Applicable Percentage of all outstanding
Revolving Borrowings). "Available Tenor" means, as of any date of
determination and with respect to the then-current Benchmark, as applicable,
any tenor for such Benchmark (or component thereof) or payment period for
interest calculated with reference to such Benchmark (or component thereof),
as applicable, that is or may be used for determining the length of an
Interest Period for any term rate or otherwise, for determining any frequency
of making payments of interest calculated pursuant to this Agreement as of
such date and not including, for the avoidance of doubt, any tenor for such
Benchmark that is then-removed from the definition of "Interest Period"
pursuant to clause (g) of Section 2.14. "Average Aggregate Excess
Availability" means, for any period, an amount equal to the average daily
Aggregate Excess Availability during such period, as determined by the
Administrative Agent's system of records; provided, that in order to determine
Aggregate Excess Availability on any day for purposes of this definition, the
Global Borrowing Base and each Borrower's Borrowing Base for such day shall be
determined by reference to the most recent Borrowing Base Certificate
delivered to the Administrative Agent pursuant to Section 4.01(h) (at all
times prior to the first delivery of a Borrowing Base Certificate after the
Effective Date pursuant to Section 5.01(g)) or Section 5.01(g) as of such day.
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DB2/ 43463576.548024258.7 10 "Bail-In Action" means the exercise of any
Write-Down and Conversion Powers by the applicable 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
Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law, regulation, rule or
requirement for such EEA Member Country from time to time which is described
in the EU Bail-In Legislation Schedule and (b) with respect to the United
Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time
to time) and any other law, regulation or rule applicable in the United
Kingdom relating to the resolution of unsound or failing banks, investment
firms or other financial institutions or their affiliates (other than through
liquidation, administration or other insolvency proceedings). "Bank Levy"
means any amount payable by any Loan Party or its Subsidiaries on the basis
of, or in relation to, (i) its balance sheet or capital base or any part of
that person or its liabilities or minimum regulatory capital or any
combination thereof (including, without limitation, the United Kingdom bank
levy as set out in the Finance Act 2011, the French taxe de risque systemique
as set out in article 235 ter ZE of the French Code general des impots and the
French taxe pour le financement du fonds de soutien aux collectivites
territoriales as set out in article 235 ter ZE bis of the French Code general
des impots, the German bank levy as set out in the German Restructuring Fund
Act 2010 (Restrukturierungsfondsgesetz), the Dutch bankenbelasting as set out
in the Dutch bank levy act (Wet bankenbelasting), the Austrian bank levy as
set out in the Austrian Stability Duty Act (Stabilitatsgesetz), the Spanish
bank levy (Impuesto sobre los Depositos en las Entidades de Credito) as set
out in the Law 16/2012 of December 27, 2012, the Swedish bank levy as set out
in the Swedish Precautionary Support Act (Sw. lag (2015:1017) om forebyggande
statligt stod till kreditinstitut) (as amended)) and any tax in any
jurisdiction levied on a similar basis or for a similar purpose or (ii) any
financial activities taxes (or other taxes) of a kind contemplated in the
European Commission consultation paper on financial sector taxation dated
February 22, 2011 which has been enacted and which has been formally announced
as proposed as at the date of this Agreement. "Banking Services" means each
and any of the following bank services provided to any Loan Party (or its
Subsidiaries if the Borrower Representative has provided written notice to the
Administrative Agent that such services are to be included as "Banking
Services" hereunder) by any Lender or any of its Affiliates: (a) credit cards
for commercial customers (including, without limitation, "commercial credit
cards" and purchasing cards), (b) stored value cards, (c) merchant processing
services, (d) treasury management services (including, without limitation,
controlled disbursement, automated clearinghouse transactions, return items,
any direct debit scheme or arrangement, overdrafts, cash pooling services, and
interstate depository network services), (e) Secured Inventory Financing
Indebtedness, and (f) foreign exchange and currency management services.
"Banking Services Obligations" means any and all obligations of the Loan
Parties and their Subsidiaries, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor) in
connection with Banking Services. "Banking Services Reserves" means all
Reserves which the Administrative Agent from time to time establishes in its
Permitted Discretion in accordance with Section 1.10 for Banking Services then
outstanding. "Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor
statute. DB2/ 43463576.548024258.7 11 "Bankruptcy Event" means, with respect
to any Person, when such Person becomes the subject of a voluntary or
involuntary bankruptcy or insolvency proceeding, or has had a receiver,
receiver and manager, interim receiver, monitor, conservator, trustee,
administrator, custodian, sequestrator, liquidator, Controller, assignee for
the benefit of creditors or similar Person charged with the reorganization or
liquidation of its business, appointed for it, or, in the good faith
determination of the Administrative Agent, has taken any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any such
proceeding or appointment or has had any order for relief in such proceeding
entered in respect thereof, provided that a Bankruptcy Event shall not result
solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a Governmental Authority or
instrumentality thereof, unless such ownership interest results in or provides
such Person with immunity from the jurisdiction of courts within the U.S.,
Canada, Australia, the United Kingdom, or The Netherlands or from the
enforcement of judgments or writs of attachment on its assets or permits such
Person (or such Governmental Authority or instrumentality), to reject,
repudiate, disavow or disaffirm any contracts or agreements made by such
Person. "Benchmark" means, initially, with respect to any (a) RFR Loan in any
Available Currency, the applicable Relevant Rate for such Available Currency,
(b) Term Benchmark Loan, the Relevant Rate for such Available Currency or (c)
Adjusted REVSOFR30 Rate Loan, the REVSOFR30 Rate; provided that if a Benchmark
Transition Event and the related Benchmark Replacement Date have occurred with
respect to the applicable Relevant Rate or the then-current Benchmark for such
Available Currency, then "Benchmark" means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such
prior benchmark rate pursuant to clause (c) of Section 2.14. "Benchmark
Replacement" means, for any Available Tenor, the first alternative set forth
in the order below that can be determined by the Administrative Agent for the
applicable Benchmark Replacement Date; provided that, in the case of any Loan
denominated in an Available Currency (other than U.S. Dollars), "Benchmark
Replacement" shall mean the alternative set forth in (2) below: (1) in the
case of any Loan denominated in U.S. Dollars, the Adjusted Daily Simple RFR;
and (2) the sum of: (a) the alternate benchmark rate that has been selected by
the Administrative Agent and the Borrower Representative as the replacement
for the then-current Benchmark for the applicable Corresponding Tenor giving
due consideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention
for determining a benchmark rate as a replacement for the then-current
Benchmark for syndicated credit facilities denominated in the applicable
Available Currency at such time in the United States and (b) the related
Benchmark Replacement Adjustment. If the Benchmark Replacement as determined
pursuant to clause (1) or (2) above would be less than the Floor, the
Benchmark Replacement will be deemed to be the Floor for the purposes of this
Agreement 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 and
Available Tenor for any setting of such Unadjusted Benchmark Replacement, the
spread adjustment, or method for calculating or determining such spread
adjustment, (which may be a positive or negative value or zero) that has been
selected by the Administrative Agent and the Borrower Representative for the
applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement
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DB2/ 43463576.548024258.7 12 of such Benchmark with the applicable Unadjusted
Benchmark Replacement by the Relevant Governmental Body on the applicable
Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market
convention for determining a spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of such Benchmark with
the applicable Unadjusted Benchmark Replacement for syndicated credit
facilities denominated in the applicable Available Currency at such time.
"Benchmark Replacement Conforming Changes" means, with respect to any
Benchmark Replacement and/or any Term Benchmark Loan denominated in U.S.
Dollars or Adjusted REVSOFR30 Rate Loan, any technical, administrative or
operational changes (including changes to the definition of the definition of
"Business Day," the definition of "U.S. Government Securities Business Day",
the definition of "Interest Period," timing and frequency of determining rates
and making payments 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 or
operational matters) that the Administrative Agent decides may be appropriate
to reflect the adoption and implementation of such Benchmark and to permit the
administration thereof by the Administrative Agent in a manner substantially
consistent with market practice (or, if the Administrative Agent decides that
adoption of any portion of such market practice is not administratively
feasible or if the Administrative Agent determines that no market practice for
the administration of such Benchmark exists, in such other manner of
administration as the Administrative Agent decides is reasonably necessary 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 of the 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 therein and (b) the date on
which the administrator of such Benchmark (or the published component used in
the calculation thereof) permanently or indefinitely ceases to provide all
Available Tenors of such Benchmark (or such component thereof); or (2) in the
case of clause (3) of the definition of "Benchmark Transition Event," the
first 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 such Benchmark (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 publication
referenced in such clause (3) and even if any Available Tenor of such
Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be
deemed to have occurred prior to the Reference Time for such determination and
(ii) the "Benchmark Replacement Date" will be deemed to have occurred in the
case of clause (1) or (2) with respect to any Benchmark upon the occurrence of
the applicable event or events set forth therein with respect to all
then-current Available Tenors of such Benchmark (or the published component
used in the calculation thereof). "Benchmark Transition Event" means, with
respect to any Benchmark, the occurrence of one or more 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 administrator of such
Benchmark (or the published component used in the calculation thereof) DB2/
43463576.548024258.7 13 announcing that such 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 such
statement or publication, there is no successor administrator that will
continue to provide any Available Tenor of such Benchmark (or such component
thereof); (2) a public statement or publication of information by the
regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof), the Federal Reserve
Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the
Available Currency applicable to such Benchmark, an insolvency official with
jurisdiction over the administrator for such Benchmark (or such component), a
resolution authority with jurisdiction over the administrator for such
Benchmark (or such component) or a court or an entity with similar insolvency
or resolution authority over the administrator for such Benchmark (or such
component), in each case, which states that the administrator of such
Benchmark (or such component) 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 such statement or publication,
there is no successor administrator that will 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 the
administrator 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 no longer, 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 occurred with respect to any
Benchmark if a public statement or publication of information set forth above
has occurred with respect to each then-current Available Tenor of such
Benchmark (or the published component used in the calculation thereof).
"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 that definition has occurred if, at such
time, no Benchmark Replacement has replaced such then-current Benchmark for
all purposes hereunder and under any Loan Document in accordance with Section
2.14 and (y) ending at the time that a Benchmark Replacement has replaced such
then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with Section 2.14. "Beneficial Ownership Certification" means a
certification regarding beneficial ownership as required by the Beneficial
Ownership Regulation. "Beneficial Ownership Regulation" means 31 C.F.R. (s)
1010.230. "Benefit Plan" means any of (a) an "employee benefit plan" (as
defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a
"plan" as defined in Section 4975 of the Code to which Section 4975 of the
Code applies, and (c) any Person whose assets include (for purposes of the
Plan Asset Regulations or otherwise for purposes of Title I of ERISA or
Section 4975 of the Code) the assets of any such "employee benefit plan" or
"plan". "BHC Act Affiliate": means an "affiliate" (as such term is defined
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of a party.
"Blocking Regulation" has the meaning assigned to it in Section 3.21.
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DB2/ 43463576.548024258.7 14 "Borrowers" means, collectively, the U.S.
Borrowers, the U.K. Borrowers, the Dutch Borrowers and the Australian
Borrowers, and "Borrower" means any of them. "Borrower Representative" has the
meaning assigned to such term in Section 11.01. "Borrowing" means (a)
Revolving Loans of the same Type and currency, made, converted or continued on
the same date and, in the case of Term Benchmark Loans, as to which a single
Interest Period is in effect, (b) FILO Loans of the same Type and currency,
made, converted or continued on the same date and, in the case of Term
Benchmark Loans, as to which a single Interest Period is in effect, (c) a
Protective Advance, (d) a Revolving Overadvance and (e) a FILO Overadvance.
"Borrowing Base" means the Global Borrowing Base, the Global Revolving
Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing Base, the Dutch
Borrowing Base, the Australian Borrowing Base or the FILO Borrowing Base, as
the context may require. "Borrowing Base Certificate" means a certificate
setting forth the calculation of the Global Borrowing Base, the Global
Revolving Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing Base,
the Dutch Borrowing Base, the Australian Borrowing Base and the FILO Borrowing
Base (in each case, as applicable), signed and certified in all material
respects as accurate and complete by a Financial Officer of the Borrower
Representative, in substantially the form of Exhibit B or another form which
is acceptable to the Administrative Agent in its Permitted Discretion.
"Borrowing Request" means a request by the Borrower Representative for a
Borrowing in accordance with Section 2.03. "Business Day" means any day that
is not a Saturday, Sunday or other day on which commercial banks in New York
City are authorized or required by law to remain closed; provided that, (a)
when used in connection with Loans to the U.K. Borrowers or the Dutch
Borrowers, the term "Business Day" shall also exclude any day on which banks
are not open for general business in London or Frankfurt, and (b) in relation
to Loans denominated in Euros and in relation to the calculation or
computation of EURIBOR, the term "Business Day" shall also exclude any day on
which the TARGET2 payment system is not open for the settlement payment of
payment in Euros, (c) in relation to Loans denominated in Australian Dollars
and in relation to the calculation or computation of the AUD Screen Rate, the
term "Business Day" shall also exclude any day (other than a Saturday or a
Sunday) on which banks are not open for business in Sydney, Australia, (d) in
relation to RFR Loans and any interest rate settings, fundings, disbursements,
settlements or payments of any such RFR Loan, or any other dealings in the
applicable Available Currency of such RFR Loan, the term "Business Day" shall
also exclude any day that is not an RFR Business Day and (e) in relation to
Loans referencing the Adjusted Term SOFR Rate and any interest rate settings,
fundings, disbursements, settlements or payments of any such Loans referencing
the Adjusted Term SOFR Rate or any other dealings of such Loans referencing
the Adjusted Term SOFR Rate, the term "Business Day" shall also exclude any
day that is not a U.S. Government Securities Business Day. "CAM" means the
mechanism for the allocation and exchange of interests in the Tranches and the
collections thereunder established under Article XII. "CAM Exchange" means the
exchange of any Lender's interests provided for in Article XII. DB2/
43463576.548024258.7 15 "CAM Exchange Date" means the first date on which
there shall occur (a) any event referred to in clause (h) or (i) of Article
VII in respect of any Borrower or (b) an acceleration of Loans and termination
of the Revolving Commitments and FILO Commitments pursuant to Article VII.
"CAM Percentage" means, as to each Revolving Lender, a fraction, expressed as
a decimal, of which (a) the numerator shall be the sum of the Dollar
Equivalents (determined on the basis of Spot Selling Rate prevailing on the
CAM Exchange Date) of the Designated Obligations owed to such Revolving Lender
(whether or not at the time due and payable) immediately prior to the CAM
Exchange and (b) the denominator shall be the sum of the Dollar Equivalents
(as so determined) of the Designated Obligations owed to all the Revolving
Lenders (whether or not at the time due and payable) immediately prior to the
CAM Exchange. "Canadian Anti-Money Laundering & Anti-Terrorism Legislation"
means, collectively, the Criminal Code, R.S.C. 1985, c. C-46, the Proceeds of
Crime Act, c. 17 and the United Nations Act, R.S.C. 1985, c. U-2 or any
similar Canadian legislation, together with all rules, regulations and
interpretations thereunder or related thereto including, without limitation,
the Regulations Implementing the United Nations Resolutions on the Suppression
of Terrorism and the United Nations Al Qaida and Taliban Regulations
promulgated under the United Nations Act. "Canadian Blocked Person" means any
Person that is a "politically exposed foreign person" as defined in the
Freezing Assets of Corrupt Foreign Officials Act (Canada), or "terrorist
group" as defined in Part II.1 of the Criminal Code (Canada). "Canadian
Collateral Documents" means, collectively, the Canadian Security Agreement,
and any other agreements, instruments and documents executed in connection
with this Agreement that are intended to create, perfect or evidence Liens on
assets of any Loan Party to secure any of the Secured Obligations, including,
without limitation, all other security agreements, pledge agreements, deeds of
hypothec, debentures, share charges, pledges, powers of attorney, assignments,
and financing statements, in each case now or hereafter executed by any
Canadian Loan Guarantor and delivered to the Administrative Agent that are
intended to create, perfect or evidence Liens on assets of any Canadian Loan
Guarantor to secure any of the Secured Obligations. "Canadian Defined Benefit
Plan" means a pension plan for the purposes of any applicable pension benefits
standards statute or regulation in Canada, which contains a "defined benefit
provision," as defined in subsection 147.1(1) of the Income Tax Act (Canada).
"Canadian Economic Sanctions and Export Control Laws" means any Canadian laws,
regulations or orders governing transactions in controlled goods or
technologies or dealings with countries, entities, organizations, or
individuals subject to economic sanctions and similar measures, including the
Special Economic Measures Act (Canada), the United Nations Act (Canada), the
Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the
Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any
related regulations. "Canadian ITA" means the Income Tax Act (Canada) and the
regulations thereunder, as amended "Canadian Loan Guarantors" means, each of,
and collectively, 3683371 Canada Inc., a Canadian corporation, Insight Canada
Inc., an Ontario corporation, Insight Direct Canada, Inc., a Canadian
corporation, PCM Ventes Canada, Inc. / PCM Sales Canada, Inc., a Quebec
corporation, Acrodex Inc., an Alberta corporation and any other Restricted
Subsidiary of Insight organized under applicable law of Canada or any province
or territory of Canada which becomes a party to this Agreement pursuant to a
Joinder Agreement and their successors and assigns, and the term "Canadian
Loan Guarantor" means any
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DB2/ 43463576.548024258.7 16 one of them or all of them individually, as the
context may require. For the avoidance of doubt, Canadian Loan Guarantors
shall not include any Excluded Subsidiary. "Canadian Loan Party" means each
Canadian Loan Guarantor. "Canadian Pension Event" means (a) the whole or
partial withdrawal of the Canadian Loan Party or another Loan Party from a
Canadian Pension Plan during a plan year; or (b) the filing of a notice of
intent to terminate in whole or in part a Canadian Pension Plan or the
treatment of a Canadian Pension Plan amendment as a termination or partial
termination; or (c) the institution of proceedings by any Governmental
Authority to terminate in whole or in part or have a trustee appointed to
administer a Canadian Pension Plan; or (d) any other event or condition which
might constitute grounds for the termination of, winding up or partial
termination of winding up or the appointment of trustee to administer, any
Canadian Pension Plan. "Canadian Pension Plan" means a pension plan that is
covered by the applicable pension standards laws of any jurisdiction in Canada
including the Pension Benefits Act (Ontario) and the Income Tax Act (Canada)
and that is either (a) maintained or sponsored by the Canadian Loan Party for
employees or (b) maintained pursuant to a collective bargaining agreement, or
other arrangement under which more than one employer makes contributions and
to which the Canadian Loan Party is making or accruing an obligation to make
contributions or has within the preceding five years made or accrued such
contributions. "Canadian Priority Payable Reserves" means the Reserves
established in the Permitted Discretion of the Administrative Agent in
accordance with Section 1.10 for amounts owing by a Canadian Loan Party
secured by any Liens, choate or inchoate, which rank or are capable of ranking
in priority to the Administrative Agent's Liens and/or for amounts which may
represent costs relating to the enforcement of the Administrative Agent's
Liens including, without limitation, in the Permitted Discretion of the
Administrative Agent, any such amounts due and not paid for wages, salaries,
commission or compensation, including vacation pay (including as provided for
under WEPPA), amounts due and not paid under any legislation relating to
workers' compensation or to employment insurance, all amounts deducted or
withheld and not paid and remitted when due under the Income Tax Act (Canada),
amounts currently or past due and not paid for realty, municipal or similar
taxes, any and all solvency deficiencies, unfunded liabilities on wind-up or
wind-up deficiencies in regards to any Canadian Pension Plan which is a
defined benefit plan (to the extent impacting personal or moveable property)
and all amounts currently or past due and not contributed, remitted or paid to
any Canadian Pension Plan or under the Canada Pension Plan, the Pension
Benefits Act (Ontario) or any similar legislation. "Canadian Security
Agreement" means that certain Canadian Pledge and Security Agreement
(including any and all supplements thereto), dated as of the date hereof, by
and among the Canadian Loan Parties party thereto and the Administrative
Agent, for the benefit of the Administrative Agent and the other Secured
Parties. "Capital Expenditures" means, without duplication, any expenditure or
commitment to expend money for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a consolidated
balance sheet of Insight and its Restricted Subsidiaries prepared in
accordance with GAAP. "Capital Lease Obligations" of any Person means, subject
to Section 1.04(b), the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are
required to be classified DB2/ 43463576.548024258.7 17 and accounted for as
capital leases or financing leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP. "Cash Dominion Period" means each
period (a) commencing on the date that (i) Aggregate Excess Availability shall
be less than (A) 7.5% of the Aggregate Combined Commitment then in effect or
(B) 10% of the Aggregate Combined Commitment then in effect for three (3)
consecutive Business Days, or (ii) a Specified Event of Default shall have
occurred and be continuing, and (b) continuing until (i) to the extent that
the Cash Dominion Period has occurred due to clause (a)(i) of this definition,
during each of the preceding thirty (30) consecutive days, Aggregate Excess
Availability has been equal to or more than an amount equal to 10% of the
Aggregate Combined Commitment then in effect or (ii) to the extent that the
Cash Dominion Period has occurred due to clause (a)(ii) of this definition,
until no Specified Event of Default shall be continuing. "Cash Management
Obligations" means each and any of the following bank services provided to any
Loan Party or any of its Restricted Subsidiaries: (a) credit cards for
commercial customers (including, without limitation, "commercial credit cards"
and purchasing cards), (b) stored value cards, (c) merchant processing
services, (d) treasury management services (including, without limitation,
controlled disbursement, automated clearinghouse transactions, return items,
any direct debit scheme or arrangement, overdrafts, cash pooling services, and
interstate depository network services), and (e) foreign exchange and currency
management services. "Cash Pooling Arrangements" means the cash pooling
arrangements maintained by the Foreign Restricted Subsidiaries of Insight with
Bank of America, N.A. (or any other financial institution reasonably
acceptable to the Administrative Agent) in the ordinary course of business in
order to manage currency fluctuations and overdrafts among deposit accounts of
such Subsidiaries; provided that such arrangements are on a zero balance basis
with a net positive aggregate balance at all times. "CB Floating Rate" means
the greater of the Prime Rate or 2.5%. Any change in the CB Floating Rate due
to a change in the Prime Rate shall be effective from and including the
effective date of such change in the Prime Rate. "CBFR" when used in reference
to: (a) a rate of interest, refers to the Adjusted REVSOFR30 Rate and (b) any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, bear interest at a rate determined by reference to the Adjusted
REVSOFR30 Rate. "Cdn$" means dollars in the lawful currency of Canada.
"Central Bank Rate" means (A) the greater of (i) for any Loan denominated in
(a) Sterling, the Bank of England (or any successor thereto)'s "Bank Rate" as
published by the Bank of England (or any successor thereto) from time to time,
(b) Euro, one of the following three rates as may be selected by the
Administrative Agent in its reasonable discretion: (1) the fixed rate for the
main refinancing operations of the European Central Bank (or any successor
thereto), or, if that rate is not published, the minimum bid rate for the main
refinancing operations of the European Central Bank (or any successor
thereto), each as published by the European Central Bank (or any successor
thereto) from time to time, (2) the rate for the marginal lending facility of
the European Central Bank (or any successor thereto), as published by the
European Central Bank (or any successor thereto) from time to time or (3) the
rate for the deposit facility of the central banking system of the
Participating Member States, as published by the European Central Bank (or any
successor thereto) from time to time, and (c) any other Available Currency
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DB2/ 43463576.548024258.7 18 determined after the Effective Date, a central
bank rate as determined by the Administrative Agent in its reasonable
discretion and (ii) the Floor; plus (B) the applicable Central Bank Rate
Adjustment. "Central Bank Rate Adjustment" means, for any day, for any Loan
denominated in (a) Euro, a rate equal to the difference (which may be a
positive or negative value or zero) of (i) the average of the EURIBOR Rate for
the five most recent Business Days preceding such day for which the EURIBOR
Screen Rate was available (excluding, from such averaging, the highest and the
lowest EURIBOR Rate applicable during such period of five Business Days) minus
(ii) the Central Bank Rate in respect of Euro in effect on the last Business
Day in such period, (b) Sterling, a rate equal to the difference (which may be
a positive or negative value or zero) of (i) the average of SONIA for the five
(5) most recent RFR Business Days preceding such day for which SONIA was
available (excluding, from such averaging, the highest and the lowest SONIA
applicable during such period of five (5) RFR Business Days) minus (ii) the
Central Bank Rate in respect of Sterling in effect on the last RFR Business
Day in such period, and (c) Australian Dollars or any other Available Currency
determined after the Effective Date, a Central Bank Rate Adjustment as
determined by the Administrative Agent in its reasonable discretion. For
purposes of this definition, (x) the term Central Bank Rate shall be
determined disregarding clause (B) of the definition of such term and (y) the
EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate on such day
at approximately the time referred to in the definition of such term for
deposits in the applicable Available Currency for a maturity of one month (or,
in the event the EURIBOR Screen Rate for deposits in the applicable Available
Currency is not available for such maturity of one month, shall be based on
the EURIBOR Interpolated Rate as of such time); provided that if such rate
shall be less than zero, such rate shall be deemed to be zero. "Change in
Control" means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the SEC thereunder as in
effect on the date hereof), of Equity Interests representing more than 35% of
the aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Insight; (b) occupation at any time of a majority of the
seats (other than vacant seats) on the board of directors of Insight by
Persons who were neither (i) (A) nominated by the board of directors of
Insight, (B) appointed by the board of directors of Insight or (C) approved by
the board of directors of Insight for consideration by the shareholders for
election, nor (ii) appointed by directors so nominated, appointed or approved;
or (c) except in a transaction permitted hereunder, Insight shall cease to
own, directly or indirectly, 100% of the outstanding voting Equity Interests
of the other Borrowers and Loan Parties. "Change in Law" means the occurrence
after the date of this Agreement (or, with respect to any Lender, such later
date on which such Lender becomes a party to this Agreement) of any of the
following: (a) the adoption of or taking effect of any law, rule, regulation
or treaty; (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
Governmental Authority; or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or
by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline, requirement or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement; provided that notwithstanding anything herein to the contrary, (x)
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines, requirements or directives thereunder or issued
in connection therewith or in the implementation thereof or any European
equivalent regulation (such as the European Market and Infrastructure
Regulation), and (y) all requests, rules, guidelines, requirements or
directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a "Change in Law", regardless of
the date enacted, adopted, issued or implemented. DB2/ 43463576.548024258.7 19
"Charges" has the meaning assigned to such term in Section 9.17. "Class", when
used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Loans, FILO Loans,
Protective Advances, Revolving Overadvances or FILO Overadvances. "CME Term
SOFR Administrator" means CME Group Benchmark Administration Limited as
administrator of the forward-looking term Secured Overnight Financing Rate
(SOFR) (or a successor administrator). "Co-Documentation Agent" means each of
(a) Bank of the West, (b) Truist Bank and (c) PNC Bank, National Association.
"Co-Syndication Agent" means each of (a) JPMCB, (b) Wells Fargo Bank, N.A.,
(c) Bank of America, N.A. and (d) U.S. Bank National Association. "Code" means
the Internal Revenue Code of 1986, as amended from time to time. "Collateral"
means the Global Collateral. "Collateral Access Agreement" has the meaning
assigned to such term in the applicable Collateral Documents. "Collateral
Documents" means, collectively, the Canadian Collateral Documents, the U.S.
Collateral Documents, the U.K. Collateral Documents, the Dutch Collateral
Documents, the Australian Collateral Documents, the Irish Security Agreement
and the U.K. Book Debts and Account Charge and any other agreements,
instruments and documents executed in connection with this Agreement that are
intended to create, perfect or evidence Liens on assets of any Loan Party to
secure any of the Secured Obligations, including, without limitation, all
other security agreements, pledge agreements, deeds of hypothec, debentures,
share charges, pledges, powers of attorney, assignments, financing statements,
in each case now or hereafter executed by any Loan Party and delivered to the
Administrative Agent that are intended to create, perfect or evidence Liens on
assets of any Loan Party to secure any of the Secured Obligations. "Collection
Account" means, (a) with respect to the U.S. Loan Parties, as defined in the
U.S. Security Agreement, (b) with respect to the Canadian Loan Guarantors, as
defined in the Canadian Security Agreement, (c) with respect to the U.K. Loan
Parties, each deposit account maintained by any U.K. Borrower into which cash,
checks or other similar payments relating to or constituting payments made in
respect of Accounts or other proceeds will be deposited, (d) with respect to
the Dutch Loan Parties, each deposit account maintained by any Dutch Borrower
into which cash, checks or other similar payments relating to or constituting
payments made in respect of Accounts or other proceeds will be deposited and
(e) with respect to the Australian Loan Parties, each deposit account
maintained by any Australian Borrower into which cash, credit card payment
receipts, checks or other similar payments relating to or constituting
payments made in respect of Accounts or other proceeds will be deposited.
"Combined Commitment" means, with respect to any Lender at any time, the sum
of (a) such Lender's Revolving Commitment at such time, plus (b) such Lender's
FILO Commitment at such time. "Combined Exposure" means, with respect to any
Lender at any time, the sum of (a) such Lender's Revolving Exposure at such
time, plus (b) such Lender's FILO Exposure at such time.
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DB2/ 43463576.548024258.7 20 "Commitment Letter" means that certain Commitment
Letter between JPMorgan Chase Bank, N.A. and Insight dated as of June 23,
2019, as supplemented by that certain Joinder Letter, dated July 12, 2019,
from Wells Fargo Bank, N.A. as further supplemented by that certain Joinder
Letter, dated July 12, 2019, from Bank of America, N.A., and as further
amended by that certain letter agreement, dated August 12, 2019, by and among
JPMCB, Bank of America, N.A., Wells Fargo Bank, N.A., and Insight. "Commitment
Schedule" means the Commitment Schedule attached hereto identified as such.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. (s) 1 et
seq.), as amended from time to time, and any successor statute. "Communications"
has the meaning assigned to such term in Section 8.03(c). "Compliance
Certificate" means a certificate of a Financial Officer of the Borrower
Representative in substantially the form of Exhibit C attached hereto.
"Connection Income Taxes" means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or
branch profits Taxes. "Consolidating Financial Statements" means consolidating
financial statements reflecting the adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form
only) from the consolidated financial statements of Insight and its
Subsidiaries (it being agreed that no such Consolidating Financial Statements
shall be required to be audited). "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto. "Convertible Debt Security" means debt securities, the
terms of which provide for conversion into, or exchange for, Qualified Equity
Interests of Insight (or other securities or property following a merger
event, reclassification or other change of such Qualified Equity Interests of
Insight), cash in lieu thereof or a combination of such Qualified Equity
Interests of Insight (or other securities or property following a merger
event, reclassification or other change of such Qualified Equity Interests of
Insight) and cash in lieu thereof. "Convertible Senior Notes" means those
certain 0.750% Convertible Senior Notes due 2025 in an aggregate principal
amount of $350,000,000 issued pursuant to the Indenture, dated as of August
15, 2019, among Insight, as issuer, Insight Direct, as guarantor, and U.S.
Bank National Association, as trustee. "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
(disregarding business day adjustment) as such Available Tenor. "Covenant
Testing Trigger Period" means the period (a) commencing on any date that the
Aggregate Excess Availability is less than 10% of the Aggregate Combined
Commitment and (b) continuing until Aggregate Excess Availability has been
greater than or equal to 10% of the Aggregate Combined Commitment at all times
for thirty (30) consecutive days. "Covered Entity" means any of the following:
DB2/ 43463576.548024258.7 21 (a) a "covered entity" as that term is defined
in, and interpreted in accordance with, 12 C.F.R. (s) 252.82(b); (b) a
"covered bank" as that term is defined in, and interpreted in accordance with,
12 C.F.R. (s) 47.3(b); or (c) a "covered FSI" as that term is defined in, and
interpreted in accordance with, 12 C.F.R. (s) 382.2(b). "Covered Party" has
the meaning assigned to it in Section 9.21. "Credit Adjustment Spread" means
0.10% per annum. "Credit Event" means a U.S. Tranche Credit Event, Foreign
Tranche Credit Event or FILO Credit Event, as the context may require. "Credit
Party" means the Administrative Agent, any Issuing Bank, or any other Lender.
"CTA" means the Corporation Tax Act 2009 (U.K.), as amended from time to time.
"Daily Simple ESTR" means, for any Business Day, an interest rate per annum
equal to the greater of (a) ESTR based on the published rate of ESTR as of the
Business Day of such request and (b) the Floor. Any change in Daily Simple
ESTR due to a change in the applicable ESTR shall be effective from and
including the effective date of such change in the ESTR without notice to the
Borrowers. "Daily Simple RFR" means, for any day (an "RFR Interest Day"), an
interest rate per annum equal to, for any RFR Loan denominated in (i)
Sterling, the greater of (a) SONIA for the day that is five (5) Business Days
prior to (A) if such RFR Interest Day is a Business Day, such RFR Interest Day
or (B) if such RFR Interest Day is not a Business Day, the Business Day
immediately preceding such RFR Interest Day and (b) the Floor (provided that
for any Overnight Rate Loans denominated in Sterling, SONIA shall be based on
the published rate for SONIA as of the Business Day of such request) and (ii)
U.S. Dollars, Daily Simple SOFR. Any change in Daily Simple RFR due to a
change in the applicable RFR shall be effective from and including the
effective date of such change in the RFR without notice to the Borrowers.
"Daily Simple SOFR" means, for any day (a "SOFR Rate Day"), a rate per annum
equal to the greater of (a) SOFR for the day (such day "SOFR Determination
Date") that is five (5) RFR Business Days prior to (i) if such SOFR Rate Day
is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is
not an RFR Business Day, the RFR Business Day immediately preceding such SOFR
Rate Day, in each case, as such SOFR is published by the SOFR Administrator on
the SOFR Administrator's Website and (b) the Floor. Any change in Daily Simple
SOFR due to a change in SOFR shall be effective from and including the
effective date of such change in SOFR without notice to the Borrowers. "Debt
Maturity Reserve" means, to the extent elected by the Administrative Agent in
its sole discretion(acting at the direction of the Required Lenders) at any
time during any Debt Reserve Period, an amount equal to the amount by which
the then outstanding principal balance of the Convertible Senior Notes exceeds
$300,000,000 (or in the case of any Refinance Indebtedness in respect thereof,
an amount equal to the then outstanding principal balance of any such
Refinance Indebtedness) on the date which is ninety-one (91) days prior to the
maturity date of the Convertible Senior Notes (or any Refinance Indebtedness
in respect thereof) (but, in each case, shall be reduced to
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DB2/ 43463576.548024258.7 22 give effect to any payments, repayments or
redemptions of the Convertible Senior Notes (or any Refinance Indebtedness in
respect thereof) made during such Debt Reserve Period to the extent such
payments, repayments or redemptions are permitted hereunder). "Debt Reserve
Period" means a period beginning on the 91st day prior to the maturity date of
the Convertible Senior Notes (or any Refinance Indebtedness in respect
thereof) and ending on the date of the repayment in full of the Convertible
Senior Notes (or any Refinance Indebtedness in respect thereof). "Default"
means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an
Event of Default. "Defaulting Lender" means any Lender that (a) has failed,
within two (2) Business Days of the date required to be funded or paid, to (i)
fund any portion of its Loans, (ii) fund any portion of its participations in
Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above,
such Lender notifies the Administrative Agent in writing that such failure is
the result of such Lender's good faith determination that a condition
precedent to funding (specifically identified and including the particular
Default, if any) has not been satisfied; (b) has notified any Borrower or any
Credit Party in writing, or has made a public statement, to the effect that it
does not intend or expect to comply with any of its funding obligations under
this Agreement (unless such writing or public statement indicates that such
position is based on such Lender's good faith determination that a condition
precedent (specifically identified and including the particular Default, if
any) to funding a Loan under this Agreement cannot be satisfied), (c) has
failed, within three (3) Business Days after request by a Credit Party or any
Borrower, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations
(and is financially able to meet such obligations as of the date of
certification) to fund prospective Loans and participations in then
outstanding Letters of Credit under this Agreement, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such
Credit Party's or such Borrower's, as applicable, receipt of such
certification in form and substance satisfactory to it and the Administrative
Agent, or (d) has become the subject of (i) a Bankruptcy Event or (ii) a
Bail-In Action. "Default Right" has the meaning assigned to that term in, and
shall be interpreted in accordance with, 12 C.F.R. (s)(s) 252.81, 47.2 or
382.1, as applicable. "Deposit Account Control Agreement" has the meaning
assigned to such term in each applicable Collateral Document; provided that
with respect to any deposit account or securities account maintained by an
Australian Loan Party, the term "Deposit Account Control Agreement" shall mean
an account control deed (or any similar agreement or documentation), in form
and substance reasonably satisfactory to the Australian Security Trustee,
establishing "control" (for the purposes of Part 9.5 of the Australian PPSA)
of such an account by the Australian Security Trustee. "Designated Non-Cash
Consideration" means the fair market value (as determined by Insight in good
faith) of non-cash consideration received by any Loan Party or any Restricted
Subsidiary in connection with a Disposition designated as Designated Non-Cash
Consideration pursuant to a certificate of a Financial Officer of the Borrower
Representative setting forth the basis of such valuation, less the amount of
cash or Permitted Investments received in connection with a subsequent sale of
such Designated Non-Cash Consideration. "Designated Obligations" means all
obligations of the Borrowers with respect to (a) principal of and interest on
the Revolving Loans, Revolving Overadvances, and Protective Advances, (b) DB2/
43463576.548024258.7 23 unreimbursed LC Disbursements and interest thereon and
(c) all commitment fees with respect to the Revolving Commitments and Letter
of Credit participation fees. "Disclosed Matters" means the actions, suits,
proceedings and environmental matters disclosed in Schedule 3.06.
"Disposition" or "Dispose" means the sale, transfer, license, lease or other
disposition (in one transaction or in a series of transactions and whether
effected pursuant to a Division or otherwise) of any property by any Person
(including pursuant to any sale and leaseback transaction), including any
sale, assignment, transfer or other disposal, with or without recourse, of any
notes or accounts receivable or any rights and claims associated therewith.
"Disqualified Equity Interests" means any Equity Interest that, by its terms
(or by the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or condition (a) matures or is mandatorily redeemable (other than solely
for Equity Interests which do not otherwise constitute Disqualified Equity
Interests and cash in lieu of fractional shares), pursuant to a sinking fund
obligation or otherwise (except as a result of a change of control or asset
sale so long as any rights of the holders thereof upon the occurrence of a
change of control or asset sale event shall be subject to the prior repayment
in full of the Loans and all other Obligations that are accrued and payable
and the termination of the Revolving Commitments and FILO Commitments), (b) is
redeemable at the option of the holder thereof (other than solely for Equity
Interests which do not otherwise constitute Disqualified Equity Interests and
cash in lieu of fractional shares), in whole or in part, (c) provides for the
scheduled payments of dividends in cash, or (d) is or becomes convertible into
or exchangeable for Indebtedness (which is not permitted under Section 6.01)
or any other Equity Interests that would constitute Disqualified Equity
Interests, in each case, prior to the date that is ninety-one (91) days after
the Maturity Date; provided, however, that (i) only the portion of such Equity
Interests which so matures or is mandatorily redeemable, is so convertible or
exchangeable or is so redeemable at the option of the holder thereof prior to
such date shall be deemed to be Disqualified Equity Interests and (ii) with
respect to any Equity Interests issued to any employee or to any plan for the
benefit of employees of Insight or any of its Subsidiaries, or by any such
plan to such employees, such Equity Interests shall not constitute
Disqualified Equity Interests solely because they may be required to be
repurchased by Insight or any of its Subsidiaries in order to satisfy
applicable statutory or regulatory obligations or as a result of such
employee's termination, resignation, death or disability and if any class of
Equity Interests of such Person that by its terms authorizes such Person to
satisfy its obligations thereunder by delivery of Equity Interests that are
not Disqualified Equity Interests, such Equity Interests shall not be deemed
to be Disqualified Equity Interests. "Disqualified Institution" means (a) any
Person that is (directly or through a controlled Subsidiary) a competitor of
Insight or the Target that is separately identified in writing by the Borrower
Representative to the Administrative Agent and the Arrangers from time to time
prior to or after the Effective Date, or (b) any Affiliate of any Person
identified in clause (a) (other than any Affiliate that is a bona fide debt
fund or investment vehicle that is engaged primarily in making, purchasing,
holding or otherwise investing in loans, commitments and similar extensions of
credit in the ordinary course of business for financial investment purposes
and with respect to which no personnel involved with the investment in the
relevant competitor, or the management, control or operation thereof, directly
or indirectly, possesses the power to direct or cause the investment policies
of such fund, vehicle or entity) that is (i) identified in writing by the
Borrower Representative from time to time after the Effective Date or (ii)
clearly identifiable as an Affiliate solely on the basis of the similarity of
its name; provided, however, any such designation of a Person as a
Disqualified Institution shall not have retroactive effect to any prior
assignment to any Lender permitted under this Agreement (but further
assignments and participations shall be prohibited); provided, further,
however, that any addition to the list of Disqualified
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DB2/ 43463576.548024258.7 24 Institutions made in accordance with this
definition shall not be effective until the third (3rd) Business Day following
the Administrative Agent's receipt of the Borrower Representative's written
notice of such addition. "Dividing Person" has the meaning assigned to it in
the definition of "Division." "Division" means the division of the assets,
liabilities and/or obligations of a Person (the "Dividing Person") among two
or more Persons (whether pursuant to a "plan of division" or similar
arrangement), which may or may not include the Dividing Person and pursuant to
which the Dividing Person may or may not survive. "Division Successor" means
any Person that, upon the consummation of a Division of a Dividing Person,
holds all or any portion of the assets, liabilities and/or obligations
previously held by such Dividing Person immediately prior to the consummation
of such Division. A Dividing Person which retains any of its assets,
liabilities and/or obligations after a Division shall be deemed a Division
Successor upon the occurrence of such Division. "Document" or "Document of
Title" has the meaning assigned to such term in the applicable Collateral
Document. "Dollar Equivalent" means, for any amount, at the time of
determination thereof, (a) if such amount is expressed in U.S. Dollars, such
amount, (b) if such amount is expressed in another Available Currency, the
equivalent of such amount in U.S. Dollars determined by using the rate of
exchange for the purchase of dollars with the Available Currency last provided
(either by publication or otherwise 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 to
provide a rate of exchange for the purchase of U.S. Dollars with the Available
Currency, as provided by such other publicly available information service
which provides that rate of exchange at such time in place of Reuters chosen
by the Administrative Agent in its reasonable discretion (or if such service
ceases to be available or ceases to provide such rate of exchange, the
equivalent of such amount in U.S. Dollars as determined by the Administrative
Agent using any method of determination it deems appropriate in its reasonable
discretion) and (c) if such amount is denominated in any other currency, the
equivalent of such amount in U.S. Dollars as determined by the Administrative
Agent using any method of determination it deems appropriate in its reasonable
discretion. "Domestic Subsidiary" means a Subsidiary organized under the laws
of a jurisdiction located in the U.S. "Dutch Borrowers" means, each of, and
collectively, Insight Enterprises, Insight Netherlands, and any other
Restricted Subsidiary of Insight incorporated under the laws of The
Netherlands approved by the Administrative Agent that joins this Agreement as
a "Dutch Borrower" in accordance with the terms hereof, and "Dutch Borrower"
means any of them or all of them individually, as the context may require.
"Dutch Borrowing Base" means, at any time, the Dollar Equivalent of the result
of, subject to the terms of Section 1.10: (A) the Account Advance Rate of the
Dutch Eligible Accounts at such time, less DB2/ 43463576.548024258.7 25 (B)
Reserves applicable to the Dutch Borrowing Base established by the
Administrative Agent in its Permitted Discretion in accordance with Section
1.10. "Dutch CITA" means the Dutch Corporate Income Tax Act (Wet op de
vennootschapsbelasting 1969). "Dutch CIT Fiscal Unity" means a fiscal unity
(fiscale eenheid) for Dutch corporate income tax purposes (within the meaning
of Article 15 of the Dutch CITA). "Dutch CIT Fiscal Unity Member" has the
meaning assigned to such term in Section 9.22. "Dutch Civil Code" means the
Dutch Civil Code (Burgerlijk Wetboek). "Dutch Collateral Documents" means,
collectively, the Dutch Omnibus Pledge and any other agreements, instruments
and documents executed in connection with this Agreement that are intended to
create, perfect or evidence Liens to secure any of the Secured Obligations,
including, without limitation, all other security agreements, pledge
agreements, debentures, share charges, pledges, powers of attorney,
assignments, financing statements, in each case now or hereafter executed by
any Dutch Loan Party and delivered to the Administrative Agent that are
intended to create, perfect or evidence Liens on assets of any Dutch Loan
Party to secure any of the Secured Obligations. "Dutch Eligible Accounts"
means the Eligible Accounts owned by a Dutch Borrower billed from and
collected in The Netherlands or any other jurisdiction satisfactory to the
Administrative Agent in its Permitted Discretion owing by an Account Debtor in
the United States, Canada or an Approved Jurisdiction that comply in all
material respects with each of the representations and warranties respecting
Eligible Accounts that are Dutch Eligible Accounts made in the Loan Documents.
"Dutch Loan Parties" means, each of, and collectively, the Dutch Borrowers,
Insight Enterprises C.V., a limited partnership (commanditaire vennootschap),
incorporated under the laws of The Netherlands and registered with the Dutch
trade register under number 24410231, Insight Enterprises Holdings B.V., a
besloten vennootschap met beperkte aansprakelijkheid, incorporated under the
laws of The Netherlands, having its official seat in Den Haag, The Netherlands
and registered with the Dutch trade register under number 08154117 and any
other Restricted Subsidiary of Insight organized under applicable law of The
Netherlands who becomes a party to this Agreement pursuant to a Joinder
Agreement and their respective successors and assigns, and the term "Dutch
Loan Party" means any one of them or all of them individually, as the context
may require. For the avoidance of doubt, Dutch Loan Parties shall not include
any Excluded Subsidiary. "Dutch Omnibus Pledge" means, collectively, (i) the
Dutch law governed omnibus pledge entered into on or about the date of this
Agreement by and among the Dutch Loan Parties, as pledgors, and the
Administrative Agent, as pledgee and (ii) the Dutch law governed omnibus
pledge entered into on or about the Third Amendment Effective Date by and
among the Dutch Loan Parties, as pledgors, and the Administrative Agent, as
pledgee. "EBITDA" means, for any Test Period, the sum of (a) Net Income for
such Test Period plus (b) to the extent deducted in determining Net Income for
such Test Period, (i) Interest Expense, (ii) expense for taxes paid or
accrued, (iii) depreciation, (iv) amortization, (v) any non-cash or
nonrecurring non-cash charges or losses incurred other than in the ordinary
course of business, (vi) any non-cash compensation charge arising from any
grant of stock, stock options or other equity-based awards, (vii) any cash
expenses or charges related to any issuance of Equity Interests, Permitted
Acquisition or other Investment, Disposition, recapitalization or the
incurrence, prepayment, amendment, modification,
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DB2/ 43463576.548024258.7 26 restructuring or refinancing of Indebtedness, in
each case, (x) solely to the extent such transaction is not prohibited by this
Agreement and (y) whether or not such transaction is consummated in an
aggregate amount not to exceed $50,000,000 during any Test Period, (viii)
costs, expenses and fees incurred in connection with the Transactions and (ix)
cash restructuring charges (including in connection with headcount reductions,
costs related to the closure, consolidation and integration of facilities, IT
infrastructure and legal entities, severance costs and retention bonuses) in
an amount, when aggregated with the amount of any increase to EBITDA pursuant
to clause (y) of the last sentence of the definition of "Pro Forma Basis," not
to exceed 10% of EBITDA for such Test Period (calculated prior to giving
effect to any increase pursuant to this clause (ix) or clause (y) of the last
sentence of the definition of "Pro Forma Basis"), all calculated for Insight
and its Subsidiaries on a consolidated basis in accordance with GAAP; provided
that, from and after the Borrower Representative's written notice to the
Administrative Agent of its irrevocable election to deliver the Consolidating
Financial Statements for all Test Periods ending after such written notice
(for so long as any Unrestricted Subsidiaries exist), EBITDA shall be
calculated for Insight and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that Insight shall be required to
deliver to the Administrative Agent the related Consolidated Financial
Statements with each set of consolidated financial statements referred to in
Sections 5.01(a) and (b) with respect to the applicable Test Period ending
after such written notice). "ECP" means an "eligible contract participant" as
defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations
promulgated thereunder and the applicable rules issued by the Commodity
Futures Trading Commission and/or the SEC. "EEA Financial Institution" means
(a) any credit institution or investment firm established in any EEA Member
Country which is subject to the supervision of an EEA Resolution Authority,
(b) any entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition, or (c) any financial
institution established in an EEA Member Country which is a subsidiary of an
institution described in clauses (a) or (b) of this definition and is subject
to consolidated supervision with its parent. "EEA Member Country" means any of
the member states of the European Union, Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority" means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member
Country (including any delegee) having responsibility for the resolution of
any EEA Financial Institution. "Effective Date" means August 30, 2019.
"Electronic Signature" means an electronic sound, symbol, or process attached
to, or associated with, a contract or other record and adopted by a Person
with the intent to sign, authenticate or accept such contract or record.
"Electronic System" means any electronic system, including e-mail, e-fax, web
portal access for such Borrower and any other Internet or extranet-based site,
whether such electronic system is owned, operated or hosted by the
Administrative Agent or any Issuing Bank and any of its respective Related
Parties or any other Person, providing for access to data protected by
passcodes or other security system. "Eligible Accounts" means, at any time,
the Accounts of a Borrower or, in respect of the U.S. Borrowing Base, a
Canadian Loan Guarantor or En Pointe JV, that are not excluded as ineligible
by virtue of one or more of the excluding criteria set forth below or
established in accordance with Section DB2/ 43463576.548024258.7 27 1.10, in
each case subject to the terms of Section 1.10. Eligible Accounts shall not
include any Account of a Borrower or a Canadian Loan Guarantor or En Pointe
JV: (a) which is not subject to a first priority perfected security interest
in favor of the Administrative Agent; (b) which is subject to any Lien other
than (i) a Lien in favor of the Administrative Agent and (ii) a Lien permitted
under Section 6.02 which does not have priority over (and is not pari passu
with) the Lien in favor of the Administrative Agent; (c) (i) which is unpaid
more than (A) with respect to any Accounts of any Account Debtor with a
corporate family rating of Baa3 (or higher) according to Moody's or BBB- (or
higher) according to S&P, 150 days after the date of the original invoice
therefor or (B) with respect to any Accounts of any other Account Debtor,
ninety (90) days after the date of the original invoice therefor, or (ii)
which has been written off the books of such Borrower or such Canadian Loan
Guarantor or En Pointe JV or otherwise designated by a Loan Party as
uncollectible; (d) which is owing by an Account Debtor for which more than 50%
of the Accounts owing from such Account Debtor and its Affiliates are
ineligible pursuant to clause (c) above; (e) which is owing by an Account
Debtor to the extent the aggregate amount of Accounts owing from such Account
Debtor and its Affiliates to all Borrowers, and all Canadian Loan Guarantors
and En Pointe JV, exceeds 25% of the aggregate amount of Eligible Accounts of
all Borrowers, and all Canadian Loan Guarantors and En Pointe JV, in each case
solely to the extent of such excess; (f) with respect to which any covenant,
representation or warranty contained in this Agreement or in any Collateral
Document has been breached in any material respect or is not true in any
material respect (except that such materiality qualifier shall not be
applicable to any covenant, representation or warranty that already is
qualified or modified by materiality in the text thereof); (g) which (i) does
not arise from the sale of goods or performance of services in the ordinary
course of business, (ii) is not evidenced by an invoice or other documentation
satisfactory to the Administrative Agent in its Permitted Discretion which has
been sent to the Account Debtor, (iii) represents a progress billing, (iv) is
contingent upon such Borrower's or such Canadian Loan Guarantor's or En Pointe
JV's completion of any further performance, (v) represents a sale on a
bill-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment, cash-on-delivery or any other repurchase or return basis or (vi)
relates to payments of interest (but only to the extent thereof); (h) other
than with respect to up to $100,000,000 of customer owned Inventory that is
segregated from Eligible Inventory of the U.S. Borrowers, for which the goods
giving rise to such Account have not been shipped to the Account Debtor or for
which the services giving rise to such Account have not been performed by such
Borrower or such Canadian Loan Guarantor or En Pointe JV, as applicable, or if
such Account was invoiced more than once; (i) with respect to which any check
or other instrument of payment has been returned uncollected for any reason;
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DB2/ 43463576.548024258.7 28 (j) which is owed by an Account Debtor which has
(i) applied for, suffered, or consented to the appointment of any receiver,
interim receiver, monitor, custodian, trustee, administrator, administrative
receiver, compulsory manager or liquidator of its assets or similar official
for such Account Debtor or its assets, (ii) had possession of all or a
material part of its property taken by any receiver, interim receiver,
monitor, custodian, trustee, administrator, administrative receiver,
compulsory manager or liquidator, (iii) filed, or had filed against it, any
assignment, application, request or petition for liquidation, administration,
reorganization, arrangement, compromise, adjustment of debts, stay of
proceedings, adjudication as bankrupt, winding-up, or voluntary or involuntary
case or proceeding under any Insolvency Laws, (iv) admitted in writing its
inability, or is generally unable to, pay its debts as they become due, (v)
become insolvent, or (vi) ceased operation of its business; (k) which is owed
by any Account Debtor which has sold all or substantially all of its assets;
(l) which is owed by an Account Debtor which (i) does not maintain its chief
executive office (or the equivalent in the applicable jurisdiction) in the
U.S., Canada or an Approved Jurisdiction or (ii) is not organized under
applicable law of the U.S., any state of the U.S., the District of Columbia,
Canada, any province of Canada, or an Approved Jurisdiction unless, in any
such case, such Account is backed by a letter of credit or other credit
support acceptable to the Administrative Agent in its Permitted Discretion
which is in the possession of, and is directly drawable by, the Administrative
Agent; (m) which, in respect of any Account of any U.K. Borrower, any Dutch
Borrower or any Australian Borrower, the contract or agreement underlying such
Account is governed by (or, if no governing law is expressed therein, is
deemed to be governed by) the laws of any jurisdiction other than England and
Wales, The Netherlands or the Commonwealth of Australia; (n) which, in respect
of any U.K. Borrower, any Dutch Borrower, any Australian Borrower or any U.S.
Borrower, is subject to any limitation on assignment or other restriction
(whether arising by operation of law, by agreement or otherwise) which would
under the local governing law of the contract have the effect of restricting
the assignment for or by way of security or the creation of security; (o)
which is owed in any currency other than (i) U.S. Dollars, Euros, Australian
Dollars or Sterling in the case of any U.S. Borrower, any U.K. Borrower, any
Australian Borrower and/or any Dutch Borrower, and (ii) U.S. Dollars or Cdn$
in the case of any Canadian Loan Guarantor; (p) which is owed by (i) any
government (or any department, agency, public corporation, or instrumentality
thereof) of any country other than the U.S., U.K., Canada or Australia unless
such Account is backed by a letter of credit or other credit support
acceptable to the Administrative Agent in its Permitted Discretion which is in
the possession of, and is directly drawable by, the Administrative Agent, (ii)
any government of the United States or any department, agency, public
corporation, or instrumentality thereof, unless the Federal Assignment of
Claims Act of 1940, as amended (31 U.S.C. (s) 3727 et seq. and 41 U.S.C. (s)
15 et seq.) applies thereto, and any other steps necessary to perfect the Lien
of the Administrative Agent in such Account have been complied with to the
Administrative Agent's satisfaction in its Permitted Discretion; provided,
however, that Accounts in an aggregate amount not to exceed $100,000,000 at
any one time owing by any government of the United States or any department,
agency, public corporation, or instrumentality thereof, shall not be excluded
solely on account of DB2/ 43463576.548024258.7 29 this clause (p)(ii), (iii)
the federal government of Canada or any department, agency, public/crown
corporation, or instrumentality thereof, unless the provisions of the
Financial Administration Act (Canada) are complied with, and any other steps
necessary to perfect the Lien of the Administrative Agent in such Account,
have been complied with to the Administrative Agent's satisfaction in its
Permitted Discretion, or (iv) any government of any province or territory of
Canada, if the provisions of provincial or territorial laws are required to be
complied with in order to perfect the Lien of the Administrative Agent in such
Account, unless such provisions have been complied with to the Administrative
Agent's satisfaction in its Permitted Discretion; (q) which is owed by any
Affiliate of any Loan Party or En Pointe JV, or any employee, officer,
director, agent or stockholder of any Loan Party, En Pointe JV, or any of
their respective Affiliates; (r) which is owed by an Account Debtor or any
Affiliate of such Account Debtor to which any Borrower, or any Canadian Loan
Guarantor or En Pointe JV is indebted, but only to the extent of such
indebtedness, or is subject to any security, deposit, progress payment,
retainage or other similar advance made by or for the benefit of an Account
Debtor, in each case to the extent thereof; (s) which is subject to any
counterclaim, deduction, defense, setoff or dispute but only to the extent of
any such counterclaim, deduction, defense, setoff or dispute; (t) which is
evidenced by any promissory note, chattel paper or instrument; (u) which is
owed by an Account Debtor (i) located in any jurisdiction which requires
filing of a "Notice of Business Activities Report" or other similar report in
order to permit such Borrower or Canadian Loan Guarantor or En Pointe JV, as
applicable, to seek judicial enforcement in such jurisdiction of payment of
such Account, unless such Borrower or Canadian Loan Guarantor or En Pointe JV,
as applicable, has filed such report or qualified to do business in such
jurisdiction or (ii) which is a Sanctioned Person; (v) with respect to which
such Borrower or Canadian Loan Guarantor or En Pointe JV, as applicable, has
made any agreement with the Account Debtor for any reduction thereof, other
than discounts and adjustments given in the ordinary course of business but
only to the extent of any such reduction, or any Account which was partially
paid and such Borrower or Canadian Loan Guarantor or En Pointe JV, as
applicable, created a new receivable for the unpaid portion of such Account;
(w) which does not comply in all material respects with the requirements of
all applicable laws and regulations, whether Federal, state, provincial,
territorial, local, or those of a foreign jurisdiction, including without
limitation the Federal Consumer Credit Protection Act, the Federal Truth in
Lending Act and Regulation Z of the Board; (x) which is for goods that have
been sold under a purchase order or pursuant to the terms of a contract or
other agreement or understanding (written or oral) that indicates or purports
that any Person other than such Borrower or Canadian Loan Guarantor or En
Pointe JV, as applicable, has or has had an ownership interest in such goods,
or which indicates any party other than such Borrower or Canadian Loan
Guarantor or En Pointe JV, as applicable, as payee or remittance party;
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DB2/ 43463576.548024258.7 30 (y) which was created on cash on delivery terms;
(z) which are Accounts Disposed of by the applicable Borrowers pursuant to
Section 6.05(d); (aa) which are subject to any valid extended retention of
title right; (bb) to the extent such Accounts are created by En Pointe JV,
which do not constitute Eligible En Pointe JV Accounts[reserved]; or (cc)
which is (x) owed to an Australian Borrower or (y) owed to a U.S. Borrower by
an Account Debtor located in Belgium or any other Approved Jurisdiction and
which is billed and collected in Belgium, in each case, until such time after
the Third Amendment Effective Date as the Administrative Agent shall have
first conducted an audit and field examination of such Accounts, the results
of which are satisfactory to the Administrative Agent in its Permitted
Discretion. In determining the amount of an Eligible Account of a Borrower or
a Canadian Loan Guarantor or En Pointe JV, as applicable, the face amount of
an Account may, in the Administrative Agent's Permitted Discretion, be reduced
by, without duplication hereunder or under the foregoing eligibility criteria
or Reserves and, to the extent not reflected in such face amount, (i) the
amount of all accrued and actual discounts, claims, credits or credits
pending, promotional program allowances, price adjustments, finance charges or
other allowances (including any amount that such Borrower or such Canadian
Loan Guarantor or En Pointe JV, as applicable, is obligated to rebate to an
Account Debtor pursuant to the terms of any agreement or understanding
(written or oral)) and (ii) the aggregate amount of all cash received in
respect of such Account but not yet applied by such Borrower or such Canadian
Loan Guarantor or En Pointe JV, as applicable, to reduce the amount of such
Account. Furthermore and notwithstanding anything to contrary herein or any
other Loan Document, (i) Accounts owed to a Borrower, or a Canadian Loan
Guarantor or En Pointe JV, as applicable, from an Account Debtor located in an
Approved Jurisdiction shall be eligible from and after the Effective Date so
long as such Accounts satisfy the eligibility criteria set forth above in this
definition of Eligible Accounts; provided that during a Cash Dominion Period,
the Administrative Agent may request that Additional Perfection Steps be taken
by the applicable Borrowers and/or Canadian Loan Guarantors in relation to
such Accounts and, if the relevant Borrowers, or Canadian Loan Guarantors are
not able to complete such Additional Perfection Steps within the timeframe
specified for a particular Approved Jurisdiction by the Administrative Agent
in its sole discretion, such Approved Jurisdiction shall cease to be an
Approved Jurisdiction during a Cash Dominion Period and (ii) Accounts owed to
a U.S. Borrower (including any branch of a U.S. Borrower) from an Account
Debtor located in an Approved Jurisdiction shall only be eligible if such
Accounts are paid into a deposit account that is subject to a valid and
enforceable first ranking security interest under the laws of the jurisdiction
where the relevant deposit account is located and, unless otherwise agreed to
in writing by the Administrative Agent in its Permitted Discretion, subject to
a Deposit Account Control Agreement. "Eligible En Pointe JV Accounts" means,
subject to the terms of Section 1.10, Accounts generated by En Pointe JV if:
(a) such Accounts have been assigned to TigerDirect and PCM in accordance with
the En Pointe JV Documents with no further action required by any Person; DB2/
43463576.548024258.7 31 (b) the assignment of such Accounts from En Pointe JV
to TigerDirect and PCM is subject to a true sale opinion in form and substance
reasonably satisfactory to the Administrative Agent; (c) such Accounts do not
constitute more than five percent (5%) of all otherwise Eligible Accounts of
the U.S. Borrowers and the Canadian Loan Guarantors (but the portion of the
Accounts not in excess of such percentage may be deemed Eligible En Pointe JV
Accounts); (d) TigerDirect and PCM have perfected the transfer of such
Accounts of En Pointe JV by filing a UCC-1 financing statement in form and
substance reasonably satisfactory to the Administrative Agent, and such UCC-1
financing statement has been assigned to the Administrative Agent; and (e) the
En Pointe JV Documents have not been amended since the Effective Date in a
manner adverse to the Lenders other than amendments approved by the
Administrative Agent in its Permitted Discretion. "Eligible Finished Goods
Inventory" means, subject to the terms of Section 1.10, Eligible Inventory
constituting finished goods to be sold by a U.S. Borrower in the ordinary
course of business of such U.S. Borrower, excluding Eligible Work-in-Process
Inventory of such U.S. Borrower. "Eligible Inventory" means, at any time, the
Inventory of a U.S. Borrower which is not excluded as ineligible by virtue of
one or more of the excluding criteria set forth below or established in
accordance with Section 1.10, in each case subject to the terms of Section
1.10, Eligible Inventory of a U.S. Borrower shall not include any Inventory:
(a) which is not subject to a first priority perfected Lien in favor of the
Administrative Agent; (b) which is subject to any Lien other than (i) a Lien
in favor of the Administrative Agent and (ii) a Lien permitted under Section
6.02 which does not have priority over (and is not pari passu with) the Lien
in favor of the Administrative Agent; (c) which is, in the Administrative
Agent's Permitted Discretion, slow moving, obsolete, unmerchantable,
defective, used, unfit for sale, not salable at prices approximating at least
the cost of such Inventory in the ordinary course of business or unacceptable
due to age, type, category and/or quantity; (d) with respect to which any
covenant, representation or warranty contained in this Agreement or in the
U.S. Security Agreement has been breached in any material respect or is not
true in any material respect (except that such materiality qualifier shall not
be applicable to any covenant, representation or warranty that already is
qualified or modified by materiality in the text thereof) and which does not
conform to all standards imposed by any Governmental Authority; (e) in which
any Person other than such U.S. Borrower shall (i) have any direct or indirect
ownership, interest or title or (ii) be indicated on any purchase order or
invoice with respect to such Inventory as having or purporting to have an
interest therein; (f) which constitutes raw materials, spare or replacement
parts, subassemblies, packaging and shipping material, manufacturing supplies,
samples, prototypes, displays or
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DB2/ 43463576.548024258.7 32 display items, bill-and-hold or ship-in-place
goods, goods that are returned or marked for return or repossessed goods
(other than goods that are undamaged and are able to be resold in the ordinary
course of business), defective or damaged goods, goods held on consignment, or
goods which are not of a type held for sale in the ordinary course of
business; (g) which is not located in the U.S. or is in transit with a common
carrier from vendors and suppliers; (h) which is located in any location
leased by such U.S. Borrower unless (A)(i) the lessor has delivered to the
Administrative Agent a Collateral Access Agreement or (ii) a Rent Reserve has
been established by the Administrative Agent in its Permitted Discretion and
(B) at least $1,000,000 of Inventory of the U.S. Borrowers is located at such
location (it being agreed that up to $10,000,000 in the aggregate of Inventory
shall not be excluded solely on account of this clause (h)(B) or clause (i)(B)
below); (i) which is located in any third party warehouse or is in the
possession of a bailee (other than a third party processor) and is not
evidenced by a Document, unless (A)(i) such warehouseman or bailee has
delivered to the Administrative Agent a Collateral Access Agreement or (ii) an
appropriate Reserve has been established by the Administrative Agent in its
Permitted Discretion in accordance with Section 1.10 and (B) at least
$1,000,000 of Inventory of the U.S. Borrowers is located at such third party
warehouse or in possession of such bailee (it being agreed that up to
$10,000,000 in the aggregate of Inventory shall not be excluded solely on
account of this clause (i)(B) or clause (h)(B) above); (j) which is being
processed offsite at a third party location or outside processor, or is
in-transit to or from such third party location or outside processor; (k)
which is a discontinued product or component thereof; (l) which is the subject
of a consignment by such U.S. Borrower as consignor; (m) which is perishable;
(n) which contains or bears any intellectual property rights licensed to such
U.S. Borrower unless the Administrative Agent is satisfied that it may sell or
otherwise dispose of such Inventory without (i) infringing the rights of such
licensor, (ii) violating any contract with such licensor, or (iii) incurring
any liability with respect to payment of royalties other than royalties
incurred pursuant to sale of such Inventory under the current licensing
agreement; (o) which is not reflected in a current perpetual inventory report
of such U.S. Borrower; (p) for which reclamation rights have been asserted by
the seller; or (q) which has been acquired from a Sanctioned Person. "Eligible
Real Property" shall mean the real property owned in fee by Insight Direct,
USA, Inc. located at 2701 E. Insight Way, Chandler, Arizona 85286, so long as
such real property satisfies each of the following criteria: (i) in respect of
which an appraisal report has been delivered to the Administrative Agent in
form, scope and substance reasonably satisfactory to the Administrative Agent
and the Lenders (each, an "Acceptable Real Estate Appraisal"); (ii) in respect
of which the Administrative Agent and the Lenders are satisfied that all
actions necessary or desirable in order to create a perfected first priority
DB2/ 43463576.548024258.7 33 Lien on such real property have been taken
(subject to Permitted Encumbrances), including the filing and recording of the
related Mortgage; (iii) in respect of which an environmental assessment report
has been completed and delivered to the Administrative Agent in form and
substance reasonably satisfactory to the Administrative Agent and the Lenders
and, unless otherwise approved by Administrative Agent and the Lenders, which
does not indicate any pending, threatened or existing Environmental Liability
or noncompliance with any Environmental Law; (iv) which is adequately
protected by fully-paid valid title insurance with endorsements and in amounts
acceptable to the Administrative Agent in its Permitted Discretion, insuring
that the Administrative Agent, for the benefit of the Lenders and the other
Secured Parties, shall have a perfected first priority Lien on such real
property, evidence of which shall have been provided in form and substance
reasonably satisfactory to the Administrative Agent; (v) in respect of which,
the Administrative Agent has received a "life of loan" flood zone
determination and, if any such parcel of real property is shown in such
determination or otherwise reasonably determined by the Administrative Agent
to be in a flood zone, a flood notification form signed by the Borrower
Representative and evidence that flood insurance is in place for the building
and contents, all in form and substance reasonably satisfactory to the
Administrative Agent and Lenders and otherwise in compliance with all
applicable Flood Laws; (vi) an ALTA survey has been delivered to the
Administrative Agent for which all necessary fees have been paid and which is
acceptable to the title company for the issuance of extended coverage loan
policies (with no survey exception), in a form that is customary and
reasonably acceptable to the Administrative Agent and the Lenders, and which
shows all buildings and other improvements, any offsite improvements, the
location of any easements, parking spaces, rights of way, building setback
lines and other dimensional regulations and the absence of encroachments,
either by such improvements or on to such property, and other defects, other
than encroachments and other defects acceptable to the Administrative Agent in
its Permitted Discretion; and (vii) if required by the Administrative Agent:
(A) in respect of which local counsel for such U.S. Borrower in the state in
which such real property is located has delivered a letter of opinion with
respect to the enforceability and perfection of the Mortgage and any related
fixture filings in form and substance reasonably satisfactory to the
Administrative Agent in its Permitted Discretion; and (B) in respect of which
such U.S. Borrower shall have used its commercially reasonable efforts to
obtain estoppel certificates executed by any tenants that lease a material
portion of such real property and such other material consents, agreements and
confirmations of tenants, lessors and third parties, in each case, as the
Administrative Agent may deem necessary or desirable in its Permitted
Discretion (provided that so long as the applicable U.S. Borrower is
exercising diligent and commercially reasonable efforts to obtain the
certificates, consents, agreements and confirmations referenced in this
subclause (B), the failure of the U.S. Borrower to obtain such certificates,
consents, agreement and confirmations, including as a result of the failure of
any tenant or third-party to provide consent or confirmation, will not
preclude any such real property from constituting "Eligible Real Property"),
together with evidence that all other actions that the Administrative Agent
may deem necessary in its Permitted Discretion in order to create perfected
first priority Liens on the property described in the Mortgage have been
taken. "Eligible Work-In-Process Inventory" means, subject to the terms of
Section 1.10, Eligible Inventory of a U.S. Borrower constituting work-in-process
, excluding Eligible Finished Goods Inventory of such U.S. Borrower. "En
Pointe JVTechnologies" means En Pointe IT SolutionsTechnologies Sales, LLC, a
Delaware limited liability company. "En Pointe JV Documents" means,
collectively, (a) that certain Amended and Restated Master Services Agreement,
dated as of January 1, 2016, by and among En Pointe JV, TigerDirect and PCM,
as amended by that certain First Amendment to Amended and Restated Master
Services Agreement, entered into on May 17, 2019 and effective as of April 27,
2017, (b) that certain Amended and Restated Limited
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DB2/ 43463576.548024258.7 34 Liability Company Agreement of En Pointe JV,
effective as of December 19, 2016, and (c) any other agreements, documents
and/or instruments related thereto. "En Pointe Technologies" has the meaning
assigned to such term in the preamble hereto. "Environmental Laws" means all
laws, rules, regulations, codes, ordinances, orders, orders-in-council,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to (a) the environment, (b) preservation or reclamation of natural resources,
(c) the management, Release or threatened Release of any Hazardous Material or
(d) health and safety matters. "Environmental Liability" means any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of any Loan Party
or Restricted Subsidiary directly or indirectly resulting from or based upon
(a) any violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
the presence of or any exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing. "Equity
Interests" means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any of the
foregoing, but excluding any debt securities convertible into any of the
foregoing and any and all Convertible Debt Securities, Permitted Convertible
Debt Hedge Transactions, and Permitted Share Repurchase Transactions. "ERISA"
means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and the rules and regulations promulgated thereunder. "ERISA
Affiliate" means any trade or business (whether or not incorporated) that,
together with a Loan Party, is treated as a single employer under Section
414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code. "ERISA Event" means (a) any
"reportable event", as defined in Section 4043 of ERISA or the regulations
issued thereunder, with respect to a Plan (other than an event for which the
thirty (30)-day notice period is waived); (b) the failure to satisfy the
"minimum funding standard" (as defined in Section 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(c) of the Code or Section 302(c) of ERISA of an application for a waiver
of the minimum funding standard with respect to any Plan; (d) the incurrence
by any Loan Party or any ERISA Affiliate of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by any Loan
Party or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by any Loan Party or any
ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal of any Loan Party or any ERISA Affiliate from any Plan or
Multiemployer Plan; or (g) the receipt by any Loan Party or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from any
Loan Party or any ERISA Affiliate of any notice, concerning the imposition
upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a
determination that a DB2/ 43463576.548024258.7 35 Multiemployer Plan is, or is
expected to be, insolvent, in critical or endangered status, within the
meaning of Title IV of ERISA. "ESTR" means, with respect to any Business Day,
a rate per annum equal to the Euro Short Term Rate for such Business Day
published by the ESTR Administrator on the ESTR Administrator's Website. "ESTR
Administrator" means the European Central Bank (or any successor administrator
of the Euro Short Term Rate). "ESTR Administrator's Website" means the
European Central Bank's website, currently at http://www.ecb.europa.eu, or any
successor source for the Euro Short Term Rate identified as such by the ESTR
Administrator from time to time. "EU Bail-In Legislation Schedule" means the
EU Bail-In Legislation Schedule published by the Loan Market Association (or
any successor Person), as in effect from time to time. "Euro" or "EUR" means
the single currency of the Participating Member States. "EURIBOR Interpolated
Rate" means, at any time, with respect to any Term Benchmark Borrowing
denominated in Euros and for any Interest Period, the rate per annum (rounded
to the same number of decimal places as the EURIBOR Screen Rate) determined by
the Administrative Agent (which determination shall be conclusive and binding
absent manifest error) to be equal to the rate that results from interpolating
on a linear basis between: (a) the EURIBOR Screen Rate for the longest period
(for which the EURIBOR Screen Rate is available for Euros) that is shorter
than the Impacted EURIBOR Rate Interest Period; and (b) the EURIBOR Screen
Rate for the shortest period (for which the EURIBOR Screen Rate is available
for Euros) that exceeds the Impacted EURIBOR Rate Interest Period, in each
case, at such time; provided that, if any EURIBOR Interpolated Rate shall be
less than the Floor, such rate shall be deemed to be the Floor for the
purposes of this Agreement. "EURIBOR Rate" means, with respect to any Term
Benchmark Borrowing denominated in Euros and for any Interest Period, the
EURIBOR Screen Rate at approximately 11:00 a.m., Brussels time, two TARGET
Days prior to the commencement of such Interest Period; provided that, if the
EURIBOR Screen Rate shall not be available at such time for such Interest
Period (an "Impacted EURIBOR Rate Interest Period") with respect to Euros then
the EURIBOR Rate shall be the EURIBOR Interpolated Rate. "EURIBOR Screen Rate"
means the euro interbank offered rate administered by the European Money
Markets Institute (or any other person which takes over the administration of
that rate) for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page EURIBOR01 of the
Thomson Reuters screen (or any replacement Thomson Reuters page which displays
that rate) or on the appropriate page of such other information service which
publishes that rate from time to time in place of Thomson Reuters as of 11:00
a.m. Brussels time two TARGET Days prior to the commencement of such Interest
Period. If such page or service ceases to be available, the Administrative
Agent may specify another page or service displaying the relevant rate after
consultation with the Borrower. If the EURIBOR Screen Rate shall be less than
the Floor, the EURIBOR Screen Rate shall be deemed to be the Floor for
purposes of this Agreement. "European Loan Parties" means, collectively, the
U.K. Loan Parties and the Dutch Loan Parties, and the term "European Loan
Party" means any one of them or all of them individually, as the context may
require.
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DB2/ 43463576.548024258.7 36 "European Union Regulation" means Regulation (EU)
2015/848 of 20 May 2015 on insolvency proceedings (recast), provided that in
respect of each U.K. Loan Party only "European Union Regulation" shall mean
Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast), as
that Regulation forms part of the domestic law of the United Kingdom by virtue
of the European Union (Withdrawal) Act 2018 (as amended) and as that
Regulation is amended by the Insolvency (Amendment)(EU Exit) Regulations 2019
(SI 2019/146) (as amended). "Event of Default" has the meaning assigned to
such term in Article VII. "Excess Availability" means the U.S. Excess
Availability, the Foreign Excess Availability or the FILO Excess Availability,
as the context may require. "Excluded Assets" means, with respect to any
assets of any Loan Party: (a) any Equity Interest in any Excluded Subsidiary,
(b) any rights or interest in any contract, lease, permit, license, or license
agreement covering real or personal property of any Loan Party if under the
terms of such contract, lease, permit, license, or license agreement, or
applicable law with respect thereto, the grant of a security interest or Lien
therein is (i) prohibited as a matter of law or under the terms of such
contract, lease, permit, license, or license agreement, (ii) would require
governmental consent or authorization or (iii) would create a right of
termination in favor of, or require the consent of, any other party thereto
and such prohibition, restriction or right of termination has not been waived
or such governmental consent or authorization or the consent of such other
parties to such contract, lease, permit, license or license agreement has not
been obtained (provided, that (A) the foregoing exclusions of this clause (b)
shall in no way be construed (1) to apply to the extent that any described
prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408,
or 9-409 of the UCC or other applicable law, or (2) to apply to the extent
that any consent or waiver has been obtained that would permit the
Administrative Agent's security interest or Lien to attach notwithstanding the
prohibition or restriction on the pledge of such contract, lease, permit,
license, or license agreement and (B) the foregoing exclusions of this clause
(b) shall in no way be construed to limit, impair, or otherwise affect any of
the Administrative Agent's continuing security interests in and Liens upon any
rights or interests of any Loan Party in or to (1) monies due or to become due
under or in connection with any described contract, lease, permit, license or
license agreement, or (2) any proceeds from the sale, license, lease, or other
Dispositions of any such contract, lease, permit, license or license
agreement), (c) if the Borrower Representative and the Administrative Agent in
good faith determine the cost, burden or consequences of obtaining or
perfecting a security interest in such assets is excessive in relation to the
practical benefit afforded thereby, (d) trust or fiduciary accounts, escrow
accounts and deposit accounts solely used for the purposes of making payments
in respect of payroll, withholding taxes and employee wages and benefits, (e)
any fixed assets subject to a permitted purchase money security interest, (f)
any assets to the extent a security interest in such assets would result in
material adverse tax consequences as reasonably determined by the Borrower
Representative and the Administrative Agent in good faith, (g) any asset or
property to the extent providing or perfecting such security would result in
any risk to the directors or officers of the relevant Loan Party of
contravention of its fiduciary duties and/or of civil or criminal liability as
determined by such Loan Party in good faith, (h) other than with respect to
Loan Parties organized or incorporated in the United States or Canada, pledges
and security interests prohibited by laws and regulations relating to
financial assistance, fiduciary duties, corporate benefit, fraudulent
preference or similar principles, and (i) any Letter-of-Credit Right (as
defined in the UCC) in which a security interest therein may not be perfected
by a financing statement under the UCC; provided that, with respect to any
Loan Party organized or incorporated in England and Wales, the Global
Collateral shall include all of the assets of such Loan Party (whether
consisting of real, personal, tangible or intangible property, including all
of the outstanding Equity Interests of such Loan Party's Subsidiaries) subject
to a floating charge under English law and further provided that, with respect
to any Loan Party incorporated in Australia, the Excluded DB2/ 43463576.54802425
8.7 37 Assets shall be subject to `featherweight' security which shall only be
enforceable in the event of an appointment an administrator to the applicable
Loan Party incorporated in Australia. "Excluded Subsidiary" means,
collectively, (a) any Immaterial Subsidiary (unless such Immaterial Subsidiary
is a Loan Guarantor or a Borrower at the election of Insight with the consent
of the Administrative Agent with respect to any such election with respect to
a Borrower (such consent not to be unreasonably withheld and it being agreed
that all Borrowers existing on the Effective Date are acceptable to the
Administrative Agent)), (b) any special purpose entity, captive insurance
Subsidiary or not for profit Subsidiaries, (c) any Subsidiary to the extent
that the burden or cost of obtaining a guaranty outweighs the benefit afforded
thereby as determined by the Borrower Representative and the Administrative
Agent together in good faith, (d) any Unrestricted Subsidiary, (e) any
Subsidiary prohibited or restricted (including, by any consent requirement)
from providing any Guarantee by (i) applicable law or regulation (including
but not limited to those relating to financial assistance, fiduciary duties,
corporate benefit and fraudulent preference or similar principles), (ii) any
permitted purchase money Indebtedness, capital lease or Sale and Leaseback
Transaction, provided such Subsidiary has no material assets other than those
financed thereby, or (iii) any contract (including any Indebtedness permitted
pursuant to Section 6.01) entered into prior to (and not entered into in
contemplation of) the Effective Date or the Acquisition of such Subsidiary,
(f) any Subsidiary (other than any Subsidiary of Insight or PCM organized or
incorporated under the laws of the United States, Canada, the United Kingdom
or Australia) if providing such Guarantee would result in any risk to the
directors or officers of the relevant Subsidiary of contravention of their
fiduciary duties and/or of civil or criminal liability, and (g) any Subsidiary
that is organized under the laws of any jurisdiction other than the United
States, Canada, The Netherlands, the United Kingdom or Australia; provided
that none of the foregoing exceptions (other than as set forth in the
foregoing clauses (d), (e)(i) or (f) (and in each case of clauses (e)(i) and
(f), solely to the extent any change in applicable law has retroactive
effect)) shall be applicable to any Global Loan Party. "Excluded Swap
Obligation" means, with respect to any Loan Guarantor, any Swap Obligation if,
and to the extent that, all or a portion of the Guarantee of such Loan
Guarantor of, or the grant by such Loan Guarantor of a security interest to
secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal
under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Loan Guarantor's failure for
any reason to constitute an ECP at the time the Guarantee of such Loan
Guarantor or the grant of such security interest becomes or would become
effective with respect to such Swap Obligation. If a Swap Obligation arises
under a master agreement governing more than one swap, such exclusion shall
apply only to the portion of such Swap Obligation that is attributable to
swaps for which such Guarantee or security interest is or becomes illegal.
"Excluded Taxes" means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a
Recipient: (a) Taxes imposed on or measured by net income (however
denominated), franchise Taxes, and branch profits Taxes, in each case, (i)
imposed as a result of such Recipient being organized under the laws of, or
having its principal office or, in the case of any Lender, its applicable
lending office located in, the jurisdiction imposing such Tax (or any
political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in
the case of a Lender, withholding Taxes imposed on amounts payable to or for
the account of such Lender with respect to an applicable interest in a Loan,
Letter of Credit, Revolving Commitment or FILO Commitment pursuant to a law in
effect on the date on which (i) such Lender acquires such interest in the
Loan, Letter of Credit, Revolving Commitment or FILO Commitment (other than
pursuant to an assignment request by the Borrowers under Section 2.19(b)) or
(ii) such Lender changes its lending office, except in each case to the extent
that, pursuant to Section 2.17, amounts with respect to such Taxes were
payable either to such Lender's assignor immediately before such Lender
acquired the applicable interest in a Loan, Letter of
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DB2/ 43463576.548024258.7 38 Credit, Revolving Commitment or FILO Commitment
or to such Lender immediately before it changed its lending office; (c) Taxes
attributable to such Recipient's failure to comply with Section 2.17(f) and
(j); (d) without duplication, any withholding Tax payable under Part XIII of
the Canadian ITA that is imposed on amounts payable to or for the account of a
Recipient as a consequence of the Recipient (i) not dealing at arm's length
(within the meaning of the Canadian ITA) with any Canadian Loan Guarantor at
the time of such payment or (ii) being a "specified non-resident shareholder"
(within the meaning of subsection 18(5) of the Canadian ITA) of any Canadian
Loan Guarantor, or not dealing at arm's length (within the meaning of the
Canadian ITA) with a "specified shareholder") (within the meaning of
subsection 18(5) of the Canadian ITA) of any Canadian Loan Guarantor (in each
case, other than where the non-arm's length relationship arises or the
Recipient is a "specified non-resident shareholder", or the Recipient does not
deal at arm's length with a "specified shareholder", as a result of the
Recipient having executed, delivered or performed its obligations under,
received payment under, or enforced any rights under, this Agreement or any
Loan Document), (e) any withholding Taxes imposed under FATCA, and (f) any
Bank Levy. "Existing Collection Account" has the meaning assigned to such term
in Section 5.17. "Existing Indebtedness" means outstanding loans, commitments
and notes under: (a) the Existing Target Credit Agreement; (b) the Fourth
Amended and Restated Credit Agreement, dated as of June 23, 2016 (as amended,
supplemented or otherwise modified and in effect immediately prior to the
Effective Date), among Insight, the lenders and other parties party thereto
from time to time and JPMCB, as administrative agent; (c) the Receivables
Purchase Agreement, dated as of December 31, 2002 (as amended, supplemented or
otherwise modified and in effect immediately prior to the Effective Date),
among Insight Receivables, LLC, Insight, Jupiter Securitization Company LLC,
Bank One N.A., and the entities party thereto from time to time as financial
institutions; (d) the Credit Agreement, dated as of July 7, 2016 (as amended,
supplemented or otherwise modified and in effect immediately prior to the
Effective Date), by and between Castle Pines Capital LLC, and PCM, as
reseller; and (e) the Second Amended and Restated Credit Agreement, dated as
of June 23, 2016 (as amended, supplemented or otherwise modified and in effect
immediately prior to the Effective Date), by and among Calence, Insight Direct
and Insight Public Sector, as resellers, Castle Pines Capital LLC, as
administrative agent, Wells Fargo Capital Finance, LLC, as collateral agent,
syndication agent and administrative agent, and the lenders party thereto.
"Existing Letters of Credit" means those letters of credit outstanding
immediately prior to the effectiveness of this Agreement as described on
Schedule 1.01(a). "Existing Target Credit Agreement" means that certain Fifth
Amended and Restated Loan and Security Agreement, dated as of October 24,
2017, by and among PCM, PCM Sales, Inc., PCM Logistics, PCMG, M2 Marketplace,
Abreon, Inc., Cross Line Products, Inc., PCM BPO, LLC, En Pointe Technologies,
Onsale Holdings, PCM Services, LLC, Stratiform USA, LLC, PCM Sales Canada,
Inc., Acrodex Inc., Stratiform Inc., and PCM Technology Solutions UK, LTD, as
borrowers, Wells Fargo Capital Finance, LLC, as administrative and collateral
agent for the lenders party thereto, and the lenders and other parties party
thereto, as amended, supplemented or otherwise modified and in effect
immediately prior to the Effective Date. "Extenuating Circumstance" means any
period during which the Administrative Agent has determined in its sole
discretion (i) that due to unforeseen and/or nonrecurring circumstances, it is
impractical and/or not feasible to submit or receive a Borrowing Request or
Interest Election Request by email or fax or through Electronic System, and
(ii) to accept a Borrowing Request or Interest Election Request telephonically.
DB2/ 43463576.548024258.7 39 "FATCA" means Sections 1471 through 1474 of the
Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply
with), any current or future regulations or official interpretations thereof,
any agreement entered into pursuant to Section 1471(b)(1) of the Code and any
fiscal or regulatory legislation, rules or practices adopted pursuant to any
intergovernmental agreement, treaty or convention among Governmental
Authorities and implementing such Sections of the Code. "FATCA Deduction"
means a deduction or withholding for a payment under a Loan Document required
by FATCA. "FATCA Exempt Party" means any party to this Agreement that is
entitled to receive payments free from any FATCA Deduction. "FCA" has the
meaning assigned to such term in Section 1.05. "Federal Funds Effective Rate"
means, for any day, the rate calculated by the NYFRB based on such day's
federal funds transactions by depositary institutions (as determined in such
manner as shall be set forth on the NYFRB's Website from time to time) and
published on the next succeeding Business Day by the NYFRB as the effective
federal funds rate, provided that, if the Federal Funds Effective Rate as so
determined would be less than zero, such rate shall be deemed to be zero for
the purposes of this Agreement. "Federal Reserve Board" means the Board of
Governors of the Federal Reserve System of the United States of America. "Fee
Letter" means the Administrative Agent Fee Letter, the Third Amendment Fee
Letter, the FILO Fee Letters, and/or the Joint Fee Letter, as the context may
require. "FILO Amendment" has the meaning assigned to such term in Section
2.09(c). "FILO Availability Period" means the period from and including the
FILO Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the FILO Commitments. "FILO Borrowing" means a
Borrowing comprised of FILO Loans.
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DB2/ 43463576.548024258.7 40 "FILO Borrowing Base" means, collectively, at any
time, the Dollar Equivalent of the result of, subject to the terms of Section
1.10: (a) the sum of (i) 5% of the U.S. Eligible Accounts of each U.S.
Borrower and each Canadian Loan Guarantor at such time, (ii) the lesser of (A)
$6,000,000 and (B) 5% of the U.S. Borrowers' Eligible Accounts at such time
billed from and collected in the United States, Belgium or the United Kingdom
(or any other jurisdiction acceptable to the Administrative Agent) owing by an
Account Debtor in an Approved Jurisdiction, and (iii) the lesser of (A)
$1,000,000 and (B) 5% of the Eligible Accounts of each Canadian Loan Guarantor
at such time billed from and collected in Canada owing by an Account Debtor in
an Approved Jurisdiction, plus (b) the lesser of (i) 5% of the U.S. Borrowers'
Eligible Finished Goods Inventory (valued at the lower of cost (FIFO) or
market) at such time, and (ii) the product of 5% multiplied by the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
ordered by the Administrative Agent multiplied by the U.S. Borrowers' Eligible
Finished Goods Inventory (valued at the lower of cost (FIFO) or market) at
such time, plus (c) the product of 5% multiplied by the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
ordered by the Administrative Agent multiplied by the U.S. Borrowers' Eligible
Work-In-Process Inventory at such time, less (d) Reserves applicable to the
FILO Borrowing Base established by the Administrative Agent in its Permitted
Discretion in accordance with Section 1.10. "FILO Commitment" means, with
respect to each Lender, such Lender's commitment to make FILO Loans and to
acquire participations in FILO Overadvances hereunder, expressed as an amount
representing the maximum aggregate permitted amount of such Lender's FILO
Exposure hereunder, as such commitment may be reduced from time to time
pursuant to (a) Section 2.09(b) and (b) assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's FILO Commitment
is set forth on the Commitment Schedule delivered in connection with the FILO
Amendment, or in the Assignment and Assumption or other documentation or
record (as such term is defined in Section 9-102(a)(70) of the New York
Uniform Commercial Code) as provided in Section 9.04(b)(ii)(C), pursuant to
which such Lender shall have assumed its FILO Commitment, as applicable. "FILO
Credit Event" means a FILO Borrowing or the making of a FILO Overadvance that
the FILO Lenders are required to participate in pursuant to the terms hereof,
or any of the foregoing. "FILO Effective Date" means the date of the
effectiveness of the FILO Amendment. "FILO Excess Availability" means, at any
time of determination, any amount equal to (a) the FILO Line Cap minus (b) the
aggregate FILO Exposure of all FILO Lenders. "FILO Exposure" means, with
respect to any FILO Lender at any time, and without duplication, the sum of
(a) the outstanding principal amount of such FILO Lender's FILO Loans plus (b)
an amount equal to such FILO Lender's FILO Percentage of the aggregate
outstanding principal amount of FILO Overadvances at such time that FILO
Lenders have purchased participations in pursuant to the terms hereof. "FILO
Exposure Limitations" shall have the meaning assigned to such term in Section
2.01(b). DB2/ 43463576.548024258.7 41 "FILO Fee Letters" shall mean any fee
letters entered into between JPMCB and the Borrower Representative in
connection with the FILO Amendment (which may be acknowledged by any FILO
Lender). "FILO Lender" means a Lender with a FILO Commitment or any FILO
Exposure. "FILO Line Cap" means, at any time of determination, an amount equal
to the lesser of (a) the aggregate amount of the FILO Commitments of all FILO
Lenders and (b) the FILO Borrowing Base. "FILO Loan" means a Loan made by a
FILO Lender pursuant to Section 2.01(b). "FILO Overadvance" has the meaning
assigned to such term in Section 2.05(b). "FILO Percentage" means, with
respect to any FILO Lender, percentage equal to a fraction the numerator of
which is such FILO Lender's FILO Commitment and the denominator of which is
the aggregate FILO Commitments of all FILO Lenders; provided that, if the FILO
Commitments have terminated or expired, the FILO Percentages shall be
determined based upon such Lender's share of the aggregate FILO Exposures of
all FILO Lenders at that time; provided further that, in accordance with
Section 2.20, so long as any FILO Lender shall be a Defaulting Lender, such
FILO Lender's FILO Commitment shall be disregarded in the foregoing
calculation. "Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of a Borrower or any director of
any Dutch Borrower who fulfills an equivalent role. "Fixed Charge Coverage
Ratio" means, at any date, the ratio of (a) EBITDA minus Unfinanced Capital
Expenditures of Insight and its Subsidiaries (other than any Capital
Expenditures made in an amount equal to (x) all or part of the proceeds of any
casualty insurance, condemnation or eminent domain or any amount otherwise
reimbursed by third parties during such period or (y) all or part of the
proceeds of any sale of assets of Insight and its Subsidiaries during such
period so long as such proceeds were in fact applied to make Capital
Expenditures within twelve (12) months following receipt thereof) to (b) Fixed
Charges, all calculated for the period of four consecutive fiscal quarters
ended on such date (or, if such date is not the last day of a fiscal quarter,
ended on the last day of the fiscal quarter most recently ended prior to such
date for which financial statements are available); provided that, from and
after the Borrower Representative's written notice to the Administrative Agent
of its irrevocable election to deliver the Consolidating Financial Statements
for all Test Periods ending after such written notice (for so long as any
Unrestricted Subsidiaries exist), Fixed Charge Coverage Ratio shall be
calculated for Insight and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that Insight shall be required to
deliver to the Administrative Agent the related Consolidating Financial
Statements with each set of consolidated financial statements referred to in
Sections 5.01(a) and (b) with respect to each such applicable Test Period
ending after such written notice). "Fixed Charges" means, for any period,
without duplication, (a) Interest Expense (other than the amortization of
deferred financing costs) for such period paid or payable in cash, net of
interest income, plus (b) the aggregate amount of federal, state, local and
foreign income, capital or profits taxes, including foreign withholding taxes,
expenses during such period to the extent paid in cash, plus (c) the aggregate
principal amount of all regularly scheduled principal or amortization payments
on Indebtedness for borrowed money and Capital Lease Obligations of Insight
and its Subsidiaries (other than prepaid amounts, payments in respect of
intercompany Indebtedness among Insight and its Subsidiaries or any payments
paid in cash from the proceeds of any refinancing thereof) made in cash during
such period, plus (d) solely for purpose of calculating compliance with
Payment Conditions (and not, for the avoidance of doubt, for calculating
compliance with Section 6.12), Restricted Payments paid
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DB2/ 43463576.548024258.7 42 by any Loan Party (other than Restricted Payments
(i) solely made by a Loan Party to another Loan Party, (ii) solely made by any
non-Loan Party to any other non-Loan Party, and (iii) any Restricted Payments
made by any Loan Party to any non-Loan Party as part of a series of
transactions whereby such Restricted Payment is ultimately made to a Loan
Party) in cash during period, all calculated for Insight and its Subsidiaries
on a consolidated basis in accordance with GAAP; provided that, from and after
the Borrower Representative's written notice to the Administrative Agent of
its irrevocable election to deliver the Consolidating Financial Statements for
all Test Periods ending after such written notice (for so long as any
Unrestricted Subsidiaries exist), Fixed Charges shall be calculated for
Insight and its Restricted Subsidiaries on a consolidated basis in accordance
with GAAP (it being understood that Insight shall be required to deliver to
the Administrative Agent the related Consolidating Financial Statements with
each set of consolidated financial statements referred to in Sections 5.01(a)
and (b) with respect to each such applicable Test Period ending after such
written notice). "Flood Laws" has the meaning assigned to such term in Section
8.10. "Floor" means the benchmark rate floor, if any, provided in this
Agreement initially (as of the execution of this Agreement, the modification,
amendment or renewal of this Agreement or otherwise) with respect to the
Adjusted REVSOFR30 Rate, Adjusted Term SOFR Rate, AUD Interpolated Rate, AUD
Screen Rate, Central Bank Rate, Daily Simple ESTR, each Daily Simple RFR,
Daily Simple SOFR, EURIBOR Interpolated Rate, EURIBOR Screen Rate, Overnight
Lending Rate or each Overnight Rate (as applicable). The initial Floor on the
Third Amendment Effective Date for each of the Adjusted REVSOFR30 Rate,
Adjusted Term SOFR Rate, AUD Interpolated Rate, AUD Screen Rate, Central Bank
Rate, Daily Simple ESTR, each Daily Simple RFR, Daily Simple SOFR, EURIBOR
Interpolated Rate, EURIBOR Screen Rate, Overnight Lending Rate and each
Overnight Rate shall be 0.00%. "Foreign Benefit Arrangement" means any
employee benefit arrangement in existence at the date of this Agreement or at
any time thereafter which is mandated by non-U.S. law (other than Canadian
law) and that is maintained or contributed to by any Loan Party or any of its
Restricted Subsidiaries (other than any Canadian Loan Party or its
Subsidiaries). "Foreign Benefit Arrangement Event" means (a) the failure of a
Loan Party or any of its Restricted Subsidiaries (other than any Canadian Loan
Party or its Restricted Subsidiaries) to make its required material
contributions in respect of any Foreign Benefit Arrangement when such
contributions are payable; (b) the failure of a Loan Party or any of its
Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) to administer any Foreign Benefit Arrangement in any material
respect in accordance with its terms and all applicable laws, statutes, rules,
regulations and orders (to the extent that any Loan Party or Restricted
Subsidiary (other than any Canadian Loan Party or its Restricted Subsidiaries)
is required by law to administer); (c) the occurrence of an act or omission in
respect of any Foreign Benefit Arrangement which could give rise to the
imposition on a Loan Party or any of its Restricted Subsidiaries (other than
any Canadian Loan Party or its Restricted Subsidiaries) of material fines,
penalties or related charges under applicable laws, statutes, rules,
regulations and orders; (d) the assertion of a material claim (other than a
routine claim for benefits) against a Loan Party or any of its Restricted
Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) in respect of a Foreign Benefit Arrangement; (e) the imposition
of a Lien affecting the assets of a Loan Party or any of its Restricted
Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) in respect of any Foreign Benefit Arrangement; (f) the whole or
partial withdrawal of a Loan Party or a Restricted Subsidiary (other than any
Canadian Loan Party or its Restricted Subsidiaries) from a Foreign Benefit
Arrangement; or (g) any event or condition which might constitute grounds for,
or otherwise causes, the termination, in whole or in part, of any Foreign
Benefit Arrangement or the appointment of a trustee by a Governmental
Authority to administer any Foreign Benefit Arrangement. DB2/ 43463576.548024258
.7 43 "Foreign Borrowers" means, collectively, the U.S. Borrowers, the U.K.
Borrowers, the Dutch Borrowers and the Australian Borrowers. "Foreign
Borrowing Base" means, at any time of determination, an amount equal to the
sum of (a) the U.K. Borrowing Base as of such time, plus (b) the Dutch
Borrowing Base as of such time, plus (c) the Australian Borrowing Base as of
such time. "Foreign Currency" or "Foreign Currencies" means Available
Currencies other than U.S. Dollars. "Foreign Currency LC Exposure" means, at
any time, the sum of (a) the Dollar Equivalent of the aggregate undrawn and
unexpired amount of all outstanding Foreign Currency Letters of Credit at such
time plus (b) the Dollar Equivalent of the aggregate amount of all LC
Disbursements in respect of Foreign Currency Letters of Credit that have not
yet been reimbursed at such time. "Foreign Currency Letter of Credit" means a
Letter of Credit denominated in a Foreign Currency. "Foreign Excess
Availability" means, at any time of determination, any amount equal to (a) the
Foreign Line Cap minus (b) the aggregate Foreign Tranche Revolving Exposure of
all Foreign Tranche Lenders. "Foreign Lender" means (a) if a Borrower is a
U.S. Person, a Lender, with respect to such Borrower, that is not a U.S.
Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to
such Borrower, that is resident or organized under the laws of a jurisdiction
other than that in which such Borrower is resident for tax purposes. "Foreign
Line Cap" means, at any time of determination, an amount equal to the lesser
of (a) the aggregate amount of the Foreign Tranche Commitments of all Foreign
Tranche Lenders and (b) the Foreign Borrowing Base. "Foreign Loan Parties"
means, each of, and collectively, the Loan Parties other than the U.S. Loan
Parties, and the term "Foreign Loan Party" means any one of them or all of
them individually, as the context may require. "Foreign Restricted Subsidiary"
means any Restricted Subsidiary that is a Foreign Subsidiary. "Foreign
Subsidiary" means any Subsidiary which is not a Domestic Subsidiary. "Foreign
Tranche" means the Foreign Tranche Commitments, the Foreign Tranche Revolving
Loans and the Foreign Tranche LC Exposure. "Foreign Tranche Commitment" means,
with respect to each Foreign Tranche Lender, the commitment, if any, of such
Foreign Tranche Lender to make Foreign Tranche Revolving Loans and to acquire
participations in Foreign Tranche Letters of Credit, Revolving Overadvances,
and Protective Advances hereunder, as such commitment may be reduced or
increased pursuant to (a) Section 2.09(a) and (b) assignments by and to such
Foreign Tranche Lender pursuant to Section 9.04. The initial amount of each
Foreign Tranche Lender's Foreign Tranche Commitment is set forth on the
Commitment Schedule, or in the Assignment and Assumption (or other
documentation contemplated by this Agreement) pursuant to which such Foreign
Tranche Lender shall have assumed its Foreign Tranche
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DB2/ 43463576.548024258.7 44 Commitment, as applicable. The aggregate
principal amount of the Foreign Tranche Commitments as of the Third Amendment
Effective Date is $350,000,000. "Foreign Tranche Credit Event" means a Foreign
Tranche Revolving Borrowing, the issuance, amendment, renewal or extension of
a Foreign Tranche Letter of Credit, the making of a Revolving Overadvance or a
Protective Advance that the Foreign Tranche Lenders are required to
participate in pursuant to the terms hereof, or any of the foregoing. "Foreign
Tranche LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
Dollar Equivalent of all outstanding Foreign Tranche Letters of Credit at such
time plus (b) the aggregate Dollar Equivalent of all LC Disbursements in
respect of Foreign Tranche Letters of Credit that have not yet been reimbursed
by or behalf of the Foreign Borrowers at such time. The Foreign Tranche LC
Exposure of any Foreign Tranche Lender at any time shall be its Foreign
Tranche Percentage of the total Foreign Tranche LC Exposure at such time.
"Foreign Tranche Lender" means a Lender with a Foreign Tranche Commitment or
any Foreign Tranche Revolving Exposure. "Foreign Tranche Letter of Credit"
means any Letter of Credit issued under the Foreign Tranche Commitments
pursuant to this Agreement. "Foreign Tranche Percentage" means, with respect
to any Foreign Tranche Lender, percentage equal to a fraction the numerator of
which is such Foreign Tranche Lender's Foreign Tranche Commitment and the
denominator of which is the aggregate Foreign Tranche Commitments of all
Foreign Tranche Lenders; provided that, if the Foreign Tranche Commitments
have terminated or expired, the Foreign Tranche Percentages shall be
determined based upon such Lender's share of the aggregate Foreign Tranche
Revolving Exposures of all Foreign Tranche Lenders at that time; provided
further that, in accordance with Section 2.20, so long as any Foreign Tranche
Lender shall be a Defaulting Lender, such Foreign Tranche Lender's Foreign
Tranche Commitment shall be disregarded in the foregoing calculation. "Foreign
Tranche Revolving Borrowing" means a Revolving Borrowing comprised of Foreign
Tranche Revolving Loans. "Foreign Tranche Revolving Exposure" means, with
respect to any Foreign Tranche Lender at any time, and without duplication,
the sum of (a) the Dollar Equivalent of the outstanding principal amount of
such Foreign Tranche Lender's Foreign Tranche Revolving Loans plus (b) the
Dollar Equivalent of such Foreign Tranche Lender's Foreign Tranche LC Exposure
plus (c) an amount equal to such Foreign Tranche Lender's Foreign Tranche
Percentage of the aggregate outstanding principal amount of Revolving
Overadvances at such time that Foreign Tranche Lenders have purchased
participations in pursuant to the terms hereof plus (d) an amount equal to
such Foreign Tranche Lender's Foreign Tranche Percentage of the aggregate
outstanding principal amount of Protective Advances at such time that Foreign
Tranche Lenders have purchased participations in pursuant to the terms hereof.
"Foreign Tranche Revolving Loan" means a Revolving Loan made by a Foreign
Tranche Lender pursuant to Section 2.01(a). "Funding Account" means the
deposit account(s) of each applicable Borrower to which the Administrative
Agent is authorized by the Borrowers to transfer the proceeds of any
Borrowings requested or authorized pursuant to this Agreement. DB2/
43463576.548024258.7 45 "GAAP" means, subject to Section 1.04, generally
accepted accounting principles in the U.S. "Global Borrowing Base" means, at
any time of determination, an amount equal to the sum of (a) the U.S.
Borrowing Base as of such time, plus (b) the Foreign Borrowing Base as of such
time, plus (c) the FILO Borrowing Base. "Global Collateral" means any and all
property owned, leased or operated by a Global Loan Party covered by the
Collateral Documents and any and all other property of any Global Loan Party,
now existing or hereafter acquired, that may at any time be, become or be
intended to be, subject to a security interest or Lien in favor of the
Administrative Agent, on behalf of itself and the Lenders and other Secured
Parties, to secure the Secured Obligations; provided, however, that, in
respect of the assets of any Global Loan Party, "Global Collateral" shall not
include any Excluded Assets. "Global Guaranteed Obligations" has the meaning
assigned to such term in Section 10.01. "Global Loan Parties" means the Loan
Parties. "Global Revolving Borrowing Base" means, at any time of determination,
an amount equal to the sum of (a) the U.S. Borrowing Base as of such time,
plus (b) the Foreign Borrowing Base as of such time. "Global Secured
Obligations" means all Obligations, together with all (i) Banking Services
Obligations and (ii) Swap Agreement Obligations owing to one or more Lenders
or their respective Affiliates, in each case owing by any Loan Party or any
Subsidiary thereof; provided, however, that the definition of "Global Secured
Obligations" shall not create any guarantee by any Loan Guarantor of (or grant
of security interest or other Lien by any Loan Guarantor to support, as
applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes
of determining any obligations of any Loan Guarantor. "Governmental Authority"
means the government of the United States, Canada, The Netherlands, the United
Kingdom, Australia or any other nation or any political subdivision thereof,
whether state, provincial, territorial or local, the European Central Bank,
the Council of Ministers of the European Union, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
(including any European supranational body) exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government. "Guarantee" of or by any Person (the "guarantor")
means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. "Hazardous Materials" means: (a) any substance,
material, or waste that is included within the definitions of "hazardous
substances," "hazardous materials," "hazardous waste," "toxic substances,"
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DB2/ 43463576.548024258.7 46 "toxic materials," "toxic waste," or words of
similar import in any Environmental Law; (b) those substances listed as
hazardous substances by the United States Department of Transportation (or any
successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency or similar applicable
foreign agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any
substance, material, or waste that is petroleum, petroleum-related, or a
petroleum by-product, asbestos or asbestos-containing material, polychlorinated
biphenyls, flammable, explosive, radioactive, freon gas, radon, or a
pesticide, herbicide, or any other agricultural chemical. "Immaterial
Subsidiary" means any Restricted Subsidiary that (i) on an individual basis,
accounts for less than five percent (5%) of EBITDA of Insight and its
Subsidiaries and (ii) together with its Subsidiaries that are Restricted
Subsidiaries and every other Immaterial Subsidiary, accounts for less than
fifteen percent (15%) of EBITDA of Insight and its Subsidiaries, in each case
for the four fiscal quarters ended on the last day of the most recently ended
fiscal quarter of Insight for which financial statements have been delivered
pursuant to Section 4.01(b) (at all times prior to the first delivery of
financial statements after the Effective Date under Section 5.01(a)or (b)) or
Section 5.01(a) or (b). "Impacted AUD Rate Interest Period" has the meaning
assigned to such term in the definition of "AUD Rate." "Impacted EURIBOR Rate
Interest Period" has the meaning assigned to such term in the definition of
"EURIBOR Rate." "Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations
of such Person in respect of the deferred purchase price of property or
services (excluding (i) current accounts payable, deferred compensation and
accrued expenses, in each case incurred in the ordinary course of business and
(ii) any bona-fide earn-out obligation until such obligation becomes (or
should become) a liability on the balance sheet of such Person in accordance
with GAAP and if not paid after being due and payable), (e) all Indebtedness
of others secured by any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (f) all
Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty (except to the extent cash collateralized in a manner permitted
hereunder), (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances, (j) any Disqualified Equity Interests of such
Person, and (k) obligations, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i)
any and all Swap Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Swap Agreement transaction;
provided that the term "Indebtedness" shall not include (w) deferred or
prepaid revenue arising in the ordinary course of business, (x) purchase price
holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the seller, (y) intercompany
liabilities arising from their cash management, tax, and accounting operations
and intercompany loans, advances or Indebtedness having a term not exceeding
364 days (inclusive of any rollover or extensions of terms) and made in the
ordinary course of business, and (z) obligations with respect to any Permitted
Convertible Debt Hedge Transaction and any Permitted Share Repurchase
Transaction. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor. DB2/ 43463576.548024258.7 47 "Indemnified Taxes" means (a)
Taxes, other than Excluded Taxes, imposed on or with respect to any payment
made by, or on account of any obligation of any Loan Party under any Loan
Document and (b) to the extent not otherwise described in the foregoing clause
(a) hereof, Other Taxes. "Indemnitee" has the meaning assigned to such term in
Section 9.03(b). "Ineligible Institution" has the meaning assigned to such
term in Section 9.04(b). "Information" has the meaning assigned to such term
in Section 9.12. "Insight" has the meaning assigned to such term in the
preamble hereto. "Insight Australia" has the meaning assigned to such term in
the preamble hereto "Insight Direct" has the meaning assigned to such term in
the preamble hereto. "Insight Direct Philippines" has the meaning assigned to
such term in the preamble hereto. "Insight Enterprises" has the meaning
assigned to such term in the preamble hereto. "Insight NA" has the meaning
assigned to such term in the preamble hereto. "Insight Netherlands" has the
meaning assigned to such term in the preamble hereto. "Insight Networking" has
the meaning assigned to such term in the preamble hereto. "Insight Physical
Security" has the meaning assigned to such term in the preamble heretomeans
Insight Physical Security Solutions, LLC, an Arizona limited liability
company. "Insight Public Sector" has the meaning assigned to such term in the
preamble hereto. "Insight Receivables" has the meaning assigned to such term
in the preamble hereto. "Insight UK" has the meaning assigned to such term in
the preamble hereto. "Insolvency Laws" means each of the Bankruptcy Code, the
Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement
Act (Canada), the Winding-Up and Restructuring Act (Canada), Dutch Bankruptcy
Act (Faillissementswet), the Insolvency Act 1986 (UK), the European Union
Regulation and the Australian Corporations Act, in each case as amended, and
any other applicable state, provincial, territorial or federal bankruptcy,
liquidation, conservatorship, assignment for the benefit of creditors,
administration, examinership, moratorium, rearrangement, receivership,
insolvency, judicial management, reorganization, or similar debtor relief
laws, each as now and hereafter in effect, any successors to such statutes and
any other applicable insolvency or other similar law of any jurisdiction,
including any corporate law of any jurisdiction permitting a debtor to obtain
a stay or a compromise of the claims of its creditors against it and including
any rules and regulations pursuant thereto. "Interconnect Network" has the
meaning assigned to such term in the preamble hereto. "Interest Election
Request" means a request by the Borrower Representative to convert or continue
a Borrowing in accordance with Section 2.08.
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DB2/ 43463576.548024258.7 48 "Interest Expense" means, for any period, total
interest expense (including that attributable to Capital Lease Obligations) of
Insight and its Subsidiaries for such period with respect to all outstanding
Indebtedness of Insight and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptances and net costs under Swap Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP), calculated on a consolidated basis for Insight and its
Subsidiaries for such period in accordance with GAAP; provided that, from and
after the Borrower Representative's written notice to the Administrative Agent
of its irrevocable election to deliver the Consolidating Financial Statements
for all Test Periods ending after such written notice (for so long as any
Unrestricted Subsidiaries exist), Interest Expense shall be calculated for
Insight and its Restricted Subsidiaries on a consolidated basis in accordance
with GAAP (it being understood that Insight shall be required to deliver to
the Administrative Agent the related Consolidating Financial Statements with
each set of consolidated financial statements referred to in Sections 5.01(a)
and (b) with respect to each such applicable Test Period ending after such
written notice). "Interest Payment Date" means (a) with respect to any CBFR
Loan or Overnight Rate Loan, (i) the first (1st) Business Day of each calendar
quarter and (ii) the Maturity Date, and (b) with respect to any RFR Loan, (i)
each date that is on the numerically corresponding day in each calendar month
that is one (1) month after the Borrowing of such Loan (or, if there is no
such numerically corresponding day in such month, then the last day of such
month) and (ii) the Maturity Date, and (c) with respect to any Term Benchmark
Loan, (i) the last day of each Interest Period applicable to the Borrowing of
which such Loan is a part (and, in the case of a Term Benchmark Borrowing with
an Interest Period of more than three months' duration, each day prior to the
last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period) and (ii) the Maturity
Date. "Interest Period" means, with respect to any Term Benchmark Borrowing,
the period commencing on the date of such Term Benchmark Borrowing and ending
on the numerically corresponding day in the calendar month that is one, three
or six months thereafter (or, if consented to by each applicable Lender, such
other period), as the Borrower Representative may elect in each case, subject
to the availability for the Benchmark applicable to the relevant Revolving
Loan or FILO Loan or Revolving Commitment or FILO Commitment for any Available
Currency; provided, that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Term Benchmark Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, (ii) any Interest Period pertaining to a Term Benchmark Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period, and (iii) no tenor that has been removed from this
definition pursuant to Section 2.14(g) shall be available for specification in
such Borrowing Request or Interest Election Request. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing. "Inventory" has the meaning assigned to
such term in the applicable Collateral Documents. "Inventory Financing
Facilities" means those certain inventory finance transactions from time to
time entered into by any Loan Party or any Restricted Subsidiary with any of
MUFG Bank, Ltd., Wells Fargo Capital Finance, LLC and any of their respective
Affiliates and any other Person reasonably acceptable to the Administrative
Agent. DB2/ 43463576.548024258.7 49 "Investment" has the meaning assigned to
such term in Section 6.04. For purposes of the definition of "Unrestricted
Subsidiary" and Section 6.04: (a) "Investments" shall include the portion
(proportionate to Insight's and its Restricted Subsidiaries' Equity Interests
in such subsidiary) of the fair market value of the net assets of a subsidiary
of Insight at the time that such subsidiary is designated an Unrestricted
Subsidiary; and (b) Any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by Insight. "Investment
Grade Account Debtor" means an Account Debtor that, at any time of
determination, has a corporate credit rating equal to or higher than BBB- (or
its equivalent) by S&P or Baa3 (or its equivalent) by Moody's. "Irish Security
Agreement" means that certain Irish law account charge, dated October 24,
2019, by and among Insight Enterprises and the Administrative Agent, for the
benefit of the Administrative Agent and the other Secured Parties. "IRS" means
the United States Internal Revenue Service. "Issuing Bank" means, individually
and collectively, (a) each of JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and any other Lender from time to time designated by the
Borrower Representative as an Issuing Bank, with the consent of such Lender
and the Administrative Agent (such consent of the Administrative Agent not to
be unreasonably withheld, delayed or conditioned), (b) with respect to
Existing Letters of Credit, each issuer thereof, and (c) in each case, their
respective successors in such capacity as provided in Section 2.06(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by its Affiliates, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate (it being agreed that such Issuing Bank shall, or shall cause such
Affiliate to, comply with the requirements of Section 2.06 with respect to
such Letters of Credit). At any time there is more than one Issuing Bank, all
singular references to the Issuing Bank shall mean any Issuing Bank, either
Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the
applicable Letter of Credit, or both (or all) Issuing Banks, as the context
may require. "ITA" means the Income Tax Act 2007 (U.K.), as amended from time
to time. "Joinder Agreement" means a Joinder Agreement in substantially the
form of Exhibit D. "Joining FILO Lender" has the meaning assigned to such term
in Section 2.09(c). "Joint Fee Letter" means that certain Fee Letter, dated as
of June 23, 2019, by and between JPMCB and the Borrower Representative as
supplemented by that certain Joinder Letter, dated July 12, 2019, from Wells
Fargo Bank, N.A. and as further supplemented by that certain Joinder Letter,
dated July 12, 2019, from Bank of America, N.A. "JPMCB" means JPMorgan Chase
Bank, N.A., a national banking association, in its individual capacity, and
its successors.
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DB2/ 43463576.548024258.7 50 "Junior Indebtedness" means any Subordinated
Indebtedness of the Loan Parties or any Restricted Subsidiary thereof. "LC
Collateral Account" has the meaning assigned to such term in Section 2.06(j).
"LC Disbursement" means any payment made by an Issuing Bank pursuant to a
Letter of Credit. "LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit, plus (b) the
aggregate amount of all LC Disbursements relating to Letters of Credit that
have not yet been reimbursed by or on behalf of the Borrowers. The LC Exposure
of any Lender at any time shall be its Applicable Percentage of the aggregate
LC Exposure at such time. "LCT Election" has the meaning assigned to such term
in Section 1.09. "Lender Presentation" means the Lender Presentation dated
July 2019 relating to the Borrowers and the Transactions, and delivered to the
Administrative Agent prior to the Effective Date. "Lenders" means the Persons
listed on the Commitment Schedule and any other Person that shall have become
a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or
otherwise, other than any such Person that ceases to be a Lender hereunder
pursuant to an Assignment and Assumption or otherwise. Unless the context
otherwise requires, the term "Lenders" includes the Issuing Banks. "Letters of
Credit" means the letters of credit (including any standby letter of credit,
time (usance), or documentary letter of credit or any indemnity, or bank
guarantee or similar form of credit support) issued pursuant to this Agreement
and shall include the Existing Letters of Credit, and the term "Letter of
Credit" means any one of them or each of them singularly, as the context may
require. "Letter of Credit Agreement" has the meaning assigned to it in
Section 2.06(b). "Liabilities" means any losses, claims (including intraparty
claims), demands, damages or liabilities of any kind. "Lien" means, with
respect to any asset, (a) any lien, hypothecation, pledge, encumbrance, charge
in the nature of a security interest or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset, and (c) and, in the case of any Collateral under an
Australian Collateral Document, any "security interest" as defined in sections
12(1) and 12(2) of the Australian PPSA. "Limited Condition Acquisition
Agreement" means the definitive acquisition agreement governing a Limited
Condition Transaction. "Limited Condition Eligible Transaction" means any
Acquisition or similar Investment by any Loan Party or one or more of the
Restricted Subsidiaries, including by way of merger or amalgamation, of any
assets, business or Person permitted pursuant to this Agreement whose
consummation is not conditioned on the availability of, or on obtaining, third
party financing. "Limited Condition Transaction" means any Limited Condition
Eligible Transaction with respect to which the Borrower Representative has
made an LCT Election. DB2/ 43463576.548024258.7 51 "Loan Documents" means,
collectively, this Agreement, each Fee Letter, any promissory notes issued
pursuant to this Agreement, any Letter of Credit Agreement, the Collateral
Documents, the Australian Security Trust Deed, each Compliance Certificate,
any Loan Guaranty, and all other agreements, instruments, documents and
certificates executed and delivered by or on behalf of any Loan Party to, or
in favor of, the Administrative Agent or any Lender in connection with this
Agreement. Any reference in this Agreement or any other Loan Document to a
Loan Document shall include all appendices, exhibits or schedules thereto, and
all amendments, restatements, supplements or other modifications thereto, and
shall refer to this Agreement or such Loan Document as the same may be in
effect at any and all times such reference becomes operative. "Loan Guarantor"
means each Global Loan Party in the case of Article X and the related
obligations and rights thereunder. "Loan Guaranty" means Article X of this
Agreement and, to the extent applicable, each separate Guarantee, in form and
substance reasonably satisfactory to the Administrative Agent, delivered by
each Loan Guarantor that is a Foreign Subsidiary (which Guarantee shall be
governed by the laws of the country in which such Foreign Subsidiary is
located). "Loan Parties" means, collectively, the U.S. Loan Parties, the
Canadian Loan Parties, the U.K. Loan Parties, the Dutch Loan Parties, the
Australian Loan Parties and any other Restricted Subsidiary of Insight who
becomes a party to this Agreement pursuant to a Joinder Agreement (and the
execution of any Guarantee, as applicable) and their respective successors and
assigns, and the term "Loan Party" shall mean any one of them or all of them
individually, as the context may require. For the avoidance of doubt, Loan
Parties shall not include any Excluded Subsidiary. "Loans" means the loans and
advances made by the Lenders pursuant to this Agreement, including Revolving
Loans, FILO Loans, Revolving Overadvances, FILO Overadvances and Protective
Advances. "Local Time" means (a) (i) local time in New York with respect to a
Loan, Letter of Credit, Borrowing or LC Disbursement made, repaid, or
requested, as applicable, by or on behalf of any U.S. Borrower denominated in
U.S. Dollars, and (ii) local time in London with respect to a Loan, Letter of
Credit, Borrowing or LC Disbursement made, repaid, or requested, as
applicable, by or on behalf of any U.S. Borrower denominated in any Available
Currency (other than Dollars) and (b) local time in London with respect to a
Loan, Letter of Credit, Borrowing or LC Disbursement made, repaid, or
requested, as applicable, by or on behalf of any Dutch Borrower, any U.K.
Borrower or any Australian Borrower. "M2 Marketplace" has the meaning assigned
to such term in the preamble heretomeans M2 Marketplace, Inc., a Delaware
corporation. "Margin Stock" means margin stock within the meaning of
Regulations T, U and X, as applicable. "Material Adverse Effect" means a
material adverse effect on (a) the business, assets, operations, or financial
condition of the Borrowers and their Restricted Subsidiaries, taken as a
whole, (b) the ability of any Loan Party to perform any of its obligations
under the Loan Documents to which it is a party, (c) a material portion of the
Collateral, or the Administrative Agent's liens (on behalf of itself and the
Lenders) on a material portion of the Collateral or the priority of such
liens, or (d) the material rights of or benefits available to the
Administrative Agent, the Issuing Banks or the Lenders in connection with the
Loan Documents.
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DB2/ 43463576.548024258.7 52 "Material Indebtedness" means Indebtedness (other
than the Obligations), or obligations in respect of one or more Swap
Agreements, of any one or more of the Loan Parties and their Restricted
Subsidiaries in an aggregate principal amount exceeding $50,000,0000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of any Loan Party or any Restricted Subsidiary in respect of any
Swap Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Loan Party or such Restricted
Subsidiary would be required to pay if such Swap Agreement were terminated at
such time. "Material Subsidiary" means any Restricted Subsidiary other than an
Immaterial Subsidiary. "Maturity Date" means July 22, 2027 or any earlier date
on which the Revolving Commitments and FILO Commitments are reduced to zero or
otherwise terminated pursuant to the terms hereof. "Maximum Rate" has the
meaning assigned to such term in Section 9.17. "Merger Sub" means Trojan
Acquisition Corp., a Delaware corporation and a Wholly Owned Subsidiary of
Insight prior to the Trojan Acquisition. "Moody's" means Moody's Investors
Service, Inc. "Mortgage" shall mean any mortgage, deed of trust, deed to
secure debt, assignment of leases and rents and any other security document
(including any assignment, amendment, amendment and restatement or similar
modification of any existing mortgage) delivered pursuant to the terms hereof,
in each case, reasonably acceptable to the Administrative Agent and the
Borrower Representative. "Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA. "Net Income" means, for any period,
the consolidated net income (or loss) of Insight and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that,
from and after the Borrower Representative's written notice to the
Administrative Agent of its irrevocable election to deliver the Consolidating
Financial Statements for all Test Periods ending after such written notice
(for so long as any Unrestricted Subsidiaries exist), Net Income shall be
calculated for Insight and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that Insight shall be required to
deliver to the Administrative Agent the related Consolidating Financial
Statements with each set of consolidated financial statements referred to in
Sections 5.01(a) and (b) with respect to each such applicable Test Period
ending after such written notice). "Net Orderly Liquidation Value" means, with
respect to Inventory (or any category thereof) of any Person, the orderly
liquidation value thereof as determined by reference to the most recent
inventory appraisal received by the Administrative Agent by an appraiser
acceptable to the Administrative Agent in its Permitted Discretion, net of all
costs of liquidation thereof. "New Collection Account" has the meaning
assigned to such term in Section 5.17. "New JPM Collection Account" has the
meaning assigned to such term in Section 5.17. "Non-Consenting Lender" has the
meaning assigned to such term in Section 9.02(d). "NYFRB" means the Federal
Reserve Bank of New York. "NYFRB Rate" means, for any day, the greater of (a)
the Federal Funds Effective Rate in effect on such day and (b) the Overnight
Bank Funding Rate in effect on such day(or for any day that is not a DB2/
43463576.548024258.7 53 Business Day, for the immediately preceding Business
Day); provided that if none of such rates are published for any day that is a
Business Day, the term "NYFRB Rate" means the rate for a federal funds
transaction quoted at 11:00 a.m. on such day received by the Administrative
Agent from a federal funds broker of recognized standing selected by it;
provided, further, that if any of the aforesaid rates as so determined would
be less than zero, such rate shall be deemed to be zero for purposes of this
Agreement. "NYFRB's Website" means the website of the NYFRB at http://www.newyor
kfed.org, or any successor source. "Obligations" means all unpaid principal of
and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other
obligations and indebtedness (including interest and fees accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
obligations and liabilities of any of the Loan Parties to any of the Lenders,
the Administrative Agent, the Issuing Bank or any indemnified party,
individually or collectively, existing on the Effective Date or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured,
arising by contract, operation of law or otherwise, in each case arising or
incurred under this Agreement or any of the other Loan Documents or in respect
of any of the Loans made or reimbursement or other obligations incurred or any
of the Letters of Credit or other instruments at any time evidencing any
thereof; provided, however, that the definition of "Obligations" shall not
create any guarantee by any Loan Guarantor of (or grant of security interest
or other Lien by any Loan Guarantor to support, as applicable) any Excluded
Swap Obligations of such Loan Guarantor for purposes of determining any
obligations of any Loan Guarantor. "OECD" means the Organisation for Economic
Co-operation and Development. "OnSale Holdings" has the meaning assigned to
such term in the preamble heretomeans OnSale Holdings, Inc., an Illinois
corporation. "Other Connection Taxes" means, with respect to any Recipient,
Taxes imposed as a result of a present or former connection between such
Recipient and the jurisdiction imposing such Taxes (other than a connection
arising from such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant
to, or enforced, any Loan Document, or sold or assigned an interest in any
Loan, Letter of Credit or any Loan Document). "Other Taxes" means all present
or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any
Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to
Section 2.19(b)). "Overnight Bank Funding Rate" means, for any day, the rate
comprised of both overnight federal funds and overnight Term Benchmark
Borrowings denominated in U.S. Dollars borrowings by U.S.-managed banking
offices of depository institutions (as such composite rate shall be determined
by the NYFRB as set forth on the NYFRB's Website from time to time) and
published on the next succeeding Business Day by the NYFRB as an overnight
bank funding rate. "Overnight Lending Rate" means, for any day, in the case of
Loans denominated in U.S. Dollars (1) Daily Simple SOFR; provided that if the
Overnight Lending Rate shall be less than the Floor, such
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DB2/ 43463576.548024258.7 54 rate shall be deemed to be the Floor for all
purposes of this Agreement, plus (2) any mandatory or other reserve cost.
"Overnight Rate" means: (a) as the context may require, (a) the U.K./Dutch
Overnight Rate, (b) the U.S. Overnight Rate and (c) the Australian Overnight
Rate; and (b) when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the applicable Overnight Rate; provided that
if an Overnight Rate shall be less than the Floor, such rate shall be deemed
to be the Floor for all purposes of this Agreement. "Overnight Rate Loans"
means Loans the rate of interest applicable to which is based on the Overnight
Rate. "Paid in Full" or "Payment in Full" means, (a) the indefeasible payment
in full in cash of all outstanding Loans and LC Disbursements, together with
accrued and unpaid interest thereon, (b) the termination, expiration, or
cancellation and return of all outstanding Letters of Credit (or alternatively,
with respect to each such Letter of Credit, the furnishing to the
Administrative Agent of a cash deposit, or at the discretion of the
Administrative Agent a backup standby letter of credit reasonably satisfactory
to the Administrative Agent and the applicable Issuing Bank, in an amount
equal to 103% of the LC Exposure as of the date of such payment), (c) the
indefeasible payment in full in cash of the accrued and unpaid fees, (d) the
indefeasible payment in full in cash of all reimbursable expenses and other
Secured Obligations (other than Unliquidated Obligations for which no claim
has been made and other obligations expressly stated to survive such payment
and termination of this Agreement), together with accrued and unpaid interest
thereon, (e) the termination of all Revolving Commitments and FILO
Commitments, and (f) the termination of the Swap Agreement Obligations and the
Banking Services Obligations or entering into other arrangements reasonably
satisfactory to the Secured Parties counterparties thereto. "Parent" means,
with respect to any Lender, any Person as to which such Lender is, directly or
indirectly, a subsidiary. "Participating Member States" means, at any time,
any member state of the European Union which has the Euro as its lawful
currency in accordance with the legislation of the European Union relating to
the Economic and Monetary Union. "Participant" has the meaning assigned to
such term in Section 9.04(c). "Participant Register" has the meaning assigned
to such term in Section 9.04(c). "Payment" has the meaning assigned to such
term in Section 8.06(d). "Payment Conditions" means, at any applicable time of
determination with respect to a specified transaction, event, or payment that
is subject to the satisfaction of the Payment Conditions, that: (a) no
Specified Event of Default has then occurred and is continuing or would result
after giving effect to such specified transaction, event or payment, DB2/
43463576.548024258.7 55 (b) either (i) pro forma Aggregate Excess Availability
on the date of such specified transaction, event or payment and the pro forma
Average Aggregate Excess Availability for the thirty (30)-consecutive day
period immediately preceding such specified transaction, event or payment (in
each case, calculated on a pro forma basis to include the borrowing of any
Revolving Loans or issuance of any Letters of Credit in connection with such
specified transaction, event or payment) exceeds the greater of (A) 15% of the
Aggregate Combined Commitment then in effect and (B) $270,000,000, or (ii)
both (A) the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis for
the most recent fiscal quarter for which financial statements have been
delivered to the Administrative Agent pursuant to Section 4.01(b) (at all
times prior to the first delivery of financial statements after the Effective
Date under Section 5.01(a) or (b)) or Section 5.01(a) or (b) after giving
effect to such specified transaction, event or payment, is at least 1.0 to 1.0
and (B) pro forma Aggregate Excess Availability on the date of such proposed
transaction, event or payment and the pro forma Average Aggregate Excess
Availability for the thirty (30)-consecutive day period immediately preceding
such specified transaction, event or payment (in each case, calculated on a
pro forma basis to include the borrowing of any Revolving Loans or issuance of
any Letters of Credit in connection with such proposed transaction, event or
payment) is at least the greater of (1) 12.5% of the Aggregate Combined
Commitment and (2) $225,000,000, and (c) in the case of any such transaction,
event or payment involving more than $10,000,000, the Borrower Representative
shall have delivered a customary officer's certificate to the Administrative
Agent certifying as to compliance with the requirements of clauses (a) and
(b). "Payment Notice" has the meaning assigned to such term in Section
8.06(d). "PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions. "PCM"
has the meaning assigned to such in the preamble hereto. "PCM Logistics" has
the meaning assigned to such term in the preamble heretomeans PCM Logistics,
LLC, a Delaware limited liability company. "PCM Technology" has the meaning
assigned to such term in the preamble hereto. "PCMG" has the meaning assigned
to such term in the preamble heretomeans PCMG, Inc. a Delaware corporation.
"Permitted Acquisition" means (a) the Trojan Acquisition and (b) any other
Acquisition by any Loan Party or any Restricted Subsidiary, in the case of
clause (b) in a transaction that satisfies each of the following requirements:
(a) such Acquisition is not a hostile or contested acquisition; (b) the
business or Person acquired in connection with such Acquisition is engaged in
or constitutes a business permitted pursuant to Section 5.03(b); (c) no Event
of Default exists at the time of such Acquisition or would result therefrom;
provided that, solely with respect to Limited Condition Transactions, the
condition set
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DB2/ 43463576.548024258.7 56 forth in this clause (b) shall be required to be
satisfied only at the time of execution of the applicable Limited Condition
Acquisition Agreement; (d) the Payment Conditions are satisfied with respect
to such Acquisition (or, at the option of the Borrower Representative, if such
Acquisition is a Limited Condition Transaction, the condition set forth in
this clause (d) shall be required to be satisfied only at the time of
execution of the applicable Limited Condition Acquisition Agreement; provided,
however, compliance with any Aggregate Excess Availability or Average
Aggregate Excess Availability requirement set forth in the definition of
"Payment Conditions" shall be tested as of the date of consummation of such
Limited Condition Transaction); (e) to the extent the aggregate consideration
for such Acquisition exceeds $150,000,000 (or, in the case of an Acquisition
of assets by a Loan Party, $100,000,000), then not less than fifteen (15)
Business Days (or such shorter time as may be agreed to by the Administrative
Agent) prior to such Acquisition, the Borrower Representative has provided the
Administrative Agent (i) notice of such Acquisition and (ii) a copy of all
business and financial information (including pro forma financial statements
and all Borrowing Base projections) relating to the acquired business
reasonably requested by the Administrative Agent and available to the Borrower
Representative; (f) if the Accounts and Inventory acquired in connection with
such Acquisition are proposed to be included in the determination of the
applicable Borrowing Base, unless waived by the Administrative Agent in its
sole discretion, the Administrative Agent shall have conducted an audit and
field examination of such Accounts and Inventory, as applicable, the results
of which shall be satisfactory to the Administrative Agent in its Permitted
Discretion; provided, however, that Accounts and Inventory acquired in
connection with Permitted Acquisitions shall not be deemed ineligible solely
on account of this clause (f) to the extent the aggregate value of all such
Accounts and Inventory does not exceed $112,500,000 at any one time (provided,
that, the advance rate against Eligible Accounts included in accordance with
this proviso shall be deemed to be 70% and the advance rate against Eligible
Inventory included in accordance with this proviso shall be deemed to be 50%,
in each case, until such time as an appraisal and field examination with
respect to the applicable target or business, reasonably satisfactory to the
Administrative Agent, has been completed); (g) if such Acquisition is an
acquisition of Equity Interests, such Acquisition will not result in any
violation of Regulation U; (h) all actions required to be taken with respect
to any newly acquired or formed Wholly Owned Subsidiary of a Borrower or a
Loan Party, as applicable, required under Section 5.14 shall have been taken
or shall be taken within the times required thereby; and (i) to the extent the
aggregate consideration for such Acquisition exceeds $150,000,000 (or, in the
case of an Acquisition of assets by a Loan Party, $100,000,000), the Borrower
Representative shall have delivered to the Administrative Agent (i) the
substantially final form documentation relating to such Acquisition within
five (5) days (or such later date as the Administrative Agent may agree) prior
to the consummation thereof to the extent available to the Borrower
Representative, and (ii) the final executed documentation relating to such
Acquisition within three (3) days (or such later date as the Administrative
Agent may agree) following the consummation thereof. DB2/ 43463576.548024258.7
57 "Permitted Bond Hedge" means any Swap Agreement that is settled (after
payment of any premium or any prepayment thereunder) through the delivery of
cash, Qualified Equity Interests of Insight (or other securities or property
following a merger event, reclassification or other change of such Qualified
Equity Interests of Insight) or a combination of cash and Qualified Equity
Interests of Insight (or other securities or property following a merger
event, reclassification or other change of such Qualified Equity Interests of
Insight) and is entered into in connection with any Convertible Debt
Securities of Insight, one of the purposes of which is, together with any
Permitted Warrant entered into concurrently therewith, to provide for an
effectively higher conversion premium. "Permitted Convertible Debt Hedge
Transaction" means (a) any Permitted Bond Hedge and any Permitted Warrant or
(b) any capped call or similar transaction having substantially the same
economic effect as the foregoing. "Permitted Discretion" means a determination
made in good faith and in the exercise of reasonable (from the perspective of
a secured asset-based lender) business judgment. "Permitted Encumbrances"
means: (a) Liens imposed by law for Taxes that are not yet due or are being
contested in compliance with Section 5.04; (b) carriers', warehousemen's,
mechanics', materialmen's, repairmen's landlords' and other like Liens imposed
by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than sixty (60) days or are being contested in
compliance with Section 5.04; (c) pledges and deposits made in the ordinary
course of business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations; (d) deposits to
secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature or obligations in respect of letters of credit issued in
support thereof, in each case in the ordinary course of business; (e) any Lien
deemed to be granted under Section 12(3) of the Australian PPSA which does not
secure payment or performance of an obligation; (f) judgment Liens in respect
of judgments that do not constitute an Event of Default under clause (k) of
Article VII; and (g) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or materially interfere with
the ordinary conduct of business of any Borrower or any Restricted Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, except with respect to clause (d) (solely with respect
to Letters of Credit) or (e) above. "Permitted Investments" means:
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DB2/ 43463576.548024258.7 58 (a) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States or Canada (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of such government), in
each case maturing within one year from the date of acquisition thereof; (b)
investments in commercial paper maturing within one (1) year from the date of
acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's; (c) investments in
certificates of deposit, bankers' acceptances and time deposits maturing
within one (1) year from the date of acquisition thereof issued or guaranteed
by or placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States, Canada or any State, province or territory thereof which has a
combined capital and surplus and undivided profits of not less than
$500,000,000; (d) fully collateralized repurchase agreements with a term of
not more than thirty (30) days for securities described in clause (a) above
and entered into with a financial institution satisfying the criteria
described in clause (c) above; (e) money market funds that (i) comply with the
criteria set forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, and (ii) are rated AAA by S&P and Aaa by
Moody's; (f) cash denominated in Available Currencies or, in the case of any
Foreign Subsidiary, such local currencies held by it from time to time in the
ordinary course of business; and (g) in the case of any Foreign Subsidiary,
high quality, short-term liquid Investments made by such Foreign Subsidiary in
the ordinary course of managing its surplus cash position in investments in
any OECD country of similar quality as those described in clauses (a) through
(f) above. "Permitted Share Repurchase Transaction" means an accelerated share
repurchase transaction or other structured share repurchase transaction
entered into by Insight for the purpose of purchasing its Qualified Equity
Interests. "Permitted Warrant" means one or more call options settled through
the delivery of cash, Qualified Equity Interests of Insight (or other
securities or property following a merger event, reclassification or other
change of such Qualified Equity Interests of Insight) or a combination of cash
and Qualified Equity Interests of Insight (or other securities or property
following a merger event, reclassification or other change of such Qualified
Equity Interests of Insight), sold concurrently with the entry into one or
more Permitted Bond Hedges and having an initial strike or exercise price
(howsoever defined) that is greater than the strike or exercise price
(howsoever defined) of such Permitted Bond Hedge. "Person" means any natural
person, corporation, limited liability company, unlimited liability company,
trust, joint venture, association, company, partnership, Governmental
Authority or other entity. "Plan" means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect DB2/
43463576.548024258.7 59 of which any Loan Party or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA. "Plan Asset
Regulations" means 29 CFR (s) 2510.3-101 et seq., as modified by Section 3(42)
of ERISA, as amended from time to time. "PPSA" means the Personal Property
Security Act (Ontario), as amended from time to time (or any successor
statute) including the regulations thereto; provided that, if validity,
perfection or the effect of perfection or non-perfection or opposability or
the priority of any Lien created hereunder on the Collateral is governed by
the personal (movable) property security legislation or other applicable
legislation with respect to personal (movable) property security in effect in
a jurisdiction other than Ontario, "PPSA" means the Personal Property Security
Act or such other applicable legislation (including, without limitation, the
Civil Code of Quebec) in effect from time to time in such other jurisdiction
for purposes of the provisions hereof relating to such validity, perfection,
effect of perfection or non-perfection or opposability or priority. "Prime
Rate" means the rate of interest last quoted by The Wall Street Journal as the
"Prime Rate" in the U.S. or, if The Wall Street Journal ceases to quote such
rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest
Rates) as the "bank prime loan" rate or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by
the Administrative Agent). Each change in the Prime Rate shall be effective
from and including the date such change is publicly announced or quoted as
being effective. "Priority Payable Reserve" means, with respect to
jurisdictions other than the U.S. (or any state thereof) and Canada (or any
province or territory thereof), any Reserve established in the Permitted
Discretion of the Administrative Agent in accordance with Section 1.10 for
amounts which rank or are capable of ranking prior to the Liens granted to the
Administrative Agent under the Collateral Documents, including, without
limitation, in the Permitted Discretion of the Administrative Agent, any such
amounts due and not paid for wages, or vacation pay, severance pay, employee
deductions, income tax, insolvency costs (including the expenses and
liabilities incurred by any administrator or other insolvency officer) and any
remuneration of such administrator or other insolvency officer, amounts due
and not paid under any legislation relating to workers' compensation or to
employment insurance amounts currently or past due and not paid for realty,
municipal or similar taxes (to the extent impacting personal or movable
property), sales tax and pension obligations and, to the extent prescribed
pursuant to English law and statute then in force, the "prescribed part" of
floating charge realizations held for unsecured creditors. "Proceeding" means
any claim, litigation, investigation, action, suit, arbitration or
administrative, judicial or regulatory action or proceeding in any
jurisdiction. "Proceeds of Crime Act" means the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act (Canada), as amended from time to
time, and including all regulations thereunder. "Pro Forma Basis" means, as to
any Person, for all Specified Transactions that occur subsequent to the
commencement of an applicable Test Period except as set forth in Section 1.06,
all calculations of the Fixed Charge Coverage Ratio and EBITDA will give pro
forma effect to such Specified Transactions as if such Specified Transactions
occurred on the first day of such Test Period. Whenever any calculation is
made on a Pro Forma Basis hereunder, such calculation shall be made in good
faith by a Financial Officer of the Borrower Representative; provided that no
such calculation shall include cost savings or synergies unless such cost
savings and synergies are either (x) in compliance with Regulation
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DB2/ 43463576.548024258.7 60 S-X under the Securities Act of 1933, as amended
or (y) based on actions taken or to be taken within 12 months of the relevant
transaction and in an amount for any Test Period, when aggregated with the
amount of any increase to EBITDA for such Test Period pursuant to clause
(b)(ix) of the definition of "EBITDA," that does not exceed 10% of EBITDA for
such Test Period (calculated prior to giving effect to any increase pursuant
to this clause (y) or clause (b)(ix) of the definition of "EBITDA").
"Projections" has the meaning assigned to such term in Section 5.01(f).
"Protective Advance" has the meaning assigned to such term in Section 2.04(a).
"PTE" means a prohibited transaction class exemption issued by the U.S.
Department of Labor, as any such exemption may be amended from time to time.
"Public-Sider" means a Lender whose representatives may trade in securities of
the Borrowers or their Controlling Persons or any of their Subsidiaries while
in possession of the financial statements provided by the Loan Parties under
the terms of this Agreement. "QFC" has the meaning assigned to the term
"qualified financial contract" in, and shall be interpreted in accordance
with, 12 U.S.C. 5390(c)(8)(D). "QFC Credit Support" has the meaning assigned
to it in Section 9.21. "Qualified ECP Guarantor" means, in respect of any Swap
Obligation, each Loan Party that has total assets exceeding $10,000,000 at the
time the relevant Loan Guaranty or grant of the relevant security interest
becomes or would become effective with respect to such Swap Obligation or such
other person as constitutes an "eligible contract participant" under the
Commodity Exchange Act or any regulations promulgated thereunder and can cause
another person to qualify as an "eligible contract participant" at such time
by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity
Exchange Act. "Qualified Equity Interests" means any Equity Interests that do
not constitute Disqualified Equity Interests. "Reaffirmation Agreement" means
the Reaffirmation Agreement dated as of the Third Amendment Effective Date
among each of the U.S. Loan Parties, as grantors thereunder, and the
Administrative Agent. "Real Estate Component" means, at any time, an amount
equal to the lesser of (a) the Real Estate Sublimit at such time, and (b) 80%
of the fair market value of the Eligible Real Property as set forth in the
most recent Acceptable Real Estate Appraisal received by the Administrative
Agent at such time. "Real Estate Sublimit" means an amount equal to
$120,000,000; provided, however, that commencing on the first Business Day of
the calendar quarter immediately following the first Business Day that the
Real Estate Component is first added to the U.S. Borrowing Base, and on the
first Business Day of each calendar quarter thereafter, the Real Estate
Sublimit shall be reduced by an amount equal to 1/60 of the Amortization Fixed
Amount as in effect on the date of such reduction. "Reallocation FILO Loan"
has the meaning assigned to such term in Section 2.11(b). "Reallocation
Revolving Loan" has the meaning assigned to such term in Section 2.11(b). DB2/
43463576.548024258.7 61 "Recipient" means, as applicable, (a) the
Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any
combination thereof (as the context requires). "Reference Time" with respect
to any setting of the then-current Benchmark means (a) if such Benchmark is
the Term SOFR Rate or Adjusted REVSOFR30 Rate, 5:00 a.m. (Chicago time) on the
day that is two (2) U.S. Government Securities Business Days preceding the
date of such setting, (b) if the RFR for such Benchmark is SONIA, then 11:00
a.m. (London time) four (4) RFR Business Days prior to such setting, (c) if
such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days
preceding the date of such setting, (d) if such Benchmark is AUD Rate, 11:00
a.m. Sydney, Australia time two Business Days preceding the date of such
setting, (e) if the RFR for such Benchmark is Daily Simple SOFR, then four (4)
RFR Business Days prior to such setting or (f) if such Benchmark is none of
the Term SOFR Rate, EURIBOR Rate, AUD Rate, SONIA or Daily Simple SOFR, the
time determined by the Administrative Agent in its reasonable discretion.
"Refinance Indebtedness" has the meaning assigned to such term in Section
6.01(f). "Refinancing" means prior to, or substantially contemporaneously with
the consummation of the initial Borrowing on the Effective Date, all Existing
Indebtedness will be repaid, redeemed, defeased, discharged or terminated and,
as applicable, all commitments, guarantees, liens and security interests
thereunder will be terminated (or arrangements reasonably satisfactory to the
Arrangers for such termination shall have been made). "Register" has the
meaning assigned to such term in Section 9.04(b). "Regulation D" means
Regulation D of the Federal Reserve Board, as in effect from time to time and
all official rulings and interpretations thereunder or thereof. "Regulation T"
means Regulation T of the Federal Reserve Board, as in effect from time to
time and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Federal Reserve Board, as in effect
from time to time and all official rulings and interpretations thereunder or
thereof. "Regulation X" means Regulation X of the Federal Reserve Board, as in
effect from time to time and all official rulings and interpretations
thereunder or thereof. "Related Parties" means, with respect to any specified
Person, (a) any controlling Person or controlled Affiliate of such Person, (b)
the respective directors, officers, or employees of such Person or any of its
controlling Persons or controlled Affiliates, and (c) the respective agents of
such Person or any of its controlling Persons or controlled Affiliates, in the
case of this clause (c), acting on behalf of or at the instructions of such
Person, controlling Person or controlled Affiliate; provided that each
reference to a controlled Affiliate in this definition pertains to a
controlled Affiliate involved in the negotiation or syndication of the Loan
Documents and the Loans hereunder. "Release" means any releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing or dumping of any substance into the
environment. "Relevant Governmental Body" means (i) with respect to a
Benchmark Replacement in respect of Loans denominated in U.S. Dollars, the
Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or
convened by the Federal Reserve Board and/or the NYFRB or, in each case, any
successor thereto, (ii) with respect to a Benchmark Replacement in respect of
Loans denominated in
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DB2/ 43463576.548024258.7 62 Sterling, the Bank of England, or a committee
officially endorsed or convened by the Bank of England or, in each case, any
successor thereto, (iii) with respect to a Benchmark Replacement in respect of
Loans denominated in Euros, the European Central Bank, or a committee
officially endorsed or convened by the European Central Bank or, in each case,
any successor thereto and (iv) with respect to a Benchmark Replacement in
respect of Loans denominated in any other currency, (a) the central bank for
the currency in which such Benchmark Replacement is denominated or any central
bank or other supervisor which is responsible for supervising either (1) such
Benchmark Replacement or (2) the administrator of such Benchmark Replacement
or (b) any working group or committee officially endorsed or convened by (1)
the central bank for the currency in which such Benchmark Replacement is
denominated, (2) any central bank or other supervisor that is responsible for
supervising either (A) such Benchmark Replacement or (B) the administrator of
such Benchmark Replacement, (3) a group of those central banks or other
supervisors or (4) the Financial Stability Board or any part thereof.
"Relevant Rate" means (i) with respect to any Term Benchmark Borrowing
denominated in U.S. Dollars, the Adjusted Term SOFR Rate, (ii) with respect to
any Adjusted REVSOFR30 Rate Borrowing, the Adjusted REVSOFR30 Rate, (iii) with
respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR
Rate, (iv) with respect to any Term Benchmark Borrowing denominated in
Australian Dollars, the AUD Rate or (v) with respect to any Borrowing
denominated in Sterling or U.S. Dollars, the applicable Adjusted Daily Simple
RFR, as applicable. "Relevant Screen Rate" means (i) with respect to any Term
Benchmark Borrowing denominated in U.S. Dollars, the Term SOFR Reference Rate,
(ii) with respect to any Term Benchmark Borrowing denominated in Euros, the
EURIBOR Screen Rate and (iii) with respect to any Term Benchmark Borrowing
denominated in Australian Dollars, the AUD Screen Rate, as applicable. "Rent
Reserve" means, if and to the extent that the Administrative Agent has not
received a Collateral Access Agreement with respect to any location where
Eligible Inventory or books and records are located, an amount equal to no
more than three (3) months' rent or charges payable in respect to such
location, together with all other accrued and unpaid fees, costs and expenses
owing by the applicable Borrower in connection therewith. "Report" means
reports prepared by the Administrative Agent or another Person showing the
results of appraisals, field examinations or audits pertaining to the assets
of the Borrowers, and the Canadian Loan Guarantors and En Pointe JV from
information furnished by or on behalf of the Borrowers, and the Canadian Loan
Guarantors and En Pointe JV, after the Administrative Agent has exercised its
rights of inspection pursuant to this Agreement, which Reports may be
distributed to the Lenders by the Administrative Agent. "Required Lenders"
means, subject to Section 2.20, at any time, Lenders having Combined Exposures
and unused Combined Commitments representing more than 50% of the sum of the
Aggregate Combined Exposure and unused Combined Commitments at such time.
"Required FILO Lenders" means, subject to Section 2.20, at any time, Lenders
having FILO Exposures and unused FILO Commitments representing more than 50%
of the sum of the Aggregate FILO Exposure and unused FILO Commitments at such
time. "Required Revolving Lenders" means, subject to Section 2.20, at any
time, Lenders having Revolving Exposures and unused Revolving Commitments
representing more than 50% of the sum of the Aggregate Revolving Exposure and
unused Revolving Commitments at such time. DB2/ 43463576.548024258.7 63
"Requirement of Law" means, with respect to any Person, (a) the charter,
articles or certificate of organization or incorporation and bylaws or
operating, management or partnership agreement, constitution or other
organizational or governing documents of such Person and (b) any statute, law
(including common law), treaty, rule, regulation, code, ordinance, order,
decree, writ, judgment, injunction or determination of any arbitrator or court
or other Governmental Authority (including Environmental Laws), in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject. "Reserves" means any and all
reserves which the Administrative Agent deems necessary, in its Permitted
Discretion, to maintain in accordance with Section 1.10 (including, without
limitation, reserves for accrued and unpaid interest on any of the Secured
Obligations, Priority Payable Reserves, Canadian Priority Payable Reserves,
Australian Priority Payable Reserves, Banking Services Reserves, Debt Maturity
Reserves, reserves in respect of Secured Inventory Financing Indebtedness
solely in connection with the U.S. Borrowing Base, Rent Reserves and reserves
for consignee's, processor's, warehousemen's and bailee's charges in respect
of Eligible Inventory, reserves for dilution of Accounts (not to exceed the
amount necessary to reduce advance rates by one percentage point (or fraction
thereof, rounding to the nearest one-tenth of one percentage point) for each
percentage point (or fraction thereof, rounding to the nearest one-tenth of
one percentage point) by which dilution exceeds five percent (5.0%)), reserves
for Inventory shrinkage, reserves for customs charges and shipping charges
related to any Inventory in transit, reserves for Swap Agreement Obligations,
reserves for uninsured losses in respect of Inventory of any U.S. Borrower,
and reserves for unpaid taxes, fees, assessments, and other governmental
charges) with respect to the Collateral or any Loan Party. "Resolution
Authority" means an EEA Resolution Authority or, with respect to any U.K.
Financial Institution, a U.K. Resolution Authority. "Responsible Officer"
means the president, Financial Officer or other executive officer of a Loan
Party. "Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
Insight or any Restricted Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such Equity Interests or any option, warrant or other
right to acquire any such Equity Interests. "Restricted Subsidiary" means,
collectively, any existing or future direct or indirect Subsidiary of any Loan
Party, other than any Unrestricted Subsidiary but including, at all times, the
Borrowers (other than Insight). "Reuters" means, as applicable, Thomson
Reuters Corp, Refinitiv, or any successor thereto. "Revolving Availability
Period" means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the
Revolving Commitments. "Revolving Borrowing" means a Borrowing comprised of
Revolving Loans. "Revolving Commitment" means, with respect to each Lender,
such Lender's commitment to make Revolving Loans and to acquire participations
in Letters of Credit, Revolving Overadvances and Protective Advances
hereunder, expressed as an amount representing the maximum aggregate permitted
amount of such Lender's Revolving Exposure hereunder, as such commitment may
be reduced or increased from time to time pursuant to (a) Section 2.09(a) and
(b) assignments by or to such Lender
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DB2/ 43463576.548024258.7 64 pursuant to Section 9.04. The initial amount of
each Lender's Revolving Commitment is set forth on the Commitment Schedule, or
in the Assignment and Assumption or other documentation or record (as such
term is defined in Section 9-102(a)(70) of the New York Uniform Commercial
Code) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender
shall have assumed its Revolving Commitment, as applicable. "Revolving Excess
Availability" means as of any date of determination, an amount equal to the
sum of (a) the U.S. Excess Availability as of such time, plus (b) the Foreign
Excess Availability as of such time. "Revolving Exposure" means, with respect
to any Lender at any time, the sum of (a) the outstanding principal amount of
such Lender's Revolving Loans and its LC Exposure at such time, plus (b) an
amount equal to its Applicable Percentage of the aggregate principal amount of
Protective Advances outstanding at such time, plus (c) an amount equal to its
Applicable Percentage of the aggregate principal amount of Revolving
Overadvances outstanding at such time. "Revolving Exposure Limitations" shall
have the meaning assigned to such term in Section 2.01(a) "Revolving Lender"
means any Foreign Tranche Lender and/or U.S. Tranche Lender. "Revolving Loan"
means a Loan made pursuant to Section 2.01(a). "Revolving Overadvance" has the
meaning assigned to such term in Section 2.05(a). "REVSOFR30 Rate" means the
Term SOFR Reference Rate for a (1) month period, as such rate is published by
the CME Term SOFR Administrator, at approximately 5:00 a.m., Chicago time, two
(2) U.S. Government Securities Business Days prior to the first (1st) Business
Day of each month, adjusted monthly on the first (1st) Business Day of each
month. Any change in the REVSOFR30 Rate shall be effective from and include
the effective date of such change. "RFR" means, for any RFR Loan denominated
in (a) Sterling, SONIA and (b) U.S. Dollars, Daily Simple SOFR. "RFR
Borrowing" means, as to any Borrowing, the RFR Loans comprising such
Borrowing. "RFR Business Day" means, for any Loan denominated in (a) Sterling,
any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks
are closed for general business in London and (b) U.S. Dollars, a U.S.
Government Securities Business 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 Ratings Services, a Standard & Poor's Financial
Services LLC business. "SADA Systems" has the meaning assigned to such term in
the preamble hereto. "Sale and Leaseback Transaction" has the meaning assigned
to such term in Section 6.06. DB2/ 43463576.548024258.7 65 "Sanctioned
Country" means, at any time, a country, region or territory which is itself
the subject or target of any Sanctions (at the time of this Agreement, the
so-called Donetsk People's Republic, the so-called Luhansk People's Republic,
the Crimea Region of Ukraine, Cuba (only with respect to Loan Parties
organized outside of Canada or any province or territory thereof), Iran, North
Korea and Syria). "Sanctioned Person" means, at any time, (a) any Person
listed in any Sanctions-related list of designated Persons maintained by the
Office of Foreign Assets Control of the U.S. Department of the Treasury, the
U.S. Department of State, the Government of Canada, the Commonwealth of
Australia, the United Nations Security Council, the European Union or any
European Union member state, HerHis Majesty's Treasury of the United Kingdom
or other relevant sanctions authority, (b) any Person operating, organized or
resident in a Sanctioned Country, (c) any Person owned or controlled by any
such Person or Persons described in the foregoing clauses, (a) or (b), or (d)
any Person otherwise the subject of any Sanctions, including a Canadian
Blocked Person. "Sanctions" means all economic or financial sanctions or trade
embargoes imposed, administered or enforced from time to time by (a) the U.S.
government, including those administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of
State, (b) the Government of Canada (including the Canadian Economic Sanctions
and Export Control Laws), (c) the Commonwealth of Australia (including the
Australian Autonomous Sanctions Regime) or (d) the United Nations Security
Council, the European Union, any European Union member state, HerHis Majesty's
Treasury of the United Kingdom or other relevant sanctions authority. "SEC"
means the Securities and Exchange Commission of the U.S. "Secured Inventory
Financing Indebtedness" means any Indebtedness of any Loan Party under any
inventory supply chain financing secured by the Collateral pursuant to the
terms of the Loan Documents; provided that the aggregate outstanding principal
amount of such Indebtedness shall not exceed $100,000,000. "Secured
Obligations" means the Global Secured Obligations. "Secured Parties" means (a)
the Administrative Agent (including in its capacity as the Australian Security
Trustee), (b) the Lenders, (c) each Issuing Bank, (d) each provider of Banking
Services, to the extent the Banking Services Obligations in respect thereof
constitute Secured Obligations, (e) each counterparty to any Swap Agreement,
to the extent the obligations thereunder constitute Secured Obligations, (f)
the beneficiaries of each indemnification obligation undertaken by any Loan
Party under any Loan Document, and (g) the successors and assigns of each of
the foregoing. "SOFR" means a rate equal to the secured overnight financing
rate as administered by the SOFR Administrator. "SOFR Administrator" means the
NYFRB (or a successor administrator of the secured overnight financing rate).
"SOFR Administrator's Website" means the NYFRB's website, currently at
http://www.newyorkfed.org, or any successor source for the secured overnight
financing rate identified as such by the SOFR Administrator from time to time.
"SOFR Determination Date" has the meaning specified in the definition of
"Daily Simple SOFR".
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DB2/ 43463576.548024258.7 66 "SOFR Rate Day" has the meaning specified in the
definition of "Daily Simple SOFR". "SONIA" means, with respect to any Business
Day, a rate per annum equal to the Sterling Overnight Index Average for such
Business Day published by the SONIA Administrator on the SONIA Administrator's
Website on the immediately succeeding Business Day (provided that for any
Overnight Rate Loans denominated in Sterling, SONIA shall be based on the
published rate for SONIA as of the Business Day of such request). "SONIA
Administrator" means the Bank of England (or any successor administrator of
the Sterling Overnight Index Average). "SONIA Administrator's Website" means
the Bank of England's website, currently at http://www.bankofengland.co.uk, or
any successor source for the Sterling Overnight Index Average identified as
such by the SONIA Administrator from time to time. "Special Flood Hazard Area"
shall mean an area that the Federal Emergency Management Agency's current
flood maps indicate has at least a one percent (1%) chance of a flood equal to
or exceeding the base flood elevation (a 100-year flood) in any given year.
"Specified Event of Default" means an Event of Default set forth in clause
(a), (b), (c) (solely in respect of any material misrepresentation set forth
in any Borrowing Base Certificate), (d) (solely in respect of failure to
comply with Section 6.12), (e) (solely in respect of the failure (x) to
deliver a Compliance Certificate as required pursuant to Section 5.01(e) (y)
to deliver a Borrowing Base Certificate as required pursuant to Section
5.01(g), or (z) failure to comply with Section 5.16 or 5.17), or (h) or (i) of
Article VII, or an Event of Default as a result of a breach of Article 7 of
the U.S. Security Agreement and/or the Canadian Security Agreement. "Specified
Merger Agreement Representations" means the representations and warranties
made by PCM in the Trojan Merger Agreement as are material to the interests of
the Lenders, but only to the extent that Insight (or Insight's applicable
Affiliates) have the right (determined without regard to any notice
requirement) not to consummate the transactions as contemplated by the Trojan
Merger Agreement or to terminate Insight's (or such Affiliates') obligations
under the Trojan Merger Agreement, as a result of a breach of such
representations and warranties. "Specified Representations" means those
representations and warranties made by the Loan Parties (after giving effect
to the Trojan Acquisition) in Sections 3.01(a) (solely as to the Loan
Parties), 3.02(a), 3.03(b), 3.08, 3.13, 3.16 (subject to the last paragraph of
Section 4.01), 3.18, 3.19, and 3.21. "Specified Transaction" means any
Disposition outside the ordinary course of business involving the Disposition
of assets with an aggregate book value in excess of $25,000,000 and any
Permitted Acquisition or other Investment permitted hereunder or occurring
prior to the Effective Date involving an aggregate consideration in excess of
$25,000,000 (or any similar transaction or transactions). "Specified
Zero-Balance Accounts" means, collectively, (a) the zero-balance deposit
account of Insight Direct (with Insight Technology Solutions Belgium Inc., the
Belgium division of Insight Direct, as beneficiary) held at Bank of America,
London Branch (with an address of 2 Kind Edward Street, London, EC1A 1 HQ,
UK), and (b) the zero-balance deposit account of Insight Direct (with Insight
Technology Solutions Belgium Inc., the Belgium division of Insight Direct, as
beneficiary) held at Bank of America Merrill Lynch (with an address of Square
De Meeus 38-40, 1000 Brussels). "Spot Selling Rate" means, on any date of
determination, the spot selling rate posted by ICE Data Services for the sale
of the applicable currency for U.S. Dollars at approximately 11:00 a.m., Local
Time, two (2) Business Days prior to such date (the "Applicable Quotation
Date"); provided that if, for any DB2/ 43463576.548024258.7 67 reason, no such
spot rate is being quoted, the spot selling rate shall be determined by
reference to such publicly available service for displaying exchange rates as
may be reasonably selected by the Administrative Agent, or, in the event no
such service is selected, such spot selling rate shall instead be the rate
determined by the Administrative Agent as the spot rate of exchange in the
market where its foreign currency exchange operations in respect of the
applicable currency are then being conducted, at or about 11.00 a.m. Local
Time, on the Applicable Quotation Date for the purchase of the relevant
currency for delivery two (2) Business Days later. "Stack Data Solutions" has
the meaning assigned to such term in the preamble hereto. "Stack Technology"
has the meaning assigned to such term in the preamble hereto. "Stack
Telecommunications" has the meaning assigned to such term in the preamble
hereto. "Statements" has the meaning assigned to such term in Section 2.18(g).
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentage (including
any marginal, special, emergency or supplemental reserves) established by the
Federal Reserve Board to which the Administrative Agent is subject with
respect to the Adjusted EURIBOR Rate for eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D) or any other
reserve ratio or analogous requirement of any central banking or financial
regulatory authority imposed in respect of the maintenance of the Revolving
Commitments or FILO Commitments or the funding of the Loans. Such reserve
percentages shall include those imposed pursuant to Regulation D of the Board.
Term Benchmark Loans for which the associated Benchmark is adjusted by
reference to the Statutory Reserve Rate (per the related definition of such
Benchmark) shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under Regulation D of the Board or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage. "Sterling" and " "
means the lawful currency of the United Kingdom. "Subordinated Indebtedness"
of a Person means any Indebtedness of such Person the payment of which is
subordinated to payment of the Secured Obligations to the written satisfaction
of the Administrative Agent. "subsidiary" means, with respect to any Person
(the "parent") at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled
or held, or (b) that is, as of such date, otherwise Controlled, by the parent
and/or one or more subsidiaries of the parent. "Subsidiary" means any direct
or indirect subsidiary of Insight or another Loan Party, as applicable.
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DB2/ 43463576.548024258.7 68 "Supermajority FILO Lenders" means, at any time,
FILO Lenders (other than Defaulting Lenders) having FILO Exposures and unused
FILO Commitments representing at least 66 2/3% of the sum of the aggregate
FILO Exposures of all FILO Lenders and unused FILO Commitments at such time.
"Supermajority Foreign Tranche Lenders" means, at any time, Foreign Tranche
Lenders (other than Defaulting Lenders) having Foreign Tranche Revolving
Exposures and unused Foreign Tranche Commitments representing at least 66 2/3%
of the sum of the aggregate Foreign Tranche Revolving Exposures of all Foreign
Tranche Lenders and unused Foreign Tranche Commitments at such time.
"Supermajority U.S. Tranche Lenders" means, at any time, U.S. Tranche Lenders
(other than Defaulting Lenders) having U.S. Tranche Revolving Exposures and
unused U.S. Tranche Commitments representing at least 66 2/3% of the sum of
the aggregate U.S. Tranche Revolving Exposures of all U.S. Tranche Lenders and
unused U.S. Tranche Commitments at such time. "Supported QFC" has the meaning
assigned to in Section 9.21. "Swap Agreement" means any agreement with respect
to any swap, forward, spot, future, credit default or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial
or pricing risk or value or any similar transaction or any combination of
these transactions (including, for the avoidance of doubt, any Permitted
Convertible Debt Hedge Transaction and any Permitted Share Repurchase
Transaction); provided that no phantom stock or similar plan providing for
payments only on account of services provided by current or former directors,
officers, employees or consultants of the Borrowers or the Subsidiaries shall
be a Swap Agreement. "Swap Agreement Obligations" means any and all
obligations of the Loan Parties and their Subsidiaries, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all Swap Agreements permitted
hereunder with a Lender or an Affiliate of a Lender, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any Swap
Agreement transaction permitted hereunder with a Lender or an Affiliate of a
Lender. "Swap Obligation" means, with respect to any Loan Guarantor, any
obligation to pay or perform under any agreement, contract or transaction that
constitutes a "swap" within the meaning of section 1a(47) of the Commodity
Exchange Act or any rules or regulations promulgated thereunder. "TARGET2"
means the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET2) payment system. "TARGET Day" means any day on which TARGET2 (or, if
such payment system ceases to be operative, such other payment system, if any,
determined by the Administrative Agent to be a suitable replacement) is open
for the settlement of payments in Euros. "Target" has the meaning set forth in
the recitals hereto. "Tax Confirmation" means a confirmation by a Lender that
the person beneficially entitled to interest payable to that Lender in respect
of an advance under a Loan Document is either: (a) a company resident in the
United Kingdom for United Kingdom tax purposes; or DB2/ 43463576.548024258.7
69 (b) a partnership each member of which is: (i) a company so resident in the
United Kingdom; or (ii) a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent establishment and
which brings into account in computing its chargeable profits (within the
meaning of section 19 of the CTA) the whole of any share of interest payable
in respect of that advance that falls to it by reason of Part 17 of the CTA;
or (c) a company not so resident in the United Kingdom which carries on a
trade in the United Kingdom through a permanent establishment and which brings
into account interest payable in respect of that advance in computing the
chargeable profits (within the meaning of section 19 of the CTA) of that
company. "Tax Deduction" means a deduction or withholding for or on account of
Taxes from a payment under a Loan Document, other than a FATCA Deduction.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, withholdings, (including backup withholding), value added taxes,
or any other goods and services, use or sales taxes, assessments, fees or
other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto. "Term Benchmark" when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, bears interest at a rate determined by
reference to the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the AUD
Rate. "Term SOFR Determination Day" has the meaning assigned to it under the
definition of Term SOFR Reference Rate. "Term SOFR Rate" means, with respect
to any Term Benchmark Borrowing denominated in U.S. Dollars and for any tenor
comparable to the applicable Interest Period, the Term SOFR Reference Rate at
approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business
Days prior to the commencement of such tenor comparable to the applicable
Interest Period, as such rate is published by the CME Term SOFR Administrator.
"Term SOFR Reference Rate" means, for any day and time (such day, the "Term
SOFR Determination Day"), with respect to any Term Benchmark Borrowing
denominated in Dollars and for any tenor comparable to the applicable Interest
Period, the rate per annum published by the CME Term SOFR Administrator and
identified by the Administrative Agent as the forward-looking term rate 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 SOFR Administrator 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 SOFR
Reference Rate for such Term SOFR Determination Day will be the Term SOFR
Reference Rate as published in respect of the first preceding U.S. Government
Securities Business Day for which such Term SOFR Reference Rate was published
by the CME Term SOFR Administrator, so long as such first preceding U.S.
Government Securities Business Day is not more than five (5) U.S. Government
Securities Business Days prior to such Term SOFR Determination Day.
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DB2/ 43463576.548024258.7 70 "Test Period" means each period of four
consecutive fiscal quarters of Insight and its Subsidiaries then most recently
ended. "Third Amendment Effective Date" means July 22, 2022. "Third Amendment
Fee Letter" means that certain Fee Letter, dated as of July 20, 2022, by and
between JPMCB and the Borrower Representative. "TigerDirect" has the meaning
assigned to such term in the preamble hereto. "Tranche" means the U.S. Tranche
and/or the Foreign Tranche, as the context may require. "Transactions" means
the execution, delivery and performance by the Loan Parties of this Agreement
and the other Loan Documents, the borrowing of Loans and other credit
extensions, the use of the proceeds thereof, the issuance of Letters of Credit
hereunder, and the consummation of the Trojan Acquisition, in each case on the
Effective Date. "Trojan Acquisition" has the meaning set forth in the recitals
hereto. "Trojan Merger Agreement" has the meaning set forth in the recitals
hereto. "Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted Term SOFR Rate, the
Adjusted EURIBOR Rate, the AUD Rate, the CBFR, the Adjusted Daily Simple RFR,
Adjusted Daily Simple ESTR, or the Overnight Rate. "UCC" means the Uniform
Commercial Code as in effect from time to time in the State of New York or in
any other state the laws of which are required to be applied in connection
with the issue of perfection of security interests. "U.K. Book Debts and
Account Charge" means, collectively, (i) that certain English law book debts
and account charge, dated as of August 30, 2019, by and among Insight Direct,
Insight Enterprises and Insight Netherlands and the Administrative Agent, for
the benefit of the Administrative Agent and the other Secured Parties and (ii)
that certain English law book debts and account charge, dated as of the Third
Amendment Effective Date, by and among Insight Direct, Insight Enterprises and
Insight Netherlands and the Administrative Agent, for the benefit of the
Administrative Agent and the other Secured Parties. "U.K. Borrower DTTP
Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by
the relevant U.K. Borrower, which: (a) where it relates to a U.K. Treaty
Lender that is a party to this Agreement as a Lender as at the date of the
Agreement, contains the scheme reference number and jurisdiction of tax
residence stated opposite that Lender's name in the Commitment Schedule, and
is filed with HM Revenue & Customs within thirty (30) days of the date of this
Agreement; or (b) where it relates to a U.K. Treaty Lender that is not a party
to this Agreement as a Lender as at the date of this Agreement, contains the
scheme reference number and jurisdiction of tax residence stated in respect of
that Lender in the Assignment and Assumption which it executes on becoming a
party to this Agreement as a Lender, and is filed with HM Revenue & Customs
within thirty (30) days of the date on which that U.K. Treaty Lender becomes a
Party to this Agreement as a Lender. "U.K. Borrowers" means, each of, and
collectively, Insight UK, Insight Networking, Stack Technology, Stack Data
Solutions, Stack Telecommunications, Interconnect Network, PCM Technology, and
any other Restricted Subsidiary incorporated under the laws of England and
Wales approved by the DB2/ 43463576.548024258.7 71 Administrative Agent that
joins this Agreement as a "U.K. Borrower" in accordance with the terms hereof,
and "U.K. Borrower" means any of them or all of them individually, as the
context may require. "U.K. Borrowing Base" means, at any time, the Dollar
Equivalent of the result of, subject to the terms of Section 1.10: (a) the
Account Advance Rate of the U.K. Eligible Accounts at such time, less (b)
Reserves applicable to the U.K. Borrowing Base established by the
Administrative Agent in its Permitted Discretion in accordance with Section
1.10. "U.K. Collateral Documents" means, collectively, the U.K. Debenture and
any other agreements, instruments and documents executed in connection with
this Agreement that are intended to create, perfect or evidence Liens to
secure any of the Secured Obligations, including, without limitation, all
other security agreements, pledge agreements, debentures, share charges,
pledges, powers of attorney, assignments, financing statements, in each case
now or hereafter executed by any U.K. Loan Party and delivered to the
Administrative Agent that are intended to create, perfect or evidence Liens on
assets of any U.K. Loan Party to secure any of the Secured Obligations. "U.K.
Debenture" means, collectively, (i) the English law debenture dated as of the
date hereof, by and among the U.K. Loan Parties and the Administrative Agent,
for the benefit of the Administrative Agent and the other Secured Parties and
(ii) the English law debenture dated as of the Third Amendment Effective Date
by and among the U.K. Loan Parties and the Administrative Agent, for the
benefit of the Administrative Agent and the other Secured Parties. "U.K.
Eligible Accounts" means the Eligible Accounts owned by a U.K. Borrower billed
from and collected in the United Kingdom or any other jurisdiction
satisfactory to the Administrative Agent in its Permitted Discretion owing by
an Account Debtor in the United States, Canada or an Approved Jurisdiction
that comply in all material respects with each of the representations and
warranties respecting Eligible Accounts that are U.K. Eligible Accounts made
in the Loan Documents. "U.K. Financial Institutions" means any BRRD
Undertaking (as such term is defined under the PRA Rulebook (as amended from
time to time) promulgated by the United Kingdom Prudential Regulation
Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as
amended from time to time) promulgated by the United Kingdom Financial Conduct
Authority, which includes certain
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DB2/ 43463576.548024258.7 72 credit institutions and investment firms, and
certain affiliates of such credit institutions or investment firms. "U.K. Loan
Parties" means, each of, and collectively, the U.K. Borrowers, Insight
Enterprises UK Limited, a company incorporated under the laws of England with
registration number 4051772, and any other Restricted Subsidiary of Insight
organized or incorporated under the laws of England and Wales who becomes a
party to this Agreement pursuant to a Joinder Agreement and their respective
successors and assigns, and the term "U.K. Loan Party" means any one of them
or all of them individually, as the context may require. For the avoidance of
doubt, U.K. Loan Parties shall not include any Excluded Subsidiary. "U.K.
Non-Bank Lender" means (a) a Lender identified in the Commitment Schedule as a
"U.K. Non-Bank Lender"; and (b) a Lender which becomes a party to this
Agreement after the Effective Date and which gives a Tax Confirmation in the
Assignment and Assumption which it executes on becoming a party to this
Agreement as a Lender. "U.K./Dutch Overnight Rate" means, for any day in
respect of Loans made to any Borrowers (other than any Australian Borrower)
under the Foreign Tranche, as applicable, with respect to any amount
denominated in (a) U.S. Dollars, the Overnight Lending Rate, (b) Sterling,
Adjusted Daily Simple RFR, (c) Euros, Adjusted Daily Simple ESTR, or (d) any
other Available Currency, an overnight rate determined by the Administrative
Agent or the Issuing Banks (in consultation with the applicable Borrower), as
the case may be, in accordance with banking industry rules on interbank
compensation. "U.K. Qualifying Lender" means (a) a Lender which is
beneficially entitled to interest payable to that Lender in respect of an
advance under a Loan Document and is (i) a Lender: (A) that is a bank (as
defined for the purpose of section 879 of the ITA) making an advance under a
Loan Document and is within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that advance or would be
within such charge as respects such payments apart from section 18A of the
CTA; or (B) in respect of an advance made under a Loan Document by a person
that was a bank (as defined for the purpose of section 879 of the ITA) at the
time that such advance was made and is within the charge to United Kingdom
corporation tax with respect to any payments of interest made in respect of
that advance; or (ii) a Lender which is: (A) a company resident in the United
Kingdom for United Kingdom tax purposes; (B) a partnership, each member of
which is: (1) a company so resident in the United Kingdom; or (2) a company
not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a permanent establishment and which brings into account in
computing its chargeable profits (within the meaning of section 19 of the CTA)
the whole of any share of interest payable in respect of that advance falls to
it by reason of Part 17 of the CTA; or (C) a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (within the
meaning of section 19 of the CTA) of that company; or (iii) a U.K. Treaty
Lender; or (b) a Lender which is a building society (as defined for the
purposes of section 880 of the ITA) making an advance under a Loan Document.
"U.K. Resolution Authority" means the Bank of England or any other public
administrative authority having responsibility for the resolution of any U.K.
Financial Institution. "U.K. Treaty Lender" means a Lender which: (a) is
treated as a resident of a U.K. Treaty State for the purposes of the relevant
U.K. Treaty; (b) does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in any advance
is effectively connected; and (c) fulfils any other conditions which must be
fulfilled under the relevant U.K. Treaty by residents of that U.K. Treaty
State (subject to the completion of any necessary procedural or filing DB2/
43463576.548024258.7 73 requirements) for such residents to obtain full
exemption from United Kingdom taxation on interest payable to that Lender in
respect of an advance under a Loan Document. "U.K. Treaty State" means a
jurisdiction having a double taxation agreement (a "U.K. Treaty") with the
United Kingdom which makes provision for full exemption from tax imposed by
the United Kingdom on interest. "Unadjusted Benchmark Replacement" means the
applicable Benchmark Replacement excluding the related Benchmark Replacement
Adjustment. "Unfinanced Capital Expenditures" means, for any period, Capital
Expenditures made during such period which are not financed from the proceeds
of any Indebtedness (other than the Loans; it being understood and agreed
that, to the extent any Capital Expenditures are financed with Loans, such
Capital Expenditures shall be deemed Unfinanced Capital Expenditures).
"Unliquidated Obligations" means, at any time, any Secured Obligations (or
portion thereof) that are contingent in nature or unliquidated at such time,
including any Secured Obligation that is: (i) an obligation to reimburse a
bank for drawings not yet made under a letter of credit issued by it; (ii) any
other obligation (including any guarantee) that is contingent in nature at
such time; or (iii) an obligation to provide collateral to secure any of the
foregoing types of obligations. "Unrestricted Subsidiary" means (a) as of the
Effective Date, each Subsidiary of Insight (if any) listed on Schedule
1.01(b), (b) any Subsidiary of Insight designated by Insight as an
Unrestricted Subsidiary pursuant to Section 5.15 subsequent to the Effective
Date and (c) any Subsidiary of an Unrestricted Subsidiary; provided that (i)
notwithstanding the foregoing clauses (a), (b) and (c), in no event shall any
Borrower be an Unrestricted Subsidiary and (ii) subject to the provisions of
Section 5.15, any Unrestricted Subsidiary that is redesignated as a Restricted
Subsidiary shall cease to be an Unrestricted Subsidiary. "U.S." means the
United States of America. "U.S. Borrowers" means, each of, and collectively,
Insight, Insight NA, Insight Direct, Insight Public Sector, Insight
Receivables, Insight Physical Security, PCM, PCM Logistics, TigerDirect, PCMG,
M2 Marketplace, En Pointe Technologies,PCM, Insight Direct Philippines, OnSale
Holdings,SADA Systems and any other Restricted Subsidiary of Insight
incorporated under the laws of the United States approved by the Administrative
Agent that joins this Agreement as a "U.S. Borrower" in accordance with the
terms hereof, and "U.S. Borrower" means any of them or all of them
individually, as the context may require.
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DB2/ 43463576.548024258.7 74 "U.S. Borrowing Base" means, collectively, at any
time, the Dollar Equivalent of the result of, subject to the terms of Section
1.10: (a) the sum of (i) the Account Advance Rate of the U.S. Eligible
Accounts of each U.S. Borrower and each Canadian Loan Guarantor at such time,
(ii) the lesser of (A) $120,000,000 and (B) the Account Advance Rate of the
U.S. Borrowers' Eligible Accounts at such time billed from and collected in
the United States, Belgium or the United Kingdom (or any other jurisdiction
acceptable to the Administrative Agent) owing by an Account Debtor in an
Approved Jurisdiction, and (iii) the lesser of (A) $20,000,000 and (B) the
Account Advance Rate of the Eligible Accounts of each Canadian Loan Guarantor
at such time billed from and collected in Canada owing by an Account Debtor in
an Approved Jurisdiction, plus (b) the lesser of (i) 70% of the U.S.
Borrowers' Eligible Finished Goods Inventory (valued at the lower of cost
(FIFO) or market) at such time, and (ii) the product of 85% multiplied by the
Net Orderly Liquidation Value percentage identified in the most recent
inventory appraisal ordered by the Administrative Agent multiplied by the U.S.
Borrowers' Eligible Finished Goods Inventory (valued at the lower of cost
(FIFO) or market) at such time, plus (c) the product of 85% multiplied by the
Net Orderly Liquidation Value percentage identified in the most recent
inventory appraisal ordered by the Administrative Agent multiplied by the U.S.
Borrowers' Eligible Work-In-Process Inventory at such time, plus (d) the Real
Estate Component, less (e) Reserves applicable to the U.S. Borrowing Base
(which include for greater certainty, Canadian Priority Payable Reserves)
established by the Administrative Agent in its Permitted Discretion in
accordance with Section 1.10. "U.S. Collateral Documents" means, collectively,
the U.S. Security Agreement, and any other agreements, instruments and
documents executed in connection with this Agreement that are intended to
create, perfect or evidence Liens to secure any of the Secured Obligations,
including, without limitation, the Reaffirmation Agreement and all other
security agreements, pledge agreements, debentures, share charges, pledges,
powers of attorney, assignments, financing statements, in each case now or
hereafter executed by any U.S. Loan Party and delivered to the Administrative
Agent that are intended to create, perfect or evidence Liens on assets of any
U.S. Loan Party to secure any of the Secured Obligations. "U.S. Dollar" or "$"
refers to the lawful money of the U.S. "U.S. Eligible Accounts" means, (a) the
Eligible Accounts owned by a U.S. Borrower billed from and collected in the
United States or any other jurisdiction satisfactory to the Administrative
Agent in its Permitted Discretion owing by an Account Debtor in the United
States or Canada, and (b) the Eligible Accounts owned by a Canadian Loan
Guarantor billed and collected in Canada owing by an Account Debtor in the
United States or Canada, in each case, that comply in all material respects
with each of the representations and warranties respecting Eligible Accounts
that are U.S. Eligible Accounts made in the Loan Documents. "U.S. Excess
Availability" means, at any time of determination, any amount equal to (a) the
U.S. Line Cap minus (b) the aggregate U.S. Tranche Revolving Exposure of all
U.S. Tranche Lenders. DB2/ 43463576.548024258.7 75 "U.S. Government Securities
Business Day" means any day except for (i) a Saturday, (ii) a Sunday or (iii)
a day on which the Securities Industry and Financial Markets Association
recommends that the fixed income departments of its members be closed for the
entire day for purposes of trading in United States government securities.
"U.S. Line Cap" means, at any time of determination, an amount equal to the
lesser of (a) the aggregate amount of the U.S. Tranche Commitments of all U.S.
Tranche Lenders and (b) the U.S. Borrowing Base. "U.S. Loan Parties" means,
each of, and collectively, the U.S. Borrowers, Insight Direct Worldwide, Inc.,
an Arizona corporation, Insight Canada Holdings, Inc., an Arizona corporation,
Insight Technology Solutions, Inc., a Delaware corporation, Insight
Receivables Holding, LLC, an Illinois limited liability company, Calence, LLC,
a Delaware limited liability company, and any other Restricted Subsidiary of
Insight organized under the laws of the United States who becomes a party to
this Agreement pursuant to a Joinder Agreement and their respective successors
and assigns, and the term "U.S. Loan Party" means any one of them or all of
them individually, as the context may require. For the avoidance of doubt,
U.S. Loan Parties shall not include any Excluded Subsidiary. "U.S. Overnight
Rate" means, for any day in respect of Loans made to the U.S. Borrowers under
the U.S. Tranche, with respect to amount denominated in dollars, the NYFRB
Rate. "U.S. Person" means a "United States person" within the meaning of
Section 7701(a)(30) of the Code. "U.S. Restricted Subsidiary" means each
Restricted Subsidiary that is not a Foreign Restricted Subsidiary. "U.S.
Security Agreement" means that certain U.S. Pledge and Security Agreement
(including any and all supplements thereto), dated as of the date hereof, by
and among the U.S. Loan Parties party thereto and the Administrative Agent,
for the benefit of the Administrative Agent and the other Secured Parties.
"U.S. Special Resolution Regime" has the meaning assigned to it in Section
9.21. "U.S. Tax Compliance Certificate" has the meaning assigned to such term
in Section 2.17(f)(ii)(B)(3). "U.S. Tranche" means the U.S. Tranche
Commitments, the U.S. Tranche Revolving Loans and the U.S. Tranche LC
Exposure. "U.S. Tranche Commitment" means, with respect to each U.S. Tranche
Lender, the commitment, if any, of such U.S. Tranche Lender to make U.S.
Tranche Revolving Loans and to acquire participations in U.S. Tranche Letters
of Credit, Revolving Overadvances, and Protective Advances hereunder, as such
commitment may be reduced or increased pursuant to (a) Section 2.09(a) and (b)
assignments by and to such U.S. Tranche Lender pursuant to Section 9.04. The
initial amount of each U.S. Tranche Lender's U.S. Tranche Commitment is set
forth on the Commitment Schedule, or in the Assignment and Assumption (or
other documentation contemplated by this Agreement) pursuant to which such
U.S. Tranche Lender shall have assumed its U.S. Tranche Commitment, as
applicable. The aggregate principal amount of the U.S. Tranche Commitments as
of the Third Amendment Effective Date is $1,450,000,000.
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DB2/ 43463576.548024258.7 76 "U.S. Tranche Credit Event" means a U.S. Tranche
Revolving Borrowing, the issuance, amendment, renewal or extension of a U.S.
Tranche Letter of Credit, the making of a Revolving Overadvance or a
Protective Advance that the U.S. Tranche Lenders are required to participate
in pursuant to the terms hereof, or any of the foregoing. "U.S. Tranche LC
Exposure" means, at any time, the sum of (a) the aggregate undrawn Dollar
Equivalent of all outstanding U.S. Tranche Letters of Credit at such time plus
(b) the aggregate Dollar Equivalent of all LC Disbursements in respect of U.S.
Tranche Letters of Credit that have not yet been reimbursed by or behalf of
the U.S. Borrowers at such time. The U.S. Tranche LC Exposure of any U.S.
Tranche Lender at any time shall be its U.S. Tranche Percentage of the total
U.S. Tranche LC Exposure at such time. "U.S. Tranche Lender" means a Lender
with a U.S. Tranche Commitment or any U.S. Tranche Revolving Exposure. "U.S.
Tranche Letter of Credit" means any Letter of Credit issued under the U.S.
Tranche Commitments pursuant to this Agreement. "U.S. Tranche Percentage"
means, with respect to any U.S. Tranche Lender, percentage equal to a fraction
the numerator of which is such U.S. Tranche Lender's U.S. Tranche Commitment
and the denominator of which is the aggregate U.S. Tranche Commitments of all
U.S. Tranche Lenders; provided that, if the U.S. Tranche Commitments have
terminated or expired, the U.S. Tranche Percentages shall be determined based
upon such Lender's share of the aggregate U.S. Tranche Revolving Exposures of
all U.S. Tranche Lenders at that time; provided further that, in accordance
with Section 2.20, so long as any U.S. Tranche Lender shall be a Defaulting
Lender, such U.S. Tranche Lender's U.S. Tranche Commitment shall be
disregarded in the foregoing calculation. "U.S. Tranche Revolving Borrowing"
means a Revolving Borrowing comprised of U.S. Tranche Revolving Loans. "U.S.
Tranche Revolving Exposure" means, with respect to any U.S. Tranche Lender at
any time, and without duplication, the sum of (a) the Dollar Equivalent of the
outstanding principal amount of such U.S. Tranche Lender's U.S. Tranche
Revolving Loans plus (b) the Dollar Equivalent of such U.S. Tranche Lender's
U.S. Tranche LC Exposure plus (c) an amount equal to such U.S. Tranche
Lender's U.S. Tranche Percentage of the aggregate outstanding principal amount
of Revolving Overadvances at such time that U.S. Tranche Lenders have
purchased participations in pursuant to the terms hereof plus (d) an amount
equal to such U.S. Tranche Lender's U.S. Tranche Percentage of the aggregate
outstanding principal amount of Protective Advances at such time that U.S.
Tranche Lenders have purchased participations in pursuant to the terms hereof.
"U.S. Tranche Revolving Loan" means a Revolving Loan made by a U.S. Tranche
Lender pursuant to Section 2.01(a). "USA PATRIOT Act" means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001. "VAT" means (a) any value added tax imposed by
the Value Added Tax Act 1994; (b) any tax imposed in compliance with the
Council Directive of 28 November 2006 on the common system of value added tax
(EC Directive 2006/112); and (b) any other tax of a similar nature, whether
imposed in the DB2/ 43463576.548024258.7 77 United Kingdom or in a member
state of the European Union in substitution for, or levied in addition to,
such tax referred to in paragraph (a) or (b) above, or imposed elsewhere.
"WEPPA" means the Wage Earner Protection Program Act (Canada). "Wholly Owned
Subsidiary" means, with respect to any Person at any date, a subsidiary of
such Person of which securities or other ownership interests representing 100%
of the Equity Interests (other than (a) directors' qualifying shares and (b)
nominal shares issued to foreign nationals to the extent required by
applicable Requirements of Law) are, as of such date, owned, controlled or
held by such Person or one or more Wholly Owned Subsidiaries of such Person or
by such Person and one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result of
a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA. "Write-Down and
Conversion Powers" means, (a) with respect to any EEA Resolution Authority,
the write-down and conversion powers of such EEA Resolution Authority from
time to time under the Bail-In Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU
Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any
powers of the applicable Resolution Authority under the Bail-In Legislation to
cancel, reduce, modify or change the form of a liability of any UK Financial
Institution or any contract or 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 or instrument is to have effect as if a right had been exercised
under it or to suspend any obligation in respect of that liability or any of
the powers under that Bail-In Legislation that are related to or ancillary to
any of those powers. SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Term Benchmark Loan") or by
Class and Type (e.g., a "Term Benchmark Revolving Loan"). Borrowings also may
be classified and referred to by Class (e.g., a "Revolving Borrowing") or by
Type (e.g., a "Term Benchmark Borrowing") or by Class and Type (e.g., a "Term
Benchmark Revolving Borrowing"). SECTION 1.03. Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The
words "include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation". The word "law" shall be construed as
referring to all statutes, rules, regulations, codes and other laws (including
official rulings and interpretations thereunder having the force of law or
with which affected Persons customarily comply) and all judgments, orders and
decrees of all Governmental Authorities. The word "will" shall be construed to
have the same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, amended
and restated, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements, supplements or modifications
set forth herein), (b) any definition of or reference to any statute, rule or
regulation shall be construed as referring thereto as from time to time
amended, supplemented or otherwise modified (including by succession of
comparable successor laws), (c) any reference herein to any Person shall be
construed to include such Person's successors and assigns (subject to any
restrictions on assignments set forth herein) and, in the case of any
Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to
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DB2/ 43463576.548024258.7 78 refer to this Agreement in its entirety and not
to any particular provision hereof, (e) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference
in any definition to the phrase "at any time" or "for any period" shall refer
to the same time or period for all calculations or determinations within such
definition, and (g) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if after the date hereof there occurs any change in GAAP or in
the application thereof on the operation of any provision hereof and the
Borrower Representative notifies the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the effect of such
change in GAAP or in the application thereof (or if the Administrative Agent
notifies the Borrower Representative that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Notwithstanding any other provision contained herein, all
terms of an accounting or financial nature used herein shall be construed, and
all computations of amounts and ratios referred to herein shall be made (i)
without giving effect to any election under Financial Accounting Standards
Board Accounting Standards Codification 825-10-25 (or any other Accounting
Standards Codification or Financial Accounting Standard having a similar
result or effect) to value any Indebtedness or other liabilities of any Loan
Party or any Restricted Subsidiary at "fair value", as defined therein and
(ii) without giving effect to any treatment of Indebtedness in respect of
convertible debt instruments under Financial Accounting Standards Board
Accounting Standards Codification 470-20 (or any other Accounting Standards
Codification or Financial Accounting Standard having a similar result or
effect) to value any such Indebtedness in a reduced or bifurcated manner as
described therein, and such Indebtedness shall at all times be valued at the
full stated principal amount thereof. (b) Notwithstanding anything to the
contrary contained in Section 1.04(a) or in the definition of "Capital Lease
Obligations," any change in accounting for leases pursuant to GAAP resulting
from the adoption of Financial Accounting Standards Board Accounting Standards
Update No. 2016-02, Leases (Topic 842) ("FAS 842"), to the extent such
adoption would require treating any lease (or similar arrangement conveying
the right to use) as a capital lease where such lease (or similar arrangement)
would not have been required to be so treated under GAAP as in effect on
December 31, 2018, such lease shall not be considered a capital lease, and all
calculations and deliverables (other DB2/ 43463576.548024258.7 79 than
financial statements) under this Agreement or any other Loan Document shall be
made or delivered, as applicable, in accordance therewith. SECTION 1.05.
Interest Rates; Benchmark Notifications. The interest rate on a Loan
denominated in U.S. Dollars or a Foreign Currency may be derived from an
interest rate benchmark that is, or may in the future become, the subject of
regulatory reform. Regulators have signaled the need to use alternative
benchmark reference rates for some of these interest rate benchmarks and, as a
result, such interest rate benchmarks may cease to comply with applicable laws
and regulations, may be permanently discontinued, and/or the basis on which
they are calculated may change. Upon the occurrence of a Benchmark Transition
Event, Section 2.14(c) provides a mechanism for determining an alternative
rate of interest. The Administrative Agent will promptly notify the Borrower
Representative, pursuant to Section 2.14(f), of any change to the reference
rate upon which the interest rate on Term Benchmark Loans is based. However,
the Administrative Agent does not warrant or accept any responsibility for,
and shall not have any liability with respect to, the administration,
submission, performance or any other matter related to Adjusted Daily Simple
RFR, Daily Simple RFR, the Term SOFR Reference Rate, the Adjusted Term SOFR
Rate, the Term SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD
Rate or any component definition thereof or rates referred to in the
definition thereof or with respect to any alternative or successor rate
thereto, or replacement rate thereof (including, without limitation, (i) any
such alternative, successor or replacement rate implemented pursuant to
Section 2.14(c) upon the occurrence of a Benchmark Transition Event and (ii)
the implementation of any Benchmark Replacement Conforming Changes pursuant to
Section 2.14(e)), including without limitation, whether the composition or
characteristics of any such alternative, successor or replacement reference
rate will be similar to, or produce the same value or economic equivalence of,
or have the same volume of liquidity as, the Adjusted Daily Simple RFR, Daily
Simple RFR, the Term SOFR Reference Rate, the Adjusted Term SOFR Rate, the
Term SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD Rate or
any other Benchmark prior to its discontinuance or unavailability. The
Administrative Agent and its affiliates and/or other related entities may
engage in transactions that affect the calculation of any Adjusted Daily
Simple RFR, any Daily Simple RFR, the Term SOFR Reference Rate, the Adjusted
Term SOFR Rate, the Term SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR
Rate, the AUD Rate, 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 Borrowers. The Administrative Agent may
select information sources or services in its reasonable discretion to
ascertain any RFR, any Adjusted Daily Simple RFR, any Daily Simple RFR, the
Term SOFR Reference Rate, the Adjusted Term SOFR Rate, the Term SOFR Rate, the
Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD Rate or any other Benchmark,
or any component thereof, or rates referenced in the definition thereof, in
each case pursuant to the terms of this Agreement, and shall have no liability
to the Borrowers, 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 or
otherwise and whether at law or in equity), for any error or calculation of
any such rate (or component thereof) provided by any such information source
or service. SECTION 1.06. Pro Forma Calculations. For purposes of any
calculation of the Fixed Charge Coverage Ratio or EBITDA, in the event that
any Specified Transaction has occurred during the Test Period for which the
Fixed Charge Coverage Ratio or EBITDA is being calculated or, except for
purposes of determining whether an Event of Default under Section 6.12 has
occurred, following the end
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DB2/ 43463576.548024258.7 80 of such Test Period but prior to the date that
financial statements have been delivered pursuant to Section 5.01(a) or (b),
such calculation shall be made on a Pro Forma Basis. SECTION 1.07. Currency
Translations; Currency Matters. (a) For purposes of this Agreement and the
other Loan Documents, where the permissibility of a transaction or
determinations of required actions or circumstances depend upon compliance
with, or are determined by reference to, amounts stated in Dollars, such
amounts shall be deemed to refer to Dollars or Dollar Equivalents and any
requisite currency translation shall be based on the Spot Selling Rate;
provided, however, that for purposes of determining compliance with Article VI
with respect to the amount of any Indebtedness, Investment, Disposition or
Restricted Payment in a currency other than Dollars, no Default or Event of
Default shall be deemed to have occurred solely as a result of changes in
rates of exchange occurring after the time such Indebtedness or Investment is
incurred or Disposition or Restricted Payment made. In particular, without
limitation, for purposes of computations hereunder, unless expressly provided
otherwise, where a reference is made to a Dollar amount, the amount is to be
considered as the amount in Dollars and, therefore, each other currency shall
be converted into the Dollar Equivalent thereof in Dollars, as applicable. (b)
For purposes of all calculations and determinations under this Agreement, any
amount in any currency other than Dollars shall be deemed to refer to Dollars
or Dollar Equivalents and any requisite currency translation shall be based on
the Spot Selling Rate, and all certificates delivered under this Agreement,
shall express such calculations or determinations in Dollars or Dollar
Equivalents. (c) The Administrative Agent shall determine the Dollar
Equivalent of (i) the Combined Exposure, Revolving Exposure and FILO Exposure
based on the Spot Selling Rate (A) on or about the date of the related notice
requesting any extension of credit hereunder and (B) on any other date, in its
reasonable discretion and (ii) any other amount to be converted into U.S.
Dollars in accordance with the provisions hereof at the time of such
conversion. (d) Each payment owing by any Loan Party hereunder shall be made
in the relevant currency specified herein or, if not specified herein,
specified in any other Loan Document executed by the Administrative Agent and
the Lenders (the "Currency of Payment") at the place specified herein (such
requirements are of the essence to this Agreement). If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due
hereunder in a Currency of Payment into another currency, the parties hereto
agree that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase such
Currency of Payment with such other currency at the Spot Selling Rate on the
Business Day preceding that on which final judgment is given. The obligations
in respect of any sum due hereunder to any Secured Party shall, notwithstanding
any adjudication expressed in a currency other than the Currency of Payment,
be discharged only to the extent that, on the Business Day following receipt
by such Secured Party of any sum adjudged to be so due in such other currency,
such Secured Party may, in accordance with normal banking procedures, purchase
the Currency of Payment with such other currency. Each Loan Party agrees that
(i) if the amount of the Currency of Payment so purchased is less than the sum
originally due to such Secured Party in the Currency of Payment, as a separate
obligation and notwithstanding the result of any such adjudication, such Loan
Party shall immediately pay the shortfall (in the Currency of Payment) to such
Secured Party and (ii) if the amount of the Currency of Payment so purchased
exceeds the sum originally due to such Secured Party, such Secured Party shall
DB2/ 43463576.548024258.7 81 promptly pay the excess over to such Loan Party
in the currency and to the extent actually received. SECTION 1.08. Quebec
Matters. For purposes of any assets, liabilities or entities located in the
Province of Quebec (Canada) and for all other purposes pursuant to which the
interpretation or construction of this Agreement may be subject to the laws of
the Province of Quebec or a court or tribunal exercising jurisdiction in the
Province of Quebec, (a) "personal property" shall include "movable property",
(b) "real property" or "real estate" shall include "immovable property", (c)
"tangible property" shall include "corporeal property", (d) "intangible
property" shall include "incorporeal property", (e) "security interest" and
"lien" shall include a "hypothec", "right of retention", "prior claim",
"reservation of ownership" and a resolutory clause, (f) all references to
filing, perfection, priority, remedies, registering or recording under the
Uniform Commercial Code or a Personal Property Security Act shall include
publication under the Civil Code of Quebec, (g) all references to "perfection"
of or "perfected" liens or security interest shall include a reference to an
"opposable" or "set up" lien or security interest as against third parties,
(h) any "right of offset", "right of setoff" or similar expression shall
include a "right of compensation", (i) "goods" shall include "corporeal
movable property" other than chattel paper, documents of title, instruments,
money and securities, (j) an "agent" shall include a "mandatary", (k)
"construction liens" or "mechanics, materialmen, repairmen, construction
contractors or other like Liens" shall include "legal hypothecs" and "legal
hypothec in favour of Persons having taken part in the construction or
renovation of an immovable"; (l) "joint and several" shall include "solidary";
(m) "gross negligence or willful misconduct" shall be deemed to be
"intentional or gross fault"; (n) "beneficial ownership" shall include
"ownership on behalf of another as mandatary"; (o) "easement" shall include
"servitude"; (p) "priority" shall include "prior claim", as applicable; (q)
"survey" shall include "certificate of location and plan"; (r) "state" shall
include "province"; (s) "fee simple title" shall include "absolute ownership";
(t) "accounts" shall include "claims", (u) "legal title" shall include
"holding title on behalf of an owner as mandatory or prete-nom"; (v)
"leasehold interest" shall include a "valid lease"; (w) "lease" shall include
a "leasing contract" and (x) "guaranty" and "guarantor" shall include
"suretyship" and "surety", respectively. Within one month of the delivery of
any financial statements or other information written in a language other than
English, at the request of the Administrative Agent or any Lender, the
Borrower Representative shall deliver to the Administrative Agent (for
distribution to the Lenders) an English translation of such financial
statements. SECTION 1.09. Limited Condition Transactions. Notwithstanding any
other provision of this Agreement, in connection with any action being taken
in connection with a Limited Condition Transaction, for purposes of (a)
determining compliance with any provision of this Agreement that requires the
calculation of the Fixed Charge Coverage Ratio, (b) testing availability under
baskets set forth in this Agreement or (c) determining the accuracy of
representations and warranties and/or whether a Default or Event of Default or
Specified Event of Default shall have occurred and be continuing (other than
with respect to Section 4.02), in each case, at the option of the Borrower
Representative (the Borrower Representative's election to exercise such option
in connection with any Limited Condition Transaction, an "LCT Election"), the
date of determination of whether any such action is permitted hereunder shall
be deemed to be the date the definitive agreements with respect to such
Limited Condition Transaction are entered into, in the case of a Limited
Condition Eligible Transaction (in each case, the "LCT Test Date"), and if,
after giving pro forma effect to the Limited Condition Transaction and the
other transactions to be entered into in connection therewith as if they had
occurred at the beginning of the most recent period of four consecutive fiscal
quarters ending on or prior to the LCT Test Date (or, if such date is not the
last day of any fiscal quarter, the most recently completed fiscal quarter for
which financial statements are required to have been delivered pursuant to
Section 4.01(b) (at all times prior to the first delivery of financial
statements after the Effective Date under Section 5.01(a) or (b)) or Section
5.01(a) or (b)), the Borrower Representative could have taken such action on
the relevant LCT Test Date in compliance with such ratio, basket or
requirement with respect to the accuracy of
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DB2/ 43463576.548024258.7 82 representations and warranties or absence of
Defaults or Events of Default or Specified Event of Default, such ratio,
basket or requirement shall be deemed to have been complied with; provided,
with respect to any provision that requires minimum Aggregate Excess
Availability or Average Aggregate Excess Availability, compliance with such
Aggregate Excess Availability or Average Aggregate Excess Availability test
shall be made at the time any Limited Condition Transaction is consummated
instead of on the LCT Test Date. If the Borrower Representative has made an
LCT Election for any Limited Condition Transaction, then, in connection with
any subsequent calculation of the ratios or baskets on or following the
relevant LCT Test Date and prior to the earlier of (i) the date on which such
Limited Condition Transaction is consummated or (ii) the date that the
definitive agreement for such Limited Condition Transaction is terminated or
expires without consummation of such Limited Condition Transaction, any such
ratio or basket shall be calculated on a pro forma basis (or Pro Forma Basis,
if applicable) assuming such Limited Condition Transaction and other
transactions in connection therewith (including any incurrence of Indebtedness
or Liens and the use of proceeds thereof) have been consummated. SECTION 1.10.
Reserves, Eligibility and Advances Rates. The Administrative Agent may, in its
Permitted Discretion, but without duplication, (i) establish additional
standards of eligibility upon at least five (5) Business Days' prior written
notice to the Borrower Representative (which notice shall include a reasonably
detailed description of such additional standards of eligibility), provided
that no such additional standards of eligibility may be imposed after the
Effective Date based on circumstances, conditions, events or contingencies
known to the Administrative Agent as of the Effective Date and for which no
eligibility standards were imposed on the Effective Date, unless such
circumstances, conditions, events or contingencies shall have changed in any
material adverse respect since the Effective Date, (ii) upon the occurrence of
and during the continuation of an Event of Default, reduce the advance rates
set forth in the definition of any applicable Borrowing Base, and (iii)
establish Reserves against eligibility or adjust Reserves upon at least five
(5) Business Days' prior written notice to the Borrower Representative (which
notice shall include a reasonably detailed description of such Reserve being
established or the adjustment thereto); provided that no such prior notice
shall be required for changes to any Reserves resulting solely by virtue of
mathematical calculations of the amount of the Reserves in accordance with the
methodology of calculation previously utilized; provided, further, that, other
than with respect to Banking Services Reserves and Debt Maturity Reserves, no
Reserves may be taken after the Effective Date based on circumstances,
conditions, events or contingencies known to the Administrative Agent as of
the Effective Date and for which no Reserves were imposed on the Effective
Date, unless such circumstances, conditions, events or contingencies shall
have changed in any material adverse respect since the Effective Date or such
Reserve relates to changes in law coming into force after the Effective Date.
During such five (5) Business Day period, (x) the Administrative Agent shall,
if requested by the Borrower Representative, discuss any such establishment of
a Reserve or additional standard of eligibility or adjustment to a Reserve
with the Borrower Representative, and the Borrower Representative may take
such action as may be required so that the event, condition or matter that is
the basis for such Reserve or additional standard of eligibility or adjustment
no longer exists or exists in a manner that would result in the establishment
of a lower Reserve or result in an additional standard of eligibility more
favorable to the Borrowers or result in a lesser adjustment, in each case in a
manner and to the extent reasonably satisfactory to the Administrative Agent
and (y) no Borrower shall be permitted to request a Borrowing if a Revolving
Overadvance or FILO Overadvance would result after giving effect to such
Reserves, adjustments or additional standards of eligibility. Notwithstanding
anything to the contrary in this Agreement, (1) the amount of any such Reserve
or adjustment or additional standard of eligibility shall have a reasonable
relationship to the event, condition or other matter that is the basis for
such Reserve or such adjustment or such additional standard of eligibility,
and (2) no Reserves or changes shall be duplicative of Reserves or adjustments
already accounted for through eligibility criteria (including collection/advance
rates). DB2/ 43463576.548024258.7 83 SECTION 1.11. Divisions. For all
purposes under the Loan Documents, in connection with any Division or plan of
division under Delaware law (or any comparable event under a different
jurisdiction'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 the original
Person to the subsequent Person, and (b) if any new Person comes into
existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at
such time. SECTION 1.12. Australian matters. (a) Without prejudice to the
generality of any provision of this Agreement, in this Agreement where it
relates to the Australian Security Trust Deed, an Australian Collateral
Document, any Deposit Account Control Agreement governed by Australian law, an
Australian Loan Party or any of their Subsidiaries incorporated under the laws
of Australia or any state or territory thereof, a reference in this Agreement
to: (i) with respect to any reference to an Affiliate, "Control" has the
meaning given to it in section 50AA of the Australian Corporations Act; (ii)
"Controller", "receiver" or "receiver and manager" has the meaning given to it
in section 9 of the Australian Corporations Act; (iii) "Inventory" has the
meaning provided in section 10 of the Australian PPSA and (iv) "Subsidiary"
means a subsidiary within the meaning given in Part 1.2 Division 6 of the
Australian Corporations Act. (b) The parties agree that the Australian Banking
Association Banking Code of Practice does not apply to the Loan Documents nor
the transactions under them. ARTICLE II The Credits SECTION 2.01. Commitments.
(a) Subject to the terms and conditions set forth herein, (x) each U.S.
Tranche Lender severally (and not jointly) agrees to make U.S. Tranche
Revolving Loans to the U.S. Borrowers in U.S. Dollars and (y) each Foreign
Tranche Lender severally (and not jointly) agrees to make Foreign Tranche
Revolving Loans to the Foreign Borrowers in Available Currencies, in each case
from time to time during the Revolving Availability Period in an aggregate
principal amount that will not result in: (i) such U.S. Tranche Lender's U.S.
Tranche Revolving Exposure exceeding such U.S. Tranche Lender's U.S. Tranche
Commitment; (ii) such Foreign Tranche Lender's Foreign Tranche Revolving
Exposure exceeding such Foreign Tranche Lender's Foreign Tranche Commitment;
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DB2/ 43463576.548024258.7 84 (iii) the Aggregate Revolving Exposure exceeding
the Aggregate Revolving Line Cap; (iv) the aggregate U.S. Tranche Revolving
Exposure of all U.S. Tranche Lenders exceeding the U.S. Line Cap; or (v) the
aggregate Foreign Tranche Revolving Exposure of all Foreign Tranche Lenders
exceeding the Foreign Line Cap; subject, in each case, to the Administrative
Agent's authority, in its sole discretion, to make Protective Advances or
Revolving Overadvances pursuant to the terms of Sections 2.04 and 2.05
provided that no Revolving Loans (other than Protective Advances permitted
under Section 2.04 and Revolving Loans used to reimburse LC Disbursements
pursuant to Section 2.06(e)) will be made at any time at which FILO Excess
Availability is greater than zero. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers may borrow, prepay
and reborrow Revolving Loans. The limitations on Borrowing referred to in
clauses (a)(i) through (a)(v) above are referred to collectively as the
"Revolving Exposure Limitations". (b) Subject to the terms and conditions set
forth herein, each FILO Lender severally (and not jointly) agrees to make FILO
Loans to the U.S. Borrowers in U.S. Dollars, in each case from time to time
during the FILO Availability Period in an aggregate principal amount that will
not result in: (i) such FILO Lender's FILO Exposure exceeding such FILO
Lender's FILO Commitment; or (ii) the Aggregate FILO Exposure exceeding the
FILO Line Cap; subject, in each case, to the Administrative Agent's authority,
in its sole discretion, to make FILO Overadvances pursuant to the terms of
Section 2.05. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
FILO Loans. The limitations on Borrowing referred to in clauses (b)(i) through
(b)(ii) above are referred to collectively as the "FILO Exposure Limitations".
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans of the same Class, Type and currency made by the
Lenders ratably in accordance with their respective Revolving Commitments (in
the case of a Revolving Loan) or FILO Commitments (in the case of a FILO Loan)
of the applicable Class. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Revolving Commitments and the FILO Commitments of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required. Any Protective Advance, any
Revolving Overadvance and any FILO Overadvance shall be made in accordance
with the procedures set forth in Sections 2.04 and 2.05. (b) Subject to
Section 2.14, (i) each U.S. Tranche Revolving Borrowing denominated in U.S.
Dollars and made to the U.S. Borrowers shall be comprised entirely of CBFR
Loans or Term Benchmark Loans, (ii) each Revolving Borrowing denominated in
U.S. Dollars and made to the U.S. Borrowers that is not a U.S. Tranche
Revolving Borrowing shall be comprised entirely of Term Benchmark Loans or
Overnight Rate Loans, (iii) each Revolving DB2/ 43463576.548024258.7 85
Borrowing denominated in a Foreign Currency and made to the U.S. Borrowers
shall be comprised entirely of Term Benchmark Loans, RFR Loans or Overnight
Rate Loans, (iv) each Revolving Borrowing denominated in an Available Currency
and made to the U.K. Borrowers shall be comprised entirely of Term Benchmark
Loans, RFR Loans denominated in a Foreign Currency, or Overnight Rate Loans,
(v) each Revolving Borrowing denominated in an Available Currency and made to
the Dutch Borrowers shall be comprised entirely of Term Benchmark Loans, RFR
Loans denominated in a Foreign Currency or Overnight Rate Loans, (vi) each
Revolving Borrowing made to the Australian Borrowers shall be comprised
entirely of Overnight Rate Loans (subject to Section 2.14, for Revolving
Overadvances only) or Term Benchmark Loans and (vii) each FILO Borrowing
denominated in U.S. Dollars and made to the U.S. Borrowers shall be comprised
entirely of CBFR Loans or Term Benchmark Loans, in each case as the Borrower
Representative or the applicable Borrower may request in accordance herewith,
provided that (x) all Revolving Borrowings made to the Australian Borrowers
shall only be made in Australian Dollars and U.S. Dollars, (y) all FILO
Borrowings made to the U.S. Borrowers shall only be made in U.S. Dollars and
(z) all Revolving Borrowings made to the U.S. Borrowers under the U.S. Tranche
on the Effective Date must be made as CBFR Borrowings but may be converted
into Term Benchmark Borrowings in accordance with Section 2.08, and all
Revolving Borrowings made to the U.K. Borrowers, the Dutch Borrowers, and/or
the U.S. Borrowers under the Foreign Tranche on the Effective Date must be
made as Overnight Rate Borrowings but may be converted into Term Benchmark
Borrowings in accordance with Section 2.08. Each Lender at its option may make
any Term Benchmark Loan, Overnight Rate Loan or RFR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan (and
in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and
2.17 shall apply to such Affiliate to the same extent as to such Lender);
provided that any exercise of such option shall not affect the obligation of
the relevant Borrowers to repay such Loan in accordance with the terms of this
Agreement. (c) At the commencement of each Interest Period for any Term
Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 (or, if such Borrowing is denominated in an
Available Currency (other than U.S. Dollars), the Dollar Equivalent thereof)
and not less than $500,000 (or, if such Borrowing is denominated in an
Available Currency (other than U.S. Dollars), the Dollar Equivalent thereof).
At the time each RFR Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of $500,000 (or, if such
Borrowing is denominated in an Available Currency (other than U.S. Dollars),
the Dollar Equivalent thereof) and not less than $500,000 (or, if such
Borrowing is denominated in an Available Currency (other than U.S. Dollars),
the Dollar Equivalent thereof), CBFR Borrowings and Overnight Rate Borrowings
may be in any amount. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be
more than a total of twenty (20) Term Benchmark Borrowings outstanding. (d)
Notwithstanding any other provision of this Agreement, the Borrower
Representative shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date. SECTION 2.03. Requests for Borrowings. To
request a Borrowing, the Borrower Representative shall notify the
Administrative Agent of such request either in writing (delivered by hand,
email or fax) by delivering a Borrowing Request in the form of Exhibit F
attached hereto (or such other form reasonably approved by the Administrative
Agent) signed by a Responsible Officer of the Borrower Representative or
through an Electronic System if arrangements for doing so have been approved
by the Administrative Agent (or if an Extenuating Circumstance shall exist, by
telephone) not later than (a) in
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DB2/ 43463576.548024258.7 86 the case of a Term Benchmark Borrowing (other
than a Term Benchmark Borrowing denominated in Australian Dollars or U.S.
Dollars), 3:00 p.m., Local Time, five (5) Business Days before the date of the
proposed Borrowing, (b) in the case of a Term Benchmark Borrowing denominated
in U.S. Dollars, 3:00 p.m., Local Time, three (3) U.S. Government Securities
Business Days before the date of the proposed Borrowing, (c) in the case of a
Term Benchmark Borrowing by an Australian Borrower denominated in Australian
Dollars, 11:00 a.m., Local Time, four (4) Business Days before the date of the
proposed Borrowing, (d) in the case of an RFR Borrowing, 3:00 p.m., Local Time
five (5) Business Days before the date of the proposed Borrowing, (e) in the
case of a CBFR Borrowing, 1:00 p.m., Local Time, on the date of the proposed
Borrowing, and (f) in the case of an Overnight Rate Borrowing, 10:00 a.m.,
Local Time, on the date of the proposed Borrowing; provided that any such
notice of a Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 12:00 noon, Local
Time, on the date of such proposed Borrowing. Each such Borrowing Request
shall be irrevocable (unless otherwise agreed by the Administrative Agent) and
each such telephonic Borrowing Request, if permitted, shall be confirmed
promptly upon the cessation of the Extenuating Circumstance by hand delivery,
facsimile or a communication through an Electronic System to the Administrative
Agent of a written Borrowing Request in the form of Exhibit F (or such other
form reasonably approved by the Administrative Agent) and signed by a
Responsible Officer of the Borrower Representative. Each such written (or if
permitted, telephonic) Borrowing Request shall specify the following
information in compliance with Section 2.02: (i) the name of the applicable
Borrower(s); (ii) the aggregate amount of the requested Borrowing and a
breakdown of the separate wires comprising such Borrowing; (iii) the date of
such Borrowing, which shall be a Business Day; (iv) whether such Borrowing is
a U.S. Tranche Revolving Borrowing, Foreign Tranche Revolving Borrowing or
FILO Borrowing; (v) whether such Borrowing is to be a CBFR Borrowing, a Term
Benchmark Borrowing, an Overnight Rate Borrowing or a Foreign Currency-denominat
ed RFR Borrowing; (vi) in the case of a Term Benchmark Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and (vii) the currency of the
Loan comprising such Borrowing. If no election as to the currency of a
Borrowing is specified, then the requested Borrowing shall be made in U.S.
Dollars. If no election as to the Type of Borrowing is specified, then (1) in
the case of a U.S. Tranche Revolving Borrowing, the requested Revolving
Borrowing shall be a CBFR Borrowing, (2) in the case of a Revolving Borrowing
made to a U.S. Borrower that is not a U.S. Tranche Revolving Borrowing, the
requested Revolving Borrowing shall be a Term Benchmark Borrowing, (3) in the
case of a Revolving Borrowing made to a U.K. Borrower or a Dutch Borrower in
Sterling, the requested Borrowing shall be a RFR Borrowing, (4) in the case of
a Revolving Borrowing made to a U.K. Borrower or a Dutch Borrower in an
Available Currency (other than Sterling), the requested Revolving Borrowing
shall be a Term Benchmark Borrowing, (5) in the case of a Revolving Borrowing
made to an Australian Borrower, the requested Borrowing shall be a Term
Benchmark Borrowing and (6) in the case of a FILO Borrowing made to a U.S.
Borrower, the requested FILO Borrowing shall be a CBFR DB2/ 43463576.548024258.7
87 Borrowing. If no Interest Period is specified with respect to any
requested Term Benchmark Borrowing, then the applicable Borrower(s) shall be
deemed to have selected an Interest Period of one month's duration for such
Term Benchmark Borrowing. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing. SECTION 2.04. Protective Advances.
(a) Subject to the limitations set forth below, the Administrative Agent is
authorized by the Borrowers and the Lenders, from time to time in the
Administrative Agent's sole discretion (but shall not have the obligation to),
(i) to make Revolving Loans (collectively, the "U.S. Tranche Protective
Advances") to the U.S. Borrowers in U.S. Dollars on behalf of the U.S. Tranche
Lenders or (ii) make Revolving Loans (collectively, the "Foreign Tranche
Protective Advances"; and together with the U.S. Tranche Protective Advances,
collectively, the "Protective Advances") to the Foreign Borrowers (other than
any Australian Borrower) in any Available Currency on behalf of the Foreign
Tranche Lenders, in each case which the Administrative Agent, in its Permitted
Discretion, deems necessary or desirable (x) to preserve or protect the
Collateral, or any portion thereof, (y) to enhance the likelihood of, or
maximize the amount of, repayment of the Loans and other Obligations, or (z)
during the occurrence and continuation of an Event of Default or in order to
prevent an Event of Default, to pay any other amount chargeable to or required
to be paid by the Loan Parties pursuant to the terms of this Agreement,
including payments of reimbursable expenses (including costs, fees, and
expenses as described in Section 9.03) and other sums payable under the Loan
Documents; provided that, (A) the aggregate amount of Protective Advances
outstanding at any time and made on behalf of the U.S. Tranche Lenders shall
not exceed ten percent (10%) of the aggregate U.S. Tranche Commitments of all
U.S. Tranche Lenders at such time, (B) the Dollar Equivalent of the aggregate
amount of Protective Advances outstanding at any time and made on behalf of
the Foreign Tranche Lenders shall not exceed ten percent (10%) of the
aggregate Foreign Tranche Commitments of all Foreign Tranche Lenders at such
time, (C) the U.S. Tranche Revolving Exposure of each U.S. Tranche Lender
after giving effect to any U.S. Tranche Protective Advance shall not exceed
the U.S. Tranche Commitment of such U.S. Tranche Lender, (D) the Foreign
Tranche Revolving Exposure of each Foreign Tranche Lender after giving effect
to any Foreign Tranche Protective Advance shall not exceed the Foreign Tranche
Commitment of such Foreign Tranche Lender and (E) the Aggregate Revolving
Exposure after giving effect to the Protective Advances being made shall not
exceed the Aggregate Revolving Commitment. Protective Advances may be made
even if the conditions precedent set forth in Section 4.02 have not been
satisfied. The Protective Advances shall be secured by the Liens in favor of
the Administrative Agent in and to the applicable Collateral and, all
Protective Advances shall constitute Obligations hereunder. All Protective
Advances made to the U.S. Borrowers denominated in U.S. Dollars shall be CBFR
Borrowings, all Protective Advances made to the U.S. Borrowers denominated in
any other Available Currency (other than U.S. Dollars) shall be Overnight Rate
Borrowings and all Protective Advances made to the U.K. Borrowers and/or the
Dutch Borrowers denominated in any Available Currency shall be Overnight Rate
Borrowings. Notwithstanding anything herein to the contrary, (x) no Protective
Advances shall be made to the Australian Borrowers and (y) Protective Advances
shall not be denominated in Australian Dollars. The making of a Protective
Advance on any one occasion shall not obligate the Administrative Agent to
make any Protective Advance on any other occasion. The Administrative Agent's
authorization to make Protective Advances may be revoked at any time by the
Required Lenders. Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent's receipt thereof. At
any time that there is sufficient Revolving Excess Availability and the
conditions precedent set forth in Section 4.02
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DB2/ 43463576.548024258.7 88 have been satisfied, the Administrative Agent may
request the applicable Revolving Lenders to make a Revolving Loan pursuant to
Section 2.01(a) to repay a Protective Advance. At any other time the
Administrative Agent may require the Revolving Lenders to fund their risk
participations described in Section 2.04(b). (b) Upon the making of a
Protective Advance by the Administrative Agent (whether before or after the
occurrence of a Default), each U.S. Tranche Lender (in the case of any
Protective Advance made on behalf of the U.S. Tranche Lenders), or each
Foreign Tranche Lender (in the case of any Protective Advance made on behalf
of the Foreign Tranche Lenders), as applicable, shall be deemed, without
further action by any party hereto, to have unconditionally and irrevocably
purchased from the Administrative Agent, without recourse or warranty, an
undivided interest and participation in such Protective Advance in proportion
to its Applicable Percentage. From and after the date, if any, on which any
Revolving Lender is required to fund its participation in any Protective
Advance purchased hereunder, the Administrative Agent shall promptly
distribute to such Revolving Lender, such Revolving Lender's Applicable
Percentage of all payments of principal and interest and all proceeds of
Collateral received by the Administrative Agent in respect of such Protective
Advance. SECTION 2.05. Revolving Overadvances and FILO Overadvances. (a) Any
provision of this Agreement to the contrary notwithstanding, at the request of
the Borrower Representative, the Administrative Agent may in its sole
discretion (but with absolutely no obligation), on behalf of the U.S. Tranche
Lenders or the Foreign Tranche Lenders, (i) make Revolving Loans to the
applicable Borrowers in amounts such that the requested Revolving Loans are
not in compliance of the Revolving Exposure Limitations (any such Revolving
Loans made not in compliance of the Revolving Exposure Limitations, to the
extent not in compliance of such limitations, are herein referred to
collectively as "Revolving Overadvances") or (ii) (A) deem the amount of U.S.
Tranche Revolving Loans outstanding to the U.S. Borrowers that are in excess
of the U.S. Excess Availability to be Revolving Overadvances or (B) deem the
amount of Revolving Loans outstanding to the Foreign Borrowers that are in
excess of the Foreign Excess Availability to be Revolving Overadvances;
provided that, no Revolving Overadvance shall result in a Default due to
Borrowers' failure to comply with Section 2.01(a) for so long as such
Revolving Overadvance remains outstanding in accordance with the terms of this
paragraph, but solely with respect to the amount of such Revolving
Overadvance. In addition, Revolving Overadvances may be made even if the
condition precedent set forth in Section 4.02(c) has not been satisfied.
Notwithstanding anything herein to the contrary, (x) Revolving Overadvances
made to the Australian Borrowers shall only be denominated in U.S. Dollars and
(y) Revolving Overadvances shall not be denominated in Australian Dollars. All
Revolving Overadvances to the U.S. Borrowers shall constitute CBFR Borrowings.
All Revolving Overadvances to the U.K. Borrowers and/or the Dutch Borrowers
shall constitute Overnight Rate Borrowings. The making of a Revolving
Overadvance on any one occasion shall not obligate the Administrative Agent to
make any Revolving Overadvance on any other occasion. The authority of the
Administrative Agent to make Revolving Overadvances on behalf of the U.S.
Tranche Lenders shall be limited to an aggregate principal amount of ten
percent (10%) of the aggregate U.S. Tranche Commitments of all U.S. Tranche
Lenders at such time, and the authority of the Administrative Agent to made
Revolving Overadvances on behalf of the Foreign Tranche Lenders shall not
exceed an aggregate principal amount equal to the Dollar Equivalent of ten
percent (10%) of the aggregate Foreign Tranche Commitments of all Foreign
Tranche Lenders at such time. No Revolving Overadvance on behalf of a U.S.
Tranche Lender shall cause such Lender's U.S. Tranche Revolving Exposure to
exceed its U.S. Tranche Commitment, and no Revolving Overadvance on behalf of
a Foreign Tranche Lender shall cause DB2/ 43463576.548024258.7 89 such
Lender's Foreign Tranche Revolving Exposure to exceed its Foreign Tranche
Commitment. No Revolving Overadvance shall cause the Aggregate Combined
Exposure to exceed the Aggregate Combined Commitment. No Revolving Overadvance
may remain outstanding for more than thirty (30) days. Notwithstanding the
foregoing, the Required Revolving Lenders may at any time revoke the
Administrative Agent's authorization to make Revolving Overadvances. Any such
revocation must be in writing and shall become effective prospectively upon
the Administrative Agent's receipt thereof. (b) Any provision of this
Agreement to the contrary notwithstanding, at the request of the Borrower
Representative, the Administrative Agent may in its sole discretion (but with
absolutely no obligation), on behalf of the FILO Lenders, (i) make FILO Loans
to the applicable U.S. Borrowers in amounts such that the requested FILO Loans
are not in compliance of the FILO Exposure Limitations (any such FILO Loans
made not in compliance of the FILO Exposure Limitations, to the extent not in
compliance of such limitations, are herein referred to collectively as "FILO
Overadvances") or (ii) deem the amount of FILO Loans outstanding to the U.S.
Borrowers that are in excess of FILO Excess Availability to be FILO
Overadvances; provided that, no FILO Overadvance shall result in a Default due
to Borrowers' failure to comply with Section 2.01(b) for so long as such FILO
Overadvance remains outstanding in accordance with the terms of this
paragraph, but solely with respect to the amount of such FILO Overadvance. In
addition, FILO Overadvances may be made even if the condition precedent set
forth in Section 4.02(d) has not been satisfied. All FILO Overadvances to the
U.S. Borrowers shall constitute CBFR Borrowings. The making of a FILO
Overadvance on any one occasion shall not obligate the Administrative Agent to
make any FILO Overadvance on any other occasion. The authority of the
Administrative Agent to make FILO Overadvances on behalf of the FILO Lenders
shall be limited to an aggregate principal amount of ten percent (10%) of the
aggregate FILO Commitments of all FILO Lenders at such time. No FILO
Overadvance on behalf of a FILO Lender shall cause such FILO Lender's FILO
Exposure to exceed its FILO Commitment. No FILO Overadvance shall cause the
Aggregate Combined Exposure to exceed the Aggregate Combined Commitment. No
FILO Overadvance may remain outstanding for more than thirty (30) days.
Notwithstanding the foregoing, the Required FILO Lenders may at any time
revoke the Administrative Agent's authorization to make FILO Overadvances. Any
such revocation must be in writing and shall become effective prospectively
upon the Administrative Agent's receipt thereof. (c) Upon the making of a
Revolving Overadvance (whether before or after the occurrence of a Default),
each U.S. Tranche Lender (in the case of any Revolving Overadvance made on
behalf of the U.S. Tranche Lenders), and each Foreign Tranche Lender (in the
case of any Revolving Overadvance made on behalf of the Foreign Tranche
Lenders) shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Administrative Agent
without recourse or warranty, an undivided interest and participation in such
Revolving Overadvance in proportion to its Applicable Percentage of the U.S.
Tranche Commitments and/or the Foreign Tranche Commitments, as applicable. The
Administrative Agent may, at any time, require the Revolving Lenders to fund
their participations. From and after the date, if any, on which any Revolving
Lender is required to fund its participation in any Revolving Overadvance
purchased hereunder, the Administrative Agent shall promptly distribute to
such Revolving Lender, such Revolving Lender's Applicable Percentage of all
payments of principal and interest and all proceeds of Collateral received by
the Administrative Agent in respect of such Revolving Overadvance. (d) Upon
the making of a FILO Overadvance (whether before or after the occurrence of a
Default), each FILO Lender shall be deemed, without further action by any
party hereto, to
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DB2/ 43463576.548024258.7 90 have unconditionally and irrevocably purchased
from the Administrative Agent without recourse or warranty, an undivided
interest and participation in such FILO Overadvance in proportion to its
Applicable Percentage of the FILO Commitments. The Administrative Agent may,
at any time, require the FILO Lenders to fund their participations. From and
after the date, if any, on which any FILO Lender is required to fund its
participation in any FILO Overadvance purchased hereunder, the Administrative
Agent shall promptly distribute to such FILO Lender, such FILO Lender's
Applicable Percentage of all payments of principal and interest and all
proceeds of Collateral received by the Administrative Agent in respect of such
FILO Overadvance. SECTION 2.06. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower Representative may request
the issuance of Letters of Credit for its own account or for the account of
another Borrower denominated in an Available Currency as the applicant thereof
for the support of its or its Restricted Subsidiaries' obligations, in a form
reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time during the Revolving Availability
Period, and the Issuing Bank may, but shall have no obligation, to issue such
requested Letters of Credit pursuant to this Agreement. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any Letter of Credit Agreement, the terms and conditions of
this Agreement shall control. Notwithstanding anything herein to the contrary,
the applicable Issuing Bank shall have no obligation hereunder to issue, and
shall not issue, any Letter of Credit (i) the proceeds of which would be made
available to any Person (A) to fund any activity or business of or with any
Sanctioned Person, or in any country or territory that, at the time of such
funding, is the subject of any Sanctions or (B) in any manner that would
result in a violation of any Sanctions by any party to this Agreement, (ii) if
any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such Issuing Bank from
issuing such Letter of Credit, or any Requirement of Law relating to such
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such Issuing Bank is
not otherwise compensated hereunder) not in effect on the Effective Date, or
shall impose upon such Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which such Issuing Bank in
good faith deems material to it, or (iii) if the issuance of such Letter of
Credit would violate one or more policies of such Issuing Bank applicable to
letters of credit generally; provided that, notwithstanding anything herein to
the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines, requirements or directives thereunder
or issued in connection therewith or in the implementation thereof, and (y)
all requests, rules, guidelines, requirements or directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case
be deemed not to be in effect on the Effective Date for purposes of clause
(ii) above, regardless of the date enacted, adopted, issued or implemented.
All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Effective Date shall be subject to and governed
by the terms and conditions hereof. (b) Notice of Issuance, Amendment,
Renewal, Extension; Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower Representative shall deliver by hand or facsimile (or
DB2/ 43463576.548024258.7 91 transmit through an Electronic System, if
arrangements for doing so have been approved by the applicable Issuing Bank)
to the applicable Issuing Bank and the Administrative Agent (reasonably in
advance of, but in any event no less than prior to (x) in the case of any
Letter of Credit issued for the account of any Borrower other than an
Australian Borrower, 9:00 a.m., Local Time, at least three (3) Business Days
prior to the requested date of issuance, amendment, renewal or extension or
(y) in the case of any Letter of Credit issued for the account of any
Australian Borrower, 9:00 a.m., Local Time, at least four (4) Business Days
prior to the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit (which Letter of Credit
shall be in a form reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank), or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the name of the applicable Borrower,
whether such Letter of Credit is to constitute a U.S. Tranche Letter of Credit
or a Foreign Tranche Letter of Credit, the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with clause (c) of this
Section), the amount of such Letter of Credit, the Available Currency
applicable to such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. Each U.S. Tranche Letter of Credit
shall be issued in U.S. Dollars for the account of a U.S. Borrower. Each
Foreign Tranche Letter of Credit shall be issued in any Available Currency for
the account of a Foreign Borrower; provided that (x) Foreign Tranche Letters
of Credit issued for the account of any Foreign Borrower other than an
Australian Borrower shall not be issued in Australian Dollars and (y) Foreign
Tranche Letters of Credit issued for the account of any Australian Borrower
shall only be issued in U.S. Dollars and Australian Dollars. In addition, as a
condition to any such Letter of Credit issuance, the applicable Borrower shall
have entered into a continuing agreement (or other letter of credit agreement)
for the issuance of letters of credit and/or shall submit a letter of credit
application in each case, as required by the applicable Issuing Bank and using
such Issuing Bank's standard form (each, a "Letter of Credit Agreement"). A
Letter of Credit shall be issued, amended, renewed or extended only if (and
upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrowers shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension, the Revolving Exposure
Limitations shall be satisfied. (c) Expiration Date. Each Letter of Credit
(other than the Existing Letters of Credit) shall expire (or be subject to
termination or non-renewal by notice from the Issuing Bank to the beneficiary
thereof) at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, including, without limitation, any
automatic renewal provision, one year after such renewal or extension) and
(ii) the date that is five (5) Business Days prior to the Maturity Date;
provided that any Letter of Credit with a one-year tenor may provide for the
renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (ii) above). Borrowers understand
and agree that Issuing Bank is not required to extend the expiration date of
any Letter of Credit for any reason. With respect to any Letter of Credit
containing an "automatic amendment" to extend the expiration date of such
Letter of Credit, the applicable Issuing Bank, in its sole and absolute
discretion, may give notice of nonrenewal of such Letter of Credit and, if the
applicable Borrower does not at any time want the then current expiration date
of such Letter of Credit to be extended, such Borrower will so notify the
Administrative Agent and the applicable Issuing Bank at least 30 calendar days
(or such shorter period as the Administrative Agent and such Issuing Bank
shall agree) before such Issuing Bank is required to notify the beneficiary of
such Letter of Credit or any advising bank of such non-extension pursuant to
the terms of such Letter of Credit.
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DB2/ 43463576.548024258.7 92 (d) Participations. By the issuance of a Letter
of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further action on the part of the applicable Issuing
Bank or the Lenders, such Issuing Bank hereby grants to each U.S. Tranche
Lender with respect to a U.S. Tranche Letter of Credit, and to each Foreign
Tranche Lender with respect to a Foreign Tranche Letter of Credit, and each
applicable Revolving Lender hereby acquires from such Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such U.S.
Tranche Letter of Credit and/or Foreign Tranche Letter of Credit, as
applicable. In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank, such
Revolving Lender's Applicable Percentage of each LC Disbursement (in the same
currency as such LC Disbursement) made by such Issuing Bank and not reimbursed
by the applicable Borrowers on the date due as provided in clause (e) of this
Section, or of any reimbursement payment required to be refunded to the
applicable Borrowers for any reason. Each Revolving Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this
paragraph in respect of U.S. Tranche Letters of Credit and/or Foreign Tranche
Letters of Credit, as applicable, is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including any amendment, renewal
or extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Revolving Commitments, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. (e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, (x) each U.S. Borrower, in the
case of any Letter of Credit issued at the request of or on behalf of the U.S.
Borrowers, jointly and severally agrees and (y) each Foreign Borrower, in the
case of any Letter of Credit issued at the request of or on behalf of the
Foreign Borrowers, jointly and severally agrees, to reimburse such LC
Disbursement in the same currency as such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, Local Time, on the next Business Day immediately following the day
that the Borrower Representative receives notice of such LC Disbursement;
provided that the Borrower Representative may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 (1) that
such payment be financed with, to the extent such LC Disbursement was made in
U.S. Dollars under the U.S. Tranche, a CBFR Borrowing in an equivalent amount
and, to the extent so financed, the applicable Borrowers' obligation to make
such payment shall be discharged and replaced by the resulting CBFR Borrowing,
(2) that such payment be financed with, to the extent such LC Disbursement was
made in an Available Currency under the Foreign Tranche (other than any such
LC Disbursement made in Australian Dollars on behalf of the Australian
Borrowers), an Overnight Rate Borrowing in an equivalent amount and, to the
extent so financed, the applicable Borrowers' obligation to make such payment
shall be discharged and replaced by the resulting Overnight Rate Borrowing and
(3) that such payment be financed with, to the extent such LC Disbursement was
made in Australian Dollars on behalf of the Australian Borrowers under the
Foreign Tranche, a Term Benchmark Borrowing in an equivalent amount and, to
the extent so financed, the applicable Borrowers' obligation to make such
payment shall be discharged and replaced by the resulting Term Benchmark
Borrowing. If the applicable Borrowers fail to make such payment when due, the
Administrative Agent shall notify each U.S. Tranche Lender (in the case of a
U.S. Tranche Letter of Credit), or each Foreign Tranche Lender (in the case of
a Foreign Tranche Letter of Credit), in each case of the applicable LC
Disbursement, the payment then due from the applicable Borrowers in respect
thereof and such Revolving Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each applicable Revolving Lender shall pay
to the Administrative Agent its Applicable Percentage of the DB2/
43463576.548024258.7 93 payment then due from the applicable Borrowers, in the
same manner as provided in Section 2.07 with respect to Revolving Loans made
by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders), and the Administrative
Agent shall promptly pay to the applicable Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the applicable Borrowers pursuant to
this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse the applicable Issuing Bank,
then to such Revolving Lenders and the applicable Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the applicable Issuing Bank for any LC Disbursement
(other than the funding of Revolving Loans as contemplated above) shall not
constitute a Revolving Loan and shall not relieve the Borrowers of their
obligation to reimburse such LC Disbursement. (f) Obligations Absolute. The
Borrowers' joint and several obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit, any Letter
of Credit Agreement or this Agreement, or any term or provision therein or
herein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) any payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrowers' obligations hereunder. None of the
Administrative Agent, the Revolving Lenders, the Issuing Banks or any of their
Related Parties shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice
or other communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes
beyond the control of the applicable Issuing Bank; provided that the foregoing
shall not be construed to excuse the applicable Issuing Bank from liability to
any Borrower to the extent of any direct damages (as opposed to special,
indirect, consequential or punitive damages, claims in respect of which are
hereby waived by each Borrower to the extent permitted by applicable law)
suffered by such Borrower that are caused by the applicable Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the applicable Issuing Bank (as finally determined
by a court of competent jurisdiction), the applicable Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit. Without limiting anything in this
Section 2.06, Borrower Representative will examine a copy of each Letter of
Credit and any other documents sent by the applicable Issuing
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DB2/ 43463576.548024258.7 94 Bank in connection therewith and shall promptly
notify Issuing Bank (not later than three (3) Business Days following
Borrowers' receipt of documents from Issuing Bank) of any non-compliance with
Borrowers' instructions and of any discrepancy in any document under any
presentment or other irregularity. (g) Disbursement Procedures. The applicable
Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of
Credit. The applicable Issuing Bank shall promptly notify the Administrative
Agent and the applicable Borrower by telephone (confirmed by email or fax or
through Electronic Systems) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Loan Parties of their obligation to reimburse the applicable Issuing Bank and
the Revolving Lenders with respect to any such LC Disbursement. (h) Interim
Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the
applicable Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but
excluding the date that such Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to (i) if such Borrower is a U.S. Borrower,
CBFR Loans that are Revolving Loans and (ii) if such Borrower is a Foreign
Borrower under the Foreign Tranche, Overnight Rate Loans that are Revolving
Loans, in each case such interest shall be payable on the date when such
reimbursement is due; provided that, if any Borrower fails to reimburse such
LC Disbursement when due pursuant to clause (e) of this Section, then Section
2.13(k) shall apply. Interest accrued pursuant to this paragraph shall be for
the account of the applicable Issuing Bank, except that interest accrued on
and after the date of payment by any Revolving Lender pursuant to clause (e)
of this Section to reimburse such Issuing Bank shall be for the account of
such Revolving Lender to the extent of such payment. (i) Replacement and
Resignation of an Issuing Bank. (i) Any Issuing Bank may be replaced at any
time by written agreement among the Borrower Representative, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Revolving Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall become
effective, the Borrowers shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such replacement, (A) the successor Issuing Bank shall
have all the rights and obligations of the Issuing Bank being replaced under
this Agreement with respect to Letters of Credit to be issued thereafter and
(B) references herein to the term "Issuing Bank" shall be deemed to refer to
such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit then outstanding
and issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit. (ii) Subject to the appointment and acceptance
of a successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at
any time upon thirty (30) days' prior written notice to the Administrative
Agent, the Borrower Representative and the DB2/ 43463576.548024258.7 95
Revolving Lenders, in which case, such Issuing Bank shall be replaced in
accordance with Section 2.06(i) above. (j) Cash Collateralization. If any
Event of Default shall occur and be continuing, on the Business Day following
the date that the Borrower Representative receives written notice from the
Administrative Agent or the Required Revolving Lenders demanding the deposit
of cash collateral pursuant to this paragraph, there shall be deposited in one
or more accounts with the Administrative Agent (collectively, the "LC
Collateral Account"), (i) by the U.S. Borrowers in the name of the
Administrative Agent and for the benefit of U.S. Tranche Lenders, an amount in
cash equal to 103% of the U.S. Tranche LC Exposure as of such date plus
accrued and unpaid interest thereon and (ii) by the Foreign Borrowers in the
name of the Administrative Agent and for the benefit of Foreign Tranche
Lenders, an amount in cash equal to 103% of the Dollar Equivalent amount of
the Foreign Tranche LC Exposure as of such date plus accrued and unpaid
interest thereon; provided that (i) the portions of such amount attributable
to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign
Currency that any Borrower is not late in reimbursing shall be deposited in
the applicable Foreign Currencies in an amount equal to 103% of the actual
amount of such undrawn Letters of Credit and LC Disbursements and (ii) the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence and during the continuance of
any Event of Default with respect to any Borrower described in clause (h) or
(i) of Article VII. For the purposes of this paragraph, the Foreign Currency
LC Exposure shall be calculated using the applicable Spot Selling Rate on the
date notice demanding cash collateralization is delivered to the Borrower
Representative. Each applicable Borrower shall also deposit cash collateral
pursuant to this paragraph as and to the extent required by Section 2.10(b),
2.11(b) or 2.20. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the applicable Secured
Obligations. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over the LC Collateral
Account. Each Borrower hereby grants the Administrative Agent a security
interest in its respective LC Collateral Account and all money or other assets
on deposit therein or credited thereto. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the applicable Borrowers'
risk and expense, such deposits shall not bear interest. Interest or profits,
if any, on such investments shall accumulate in the LC Collateral Account.
Moneys in the applicable LC Collateral Account shall be applied by the
Administrative Agent to reimburse the applicable Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations
of the applicable Borrower(s) for the LC Exposure at such time or, if the
maturity of any of the Loans has been accelerated, be applied to satisfy other
applicable Secured Obligations. If any Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence and
continuance of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to such Borrower within three (3) Business Days
after all such Events of Default have been cured or waived as confirmed in
writing by the Administrative Agent. The Administrative Agent shall return to
the applicable Borrowers cash collateral required by Section 2.11(b) within
three (3) Business Days following the date that such cash collateral is no
longer required thereunder. (k) Issuing Bank Reports to the Administrative
Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank
shall, in addition to its notification obligations set forth elsewhere in this
Section, report in writing to the Administrative Agent (i) periodic activity
(for such period or recurrent periods as shall be requested by the
Administrative Agent) in respect of Letters of Credit issued by such Issuing
Bank, including all issuances, extensions,
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DB2/ 43463576.548024258.7 96 amendments and renewals (provided that none of
the foregoing shall apply to any renewal of a Letter of Credit pursuant to an
automatic renewal provision set forth in such Letter of Credit when it is
initially issued), all expirations and cancelations and all disbursements and
reimbursements, (ii) reasonably prior to the time that such Issuing Bank
issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the stated amount of the
Letters of Credit issued, amended, renewed or extended by it and outstanding
after giving effect to such issuance, amendment, renewal or extension (and
whether the amounts thereof shall have changed) (provided that none of the
foregoing shall apply to any renewal of a Letter of Credit pursuant to an
automatic renewal provision set forth in such Letter of Credit when it is
initially issued), (iii) on each Business Day on which such Issuing Bank makes
any LC Disbursement, the date and Dollar Equivalent amount of such LC
Disbursement, (iv) on any Business Day on which any Borrower fails to
reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on
such day, the date of such failure and the amount of such LC Disbursement, and
(v) on any other Business Day, such other information as the Administrative
Agent shall reasonably request as to the Letters of Credit issued by such
Issuing Bank. All reporting from each Issuing Bank with respect to any Letter
of Credit shall indicate whether each Letter of Credit constitutes a U.S.
Tranche Letter of Credit or a Foreign Tranche Letter of Credit. (l) LC
Exposure Determination. For all purposes of this Agreement, the amount of a
Letter of Credit that, by its terms or the terms of any document related
thereto, provides for one or more automatic increases in the stated amount
thereof shall be deemed to be the maximum stated amount of such Letter of
Credit after giving effect to all such increases, whether or not such maximum
stated amount is in effect at the time of determination. (m) Letters of Credit
Issued for Account of Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder supports any obligations of, or is for the
account of, a Restricted Subsidiary, or states that a Restricted Subsidiary is
the "account party," "applicant," "customer," "instructing party," or the like
of or for such Letter of Credit, and without derogating from any rights of any
Issuing Bank (whether arising by contract, at law, in equity or otherwise)
against such Restricted Subsidiary in respect of such Letter of Credit, the
Borrowers (i) shall reimburse, indemnify and compensate each Issuing Bank
hereunder for, in the case of the U.S. Borrowers, such U.S. Tranche Letter of
Credit (including to reimburse any and all drawings thereunder), and in the
case of the Foreign Borrowers, such Foreign Tranche Letter of Credit
(including to reimburse any and all drawings thereunder), in each case as if
such Letter of Credit had been issued solely for the account of such Borrower
and (ii) irrevocably waive any and all defenses that might otherwise be
available to it as a guarantor or surety of any or all of the obligations of
such Restricted Subsidiary in respect of such Letter of Credit. Each Borrower
hereby acknowledges that the issuance of such Letters of Credit for its
Restricted Subsidiaries inures to the benefit of the Borrowers, and that each
Borrower's business derives substantial benefits from the businesses of such
Restricted Subsidiaries. DB2/ 43463576.548024258.7 97 SECTION 2.07. Funding of
Borrowings. Each Lender shall make each Loan to be made by such Lender
hereunder on the proposed date thereof solely by wire transfer of immediately
available funds by 2:00 p.m., Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders
in an amount equal to such Lender's Applicable Percentage. The Administrative
Agent will make such Loans available to the relevant Borrowers by promptly
crediting the funds so received in the aforesaid account of the Administrative
Agent to the applicable Funding Account; provided that (i) Revolving Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the applicable
Issuing Bank, (ii) Loans made to finance the reimbursement of a Protective
Advance, a Revolving Overadvance or a FILO Overadvance shall be retained by
the Administrative Agent, (iii) FILO Loans that are Reallocation FILO Loans
shall be applied to prepay Revolving Loans as provided in Section 2.11(b)(ii)
and (iv) Revolving Loans that are Reallocation Revolving Loans shall be
applied to prepay FILO Loans as provided in Section 2.11(b)(iii). (b) Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in accordance with clause (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrowers a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender
and such Borrowers each severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to such Borrower
to but excluding the date of payment to the Administrative Agent, at (i) in
the case of such Lender, the greater of the applicable Overnight Rate and a
rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation and (ii) in the case of the
Borrowers, (A) if such amount is a Borrowing made to the U.S. Borrowers in
U.S. Dollars, the interest rate applicable to CBFR Loans, or in the case of
Foreign Currencies, in accordance with such market practice, in each case, as
applicable (B) if such amount is a Borrowing made to the U.S. Borrowers in a
Foreign Currency, the interest rate applicable to Overnight Rate Loans, (C) if
such amount is a Borrowing made to the U.K. Borrowers, the interest rate
applicable to Overnight Rate Loans, (D) if such amount is a Borrowing made to
the Dutch Borrowers, the interest rate applicable to Overnight Rate Loans and
(E) if such amount is a Borrowing made to the Australian Borrowers, the
interest rate applicable to Overnight Rate Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing, provided, that any interest received
from a Borrower by the Administrative Agent during the period beginning when
Administrative Agent funded the Borrowing until such Lender pays such amount
shall be solely for the account of the Administrative Agent. SECTION 2.08.
Interest Elections. (a) Each Borrowing initially shall be of the Type and
Available Currency specified in the applicable Borrowing Request and, in the
case of a Term Benchmark Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request (or, if not specified therein, an Interest
Period of one (1) month's duration). Thereafter, the Borrower Representative
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Term Benchmark Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower Representative
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising
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DB2/ 43463576.548024258.7 98 each such portion shall be considered a separate
Borrowing. This Section shall not apply to Revolving Overadvances, FILO
Overadvances or Protective Advances, which may not be converted or continued.
Notwithstanding anything to the contrary herein, this Section shall not be
construed to permit any Borrower, or the Borrower Representative on its
behalf, to (i) change the currency of any Borrowing, (ii) elect an Interest
Period that does not comply with Section 2.02, or (iii) convert any Borrowing
to a Borrowing of a Type not available under such Borrowing or to such
Borrower as otherwise set forth herein. (b) To make an election pursuant to
this Section, the Borrower Representative shall notify the Administrative
Agent of such election either in writing (delivered by hand, email or fax) by
delivering an Interest Election Request signed by a Responsible Officer of the
Borrower Representative or through Electronic System if arrangements for doing
so have been approved by the Administrative Agent (or if an Extenuating
Circumstance shall exist, by telephone) by the time that a Borrowing Request
would be required under Section 2.03 if the Borrower Representative were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such Interest Election Request shall
be irrevocable (unless the Administrative Agent otherwise agrees) and each
such telephonic Interest Election Request, if permitted, shall be confirmed
immediately upon the cessation of the Extenuating Circumstance by hand
delivery, Electronic System or facsimile to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative
Agent and signed by a Responsible Officer of the Borrower Representative. (c)
Each written (or if permitted, telephonic) Interest Election Request
(including requests submitted through an Electronic System) shall specify the
following information in compliance with Section 2.02: (i) the Available
Currency, the name of the applicable Borrower and the Borrowing to which such
Interest Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day; (iii) whether
the resulting Borrowing, (A) if in U.S. Dollars to a U.S. Borrower (other than
under the Foreign Tranche), is to be a CBFR Borrowing or a Term Benchmark
Borrowing, (B) if in U.S. Dollars to a U.S. Borrower under the Foreign
Tranche, is to be a Term Benchmark Borrowing or Overnight Rate Borrowing (C)
if in any Foreign Currency (other than Australian Dollars) to a U.S. Borrower
is to be a Term Benchmark Borrowing, RFR Borrowing or Overnight Rate
Borrowing, (D) if to a U.K. Borrower, is to be a Term Benchmark Borrowing, RFR
Borrowing denominated in a Foreign Currency (other than Australian Dollars) or
Overnight Rate Borrowing, (E) if to a Dutch Borrower, is to be a Term
Benchmark Borrowing, RFR Borrowing denominated in a Foreign Currency (other
than Australian Dollars) or Overnight Rate Borrowing or (F) if to an
Australian Borrower, is to be a Term Benchmark Borrowing; and (iv) if the
resulting Borrowing is a Term Benchmark Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest Period". DB2/
43463576.548024258.7 99 If any such Interest Election Request requests a Term
Benchmark Borrowing but does not specify an Interest Period, then the
Borrowers shall be deemed to have selected an Interest Period of one month's
duration. Notwithstanding anything to the contrary contained in this Section,
this Section shall not be construed to permit any Borrower, or the Borrower
Representative on its behalf, to change the currency of any Borrowing. (d)
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing. (e) If the Borrower Representative fails
to deliver a timely Interest Election Request with respect to a Term Benchmark
Borrowing in an Available Currency prior to the end of the Interest Period
applicable thereto, then, unless such Term Benchmark Borrowing is repaid as
provided herein, at the end of such Interest Period (i) in the case of a
Borrowing under the U.S. Tranche by the U.S. Borrowers denominated in Dollars,
such Borrowing shall be converted to a CBFR Borrowing, (ii) in the case of a
Borrowing by the U.S. Borrowers under the Foreign Tranche denominated in any
Available Currency, such Borrowing shall automatically continue as a Term
Benchmark Borrowing in the same Available Currency with an Interest Period of
one (1) month, (iii) in the case of a Borrowing by a U.K. Borrower, such
Borrowing shall continue as a Term Benchmark Borrowing in the same Available
Currency with an Interest Period of one (1) month, (iv) in the case of a
Borrowing by a Dutch Borrower, such Borrowing shall continue as a Term
Benchmark Borrowing in the same Available Currency with an Interest Period of
one (1) month, (v) in the case of a Borrowing by an Australian Borrower, such
Borrowing shall continue as a Term Benchmark Borrowing in the same Available
Currency with an Interest Period of one (1) month, and (vi) in the case of a
FILO Borrowing by the U.S. Borrowers, such Borrowing shall be converted to a
CBFR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower Representative,
then, so long as an Event of Default is continuing (1) no outstanding
Revolving Borrowing denominated in U.S. Dollars and made to a U.S. Borrower
may be converted to or continued as a Term Benchmark Borrowing, (2) unless
repaid, each Term Benchmark Borrowing made to the U.S. Borrowers under the
U.S. Tranche denominated in Dollars shall be converted to a CBFR Borrowing at
the end of the Interest Period applicable thereto, (3) unless repaid, each
Term Benchmark Borrowing under the Foreign Tranche denominated in any
Available Currency and made to a U.S. Borrower shall automatically be
continued as a Term Benchmark Borrowing in the same Available Currency with an
Interest Period of (1) month (or such other period determined by the
Administrative Agent in its sole discretion), (4) unless repaid, each Term
Benchmark Borrowing made to a U.K. Borrower or a Dutch Borrower shall bear
interest at the Central Bank Rate for the applicable Available Currency plus
the RFR Spread, (5) unless repaid, each Term Benchmark Borrowing made to an
Australian Borrower shall bear interest at the Central Bank Rate for the
applicable Available Currency plus the RFR Spread, (6) no outstanding FILO
Borrowing made to a U.S. Borrower may be converted to or continued as a Term
Benchmark Borrowing and (7) unless repaid, each Term Benchmark Borrowing
consisting of a FILO Loan made to a U.S. Borrower denominated in U.S. Dollars
shall be converted to a CBFR Borrowing at the end of the Interest Period
applicable thereto. SECTION 2.09. Termination and Reduction of Revolving
Commitments and FILO Commitments; Increase in Revolving Commitments.
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DB2/ 43463576.548024258.7 100 (a) Termination and Reduction of Revolving
Commitments; Increase in Revolving Commitments. (i) Unless previously
terminated, the Revolving Commitments shall terminate on the Maturity Date.
(ii) The Borrowers may at any time terminate the Revolving Commitments upon
the Payment in Full of the Secured Obligations and the concurrent termination
of the FILO Commitments. (iii) The Borrowers may from time to time reduce the
Revolving Commitments; provided that (A) each reduction of the Revolving
Commitments (applied to the U.S. Tranche Commitments and/or the Foreign
Tranche Commitments as designated by the Borrower Representative) shall be in
a Dollar Equivalent amount that is an integral multiple of $5,000,000 and not
less than $5,000,000, (B) the Borrowers shall not terminate or reduce the
Revolving Commitments (or the U.S. Tranche Commitments or the Foreign Tranche
Commitments) if, after giving effect to any concurrent prepayment of the
Revolving Loans in accordance with Section 2.11, the Revolving Exposure
Limitations would not be satisfied and (C) the Borrowers shall not terminate
or reduce the Revolving Commitments (or the U.S. Tranche Commitments or the
Foreign Tranche Commitments) at any time the FILO Commitments are greater than
zero. (iv) The Borrower Representative shall notify the Administrative Agent
of any election to terminate or reduce the Revolving Commitments under clause
(a)(ii) or (a)(iii) of this Section at least three (3) Business Days prior to
the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower Representative pursuant to this Section shall
be irrevocable; provided that a notice of termination of the Revolving
Commitments delivered by the Borrower Representative may state that such
notice is conditioned upon the effectiveness of other credit facilities or any
other transaction, in which case such notice may be revoked by the Borrower
Representative (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination
or reduction of the Revolving Commitments shall be permanent. Each reduction
of the Revolving Commitments shall be made ratably among the Revolving Lenders
in accordance with their respective Revolving Commitments. (v) The Borrowers
shall have the right to increase the Revolving Commitments by obtaining
additional Revolving Commitments (with a corresponding increase to the U.S.
Tranche Commitments and/or the Foreign Tranche Commitments, as designated by
the Borrower Representative) (or, solely to the extent set forth in clause
(a)(viii) below, provide commitments under a new facility consisting a
Last-Out Incremental Tranche (as defined below)) (each, an "Incremental
Commitment"), either from one or more of the Revolving Lenders or another
lending institution (each, an "Incremental Lender") provided that (A) any such
request for an increase shall be in a minimum amount of $25,000,000, (B) the
Borrower Representative, on behalf of the Borrowers, may make a maximum of ten
(10) such requests, (C) after giving effect thereto, the sum of the total of
the Incremental Commitments following the Third Amendment Effective Date does
not exceed $750,000,000, (D) the Administrative Agent DB2/ 43463576.548024258.7
101 and the Issuing Banks have approved the identity of any such new
Incremental Lender, such approvals not to be unreasonably withheld, (E) any
such new Incremental Lender assumes all of the rights and obligations of a
"Lender" and a "Revolving Lender" hereunder, (F) the procedure described in
Section 2.09(a)(vii) has been satisfied, (G) the structuring, upfront and
arranger fees and other similar fees in respect of such Incremental Commitment
and the extension of credit thereunder shall be determined by the Borrowers,
the Administrative Agent, the Issuing Banks, and the applicable Incremental
Lenders, (H) except as set forth in clause (G) above or with respect to any
Last-Out Incremental Tranche under clause (a)(viii) below, any Incremental
Commitment shall be on the same terms and pursuant to the same documentation
applicable to the applicable existing Revolving Commitments hereunder and (I)
any Incremental Commitment may establish a Canadian facility where one or more
Canadian Loan Parties may become borrowers pursuant to (I) customary
restrictions and limitations required by local law, (II) an amendment to this
Agreement (and delivery of all other additional Loan Documents) required to
establish and reflect such Canadian facility, and (III) as agreed between the
Borrower Representative and the Administrative Agent. Nothing contained in
this Section 2.09(a) shall constitute, or otherwise be deemed to be, a
commitment on the part of any Lender to increase its Revolving Commitment
hereunder at any time. (vi) Any amendment hereto for such an increase or
addition shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower Representative, and shall only require
the written signatures of the Administrative Agent, the Issuing Banks, the
Borrowers and each Incremental Lender being added or increasing its Revolving
Commitment. Subject to customary "SunGuard" or other "certain funds"
conditionality provisions to the extent the proceeds thereof are used to
finance Acquisitions or similar Investments in each case permitted hereunder
(but subject to clause (a)(v)(H) above), as a condition precedent to such an
increase or addition, the Borrowers shall deliver to the Administrative Agent
(A) a certificate of each Loan Party signed by an authorized officer of such
Loan Party (I) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (II) in the case of the
Borrowers, certifying that, before and after giving effect to such increase or
addition, (1) the representations and warranties contained in Article III and
the other Loan Documents are true and correct in all material respects (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be correct and in
all material respects only as of such specified date, and that any
representation or warranty which is subject to any materiality qualifier shall
be required to be true and correct in all respects), and (2) no Event of
Default exists or would result therefrom, and (B) customary legal opinions, in
each case to the extent requested by the Administrative Agent. (vii) On the
effective date of any such increase or addition, (A) any Incremental Lender
increasing (or, in the case of any newly added Incremental Lender, extending)
its U.S. Tranche Commitment and/or Foreign Tranche Commitment, as applicable,
shall make available to the Administrative Agent such amounts in immediately
available funds as the Administrative Agent shall determine, for the benefit
of the other Lenders that have a U.S. Tranche Commitment and/or Foreign
Tranche Commitment, as applicable, as being required in order to cause, after
giving effect to such increase or addition and the use of such amounts to make
payments to such other Revolving Lenders, each such Revolving Lender's portion
of the outstanding U.S. Tranche Revolving Loans or Foreign Tranche Revolving
Loans, as applicable, of all the
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DB2/ 43463576.548024258.7 102 Revolving Lenders to equal its revised
Applicable Percentage of such outstanding U.S. Tranche Revolving Loans or
Foreign Tranche Revolving Loans, as applicable, and the Administrative Agent
shall make such other adjustments among the Revolving Lenders with respect to
the U.S. Tranche Revolving Loans or Foreign Tranche Revolving Loans, as
applicable, then outstanding and amounts of principal, interest, commitment
fees and other amounts paid or payable with respect thereto as shall be
necessary, in the opinion of the Administrative Agent, in order to effect such
reallocation and (B) the applicable Borrowers shall be deemed to have repaid
and reborrowed all outstanding U.S. Tranche Revolving Loans or Foreign Tranche
Revolving Loans, as applicable, as of the date of any increase (or addition)
in the U.S. Tranche Commitment and/or the Foreign Tranche Commitment, as
applicable (with such reborrowing to consist of the Types of Revolving Loans,
with related Interest Periods if applicable, specified in a notice delivered
by the Borrower Representative, in accordance with the requirements of Section
2.03). The deemed payments made pursuant to clause (B) of the immediately
preceding sentence shall be accompanied by payment of all accrued interest on
the amount prepaid and, in respect of each Term Benchmark Loan, shall be
subject to indemnification by the Borrowers pursuant to the provisions of
Section 2.16 if the deemed payment occurs other than on the last day of the
related Interest Periods. Within a reasonable time after the effective date of
any increase or addition, the Administrative Agent shall, and is hereby
authorized and directed to, revise the Commitment Schedule to reflect such
increase or addition and shall distribute such revised Commitment Schedule to
each of the Lenders and the Borrower Representative, whereupon such revised
Commitment Schedule shall replace the old Commitment Schedule and become part
of this Agreement. (viii) Any Incremental Commitment may be in the form of a
separate "last-out" tranche (the "Last-Out Incremental Tranche") with interest
rate margins, rate floors, upfront fees, funding discounts and original issue
discounts and advance rates, in each case to be agreed upon (which, for the
avoidance of doubt, shall not require any adjustment to the Applicable Rate or
other Loans) among the Borrowers, the Administrative Agent and the Incremental
Lenders providing the Last-Out Incremental Tranche so long as (A) any loans
and related obligations in respect of the Last-Out Incremental Tranche are not
guaranteed by any Person other than the Loan Guarantors and are not secured by
any assets other than Collateral; (B) as between (I) the Revolving Loans
(other than the Last Out Incremental Tranche), (ii) the FILO Loans and (III)
the Last-Out Incremental Tranche, all proceeds from the liquidation or other
realization of the Collateral or application of funds under Section 2.18(b)
shall be applied, first to obligations owing under, or with respect to, the
Revolving Loans (other than the Last-Out Incremental Tranche), second to
obligations owing under, or with respect to, the FILO Loans and third to the
Last-Out Incremental Tranche; (C) the Borrowers may not prepay Revolving Loans
under the Last-Out Incremental Tranche or terminate or reduce the commitments
in respect thereof at any time that (x) other Revolving Loans and/or amounts
owed in respect of Letters of Credit (unless Cash Collateralized or otherwise
provided for in a manner reasonably satisfactory to the Administrative Agent)
or (y) FILO Loans are outstanding; (D) the Required Lenders shall exercise
control of remedies in respect of the Collateral; (E) no changes affecting the
priority status of the Revolving Loans (other than the Last-Out Incremental
Tranche) and the FILO Loans vis-a-vis the Last-Out Incremental Tranche may be
made without the consent of each of the Lenders (other than the Lenders under
Last-Out Incremental Tranche), (F) the final maturity of any Last-Out
Incremental Tranche shall not occur, and no Last-Out Incremental Tranche shall
require mandatory commitment reductions prior to, the Maturity Date at such
time and (G) except as otherwise set forth in this clause (a)(viii), DB2/
43463576.548024258.7 103 the terms of any Last-Out Incremental Tranche are
reasonably satisfactory to the Administrative Agent and the Issuing Banks.
(ix) Notwithstanding anything to the contrary in this Agreement, clauses
(a)(v) through (a)(viii) of this Section shall supersede any provisions in
Section 2.18 or Section 9.02 to the contrary. (b) Termination and Reduction of
FILO Commitments. (i) Unless previously terminated, the FILO Commitments shall
terminate on the Maturity Date. (ii) The Borrowers may from time to time
reduce the FILO Commitments; provided that (A) each reduction of the FILO
Commitments shall be in an amount that is an integral multiple of $5,000,000
and not less than $5,000,000, (B) the Borrowers shall not reduce the FILO
Commitments if a Default exists, and (C) no such reduction of the FILO
Commitments may occur unless the Borrowers have Revolving Excess Availability,
calculated on a pro forma basis after giving effect to such reduction, of not
less than 20% of the Aggregate Revolving Commitment. (iii) The Borrowers may
at any time terminate the FILO Commitments upon, (A) the indefeasible payment
in full in cash of all outstanding FILO Loans, together with accrued and
unpaid interest thereon, (B) the indefeasible payment in full in cash of the
accrued and unpaid fees, and (C) the indefeasible payment in full in cash of
all reimbursable expenses relating to such termination, together with accrued
and unpaid interest thereon; provided that, no such termination of the FILO
Commitments may occur unless the Borrowers have Revolving Excess Availability,
calculated on a pro forma basis after giving effect to such termination, of
not less than 20% of the Aggregate Revolving Commitment. (iv) The Borrower
Representative shall notify the Administrative Agent of any election to
terminate or reduce the FILO Commitments under clause (b)(ii) or (b)(iii) of
this Section at least three (3) Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower Representative pursuant to this clause (iv) shall be irrevocable;
provided that a notice of termination of the FILO Commitments delivered by the
Borrower Representative may state that such notice is conditioned upon the
effectiveness of other credit facilities or any other transaction, in which
case such notice may be revoked by the Borrower Representative (by notice to
the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. (v) Any termination or reduction of the FILO
Commitments shall be permanent. Each reduction of the FILO Commitments shall
be made ratably among the FILO Lenders in accordance with their respective
FILO Commitments. (c) FILO Amendment. (i) Following the Third Amendment
Effective Date, the Borrower Representative shall have the right to request
FILO Commitments from either one or
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DB2/ 43463576.548024258.7 104 more of the Lenders or other lending
institutions (each a "Joining FILO Lender"); provided that (i) any such
request for FILO Commitments shall be in a minimum amount of $25,000,000, (ii)
the Borrower Representative, on behalf of the U.S. Borrowers, may make a
maximum of two (2) such requests (it being understood and agreed that to the
extent any FILO Commitments are reduced or terminated pursuant to and in
accordance with Section 2.09(b), such reduced or terminated portion may not be
reborrowed pursuant to a subsequent request for FILO Commitments), (iii) the
aggregate amount of FILO Commitments of the Joining FILO Lenders shall not
exceed $100,000,000, (iv) the Administrative Agent shall have approved the
identity of any such Joining FILO Lender, any such approval not to be
unreasonably withheld (v) any such Joining FILO Lender shall assume all of the
rights and obligations of a "Lender" and "FILO Lender" hereunder by entering
into the FILO Amendment, and (vi) the procedure described in Section
2.09(c)(iii) has been satisfied. Nothing contained in this Section 2.09 shall
constitute, or otherwise be deemed to be, a commitment on the part of any
Lender to provide a FILO Commitment at any time. (ii) Each Joining FILO Lender
shall become a "Lender" and "FILO Lender" for all purposes of this Agreement,
by entering into an amendment to this agreement (the "FILO Amendment") with
the Administrative Agent and the Loan Parties that sets forth (A) the amount
of each such Joining FILO Lender's FILO Commitment (provided that the
aggregate amount of FILO Commitments of the Joining FILO Lenders is not in
excess of $100,000,000) and (B) the Applicable Rate for the FILO Loans;
provided that (x) the FILO Amendment shall make no other amendments or other
modifications to this Agreement other than as contemplated by the foregoing
clauses (A)-(B) or as otherwise required to establish and reflect such FILO
Commitments and (y) any structuring, upfront and arranger fees and other
similar fees in respect of the FILO Commitments and the extension of credit
thereunder shall be determined by the U.S. Borrowers, the Administrative Agent
and the applicable FILO Lenders pursuant to one or more FILO Fee Letters. The
FILO Amendment shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower Representative, and shall only require
the written signatures of the Administrative Agent, the Loan Parties, and each
Joining FILO Lender. The Loan Parties shall deliver to the Administrative
Agent (A) a certificate of each Loan Party signed by an authorized officer of
such Loan Party (I) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to the FILO Amendment, and (II) in the case
of the Borrowers, certifying that, immediately before and immediately after
giving effect to such FILO Amendment and the FILO Commitments, (1) the
representations and warranties contained in Article III and the other Loan
Documents are true and correct in all material respects (it being understood
and agreed that any representation or warranty which by its terms is made as
of a specified date shall be required to be correct and in all material
respects only as of such specified date, and that any representation or
warranty which is subject to any materiality qualifier shall be required to be
true and correct in all respects), and (2) no Event of Default exists or would
immediately result from the FILO Amendment or the FILO Commitments, and (B)
customary legal opinions, in each case to the extent requested by the
Administrative Agent. The Commitment Schedule attached to the FILO Amendment
shall reflect the FILO Commitments as set forth in the FILO Amendment and
shall replace the old Commitment Schedule and become part of this Agreement.
(iii) On the effective date of any such addition of FILO Commitments, each
Joining FILO Lender shall make available to the Administrative Agent such
amounts in immediately available funds as the Administrative Agent shall
determine, for the benefit DB2/ 43463576.548024258.7 105 of the other Lenders
that have a U.S. Tranche Commitment, as applicable, as being required in order
to cause the reallocation of Loans described in Sections 2.11(b)(ii) and
2.11(b)(iii) and in order to cause (after giving effect to such reallocation)
each Revolving Lender's portion of the outstanding U.S. Tranche Revolving
Loans, and each FILO Lender's portion of the outstanding FILO Loans, as
applicable, of all the Revolving Lenders and FILO Lenders, to equal their
respective revised Applicable Percentage of such outstanding U.S. Tranche
Revolving Loans or FILO Loans, as applicable, and the Administrative Agent
shall make such other adjustments among the Revolving Lenders and FILO Lenders
with respect to the U.S. Tranche Revolving Loans or FILO Loans, as applicable,
then outstanding and amounts of principal, interest, commitment fees and other
amounts paid or payable with respect thereto as shall be necessary, in the
opinion of the Administrative Agent, in order to effect such reallocation.
SECTION 2.10. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the
account of each U.S. Tranche Lender the then unpaid principal amount of each
U.S. Tranche Revolving Loan made to such Borrower on the Maturity Date in the
currency that such Revolving Loan was made, (ii) to the Administrative Agent
for the account of each Foreign Tranche Lender the then unpaid principal
amount of each Foreign Tranche Revolving Loan made to such Borrower on the
Maturity Date in the currency that such Revolving Loan was made, (iii) to the
Administrative Agent for the account of each FILO Lender the then unpaid
principal amount of each FILO Loan made to such Borrower on the Maturity Date
in the currency that such FILO Loan was made, (iv) to the Administrative Agent
the then unpaid amount of each Protective Advance made for the account of such
Borrower on the earlier of the Maturity Date and demand by the Administrative
Agent in the currency that such Protective Advance was made, (v) to the
Administrative Agent the then unpaid principal amount of each Revolving
Overadvance made for the account of such Borrower on the earlier of the
Maturity Date and demand by the Administrative Agent in the currency that such
Revolving Overadvance was made and (v) to the Administrative Agent the then
unpaid principal amount of each FILO Overadvance made for the account of such
Borrower on the earlier of the Maturity Date and demand by the Administrative
Agent in the currency that such FILO Overadvance was made. (b) On each
Business Day during a Cash Dominion Period, the Administrative Agent shall
apply all funds credited to any Collection Account on such Business Day or the
immediately preceding Business Day (at the discretion of the Administrative
Agent, whether or not the funds for checks are actually collected, on such
Business Day or the immediately preceding Business Day), first to prepay any
Protective Advances and Revolving Overadvances that may be outstanding, pro
rata, denominated in like currency to the currency of the monies in such
Collection Account, second to prepay the Revolving Loans and to cash
collateralize outstanding LC Exposure, denominated in like currency to the
currency of the monies in such Collection Account, third to the extent that
any Protective Advances or Revolving Overadvances remain unapplied following
such application as a result of a mismatch between the currencies of the
amounts in the Collection Accounts and the currencies in which the outstanding
Protective Advances and/or Revolving Overadvances are denominated, to prepay
such outstanding Protective Advances and/or Revolving Overadvances, pro rata
(and the applicable Borrowers shall be deemed to have requested the
Administrative Agent to convert any such excess funds to the currency or
currencies of the outstanding Protective Advances and/or Revolving
Overadvances), fourth to the extent that any Revolving Loans remain unapplied
following such application as a result of a mismatch between the currencies of
the amounts in the Collection Accounts and the currencies in which the
outstanding Revolving Loans are denominated, to
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DB2/ 43463576.548024258.7 106 prepay such outstanding Revolving Loans (and the
applicable Borrowers shall be deemed to have requested the Administrative
Agent to convert any such excess funds to the currency or currencies of the
outstanding Revolving Loans), fifth to prepay any FILO Overadvances that may
be outstanding denominated in like currency to the currency of the monies in
such Collection Account, sixth to prepay the FILO Loans denominated in like
currency to the currency of the monies in such Collection Account, seventh, to
the extent that any FILO Overadvances remain unapplied following such
application as a result of a mismatch between the currencies of the amounts in
the Collection Accounts and the currencies in which the outstanding FILO
Overadvances are denominated, to prepay such outstanding FILO Overadvances
(and the applicable Borrowers shall be deemed to have requested the
Administrative Agent to convert any such excess funds to the currency or
currencies of the outstanding FILO Overadvances), and eighth to the extent
that any FILO Loans remain unapplied following such application as a result of
a mismatch between the currencies of the amounts in the Collection Accounts
and the currencies in which the outstanding FILO Loans are denominated, to
prepay such outstanding FILO Loans (and the applicable Borrowers shall be
deemed to have requested the Administrative Agent to convert any such excess
funds to the currency or currencies of the outstanding FILO Loans). (c) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness of each Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. (d) The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class, the Available Currency and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof. (e) The entries made in the accounts maintained
pursuant to clause (c) or (d) of this Section shall be, absent manifest error,
prima facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent
to maintain such accounts or any error therein shall not in any manner affect
the obligation of any Borrower to repay the Loans in accordance with the terms
of this Agreement. (f) Any Lender may request that Loans made by it to any
Borrower be evidenced by a promissory note. In such event, the relevant
Borrower(s) shall prepare, execute and deliver to such Lender a promissory
note payable to such Lender (or, if requested by such Lender, to such Lender
and its registered assigns) and in a form approved by the Administrative Agent
and the Borrowers. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form.
SECTION 2.11. Prepayment of Loans. (a) Optional Prepayments. (i) The Borrowers
shall have the right at any time and from time to time to prepay any Revolving
Borrowing in whole or in part, subject to prior notice in DB2/ 43463576.54802425
8.7 107 accordance with clause (c) of this Section and, if applicable, payment
of any break funding expenses under Section 2.16 but otherwise without premium
or penalty. (ii) The U.S. Borrowers shall have the right to prepay any FILO
Borrowing (x) in whole or in part at any time no Revolving Loans are
outstanding and (y) concurrently with, and in an amount equal to the amount
of, any reduction or termination of FILO Commitments made pursuant to Section
2.09(b), in each case, subject to prior notice in accordance with clause (c)
of this Section and, if applicable, payment of any break funding expenses
under Section 2.16 but otherwise without premium or penalty. (b) Mandatory
Prepayments. (i) Except for Revolving Overadvances permitted under Section
2.05, (A) in the event and on such occasion that the aggregate U.S. Tranche
Revolving Exposures exceed the U.S. Borrowing Base or otherwise is in excess
of any of the Revolving Exposure Limitations, the U.S. Borrowers shall prepay
their Revolving Loans and/or LC Exposure or cash collateralize their LC
Exposure in an account with the Administrative Agent pursuant to Section
2.06(j), as applicable, in an aggregate amount equal to such excess and (B) in
the event and on such occasion that the aggregate Foreign Tranche Revolving
Exposures exceed the Foreign Borrowing Base, or otherwise is in excess of any
of the Revolving Exposure Limitations, the Foreign Borrowers shall prepay
their Revolving Loans and/or LC Exposure or cash collateralize the LC Exposure
in an account with the Administrative Agent pursuant to Section 2.06(j), as
applicable, in an aggregate amount equal to such excess; provided, that in the
case of clause (A) or (B) above, if such excess arises as a result of the
Administrative Agent's determination of the Dollar Equivalent of the U.S.
Tranche Revolving Exposure or the Foreign Tranche Revolving Exposure, as
applicable, based on the Spot Selling Rate, then the Borrowers will have three
(3) Business Days from the date that the Borrower Representative is notified
of such excess to prepay the Revolving Loans or LC Exposure, as the case may
be, as contemplated this clause (b). (ii) In the event that FILO Excess
Availability is greater than zero at any time that Revolving Loans are
outstanding, the U.S. Borrowers shall prepay the Revolving Loans in an
aggregate amount equal to the amount of FILO Excess Availability using
proceeds of new FILO Loans. In the event that the U.S. Borrowers are required
to prepay the Revolving Loans pursuant to this Section 2.11(b)(ii), unless any
of the conditions precedent to the making of a FILO Borrowing set forth in
Section 4.02 are not satisfied, the U.S. Borrowers shall be deemed to have
requested pursuant to Section 2.03, and the FILO Lenders shall make, a CBFR
FILO Loan in an amount equal to such required prepayment (a "Reallocation FILO
Loan"). Each FILO Lender shall transfer the amount of such FILO Lender's
Applicable Percentage of any Reallocation FILO Loan to the Administrative
Agent, to such account of the Administrative Agent as the Administrative Agent
may designate, not later than 2:00 p.m., Local Time, on the Business Day on
which the Administrative Agent shall have notified the FILO Lenders of such
deemed request (which notification shall be made by facsimile, telephone or
e-mail); provided that, if such notification shall have been made after 12:00
p.m., Local Time, on such Business Day, such transfer shall be made not later
than 2:00 p.m., Local Time, on the next Business Day. Such amounts transferred
to the Administrative Agent shall be applied to ratably prepay the Revolving
Loans.
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DB2/ 43463576.548024258.7 108 (iii) Except for FILO Overadvances permitted
under Section 2.05, in the event and on such occasion that the Aggregate FILO
Exposure exceeds the FILO Borrowing Base or otherwise is in excess of any of
the FILO Exposure Limitations, the FILO Borrowers shall prepay their FILO
Loans in an aggregate amount equal to such excess. In the event that the FILO
Borrowers are required to prepay the FILO Loans pursuant to this Section
2.11(b)(iii), unless any of the conditions precedent to the making of a
Revolving Borrowing set forth in Section 4.02 are not satisfied, the U.S.
Borrowers shall be deemed to have requested pursuant to Section 2.03, and the
U.S. Tranche Lenders shall make, a U.S. Dollar denominated CBFR Loan under the
U.S. Tranche in an aggregate amount equal to such required prepayment (the
foregoing Revolving Loans, collectively, "Reallocation Revolving Loans"). Each
U.S. Tranche Lender shall transfer the amount of such Lender's Applicable
Percentage of any Reallocation Revolving Loan to the Administrative Agent, to
such account of the Administrative Agent as the Administrative Agent may
designate, not later than 2:00 p.m., Local Time, on the Business Day on which
the Administrative Agent shall have notified the Revolving Lenders of such
deemed request (which notification shall be made by facsimile, telephone or
e-mail); provided that, if such notification shall have been made after 12:00
p.m., Local Time, on such Business Day, such transfer shall be made not later
than 2:00 p.m., Local Time, on the next Business Day. Such amounts transferred
to the Administrative Agent shall be applied to prepay the FILO Loans. (c) The
Borrower Representative shall notify the Administrative Agent by telephone
(confirmed by email or fax on the same day) (except that in relating to Loans
to the U.K. Borrowers, the Dutch Borrowers and/or the Australian Borrowers,
any notice of amounts to be prepaid must be in writing) or through Electronic
System, if arrangements for doing so have been approved by the Administrative
Agent, of any prepayment hereunder (other than (i) any prepayment of a
Revolving Loan made using the proceeds of a Reallocation FILO Loan as provided
in Section 2.11(b)(ii) and (ii) any prepayment of a FILO Loan made using the
proceeds of a Reallocation Revolving Loan as provided in Section 2.11(b)(iii))
not later than 12:00 noon, Local Time, (i) in the case of prepayment of a Term
Benchmark Borrowing, three (3) Business Days before the date of prepayment,
(B) in the case of prepayment of an RFR Borrowing, five (5) Business Days
before the date of prepayment, or (ii) in the case of prepayment of a CBFR
Borrowing or an Overnight Rate Borrowing, not later than 12:00 noon, Local
Time on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing
or portion thereof to be prepaid; provided that, if (x) a notice of prepayment
is given in connection with a conditional notice of termination of the
Revolving Commitments as contemplated by Section 2.09(a), then such notice of
prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09(a), and (y) a notice of prepayment is given in
connection with a conditional notice of termination of the FILO Commitments as
contemplated by Section 2.09(b), then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.09(b).
Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing or any FILO
Borrowing (other than (i) any prepayment of a Revolving Loan made using the
proceeds of a Reallocation FILO Loan as provided in Section 2.11(b)(ii) and
(ii) any prepayment of a FILO Loan made using the proceeds of a Reallocation
Revolving Loan as provided in Section 2.11(b)(iii)) shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing or a
FILO Borrowing, as applicable, of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the
Revolving Loans included in the prepaid Borrowing. Each prepayment of a FILO
Borrowing shall be applied ratably to the FILO Loans included in the prepaid
Borrowing. Prepayments shall DB2/ 43463576.548024258.7 109 be accompanied by
accrued interest to the extent required by Section 2.13 and, if applicable,
subject to the requirements of Section 2.16. SECTION 2.12. Fees. (a)
Commitment Fees. (i) The Borrowers agree to pay to the Administrative Agent
for the account of each Revolving Lender (other than a Defaulting Lender) a
commitment fee, which shall accrue at a rate equal to 0.25% per annum on the
average daily amount of the Available Revolving Commitment of such Revolving
Lender during the period from and including the Effective Date to but
excluding the date on which the Revolving Commitments terminate. The foregoing
commitment fees accrued through and including the first (1st) Business Day of
each January, April, July and October shall be payable in arrears on such
Business Day and on the date on which the Revolving Commitments terminate,
commencing on the first such date to occur after the date hereof; provided
that any commitment fees accruing after the date on which Revolving
Commitments terminate shall be payable on demand. (ii) The Borrowers agree to
pay to the Administrative Agent for the account of each FILO Lender (other
than a Defaulting Lender) a commitment fee, which shall accrue at a rate equal
to 0.25% per annum on the average daily amount of the Available FILO
Commitment of such FILO Lender during the period from and including the FILO
Effective Date to but excluding the date on which the FILO Commitments
terminate. The foregoing commitment fees accrued through and including the
first (1st) Business Day of each January, April, July and October shall be
payable in arrears on such Business Day and on the date on which the FILO
Commitments terminate, commencing on the first such date to occur after the
FILO Effective Date; provided that any commitment fees accruing after the date
on which the FILO Commitments terminate shall be payable on demand. (iii) All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). (b) (i) (A) the U.S. Borrowers agree to pay, or cause
to be paid, to the Administrative Agent for the account of each U.S. Tranche
Lender (in the case of a U.S. Tranche Letter of Credit) and (B) the Foreign
Borrowers agree to pay, or cause to be paid, to the Administrative Agent for
the account of each Foreign Tranche Lender (in the case of a Foreign Tranche
Letter of Credit), in each case a participation fee with respect to the
applicable Revolving Lender's participations in the applicable Letters of
Credit issued for the account of the applicable Borrower, which shall accrue
on the daily maximum stated amount then available to be drawn under such
Letter of Credit at the same Applicable Rate used to determine the interest
rate applicable to Term Benchmark Revolving Loans during the period from and
including the Effective Date to but excluding the later of the date on which
such Revolving Lender's Revolving Commitment terminates and the date on which
such Revolving Lender ceases to have any LC Exposure, and (ii) each Borrower
agrees to pay to each Issuing Bank for its own account a fronting fee with
respect to each Letter of Credit issued by such Issuing Bank, which shall
accrue at the rate of 0.125% per annum on the daily maximum stated amount then
available to be drawn under such Letter of Credit, during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on
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DB2/ 43463576.548024258.7 110 which there ceases to be any LC Exposure with
respect to Letters of Credit issued by such Issuing Bank, as well as the
Issuing Bank's standard fees and commissions with respect to the issuance,
amendment, or extension of any Letter of Credit and other processing fees and
other standard costs and charges, of such Issuing Bank relating to Letters of
Credit as from time to time in effect. Participation fees and fronting fees
accrued through and including the last day of each calendar quarter shall be
payable on the first (1st) Business Day of each January, April, July and
October following such last day, commencing on the first such date to occur
after the Effective Date; provided that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable
on demand. Any other fees payable to an Issuing Bank pursuant to this
paragraph shall be payable within ten (10) Business Days after demand. All
participation fees and fronting fees shall be computed on the basis of a year
of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). Participation fees and
fronting fees in respect of Letters of Credit denominated in U.S. Dollars
shall be paid in U.S. Dollars, and participation fees and fronting fees in
respect of Letters of Credit denominated in a Foreign Currency shall be paid
in such Foreign Currency. (c) The Borrowers agree to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrowers and the Administrative Agent. In
addition, the Borrowers agree to pay all fees payable in the amounts and at
the times set forth in the Fee Letters. (d) All fees payable hereunder shall
be paid on the dates due, in immediately available funds, to the Administrative
Agent (or to an Issuing Bank, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the
Lenders. Fees paid shall not be refundable under any circumstances. SECTION
2.13. Interest. (a) The Loans (other than Protective Advances, Revolving
Overadvances and FILO Overadvances) comprising CBFR Borrowings shall bear
interest at the CBFR plus the Applicable Rate. (b) The Loans comprising each
Term Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate,
the Adjusted EURIBOR Rate or the AUD Rate, as applicable, for the Interest
Period in effect for such Borrowing plus the Applicable Rate. (c) The Loans
(other than Protective Advances, Revolving Overadvances and FILO Overadvances)
comprising each Overnight Rate Borrowing shall bear interest at the applicable
Overnight Rate plus the Applicable Rate. (d) The Loans comprising each
Alternate Rate Borrowing shall bear interest at the Alternate Rate plus, if
such Loan is a Protective Advance or Revolving Overadvance, 2.00%. (e) Each
RFR Loan shall bear interest at a rate per annum equal to the applicable
Adjusted Daily Simple RFR plus the Applicable Rate then in effect. (f) Each
Protective Advance and each Revolving Overadvance made to the U.S. Borrowers
(i) in U.S. Dollars under the U.S. Tranche shall bear interest at the CBFR
plus the Applicable Rate for Revolving Loans plus 2.00% and (ii) in any
Available Currency under the DB2/ 43463576.548024258.7 111 Foreign Tranche
shall bear interest at the applicable Overnight Rate plus the Applicable Rate
plus 2.00%. (g) Each Protective Advance and each Revolving Overadvance made to
the U.K. Borrowers shall bear interest at the applicable Overnight Rate plus
the Applicable Rate plus 2.00%. (h) Each Protective Advance and each Revolving
Overadvance made to the Dutch Borrowers shall bear interest at the applicable
Overnight Rate plus the Applicable Rate plus 2.00%. (i) Each Revolving
Overadvance made to the Australian Borrowers shall bear interest at the
applicable Overnight Rate plus the Applicable Rate plus 2.00%. (j) Each FILO
Overadvance shall bear interest at the CBFR plus the Applicable Rate for FILO
Loans plus 2.00%. (k) Notwithstanding the foregoing, during the occurrence and
continuance of an Event of Default pursuant to clause (a), (b) (h) or (i) of
Article VII, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrowers hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall
bear interest, after as well as before judgment, at a rate per annum equal to
(i) in the case of overdue principal of any Loan, 2.00% plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2.00% plus the rate
applicable to CBFR Loans as provided in paragraph (a) of this Section. (l)
Accrued interest on each Loan (for CBFR Loans and Overnight Rate Loans,
accrued through the last day of the prior calendar month) shall be payable in
arrears on each Interest Payment Date for such Loan and upon termination of
the Revolving Commitments (in the case of the Revolving Loans) or the
termination of the FILO Commitments (in the case of the FILO Loans); provided
that (i) interest accrued pursuant to clause (i) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any
Loan (other than a prepayment of a CBFR Revolving Loan or an Overnight Rate
Loan that is a Revolving Loan prior to the end of the Revolving Availability
Period or a prepayment of a CBFR FILO Loan prior to the end of the FILO
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Term Benchmark Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion. (m) All interest hereunder
shall be computed on the basis of a year of 360 days, except that (i) interest
computed by reference to the CB Floating Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year) and (ii) interest computed
in reference to any Borrowings in Sterling shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and, in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). A determination of the applicable CB Floating Rate,
Adjusted Term SOFR Rate, Term SOFR Rate, Daily Simple SOFR, Adjusted EURIBOR
Rate, EURIBOR Rate, AUD Rate, Adjusted REVSOFR30 Rate, REVSOFR30 Rate,
Overnight Rate, Daily Simple RFR or Adjusted Daily Simple RFR or the
applicable interest rate in respect of any Borrowings in Sterling shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
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DB2/ 43463576.548024258.7 112 (n) All interest hereunder shall be paid in the
currency in which the Loan giving rise to such interest is denominated.
SECTION 2.14. Alternate Rate of Interest; Illegality. (a) Subject to clauses
(c), (e), (f), (g), and (h) of this Section 2.14, if: (i) the Administrative
Agent determines (which determination shall be conclusive and binding absent
manifest error) (A) prior to the commencement of any Interest Period for a
Term Benchmark Borrowing, that adequate and reasonable means do not exist for
ascertaining the Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted
EURIBOR Rate, the EURIBOR Rate, the AUD Rate or the Overnight Rate, as
applicable (including, without limitation, because the Relevant Screen Rate is
not available or published on a current basis) for the applicable currency and
such Interest Period or (B) at any time, that adequate and reasonable means do
not exist for ascertaining the applicable Adjusted Daily Simple RFR, Daily
Simple RFR, Overnight Rate or RFR for the applicable currency; or (ii) the
Administrative Agent is advised by the Required Lenders that (A) prior to the
commencement of any Interest Period for a Term Benchmark Borrowing, the
Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted EURIBOR Rate, the
EURIBOR Rate, the AUD Rate or the Overnight Rate, as applicable, for the
applicable currency and such Interest Period or such Borrowing, as applicable,
will not adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for
the applicable currency and such Interest Period or (B) at any time, the
applicable Adjusted Daily Simple RFR, Daily Simple RFR, Overnight Rate or 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 for the applicable currency; then the Administrative
Agent shall give notice thereof to the Borrower Representative and the Lenders
through Electronic System as provided in Section 9.01 as promptly as
practicable thereafter and, until the Administrative Agent notifies the
Borrower Representative and the Lenders that the circumstances giving rise to
such notice no longer exist, (A) any Interest Election Request that requests
the conversion of any Borrowing to, or continuation of any Borrowing as, a
Term Benchmark Borrowing or Overnight Rate Borrowing shall be ineffective and
(B) with respect to any Borrowing Request that requests a Term Benchmark
Borrowing or Overnight Rate Borrowing, (1) in the case of a Borrowing to the
U.S. Borrowers under the U.S. Tranche or a FILO Borrowing to the U.S.
Borrowers, such Borrowing shall be made as a CBFR Borrowing (or in the case of
any such Borrowing that is a Term Benchmark Borrowing denominated in U.S.
Dollars, made as an RFR Borrowing denominated in U.S. Dollars, if the Adjusted
Daily Simple RFR for U.S. Dollar RFR Borrowings is not the subject of Section
2.14(a)(i) or (ii) above), (2) in the case of a Borrowing to the U.S.
Borrowers under the Foreign Tranche, such Borrowing shall be made as an
Alternate Rate Borrowing, (3) in the case of a Borrowing to the U.K.
Borrowers, such Borrowing shall bear interest at the Central Bank Rate for the
applicable Available Currency plus the Applicable Rate for RFR Loans, (4) in
the case of a Borrowing to the Dutch Borrowers, such Borrowing shall bear
interest at the Central Bank Rate for the applicable Available Currency plus
the Applicable Rate for RFR Loans and (5) in the case of a Borrowing to the
Australian Borrowers, such Borrowing shall bear interest at the Central Bank
Rate for the applicable Available Currency plus the Applicable Rate for RFR
Loans; provided that if such circumstances only affect one Class or Type of
Borrowing or DB2/ 43463576.548024258.7 113 currency, then the foregoing will
only be applicable to the affected Class or Type of Borrowing or currency. If
any Term Benchmark Borrowing or Overnight Rate Borrowing is outstanding on the
date of the Borrower Representative's receipt of the notice from the
Administrative Agent referred to in this Section 2.14(a) with respect to the
Relevant Rate applicable to such Term Benchmark Borrowing or Overnight Rate
Borrowing, then until the Administrative Agent notifies the Borrower
Representative and the Lenders that the circumstances giving rise to such
notice no longer exist (i) in the case of a Borrowing to the U.S. Borrowers
under the U.S. Tranche or a FILO Borrowing to the U.S. Borrowers, such
Borrowing, unless repaid, shall convert, on the last day of the Interest
Period applicable thereto, to a CBFR Borrowing (or in the case of any such
Borrowing that is a Term Benchmark Borrowing denominated in U.S. Dollars,
convert to an RFR Borrowing denominated in U.S. Dollars, if the Adjusted Daily
Simple RFR for U.S. Dollar RFR Borrowings is not the subject of Section
2.14(a)(i) or (ii) above), (ii) in the case of a Borrowing to the U.S.
Borrowers under the Foreign Tranche, such Borrowing, unless repaid, shall
convert, on the last day of the Interest Period applicable thereto, as an
Alternate Rate Borrowing, (iii) in the case of a Borrowing to the U.K.
Borrowers, such Borrowing, unless repaid, shall convert, on the last day of
the Interest Period applicable thereto, to a Borrowing that bears interest at
the Central Bank Rate for the applicable Available Currency plus the
Applicable Rate for RFR Loans, (iv) in the case of a Borrowing to the Dutch
Borrowers, such Borrowing, unless repaid, shall convert, on the last day of
the Interest Period applicable thereto, to a Borrowing that bears interest at
the Central Bank Rate for the applicable Available Currency plus the
Applicable Rate for RFR Loans and (v) in the case of a Borrowing to the
Australian Borrowers, such Borrowing, unless repaid, shall convert, on the
last day of the Interest Period applicable thereto, to a Borrowing that bears
interest at the Central Bank Rate for the applicable Available Currency plus
the Applicable Rate for RFR Loans; provided that if such circumstances only
affect one Class or Type of Borrowing or currency, then the foregoing will
only be applicable to the affected Class or Type of Borrowing or currency. (b)
If any Lender determines that any Requirement of Law has made it unlawful, or
if any Governmental Authority has asserted that it is unlawful, for any Lender
or its applicable lending office to make, maintain, fund or continue any Term
Benchmark Borrowing, RFR Borrowing or Overnight Rate Borrowing, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, any applicable
currency in the applicable offshore interbank market, then, on notice thereof
by such Lender to the Borrower Representative through the Administrative
Agent, any obligations of such Lender to make, maintain, fund or continue Term
Benchmark Loans, RFR Loans or Overnight Rate Borrowings or to convert CBFR
Borrowings or Overnight Rate Borrowings to Term Benchmark Borrowings or Term
Benchmark Borrowings to Overnight Rate Borrowings will be suspended and all
Borrowings shall continue as Alternate Rate Borrowings and any request for
Borrowings under the Foreign Tranche shall bear interest at the Alternate Rate
(in the case of Borrowings made to a U.S. Borrower) or the Central Bank Rate
(in the case of Borrowings made to a U.K. Borrower, a Dutch Borrower or an
Australian Borrower), in each case, until such Lender notifies the
Administrative Agent and the Borrower Representative that the circumstances
giving rise to such determination no longer exist; provided that if such
circumstances only affect one Class or Type of Borrowing or currency, then the
foregoing will only be applicable to the affected Class or Type of Borrowing
or currency. Upon receipt of such notice, the Borrowers will upon demand from
such Lender (with a copy to the Administrative Agent), either (i) in the case
of Borrowings of such Lender made to the U.S. Borrowers under the U.S. Tranche
or FILO Borrowings to the U.S. Borrowers convert such Borrowings to CBFR
Borrowings or (ii) in all other cases, prepay the Borrowings of such Lender,
either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Borrowings to such day, or immediately, if
such Lender may not lawfully continue to maintain
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DB2/ 43463576.548024258.7 114 such Loans. Upon any such conversion or
prepayment, the Borrowers will also pay accrued interest on the amount so
converted or prepaid. (c) Notwithstanding anything to the contrary herein or
in any other Loan Document (and any Swap Agreement shall be deemed not to be a
"Loan Document" for purposes of this Section 2.14), if a Benchmark Transition
Event and its related Benchmark Replacement Date have occurred prior to the
Reference Time in respect of any setting of the then-current Benchmark, then
(x) if a Benchmark Replacement is determined in accordance with clause (1) of
the definition of "Benchmark Replacement" with respect to U.S. Dollars for
such Benchmark Replacement Date, such Benchmark Replacement will replace such
Benchmark for all purposes hereunder and under any Loan Document in respect of
such Benchmark setting and subsequent Benchmark settings without any amendment
to, or further action or consent of any other party to, this Agreement or any
other Loan Document and (y) if a Benchmark Replacement is determined in
accordance with clause (2) of the definition of "Benchmark Replacement" with
respect to any Available Currency for such Benchmark Replacement Date, such
Benchmark Replacement will replace such Benchmark for all purposes hereunder
and under any Loan Document in respect of any Benchmark setting at or after
5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date
notice of such Benchmark Replacement is provided to the Lenders without any
amendment to, or further action or consent of any other party to, this
Agreement or any other Loan Document so long as the Administrative Agent has
not received, by such time, written notice of objection to such Benchmark
Replacement from Lenders comprising the Required Lenders of each affected
Class. (d) [Reserved]. (e) In connection with the implementation of a
Benchmark Replacement, the Administrative Agent will have the right to make
Benchmark Replacement Conforming Changes from time to time and, notwithstanding
anything to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become
effective without any further action or consent of any other party to this
Agreement or any other Loan Document. (f) The Administrative Agent will
promptly notify the Borrower Representative and the Lenders of (i) any
occurrence of a Benchmark Transition Event and its related Benchmark
Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii)
the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the
removal or reinstatement of any tenor of a Benchmark pursuant to clause (g)
below and (v) the commencement or conclusion of any Benchmark Unavailability
Period. Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 2.14, including any determination with respect to a
tenor, rate or adjustment or of the occurrence or non-occurrence of an event,
circumstance or date and any decision to take or refrain from taking any
action or any selection, will be conclusive and binding absent manifest error
and may be made in its or their sole discretion and without consent from any
other party to this Agreement or any other Loan Document, except, in each
case, as expressly required pursuant to this Section 2.14. (g) 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-current Benchmark is a term rate (including the Term SOFR
Rate, the REVSOFR30 Rate, a term rate as part of an Overnight Rate Loan,
EURIBOR Rate or AUD Rate) and either (A) any tenor for such Benchmark is not
displayed on a screen or other information service that DB2/ 43463576.548024258.
7 115 publishes such rate from time to time as selected by the Administrative
Agent in its reasonable discretion or (B) the regulatory supervisor for the
administrator of such Benchmark has provided a public statement or publication
of information announcing that any tenor for such Benchmark is or will be no
longer representative, then the Administrative Agent may modify the definition
of "Interest Period" for any Benchmark settings at or after such time to
remove such unavailable or non-representative tenor and (ii) if a tenor that
was removed pursuant to clause (i) above either (A) is subsequently displayed
on a screen or information service for a Benchmark (including a Benchmark
Replacement) or (B) is not, or is no longer, subject to an announcement that
it is or will no longer be representative for a Benchmark (including a
Benchmark Replacement), then the Administrative Agent may modify the
definition of "Interest Period" for all Benchmark settings at or after such
time to reinstate such previously removed tenor. (h) Upon the Borrower
Representative's receipt of notice of the commencement of a Benchmark
Unavailability Period, the applicable Borrower (or the Borrower Representative
on its behalf) may revoke any request for a Term Benchmark Borrowing,
Overnight Rate Borrowing or RFR Borrowing, or conversion to or continuation of
Term Benchmark Loans, Overnight Rate Loans or RFR Loans, to be made, converted
or continued during any Benchmark Unavailability Period and, failing that,
either (x) the applicable Borrower will be deemed to have converted any such
request for a Term Benchmark Borrowing denominated in U.S. Dollars (other than
any such requested Term Benchmark Borrowing denominated in U.S. Dollars that
constitute Loans to any Borrower under the Foreign Tranche) into a request for
a Borrowing of, or conversion to, (A) RFR Loans denominated in U.S. Dollars,
so long as the Adjusted Daily Simple RFR for U.S. Dollar RFR Borrowings is not
the subject of a Benchmark Transition Event or (B) CBFR Loans if the Adjusted
Daily Simple RFR for U.S. Dollar RFR Borrowings is the subject of a Benchmark
Transition Event, or (y) any request for a Term Benchmark Borrowing, Overnight
Rate Borrowing or RFR Borrowing constituting a Loan to any Borrower under the
Foreign Tranche or any request for a Term Benchmark Borrowing, Overnight Rate
Borrowing, or RFR Borrowing denominated in any Available Currency shall be
ineffective. During any Benchmark Unavailability Period or at any time that a
tenor for the then-current Benchmark is not an Available Tenor, the component
of CBFR based upon the then-current Benchmark or such tenor for such
Benchmark, as applicable, will not be used in any determination of CBFR.
Furthermore, if any Term Benchmark Loan, Overnight Rate Loan, or RFR Loan in
any Available Currency is outstanding on the date of the Borrower
Representative's receipt of notice of the commencement of a Benchmark
Unavailability Period with respect to a Relevant Rate applicable to such Term
Benchmark Loan, Overnight Rate Loan, or RFR Loan, then until such time as a
Benchmark Replacement for such Available Currency is implemented pursuant to
this Section 2.14, (i) if such Loan is denominated in U.S. Dollars (other than
Loans made to any Borrower under the Foreign Tranche), then on the last day of
the Interest Period applicable to such Loan, such Loan shall be converted by
the Administrative Agent to, and shall constitute, a CBFR Loan denominated in
U.S. Dollars on such day (or in the case of any such Loan that is a Term
Benchmark Loan denominated in U.S. Dollars, converted to an RFR Loan
denominated in U.S. Dollars, if the Adjusted Daily Simple RFR for U.S. Dollar
RFR Borrowings is not the subject of a Benchmark Transition Event) or (ii) if
such Loan is a Loan made to any Borrower under the Foreign Tranche or is
denominated in any Foreign Currency, then such Loan shall, on the last day of
the Interest Period applicable to such Loan bear interest at (A) with respect
to Loans denominated in U.S. Dollars under the Foreign Tranche, the Alternate
Rate or (B) with respect to Loans denominated in any Foreign Currency, the
Central Bank Rate for the applicable currency plus the Applicable Rate for RFR
Loans.
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DB2/ 43463576.548024258.7 116 SECTION 2.15. Increased Costs. (a) If any Change
in Law shall: (i) impose, modify or deem applicable any reserve, special
deposit, liquidity or similar requirement (including any compulsory loan
requirement, insurance charge or other assessment) against assets of, deposits
with or for the account of, or credit extended by, any Lender or Issuing Bank
(except any such reserve requirement reflected in the Adjusted Term SOFR Rate,
Adjusted REVSOFR30 Rate or Adjusted EURIBOR Rate, as applicable) or the
Issuing Bank; (ii) impose on any Lender or the Issuing Bank or the applicable
offshore interbank market for the applicable Available Currency any other
condition, cost or expense (other than Taxes) affecting this Agreement or
Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (g) of the definition of Excluded
Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters
of credit, commitments, or other obligations, or its deposits, reserves, other
liabilities or capital attributable thereto; and the result of any of the
foregoing shall be to increase the cost to such Lender, Issuing Bank or such
other Recipient of making, continuing, converting into or maintaining any Loan
(or of maintaining its obligation to make any such Loan) or to increase the
cost to such Lender, the Issuing Bank or such other Recipient of participating
in, issuing or maintaining any Letter of Credit or to reduce the amount of any
sum received or receivable by such Lender, the Issuing Bank or such other
Recipient hereunder (whether of principal, interest or otherwise), then the
Borrowers will, following delivery by such Lender, Issuing Bank or other
Recipient of the certificate as described in Section 2.15(c) below, pay to
such Lender, the Issuing Bank or such other Recipient, as the case may be,
such additional amount or amounts as will compensate such Lender, the Issuing
Bank or such other Recipient, as the case may be, for such additional costs
incurred or reduction suffered, as reasonably determined by such Lender, such
Issuing Bank or such other Recipient (which determination shall be made in
good faith (and not on an arbitrary or capricious basis) and generally
consistent with similarly situated customers of such Lender, such Issuing Bank
or such other Recipient, as applicable, under agreements having provisions
similar to this Section 2.15, after consideration of such factors as such
Lender, such Issuing Bank or such other Recipient, as applicable, then
reasonably determines to be relevant; provided that none of such Lender, such
Issuing Bank or such other Recipient, as applicable, shall be required to
disclose any confidential or proprietary information in connection therewith).
(b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital or liquidity requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if
any, as a consequence of this Agreement, the Revolving Commitments or FILO
Commitments of, or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such Lender or such Issuing Bank or such Lender's or
such Issuing Bank's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's or such Issuing Bank's policies
and the policies of such Lender's or such Issuing Bank's holding company with
respect to capital adequacy and liquidity), then from time to time DB2/
43463576.548024258.7 117 the applicable Borrowers will, following delivery by
such Lender or such Issuing Bank of the certificate as described in Section
2.15(c) below, pay to such Lender or such Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or such
Issuing Bank or such Lender's or such Issuing Bank's holding company for any
such reduction suffered, as reasonably determined by such Lender or such
Issuing Bank (which determination shall be made in good faith (and not on an
arbitrary or capricious basis) and generally consistent with similarly
situated customers of such Lender or such Issuing Bank, as applicable, under
agreements having provisions similar to this Section 2.15, after consideration
of such factors as such Lender or such Issuing Bank, as applicable, then
reasonably determines to be relevant; provided that none of such Lender or
such Issuing Bank, as applicable, shall be required to disclose any
confidential or proprietary information in connection therewith). (c) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or an Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this Section shall
be delivered to the Borrower Representative and shall be conclusive absent
manifest error. The applicable Borrowers shall pay such Lender or such Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within ten (10) Business Days after receipt thereof. (d) Failure or delay on
the part of any Lender or any Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender's or such Issuing
Bank's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender or an Issuing Bank pursuant to this
Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or such Issuing Bank, as the case may be,
notifies the Borrower Representative of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof. (e) Section 2.15(a) shall not apply with
respect to a Loan or Revolving Commitment made to a U.K. Borrower to the
extent any increased cost is attributable to a Tax Deduction required by law
to be made by any Loan Party, or is compensated for by Section 2.17(l) (or
would have been compensated for under Section 2.17(l) but was not so
compensated solely because any of the exclusions in Section 2.17(l)(ii)
applied). SECTION 2.16. Break Funding Payments. (a) With respect to Loans that
are not RFR Loans, in the event of (a) the payment of any principal of any
Term Benchmark Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default or as a
result of any prepayment pursuant to Section 2.11), (b) the conversion of any
Term Benchmark Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any
Term Benchmark Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section
2.09(a)(iv) or Section 2.09(b)(iv) and is revoked in accordance therewith), or
(d) the assignment of any Term Benchmark Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the
Borrower Representative pursuant to Section 2.19 or 9.02(d) or the CAM
Exchange, then, in any such event, the applicable Borrowers shall compensate
each Lender for the loss, cost and expense attributable to such event. In the
case of a Term Benchmark Loan, such loss, cost or expense to any Lender shall
be deemed to include an amount determined by such Lender to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal
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DB2/ 43463576.548024258.7 118 amount of such Term Benchmark Loan had such
event not occurred, at the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate
or the AUD Rate that would have been applicable to such Term Benchmark Loan
(exclusive of the Applicable Rate), for the period from the date of such event
to the last day of the then current Interest Period therefor (or, in the case
of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Term Benchmark Loan), over (ii) the amount
of interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for deposits in the applicable Available Currency of a
comparable amount and period from other banks in the applicable offshore
interbank market for such Available Currency, whether or not such Term
Benchmark Loan was in fact so funded. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant
to this Section shall be delivered to the Borrower Representative and shall be
conclusive absent manifest error. The applicable Borrowers shall pay such
Lender the amount shown as due on any such certificate within ten (10)
Business Days after receipt thereof. (b) With respect to RFR Loans, in the
event of (i) the payment of any principal of any RFR Loan other than on the
Interest Payment Date applicable thereto (including as a result of an Event of
Default or an optional or mandatory prepayment of Loans), (ii) the failure to
borrow or prepay any RFR Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under
Section 2.09(a)(iv), Section 2.09(b)(iv) or Section 2.11(e) and is revoked in
accordance therewith), or (iii) the assignment of any RFR Loan other than on
the Interest Payment Date applicable thereto as a result of a request by the
Borrower Representative pursuant to Section 2.19, then, in any such event, the
Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower Representative and shall be
conclusive absent manifest error. The applicable Borrowers shall pay such
Lender the amount shown as due on any such certificate within ten (10)
Business Days after receipt thereof. SECTION 2.17. Withholding of Taxes;
Gross-Up. The provisions of Sections 2.17(a) to (h) shall apply in respect of
a U.K. Loan Party to the extent set out therein and where the provisions of
Sections 2.17(l) to (r) (inclusive) apply in respect of any U.K. Loan Party,
the provisions of Sections 2.17(a) to (h) (inclusive) of Section 2.17 shall
not apply to the extent of any conflict with those provisions. (a) Payments
Free of Taxes. Any and all payments by or on account of any obligation of any
Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law (which
includes, for these purposes, the administrative practice of any relevant
Governmental Authority). If any applicable law (as determined in the good
faith discretion of an applicable withholding agent) requires the deduction or
withholding of any Tax from any such payment by a withholding agent, then the
applicable withholding agent shall be entitled to make such deduction or
withholding and shall timely pay the full amount deducted or withheld to the
relevant Governmental Authority in accordance with applicable law. If such Tax
is an Indemnified Tax and is payable with respect to a Loan or Revolving
Commitment or FILO Commitment extended to a Borrower other than a U.K.
Borrower, then an additional amount is payable by the Loan Party as necessary
so that after such deduction or withholding has been made (including such
deductions and withholdings applicable to additional sums payable under this
Section 2.17) the applicable Recipient receives an amount equal to the sum it
would have received had no such deduction or withholding been made. In respect
of any applicable increase to an amount payable as a result of the application
of deductions and withholdings from payments with respect to a U.K. Loan
Party, see Section 2.17(l) below. DB2/ 43463576.548024258.7 119 (b) Payment of
Other Taxes by the Loan Parties. The applicable Loan Parties shall timely pay
to the relevant Governmental Authority in accordance with applicable law, or
at the option of the Administrative Agent timely reimburse it for the payment
of, any Other Taxes. (c) Evidence of Payment. Save in respect of a U.K. Loan
Party, to which the provisions of Section 2.17(l)(v) shall apply, as soon as
practicable after any payment of Taxes by any Loan Party to a Governmental
Authority pursuant to this Section 2.17, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent. (d) Indemnification by the Loan
Parties. The Loan Parties shall jointly and severally indemnify each
Recipient, within ten (10) Business Days after demand therefor, for the full
amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section) payable or
paid by such Recipient or required to be withheld or deducted from a payment
to such Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any
Loan Party by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error. Notwithstanding the foregoing, this Section
2.17(d) shall not apply to a U.K. Loan Party with respect to a Loan or
Revolving Commitment extended to a U.K. Borrower, the relevant tax indemnity
obligations of which with respect to this Section 2.17 shall be governed by
Section 2.17(n). (e) Indemnification by the Lenders. Each Lender shall
severally indemnify the Administrative Agent, within ten (10) Business Days
after demand therefor, for (i) any Indemnified Taxes attributable to such
Lender (but only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Loan Parties to do so), (ii) any Taxes attributable to such
Lender's failure to comply with the provisions of Section 9.04(c) relating to
the maintenance of a Participant Register and (iii) any Excluded Taxes
attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under any
Loan Document or otherwise payable by the Administrative Agent to such Lender
from any other source against any amount due to the Administrative Agent under
this clause (e). (f) Status of Lenders. This Section 2.17(f) shall not apply
in respect of a payment made under any Loan Document by a U.K. Loan Party. (i)
Any Lender that is entitled to an exemption from or reduction of withholding
Tax with respect to payments made under any Loan Document shall deliver to the
Borrower Representative and the Administrative Agent, at the time or times
reasonably requested by the Borrower Representative or the Administrative
Agent, such properly completed and executed documentation reasonably requested
by the Borrower Representative or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender, if
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DB2/ 43463576.548024258.7 120 reasonably requested by the Borrower
Representative or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower Representative or the Administrative Agent as will enable the
Borrower Representative or the Administrative Agent to determine whether or
not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B)
and (ii)(D) below) shall not be required if in the Lender's reasonable
judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender. (ii) Without limiting the
generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower
Representative and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower Representative or the
Administrative Agent), an executed copy of IRS Form W-9 certifying that such
Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign
Lender shall, to the extent it is legally entitled to do so, deliver to the
Borrower Representative and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower Representative or the
Administrative Agent), whichever of the following is applicable: (1) in the
case of a Foreign Lender claiming the benefits of an income tax treaty to
which the United States is a party (x) with respect to payments of interest
under any Loan Document, an executed copy of IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the "interest" article of such tax treaty
and (y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption
from, or reduction of, U.S. Federal withholding Tax pursuant to the "business
profits" or "other income" article of such tax treaty; (2) in the case of a
Foreign Lender claiming that its extension of credit will generate U.S.
effectively connected income, an executed copy of IRS Form W-8ECI, and in the
case of an applicable Foreign Lender, executed copies of IRS Form W-8EXP; (3)
in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a U.S. Tax Compliance
Certificate substantially in the form of Exhibit G-1 to the effect that such
Foreign Lender is not a "bank" within DB2/ 43463576.548024258.7 121 the
meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of a
Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a
"controlled foreign corporation" described in Section 881(c)(3)(C) of the Code
(a "U.S. Tax Compliance Certificate") and (y) an executed copy of IRS Form
W-8BEN or IRS Form W-8BEN-E, as applicable; or (4) to the extent a Foreign
Lender is not the beneficial owner, an executed copy of IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as
applicable, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that if the Foreign Lender
is a partnership and one or more direct or indirect partners of such Foreign
Lender are claiming the portfolio interest exemption, such Foreign Lender may
provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit
G-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender
shall, to the extent it is legally entitled to do so, deliver to the Borrower
Representative and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrower Representative or the
Administrative Agent), executed copies of any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrowers
or the Administrative Agent to determine the withholding or deduction required
to be made; and (D) if a payment made to a Lender under any Loan Document
would be subject to U.S. Federal withholding Tax imposed by FATCA if such
Lender were to fail to comply with the applicable reporting requirements of
FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Borrower Representative and the
Administrative Agent at the time or times prescribed by law and at such time
or times reasonably requested by the Borrower Representative or the
Administrative Agent such documentation prescribed by applicable law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower Representative
or the Administrative Agent as may be necessary for the Borrowers and the
Administrative Agent to comply with their obligations under FATCA and to
determine that such Lender has complied with such Lender's obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), "FATCA" shall include any amendments
made to FATCA after the date of this Agreement. Each Lender agrees that if any
form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or
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DB2/ 43463576.548024258.7 122 promptly notify the Borrower Representative and
the Administrative Agent in writing of its legal inability to do so. (g)
Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to
which it has been indemnified pursuant to this Section (including by the
payment of additional amounts pursuant to this Section), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of
indemnity payments made under this Section with respect to the Taxes giving
rise to such refund), net of all out-of-pocket expenses (including Taxes) of
such indemnified party and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this clause (g) (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the
contrary in this clause (g), in no event will the indemnified party be
required to pay any amount to an indemnifying party pursuant to this clause
(g) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the
Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts giving rise to such refund had never been paid. This clause
(g) shall not be construed to require any indemnified party to make available
its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other Person. (h) VAT. (i) All
amounts set out or expressed under a Loan Document to be payable by any Loan
Party to any Credit Party which (in whole or in part) constitute the
consideration for a supply or supplies for VAT purposes shall be deemed to be
exclusive of any VAT which is chargeable on such supply or supplies, and
accordingly, subject to Section 2.17(h)(ii), if VAT is or becomes chargeable
on any supply made by any Credit Party to any Loan Party under a Loan
Document, that Loan Party shall pay to the Credit Party (in addition to and at
the same time as paying any other consideration for such supply) an amount
equal to the amount of such VAT (and the relevant Credit Party shall promptly
provide an appropriate VAT invoice to such Loan Party). (ii) If VAT is or
becomes chargeable on any supply made by any Credit Party (the "Supplier") to
any other Credit Party (for purposes of this Section 2.17(h), the "Customer")
under a Loan Document, and any party other than the Customer (the "Relevant
Party") is required by the terms of any Loan Document to pay an amount equal
to the consideration for that supply to the Supplier (rather than being
required to reimburse or indemnify the Customer in respect of that
consideration): (A) (where the Supplier is the person required to account to
the relevant tax authority for the VAT) the Relevant Party must also pay to
the Supplier (at the same time as paying that amount) an additional amount
equal to the amount of the VAT. The Customer must (where this Section
2.17(h)(ii)(A) applies) promptly pay to the Relevant Party an amount equal to
any credit or repayment the Customer receives from the relevant tax authority
which the DB2/ 43463576.548024258.7 123 Customer reasonably determines relates
to the VAT chargeable on that supply; and (B) (where the Customer is the
person required to account to the relevant tax authority for the VAT) the
Relevant Party must promptly, following demand from the Customer, pay to the
Customer an amount equal to the VAT chargeable on that supply but only to the
extent that the Customer reasonably determines that it is not entitled to a
credit or repayment from the relevant tax authority in respect of that VAT.
(iii) Where a Loan Document requires any Loan Party to reimburse or indemnify
a Credit Party for any cost or expense, that Loan Party shall reimburse or
indemnify (as the case may be) such Credit Party for the full amount of such
cost or expense, including such part as represents VAT, save to the extent
that such Credit Party reasonably determines that it is entitled to credit or
repayment in respect of such VAT from the relevant tax authority. (iv) Any
reference in this Section 2.17(h) to any Loan Party shall, at any time when
such Loan Party is treated as a member of a group or unity (or fiscal unity)
for VAT purposes, include (where appropriate and unless the context otherwise
requires) a reference to the person who is treated at that time as making the
supply or (as appropriate) receiving the supply, under the grouping rules
(provided for in Article 11 of Council Direction of 28 November 2006
(2006/112/EC) (or as implemented by the relevant member state of the European
Union or any other similar provision in any jurisdiction which is not a member
state of the European Union)) so that a reference to a Loan Party shall be
construed as a reference to that Loan Party or the relevant group or unity (or
fiscal unity) of which that Loan Party is a member for VAT purposes at the
relevant time or the relevant member (or head) of such group or unity (or
fiscal unity) at such time (as the case may be). (v) In relation to any supply
made by a Credit Party to any Loan Party under a Loan Document, if reasonably
requested by such Credit Party, that Loan Party must promptly provide such
Credit Party with details of that Loan Party's VAT registration and such other
information as is reasonably requested in connection with such Credit Party's
VAT reporting requirements in relation to such supply. (i) Determination.
Except as otherwise expressly provided in Section 2.17, a reference to
"determines" or "determined" in connection with tax provisions contained in
Section 2.17 means a determination made in the absolute discretion of the
person making the determination. (j) Survival. Each party's obligations under
this Section shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Revolving Commitments and FILO Commitments and the
repayment, satisfaction or discharge of all obligations under any Loan
Document (including the Payment in Full of the Secured Obligations). (k) For
purposes of this Section 2.17, the term "Lender" includes any Issuing Bank and
the term "applicable law" includes FATCA. United Kingdom Tax Matters:
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DB2/ 43463576.548024258.7 124 (l) Tax Gross-Up. (i) A U.K. Loan Party shall,
promptly upon becoming aware that it must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction) notify the
Administrative Agent accordingly. Similarly, a Lender shall promptly notify
the Administrative Agent on becoming so aware in respect of a payment payable
to that Lender. If the Administrative Agent receives such notification from a
Lender it shall notify the Borrower Representative. (ii) If a Tax Deduction is
required by law to be made by or on account of any U.K. Loan Party, the amount
of the payment due from that U.K. Loan Party shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required. (iii) A
payment by a U.K. Borrower shall not be increased under Section 2.17(l)(ii)
above by reason of a Tax Deduction on account of Taxes imposed by the United
Kingdom on interest if, on the date the payment falls due: (A) the payment
could have been made to the relevant Lender without a Tax Deduction if the
Lender had been a U.K. Qualifying Lender, but on that date that Lender is not
or has ceased to be a U.K. Qualifying Lender other than as a result of any
change after the date it became a Lender under this Agreement in (or in the
interpretation, administration, or application of) any law or U.K. Treaty or
any published practice or published concession of any relevant taxing
authority; or (B) the relevant Lender is a U.K. Qualifying Lender solely by
virtue of sub-section (a)(ii) of the definition of U.K. Qualifying Lender,
and: (1) an officer of HM Revenue & Customs has given (and not revoked) a
direction (a "Direction") under section 931 of the ITA which relates to the
payment and that Lender has received from the U.K. Borrower making the payment
a certified copy of that Direction; and (2) the payment could have been made
to the Lender without any Tax Deduction if that Direction had not been made;
or (C) the relevant Lender is a U.K. Qualifying Lender solely by virtue of
sub-section (a)(ii) of the definition of U.K. Qualifying Lender and: (1) the
relevant Lender has not given a Tax Confirmation to the Borrower Representative;
and (2) the payment could have been made to the Lender without any Tax
Deduction if the Lender had given a Tax Confirmation to the Borrower
Representative, on the basis that the Tax Confirmation would have enabled the
applicable U.K. Borrower to have formed a reasonable belief that the payment
was an "excepted payment" for the purpose of section 930 of the ITA; or DB2/
43463576.548024258.7 125 (D) the relevant Lender is a U.K. Treaty Lender and
the applicable U.K. Borrower making the payment is able to demonstrate that
the payment could have been made to the Lender without the Tax Deduction had
that Lender complied with its obligations under Section 2.17(l)(vi) or (vii)
(as applicable) below. (iv) If a U.K. Loan Party is required to make a Tax
Deduction, that U.K. Loan Party shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the time allowed and in
the minimum amount required by law. (v) Within thirty (30) days of making
either a Tax Deduction or any payment required in connection with that Tax
Deduction, the U.K. Loan Party making that Tax Deduction shall deliver to the
Administrative Agent for the benefit of the Lender entitled to the payment a
statement under section 975 of the ITA or other evidence reasonably
satisfactory to that Lender that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing authority.
(vi) (A) Subject to sub-section (B) below, a U.K. Treaty Lender and each U.K.
Loan Party which makes a payment to which that U.K. Treaty Lender is entitled
shall co-operate in completing any procedural formalities necessary for that
U.K. Loan Party to obtain authorization to make that payment without a Tax
Deduction. (B) (1) A U.K. Treaty Lender which is a Lender on the Effective
Date and that holds a passport under the HMRC DT Treaty Passport scheme, and
which wishes that scheme to apply to this Agreement, shall confirm its scheme
reference number and its jurisdiction of tax residence opposite its name in
the Commitment Schedule; and (2) a U.K. Treaty Lender which is not a Lender on
the Effective Date and that holds a passport under the HMRC DT Treaty Passport
scheme, and which wishes that scheme to apply to this Agreement, shall include
an indication to that effect (for the benefit of the Administrative Agent and
without liability to a U.K. Loan Party) in the Assignment and Assumption which
it executes on becoming a party as a Lender by including its scheme reference
number and its jurisdiction of tax residence in that Assignment and
Assumption, and, having done so, that Lender shall be under no obligation
pursuant to sub-section (A) above. (vii) If a Lender has confirmed its scheme
reference number and its jurisdiction of tax residence in accordance with
Section 2.17(l)(vi)(B) above and: (A) a U.K. Borrower making a payment to that
Lender has not made a U.K. Borrower DTTP Filing in respect of that Lender; or
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DB2/ 43463576.548024258.7 126 (B) a U.K. Borrower making a payment to that
Lender has made a U.K. Borrower DTTP Filing in respect of that Lender but: (1)
that U.K. Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
(2) HM Revenue & Customs has not given a U.K. Borrower authority to make
payments to that Lender without a Tax Deduction within sixty (60) days of the
date of the U.K. Borrower DTTP Filing, and in each case, the applicable U.K.
Borrower has notified that Lender in writing, that Lender and such U.K.
Borrower shall co-operate in completing any additional procedural formalities
necessary for that U.K. Borrower to obtain authorization to make that payment
without a Tax Deduction. (viii) If a Lender provides an indication to the
effect that it wishes the HMRC DT Treaty Passport scheme to apply to this
Agreement, as described in Section 2.17(i)(vi)(B) above, a U.K. Borrower shall
make a U.K. Borrower DTTP Filing in respect of such Lender, and shall promptly
provide the Administrative Agent with a copy of that filing for delivery to
the relevant Lender. (ix) If a Lender has not provided an indication to the
effect that it wishes the HMRC DT Treaty Passport scheme to apply to this
Agreement, as described in Section 2.17(i)(vi)(B) above, no U.K. Borrower
shall file any form relating to the HMRC DT Treaty Passport scheme in respect
of that Lender's advance or its participation in any advance unless the Lender
otherwise agrees. (x) A U.K. Non-Bank Lender which becomes a party to this
Agreement on the day on which this Agreement is entered into gives a Tax
Confirmation to each U.K. Borrower by entering into this Agreement. (xi) A
U.K. Non-Bank Lender shall notify each U.K. Borrower and the Administrative
Agent if there is any change in the position from that set out in a Tax
Confirmation. (m) Lender Status Confirmation. Each Lender which becomes a
party to this Agreement after the Effective Date with respect to a Loan or
Revolving Commitment extended to a U.K. Borrower (each a "New Lender") shall
indicate, in the Assignment and Assumption which it executes on becoming a
party, and for the benefit of the Administrative Agent and without liability
to any U.K. Loan Party, which of the following categories it falls within (i)
not a U.K. Qualifying Lender, (ii) a U.K. Qualifying Lender (other than a U.K.
Treaty Lender), or (iii) a U.K. Treaty Lender. If a New Lender fails to
indicate its status in accordance with this Section 2.17(m), then such New
Lender shall be treated for the purposes of this Agreement (including by each
U.K. Loan Party) as if it is not a U.K. Qualifying Lender until such time as
it notifies the Administrative Agent which category applies (and the
Administrative Agent, upon receipt of such notification, shall inform the
Borrower Representative). For the avoidance of doubt, an Assignment and
Assumption shall not be invalidated by any failure of a New Lender to comply
with this Section 2.17(m). DB2/ 43463576.548024258.7 127 (n) Tax Indemnity.
(i) Any U.K. Loan Party shall (within three (3) Business Days of demand by the
Administrative Agent) pay to a Lender an amount equal to the loss, liability
or cost which that Lender determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Lender in respect of a
Loan or Revolving Commitment extended to a U.K. Borrower. (ii) Section
2.17(n)(i) above shall not apply: (A) with respect to any Tax assessed on a
Lender: (1) under the law of the jurisdiction in which that Lender is
incorporated or, if different, the jurisdiction (or jurisdictions) in which
that Lender is treated as resident for Tax purposes; or (2) under the law of
the jurisdiction in which that Lender's lending office is located in respect
of amounts received or receivable in that jurisdiction, if such Taxes are
imposed on or calculated by reference to the net income received or receivable
(but not any sum deemed to be received or receivable) by that Lender; or (B)
to the extent a loss, liability or cost: (1) is compensated for by an
increased payment under Section 2.17(l)(ii); or (2) would have been
compensated for by an increased payment under Section 2.17(l)(ii) but was not
so compensated solely because one of the exclusions in Section 2.17(l)(iii)
applied; or (3) relates to a FATCA Deduction. (iii) A Lender making, or
intending to make a claim under Section 2.17(l)(i) above shall promptly notify
the Administrative Agent of the event which will give, or has given, rise to
the claim, following which the Administrative Agent shall notify the U.K. Loan
Party. (iv) A Lender shall, on receiving a payment from a U.K. Loan Party
under this Section 2.17(n), notify the Administrative Agent. (o) Australian
Tax Matters. (i) If requested in writing by the Australian Borrowers, each
Lender that becomes a party to this Agreement after the Third Amendment
Effective Date shall provide a representation to each Australian Borrower
within ten (10) days of becoming a party to this Agreement confirming either
that: (A) it is an Australian Qualifying Lender; or
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DB2/ 43463576.548024258.7 128 (B) it is not an Australian Qualifying Lender.
If the status of the Lender as either an Australian Qualifying Lender or not
an Australian Qualifying Lender changes after the initial representation is
given, then the Lender must provide a new representation to each Australian
Borrower in writing within ten (10) days of this change confirming its new
status. (ii) Each Lender who is a party to this Agreement as at the Third
Amendment Effective Date and who makes a Loan to an Australian Borrower
represents that: (A) it makes the Loan in carrying on business in Australia at
or through a permanent establishment in Australia; (B) it will not at any time
derive or be in receipt of any funds (including, for the avoidance of doubt,
interest) in relation to a Loan to an Australian Borrower at or through a
permanent establishment outside Australia; and (C) it will not change its
lending office for funding or booking any Loans to an Australian Borrower
hereunder without the prior written approval of each Australian Loan Party.
(p) FATCA Information. (i) Subject to Section 2.17(p)(iii) below, each party
shall, within ten (10) Business Days of a reasonable request by another party:
(A) confirm to that other party whether it is: (1) a FATCA Exempt Party; or
(2) not a FATCA Exempt Party; (B) supply to that other party such forms,
documentation and other information relating to its status under FATCA as that
other party reasonably requests for the purposes of that other party's
compliance with FATCA; and (C) supply to that other party such forms,
documentation and other information relating to its status as that other party
reasonably requests for the purposes of that other party's compliance with any
other law, regulation, or exchange of information regime. (ii) If a party
confirms to another party pursuant to Section 2.17(p)(i) above that it is a
FATCA Exempt Party and it subsequently becomes aware that it is not or has
ceased to be a FATCA Exempt Party, that party shall notify that other party
reasonably promptly. (iii) Section 2.17(p)(i) above shall not oblige any
Lender to do anything, and Section 2.17(p)(i)(C) above shall not oblige any
other Party to do anything, which would or might in its reasonable opinion
constitute a breach of: DB2/ 43463576.548024258.7 129 (A) any law or
regulation; (B) any fiduciary duty; or (C) any duty of confidentiality. (iv)
If a party fails to confirm whether or not it is a FATCA Exempt Party or to
supply forms, documentation or other information requested in accordance with
Section 2.17(p)(i)(A) or Section 2.17(p)(i)(B) above (including, for the
avoidance of doubt, where Section 2.17(p)(iii) above applies), then such party
shall be treated for the purposes of the Loan Documents (and payments under
them) as if it is not a FATCA Exempt Party until such time as the party in
question provides the requested confirmation, forms, documentation or other
information. (q) FATCA Deduction. (i) Each party may make any FATCA Deduction
it is required to make by FATCA, and any payment required in connection with
that FATCA Deduction, and no party shall be required to increase any payment
in respect of which it makes such a FATCA Deduction or otherwise compensate
the recipient of the payment for that FATCA Deduction. (ii) Each party shall
promptly, upon becoming aware that it must make a FATCA Deduction (or that
there is any change in the rate or the basis of such FATCA Deduction), notify
the party to whom it is making the payment and, in addition, shall notify the
Borrower Representative and the Administrative Agent and the Administrative
Agent shall notify the Lenders. (r) Transfer and Assignment. (i) a Lender
assigns or transfers any of its rights or obligations under the Loan Documents
or changes its applicable lending office; and (ii) as a result of
circumstances existing at the date the assignment, transfer or change occurs,
a U.K. Loan Party would be obliged to make a payment to the New Lender or
Lender acting through its new lending office under Section 2.15 or this
Section 2.17, then the New Lender or Lender acting through its new lending
office is only entitled to receive payment under those Sections to the same
extent as the existing Lender or Lender acting through its previous lending
office would have been if the assignment, transfer or change had not occurred.
This Section 2.17(r) shall not apply: (x) in respect of an assignment or
transfer made in the ordinary course of the primary syndication of any Loan;
or (y) in relation to Section 2.17(l), to a U.K. Treaty Lender that has
included a confirmation of its scheme reference number and its jurisdiction of
tax residence in
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DB2/ 43463576.548024258.7 130 accordance with Section 2.17(l)(vi)(B) if the
U.K. Borrower making the payment has not made a U.K. Borrower DTTP Filing in
respect of that U.K. Treaty Lender; or (z) in respect of an assignment or
transfer made (A) at the request of a Loan Party, or (B) at a time when an
Event of Default is continuing SECTION 2.18. Payments Generally; Allocation of
Proceeds; Sharing of Setoffs. (a) Each Borrower shall make each payment or
prepayment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable
under Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., Local
Time, on the date when due or the date fixed for any prepayment hereunder, in
immediately available funds, without setoff, recoupment or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made (i) with respect to all payments of any Loans made by the U.S.
Borrowers under the U.S. Tranche or of any FILO Loans, to the Administrative
Agent at its offices at 10 South Dearborn Street, Floor L2, Chicago, Illinois,
and (ii) with respect to all payments of any Loans made by the U.S. Borrowers,
U.K. Borrowers, the Dutch Borrowers and/or the Australian Borrowers under the
Foreign Tranche, in each case to the Administrative Agent at its offices at 25
Bank Street, Canary Wharf London E14 5JP, except payments to be made directly
to any Issuing Bank as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments denominated in the same currency received by it for the account of
any other Person to the appropriate recipient promptly following receipt
thereof. Unless otherwise provided for herein, if any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension. Notwithstanding the foregoing provisions of this Section, if, after
the making of any Credit Event in any Foreign Currency, currency control or
exchange regulations are imposed in the country which issues such currency
with the result that the type of currency in which the Credit Event was made
(the "Original Currency") no longer exists, or any Borrower is not able to
make payment to the Administrative Agent for the account of the Lenders in
such Original Currency, or the terms of this Agreement require the conversion
of such Credit Event into U.S. Dollars, then all payments to be made by such
Borrower hereunder in such currency shall, to the fullest extent permitted by
law, instead be made when due in U.S. Dollars in an amount equal to the Dollar
Equivalent of such amount (as of the date of repayment) of such payment due,
it being the intention of the parties hereto that the Borrowers take all risks
of the imposition of any such currency control or exchange regulations or
conversion, and each Borrower agrees to indemnify and hold harmless each
Issuing Bank, the Administrative Agent and each Lender from and against any
loss resulting from any Credit Event made to or for the benefit of such
Borrower denominated in a Foreign Currency that is not repaid to such Issuing
Bank, the Administrative Agent or such Lender, as the case may be, in the
Original Currency. (b) All payments and any proceeds of Collateral received by
the Administrative Agent (i) not constituting either (A) a specific payment of
principal, interest, fees or other sum payable under the Loan Documents (which
shall be applied as specified by the applicable Borrowers), (B) a mandatory
prepayment (which shall be applied in accordance with Section 2.11) or (C)
amounts to be applied from the Collection Account during a Cash Dominion
Period (which shall be applied in accordance with Section 2.10(b)) or (ii)
after an Event of Default has occurred and is continuing and the Administrative
Agent so elects or the Required Lenders so DB2/ 43463576.548024258.7 131
direct, shall be applied ratably first, to pay any fees, indemnities, or
expense reimbursements then due to the Administrative Agent and the Issuing
Banks from the Borrowers (other than in connection with Banking Services
Obligations or Swap Agreement Obligations), second, to pay any fees,
indemnities, or expense reimbursements then due to the Lenders from the
Borrowers (other than in connection with Banking Services Obligations or Swap
Agreement Obligations), third, to pay interest due in respect of the Revolving
Overadvances and Protective Advances, fourth, to pay the principal of the
Revolving Overadvances and Protective Advances, fifth, to pay interest then
due and payable on the Revolving Loans (other than the Revolving Overadvances
and Protective Advances) ratably, sixth, to prepay principal on the Revolving
Loans (other than the Revolving Overadvances and Protective Advances) and
unreimbursed LC Disbursements ratably, seventh, to pay an amount to the
Administrative Agent equal to 103% of the aggregate LC Exposure, to be held as
cash collateral for such Obligations, eighth, to pay interest due in respect
of the FILO Overadvances, ninth, to pay the principal of the FILO
Overadvances, tenth, to pay interest then due and payable on the FILO Loans
(other than the FILO Overadvances) ratably, eleventh, to prepay principal on
the FILO Loans (other than the FILO Overadvances) ratably, twelfth, to payment
of any amounts owing in respect of Banking Services Obligations and Swap
Agreement Obligations (other than in respect of the Secured Inventory
Financing Indebtedness) up to and including the amount most recently provided
to the Administrative Agent pursuant to Section 2.22, thirteenth, to the
payment of any other Secured Obligation due to the Administrative Agent or any
Lender by the Borrowers, and fourteenth, to payment of any amounts owing in
respect of the Secured Inventory Financing Indebtedness up to and including
the amount most recently provided to the Administrative Agent pursuant to
Section 2.22. Notwithstanding the foregoing amounts received from any Loan
Party shall not be applied to any Excluded Swap Obligation of such Loan Party.
Notwithstanding anything to the contrary contained in this Agreement, unless
so directed by the Borrower Representative, or unless a Default is in
existence, neither the Administrative Agent nor any Lender shall apply any
payment which it receives to any Term Benchmark Loan of a Class, except (a) on
the expiration date of the Interest Period applicable thereto or (b) in the
event, and only to the extent, that (i) in the case of payments in U.S.
Dollars under the U.S. Tranche, there are no outstanding CBFR Loans of the
same Class, (ii) in the case of payments in U.S. Dollars of FILO Loans, there
are no outstanding CBFR Loans of the same Class, and (iii) in the case of
payments in any Available Currency under the Foreign Tranche, there are no
outstanding Overnight Rate Loans of the same class, and, in any such event
under either clause (i), (ii) or (iii), the Borrowers shall pay the break
funding payment required in accordance with Section 2.16. The Administrative
Agent and the Lenders shall have the continuing and exclusive right to apply
and reverse and reapply any and all such proceeds and payments to any portion
of the Secured Obligations. (c) At the election of the Administrative Agent,
all scheduled payments of interest and all payments of fees required to be
paid pursuant to Section 2.12(a) and (b) hereof may be (x) to the extent any
Borrowings are outstanding at such time, paid from the proceeds of Borrowings
made hereunder (whether made following a request by the Borrower Representative
pursuant to Section 2.03 or a deemed request as provided in this Section) or
(y) to the extent no Borrowings are outstanding at such time, deducted from
any deposit account of any Borrower maintained with the Administrative Agent
(in each case, unless otherwise agreed between the Administrative Agent and
the Borrower Representative). Each U.S. Borrower hereby irrevocably authorizes
(unless otherwise agreed between the Administrative Agent and the Borrower
Representative) (i) the Administrative Agent, to the extent any Borrowings are
outstanding at such time, to make a Borrowing for the purpose of paying each
scheduled payment of interest and each payment of fees required to be paid
pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due
hereunder, and agrees that all such amounts charged shall constitute Loans and
that all such Borrowings shall be deemed to have been requested pursuant to
Section
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DB2/ 43463576.548024258.7 132 2.03, 2.04 or 2.05, as applicable, and (ii) the
Administrative Agent, to the extent no Borrowings are outstanding at such
time, to charge any deposit account of the relevant U.S. Borrower maintained
with the Administrative Agent for each scheduled payment of interest and each
payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder. Each U.K. Borrower hereby
irrevocably authorizes (unless otherwise agreed between the Administrative
Agent and the Borrower Representative) (i) the Administrative Agent, to the
extent any Borrowings are outstanding at such time, to make a Borrowing for
the purpose of paying each scheduled payment of interest and each payment of
fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each
case as it becomes due hereunder, and agrees that all such amounts charged
shall constitute Loans and that all such Borrowings shall be deemed to have
been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii)
the Administrative Agent, to the extent no Borrowings are outstanding at such
time, to charge any deposit account of the relevant U.K. Borrower maintained
with the Administrative Agent for each scheduled payment of interest and each
payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder. Each Dutch Borrower hereby
irrevocably authorizes (unless otherwise agreed between the Administrative
Agent and the Borrower Representative) (i) the Administrative Agent, to the
extent any Borrowings are outstanding at such time, to make a Borrowing for
the purpose of paying each scheduled payment of interest and each payment of
fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in each
case as it becomes due hereunder, and agrees that all such amounts charged
shall constitute Loans and that all such Borrowings shall be deemed to have
been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii)
the Administrative Agent, to the extent no Borrowings are outstanding at such
time, to charge any deposit account of the relevant Dutch Borrower maintained
with the Administrative Agent for each scheduled payment of interest and each
payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder. Each Australian Borrower
hereby irrevocably authorizes (unless otherwise agreed between the
Administrative Agent and the Borrower Representative) (i) the Administrative
Agent, to the extent any Borrowings are outstanding at such time, to make a
Borrowing for the purpose of paying each scheduled payment of interest and
each payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder, and agrees that all such
amounts charged shall constitute Loans and that all such Borrowings shall be
deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as
applicable, and (ii) the Administrative Agent, to the extent no Borrowings are
outstanding at such time, to charge any deposit account of the relevant
Australian Borrower maintained with the Administrative Agent for each
scheduled payment of interest and each payment of fees required to be paid
pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due
hereunder. (d) If, except as otherwise expressly provided herein, any Lender
shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or
participations in LC Disbursements resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and participations
in LC Disbursements and accrued interest thereon than the proportion received
by any other similarly situated Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by all such
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this
paragraph DB2/ 43463576.548024258.7 133 shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrowers or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received, prior to any date on
which any payment is due to the Administrative Agent for the account of the
Lenders or the applicable Issuing Bank pursuant to the terms hereof or any
other Loan Document (including any date that is fixed for prepayment by notice
from the Borrower Representative to the Administrative Agent pursuant to
Section 2.11(c)), notice from the Borrower Representative that the Borrowers
will not make such payment or prepayment, the Administrative Agent may assume
that the Borrowers have made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders or the
applicable Issuing Bank, as the case may be, the amount due. In such event, if
the Borrowers have not in fact made such payment, then each of the Lenders or
the applicable Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the NYFRB Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation. (f) If any Lender shall fail to make any
payment required to be made by it hereunder, then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), (i)
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations hereunder until
all such unsatisfied obligations are fully paid and/or (ii) hold any such
amounts in a segregated account as cash collateral for, and application to,
any future funding obligations of such Lender hereunder. Application of
amounts pursuant to (i) and (ii) above shall be made in any order determined
by the Administrative Agent in its discretion. (g) The Administrative Agent
may from time to time provide the Borrowers with account statements or
invoices with respect to any of the Secured Obligations (the "Statements").
The Administrative Agent is under no duty or obligation to provide Statements,
which, if provided, will be solely for the Borrowers' convenience. Statements
may contain estimates of the amounts owed during the relevant billing period,
whether of principal, interest, fees or other Secured Obligations. If the
Borrowers pay the full amount indicated on a Statement on or before the due
date indicated on such Statement, the Borrowers shall not be in default of
payment with respect to the billing period indicated on such Statement;
provided, that acceptance by the Administrative Agent, on behalf of the
Lenders, of any payment that is less than the total amount actually due at
that time (including but not limited to any past due amounts) shall not
constitute a waiver of the Administrative Agent's or the Lenders' right to
receive payment in full at another time.
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DB2/ 43463576.548024258.7 134 SECTION 2.19. Mitigation Obligations;
Replacement of Lenders. (a) If any Lender requests compensation under Section
2.15, or if any Loan Party is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Loan Parties hereby agree
to pay all reasonable and documented costs and expenses incurred by any Lender
in connection with any such designation or assignment. (b) If any Lender
requests compensation under Section 2.15, or if any Loan Party is required to
pay any Indemnified Taxes or additional amounts to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender becomes a Defaulting Lender, then the Loan Parties may, at
their sole expense and effort, upon notice by the Borrower Representative to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04, with the Loan Parties or replacement lender
responsible for paying any applicable processing and recordation fee), all its
interests, rights (other than its existing rights to payments pursuant to
Section 2.15 or 2.17) and obligations under this Agreement and other Loan
Documents to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Loan Parties shall have received the prior written consent of the
Administrative Agent (and in circumstances where its consent would be required
under Section 9.04, each such Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in
LC Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Loan Parties (in the case of
all other amounts), (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15 or payments required to be made
pursuant to Section 2.17, such assignment will result in a reduction in such
compensation or payments, (iv) such assignment does not conflict with
applicable law, and (v) in the case of any assignment resulting from a Lender
becoming a Non-Consenting Lender, the applicable assignee shall have consented
to the applicable amendment, waiver or consent. A Lender shall not be required
to make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrowers
to require such assignment and delegation cease to apply. Each party hereto
agrees that (x) an assignment required pursuant to this paragraph may be
effected pursuant to an Assignment and Assumption executed by the Borrower
Representative, the Administrative Agent and the assignee (or, to the extent
applicable, an agreement incorporating an Assignment and Assumption by
reference pursuant to an Approved Electronic Platform as to which the
Administrative Agent and such parties are participants), and (y) the Lender
required to make such assignment need not be a party thereto in order for such
assignment to be effective and shall be deemed to have consented to an be
bound by the terms thereof; provided that, following the effectiveness of any
such assignment, the other parties to such assignment agree to execute and
deliver such documents necessary to evidence such assignment as reasonably
requested by the applicable Lender, provided that any such documents shall be
without recourse to or warranty by the parties thereto. DB2/ 43463576.548024258.
7 135 SECTION 2.20. Defaulting Lenders. Notwithstanding any provision of this
Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a Defaulting
Lender: (a) fees shall cease to accrue on the unfunded portions of the
Revolving Commitment and the FILO Commitment of such Defaulting Lender
pursuant to Section 2.12(a); (b) any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such
Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Section 2.18(b) or otherwise) or received by the Administrative Agent from a
Defaulting Lender pursuant to Section 9.08 shall be applied at such time or
times as may be determined by the Administrative Agent as follows: first, to
the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder; second, to the payment on a pro rata basis of
any amounts owing by such Defaulting Lender to any Issuing Bank hereunder;
third, to cash collateralize each Issuing Bank's LC Exposure with respect to
such Defaulting Lender in accordance with this Section; fourth, as the
Borrower Representative may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower Representative, to be held in a deposit
account and released pro rata in order to (x) satisfy such Defaulting Lender's
potential future funding obligations with respect to Loans under this
Agreement and (y) cash collateralize each Issuing Bank's future LC Exposure
with respect to such Defaulting Lender with respect to future Letters of
Credit issued under this Agreement, in accordance with this Section; sixth, to
the payment of any amounts owing to the Lenders and/or the Issuing Banks as a
result of any judgment of a court of competent jurisdiction obtained by any
Lender or any Issuing Bank against such Defaulting Lender as a result of such
Defaulting Lender's breach of its obligations under this Agreement or under
any other Loan Document; seventh, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrowers as a result of
any judgment of a court of competent jurisdiction obtained by any Borrower
against such Defaulting Lender as a result of such Defaulting Lender's breach
of its obligations under this Agreement or under any other Loan Document; and
eighth, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Loans or LC Disbursements in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such
Loans were made or the related Letters of Credit were issued at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and LC Disbursements owed
to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Loans of, or LC Disbursements owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded participations in
the Borrowers' obligations corresponding to such Defaulting Lender's LC
Exposure are held by the Lenders pro rata in accordance with the Revolving
Commitments without giving effect to clause (d) below. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post cash
collateral pursuant to this Section shall be deemed paid to and redirected by
such Defaulting Lender, and each Lender irrevocably consents hereto; (c) such
Defaulting Lender shall not have the right to vote on any issue on which
voting is required (other than to the extent expressly provided in Section
9.02(b)) and the Revolving Commitment, Revolving Exposure, FILO Commitment and
FILO Exposure of such Defaulting Lender shall not be included in determining
whether the Required Lenders, Required Revolving Lenders, Required FILO
Lenders, Supermajority FILO Lenders, Supermajority U.S.
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DB2/ 43463576.548024258.7 136 Tranche Lenders and/or Supermajority Foreign
Tranche Lenders, as applicable, have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant
to Section 9.02) or under any other Loan Document; provided, that, except as
otherwise provided in Section 9.02, this clause (c) shall not apply to the
vote of a Defaulting Lender in the case of an amendment, waiver or other
modification requiring the consent of such Lender or each Lender directly
affected thereby; (d) if any LC Exposure exists at the time a Revolving Lender
becomes a Defaulting Lender then: (i) all or any part of the LC Exposure of
such Defaulting Lender shall be reallocated among the non-Defaulting Lenders
that are Revolving Lenders in accordance with their respective Applicable
Percentages but only to the extent that such reallocation does not, as to any
non-Defaulting Lender, cause such non-Defaulting Lender's (A) Revolving
Exposure to exceed its Revolving Commitment, (B) U.S. Tranche Revolving
Exposure to exceed its U.S. Tranche Commitment, or (C) Foreign Tranche
Revolving Exposure to exceed its Foreign Tranche Commitment, as applicable;
(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the applicable Borrower shall within one (1) Business
Day following notice by the Administrative Agent cash collateralize, for the
benefit of the Issuing Banks, the Borrowers' obligations corresponding to such
Defaulting Lender's LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures
set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;
(iii) if the applicable Borrower cash collateralizes any portion of such
Defaulting Lender's LC Exposure pursuant to clause (ii) above, the Borrowers
shall not be required to pay any fees to such Defaulting Lender pursuant to
Section 2.12(b) with respect to such Defaulting Lender's LC Exposure during
the period such Defaulting Lender's LC Exposure is cash collateralized; (iv)
if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Revolving Lenders (in their
capacity as Revolving Lenders) pursuant to Sections 2.12(a) and 2.12(b) shall
be adjusted in accordance with such non-Defaulting Lenders' Applicable
Percentages; and (v) if all or any portion of such Defaulting Lender's LC
Exposure is neither reallocated nor cash collateralized pursuant to clause (i)
or (ii) above, then, without prejudice to any rights or remedies of the
Issuing Bank or any other Lender hereunder, all letter of credit fees payable
under Section 2.12(b) with respect to such Defaulting Lender's LC Exposure
shall be payable to the Issuing Bank until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and (e) so long as such
Lender is a Defaulting Lender, the Issuing Bank shall not be required to
issue, amend, renew, extend or increase any Letter of Credit, unless it is
satisfied that such Defaulting Lender's then outstanding LC Exposure will be
100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or
cash collateral will be provided by the applicable Borrower in accordance with
Section 2.20(d), and LC Exposure related to any newly issued or increased
Letter of Credit shall be allocated among non-Defaulting Lenders that are DB2/
43463576.548024258.7 137 Revolving Lenders in a manner consistent with Section
2.20(d)(i) (and such Defaulting Lender shall not participate therein). (f) If
(i) a Bankruptcy Event or a Bail-In Action with respect to the Parent of any
Lender shall occur following the date hereof and for so long as such event
shall continue or (ii) any Issuing Bank has a good faith belief that any
Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, such Issuing Bank
shall not be required to issue, amend or increase any Letter of Credit, unless
such Issuing Bank shall have entered into arrangements with the Borrowers or
such Lender, satisfactory to the Issuing Bank to defease any risk to it in
respect of such Lender hereunder. (g) In the event that each of the
Administrative Agent, the Borrowers and the Issuing Banks agrees that a
Defaulting Lender has adequately remedied all matters that caused such Lender
to be a Defaulting Lender, then the LC Exposure of the Revolving Lenders shall
be readjusted to reflect the inclusion of such Lender's Revolving Commitment
and on the date of such readjustment such Lender shall purchase at par such of
the Loans of the other Lenders as the Administrative Agent shall determine may
be necessary in order for such Lender to hold such Loans in accordance with
its Applicable Percentage. SECTION 2.21. Returned Payments. If after receipt
of any payment which is applied to the payment of all or any part of the
Obligations (including a payment effected through exercise of a right of
setoff), the Administrative Agent or any Lender is for any reason compelled to
surrender such payment or proceeds to any Person because such payment or
application of proceeds is invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, impermissible setoff, or a
diversion of trust funds, or for any other reason (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion), then the Obligations or part thereof intended to be satisfied
shall be revived and continued and this Agreement shall continue in full force
as if such payment or proceeds had not been received by the Administrative
Agent or such Lender. The provisions of this Section 2.21 shall be and remain
effective notwithstanding any contrary action which may have been taken by the
Administrative Agent or any Lender in reliance upon such payment or
application of proceeds. The provisions of this Section 2.21 shall survive the
termination of this Agreement. SECTION 2.22. Banking Services and Swap
Agreements. Each Lender or Affiliate thereof providing Banking Services for,
or having Swap Agreements with, any Loan Party or any Restricted Subsidiary of
a Loan Party shall deliver to the Administrative Agent, promptly after
entering into such Banking Services or Swap Agreements (or to the extent
existing on the Effective Date, promptly after the Effective Date), written
notice setting forth the aggregate amount of all Banking Services Obligations
and Swap Agreement Obligations of such Loan Party or Restricted Subsidiary
thereof to such Lender or Affiliate (whether matured or unmatured, absolute or
contingent). In addition, each such Lender or Affiliate thereof shall deliver
to the Administrative Agent, from time to time after a significant change
therein or upon a request therefor, a summary of the amounts due or to become
due in respect of such Banking Services Obligations and Swap Agreement
Obligations. The most recent information provided to the Administrative Agent
shall be used in determining the amounts to be applied in respect of such
Banking Services Obligations and/or Swap Agreement Obligations pursuant to
Section 2.18(b) and which tier of the waterfall, contained in Section 2.18(b),
such Banking Services Obligations and/or Swap Agreement Obligations will be
placed, and the Administrative Agent shall be under no obligation to inquire
as to the existence of any Banking Services Obligations or Swap Agreement
Obligations of which it has not been specifically advised. For the avoidance
of doubt, so long as JPMCB or its Affiliate is the Administrative Agent,
neither JPMCB nor any of its Affiliates providing Banking Services for, or
having Swap Agreements with, any Loan Party or any Subsidiary or Affiliate of
a Loan Party shall be required to
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DB2/ 43463576.548024258.7 138 provide any notice described in this Section
2.22 in respect of such Banking Services or Swap Agreements. SECTION 2.23.
Extension of Maturity Date. (a) Request for Extension. The Borrower
Representative may, by notice to the Administrative Agent (each, an "Extension
Request") not later than ninety (90) days prior to the Maturity Date then in
effect hereunder (the "Existing Maturity Date"), request that each Lender
extend the Existing Maturity Date and, as part of such Extension Request,
propose amendments to the terms hereunder and the requested deadline for
responding to such Extension Request (the "Extension Request Deadline"). (b)
Lender Elections to Extend. Each Lender, acting in its sole and individual
discretion, shall, by notice to the Administrative Agent advise the
Administrative Agent as to whether or not such Lender agrees to the applicable
Extension Request (each Lender that agrees to such Extension Request an
"Extending Lender" and each Lender that determines not to agree to such
Extension Request, a "Non-Extending Lender") promptly after making such
determination (but in any event no later than the Extension Request Deadline)
and any Lender that does not so advise the Administrative Agent on or before
the Extension Request Deadline shall be deemed to be a Non-Extending Lender.
The election of any Lender to agree to an Extension Request shall not obligate
any other Lender to so agree. (c) Additional Commitment Lenders. On the
effective date of the Extension Amendment (as defined below), the Borrowers
shall have the right to replace each Non-Extending Lender with, and add as
"Revolving Lenders" or "FILO Lenders", as applicable, under this Agreement in
place thereof, one or more assignees subject to the consent (such consent not
to be unreasonably withheld) of the Administrative Agent and the Issuing Banks
(each, an "Additional Commitment Lender") in order to obtain sufficient
commitments with respect to any Extension Request. (d) Extension Documentation.
The Existing Maturity Date shall be extended with respect to the Extending
Lenders and Additional Commitment Lenders, each Additional Commitment Lender,
if any, shall become a "Lender" and "Revolving Lender" and/or "FILO Lender",
as applicable, for all purposes of this Agreement, and any other proposed
amendments to the terms hereunder (such other proposed amendments, the "Other
Extended Loan Amendments") shall (as to the Extending Lenders and the
Additional Commitment Lenders only) become effective (subject to clause (f)
below) on the effective date of, and pursuant to, an amendment (an "Extension
Amendment") to this Agreement and, as appropriate, the other Loan Documents,
executed by the Borrowers, the other Loan Guarantors, each Extending Lender,
each Additional Commitment Lender and the Administrative Agent; provided that
(except for Other Extended Loan Amendments (i) with respect to the Applicable
Rate for the Loans made by the Extending Lenders and/or the Additional
Commitment Lenders, (ii) with respect to the available Interest Periods for
the Loans made by Extending Lenders and Additional Commitment Lenders, (iii)
approved by the Required Lenders (or such greater percentage required by
Section 9.02) or (iv) that are less favorable to the Extending Lenders and the
Additional Commitment Lenders than the terms applicable to Loans made by
Non-Extending Lenders), such Other Extended Loan Amendments shall only apply
to periods after the date on which all Non-Extending Lenders cease to be
Lenders. An Extension Amendment may, without the consent of any Non-Extending
Lenders, effect such amendments to any Loan Documents as may be necessary or
appropriate, in the opinion of the Administrative Agent, to effect the
provisions of this Section, including, for the avoidance of doubt, by amending
Sections 2.18(b) or (d) to alter the pro rata sharing of DB2/ 43463576.548024258
.7 139 payments to the Lenders by Borrowers to the extent necessary to account
for the Payment in Full of the Secured Obligations of the Non-Extending
Lenders. Upon the effectiveness thereof, the Administrative Agent shall
provide a copy of any Extension Amendment to all Lenders. (e) Repayment for
Non-Extending Lenders. On the effective date of the Extension Amendment, the
Borrowers shall prepay in full, to the extent that any Non-Extending Lenders
are to be replaced on such date by one or more Additional Commitment Lenders,
any Obligations owing to such Non-Extending Lenders on a pro rata basis, and
shall also prepay any Loans outstanding on such date to the extent necessary
to keep outstanding Loans ratable with any revised Applicable Percentages of
the respective Lenders effective as of such date. To the extent any
Non-Extending Lenders are not replaced on the effective date of the Extension
Amendment, the Borrowers shall repay in full any Obligations owing to such
Non-Extending Lenders on the Existing Maturity Date (it being understood that
notwithstanding anything contained herein to the contrary, the FILO
Commitments may be reduced in connection with any such Extension Amendment to
the extent agreed to by the Additional Commitment Lenders, the Extending
Lenders and the Loan Parties in such Extension Amendment). (f) Administrative
Agent. If the Administrative Agent is not also an Extending Lender, and the
Administrative Agent desires to resign, the Extension Amendment shall not
become effective until: (i) the Extending Lenders and Additional Commitment
Lenders have appointed a replacement administrative agent and such replacement
administrative agent has agreed in writing to assume the rights and duties of
the resigning Administrative Agent, (ii) such replacement agent executes such
documents as reasonably requested by the resigning Administrative Agent to
effect such replacement, (iii) the Borrowers, Extending Lenders, and
Additional Commitment Lenders agree in writing that the indemnification and
reimbursement provisions set forth herein for the benefit of the Administrative
Agent or any Lender shall continue in full force effect for such resigning
Administrative Agent, and (iv) all Obligations owing to such resigning
Administrative Agent are repaid in full by Borrower or cash collateralized on
terms and conditions reasonably satisfactory to such resigning Administrative
Agent. (g) Payments. For the avoidance of doubt, the provisions of Section
2.18(d) shall not apply to any payments made by Borrowers pursuant to clause
(e) of this Section 2.23 or to any upfront fees paid by Borrowers to any
Extending Lender or Additional Commitment Lender as part of such Extending
Lender's or Additional Commitment Lender's commitment with respect to an
Extension Request. (h) Conflicting Provisions. This Section 2.24 shall
supersede any provisions in Section 9.02 to the contrary. SECTION 2.24.
Judgment Currency. If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due from any Borrower or any other Loan Party
hereunder in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall
be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's main New York City office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of each Borrower and each other Loan Party in respect of any
sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency,
be discharged only to the extent that on the Business Day following receipt by
such Lender or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency such
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DB2/ 43463576.548024258.7 140 Lender or the Administrative Agent (as the case
may be) may in accordance with normal, reasonable banking procedures purchase
the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such
Lender or the Administrative Agent, as the case may be, in the specified
currency, each Borrower and each Loan Party agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any
such judgment, to indemnify such Lender or the Administrative Agent, as the
case may be, against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Lender or the
Administrative Agent, as the case may be, in the specified currency and (b)
any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 2.19, such
Lender or the Administrative Agent, as the case may be, agrees to remit such
excess to such Borrower or such Loan Party. ARTICLE III Representations and
Warranties. Each Loan Party represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each Loan Party and each Restricted
Subsidiary (a) is duly organized, incorporated, or formed, as applicable,
validly existing and in good standing (to the extent such concept exists in
the relevant jurisdictions) under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority to carry on its
business as now conducted and (c) is qualified to do business, and is in good
standing (to the extent such concept exists in the relevant jurisdictions), in
every jurisdiction where such qualification is required, except in the case of
clause (a) (other than with respect to any Loan Party), (b) or (c), where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. SECTION 3.02. Authorization;
Enforceability. (a) The execution, delivery and performance by each Loan Party
of each of the Loan Documents to which such Loan Party is a party, the
borrowing of Loans and other extensions of credit, and the use of proceeds
thereof, in each case are within each Loan Party's corporate or other
organizational powers and have been duly authorized by all necessary corporate
or other organizational actions on the part of such Loan Party and, if
required, actions by such Loan Party's equity holders, including, with respect
to each Dutch Loan Party, an unconditional, positive, written advice from any
works council in relation to the transactions contemplated by this Agreement
and any other document required for compliance with the Dutch Works Council
Act (Wet op de Ondernemingsraden). Each Loan Document to which each Loan Party
is a party has been duly executed and delivered by such Loan Party and
constitutes a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors'
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law. (b) The choice of
governing law provisions contained in this Agreement and each other Loan
Document to which any European Loan Party is a party are enforceable in the
jurisdictions where such European Loan Party is organized or incorporated or
any Collateral of such European Loan Party is located. Any judgment obtained
in connection with this Agreement or any other Loan Document in the
jurisdiction of the governing law this Agreement or such other Loan Document
will be recognized and be enforceable in the jurisdictions where such European
Loan Party is organized or any Collateral of such European Loan Party is
located, DB2/ 43463576.548024258.7 141 except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and subject to (i)
general principles of equity, regardless of whether considered in a proceeding
at equity or at law, and (ii) the matters which are set out as qualifications
or reservations as to matters of law of general applicability in the legal
opinions provided to the Administrative Agent in accordance with Section
4.01(a). SECTION 3.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance by each Loan Party of each of the Loan Documents to
which such Loan Party is a party, the borrowing of Loans and other extensions
of credit, and the use of proceeds thereof (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are
in full force and effect, (ii) for filings necessary to perfect Liens created
pursuant to the Loan Documents, and (iii) those consents, approvals,
registrations, filings or actions, the failure of which to obtain or make
would not reasonably be expected to have a Material Adverse Effect, (b) will
not violate any charter, articles or certificate of organization or formation,
bylaws, operating agreements, constitution or other organizational or
governing documents of any Loan Party, (c) will not violate any Requirement of
Law applicable to any Loan Party or any Restricted Subsidiary in a manner
which would reasonably be expected to have a Material Adverse Effect, (d) will
not violate or result in a default under any indenture, agreement or other
instrument binding upon any Loan Party or any Restricted Subsidiary or the
assets of any Loan Party or any Restricted Subsidiary in a manner which would
reasonably be expected to have a Material Adverse Effect, or give rise to a
right thereunder (other than any Loan Document) to require any payment to be
made by any Loan Party or any Restricted Subsidiary in a manner which would
reasonably be expected to have a Material Adverse Effect, and (e) will not
result in the creation or imposition of, or the requirement to create, any
Lien on any asset of any Loan Party or any Restricted Subsidiary, except Liens
permitted under Section 6.02. SECTION 3.04. Financial Condition; No Material
Adverse Change. (a) Insight has made available to the Lenders (i) the
consolidated balance sheet and consolidated statements of operations,
stockholders' equity and cash flows of Insight and its Subsidiaries as of and
for the fiscal year ended December 31, 2018, reported on by KPMG LLP,
independent public accountants, and (ii) the consolidated balance sheet and
consolidated statements of operations and cash flows of Insight and its
Subsidiaries as of and for the fiscal quarter and the portion of the fiscal
year ended June 30, 2019, certified by its Financial Officer. Such financial
statements present fairly, in all material respects, the financial position
and results of operations and cash flows of Insight and its Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii) above. (b) After the Effective Date
only, no event, change or condition has occurred that has had, or could
reasonably be expected to have, a Material Adverse Effect, since December 31,
2018. SECTION 3.05. Properties. Schedule 3.05 sets forth the address of each
real property that is owned or leased by any Loan Party as of the Third
Amendment Effective Date. Each of the Loan Parties and each of its Restricted
Subsidiaries has good and indefeasible title to, or valid leasehold or other
interests in, all of its real and personal property material to the present
conduct of its business, (i) free of all Liens other than those permitted by
Section 6.02 and (ii) other than with respect to Eligible Accounts, Eligible
Real Property, Eligible Finished Goods Inventory, Eligible Inventory and
Eligible Work-In-Process Inventory, except for defects in title that do not
materially interfere with its ability to
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DB2/ 43463576.548024258.7 142 conduct its business or to utilize such
properties and assets for their intended purposes and except where the failure
to have such title or other interests would not reasonably be expected to have
a Material Adverse Effect. Except as would not reasonably be expected to have
a Material Adverse Effect, each Loan Party and each Restricted Subsidiary
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents,
industrial designs, and other intellectual property necessary to its business
as currently conducted; and the use thereof by each Loan Party and each
Restricted Subsidiary does not infringe upon the rights of any other Person in
a manner that would reasonably be expected to have a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of any Loan Party, threatened in writing
against or affecting any Loan Party or any Restricted Subsidiary (i) that
would reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that
challenge the validity or enforceability of this Agreement or any other
material Loan Document. (b) Except for the Disclosed Matters and except as
could not reasonably be expected to result in a Material Adverse Effect, no
Loan Party or any Restricted Subsidiary (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability. (c) Since the Third Amendment Effective Date, there
has been no change in the status of the Disclosed Matters that, individually
or in the aggregate, has resulted in a Material Adverse Effect. SECTION 3.07.
Compliance with Laws and Agreements; No Default. Except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, each Loan Party and each Restricted
Subsidiary is in compliance with (a) all Requirement of Law applicable to it
or its property and (b) each charter, articles or certificate of organization
or formation, bylaws, operating agreement, constitution or other organizational
or governing document of any Loan Party or any Restricted Subsidiary. No
Default has occurred and is continuing. SECTION 3.08. Investment Company
Status. No Loan Party nor any Restricted Subsidiary is an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940. SECTION 3.09. Taxes. Each Loan Party and each Restricted Subsidiary has
timely filed or caused to be filed all Tax returns and Tax reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Loan Party or such Restricted
Subsidiary, as applicable, has set aside on its books adequate reserves or (b)
to the extent that the failure to do so could not be reasonably expected to
result in a Material Adverse Effect. No tax liens (other than those permitted
by Section 6.02) have been filed. Except, in each case, to the extent failure
to do so could not reasonably be expected to have a Material Adverse Effect,
each Canadian Loan Party or other Loan Party having employees in Canada has
withheld all employee withholdings and has made all employer contributions to
DB2/ 43463576.548024258.7 143 be withheld and made by it pursuant to
applicable law on account of any Canadian Pension Plan, employment insurance
and employee income taxes. SECTION 3.10. ERISA; Foreign Benefit Arrangement;
Canadian Pension Plan and Benefit Plan; UK Pensions. (a) No ERISA Event or
Foreign Benefit Arrangement Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events and Foreign
Benefit Arrangement Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Effect.
The present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87 or subsequent recodification thereof, as
applicable) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such
Plan, except for any such underfunding that could not reasonably be expected
to have a Material Adverse Effect. The fair market value of the assets of each
funded Foreign Benefit Arrangement, the liability of each insurer for any
Foreign Benefit Arrangement funded through insurance or the book reserve
established for any Foreign Benefit Arrangement, together with any accrued
contributions, is sufficient to procure or provide for the accrued benefit
obligations, as of the Third Amendment Effective Date, with respect to all
current and former participants in such Foreign Benefit Arrangements according
to the actuarial assumptions and valuations most recently used to account for
such obligations in accordance with applicable generally accepted accounting
principles except for any underfunding that could not reasonably be expected
to have a Material Adverse Effect. (b) The Canadian Pension Plans are duly
registered under the Canadian ITA and all other material applicable laws which
require registration. As of the Third Amendment Effective Date, none of the
Canadian Pension Plans is a Canadian Defined Benefit Plan. Except as would not
reasonably be expected to have a Material Adverse Effect, each relevant Loan
Party and each of their Restricted Subsidiaries has complied with and
performed in all of its obligations under and in respect of the Canadian
Pension Plans under the terms thereof, any funding agreements and all
applicable laws (including any fiduciary, funding, investment and
administration obligations). Except as would not reasonably be expected to
have a Material Adverse Effect, all material employer and employee payments,
contributions or premiums to be remitted, paid to or in respect of each
Canadian Pension Plan have been paid in a timely fashion in accordance with
the terms thereof, any funding agreement and all applicable laws. Except as
would not reasonably be expected to have a Material Adverse Effect, there have
been no material improper withdrawals or applications of the assets of the
Canadian Pension Plans. Except, in each such case, as would not reasonably be
expected to have a Material Adverse Effect, there has been no termination or
partial termination of any Canadian Pension Plan and, no facts or
circumstances have occurred or existed that could result, or be reasonably
anticipated to result, in the declaration of a termination or partial
termination of any Canadian Pension Plan under Requirements of Law. (c) As of
the Third Amendment Effective Date, no Loan Party nor any of its Restricted
Subsidiaries is: (i) an employer (for the purposes of sections 38 to 51 of the
Pensions Act 2004) of an occupational pension scheme which is not a money
purchase scheme (both terms as defined in the Pensions Schemes Act 1993); or
(ii) "connected" with or an "associate" (as those terms are used in sections
38 and 43 of the Pensions Act 2004) of such an employer.
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DB2/ 43463576.548024258.7 144 SECTION 3.11. Disclosure. (a) Neither the Lender
Presentation nor any of the other reports, financial statements, certificates
or other information furnished by or on behalf of any Loan Party or any
Restricted Subsidiary to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or any other Loan Document (other than
information of a general economic or industry specific nature, any projections
and other forward looking information) (as modified or supplemented by other
information so furnished) (in the case of information regarding the Target
prior to the Effective Date, to the knowledge of any Loan Party) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not materially misleading; provided that, with respect to
projected financial information contained in the materials referenced above,
the Loan Parties represent only that such information was prepared in good
faith based upon assumptions believed by such Loan Parties to be reasonable at
the time delivered (it being recognized by the Administrative Agent and
Lenders that such projections are not to be viewed as facts or a guarantee of
performance and are subject to significant uncertainties and contingencies
many of which are beyond the Loan Parties' control, that no assurance can be
given that any particular projections will be realized, that actual results
may differ from projected results and that such differences may be material).
(b) As of the Third Amendment Effective Date, to the best knowledge of any
Borrower, the information included in the Beneficial Ownership Certification
provided on or prior to the Third Amendment Effective Date to any Lender in
connection with this Agreement is true and correct in all respects. SECTION
3.12. [Reserved]. SECTION 3.13. Solvency. For the Borrowers and their
Restricted Subsidiaries, as of the Third Amendment Effective Date, (i) the sum
of the debt (including contingent liabilities) of the Borrowers and their
Restricted Subsidiaries, taken as a whole, does not exceed the fair value of
the assets (on a going concern basis) of the Borrowers and their Restricted
Subsidiaries, taken as a whole, (ii) the present fair saleable value of the
assets of the Borrowers and their Restricted Subsidiaries, taken as a whole,
is not less than the amount that will be required to pay the probable
liabilities (including contingent liabilities) of the Borrowers and their
Restricted Subsidiaries, taken as a whole, on their debts as they become
absolute and matured, (iii) the capital of the Borrowers and their Restricted
Subsidiaries, taken as a whole, is not unreasonably small in relation to the
business of the Borrowers and their Restricted Subsidiaries, taken as a whole,
contemplated as of the Third Amendment Effective Date; and (iv) the Borrowers
and their Restricted Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and
contingent liabilities) beyond their ability to pay such debt as they mature
in the ordinary course of business. For the purposes hereof, the amount of any
contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability. SECTION 3.14. Insurance. Each Loan Party maintains, and has caused
each Restricted Subsidiary to maintain, with financially sound and reputable
insurance companies, insurance on all their real and personal property in such
amounts, subject to such deductibles and self-insurance retentions and
covering such properties and risks as are prudent and customarily maintained
by companies engaged in the same or similar businesses operating in the same
or similar locations. DB2/ 43463576.548024258.7 145 SECTION 3.15.
Subsidiaries. Schedule 3.15 sets forth, in each case as of the Third Amendment
Effective Date (a) a correct and complete list of all of Insight's
Subsidiaries and (b) the jurisdiction of organization of Insight and each of
its Subsidiaries. All of the issued and outstanding Equity Interests owned by
any Loan Party in its Restricted Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly
authorized and issued and are fully paid and non-assessable. There are no
outstanding commitments or other obligations of any Loan Party to issue, and
no options, warrants or other rights of any Person to acquire, any shares of
any class of capital stock or other Equity Interests of any Loan Party, in
each case which would constitute Disqualified Equity Interests. SECTION 3.16.
Security Interest in Collateral. Subject to the last paragraph of Section 4.01
and the other exceptions and limitations set forth in the Loan Documents, the
provisions of this Agreement and the other Loan Documents create legal and
valid Liens on all of the Collateral in favor of the Administrative Agent, for
the benefit of the holders of Secured Obligations, and, when and to the extent
required by the Security Agreements, such Liens constitute perfected and
continuing Liens on the Collateral, securing the Secured Obligations and
having priority over all other Liens on the Collateral except in the case of
(a) Liens permitted by Section 6.02, to the extent such Liens would have
priority over the Liens in favor of the Administrative Agent pursuant to any
applicable law or agreement and (b) Liens perfected only by possession
(including possession of any certificate of title) to the extent the
Administrative Agent has not obtained or does not maintain possession of such
Collateral. SECTION 3.17. Employment Matters. As of the Third Amendment
Effective Date, there are no strikes, lockouts or slowdowns against any Loan
Party or any Restricted Subsidiary pending or, to the knowledge of any Loan
Party, threatened in writing that would reasonably be expected to have a
Material Adverse Effect. Except, in each such case, as would not reasonably be
expected to have a Material Adverse Effect, the hours worked by and payments
made to employees of the Loan Parties and their Restricted Subsidiaries have
not been in violation of the Fair Labor Standards Act, the Employee Standards
Act (Ontario), the Fair Work Act 2009 (Cth) of Australia or any other
applicable Federal, state, provincial, territorial, local or foreign law
dealing with such matters. Except, in each such case, as would not reasonably
be expected to have a Material Adverse Effect, all payments due from any Loan
Party or any Restricted Subsidiary, or for which any claim may be made against
any Loan Party or any Restricted Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, including on account of any
Canadian Pension Plan or Australian Pension Plans, have been paid or accrued
as a liability on the books of such Loan Party or such Restricted Subsidiary.
SECTION 3.18. Margin Regulations. No Loan Party is engaged and will not
engage, principally or as one of its important activities, in the business of
purchasing or carrying Margin Stock, or extending credit for the purpose of
purchasing or carrying Margin Stock, and no part of the proceeds of any
Borrowing or Letter of Credit hereunder will be used to buy or carry any
Margin Stock in violation of Regulation T, Regulation U or Regulation X.
SECTION 3.19. Use of Proceeds. The proceeds of the Loans have been used and
will be used, whether directly or indirectly as set forth in Section 5.08.
SECTION 3.20. [Reserved]. SECTION 3.21. Anti-Corruption Laws and Sanctions.
Each Loan Party has implemented and maintains in effect policies and
procedures designed to ensure compliance by such Loan Party, its Subsidiaries
and their respective directors, officers, employees and agents with
Anti-Corruption Laws and applicable Sanctions, and such Loan Party, its
Subsidiaries and their respective officers and directors and, to the knowledge
of such Loan Party, its employees and agents, are in compliance with
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DB2/ 43463576.548024258.7 146 Anti-Corruption Laws in all material respects
and applicable Sanctions and are not knowingly engaged in any activity that
would reasonably be expected to result in any Loan Party being designated as a
Sanctioned Person. None of (a) any Loan Party, any Subsidiary or any of their
respective directors, officers or, to the knowledge of any such Loan Party or
Subsidiary, employees, or (b) to the knowledge of any such Loan Party or
Subsidiary, any agent of such Loan Party or any Subsidiary that will act in
any capacity in connection with or benefit from the credit facility
established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit,
use of proceeds of any Borrowing or Letter of Credit or other transaction
contemplated by this Agreement or the other Loan Documents will violate
Anti-Corruption Laws or applicable Sanctions. The foregoing representations in
this Section 3.21 will not apply to any party hereto to which Council
Regulation (EC) 2271/96 (the "Blocking Regulation") applies, if and to the
extent that such representations are or would be unenforceable by or in
respect of that party pursuant to, or would otherwise result in a breach
and/or violation of, (i) any provision of the Blocking Regulation (or any law
or regulation implementing the Blocking Regulation in any member state of the
European Union) or (ii) any similar blocking or anti-boycott law in the United
Kingdom. SECTION 3.22. [Reserved]. SECTION 3.23. Common Enterprise. The
successful operation and condition of each of the Loan Parties is dependent on
the continued successful performance of the functions of the group of the Loan
Parties as a whole and the successful operation of each of the Loan Parties is
dependent on the successful performance and operation of each other Loan
Party. Each Loan Party expects to derive benefit (and its board of directors
or other governing body has determined that it may reasonably be expected to
derive benefit), directly and indirectly, from (a) successful operations of
each of the other Loan Parties and (b) the credit extended by the Lenders to
the Borrowers hereunder, both in their separate capacities and as members of
the group of companies. Each Loan Party has determined that execution,
delivery, and performance of this Agreement and any other Loan Documents to be
executed by such Loan Party is within its purpose, in furtherance of its
direct and/or indirect business interests, will be of direct and/or indirect
benefit to such Loan Party, and is in its best interest. SECTION 3.24.
Affected Financial Institutions. No Loan Party is an Affected Financial
Institution. SECTION 3.25. Plan Assets; Prohibited Transactions. No Loan Party
or any of its Restricted Subsidiaries is an entity deemed to hold "plan
assets" (within the meaning of the Plan Asset Regulations), and, subject to
the accuracy of Lenders' representations in Section 8.09, neither the
execution, delivery nor performance of the transactions contemplated under
this Agreement, including the making of any Loan and the issuance of any
Letter of Credit hereunder, will give rise to a non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code. SECTION
3.26. Centre of Main Interest and Establishments. For the purpose of the
European Union Regulation, the centre of main interest (as that term is used
in Article 3(1) of the European Union Regulation) for each Foreign Loan Party
(other than any Canadian Loan Party or Australian Loan Party) is situated in
its jurisdiction of incorporation, and it has no establishment (as that term
is used in Article 2(10) of the European Union Regulation) in any other
jurisdiction. SECTION 3.27. Fiscal Unity. With respect to each Dutch Loan
Party, it is not a member of a fiscal unity (fiscale eenheid) other than a
Dutch CIT Fiscal Unity among Dutch Loan Parties only. DB2/ 43463576.548024258.7
147 SECTION 3.28.Australian Tax Consolidation and Payment of Taxes. As of the
Third Amendment Effective Date, no Australian Loan Party is a member of an
Australian Tax Consolidated Group except for an Australian Tax Consolidated
Group where all the members are Loan Parties. SECTION 3.29. Commercial
Benefit. In relation to the Australian Loan Parties, the entry into this
Agreement and each other Loan Document to which it is a party is for such
Australian Loan Party's commercial benefit. SECTION 3.30.No Immunity. The
Australian Loan Parties do not have any right of immunity from set-off, legal
action, suit or proceeding, attachment or execution or the jurisdiction of any
court with respect to the Collateral owned by the Australian Loan Parties or
their obligations under this Agreement or the other Loan Documents to which
they are a party. ARTICLE IV Conditions SECTION 4.01. Effective Date. The
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder on the Effective Date shall not become effective
until the date on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02): (a) Credit Agreement and Other Loan
Documents. The Administrative Agent (or its counsel) shall have received (i)
from each Loan Party party hereto a counterpart of this Agreement signed on
behalf of such Loan Party (which, subject to Section 9.06(b), may include any
Electronic Signatures transmitted by facsimile, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature
page), (ii) from each Loan Party party thereto, a counterpart of each other
Loan Document signed on behalf of such Loan Party (which may include facsimile
or other electronic transmission of a signed signature page thereof) and (iii)
customary legal opinions of the U.S. and Canadian Loan Parties' counsel,
addressed to the Administrative Agent, the Issuing Banks and the Lenders,
customary legal opinions of the Administrative Agent's foreign counsel (other
than Canadian counsel), addressed to the Administrative Agent, the Issuing
Banks and the Lenders, and customary legal opinions of the Loan Parties'
foreign counsel (other than Canadian counsel), addressed to the Administrative
Agent, the Issuing Banks and the Lenders. (b) Financial Statements and
Projections. The Arrangers shall have received (i) the unaudited condensed
consolidated statements of operations, comprehensive income and cash flows of
PCM for each fiscal quarter (other than the fourth fiscal quarter in any
fiscal year) that shall have ended after March 31, 2019 and at least
forty-five (45) days prior to the Effective Date, (ii) the unaudited
consolidated balance sheet and related unaudited consolidated statements of
operations and cash flows of Insight for each fiscal quarter (other than the
fourth fiscal quarter in any fiscal year) that shall have ended after March
31, 2019 and at least forty-five (45) days prior to the Effective Date, and
(iii) pro forma consolidated balance sheet and related pro forma statements of
income and cash flows of the Borrowers as of the last day of and for the four
fiscal quarters ended on the last date for which financial statements pursuant
to clauses (i) and (ii) were most recently required (the "Pro Forma Financial
Statements"), prepared after giving effect to the Transactions as if the
Transactions had occurred as of such date (in the case of such balance sheet)
or at the beginning of such period (in the case of the statements of income
and cash flows).
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DB2/ 43463576.548024258.7 148 (c) Closing Certificates; Certified Certificate
of Incorporation; Good Standing Certificates. The Administrative Agent shall
have received (i) a certificate of each Loan Party dated the Effective Date
and executed by its Director(s), Secretary or Assistant Secretary, or other
officer or director, which shall (A) certify the resolutions of its Board of
Directors (or extracts thereof for any Australian Loan Party), members and/or
other body authorizing the execution, delivery and performance of the Loan
Documents to which it is a party, (B) identify by name and title and bear the
signatures of the officers, directors and/or authorized signatories of such
Loan Party authorized to sign the Loan Documents to which it is a party and,
in the case of each Borrower, its Financial Officers, and (C) contain
appropriate attachments, including the certificate, constitution or articles
of incorporation or organization of each Loan Party which is, for each Loan
Party other than the Canadian Loan Parties, certified by the relevant
authority of the jurisdiction of organization or incorporation of such Loan
Party (and, in the case of each European Loan Party, certified by a director)
and a true and correct copy of its memorandum and articles of association,
constitution, by-laws or operating, management or partnership agreement, or
other organizational or governing documents of such Loan Party, and (ii) (if
available in the relevant jurisdiction) a good standing certificate (or
equivalent) for each Loan Party from its jurisdiction of organization or the
substantive equivalent available in the jurisdiction of organization for each
relevant Loan Party from the appropriate governmental officer in such
jurisdiction. (d) Fees. All (i) fees required to be paid on the Effective Date
pursuant to the Fee Letters and (ii) expenses required to be paid on the
Effective Date pursuant to the Commitment Letter (in the case of this clause
(ii), for which invoices have been presented to the Borrower Representative at
least two (2) Business Days prior to the Effective Date), in each case shall
be paid by the Borrowers substantially concurrently with the initial
Borrowings hereunder on the Effective Date (or shall have been authorized to
be deducted from the proceeds of the initial Borrowings hereunder on the
Effective Date). (e) Refinancing. Substantially concurrently with the initial
borrowings under this Agreement, the Refinancing shall have been consummated.
(f) Borrowing Request. The Administrative Agent shall have received a
Borrowing Request from the Borrower Representative in accordance with Section
2.03. (g) Solvency. The Administrative Agent shall have received a solvency
certificate signed by a Financial Officer (or other officer with reasonably
equivalent responsibilities) of the Borrower Representative dated the
Effective Date substantially in the form attached hereto as Exhibit E. (h)
Borrowing Base Certificate. The Administrative Agent shall have received a
Borrowing Base Certificate which calculates the Global Borrowing Base, the
U.S. Borrowing Base, the U.K. Borrowing Base and the Dutch Borrowing Base of
the applicable Borrowers as of a period agreed to by the Administrative Agent
and the Borrower Representative. (i) Aggregate Closing Excess Availability.
After giving effect to all Borrowings to be made on the Effective Date, the
issuance of any Letters of Credit on the Effective Date and the payment of all
fees and expenses due hereunder on the Effective Date, the Aggregate Closing
Excess Availability (as defined in this Agreement immediately prior to the
Third Amendment Effective Date) shall not be less than $200,000,000. DB2/
43463576.548024258.7 149 (j) Filings, Registrations and Recordings. Subject to
the last paragraph of this Section 4.01, each document (including any Uniform
Commercial Code and PPSA financing statement) required by the Collateral
Documents and necessary to establish that the Administrative Agent will have
perfected security interests (subject to Liens permitted under Section 6.02)
in the Collateral shall have been executed by the applicable Loan Party (to
the extent applicable) and delivered to the Administrative Agent and, if
applicable, be in proper form for filing. (k) Trojan Acquisition.
Substantially concurrently with the initial borrowings under this Agreement on
the Effective Date, the Trojan Acquisition shall have been consummated in
accordance in all material respects with the terms of the Trojan Merger
Agreement, but without giving effect to any amendments, waivers or consents by
Insight that are materially adverse to the interests of the Lenders or the
Arrangers in their respective capacities as such without the consent of the
Arrangers, such consent not to be unreasonably withheld, delayed or
conditioned. (l) Material Adverse Effect. Since June 23, 2019, there shall not
have occurred a Material Adverse Effect (as defined in the Trojan Merger
Agreement). (m) Representations and Warranties. (i) The Specified Merger
Agreement Representations shall be true and correct on the Effective Date, and
(ii) the Specified Representations shall be true and correct in all material
respects on the Effective Date; provided that the foregoing materiality
qualifier shall not be applicable any representation qualified or modified by
materiality; provided, further the condition under clause (i) hereof shall be
deemed satisfied unless Insight has (or an Affiliate of Insight has) the right
(determined without regard to any notice requirement) to terminate its
obligations under the Trojan Merger Agreement or decline to consummate the
Trojan Acquisition as a result of such breach. The Administrative Agent shall
have received a certificate executed by a Responsible Officer of the Borrower
Representative certifying that the condition set forth in clause (ii) hereof
is satisfied on the Effective Date. (n) Letter of Credit Application. If a
Letter of Credit is requested to be issued on the Effective Date, the
Administrative Agent shall have received a properly completed letter of credit
application (whether standalone or pursuant to a master agreement, as
applicable) with respect thereto. (o) USA PATRIOT Act, Etc. (i) The
Administrative Agent shall have received, at least three (3) Business Days
prior to the Effective Date (or such shorter period as the Arrangers may agree
to in their sole discretion), all documentation and other information
regarding the Loan Parties required by applicable "know your customer" and
anti-money laundering rules and regulations, including, without limitation,
the USA PATRIOT Act and the Proceeds of Crime Act, in each case to the extent
reasonably requested in writing of the Loan Parties by the Administrative
Agent or any Lender at least ten (10) Business Days prior to the Effective
Date, and (ii) to the extent any Loan Party qualifies as a "legal entity
customer" under the Beneficial Ownership Regulation, at least three (3)
Business Days prior to the Effective Date (or such shorter period as the
Arrangers may agree to in their sole discretion), any Lender that has
requested, in a written notice to the Loan Parties at least ten (10) Business
Days prior to the Effective Date, a Beneficial Ownership Certification in
relation to a Loan Party shall have received such Beneficial Ownership
Certification. Notwithstanding anything to the contrary in this Agreement or
any other Loan Document, it is understood that, to the extent any Collateral
is not or cannot be provided on the Effective Date after the
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DB2/ 43463576.548024258.7 150 Loan Parties' and their Restricted Subsidiaries'
commercially reasonable efforts to do so (other than the filing of (1) Uniform
Commercial Code financing statements in respect of any U.S. Loan Party, (2)
form MR01 with the Registrar of Companies House in respect of any U.K. Loan
Party, and (3) PPSA financing statements and/or hypothecary filings in respect
of any Canadian Loan Party), the providing of such Collateral (including the
creation or perfection of any security interests on such Collateral) shall not
constitute a condition precedent to the availability of the Loans and Letters
of Credit on the Effective Date, but instead shall be required to be provided
within ninety (90) days after the Effective Date (or such longer period as
otherwise provided for in the Loan Documents or as the Administrative Agent
may agree to in its sole discretion). SECTION 4.02. Each Credit Event after
the Effective Date. Subject to Sections 1.09 and 4.03, the obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing
Bank to issue, amend, renew or extend any Letter of Credit, in each case after
the Effective Date, is subject to the satisfaction of the following
conditions: (a) The representations and warranties of the Loan Parties set
forth in the Loan Documents shall be true and correct in all material respects
with the same effect as though made on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date, and that any representation or warranty which is subject to
any materiality qualifier shall be required to be true and correct in all
respects). (b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall have occurred and
be continuing. (c) With respect to any Revolving Borrowing or the issuance,
amendment, renewal or extension of any Letter of Credit, immediately after
giving effect to any such Revolving Borrowing or the issuance, amendment,
renewal or extension of any such Letter of Credit, the Borrowers shall be in
compliance with the Revolving Exposure Limitations. (d) With respect to any
FILO Borrowing, immediately after giving effect to any such FILO Borrowing,
the U.S. Borrowers shall be in compliance with the FILO Exposure Limitations.
(e) In the case of any such Borrowing, Administrative Agent shall have
received a Borrowing Request from the Borrower Representative in accordance
with Section 2.03. Subject to Section 1.09, each Borrowing after the Effective
Date and each issuance, amendment, renewal or extension of a Letter of Credit
after the Effective Date shall be deemed to constitute a representation and
warranty by the Borrowers on the date thereof as to the matters specified in
clauses (a) through (d) of this Section. SECTION 4.03. Loans to Australian
Borrowers. Notwithstanding any provision of this Agreement to the contrary, no
Australian Borrower may request, and no Loans or other advances of credit
(including without limitation Letters of Credit) under this Agreement shall be
made to or issued to the account of, any Australian Borrower prior to the date
on which the Administrative Agent has notified the Borrower Representative in
writing that each Lender having a Foreign Tranche Commitment has satisfactorily
completed all actions required (as determined by such Lender) for such Lender
to comply, DB2/ 43463576.548024258.7 151 with respect to such Australian
Borrower, with all applicable "know your customer" rules and regulations
(including without limitation the USA PATRIOT ACT) and such Lender's internal
policies with respect to the same. Affirmative Covenants Until all of the
Secured Obligations have been Paid in Full, each Loan Party executing this
Agreement covenants and agrees with the Lenders that: SECTION 5.01. Financial
Statements; Borrowing Base and Other Information. The Borrowers will furnish
to the Administrative Agent (for distribution to each Lender): (a) within
ninety (90) days after the end of each fiscal year of Insight, its audited
consolidated balance sheet and related consolidated statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by independent public accountants of recognized
national standing (without a "going concern" or like qualification, commentary
or exception and without any qualification or exception as to the scope of
such audit other than an exception or explanatory note with respect to an
upcoming maturity date of any Indebtedness occurring within one (1) year from
the time such opinion is delivered) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of Insight and its Subsidiaries as of, or
for, the period covered thereby on a consolidated basis in accordance with
GAAP consistently applied; (b) within forty-five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of Insight, its
consolidated balance sheet and related consolidated statements of operations,
and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of such fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case
of the balance sheet, as of the end of) the previous fiscal year, all
certified by a Financial Officer of the Borrower Representative as presenting
fairly in all material respects the financial condition and results of
operations of Insight and its Subsidiaries as of, or for, the period covered
thereby on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes; (c)
[Reserved]; (d) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate (i) certifying, as to the
financial statements as required under clause (a) or (b) above, as applicable,
(ii) certifying as to whether a Default exists and, if a Default exists,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, and (iii) setting forth reasonably detailed calculations
of the Fixed Charge Coverage Ratio (whether or not a Covenant Testing Trigger
Period exists) and, if a Covenant Testing Trigger Period exists, demonstrating
whether the Loan Parties are in compliance with Section 6.12; (e) [reserved];
(f) within ninety (90) days after the beginning of each fiscal year of
Insight, a copy of the plan and forecast (including a projected consolidated
balance sheet, income statement and cash flow statement) of Insight for each
quarter of the upcoming fiscal year (the "Projections") in
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DB2/ 43463576.548024258.7 152 substantially the form provided to the
Administrative Agent prior to the Effective Date or such other form reasonably
satisfactory to the Administrative Agent; (g) within twenty-five (25) days
after the end of each calendar month (or, in the case of the first three (3)
months ending after the Effective Date, forty-five (45) days), a Borrowing
Base Certificate and supporting information in connection therewith, together
with any additional reports with respect to each Borrowing Base as the
Administrative Agent may reasonably request; provided that, during a Cash
Dominion Period, such Borrowing Base Certificate and the other documents set
forth above will be delivered within seven (7) days after the end of each
calendar week. Concurrently with the delivery of each Borrowing Base
Certificate, in respect of any Accounts of a Dutch Borrower, in order to
perfect the Administrative Agent's security interest over such Accounts prior
to the notification of the relevant Account Debtors, a supplemental deed of
pledge duly executed by the applicable Dutch Borrower pledging all Accounts
owed to it and existing on or arising directly out of a legal relationship
(rechtsverhouding) existing on the date that such Borrowing Base Certificate
is delivered in accordance with the Dutch Omnibus Pledge; (h) within
twenty-five (25) days after the end of each calendar month (or, in the case of
the first three (3) months ending after the Effective Date, forty-five (45)
days) (or, during a Cash Dominion Period, within seven (7) days of the end of
each calendar week) and at such other times as may be requested by the
Administrative Agent, as of the period then ended, all delivered electronically
in a text formatted file acceptable to the Administrative Agent in its
Permitted Discretion: (i) a reasonably detailed aging of the U.S. Borrowers'
Accounts, the Canadian Loan Guarantors' Accounts, the U.K. Borrowers'
Accounts, the Dutch Borrowers' Accounts and the Australian Borrowers' Accounts
including all invoices aged by invoice date and due date (with an explanation
of the terms offered), each prepared in a manner reasonably acceptable to the
Administrative Agent, together with a summary specifying the name, address,
and balance due for each Account Debtor; (ii) a schedule detailing the U.S.
Borrowers' Inventory, in form reasonably satisfactory to the Administrative
Agent, (A) by location (showing Inventory in transit, any Inventory located
with a third party under any consignment, bailee arrangement, or warehouse
agreement), by class (raw material, work-in-process and finished goods), by
product type, and by volume on hand, which Inventory shall be valued at the
lower of cost (determined on a first-in, first-out basis) or market and
adjusted for Reserves as the Administrative Agent has previously indicated to
the Borrower Representative are deemed by the Administrative Agent to be
appropriate in its Permitted Discretion in accordance with Section 1.10, and
(B) including a report of any variances or other results of Inventory counts
performed by the U.S. Borrowers since the last Inventory schedule (including
information regarding sales or other reductions, additions, returns, credits
issued by U.S. Borrowers and complaints and claims made against the U.S.
Borrowers); (iii) (A) a worksheet of calculations prepared by the U.S.
Borrowers to determine their Eligible Accounts, Eligible Finished Goods
Inventory, and Eligible Work-In-Process Inventory, each such worksheet
detailing the Inventory excluded from Eligible Accounts, Eligible Finished
Goods Inventory, and Eligible Work-In-Process Inventory, as applicable, and
the reason for such exclusion (B) a worksheet of calculations prepared by the
Canadian Loan Guarantors to determine their Eligible Accounts, (C) a worksheet
of calculations prepared by the U.K. Borrowers to determine DB2/ 43463576.548024
258.7 153 their Eligible Accounts, (D) a worksheet of calculations prepared by
the Dutch Borrowers to determine their Eligible Accounts and (E) a worksheet
of calculations prepared by the Australian Borrowers to determine their
Eligible Accounts, each such worksheet in clauses (B) through (E) detailing
the Accounts excluded from Eligible Accounts, and the reason for such
exclusion; and (iv) a reconciliation of the respective Borrowers' Accounts and
U.S. Borrowers' Inventory between (A) the amounts shown in the respective
Borrowers' general ledger and financial statements and the reports delivered
pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in
the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing
Base Certificate delivered pursuant to clause (g) above as of such date; (i)
within twenty-five (25) days after the end of each calendar month (or, in the
case of the first 3 months ending after the Effective Date, forty-five (45)
days) (or, during a Cash Dominion Period, within seven (7) days of the end of
each calendar week), as of the period then ended, a schedule and aging of the
U.S. Borrowers' accounts payable, the Canadian Loan Guarantors' accounts
payable, the U.K. Borrowers' accounts payable, the Australian Borrowers'
accounts payable and the Dutch Borrowers' accounts payable, in each case
delivered electronically in a text formatted file acceptable to the
Administrative Agent in its Permitted Discretion; (j) promptly in connection
with a field examination in any fiscal year and on or prior to the last day of
each fiscal year, in each case to the extent requested by the Administrative
Agent, an updated customer list for each Loan Party, which list shall state
the customer's name, mailing address and phone number, delivered electronically
in a text formatted file acceptable to the Administrative Agent in its
Permitted Discretion; (k) promptly upon the Administrative Agent's request:
(i) copies of invoices issued by the Borrowers in connection with any
Accounts, credit memos, shipping and delivery documents, and other information
related thereto; (ii) copies of purchase orders, invoices, and shipping and
delivery documents in connection with any Inventory or Equipment purchased by
any Loan Party; (iii) a schedule detailing the balance of all intercompany
accounts of the Loan Parties; and (iv) a reconciliation of the loan balance
per the Borrowers' general ledger to the loan balance under this Agreement;
(l) promptly upon the Administrative Agent's request, as of the period
specified by the Administrative Agent, the Borrowers' sales journal, cash
receipts journal (identifying trade and non-trade cash receipts) and debit
memo/credit memo journal; (m) promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and
other materials filed by any Loan Party or any Restricted
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DB2/ 43463576.548024258.7 154 Subsidiary with the SEC, or any Governmental
Authority succeeding to any or all of the functions of the SEC, or with any
national securities exchange; (n) promptly following any request therefor, (i)
such other information regarding the operations, business affairs and
financial condition of any Loan Party or any Restricted Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent (or
any Lender through the Administrative Agent) may reasonably request in
writing, and (ii) information and documentation reasonably requested by the
Administrative Agent or any Lender in writing for purposes of compliance with
applicable "know your customer" and anti-money laundering rules and
regulations, including the USA PATRIOT Act and the Beneficial Ownership
Regulation; and (o) (i) promptly upon receipt thereof, final plan texts for
all Canadian Defined Benefit Plans, (ii) promptly upon receipt thereof, each
annual information return and each actuarial report (including schedules) in
respect any Canadian Defined Benefit Plan, in each case that is required to be
filed with the applicable regulatory authorities, and (iii) promptly upon
receipt thereof, the most recent Canadian Defined Benefit Plan financial
statements that are required to be filed with the applicable regulatory
authorities. The Loan Parties acknowledge that the Administrative Agent may
periodically order, at the Borrowers' expense, certificates of good standing
or the substantive equivalent in the jurisdiction of the incorporation,
formation or organization for Loan Party from the appropriate government
office or officer in such jurisdiction. Documents required to be delivered
pursuant to Section 5.01(a), (b) or (m) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered
electronically and, if so delivered, shall be deemed to have been delivered on
the date (i) on which such materials are publicly available as posted on the
Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (ii) on
which such documents are posted on a Borrower's behalf on an Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whether made
available by the Administrative Agent); provided that: upon written request by
the Administrative Agent (or any Lender through the Administrative Agent) to
the Borrower Representative, the Borrower Representative shall deliver paper
copies of such documents to the Administrative Agent or such Lender until a
written request to cease delivering paper copies is given by the Administrative
Agent or such Lender. The Administrative Agent shall have no obligation to
request the delivery of or to maintain paper copies of the documents referred
to above, and in any event shall have no responsibility to monitor compliance
by any Borrower with any such request by a Lender for delivery, and each
Lender shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such documents to it and maintaining
its copies of such documents. SECTION 5.02. Notices of Material Events. The
Borrower Representative will furnish to the Administrative Agent (for
distribution to each Lender) written notice promptly (but in any event within
DB2/ 43463576.548024258.7 155 any time period that may be specified below)
after a Responsible Officer of any Loan Party obtains knowledge of the
following: (a) the occurrence of any Default; (b) receipt of any notice of any
investigation by a Governmental Authority or any litigation or proceeding
commenced or threatened in writing against any Loan Party or any Restricted
Subsidiary that would reasonably be expected to have a Material Adverse
Effect; (c) any Lien (other than Liens permitted under Section 6.02) against
any material portion of the Collateral; (d) any loss, damage, or destruction
to Eligible Inventory in the amount of $50,000,000 or more, whether or not
covered by insurance; (e) within two (2) Business Days of receipt thereof (or
such later date as may be agreed by the Administrative Agent), any and all
default notices received under or with respect to any leased location or
public warehouse where Eligible Inventory with a value of $50,000,000 or more
is located; (f) the occurrence of any ERISA Event or Foreign Benefit
Arrangement Event or Canadian Pension Event that, alone or together with any
other ERISA Events or Foreign Benefit Arrangement Events or Canadian Pension
Events that have occurred, would reasonably be expected to result in liability
of the Loan Parties and their Restricted Subsidiaries in an aggregate amount
exceeding $100,000,000; (g) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect; and (h) (i)
any termination or partial termination of any Canadian Pension Plan or
existence of facts or circumstances that could result, or be reasonably
anticipated to result, in the declaration of a termination or partial
termination of any Canadian Pension Plan under Requirements of Law, and (ii)
the existence of any solvency or wind-up deficiency in any Canadian Defined
Benefit Plan. Each notice delivered under this Section shall be accompanied by
a statement of a Financial Officer or other executive officer of the Borrower
Representative setting forth the details of the event or development requiring
such notice and (if applicable) any action taken or proposed to be taken with
respect thereto. Documents and information required to be delivered pursuant
to this Section 6.02 (other than Section 6.02(a)) (to the extent any such
documents or information is included in materials otherwise filed with the
SEC) may be delivered electronically and, if so delivered, shall be deemed to
have been delivered on the date (i) on which such materials are publicly
available as posted on the Electronic Data Gathering, Analysis and Retrieval
system (EDGAR); or (ii) on which such documents are posted on a Borrower's
behalf on an Internet or intranet website, if any, to which each Lender and
the Administrative Agent have access (whether a commercial, third-party
website or whether made available by the Administrative Agent); provided that
(A) upon written request by the Administrative Agent (or any Lender through
the Administrative Agent) to the Borrower Representative, the Borrower
Representative shall deliver paper copies of such documents to the
Administrative Agent or such Lender until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender,
as applicable, and (B) the Borrower Representative shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any
such documents. The Administrative Agent shall have no
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DB2/ 43463576.548024258.7 156 obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event
shall have no responsibility to monitor compliance by any Borrower with any
such request by a Lender for delivery, and each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such document to it and maintaining its copies of such
documents. SECTION 5.03. Existence; Conduct of Business. (a) Each Loan Party
will, and will cause each Restricted Subsidiary to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, qualifications, licenses, permits, franchises,
governmental authorizations, intellectual property rights, licenses and
permits material to the conduct of its business, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business
is conducted, in each case (other than the preservation of the existence of
each Loan Party) to the extent that the failure to do so would reasonably be
expected to have a Material Adverse Effect; provided that the foregoing shall
not prohibit any merger, amalgamation, consolidation, liquidation or
dissolution permitted under Section 6.03, and (b) each Loan Party will not,
and will not permit any of its Restricted Subsidiaries to, engage to any
material extent in any business if as a result thereof the general nature of
the business of the Loan Parties and their Restricted Subsidiaries taken as a
whole would be substantially changed from the general nature of the business
of the Loan Parties and their Restricted Subsidiaries taken as a whole on the
Effective Date. SECTION 5.04. Payment of Taxes. Each Loan Party will, and will
cause each Restricted Subsidiary to, pay or discharge all Taxes, before the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings and
such Loan Party or Restricted Subsidiary has set aside on its books adequate
reserves with respect thereto to the extent required by GAAP or (b) where
failure to do so would not reasonably be expected to result in a Material
Adverse Effect. SECTION 5.05. Maintenance of Properties. Each Loan Party will,
and will cause each Restricted Subsidiary to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear, casualty and condemnation excepted, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. SECTION 5.06. Books and Records; Inspection and
Appraisal Rights. Each Loan Party will, and will cause each Restricted
Subsidiary to, (a) keep proper books of record and account in which entries
full, true and correct in all material respects are made of all material
dealings and transactions in relation to its business and activities and (b)
permit any representatives designated by the Administrative Agent (including
employees of the Administrative Agent or any consultants, accountants,
lawyers, agents and appraisers retained by the Administrative Agent), upon
reasonable prior notice, to visit and inspect its properties, to conduct at
such Loan Party's premises field examinations of such Loan Party's assets,
liabilities, books and records, including examining and making extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times during
normal business hours and as often as reasonably requested; provided that the
Borrower Representative may, if it so chooses, be present at or participate in
any such discussion to the extent the Borrower Representative is available to
be so present or participate; provided, further that no Loan Party or any
Restricted Subsidiary will be required to disclose, permit the inspection,
examination or making copies of or abstracts from, or discussion of, any
document, information or other matter that (x) constitutes non-financial trade
secrets or non-financial proprietary information and is not related to
Collateral included in the Borrowing Base, (y) in respect of which disclosure
to the Administrative Agent or any Lender (or their respective representatives
or contractors) is prohibited by any Requirement of Law or any contractual
obligation of Insight or its Restricted Subsidiaries or (z) is subject to
attorney-client or similar privilege or constitutes attorney work product.
Each Loan Party acknowledges DB2/ 43463576.548024258.7 157 that the
Administrative Agent, after exercising its rights of inspection, may prepare
and distribute to the Lenders certain Reports pertaining to each Loan Party's
assets for internal use by the Administrative Agent and the Lenders. The Loan
Parties shall only be responsible for the costs of expenses of one (1) field
examination per each of the U.S., the United Kingdom, Canada, Australia and
The Netherlands during any 12-month period (in each case, exclusive of (i) the
initial field examinations performed prior to the Effective Date, (ii) with
respect to the Australian Borrowers, the initial field examination performed
after the Third Amendment Effective Date, (iii) with respect to any Accounts
owed to a U.S. Borrower by an Account Debtor located in Belgium or any other
Approved Jurisdiction and which is billed and collected in Belgium, the
initial field examination performed after the Third Amendment Effective Date
and (iv) any field examinations conducted in connection with any new asset
class being added to a Borrowing Base); provided, that the Loan Parties shall
be responsible for the costs and expenses of all field examinations conducted
while an Event of Default has occurred and is continuing. At any time that the
Administrative Agent requests, but subject to the limitations herein, each
U.S. Borrower will permit the Administrative Agent to conduct appraisals or
updates thereof of their Inventory and Eligible Real Property from an
appraiser selected and engaged by the Administrative Agent, such appraisals
and updates to include, without limitation, information required by any
applicable Requirement of Law. The Loan Parties shall only be responsible for
the costs of expenses of (x) one (1) Inventory appraisal in the U.S. during
any 12-month period (in each case, exclusive of (i) the initial appraisals
performed prior to the Effective Date and (ii) any appraisals conducted in
connection with any new asset class being added to a Borrowing Base), (y) one
(1) real property appraisal in the U.S. per location of any Eligible Real
Property prior to such Eligible Real Property being added to the U.S.
Borrowing Base and (z) any real property appraisals of Eligible Real Property
to the extent any such appraisal is required by the Administrative Agent in
order for the Administrative Agent to comply with any applicable Requirement
of Law. Additionally, there shall be no limitation on the number or frequency
of appraisals of the Inventory or Eligible Real Property of the U.S. Borrowers
if an Event of Default has occurred and is continuing, and the Loan Parties
shall be responsible for the costs and expenses of any such appraisals
conducted while an Event of Default has occurred and is continuing. SECTION
5.07. Compliance with Laws and Material Contractual Obligations. (a) Each Loan
Party will, and will cause each Restricted Subsidiary to, (i) comply with each
Requirement of Law applicable to it or its property (including without
limitation Environmental Laws), (ii) comply with each charter, articles or
certificate of organization or incorporation and bylaws, constitution or other
organizational or governing documents applicable to such Loan Party or
Restricted Subsidiary, and (iii) perform in all material respects its
obligations under material agreements to which it is a party, except, in each
case, where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. Each Loan Party
will maintain in effect and enforce policies and procedures designed to comply
with Anti-Corruption Laws and applicable Sanctions by such Loan Party, its
Subsidiaries and their respective directors, officers, employees and agents.
(b) Each Loan Party will, in a timely fashion, comply with and perform all of
its obligations under and in respect of each Canadian Pension Plan, including
under any funding agreements and all applicable laws (including any fiduciary,
funding, investment and administration obligations); and no Canadian Loan
Party shall contribute to or assume an obligation to contribute to or have any
liability under any Canadian Defined Benefit Plan (whether as a result of
merger, amalgamation, acquisition or otherwise), except, in each case, where
the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
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DB2/ 43463576.548024258.7 158 (c) In addition to and without limiting the
generality of clause (a) above, each Loan Party will, and will cause each
Restricted Subsidiary to (i) except as would not reasonably be expected to
have a Material Adverse Effect, comply with all applicable laws, statutes,
rules, regulations and orders (whether discretionary or otherwise) and
published interpretations thereunder with respect to all Foreign Benefit
Arrangements, (ii) except as would not reasonably be expected to have a
Material Adverse Effect, not take any action or fail to take action in respect
of a Foreign Benefit Arrangement the result of which would result in a
liability to a Governmental Authority; and (iii) furnish to the Administrative
Agent promptly following Administrative Agent's request such additional
information about any Foreign Benefit Arrangement concerning compliance with
this covenant, and in respect of any Foreign Benefit Arrangement which is
funded, information and applicable valuation reports about the funding of that
Foreign Benefit Arrangement, as may be reasonably requested by the
Administrative Agent. SECTION 5.08. Use of Proceeds. (a) The proceeds of the
Loans and the Letters of Credit will be used only for financing expenses
incurred by Insight and its Restricted Subsidiaries in connection with the
Transactions and the Trojan Acquisition, financing the Refinancing, and to
backstop or replace letters of credit outstanding on the Effective Date under
credit facilities no longer available to the Borrowers and their Restricted
Subsidiaries as of the Effective Date, and for financing the working capital
needs of the Borrowers and, subject to the terms hereof, their Restricted
Subsidiaries, and for other general corporate purposes of the Borrowers and,
subject to the terms hereof, their Restricted Subsidiaries. No part of the
proceeds of any Loan and no Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the regulations
of the Federal Reserve Board, including Regulations T, U and X. (b) No
Borrower will request any Borrowing or Letter of Credit, and no Borrower shall
use, and each Borrower shall procure that its Subsidiaries and its and their
respective directors, officers, employees and agents shall not use, the
proceeds of any Borrowing or Letter of Credit (i) in furtherance of an offer,
payment, promise to pay, or authorization of the payment or giving of money,
or anything else of value, to any Person in violation of any Anti-Corruption
Laws, (ii) for the purpose of funding, financing or facilitating any
activities, business or transaction of or with any Sanctioned Person, or in
any Sanctioned Country, except to the extent permitted for a Person required
to comply with Sanctions, or (iii) in any manner that would result in the
violation of any Sanctions applicable to any party hereto. The foregoing
clauses (a) and (b) of this Section 5.08 will not apply to any party hereto to
which the Blocking Regulation applies, if and to the extent that such
representations are or would be unenforceable by or in respect of that party
pursuant to, or would otherwise result in a breach and/or violation of, (x)
any provision of the Blocking Regulation (or any law or regulation
implementing the Blocking Regulation in any member state of the European
Union) or (y) any similar blocking or anti-boycott law in the United Kingdom.
Notwithstanding the foregoing, the representations given in this Section 5.08
shall not be made by nor apply to any Person that qualifies as a corporation
that is registered or incorporated under the laws of Canada or any province
thereof and that carries on business in whole or in part in Canada within the
meaning of Section 2 of the Foreign Extraterritorial Measures (United States)
Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in
so far as such representations would result in a violation of or conflict with
the Foreign Extraterritorial Measures Act (Canada) or any similar law. SECTION
5.09. [Reserved]. DB2/ 43463576.548024258.7 159 SECTION 5.10. Insurance. (a)
Each Loan Party will, and will cause each Restricted Subsidiary to, maintain
with financially sound and reputable carriers (i) insurance in such amounts
(with no greater risk retention) and against such risks and such other
hazards, as is customarily maintained by companies of established repute
engaged in the same or similar businesses operating in the same or similar
locations, and (ii) all insurance required pursuant to the Collateral
Documents. The Borrower Representative will furnish to the Administrative
Agent, promptly following the request of the Administrative Agent in writing,
information in reasonable detail as to the insurance so maintained. (b) If at
any time the improvement(s) located on the Eligible Real Property is located
in a Special Flood Hazard Area or otherwise determined by the Administrative
Agent to be in a flood zone, the Loan Parties shall obtain and thereafter
maintain flood insurance with financially sound and reputable insurance
companies (except to the extent that any insurance company insuring the
Eligible Real Property ceases to be financially sound and reputable after the
Closing Date, the Loan Parties shall promptly replace such insurance company
with a financially sound and reputable insurance company) in an amount as the
Administrative Agent and the Lenders may from time to time reasonably require
and otherwise sufficient to comply with the National Flood Insurance Program
as set forth in the Flood Laws. Following the date on which flood insurance is
required as set forth above, the Borrower Representative shall, promptly upon
request of the Administrative Agent or any Lender, deliver to the
Administrative Agent or such Lender, as applicable, evidence of such
compliance in form and substance reasonably acceptable to the Administrative
Agent or such Lender, including, without limitation, evidence of annual
renewals of such flood insurance. SECTION 5.11. Casualty and Condemnation. The
Borrower Representative will furnish to the Administrative Agent prompt
written notice of any casualty or other insured damage to any material portion
of the Collateral or the commencement of any action or proceeding for the
taking of any material portion of the Collateral under power of eminent domain
or by condemnation or similar proceeding. SECTION 5.12. [Reserved]. SECTION
5.13. [Reserved]. SECTION 5.14. Additional Collateral; Further Assurances. (a)
Subject to applicable Requirement of Law, each Loan Party will cause (x) each
Restricted Subsidiary (other than any Excluded Subsidiary) formed or acquired
after the date of this Agreement that is a Restricted Subsidiary and a Wholly
Owned Subsidiary or (y) each Unrestricted Subsidiary that is redesignated as a
Restricted Subsidiary in accordance with Section 5.15 and that is a Wholly
Owned Subsidiary (other than any Excluded Subsidiary), in each case to become
a Loan Party (and in the case of a Subsidiary organized under the laws of the
U.S., the United Kingdom, Australia or The Netherlands, at Insight's election
with the Administrative Agent's consent (such consent not to be unreasonably
withheld), a Borrower) by executing a Joinder Agreement within sixty (60) days
after the date of such formation or acquisition, or redesignation, or if
later, the date such Restricted Subsidiary becomes a Subsidiary (as such date
may be extended from time to time by the Administrative Agent in its sole
discretion). In connection therewith, the applicable Loan Party shall deliver
to the Administrative Agent all documentation and other information reasonably
requested by the Administrative Agent in writing regarding such Subsidiary as
may be required to comply with
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DB2/ 43463576.548024258.7 160 the applicable "know your customer" rules and
regulations, including the USA Patriot Act. Upon execution and delivery
thereof, each such Person (i) shall automatically become a Loan Guarantor (or
a Borrower, as applicable) hereunder and thereupon shall have all of the
rights, benefits, duties and obligations in such capacity under the Loan
Documents and (ii) will grant Liens to the Administrative Agent, for the
benefit of the Administrative Agent and the other Secured Parties, in any
property of such Loan Party which constitutes Collateral (which for
clarification, will exclude Excluded Assets), subject to the exceptions and
limitations in the Loan Documents. (b) [Reserved]. (c) Without limiting the
foregoing but subject to the limitations and restrictions contained in the
Loan Documents, each Loan Party will, and will cause each Restricted
Subsidiary to, execute and deliver, or cause to be executed and delivered, to
the Administrative Agent such documents, agreements and instruments, and will
take or cause to be taken such further actions (including the filing and
recording of financing statements and other documents and such other actions
or deliveries of the type required by Section 4.01, as applicable), which the
Administrative Agent may, from time to time, reasonably request to carry out
the terms and conditions of this Agreement and the other Loan Documents and to
ensure perfection and priority of the Liens created or intended to be created
by the Collateral Documents, all in form and substance reasonably satisfactory
to the Administrative Agent and all at the expense of the Loan Parties. (d)
[Reserved]. (e) Subject to any applicable limitations set forth herein or in
any other Loan Document, if any Wholly Owned Subsidiary ceases to be an
Excluded Subsidiary after the Effective Date, the Loan Parties will, within
sixty (60) days after the next following date on which the Borrower
Representative is required to deliver a Compliance Certificate pursuant to
Section 5.01(d) (or such longer period as may be agreed to by the
Administrative Agent in its sole discretion), cause such Subsidiary to become
a Loan Party (and in the case of a Subsidiary organized under the laws of the
U.S., the United Kingdom, Australia or The Netherlands, at Insight's election
with the Administrative Agent's consent (such consent not to be unreasonably
withheld), a Borrower) and (i) execute a Joinder Agreement and (ii) grant
Liens to the Administrative Agent, for the benefit of the Administrative Agent
and the other Secured Parties, in any property of such Loan Party which
constitutes Collateral to the extent not Excluded Assets and subject to the
exceptions and limitations in the Loan Documents, in each case, pursuant to
such documents, agreements and instruments as the Administrative Agent shall
reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent. In connection therewith, the applicable Loan Party shall
deliver to the Administrative Agent all documentation and other information
reasonably requested by the Administrative Agent in writing regarding such
Subsidiary as may be required to comply with the applicable "know your
customer" rules and regulations, including the USA Patriot Act. (f)
Notwithstanding the foregoing or anything to the contrary contained in any
Loan Document, the parties hereto acknowledge and agree that (i) in
circumstances where the Administrative Agent and Borrower Representative in
good faith determine that the cost, burden or consequences of obtaining or
perfecting a security interest in any asset that constitutes Collateral is
excessive in relation to the benefit afforded to the Secured Parties thereby,
the Administrative Agent in its Permitted Discretion may exclude such
Collateral from the creation and perfection requirements set forth in this
Agreement and the other Loan Documents, (ii) the DB2/ 43463576.548024258.7 161
Administrative Agent in its Permitted Discretion may grant extensions of time
for the creation or perfection of Liens in particular property where the
Administrative Agent and the Borrower Representative determine that such
creation or perfection cannot be accomplished without undue effort or expense
by the time or times at which it would otherwise be required by this Agreement
or any other Loan Document, (iii) no security or pledge agreements or other
Collateral Documents governed under the laws of any non-U.S. jurisdiction
shall be required (other than the laws of Canada, the United Kingdom,
Australia or The Netherlands), and the Loan Parties shall not be required to
take any actions outside the U.S. to create or perfect Liens in any assets
located or titled outside the U.S. (other than Collateral located or titled in
Canada, the United Kingdom, Australia or The Netherlands) except (x)to the
extent required as Additional Perfection Steps during a Cash Dominion Period
and (y) where amounts received in respect of Accounts of a Borrower or
Canadian Loan Guarantor (or any branch thereof) are paid into a deposit
account domiciled in a jurisdiction other than Canada, the United Kingdom,
Australia or the Netherlands and security governed by the law of that
jurisdiction and/or a Deposit Account Control Agreement governed by the law of
that jurisdiction is required for creation and/or perfection of an effective
Lien in that deposit account (in each case solely to the extent necessary to
have such Accounts qualify as Eligible Accounts), and (iv) no mortgages or
deeds of trust (or similar documentation providing Liens with respect to real
property under any non-U.S. jurisdiction) shall be required (other than in
respect of any Eligible Real Property). SECTION 5.15. Designation of
Subsidiaries. The Borrower Representative may at any time after the Effective
Date (a) designate any Subsidiary as an Unrestricted Subsidiary or (b)
redesignate any Subsidiary that was an Unrestricted Subsidiary on the
Effective Date or that was designated as an Unrestricted Subsidiary at the
time of the formation or acquisition of such Subsidiary as a Restricted
Subsidiary; provided that (i) immediately before and immediately after any
such designation, no Default or Event of Default shall have occurred and be
continuing, (ii) immediately after giving effect to such designation, the Loan
Parties shall be in compliance with the financial covenant set forth in
Section 6.12 (as if a Covenant Testing Trigger Period was in effect),
determined on a Pro Forma Basis as of the last day of the most recently ended
four fiscal quarters of the Borrower Representative for which financial
statements have been delivered pursuant to Section 4.01 (at all times prior to
the first delivery of financial statements after the Effective Date under
Section 5.01(a) or (b)) or Section 5.01(a) or 5.01(b), as applicable,
regardless whether such date of determination precedes the first test date for
such covenant, (iii) no Subsidiary of the Borrower Representative may be
designated as an Unrestricted Subsidiary for purposes of this Agreement if it
is a "Restricted Subsidiary" for the purpose of any other Material
Indebtedness of any Borrower or any of the Restricted Subsidiaries that has an
"Unrestricted Subsidiary" concept, (iv) the Payment Conditions are satisfied
after giving effect to such designation, and (v) any Subsidiary that was an
Unrestricted Subsidiary and then was designated as a Restricted Subsidiary may
not thereafter be redesignated as an Unrestricted Subsidiary. The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the
incurrence at the time of such designation of any Indebtedness or Liens of
such Subsidiary existing at such time. The designation of any Subsidiary as an
Unrestricted Subsidiary after the Effective Date shall constitute an
Investment by the Borrower Representative (or its relevant Restricted
Subsidiary) therein at the date of designation in an amount equal to the fair
market value (as determined by the Borrower Representative in good faith) of
the Borrower Representative's (or such Restricted Subsidiary's) Investment
therein. SECTION 5.16. Foreign Loan Party Cash Management Provisions.
Commencing with the date that is one (1) year after the Effective Date (or
such later date as the Administrative Agent may agree): (a) each Foreign Loan
Party (other than any Canadian Loan Party) will ensure that all of the
proceeds of their Accounts are deposited (whether directly or indirectly) into
segregated Collection Accounts (other than as agreed to by the Administrative
Agent) (which
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DB2/ 43463576.548024258.7 162 Collection Accounts shall be located in England
(in respect of the U.K. Loan Parties), The Netherlands, England or Ireland (in
respect of the Dutch Loan Parties), Australia (in respect of the Australian
Loan Parties) or any other jurisdiction satisfactory to the Administrative
Agent in its Permitted Discretion) only containing the proceeds of the
Accounts of the applicable Foreign Loan Parties (other than any Canadian Loan
Parties), in a manner that is satisfactory to the Administrative Agent in its
Permitted Discretion which Collection Accounts, for the avoidance of doubt,
shall not be used for general payment purposes and which shall not, during the
existence of a Cash Dominion Period be subject to the Cash Pooling
Arrangements; (b) the Administrative Agent shall be given sufficient access to
each relevant Collection Account to ensure that the provisions of Section
2.10(b) are capable of being complied with; and (c) subject to Section 5.22
(and any applicable time periods set forth in Schedule 5.22), each Foreign
Loan Party (other than any Canadian Loan Party) will ensure that each of its
Collection Accounts is subject to a valid and enforceable first ranking
security interest under the laws of the jurisdiction where the relevant
Collection Account is located and a Deposit Account Control Agreement. SECTION
5.17. Transfer of Accounts of Foreign Loan Parties; Notification of Account
Debtors. (a) At any time at the request of the Administrative Agent in its
Permitted Discretion during the existence of a Cash Dominion Period, each
Foreign Loan Party (other than any Canadian Loan Party) shall (i) at the
option of the Administrative Agent, promptly open new Collection Accounts in
the name of such Foreign Loan Party (other than any Canadian Loan Party) with
the Administrative Agent in England (in respect of the U.K. Loan Parties), The
Netherlands (in respect of the Dutch Loan Parties), Australia (in respect of
the Australian Loan Parties) or such other location requested by the
Administrative Agent (such new bank accounts being Collection Accounts under
and for the purposes of this Agreement (including Section 5.16(c) hereof))
(such new bank accounts with the Administrative Agent, "New JPM Collection
Accounts"); provided that if an Event of Default is continuing and the New JPM
Collection Accounts have not been established, such Foreign Loan Party (other
than any Canadian Loan Party) shall, at the option of the Administrative
Agent, use its reasonable endeavors to cause all of its Collection Accounts
(each an "Existing Collection Account") to be transferred to the name of the
Administrative Agent (but only to the extent such transfer is permitted by
applicable law and/or the internal policies and procedures of the relevant
account bank) and (ii) if new Collection Accounts have been established
pursuant to this Section (each a "New Collection Account") ensure that the
proceeds of all Accounts owing to it will promptly be re-directed to the New
Collection Accounts. Until all such proceeds have been redirected to the New
Collection Accounts, each Foreign Loan Party (other than any Canadian Loan
Party) shall cause all amounts on deposit in any Existing Collection Account
to be transferred to a New Collection Account at the end of each Business Day;
provided that if any Foreign Loan Party (other than any Canadian Loan Party)
does not instruct such re-direction or transfer, it hereby authorizes the
Administrative Agent to give such instructions on its behalf to the applicable
Account Debtors and/or the account bank holding such Existing Collection
Account (as applicable). (b) At any time at the request of the Administrative
Agent in its Permitted Discretion during the existence of (i) an Event of
Default or (ii) a Cash Dominion Period that the Administrative Agent
reasonably expects to continue, each Foreign Loan Party (other than any
Canadian Loan Party) agrees that, it shall promptly give notice to Account
Debtors of the security interest of the Administrative Agent over its Accounts
and instruct the Account Debtors DB2/ 43463576.548024258.7 163 as to the bank
account into which further payments are to be made and if such Foreign Loan
Party (other than any Canadian Loan Party) does not serve such notice, it
hereby authorizes the Administrative Agent to serve such notice on its behalf.
SECTION 5.18. U.K. Pensions. Each U.K. Loan Party shall ensure that neither it
nor any of its Restricted Subsidiaries is or has been at any time an employer
(for the purposes of sections 38 to 51 of the Pensions Act 2004) of an
occupational pension scheme which is not a money purchase scheme (both terms
as defined in the Pension Schemes Act 199) or "connected" with or an
"associate" of (as those terms are used in sections 38 or 43 of the Pensions
Act 2004) such an employer. SECTION 5.19. Dutch CIT Fiscal Unity. No Dutch
Loan Party shall become a member of a Dutch CIT Fiscal Unity with any Person
that is not a Dutch Loan Party without the prior written consent of the
Administrative Agent. SECTION 5.20. Australian Tax Matters. The Loan Parties
will ensure that any Subsidiary incorporated in Australia which is a member of
an Australian Tax Consolidated Group is also a Loan Party under this
Agreement. At all times, the "head company" (as defined in the applicable
Australian Tax Act) of any Australian Tax Consolidated Group must be an
Australian Loan Party. SECTION 5.21. Centre of Main Interest and Establishments.
No Foreign Loan Party (other than any Canadian Loan Party or Australian Loan
Party) shall, without the prior written consent of the Administrative Agent,
take any action that shall cause its centre of main interest (as that term is
used in Article 3(1) of the European Union Regulation) to be situated outside
of its jurisdiction of incorporation, or cause it to have an establishment (as
that term is used in Article 2(10) of the European Union Regulation) situated
in any other jurisdiction. SECTION 5.22. Post-Closing Matters. Each Loan
Party, as applicable, shall execute and deliver and complete the tasks set
forth on Schedule 5.22 attached hereto, in each case within time limits
specified on such schedule (or such later times as the Administrative Agent
may agree to in its sole discretion). ARTICLE VI Negative Covenants Until all
of the Secured Obligations have been Paid in Full, each Loan Party executing
this Agreement covenants and agrees with the Lenders that: SECTION 6.01.
Indebtedness. No Loan Party will, nor will it permit any Restricted Subsidiary
to, create, incur, assume or suffer to exist any Indebtedness, except: (a) the
Secured Obligations; (b) Indebtedness existing on the Third Amendment
Effective Date and set forth in Schedule 6.01 and any extensions, renewals,
refinancings and replacements of any such Indebtedness in accordance with
clause (f) hereof; (c) Indebtedness of any Loan Party to any Restricted
Subsidiary or any other Loan Party and of any Restricted Subsidiary to any
Loan Party or any other Restricted Subsidiary; provided that (i) Indebtedness
of any Restricted Subsidiary that is not a Loan Party to any Loan Party shall
be subject to the limitations set forth in Section 6.04 and (ii) Indebtedness
of any
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DB2/ 43463576.548024258.7 164 Loan Party to any Restricted Subsidiary that is
not a Loan Party shall be subordinated to the Secured Obligations on customary
terms reasonably satisfactory to the Administrative Agent; (d) Guarantees by
any Loan Party of Indebtedness of any Restricted Subsidiary or any other Loan
Party and by any Restricted Subsidiary of Indebtedness of any Loan Party or
any other Restricted Subsidiary, provided that (i) the Indebtedness so
Guaranteed is permitted by this Section 6.01, (ii) Guarantees by any Loan
Party or any other Loan Party of Indebtedness of any Subsidiary that is not a
Loan Party shall be subject to the limitations set forth in Section 6.04 and
(iii) if the Indebtedness so Guaranteed is subordinated to the Secured
Obligations, Guarantees permitted under this clause (d) shall be subordinated
to the Secured Obligations on the same terms as the Indebtedness so Guaranteed
is subordinated to the Secured Obligations; (e) Indebtedness of any Loan Party
or any Restricted Subsidiary incurred to finance the acquisition, construction
or improvement of any fixed or capital assets (whether or not constituting
purchase money Indebtedness), including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness in accordance
with clause (f) below; provided that (i) such Indebtedness is incurred prior
to or within 180 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness outstanding in reliance on this clause (e) together with any
outstanding Refinance Indebtedness in respect thereof incurred in reliance on
clause (f) below and the principal amount of any Indebtedness outstanding in
reliance on clause (i) below, shall not exceed, at the time of the incurrence
thereof, in an aggregate principal amount equal to the greater of (x)
$75,000,000 and (y) 18.75% of EBITDA as of the last day of the most recently
ended four fiscal quarter period for which financial statements have been
delivered pursuant to Section 4.01 (at all times prior to the first delivery
of financial statements after the Effective Date under Section 5.01(a) or (b))
or clause (a) or (b) of Section 5.01 as of such time; provided, however, any
financings of equipment in the ordinary course of business shall not be taken
into account to determine compliance with the limitations set forth in this
clause (e); (f) Indebtedness which represents extensions, renewals,
refinancing or replacements (such Indebtedness being so extended, renewed,
refinanced or replaced being referred to herein as the "Refinance
Indebtedness") of any of the Indebtedness described in clauses (b), (e) and
(j) hereof (such Indebtedness being referred to herein as the "Original
Indebtedness"); provided that (i) such Refinance Indebtedness does not
increase the principal amount of the Original Indebtedness (unless such excess
amount is separately permitted under this Section 6.01), (ii) any Liens
securing such Refinance Indebtedness are not extended to any additional
property of any Loan Party or any Restricted Subsidiary (unless otherwise
permitted under this Agreement), (iii) no Loan Party or any Restricted
Subsidiary that is not originally obligated with respect to repayment of such
Original Indebtedness is required to become obligated with respect to such
Refinance Indebtedness (unless otherwise permitted under this Agreement) and
(iv) such Refinance Indebtedness does not result in a shortening of the
average weighted maturity of such Original Indebtedness; (g) Indebtedness
incurred by any Loan Party or any Restricted Subsidiary in respect of letters
of credit, bank guarantees, bankers' acceptances or similar instruments issued
or created, or related to obligations or liabilities incurred, in the ordinary
course of business, including in respect of workers compensation claims,
health, disability or other employee DB2/ 43463576.548024258.7 165 benefits or
property, casualty or liability insurance or self-insurance or other
reimbursement-type obligations regarding workers compensation claims; (h)
Indebtedness (including deposits) of any Loan Party or any Restricted
Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety
bonds and similar obligations or obligations in respect of letters of credit,
bank guarantees or similar instruments related thereto, in each case provided
in the ordinary course of business; (i) Attributable Indebtedness in respect
of Sale and Leaseback Transactions permitted by Section 6.06; (j) Indebtedness
of any Person that becomes a Restricted Subsidiary after the date hereof;
provided that (i) such Indebtedness exists at the time such Person becomes a
Restricted Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Restricted Subsidiary and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (j), together with
any Refinance Indebtedness in respect thereof permitted by clause (f) above,
shall not exceed $100,000,000 at any time outstanding; (k) unsecured
Indebtedness of the Loan Parties and their Restricted Subsidiaries outstanding
under the Inventory Financing Facilities; provided that the aggregate
principal amount of Indebtedness outstanding in reliance on this clause (k),
together with the amount of any then outstanding Secured Inventory Financing,
shall not in the aggregate exceed, at the time of incurrence thereof, the
greater of (i) $600,000,000 and (ii) 125% of EBITDA as of the last day of the
most recently ended four fiscal quarter period for which financial statements
have been delivered pursuant to Section 4.01 (at all times prior to the first
delivery of financial statements after the Effective Date under Section
5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of such time; provided
that no Event of Default has occurred and is continuing at the time of
incurrence of such Indebtedness or would result from the incurrence thereof;
(l) Secured Inventory Financing Indebtedness; (m) Indebtedness in respect of
Swap Agreements permitted under Section 6.07; (n) unsecured Indebtedness of
the Loan Parties and their Restricted Subsidiaries; provided that the
aggregate principal amount of Indebtedness outstanding in reliance on this
clause (n) shall not exceed, at the time of incurrence thereof, the greater of
(i) $400,000,000800,000,000 and (ii) 100200% of EBITDA as of the last day of
the most recently ended four fiscal quarter period for which financial
statements have been delivered pursuant to Section 4.01 (at all times prior to
the first delivery of financial statements after the Effective Date under
Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of such time;
provided that (A) no such Indebtedness of any Loan Party shall be subject to
scheduled amortization (or mandatory prepayments) or have a final maturity, in
either case prior to the date occurring ninety-one (91) days following the
Maturity Date at the time of incurrence of such Indebtedness (other than (x)
any customary bridge financing that provides for automatic conversion or
exchange into Indebtedness that otherwise complies with the requirements of
this clause (n), (y) mandatory prepayments consisting of customary mandatory
(including at the election of the relevant debt holder or holders)
prepayments, repayments, repurchases or redemptions in respect of change of
control or a fundamental change (or customary offers to purchase upon a change
of control or a fundamental change), conversion or exchange of any Convertible
Debt Security in accordance with the terms and conditions set forth in the
documents evidencing such Convertible Debt Security, excess cash flow, equity
issuances, non-permitted Indebtedness and proceeds of
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DB2/ 43463576.548024258.7 166 asset sales not used (or required to be used) to
repay other Indebtedness (or customary offers to purchase with proceeds of
asset sales not used (or required to be used) to repay other Indebtedness) and
proceeds of casualty events not used (or required to be used) to repay other
Indebtedness (or customary offers to purchase with proceeds of casualty events
not used (or required to be used) to repay other Indebtedness), and customary
acceleration rights upon an event of default, and (z) an aggregate outstanding
principal amount of such Indebtedness not to exceed $25,000,000), and (B) no
Event of Default has occurred and is continuing at the time of incurrence of
such Indebtedness or would result from the incurrence thereof; (o)
Indebtedness representing deferred compensation to employees of any Loan Party
or any Restricted Subsidiary incurred in the ordinary course of business; (p)
Indebtedness constituting indemnification obligations or obligations in
respect of purchase price or other similar adjustments (including adjustments
of purchase price, incentive, non-compete, consulting or other similar
arrangements and other contingent payments, earnouts and similar obligations)
incurred in connection with the Transactions or any Permitted Acquisition or
any other Investment or any Disposition permitted under this Agreement; (q)
Cash Management Obligations incurred in the ordinary course of business and
other Indebtedness incurred in the ordinary course of business in respect of
netting services, overdraft protections and similar arrangements and
Indebtedness incurred in the ordinary course of business arising from the
honoring of a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds; (r) Indebtedness in connection
with the Cash Pooling Arrangements; (s) Indebtedness as a result of the
issuance of a declaration of joint and several liability used for the purpose
of Section 2:403 of the Dutch Civil Code (and any residual liability under
such declarations arising pursuant to Section 2:404(2) of the Dutch Civil
Code); (t) Indebtedness as a result of a fiscal unity (fiscal eenheid) for
Dutch tax purposes between or among the Dutch Loan Parties; (u) Indebtedness
owing to any insurance company in connection with the financing of any
insurance premiums permitted by such insurance company in the ordinary course
of business; (v) other Indebtedness so long as the aggregate principal amount
of such Indebtedness shall not exceed $200,000,000 at any time outstanding;
and (w) all premiums (if any), interest (including post-petition interest),
fees, expenses, charges and additional or contingent interest on obligations
described in clauses (a) through (v) above. For purposes of determining
compliance with this Section 6.01, in the event that an item of Indebtedness
(or any portion thereof) meets the criteria of more than one of the categories
of Indebtedness described in clauses (a) through (v) DB2/ 43463576.548024258.7
167 above, the Loan Parties and their Restricted Subsidiaries will be
permitted to, in their sole discretion, classify and reclassify or later
divide, classify or reclassify such item of Indebtedness (or any portion
thereof) and will only be required to include the amount and type of such
Indebtedness in one or more of the above clauses. SECTION 6.02. Liens. No Loan
Party will, nor will it permit any Restricted Subsidiary to, create, incur,
assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, except: (a) Liens created pursuant to any Loan
Document; (b) Permitted Encumbrances; (c) any Lien on any property or asset of
any Loan Party or any Restricted Subsidiary existing on the Third Amendment
Effective Date and set forth in Schedule 6.02 and any modifications,
replacements, renewals or extensions thereof; provided that (i) such Lien
shall not apply to any other property or asset of such Loan Party or
Restricted Subsidiary or any other Loan Party or Restricted Subsidiary other
than (A) after-acquired property that is affixed or incorporated into the
property covered by such Lien and (B) proceeds thereof, and (ii) to the extent
securing Indebtedness, the modification, renewal, extension or refinancing of
the Indebtedness or other obligations secured or benefited by such Liens is
permitted by Section 6.01; (d) Liens on fixed or capital assets (other than
any Eligible Real Property) acquired, constructed or improved by any Loan
Party or any Restricted Subsidiary; provided that (i) such Liens secure
Indebtedness permitted by clause (e) of Section 6.01, (ii) such Liens and the
Indebtedness secured thereby are incurred prior to or within 180 days after
such acquisition or the completion of such construction or improvement, (iii)
the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such fixed or capital assets and (iv)
such Liens shall not apply to any other property or assets of such Loan Party
or Restricted Subsidiary (other than improvements, accessions, proceeds,
dividends or distributions in respect thereof and assets fixed or appurtenant
thereto); (e) any Lien existing on any property or asset (other than
Collateral) prior to the acquisition thereof by any Loan Party or any
Restricted Subsidiary or existing on any property or asset (other than
Collateral) of any Person that becomes a Loan Party or Restricted Subsidiary
after the date hereof prior to the time such Person becomes a Loan Party or
Restricted Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Loan Party or Restricted Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets of the Loan Party or
Restricted Subsidiary or proceeds thereof and (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition or the
date such Person becomes a Loan Party or Restricted Subsidiary, as the case
may be, and extensions, renewals and replacements thereof to the extent
otherwise permitted hereunder;
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DB2/ 43463576.548024258.7 168 (f) Liens (i) of a collecting bank arising in
the ordinary course of business under Section 4-210 of the UCC in effect in
the relevant jurisdiction covering only the items being collected upon and
(ii) in favor of a banking institution arising as a matter of law encumbering
deposits (including the right of setoff) and that are within the general
parameters customary in the banking industry; (g) Liens arising out of Sale
and Leaseback Transactions permitted by Section 6.06; (h) Liens granted by a
Restricted Subsidiary that is not a Loan Party in favor of any Borrower or
another Loan Party in respect of Indebtedness owed by such Restricted
Subsidiary; (i) Liens on assets (other than Collateral) of Subsidiaries that
are not Loan Parties to secure Indebtedness of such Subsidiary; (j) Liens in
favor of the Loan Parties or any of their Restricted Subsidiaries securing
intercompany Indebtedness permitted under Section 6.01; (k) Liens arising
under the general terms and conditions (Algemene Bankvoorwaarden) of any
member of the Dutch Bankers' Association (Nederlandse Verenging van Banken) in
respect of a Collection Account maintained in the Netherlands in favour of the
relevant account bank; provided that (i) a Deposit Account Control Agreement
containing, among other things, an undertaking (A) not to exercise such Liens
or any right of set-off arising under such general terms and conditions other
than for recovery of costs directly arising out of the maintenance of such
Collection Accounts and (B) to cooperate with the transfer of the balance of
the Collection Accounts in accordance with the instructions of the
Administrative Agent, in form and substance acceptable to the Administrative
Agent has been entered into with respect to such Collection Account and (ii)
such Lien does not secure Indebtedness; (l) leases, licenses, subleases or
sublicenses granted to others that do not (A) interfere in any material
respect with the business of Insight and its Restricted Subsidiaries, taken as
a whole, or (B) secure any Indebtedness; (m) Liens (A) on cash advances or
escrow deposits in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Section 6.05 to be applied against the
purchase price for such Investment or otherwise in connection with any escrow
arrangements with respect to any such Investment or any Disposition permitted
under Section 6.05 (including any letter of intent or purchase agreement with
respect to such Investment or Disposition) or (B) consisting of an agreement
to dispose of any property in a Disposition permitted under Section 6.05, in
each case, solely to the extent such Investment or Disposition, as the case
may be, would have been permitted on the date of the creation of such Lien;
(n) any interest or title of a lessor under leases (other than leases
constituting Capital Lease Obligations) entered into by any Loan Party or any
Restricted Subsidiary in the ordinary course of business; (o) Liens arising
out of conditional sale, title retention, consignment or similar arrangements
for sale or purchase of goods by any Loan Party or any Restricted Subsidiary
in the ordinary course of business; (p) Liens that are contractual rights of
setoff (A) relating to the establishment of depository relations with banks in
the ordinary course of business not given in connection with DB2/
43463576.548024258.7 169 the incurrence of Indebtedness, (B) relating to
pooled deposit or sweep accounts to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of any Loan
Party or any Restricted Subsidiary or (C) relating to purchase orders and
other agreements entered into with customers of any Loan Party or any
Restricted Subsidiary in the ordinary course of business; (q) Liens on
insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto in the ordinary course of business; (r) Liens
placed on the Equity Interests of any non-Wholly Owned Subsidiary or joint
venture in the form of a transfer restriction, purchase option, call or
similar right of a third party joint venture partner; (s) Liens on cash or
Permitted Investments (for customary periods of time) used to defease or to
satisfy and discharge Indebtedness; provided that such defeasance or
satisfaction and discharge is not prohibited hereunder; (t) purported Liens
evidenced by the filing of precautionary UCC or similar financing statements
or notices relating solely to operating leases, consignment arrangements or
bailee arrangements entered into in the ordinary course of business; (u) Liens
in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of
property in the ordinary course of business; (v) Liens on cash and Cash
Equivalents securing Swap Obligations permitted under Section 6.07 in an
aggregate amount not to exceed $25,000,000 at any one time outstanding; or (w)
other Liens which do not secure Indebtedness for borrowed money or letters of
credit and as to which the aggregate amount of the obligations secured thereby
does not exceed $150,000,000 at any one time outstanding. SECTION 6.03.
Fundamental Changes. (a) No Loan Party will, nor will it permit any Restricted
Subsidiary to, merge into, amalgamate or consolidate with any other Person, or
permit any other Person to merge into or amalgamate or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto (or, in the case of a Limited Condition
Transaction, at the time of the entry into of the applicable Limited Condition
Acquisition Agreement) no Event of Default shall have occurred and be
continuing: (i) any Restricted Subsidiary of any U.S. Loan Party that is not a
Loan Party may merge into a U.S. Loan Party in a transaction in which a U.S.
Loan Party is the surviving entity, (ii) any U.S. Borrower can merge with any
other U.S. Borrower; provided, however, if Insight is a party to such merger,
Insight must be the surviving entity, (iii) any U.S. Loan Party (other than a
U.S. Borrower) may merge into any other U.S. Loan Party in a transaction in
which the surviving entity is a U.S. Loan Party
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DB2/ 43463576.548024258.7 170 (and, if such transaction involves a U.S.
Borrower, a U.S. Borrower is the surviving entity), (iv) any Canadian Loan
Party may amalgamate into any other Canadian Loan Party, (v) any Restricted
Subsidiary of any Canadian Loan Party that is not a Loan Party may amalgamate
with such Canadian Loan Party in a transaction in which a Canadian Loan Party
is the surviving entity, (vi) any Restricted Subsidiary of any U.K. Loan Party
that is not a Loan Party may merge into a U.K. Loan Party in a transaction in
which a U.K. Loan Party is the surviving entity, (vii) any U.K. Borrower can
merge with any other U.K. Borrower, (viii) any U.K. Loan Party (other than a
U.K. Borrower) may merge into any other U.K. Loan Party in a transaction in
which the surviving entity is a U.K. Loan Party (and, if such transaction
involves a U.K. Borrower, a U.K. Borrower is the surviving entity), (ix) any
Restricted Subsidiary of any Dutch Loan Party that is not a Loan Party may
merge into a Dutch Loan Party in a transaction in which a Dutch Loan Party is
the surviving entity, (x) any Dutch Borrower can merge with any other Dutch
Borrower, (xi) any Dutch Loan Party (other than a Dutch Borrower) may merge
into any other Dutch Loan Party in a transaction in which the surviving entity
is a Dutch Loan Party (and, if such transaction involves a Dutch Borrower, a
Dutch Borrower is the surviving entity), (xii) any Restricted Subsidiary of
any Australian Loan Party that is not a Loan Party may merge into an
Australian Loan Party in a transaction in which an Australian Loan Party is
the surviving entity, (xiii) any Australian Borrower can merge with any other
Australian Borrower, (xiv) any Australian Loan Party (other than an Australian
Borrower) may merge into any other Australian Loan Party in a transaction in
which the surviving entity is an Australian Loan Party (and, if such
transaction involves an Australian Borrower, an Australian Borrower is the
surviving entity), (xv) any Restricted Subsidiary that is not a Loan Party may
merge or consolidate or amalgamate with or into any other Restricted
Subsidiary that is not a Loan Party, (xvi) any Restricted Subsidiary may
merge, consolidate or amalgamate with any other Person in order to effect an
Investment permitted pursuant to Section 6.04 (provided, however, if a Loan
Party is a party to such merger, consolidation or DB2/ 43463576.548024258.7
171 amalgamation, a Loan Party must be the surviving entity or the surviving
entity shall become a Loan Party in compliance with Section 5.15); (xvii) a
merger, amalgamation, dissolution, liquidation or consolidation, the purpose
of which is to effect a Disposition otherwise permitted pursuant to Section
6.05 may be effected; (xviii) the Trojan Acquisition and the other
transactions contemplated by the Trojan Merger Agreement may be consummated,
and (xix) any Subsidiary that is not a Borrower or a Canadian Loan Guarantor
that has assets included in the U.S. Borrowing Base may liquidate or dissolve
if Insight determines in good faith that such liquidation or dissolution is in
the best interests of such Subsidiary and is not materially disadvantageous to
the Lenders. (b) No Loan Party will consummate a Division as the Dividing
Person, without the prior written consent of Administrative Agent. Without
limiting the foregoing, if any Loan Party that is a limited liability company
consummates a Division (with or without the prior consent of Administrative
Agent as required above), each Division Successor shall be required to comply
with the applicable obligations set forth in Section 5.14 and the other
applicable further assurances obligations set forth in the Loan Documents and
become a Loan Party under this Agreement and the other Loan Documents. (c) No
Loan Party will, nor will it permit any Restricted Subsidiary to, change its
fiscal year from the basis in effect on the Effective Date without the consent
of the Administrative Agent. SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions. No Loan Party will, nor will it permit any
Restricted Subsidiary to, form any subsidiary after the Effective Date, or
purchase, hold or acquire (including pursuant to any merger or amalgamation
with any Person that was not a Loan Party and a wholly owned Subsidiary prior
to such merger) any evidences of Indebtedness or Equity Interests or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit (whether through purchase of assets, merger or
otherwise) (each, an "Investment"), except: (a) Permitted Investments; (b) (i)
Investments in existence on the Third Amendment Effective Date and described
in Schedule 6.04 and (ii) Investments existing on the Third Amendment
Effective Date in Restricted Subsidiaries existing on the Third Amendment
Effective Date; (c) Investments (i) by any Loan Party in any other Loan Party
(including any newly created Restricted Subsidiary that becomes a Loan Party),
(ii) by any Restricted Subsidiary that is not a Loan Party in any Restricted
Subsidiary that is not a Loan Party, (iii) by any Restricted Subsidiary that
is not a Loan Party in any Loan Party, and (iv) by any Loan Party in
Restricted Subsidiaries that are not Loan Parties, provided that (A) at the
time any such Investment is made under this clause (iv) the aggregate
outstanding amount of such Investments by Loan Parties in Restricted
Subsidiaries that are not Loan Parties (together with outstanding amount of
Investments in any joint ventures permitted under Section 6.04(j)) shall not
exceed the greater of
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DB2/ 43463576.548024258.7 172 (x) $40,000,000 and (y) 10% of EBITDA as of the
last day of the most recently ended four fiscal quarter period for which
financial statements have been delivered pursuant to Section 4.01(b) (at all
times prior to the first delivery of financial statements after the Effective
Date under Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of
such time (in each case determined without regard to any write-downs or
write-offs) and such Investments by Loan Parties in Restricted Subsidiaries
that are not Loan Parties under this clause (iv) shall only be permitted so
long as no Event of Default has occurred immediately prior to giving effect to
such Investment and immediately after such Investment giving pro forma effect
to such Investment; (d) loans or advances made by a Loan Party or any
Restricted Subsidiary to its employees in the ordinary course of business up
to a maximum of $2,500,000 in the aggregate at any one time outstanding; (e)
notes payable, or stock or other securities issued by Account Debtors to a
Loan Party or any Restricted Subsidiary pursuant to negotiated agreements with
respect to settlement of such Account Debtor's Accounts in the ordinary course
of business; (f) Investments in the form of Swap Agreements permitted by
Section 6.07; (g) Investments of any Person existing at the time such Person
becomes a Restricted Subsidiary or consolidates or merges or amalgamates with
or into a Loan Party or any of the Restricted Subsidiaries (including in
connection with a Permitted Acquisition) so long as such Investments were not
made in contemplation of such Person becoming a Restricted Subsidiary or of
such consolidation or merger or amalgamation; (h) Investments received in
connection with Dispositions permitted by Section 6.05; (i) Investments
constituting deposits described in clauses (c) and (d) of the definition of
the term "Permitted Encumbrances"; (j) other Investments by any Loan Party or
Restricted Subsidiary, including, without limitation, in joint ventures in
which such Loan Party or Restricted Subsidiary owns less than a majority of
the Equity Interests of such joint venture, so long as at the time any such
Investment is made under this Section 6.04(j) the aggregate outstanding amount
of such Investments made in reliance on this Section 6.04(j) (together with
then outstanding Investments permitted under clause (iv) of Section 6.04(c))
does not exceed the greater of (x) $40,000,000 and (y) 10% of EBITDA as of the
last day of the most recently ended four fiscal quarter period for which
financial statements have been delivered pursuant to Section 4.01(b) (at all
times prior to the first delivery of financial statements after the Effective
Date under Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of
such time and such Investments by Loan Parties or Restricted Subsidiaries in
joint ventures shall only be permitted so long as no Event of Default has
occurred immediately prior to giving effect to such Investment and immediately
after such Investment giving pro forma effect to such Investment; (k)
Permitted Acquisitions; (l) Investments consisting of prepayments to suppliers
in the ordinary course of business; DB2/ 43463576.548024258.7 173 (m)
Investments consisting of extensions of trade credit in the ordinary course of
business; (n) Investments in the ordinary course of business consisting of
endorsements for collection or deposit and customary trade arrangements with
customers consistent with past practices; (o) Investments (including debt
obligations and Equity Interests) received in connection with the bankruptcy
or reorganization of suppliers and customers, from financially troubled
account debtors or in settlement of delinquent obligations of, or other
disputes with, customers and suppliers or upon the foreclosure with respect to
any secured Investment or other transfer of title with respect to any secured
Investment; (p) advances of payroll payments to employees in the ordinary
course of business; (q) to the extent that they constitute Investments,
purchases and acquisitions of inventory, supplies, materials or equipment or
purchases, acquisitions, licenses or leases of other assets, intellectual
property, or other rights, in each case in the ordinary course of business;
(r) Guarantees by Insight or any Restricted Subsidiary of the obligations of
Insight or any Restricted Subsidiary of leases or other obligations that do
not constitute Indebtedness, in each case entered into in the ordinary course
of business; (s) deposits in the ordinary course of business to secure the
performance of operating leases or utility contracts, or in connection with
obligations in respect of tenders, statutory obligations, surety, stay and
appeal bonds, bids, licenses, leases, government contracts, trade contracts,
performance and return-of-money bonds, completion guarantees and other similar
obligations (exclusive of obligations for the payment of money), in each case
incurred in the ordinary course of business; (t) Investments in the form of
Restricted Payments permitted pursuant to Section 6.08(a); and (u) so long as
the Payment Conditions are satisfied, other Investments (other than
Acquisitions) pursuant to this clause (u). For purposes of determining
compliance with this Section 6.04, in the event that a proposed Investment (or
portion thereof) meets the criteria of clauses (a) through (u) above, the Loan
Parties and the Restricted Subsidiaries will be entitled to classify or later
reclassify (based on circumstances existing on the date of such reclassification
) such Investment (or portion thereof) between such clauses (a) through (u),
in a manner that otherwise complies with this Section 6.04. For the avoidance
of doubt, an Investment entered into in reliance on clause (u) above that was
permitted at the time entered into shall continue to be permitted under such
clause notwithstanding any failure to satisfy the Payment Conditions (or any
other condition in such clause) at a later date with respect to any subsequent
Investment. For purposes of determining the amount of any Investment
outstanding, such amount shall be deemed to be the amount of such Investment
when made, purchased or acquired (without adjustment for subsequent increases
or decreases in the value of such Investment, but giving effect to any net
reduction in such Investment resulting from any repurchase, repayment or
redemption of such Investment, proceeds realized on the sale of such
Investments and taking into account any funds returned to the Person making
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DB2/ 43463576.548024258.7 174 the Investments (including amounts received
representing interest, dividends or any other return of capital)). SECTION
6.05. Asset Sales. No Loan Party will, nor will it permit any Restricted
Subsidiary to Dispose any asset, including any Equity Interest owned by it,
except: (a) Dispositions of (i) Inventory in the ordinary course of business
and (ii) used, obsolete, worn out or surplus equipment or property or assets
no longer used or usable in the business of any Loan Party or any Restricted
Subsidiary in the ordinary course of business (including allowing any
registration or application for registration of any intellectual property that
is no longer used or useful, or economically practicable to maintain, to lapse
or go abandoned or be invalidated); (b) Dispositions of assets to any Loan
Party or any Restricted Subsidiary; provided that for any such Dispositions
made by a Loan Party to a Restricted Subsidiary that is not a Loan Party
(other than Dispositions made to a Restricted Subsidiary that is not a Loan
Party which is part of a series of transactions whereby such Disposition is
ultimately made to a Loan Party), such Dispositions are either (x) on terms
and conditions substantially as favorable to such Loan Party as would be
obtained on an arm's length basis from unrelated third parties or (y) the
Payment Conditions are satisfied after giving effect to such Disposition; (c)
(i) Dispositions of Accounts in connection with the compromise, settlement or
collection thereof and (ii) Dispositions of Accounts originated in connection
with transactions consummated by a Loan Party or Restricted Subsidiary in the
ordinary course of such Loan Party's or such Restricted Subsidiary's business
consistent with past practices in which the applicable Loan Party or
Restricted Subsidiary purchases hardware, software or services (as the case
may be) from its vendors and subsequently sells or leases (as the case may be)
such hardware, software or services to its customers, and then Disposes of the
contracts for such transactions (including all Accounts arising from such
transactions) to unaffiliated third-party financial institutions or other
finance companies within fifteen (15) days (or such later date as agreed to by
the Administrative Agent in its sole discretion) after such Accounts have been
originated in connection with such transactions (it being understood and
agreed that all Accounts owing by customers of a Loan Party or Restricted
Subsidiary originated pursuant to such purchase and sale/lease transactions
with such customers and so sold to any such unaffiliated third-party financial
institutions or other finance companies shall not constitute Eligible Accounts
but any Accounts owing to a Loan Party by any such unaffiliated third-party
financial institutions or other finance companies in connection with the
Disposition of such contracts to any such unaffiliated third-party financial
institutions or other finance companies shall constitute Eligible Accounts to
the extent such Accounts so qualify pursuant to the definition of Eligible
Accounts); (d) Dispositions of Accounts not in excess of $200,000,000 during
any fiscal year in connection with any receivables financing; provided that
(i) no Event of Default has occurred and is continuing at the time of any such
Disposition or would result immediately therefrom, (ii) in the case of
Dispositions of Accounts of a Borrower or Canadian Loan Party, no Revolving
Overadvance or FILO Overadvance would result after giving effect to any such
Disposition, (iii) in the case of Dispositions of Accounts of a Borrower or
Canadian Loan Party, the applicable Account Debtor(s) owing such Accounts to
the applicable Borrower are identified by name in writing to the Administrative
Agent prior to any such Disposition, (iv) in the case of Dispositions of
Accounts of a Borrower or Canadian Loan Party, the aggregate amount of
Accounts sold, transfer or Disposed, and retained by, the applicable Borrower
in connection with each such DB2/ 43463576.548024258.7 175 receivables
financing are identified by the Borrowers in an updated Borrowing Base
Certificate delivered to the Administrative Agent giving pro forma effect to
such Disposition (as if such Disposition occurred on such date of the
Borrowing Base Certificate), and (v) in the case of Dispositions of Accounts
of a Borrower or Canadian Loan Party, to the extent an Account owing from a
particular Account Debtor is sold during any calendar month then all other
Accounts owing from such Account Debtor, whether or not such other Accounts
are sold, shall be ineligible for inclusion in the applicable Borrowing Base
during such calendar month; (e) Dispositions of (i) cash (in a manner not
otherwise prohibited by the terms of this Agreement or any other Loan
Document) and Permitted Investments and (ii) other Investments permitted by
clauses (g) and (i) of Section 6.04; (f) Sale and Leaseback Transactions
permitted by Section 6.06; (g) Dispositions resulting from any casualty or
other insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of any Loan Party
or any Restricted Subsidiary; (h) Dispositions of assets acquired in an
Acquisition or other Investment, either (i) pursuant to agreements executed in
connection with such Acquisition or Investment or (ii) for fair market value
within one (1) year after such Acquisition or Investment, in each case so long
as (A) the assets to be so sold, transferred or Disposed are not necessary or
economically desirable in connection with the business of the Loan Parties and
their Restricted Subsidiaries, and (B) the assets to be so Disposed are
readily identifiable as assets acquired pursuant to the subject Acquisition or
Investment; (i) Dispositions of assets in an aggregate fair market value (as
determined by the Borrower Representative in good faith) not to exceed
$125,000,000 (subject, in the case of Dispositions of Collateral with a value
in excess of $25,000,000 to delivery of an updated Borrowing Base Certificate
to the Administrative Agent giving pro forma effect to such Disposition (as if
such Disposition occurred on such date of the Borrowing Base Certificate));
(j) other Dispositions of assets (other than Collateral) so long as the
aggregate fair market value of all assets Disposed of in reliance upon this
clause (j) (as determined by the Borrower Representative in good faith) shall
not exceed in any fiscal year the greater of (A) $150,000,000 and (B) 37.5% of
EBITDA as of the last day of the most recently ended four fiscal quarter
period for which financial statements have been delivered pursuant to Section
4.01(b) (at all times prior to the first delivery of financial statements
after the Effective Date under Section 5.01(a) or (b)) or clause (a) or (b) of
Section 5.01 at such time; provided, however, the limitation set forth in this
clause (j) shall not apply if at least seventy-five percent (75%) of the
aggregate sales price from such Disposition shall be paid in cash or Permitted
Investments; provided that each of the following items will be deemed to be
cash or Permitted Investments for purposes of this Section 6.05(j): (1) any
liabilities of the Loan Parties or the Restricted Subsidiaries (as shown on
the most recently delivered financial statements pursuant to Section 4.01(b)
(at all times prior to the first delivery of financial statements after the
Effective Date under Section 5.01(a) or (b)) or Section 5.01(a) or (b) or in
the notes thereto), other than liabilities that are by their terms
subordinated in right of payment to the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Loan
Parties and the
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DB2/ 43463576.548024258.7 176 Restricted Subsidiaries have been validly
released by all applicable creditors in writing; and/or (2) any Designated
Non-Cash Consideration received in respect of such Disposition; provided that
the aggregate fair market value of all such Designated Non-Cash Consideration,
as determined by the Borrower Representative in good faith, taken together
with all other Designated Non-Cash Consideration received pursuant to this
clause (2) that is then outstanding, does not exceed $25,000,000 as of the
date any such Designated Non-Cash Consideration is received, with the fair
market value of each item of Designated Non-Cash Consideration being measured
at the time received and without giving effect to subsequent changes in value;
(k) sales or other issuances of Qualified Equity Interests of Insight (or
other securities or property following a merger event, reclassification or
other change of such Qualified Equity Interests of Insight) upon (i)
settlement of any Convertible Debt Security or (b) the exercise of any
Permitted Warrant; (l) Dispositions of fixed or capital assets (other than
Eligible Real Property) to the extent that such property is exchanged for
credit against the purchase price of similar replacement property; (m) leases,
subleases, licenses or sublicenses, in each case in the ordinary course of
business and that do not materially interfere with the business of Insight and
its Restricted Subsidiaries, taken as a whole; (n) Dispositions of Investments
in joint ventures to the extent required by, or made pursuant to customary
buy/sell arrangements between, the joint venture parties set forth in joint
venture arrangements and similar binding arrangements; (o) the unwinding or
other Disposition of any Swap Obligations or Cash Management Obligations; (p)
Dispositions permitted by Section 6.03, Investments permitted by Section 6.04,
Restricted Payments permitted by Section 6.08(a), and Liens permitted by
Section 6.02, in each case, other than by reference to this clause (p); and
(q) other Dispositions of assets so long as the aggregate fair market value of
all such assets Disposed of during the term of this Agreement (as determined
by the Borrower Representative in good faith) pursuant to this clause (q), as
determined as of the date of such Disposition, shall not exceed $10,000,000.
SECTION 6.06. Sale and Leaseback Transactions. No Loan Party will, nor will it
permit any Restricted Subsidiary to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property sold or
transferred (a "Sale and Leaseback Transaction"), except for any such sale of
any fixed or capital assets by any Loan Party or any Restricted Subsidiary
that is made for cash consideration in an amount not less than the fair value
of such fixed or DB2/ 43463576.548024258.7 177 capital asset and is
consummated within 180 days after such Loan Party or such Restricted
Subsidiary acquires or completes the construction of such fixed or capital
asset. SECTION 6.07. Swap Agreements. No Loan Party will, nor will it permit
any Restricted Subsidiary to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which any Borrower or
any Restricted Subsidiary has actual exposure, (b) Swap Agreements entered
into in order to effectively cap, collar or exchange interest rates (from
floating to fixed rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of any
Borrower or any Restricted Subsidiary, and (c) Permitted Convertible Debt
Hedge Transactions, and (d) Permitted Share Repurchase Transactions. SECTION
6.08. Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party
will, nor will it permit any Restricted Subsidiary to, declare or make, or
agree to declare or make, directly or indirectly, any Restricted Payment,
except (i) each of the Loan Parties and the Restricted Subsidiaries may
declare and pay dividends with respect to its Equity Interests payable solely
in additional shares of its Equity Interests (other than Disqualified Equity
Interests), (ii) any Loan Party may declare and make Restricted Payments to
any Loan Party, (iii) any Restricted Subsidiary that is not a Loan Party may
declare and make Restricted Payments to any Loan Party or other Restricted
Subsidiary, (iv) Restricted Payments made by any Loan Party to any non-Loan
Party as part of a series of transactions whereby such Restricted Payment is
ultimately made to a Loan Party, (v) the Loan Parties and the Restricted
Subsidiaries may make Restricted Payments, not exceeding $25,000,000 during
any fiscal year of Insight, pursuant to and in accordance with equity option
plans, equity award plans, or other benefit plans for management or employees
of the Loan Parties and their Restricted Subsidiaries (including non-cash
repurchases of Equity Interests deemed to occur upon the exercise of equity
awards if such Equity Interests represent a portion of the purchase price
therefor), (vi) the Loan Parties may make other Restricted Payments subject to
the satisfaction of the Payment Conditions immediately after giving effect to
such Restricted Payment, (vi) Insight and its Restricted Subsidiaries may make
cash payments in lieu of issuance of fractional shares in connection with the
conversion of any convertible Equity Interests of Insight, (viii) Insight may
make repurchases of Equity Interests of Insight (A) deemed to occur on the
exercise of stock options or warrants or similar rights if such Equity
Interests represent the delivery of a portion of the Equity Interests subject
to such options or warrants or similar rights in satisfaction of the exercise
price of such stock options, warrants or similar rights (and do not involve
cash consideration) or (B) deemed to occur in the case of payment by Insight
of withholding or similar Taxes payable by any future, present or former
officer, director, employee, consultant or agent (or heirs or other permitted
transferees thereof), in connection with the exercise or vesting of stock
options, restricted stock warrants or similar rights (in lieu of a portion of
the shares that otherwise would be issued upon such exercise or vesting), (ix)
Insight may redeem, repurchase, acquire or retire any of its outstanding
Qualified Equity Interests upon the exercise, termination or unwind of any
Permitted Convertible Debt Hedge Transaction or upon conversion, exchange,
repurchase, redemption or retirement of any Convertible Debt Security, (x)
Insight may make Restricted Payments (A) in connection with (including,
without limitation, purchases of) any Permitted Convertible Debt Hedge
Transaction, (B) to settle any Permitted Warrant (I) by delivery of its
Qualified Equity Interests, (II) by set-off against the related Permitted Bond
Hedge or (III) with cash payments in an aggregate amount not to exceed the
aggregate amount of any payments and/or deliveries received pursuant to the
settlement of any related Permitted Bond Hedge (subject to any increase in the
price of the underlying common stock since the settlement of such Permitted
Bond Hedge), (C) to terminate any Permitted Warrant or (D) to terminate any
Permitted Share Repurchase Transaction, and (xii) Insight may make cash
payments in lieu of the
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DB2/ 43463576.548024258.7 178 issuance of fractional shares in connection with
the exercise, conversion or settlement of any Convertible Debt Hedge
Transaction or cash payments on any Convertible Debt Security in accordance
with the terms and conditions set forth in the documents evidencing such
Convertible Debt Security. (b) (i) No Loan Party will, nor will it permit any
Restricted Subsidiary to, make, directly or indirectly, any voluntary
prepayment or other voluntary distribution (whether in cash, securities or
other property) of or in respect of principal of any Junior Indebtedness
(other than intercompany Indebtedness), or any voluntary payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Junior
Indebtedness (other than intercompany Indebtedness), except (A) refinancings
of Junior Indebtedness to the extent permitted by Section 6.01, (B) the
non-cash payment, purchase, redemption, defeasance or other acquisition or
retirement of any Junior Indebtedness in exchange for Equity Interests of
Insight and (C) any payment or other distribution in respect of Junior
Indebtedness so long as the Payment Conditions are satisfied immediately after
giving effect to such payment or other distribution, other than payments in
respect of the Junior Indebtedness prohibited by subordination provisions
thereof, and (ii) no Loan Party will make, directly or indirectly, any payment
or distribution (whether in cash, securities or other property) of or in
respect of any amount of any intercompany Indebtedness that is Junior
Indebtedness if prohibited by the subordination provisions thereof. SECTION
6.09. Transactions with Affiliates. No Loan Party will, nor will it permit any
Restricted Subsidiary to, engage in any transactions with, any of its
Affiliates, except (a) transactions on terms and conditions substantially as
favorable to such Loan Party or such Restricted Subsidiary as would be
obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among Insight and any of the Restricted Subsidiaries,
(c) any Investment permitted by Section 6.04, (d) any Indebtedness permitted
under Section 6.01(c), (e) any Restricted Payment permitted by Section
6.08(a), (f) the payment of reasonable fees and indemnities to directors of
any Loan Party or any Restricted Subsidiary, and compensation and employee
benefit arrangements paid to, and indemnities provided for the benefit of,
directors, officers or employees of the Loan Parties or their Restricted
Subsidiaries in the ordinary course of business, (g) any issuances of
securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements, stock options
and stock ownership plans approved by a Loan Party's or a Restricted
Subsidiary's board of directors (or equivalent governing body), (h) the
Transactions, (i) issuances of Equity Interests of Insight or any Restricted
Subsidiary to the extent not prohibited by this Agreement and (j) transactions
for consideration less than $5,000,000 in the aggregate for all such
transactions after the Third Amendment Effective Date. SECTION 6.10.
Restrictive Agreements. No Loan Party will, nor will it permit any Restricted
Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of such Loan Party or any Restricted Subsidiary
to create, incur or permit to exist any Lien upon any of its property or
assets in favor of the Administrative Agent to secure the Secured Obligations,
or (b) the ability of any Restricted Subsidiary to pay dividends or other
distributions with respect to any of its Equity Interests or to make or repay
loans or advances to any Loan Party or any other Restricted Subsidiary or to
Guarantee Indebtedness of any Loan Party or any other Restricted Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by any Requirement of Law or by any Loan Document, (ii) the foregoing
shall not apply to restrictions and conditions existing on the date hereof
identified on Schedule 6.10 (but shall apply to any extension or renewal of,
or any amendment or modification expanding the scope of, any such restriction
or condition), (iii) the foregoing shall not apply to customary DB2/
43463576.548024258.7 179 restrictions and conditions contained in agreements
relating to the Disposition of a Restricted Subsidiary or assets pending such
Disposition, provided that such restrictions and conditions apply only to the
Restricted Subsidiary or assets to be sold and such Disposition is permitted
hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the
property or assets securing such Indebtedness, (v) clause (a) of the foregoing
shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof; (vi) the foregoing shall not apply to
restrictions imposed by customary provisions in partnership agreements,
limited liability company organizational governance documents, joint venture
agreements and other similar agreements that restrict the transfer of
ownership interests in such partnership, limited liability company, joint
venture or similar Person; (vii) the foregoing shall not apply to restrictions
in any one or more agreements governing Indebtedness entered into after the
Effective Date that contain encumbrances and other restrictions that are,
taken as a whole, in the good faith judgment of Insight, (i) no more
restrictive in any material respect with respect to the Loan Parties than
those encumbrances and other restrictions that are in effect pursuant to this
Agreement, and (ii) no more disadvantageous in any material respect, taken as
a whole, to the Lenders than the Loan Documents; (viii) the foregoing shall
not apply to restrictions that are binding on a Subsidiary at the time such
Subsidiary first becomes a Subsidiary, as applicable, so long as such
restrictions were not entered into in contemplation of such Person becoming
such a Subsidiary; and (ix) clause (a) of the foregoing shall not apply to
negative pledges and restrictions on Liens in favor of any holder of
Indebtedness permitted under Section 6.01 but solely to the extent any
negative pledge relates to the property financed by or secured by such
Indebtedness. SECTION 6.11. Amendment of Material Documents. No Loan Party
will, nor will it permit any Restricted Subsidiary to, amend, modify or waive
any of its rights under (a) any agreement relating to any Junior Indebtedness
to the extent that any such amendment, modification or waiver, either
individually or in the aggregate, could reasonably be expected to be
materially adverse to the interests of the Lenders or that is prohibited by
the applicable subordination agreement governing such Junior Indebtedness, or
(b) the charter, articles or certificate of incorporation or organization,
by-laws, operating, management or partnership agreement or other organizational
or governing document of such Loan Party to the extent that any such
amendment, modification or waiver, either individually or in the aggregate,
could reasonably be expected to be materially adverse to the interests of the
Lenders. SECTION 6.12. Fixed Charge Coverage Ratio. During any Covenant
Testing Trigger Period, the Borrowers will not permit the Fixed Charge
Coverage Ratio to be less than 1.0 to 1.0 when measured, on a trailing four
fiscal quarter basis, as of the last day of: (a) the last fiscal quarter
immediately preceding the occurrence of such Covenant Testing Trigger Period
for which financial statements have been delivered to the Administrative Agent
pursuant to clause (a) or (b) of Section 5.01, and (b) each fiscal quarter for
which financial statements have been delivered to the Administrative Agent
pursuant to clause (a) or (b) of Section 5.01 during such Covenant Testing
Trigger Period. SECTION 6.13. [Reserved]. SECTION 6.14. Specified Zero Balance
Accounts. No Loan Party shall cause any Specified Zero Balance Account to (i)
cease to be a zero-balance account unless a Deposit Account Control Agreement
covering such account has been executed and delivered by the applicable Loan
Party (or its Affiliate, as applicable), or (ii) be swept to any deposit
account other than a deposit account of a Loan Party that is subject to a
Deposit Account Control Agreement.
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DB2/ 43463576.548024258.7 180 ARTICLE VII Events of Default If any of the
following events ("Events of Default") shall occur: (a) the Borrowers shall
fail to pay any principal of any Loan or any reimbursement obligation in
respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise; (b) the Borrowers shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement 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 (5) Business Days; (c) any
representation or warranty made or deemed made by or on behalf of any Loan
Party or any Subsidiary in, or in connection with, this Agreement or any other
Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any other Loan Document or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, shall prove to have been materially incorrect
when made or deemed made; (d) any Loan Party shall fail to observe or perform
any covenant, condition or agreement contained in (i) Section 5.02(a), 5.03
(with respect to a Loan Party's existence only), 5.08, 5.16, 5.17 or 5.22, or
in Article VI, (ii) Article VII of the U.S. Security Agreement or (iii)
Article VII of the Canadian Security Agreement; (e) any Loan Party shall fail
to observe or perform any covenant, condition or agree- ment contained in this
Agreement (other than those which constitute a default under another Section
of this Article) or any other Loan Document, and such failure shall continue
unremedied for a period of (i) five (5) days after the earlier of any Loan
Party's knowledge of such breach or notice thereof from the Administrative
Agent (which notice will be given at the Administrative Agent's election or at
the request of the Required Lenders) if such breach relates to terms or
provisions of Section 5.01, 5.02 (other than Section 5.02(a)), 5.06, or 5.10
of this Agreement, or (ii) thirty (30) days after the earlier of any Loan
Party's knowledge of such breach or notice thereof from the Administrative
Agent (which notice will be given at the Administrative Agent's election or at
the request of the Required Lenders) if such breach relates to terms or
provisions of any other Section of this Agreement or any other Loan Document;
(f) any Loan Party or Restricted Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any applicable grace period); (g) any breach or
default with respect to any Material Indebtedness occurs by any Loan Party or
Material Subsidiary, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit
the holder or holders of that Material Indebtedness (or a trustee on behalf of
such holder or holders) to cause, that Material Indebtedness to become or be
declared due and payable (or redeemable) prior to its stated maturity;
provided that this clause (g) shall not apply to secured Indebtedness that
DB2/ 43463576.548024258.7 181 becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness to the extent
such Disposition is permitted by Section 6.05; (h) (i) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed
seeking (A) liquidation, administration, receivership, reorganization or other
relief in respect of a Loan Party (other than an Australian Loan Party) or any
Material Subsidiary (other than a Material Subsidiary incorporated in
Australia) or its debts, or of a substantial part of its assets, under any
Insolvency Laws now or hereafter in effect or (B) the appointment of a
liquidator, Controller, receiver, receiver and manager, interim receiver,
monitor, trustee, administrator, custodian, sequestrator, conservator or
similar official for any Loan Party (other than an Australian Loan Party) or
Material Subsidiary (other than a Material Subsidiary incorporated in
Australia) or for a substantial part of its assets, and, in any such case,
such proceeding or petition, (I) in the case of any U.K. Loan Party or
Material Subsidiary incorporated in England and Wales, is not frivolous or
vexatious and is discharged, and shall continue unstayed or undismissed within
twenty-one (21) days of commencement, and (II) in the case of each other Loan
Party (other than an Australian Loan Party) or Material Subsidiary (other than
a Material Subsidiary incorporated in Australia), shall continue undismissed
for sixty (60) days or an order or decree approving or ordering any of the
foregoing shall be entered or (ii) an involuntary proceeding shall be
commenced or an involuntary petition shall be filed seeking (A) liquidation,
administration, receivership, reorganization or other relief in respect of an
Australian Loan Party or any Material Subsidiary incorporated in Australia or
its debts, or of a substantial part of its assets, under any Insolvency Laws
now or hereafter in effect or (B) the appointment of a liquidator, Controller,
receiver, receiver and manager, interim receiver, monitor, trustee,
administrator, custodian, sequestrator, conservator or similar official for
any Australian Loan Party or Material Subsidiary incorporated in Australia or
for a substantial part of its assets, except on application made to a court
for the purpose of appointing such a Person referenced in this clause (ii)(B)
which is disputed by that Australian Loan Party or Material Subsidiary acting
diligently and in good faith and is dismissed within 30 days; (i) any Loan
Party or Material Subsidiary shall (i) voluntarily commence any proceeding or
file any petition or proposal seeking liquidation, administration,
reorganization or other relief under any Insolvency Laws now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of an administrator,
liquidator, Controller, receiver, receiver and manager, interim receiver,
monitor, trustee, custodian, sequestrator, conservator or similar official for
such Loan Party or Material Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any
of the foregoing; (j) any Loan Party shall become unable, admit in writing its
inability, or publicly declare its intention not to, or fail generally to pay
its debts as they become due; (k) one or more judgments for the payment of
money in an aggregate amount in excess of $50,000,000 (to the extent not paid
or covered by a valid and binding policy of insurance (as to which a solvent
insurance company has not denied coverage)) shall be rendered against any Loan
Party, any Material Subsidiary or any combination thereof and the same shall
remain undischarged for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed;
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DB2/ 43463576.548024258.7 182 (l) (i) an ERISA Event or Canadian Pension Event
shall have occurred that, when taken together with all other ERISA Events and
Canadian Pension Events that have occurred could reasonably be expected to
result in liability of the Borrowers and their Restricted Subsidiaries in an
aggregate amount exceeding $50,000,000 for all periods, or (ii) any Lien
arises (save for contribution amounts not yet due) in connection with any
Canadian Pension Plan that could reasonably be expected to have a Material
Adverse Effect; (m) a Change in Control shall occur; (n) except, in each case,
as expressly contemplated by the Loan Guaranty, the Loan Guaranty shall fail
to remain in full force or effect or any action shall be taken by any Person
other than any Secured Party to discontinue or to reasonably assert the
invalidity or unenforceability of the Loan Guaranty, or any Loan Guarantor
shall deny that it has any further liability under the Loan Guaranty to which
it is a party, or shall give notice to such effect, including, but not limited
to notice of termination delivered pursuant to Section 10.08; (o) except as
permitted by the terms of any Collateral Document, (i) any Collateral Document
shall for any reason fail to create a valid security interest in any
Collateral (with respect to Collateral having an aggregate book value in
excess of $50,000,000) purported to be covered thereby, or (ii) any Lien
securing any Secured Obligation shall cease to be a perfected, first priority
Lien (with respect to Collateral having an aggregate book value in excess of
$50,000,000) or such Lien (with respect to Collateral having an aggregate book
value in excess of $50,000,000) shall not have the priority contemplated by
the Loan Documents, in each case except (A) as a result of the Disposition of
the applicable Collateral in a transaction permitted under the Loan Documents,
(B) any action taken by the Administrative Agent to release any such Lien in
compliance with the provisions of this Agreement or any other Loan Documents,
or (C) as a result of the Administrative Agent's failure to maintain
possession of any stock certificates or other instruments delivered to it
under and pursuant to a Loan Document; (p) except as expressly contemplated by
any Collateral Document and except as the result of an action or failure to
act on the part of the Administrative Agent, the U.S. Security Agreement,
Canadian Security Agreement, the Dutch Omnibus Pledge, the U.K. Debenture, the
Australian Collateral Documents or any other material Collateral Document
shall fail to remain in full force or effect or any action shall be taken by
any Person other than any Secured Party to discontinue or to reasonably assert
the invalidity or unenforceability of any Collateral Document; (q) except as
expressly contemplated by any Loan Document, any material provision of any
material Loan Document for any reason ceases to be valid, binding and
enforceable in accordance with its terms (or any Loan Party shall challenge
the enforceability of any Loan Document or shall assert in writing, or engage
in any action or inaction that evidences its assertion, that any provision of
any of the Loan Documents has ceased to be or otherwise is not valid, binding
and enforceable in accordance with its terms); or (r) in the case of a U.K.
Loan Party, a moratorium is declared in respect of any Indebtedness of such
U.K. Loan Party (it being understood and agreed that, if a moratorium occurs,
the ending of the moratorium will not remedy any Event of Default caused by
that moratorium). then, and in every such event (other than an event with
respect to the Borrowers described in clause (h) or (i) of this Article), and
at any time thereafter during the continuance of such event, the Administrative
Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower DB2/ 43463576.548024258.7 183 Representative, take any or all of the
following actions, at the same or different times: (i) terminate the Revolving
Commitments and the FILO Commitments, whereupon the Revolving Commitments and
the FILO Commitments shall terminate immediately, (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, but ratably as among
the Classes of Loans and the Loans of each Class at the time outstanding, in
which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees (including, for the avoidance of doubt, any break funding payments) and
other obligations of the Borrowers accrued hereunder and under any other Loan
Document, shall become due and payable immediately, in each case without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers, and (iii) require cash collateral for the LC
Exposure in accordance with Section 2.06(j) hereof; and in the case of any
event with respect to the Borrowers described in clause (h) or (i) of this
Article, the Revolving Commitments and the FILO Commitments shall
automatically terminate and the principal of the Loans then outstanding and
the cash collateral for the LC Exposure, together with accrued interest
thereon and all fees (including, for the avoidance of doubt, any break funding
payments) and other obligations of the Borrowers accrued hereunder and under
any other Loan Document, shall automatically become due and payable, in each
case without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, increase the rate of interest
applicable to the Loans and other Obligations as set forth in this Agreement
and exercise any rights and remedies provided to the Administrative Agent
under the Loan Documents or at law or equity, including all remedies provided
under the UCC and the Australian PPSA. ARTICLE VIII The Administrative Agent
SECTION 8.01. Authorization and Action. (a) Each Lender, on behalf of itself
and any of its Affiliates that are Secured Parties and each Issuing Bank
hereby irrevocably appoints the entity named as Administrative Agent in the
heading of this Agreement and its successors and assigns to serve as the
administrative agent and collateral agent under the Loan Documents and each
Lender and each Issuing Bank authorizes the Administrative Agent to take such
actions as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent under such agreements and to exercise such powers as are reasonably
incidental thereto. In addition, to the extent required under the laws of any
jurisdiction other than within the United States, each Lender and each Issuing
Bank hereby grants to the Administrative Agent any required powers of attorney
to execute and enforce any Collateral Document governed by the laws of such
jurisdiction on such Lender's or such Issuing Bank's behalf. Each Lender and
each Issuing Bank exempts the Administrative Agent from the restrictions
pursuant to Section 181 Civil Code (Burgerliches Gesetzbuch) and similar
restrictions applicable to it pursuant to any other applicable law, in each
case to the extent legally possible to such Lender and Issuing Bank. Any
Lender and any Issuing Bank which cannot grant such exemption shall notify the
Administrative Agent accordingly and, upon request of the Administrative
Agent, either act in accordance with the terms of this Agreement and/or any
other Loan Document as required pursuant to this Agreement and/or such other
Loan Document or grant a special power of attorney to a party acting on its
behalf, in a manner that is not prohibited pursuant to Section 181 of the
German Civil Code (Burgerliches Gesetzbuch) and/or any other applicable laws.
Without limiting the foregoing, each Lender and each Issuing Bank hereby
authorizes the Administrative Agent to execute and deliver, and to perform its
obligations under, each of the
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DB2/ 43463576.548024258.7 184 Loan Documents to which the Administrative Agent
is a party, and to exercise all rights, powers and remedies that the
Administrative Agent may have under such Loan Documents. Without limiting the
powers of the Administrative Agent, for the purposes of holding any hypothec
granted pursuant to the laws of the Province of Quebec to secure the prompt
payment and performance of any and all Secured Obligations by any Loan Party,
each of the Secured Parties hereby irrevocably appoints and authorizes the
Administrative Agent and, to the extent necessary, ratifies the appointment
and authorization of the Administrative Agent, to act as the hypothecary
representative of the present and future Lenders as contemplated under Article
2692 of the Civil Code of Quebec (in such capacity, the "Attorney"), and to
enter into, to take and to hold on their behalf, and for their benefit, any
hypothec, and to exercise such powers and duties that are conferred upon the
Attorney under any related deed of hypothec and applicable law. The Attorney
shall: (a) have the sole and exclusive right and authority to exercise, except
as may be otherwise specifically restricted by the terms hereof, all rights
and remedies given to the Attorney pursuant to any such deed of hypothec and
applicable law, and (b) benefit from and be subject to all provisions hereof
with respect to the Administrative Agent mutatis mutandis, including, without
limitation, all such provisions with respect to the liability or responsibility
to and indemnification by the Secured Parties and the Loan Parties. Any person
who becomes a Secured Party shall, by its execution of an Assignment and
Acceptance Agreement, be deemed to have consented to and confirmed the
Attorney as the person acting as hypothecary representative holding the
aforesaid hypothecs as aforesaid and to have ratified, as of the date it
becomes a Secured Party, all actions taken by the Attorney in such capacity.
The substitution of the Administrative Agent pursuant to the provisions of
this Section 8.01 also constitute the substitution of the Attorney. (b) As to
any matters not expressly provided for herein and in the other Loan Documents
(including enforcement or collection), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the written instructions of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary,
pursuant to the terms in the Loan Documents), and, unless and until revoked in
writing, such instructions shall be binding upon each Lender and each Issuing
Bank; provided, however, that the Administrative Agent shall not be required
to take any action that (i) the Administrative Agent in good faith believes
exposes it to liability unless the Administrative Agent receives an
indemnification and is exculpated in a manner satisfactory to it from the
Lenders and the Issuing Banks with respect to such action or (ii) is contrary
to this Agreement or any other Loan Document or applicable law, including any
action that may be in violation of the automatic stay under any requirement of
law relating to bankruptcy, insolvency or reorganization or relief of debtors
or that may effect a forfeiture, modification or termination of property of a
Defaulting Lender in violation of any requirement of law relating to
bankruptcy, insolvency or reorganization or relief of debtors; provided,
further, that the Administrative Agent may seek clarification or direction
from the Required Lenders prior to the exercise of any such instructed action
and may refrain from acting until such clarification or direction has been
provided. Except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Borrower,
any other Loan Party, any Subsidiary or any Affiliate of any of the foregoing
that is communicated to or obtained by the Person serving as Administrative
Agent or any of its Affiliates in any capacity. Nothing in this Agreement
shall require the Administrative Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers if it shall
have reasonable DB2/ 43463576.548024258.7 185 grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. (c) In performing its functions and duties
hereunder and under the other Loan Documents, the Administrative Agent is
acting solely on behalf of the Lenders and the Issuing Banks (except in
limited circumstances expressly provided for herein relating to the
maintenance of the Register), and its duties are entirely mechanical and
administrative in nature. Without limiting the generality of the foregoing:
(i) the Administrative Agent does not assume and shall not be deemed to have
assumed any obligation or duty or any other relationship as the agent,
fiduciary or trustee of or for any Lender, any Issuing Bank, any other Secured
Party or holder of any other obligation other than as expressly set forth
herein and in the other Loan Documents, regardless of whether a Default or an
Event of Default has occurred and is continuing (and it is understood and
agreed that the use of the term "agent" (or any similar term) herein or in any
other Loan Document with reference to the Administrative Agent is not intended
to connote any fiduciary duty or other implied (or express) obligations
arising under agency doctrine of any applicable law, and that such term is
used as a matter of market custom and is intended to create or reflect only an
administrative relationship between contracting parties); additionally, each
Lender agrees that it will not assert any claim against the Administrative
Agent based on an alleged breach of fiduciary duty by the Administrative Agent
in connection with this Agreement and/or the transactions contemplated hereby;
(ii) where the Administrative Agent is required or deemed to act as a trustee
(including in its capacity as the Australian Security Trustee) in respect of
any Collateral over which a security interest has been created pursuant to a
Loan Document expressed to be governed by the laws of any jurisdiction other
than the U.S. or any of its states or territories, or is required or deemed
hold any Collateral "on trust" pursuant to the foregoing, the obligations and
liabilities of the Administrative Agent to the Secured Parties in its capacity
as trustee shall be excluded to the fullest extent permitted by applicable
law; (iii) to the extent that English law is applicable to the duties of the
Administrative Agent under any of the Loan Documents, Section 1 of the Trustee
Act 2000 of the United Kingdom shall not apply to the duties of the
Administrative Agent in relation to the trusts constituted by that Loan
Document; where there are inconsistencies between the Trustee Act 1925 or the
Trustee Act 2000 of the United Kingdom and the provisions of this Agreement or
such Loan Document, the provisions of this Agreement shall, to the extent
permitted by applicable law, prevail and, in the case of any inconsistency
with the Trustee Act 2000 of the United Kingdom, the provisions of this
Agreement shall constitute a restriction or exclusion for the purposes of that
Act; and (iv) nothing in this Agreement or any Loan Document shall require the
Administrative Agent to account to any Lender for any sum or the profit
element of any sum received by the Administrative Agent for its own account.
(d) The Administrative Agent may perform any of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any of their
respective duties and exercise their respective rights and
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DB2/ 43463576.548024258.7 186 powers through their respective Related Parties.
The exculpatory provisions of this Article shall apply 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 pursuant to this Agreement. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any sub agent except to the extent that a court of competent jurisdiction
determines in a final and non-appealable judgment that the Administrative
Agent acted with gross negligence or willful misconduct in the selection of
such sub-agent. (e) None of any Co-Syndication Agent, any Arranger or any
Co-Documentation Agent shall have obligations or duties whatsoever in such
capacity under this Agreement or any other Loan Document and shall incur no
liability hereunder or thereunder in such capacity, but all such persons shall
have the benefit of the indemnities provided for hereunder. (f) In case of the
pendency of any proceeding with respect to any Loan Party under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, the Administrative Agent (irrespective of whether the
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on any Borrower) shall be entitled and empowered
(but not obligated) by intervention in such proceeding or otherwise: (i) to
file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, LC Disbursements and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the
Issuing Banks and the Administrative Agent (including any claim under Sections
2.12, 2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and (ii)
to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such proceeding is hereby authorized by each Lender, each Issuing Bank and
each other Secured Party to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, the Issuing Banks or the other Secured
Parties, to pay to the Administrative Agent any amount due to it, in its
capacity as the Administrative Agent, under the Loan Documents (including
under Section 9.03). Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf
of any Lender or Issuing Bank any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any
Lender or Issuing Bank or to authorize the Administrative Agent to vote in
respect of the claim of any Lender or Issuing Bank in any such proceeding. (g)
The provisions of this Article are solely for the benefit of the Administrative
Agent, the Lenders and the Issuing Banks, and, except solely to the extent of
the Borrowers' right to consent pursuant to and subject to the conditions set
forth in this Article, no Borrower nor any Subsidiary, or any of their
respective Affiliates, shall have any rights as a third party beneficiary
under any such provisions. Each Secured Party, whether or not a party hereto,
will be deemed, by its acceptance of the benefits of the Collateral and of the
Guarantees of the Secured Obligations provided under the Loan Documents, to
have agreed to the provisions of this Article. DB2/ 43463576.548024258.7 187
SECTION 8.02. Administrative Agent's Reliance, Limitation of Liability, Etc.
(a) Neither the Administrative Agent nor any of its Related Parties shall be
(i) liable for any action taken or omitted to be taken by such party, the
Administrative Agent or any of its Related Parties under or in connection with
this Agreement or the other Loan Documents (x) with the consent of or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan
Documents) or (y) in the absence of its own gross negligence or willful
misconduct (such absence to be presumed unless otherwise determined by a court
of competent jurisdiction by a final and non-appealable judgment) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document (including, for the avoidance of doubt, in connection with the
Administrative Agent's reliance on any Electronic Signature transmitted by
facsimile, emailed pdf, or any other electronic means that reproduces an image
of an actual executed signature page) or for any failure of any Loan Party to
perform its obligations hereunder or thereunder. (b) The Administrative Agent
shall be deemed not to have knowledge of any (i) notice of any of the events
or circumstances set forth or described in Section 5.02 unless and until
written notice thereof stating that it is a "notice under Section 5.02" in
respect of this Agreement and identifying the specific clause under said
Section is given to the Administrative Agent by the Borrower Representative,
or (ii) notice of any Default or Event of Default unless and until written
notice thereof (stating that it is a "notice of Default" or a "notice of an
Event of Default") is given to the Administrative Agent by the Borrower
Representative, a Lender or the Issuing Bank. Further, the Administrative
Agent 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 any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document or the occurrence of any Default
or Event of Default, (iv) the sufficiency, validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items (which on their face purport to be such items) expressly required to be
delivered to the Administrative Agent or satisfaction of any condition that
expressly refers to the matters described therein being acceptable or
satisfactory to the Administrative Agent, or (vi) the creation, perfection or
priority of Liens on the Collateral. Notwithstanding anything herein to the
contrary, the Administrative Agent shall not be liable for, or be responsible
for any claim, liability, loss, cost or expense suffered by any Borrower, any
other Loan Party, any Subsidiary, any Lender or any Issuing Bank as a result
of, any determination of the Combined Exposure, Revolving Exposure, FILO
Exposure, the U.S. Tranche Revolving Exposure, the Foreign Tranche Revolving
Exposure, any of the component amounts thereof or any portion thereof
attributable to each Lender or Issuing Bank, or any exchange rate or Dollar
Equivalent. (c) Without limiting the foregoing, the Administrative Agent (i)
may treat the payee of any promissory note as its holder until such promissory
note has been assigned in accordance with Section 9.04, (ii) may rely on the
Register to the extent set forth in Section 9.04(b), (iii) may
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DB2/ 43463576.548024258.7 188 consult with legal counsel (including counsel to
the Borrowers), independent public accountants and other experts selected by
it, and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts, (iv) makes no warranty or representation to any Lender or Issuing
Bank and shall not be responsible to any Lender or Issuing Bank for any
statements, warranties or representations made by or on behalf of any Loan
Party in connection with this Agreement or any other Loan Document, (v) in
determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Lender or an Issuing Bank, may presume that such
condition is satisfactory to such Lender or Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such
Lender or Issuing Bank sufficiently in advance of the making of such Loan or
the issuance of such Letter of Credit and (vi) shall be entitled to rely on,
and shall incur no liability under or in respect of this Agreement or any
other Loan Document by acting upon, any notice, consent, certificate or other
instrument or writing (which writing may be a fax, any electronic message,
Internet or intranet website posting or other distribution) or any statement
made to it orally or by telephone and believed by it to be genuine and signed
or sent or otherwise authenticated by the proper party or parties (whether or
not such Person in fact meets the requirements set forth in the Loan Documents
for being the maker thereof). SECTION 8.03. Posting of Communications. (a) The
Borrowers agree that the Administrative Agent may, but shall not be obligated
to, make any Communications available to the Lenders and the Issuing Bank by
posting the Communications on IntraLinks", DebtDomain, SyndTrak, ClearPar or
any other electronic system chosen by the Administrative Agent to be its
electronic transmission system (the "Approved Electronic Platform"). (b)
Although the Approved Electronic Platform and its primary web portal are
secured with generally-applicable security procedures and policies implemented
or modified by the Administrative Agent from time to time (including, as of
the Effective Date, a user ID/password authorization system) and the Approved
Electronic Platform is secured through a per-deal authorization method whereby
each user may access the Approved Electronic Platform only on a deal-by-deal
basis, each of the Lenders, the Issuing Bank and each Borrower acknowledges
and agrees that the distribution of material through an electronic medium is
not necessarily secure, that the Administrative Agent is not responsible for
approving or vetting the representatives or contacts of any Lender that are
added to the Approved Electronic Platform, and that there may be confidentiality
and other risks associated with such distribution. Each of the Lenders, the
Issuing Banks and each Borrower hereby approves distribution of the
Communications through the Approved Electronic Platform and understands and
assumes the risks of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM
AND THE COMMUNICATIONS ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE APPLICABLE
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED
ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE DB2/ 43463576.548024258.7 189
APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER,
ANY CO-SYNDICATION AGENT, ANY CO-DOCUMENTATION AGENT, OR ANY OF THEIR
RESPECTIVE RELATED PARTIES (COLLECTIVELY, "APPLICABLE PARTIES") HAVE ANY
LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON
OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY'S OR THE ADMINISTRATIVE
AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED
ELECTRONIC PLATFORM, EXCEPT, WITH RESPECT TO AN APPLICABLE PARTY, TO THE
EXTENT OF DIRECT OR ACTUAL DAMAGES AS ARE DETERMINED BY A COURT OF COMPETENT
JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SUCH APPLICABLE PARTY;
PROVIDED THAT ANY COMMUNICATION TO ANY LENDERS, PROSPECTIVE LENDERS,
PARTICIPANTS OR PROSPECTIVE PARTICIPANTS OR, TO THE EXTENT SUCH DISCLOSURE IS
OTHERWISE PERMITTED, TO ANY OTHER PERSON THROUGH THE APPROVED ELECTRONIC
PLATFORM SHALL BE MADE SUBJECT TO THE ACKNOWLEDGEMENT AND ACCEPTANCE BY SUCH
PERSON THAT SUCH COMMUNICATION IS BEING DISSEMINATED OR DISCLOSED ON A
CONFIDENTIAL BASIS (ON TERMS SUBSTANTIALLY THE SAME AS SET FORTH IN SECTION
9.12 OR OTHERWISE REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT AND THE
BORROWER REPRESENTATIVE), WHICH SHALL IN ANY EVENT REQUIRE "CLICK THROUGH" OR
OTHER AFFIRMATIVE ACTIONS ON THE PART OF THE RECIPIENT TO ACCESS SUCH
COMMUNICATION. "Communications" means, collectively, any notice, demand,
communication, information, document or other material provided by or on
behalf of any Loan Party pursuant to any Loan Document or the transactions
contemplated therein which is distributed by the Administrative Agent, any
Lender or Issuing Bank by means of electronic communications pursuant to this
Section, including through an Approved Electronic Platform. (d) Each Lender
and Issuing Bank agrees that notice to it (as provided in the next sentence)
specifying that Communications have been posted to the Approved Electronic
Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender and Issuing Bank agrees
(i) to notify the Administrative Agent in writing (which could be in the form
of electronic communication) from time to time of such Lender's or Issuing
Bank's (as applicable) email address to which the foregoing notice may be sent
by electronic transmission and (ii) that the foregoing notice may be sent to
such email address. (e) Each of the Lenders, Issuing Bank and each Borrower
agrees that the Administrative Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Communications on the
Approved Electronic Platform in accordance with the Administrative Agent's
generally applicable document retention procedures and policies.
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DB2/ 43463576.548024258.7 190 (f) Nothing herein shall prejudice the right of
the Administrative Agent, any Lender or Issuing Bank to give any notice or
other communication pursuant to any Loan Document in any other manner
specified in such Loan Document. SECTION 8.04. The Administrative Agent
Individually. With respect to its Revolving Commitment, FILO Commitment, Loans
and Letters of Credit, the Person serving as the Administrative Agent shall
have and may exercise the same rights and powers hereunder and is subject to
the same obligations and liabilities as and to the extent set forth herein for
any other Lender or Issuing Bank, as the case may be. The terms "Issuing
Bank", "Lenders", "Required Lenders" and any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity as a Lender, Issuing Bank or as one of the Required
Lenders, as applicable. The Person serving as the Administrative Agent 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
engage in any kind of banking, trust or other business with, any Loan Party,
any Subsidiary or any Affiliate of any of the foregoing as if such Person was
not acting as the Administrative Agent and without any duty to account
therefor to the Lenders or the Issuing Bank. SECTION 8.05. Successor
Administrative Agent. (a) The Administrative Agent may resign at any time by
giving thirty (30) days' prior written notice thereof to the Lenders, the
Issuing Bank and the Borrower Representative, whether or not a successor
Administrative Agent has been appointed. Upon any such resignation, (i) the
Administrative Agent may appoint one of its Affiliates acting through an
office in the European Union as a successor Administrative Agent and (ii) if
the Administrative Agent has not appointed one of its Affiliates acting
through an office in the European Union as a successor Administrative Agent
pursuant to clause (i) above, the Required Lenders shall have the right, to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York or an Affiliate of any such bank. In either case (other than if the
Administrative Agent appoints one of its Affiliates acting through an office
in the European Union as a successor Administrative Agent pursuant to clause
(i) above), such appointment shall be subject to the prior written approval of
the Borrower Representative (which approval may not be unreasonably withheld
and shall not be required while an Event of Default has occurred and is
continuing). Upon the acceptance of any appointment as Administrative Agent by
a successor Administrative Agent, such successor Administrative Agent shall
succeed to and become vested with, all the rights, powers, privileges and
duties of the retiring Administrative Agent. Upon the acceptance of
appointment as Administrative Agent by a successor Administrative Agent, the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. Prior to any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the retiring Administrative Agent shall take such action as may be reasonably
necessary to assign to the successor Administrative Agent its rights as
Administrative Agent under the Loan Documents. (b) Notwithstanding paragraph
(a) of this Section, in the event no successor Administrative Agent shall have
been so appointed and shall have accepted such appointment within thirty (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 the Lenders, the Issuing Bank and the Borrowers,
whereupon, on the date of effectiveness of such DB2/ 43463576.548024258.7 191
resignation stated in such notice, (i) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents; provided that, solely for purposes of maintaining any security
interest granted to the Administrative Agent under any Collateral Document for
the benefit of the Secured Parties, the retiring Administrative Agent shall
continue to be vested with such security interest as collateral agent for the
benefit of the Secured Parties and continue to be entitled to the rights set
forth in such Collateral Document and Loan Document, and, in the case of any
Collateral in the possession of the Administrative Agent, shall continue to
hold such Collateral, in each case until such time as a successor
Administrative Agent is appointed and accepts such appointment in accordance
with this Section (it being understood and agreed that the retiring
Administrative Agent shall have no duty or obligation to take any further
action under any Collateral Document, including any action required to
maintain the perfection of any such security interest), and (ii) the Required
Lenders shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent; provided that (A)
all payments required to be made hereunder or under any other Loan Document to
the Administrative Agent for the account of any Person other than the
Administrative Agent shall be made directly to such Person and (B) all notices
and other communications required or contemplated to be given or made to the
Administrative Agent shall directly be given or made to each Lender and
Issuing Bank. Following the effectiveness of the Administrative Agent's
resignation from its capacity as such, the provisions of this Article, Section
2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and
indemnification provisions set forth in any other Loan Document, shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent and in respect of the matters
referred to in the proviso under clause (a) above. SECTION 8.06. Acknowledgement
s of Lenders and Issuing Bank. (a) Each Lender and each Issuing Bank
represents and warrants that (i) the Loan Documents set forth the terms of a
commercial lending facility, (ii) it is engaged in making, acquiring or
holding commercial loans and in providing other facilities set forth herein as
may be applicable to such Lender or Issuing Bank, in each case in the ordinary
course of business, and not for the purpose of purchasing, acquiring or
holding any other type of financial instrument (and each Lender and each
Issuing Bank agrees not to assert a claim in contravention of the foregoing),
(iii) it has, independently and without reliance upon the Administrative
Agent, any Arranger, any Co-Syndication Agent, any Co-Documentation Agent, or
any other Lender or Issuing Bank, or any of the Related Parties of any of the
foregoing, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv)
it is sophisticated with respect to decisions to make, acquire and/or hold
commercial loans and to provide other facilities set forth herein, as may be
applicable to such Lender or such Issuing Bank, and either it, or the Person
exercising discretion in making its decision to make, acquire and/or hold such
commercial loans or to provide such other facilities, is experienced in
making, acquiring or holding such commercial loans or providing such other
facilities. Each Lender and each Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any
Arranger, any Co-Syndication Agent, any Co-Documentation Agent, or any other
Lender or Issuing Bank, or any of the Related Parties of any of the foregoing,
and based on such documents and information (which may contain material,
non-public information within the meaning of the United States securities laws
concerning the Borrowers and their Affiliates) as it shall from time to time
deem appropriate, continue to make its own decisions in
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DB2/ 43463576.548024258.7 192 taking or not taking action under or based upon
this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder. (b) Each Lender, by delivering its
signature page to this Agreement on the Effective Date, or delivering its
signature page to an Assignment and Assumption or any other Loan Document
pursuant to which it shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and
each other document required to be delivered to, or be approved by or
satisfactory to, the Administrative Agent or the Lenders on the Effective Date
or the effective date of any such Assignment and Assumption or any other Loan
Document pursuant to which it shall have become a Lender hereunder. (c) Each
Lender hereby agrees that (i) it has requested a copy of each Report prepared
by or on behalf of the Administrative Agent; (ii) the Administrative Agent (A)
makes no representation or warranty, express or implied, as to the
completeness or accuracy of any Report or any of the information contained
therein or any inaccuracy or omission contained in or relating to a Report and
(B) shall not be liable for any information contained in any Report; (iii) the
Reports are not comprehensive audits or examinations, and that any Person
performing any field examination will inspect only specific information
regarding the Loan Parties and will rely significantly upon the Loan Parties'
books and records, as well as on representations of the Loan Parties'
personnel and that the Administrative Agent undertakes no obligation to
update, correct or supplement the Reports; (iv) it will keep all Reports
confidential and strictly for its internal use, not share the Report with any
Loan Party or any other Person except as otherwise permitted pursuant to this
Agreement; and (v) without limiting the generality of any other indemnification
provision contained in this Agreement, (A) it will hold the Administrative
Agent and any such other Person preparing a Report harmless from any action
the indemnifying Lender may take or conclusion the indemnifying Lender may
reach or draw from any Report in connection with any extension of credit that
the indemnifying Lender has made or may make to a Borrower, or the
indemnifying Lender's participation in, or the indemnifying Lender's purchase
of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend,
and hold the Administrative Agent and any such other Person preparing a Report
harmless from and against, the claims, actions, proceedings, damages, costs,
expenses, and other amounts (including reasonable attorneys' fees) incurred by
the Administrative Agent or any such other Person as the direct or indirect
result of any third parties who might obtain all or part of any Report through
the indemnifying Lender. (d) (i) Each Lender hereby agrees that (x) if the
Administrative Agent notifies such Lender that the Administrative Agent has
determined in its sole discretion that any funds received by such Lender from
the Administrative Agent or any of its Affiliates (whether as a payment,
prepayment or repayment of principal, interest, fees or otherwise;
individually and collectively, a "Payment") were erroneously transmitted to
such Lender (whether or not known to such Lender), and demands the return of
such Payment (or a portion thereof), such Lender shall promptly, but in no
event later than two (2) Business Days thereafter, return to the Administrative
Agent the amount of any such Payment (or portion thereof) as to which such a
demand was made in same day funds, together with interest thereon in respect
of each day from and including the date such Payment (or portion thereof) was
received by such Lender to the date such amount is repaid to the Administrative
Agent at the greater of the NYFRB Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation from time to time in effect, and (y) to the extent permitted by
applicable law, such Lender shall not assert, and hereby waives, as to the
Administrative Agent, any claim, counterclaim, defense or right of set-off or
recoupment with respect to any demand, claim or counterclaim by the
Administrative Agent for the return of any Payments received, including DB2/
43463576.548024258.7 193 without limitation any defense based on "discharge
for value" or any similar doctrine. A notice of the Administrative Agent to
any Lender under this Section 8.06(d) shall be conclusive, absent manifest
error. (ii) Each Lender hereby further agrees that if it receives a Payment
from the Administrative Agent or any of its Affiliates (x) that is in a
different amount than, or on a different date from, that specified in a notice
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 on notice, in each such case,
that an error has been made with respect to such Payment. Each Lender agrees
that, in each such case, or if it otherwise becomes aware a Payment (or
portion thereof) may have been sent in error, such Lender shall promptly
notify the Administrative Agent of such occurrence and, upon demand from the
Administrative Agent, it shall promptly, but in no event later than one (1)
Business Day thereafter, return to the Administrative Agent the amount of any
such Payment (or portion thereof) as to which such a demand was made in same
day funds, together with interest thereon in respect of each day from and
including the date such Payment (or portion thereof) was received by such
Lender to the date such amount is repaid to the Administrative Agent at the
greater of the NYFRB Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation from time to
time in effect. (iii) Each Borrower and each other Loan Party hereby agrees
that (x) in the event an erroneous Payment (or portion thereof) are not
recovered from any Lender that has received such Payment (or portion thereof)
for any reason, the Administrative Agent shall be subrogated to all the rights
of such Lender with respect to such amount and (y) an erroneous Payment shall
not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by
any Borrower or any other Loan Party, except, in each case to the extent such
erroneous Payment is, and solely with respect to the amount of such erroneous
Payment that is, comprised of funds received by the Administrative Agent from
any Borrower or any other Loan Party for the purpose of making such erroneous
Payment. (iv) Each party's obligations under this Section 8.06(d) shall
survive the resignation or replacement of the Administrative Agent or any
transfer of rights or obligations by, or the replacement of, a Lender, the
termination of the Revolving Commitments or the FILO Commitments or the
repayment, satisfaction or discharge of all Obligations under any Loan
Document. SECTION 8.07. Collateral Matters. (a) Except with respect to the
exercise of setoff rights in accordance with Section 9.08 or with respect to a
Secured Party's right to file a proof of claim in an insolvency proceeding, no
Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce any Guarantee of the Secured Obligations, it being
understood and agreed that all powers, rights and remedies under the Loan
Documents may be exercised solely by the Administrative Agent (including in
its capacity as the Australian Security Trustee) on behalf of the Secured
Parties in accordance with the terms thereof. In its capacity, the
Administrative Agent is a "representative" of the Secured Parties within the
meaning of the term "secured party" as defined in the UCC. In the event that
any Collateral is hereafter pledged by any Person as collateral security for
the Secured Obligations, the Administrative Agent
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DB2/ 43463576.548024258.7 194 (including in its capacity as the Australian
Security Trustee) is hereby authorized, and hereby granted a power of
attorney, to execute and deliver on behalf of the Secured Parties any Loan
Documents necessary or appropriate to grant and perfect a Lien on such
Collateral in favor of the Administrative Agent on behalf of the Secured
Parties. (b) In furtherance of the foregoing and not in limitation thereof, no
arrangements in respect of Banking Services the obligations under which
constitute Secured Obligations and no Swap Agreement the obligations under
which constitute Secured Obligations, will create (or be deemed to create) in
favor of any Secured Party that is a party thereto any rights in connection
with the management or release of any Collateral or of the obligations of any
Loan Party under any Loan Document. By accepting the benefits of the
Collateral, each Secured Party that is a party to any such arrangement in
respect of Banking Services or Swap Agreement, as applicable, shall be deemed
to have appointed the Administrative Agent to serve as administrative agent
and collateral agent under the Loan Documents and agreed to be bound by the
Loan Documents as a Secured Party thereunder, subject to the limitations set
forth in this paragraph. (c) The Secured Parties irrevocably authorize the
Administrative Agent, at its option and in its discretion, to subordinate any
Lien on any property granted to or held by the Administrative Agent under any
Loan Document to the holder of any Lien on such property that is permitted by
clause (b), (d) or (e) of Section 6.02. The Administrative Agent shall not be
responsible for or have a duty to ascertain or inquire into any representation
or warranty regarding the existence, value or collectability of the
Collateral, the existence, priority or perfection of the Administrative
Agent's Lien thereon or any certificate prepared by any Loan Party in
connection therewith, nor shall the Administrative Agent be responsible or
liable to the Lenders or any other Secured Party for any failure to monitor or
maintain any portion of the Collateral. SECTION 8.08. Credit Bidding. The
Secured Parties hereby irrevocably authorize the Administrative Agent, at the
direction of the Required Lenders, to credit bid all or any portion of the
Obligations (including by accepting some or all of the Collateral in
satisfaction of some or all of the Obligations pursuant to a deed in lieu of
foreclosure or otherwise) and in such manner purchase (either directly or
through one or more acquisition vehicles) all or any portion of the Collateral
(a) at any sale thereof conducted under the provisions of the Bankruptcy Code,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any
similar laws in any other jurisdictions to which a Loan Party is subject, or
(b) at any other sale, foreclosure or acceptance of collateral in lieu of debt
conducted by (or with the consent or at the direction of) the Administrative
Agent (whether by judicial action or otherwise) in accordance with any
applicable law. In connection with any such credit bid and purchase, the
Obligations owed to the Secured Parties shall be entitled to be, and shall be,
credit bid by the Administrative Agent at the direction of the Required
Lenders on a ratable basis (with Obligations with respect to contingent or
unliquidated claims receiving contingent interests in the acquired assets on a
ratable basis that shall vest upon the liquidation of such claims in an amount
proportional to the liquidated portion of the contingent claim amount used in
allocating the contingent interests) for the asset or assets so purchased (or
for the equity interests or debt instruments of the acquisition vehicle or
vehicles that are issued in connection with such purchase). In connection with
any such bid (i) the Administrative Agent shall be authorized to form one or
more acquisition vehicles and to assign any successful credit bid to such
acquisition vehicle or vehicles, (ii) each of the Secured Parties' ratable
interests in the Obligations which were credit bid shall be deemed without any
further action under this Agreement to be assigned to such vehicle or vehicles
for the purpose of closing such sale, (iii) the Administrative Agent shall be
authorized to adopt documents providing for the governance of the acquisition
vehicle or vehicles (provided that any actions by the Administrative Agent
with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or equity interests thereof, DB2/ 43463576.548024258.7
195 shall be governed, directly or indirectly, by, and the governing
documents shall provide for, control by the vote of the Required Lenders or
their permitted assignees under the terms of this Agreement or the governing
documents of the applicable acquisition vehicle or vehicles, as the case may
be, irrespective of the termination of this Agreement and without giving
effect to the limitations on actions by the Required Lenders contained in
Section 9.02 of this Agreement), (iv) the Administrative Agent on behalf of
such acquisition vehicle or vehicles shall be authorized to issue to each of
the Secured Parties, ratably on account of the relevant Obligations which were
credit bid, interests, whether as equity, partnership interests, limited
partnership interests or membership interests, in any such acquisition vehicle
and/or debt instruments issued by such acquisition vehicle, all without the
need for any Secured Party or acquisition vehicle to take any further action,
and (v) to the extent that Obligations that are assigned to an acquisition
vehicle are not used to acquire Collateral for any reason (as a result of
another bid being higher or better, because the amount of Obligations assigned
to the acquisition vehicle exceeds the amount of Obligations credit bid by the
acquisition vehicle or otherwise), such Obligations shall automatically be
reassigned to the Secured Parties pro rata with their original interest in
such Obligations and the equity interests and/or debt instruments issued by
any acquisition vehicle on account of such Obligations shall automatically be
cancelled, without the need for any Secured Party or any acquisition vehicle
to take any further action. Notwithstanding that the ratable portion of the
Obligations of each Secured Party are deemed assigned to the acquisition
vehicle or vehicles as set forth in clause (ii) above, each Secured Party
shall execute such documents and provide such information regarding the
Secured Party (and/or any designee of the Secured Party which will receive
interests in or debt instruments issued by such acquisition vehicle) as the
Administrative Agent may reasonably request in connection with the formation
of any acquisition vehicle, the formulation or submission of any credit bid or
the consummation of the transactions contemplated by such credit bid. SECTION
8.09. Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as
of the date such Person became a Lender party hereto, to, and (y) covenants,
from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative
Agent, and each Arranger and their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of any Borrower or any other Loan
Party, that at least one of the following is and will be true: (i) such Lender
is not using "plan assets" (within the meaning of the Plan Asset Regulations)
of one or more Benefit Plans in connection with the Loans, the Letters of
Credit, the Revolving Commitments or the FILO Commitments, (ii) the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a
class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain
transactions involving insurance company general accounts), PTE 90-1 (a class
exemption for certain transactions involving insurance company pooled separate
accounts), PTE 91-38 (a class exemption for certain transactions involving
bank collective investment funds) or PTE 96-23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with
respect to such Lender's entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Commitments, the FILO Commitments and this Agreement, (iii) (A) such Lender is
an investment fund 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 such
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DB2/ 43463576.548024258.7 196 Lender to enter into, participate in, administer
and perform the Loans, the Letters of Credit, the Revolving Commitments, the
FILO Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the
Revolving Commitments, the FILO Commitments and this Agreement satisfies the
requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to
the best knowledge of such Lender, the requirements of subsection (a) of Part
I of PTE 84-14 are satisfied with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Letters
of Credit, the Revolving Commitments, the FILO Commitments and this Agreement,
or (iv) such other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion, and such
Lender. (b) In addition, unless sub-clause (i) in the immediately preceding
clause (a) is true with respect to a Lender or such Lender has not provided
another representation, warranty and covenant as provided in sub-clause (iv)
in the immediately preceding clause (a), such Lender further (x) represents
and warrants, as of the date such Person became a Lender party hereto, to, and
(y) covenants, from the date such Person became a Lender party hereto to the
date such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, each Arranger and their respective Affiliates, and not,
for the avoidance of doubt, to or for the benefit of any Borrower or any other
Loan Party, that none of the Administrative Agent, any Arranger, any
Co-Syndication Agent, or any of their respective Affiliates is a fiduciary
with respect to the Collateral or assets of such Lender (including in
connection with the reservation or exercise of any rights by the Administrative
Agent under this Agreement, any Loan Document or any documents related to
hereto or thereto), (c) The Administrative Agent, each Arranger, each
Co-Syndication Agent, and each Co-Documentation Agent hereby informs the
Lenders that each such Person is not undertaking to provide investment advice,
or to give advice in a fiduciary capacity, in connection with the transactions
contemplated hereby, and that such Person has a financial interest in the
transactions contemplated hereby in that such Person or an Affiliate thereof
(i) may receive interest or other payments with respect to the Loans, the
Letters of Credit, the Revolving Commitments, the FILO Commitments this
Agreement, and any other Loan Documents, (ii) may recognize a gain if it
extended the Loans, the Letters of Credit, the Revolving Commitments or the
FILO Commitments for an amount less than the amount being paid for an interest
in the Loans, the Letters of Credit, the Revolving Commitments or the FILO
Commitments by such Lender or (iii) may receive fees or other payments in
connection with the transactions contemplated hereby, the Loan Documents or
otherwise, including structuring fees, commitment fees, arrangement fees,
facility fees, upfront fees, underwriting fees, ticking fees, agency fees,
administrative agent or collateral agent fees, utilization fees, minimum usage
fees, letter of credit fees, fronting fees, deal-away or alternate transaction
fees, amendment fees, processing fees, term out premiums, banker's acceptance
fees, breakage or other early termination fees or fees similar to the
foregoing. SECTION 8.10. Flood Laws. JPMCB has adopted internal policies and
procedures that address requirements placed on federally regulated lenders
under the National Flood Insurance Reform Act of 1994 and related legislation
(the "Flood Laws"). JPMCB, as administrative agent or collateral agent on a
syndicated facility, will post on the applicable electronic platform (or
otherwise distribute to each Lender in the syndicate) documents that it
receives in connection with the Flood Laws. However, JPMCB reminds each Lender
and Participant in the facility that, pursuant to the Flood Laws, each
federally regulated Lender (whether acting as a Lender or Participant in the
facility) is responsible for assuring its DB2/ 43463576.548024258.7 197 own
compliance with the flood insurance requirements. No real property shall be
taken as Collateral and no Mortgage delivered with respect to any real
property, unless the Lenders receive at least forty-five (45) days advance
notice and each Lender confirms to the Administrative Agent that it has
completed all flood due diligence, received copies of all flood insurance
documentation (including the documents described in clause (v) of the
definition of Eligible Real Property) and confirmed flood insurance compliance
as required by the Flood Laws or as otherwise satisfactory to such Lender. At
any time that any real property constitutes Collateral, no modification of any
Loan Document shall add, increase, renew or extend any loan, commitment or
credit line hereunder until the completion of flood due diligence,
documentation and coverage as required by the Flood Laws or as otherwise
satisfactory to all Lenders. SECTION 8.11. Appointment of Administrative Agent
as U.K Security Trustee. For the purposes of any Liens or Collateral created
under the U.K. Collateral Documents or any Collateral Document governed by
Irish law (together, for the purposes of this section, each a "Relevant
Collateral Document" and together "Relevant Collateral Documents"), the
following additional provisions shall apply. (a) In this Section 8.11, the
following expressions have the following meanings: "Appointee" means any
receiver, administrator or other insolvency officer appointed in respect of
any Loan Party or its assets. "Charged Property" means the assets of the Loan
Parties subject to a security interest under the Relevant Collateral
Documents. "Delegate" means any delegate, agent, attorney or co-trustee
appointed by the Administrative Agent (in its capacity as security trustee).
(b) The Secured Parties appoint the Administrative Agent to hold the security
interests constituted by the Relevant Collateral Documents on trust for the
Secured Parties on the terms of the Loan Documents and the Administrative
Agent accepts that appointment. (c) The Administrative Agent, its subsidiaries
and associated companies may each retain for its own account and benefit any
fee, remuneration and profits paid to it in connection with (i) its activities
under the Loan Documents; and (ii) its engagement in any kind of banking or
other business with any Loan Party. (d) Nothing in this Agreement constitutes
the Administrative Agent as a trustee or fiduciary of, nor shall the
Administrative Agent have any duty or responsibility to, any Loan Party. (e)
The Administrative Agent shall have no duties or obligations to any other
person except for those which are expressly specified in the Loan Documents or
mandatorily required by applicable law. (f) The Administrative Agent may
appoint one or more Delegates on such terms (which may include the power to
sub-delegate) and subject to such conditions as it thinks fit, to exercise and
perform all or any of the duties, rights, powers and discretions vested in it
by the Relevant Collateral Documents and shall not be obliged to supervise any
Delegate or be
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DB2/ 43463576.548024258.7 198 responsible to any person for any loss incurred
by reason of any act, omission, misconduct or default on the part of any
Delegate. (g) The Administrative Agent may (whether for the purpose of
complying with any law or regulation of any overseas jurisdiction, or for any
other reason) appoint (and subsequently remove) any person to act jointly with
the Administrative Agent either as a separate trustee or as a co-trustee on
such terms and subject to such conditions as the Administrative Agent thinks
fit and with such of the duties, rights, powers and discretions vested in the
Administrative Agent by the Relevant Collateral Documents as may be conferred
by the instrument of appointment of that person. (h) The Administrative Agent
shall notify the Lenders of the appointment of each Appointee (other than a
Delegate). (i) The Administrative Agent may pay reasonable remuneration to any
Delegate or Appointee, together with any costs and expenses (including legal
fees) reasonably incurred by the Delegate or Appointee in connection with its
appointment. All such remuneration, costs and expenses shall be treated, for
the purposes of this Agreement, as paid or incurred by the Administrative
Agent. (j) Each Delegate and each Appointee shall have every benefit, right,
power and discretion and the benefit of every exculpation (together "Rights")
of the Administrative Agent (in its capacity as security trustee) under the
Relevant Collateral Documents, and each reference to the Administrative Agent
(where the context requires that such reference is to the Administrative Agent
in its capacity as security trustee) in the provisions of the Relevant
Collateral Documents which confer Rights shall be deemed to include a
reference to each Delegate and each Appointee. (k) Each Secured Party confirms
its approval of the Relevant Collateral Documents and authorizes and instructs
the Administrative Agent: (i) to execute and deliver the Relevant Collateral
Documents; (ii) to exercise the rights, powers and discretions given to the
Administrative Agent (in its capacity as security trustee) under or in
connection with the Relevant Collateral Documents together with any other
incidental rights, powers and discretions; and (iii) to give any authorizations
and confirmations to be given by the Administrative Agent (in its capacity as
security trustee) on behalf of the Secured Parties under the Relevant
Collateral Documents. (l) The Administrative Agent may accept without inquiry
the title (if any) which any person may have to the Charged Property. (m) Each
other Secured Party confirms that it does not wish to be registered as a joint
proprietor of any security interest constituted by a Relevant Collateral
Document and accordingly authorizes: (a) the Administrative Agent to hold such
security interest in its sole name (or in the name of any Delegate) as trustee
for the Secured Parties; and (b) the Land Registry (or other relevant
registry) to register the Administrative Agent (or any Delegate or Appointee)
as a sole proprietor of such security interest. (n) Except to the extent that
a Relevant Collateral Document otherwise requires, any moneys which the
Administrative Agent receives under or pursuant to a Relevant Collateral
Document may be: (a) invested in any investments which the Administrative
Agent selects and which are authorized by applicable law; or (b) placed on
deposit at any bank or institution DB2/ 43463576.548024258.7 199 (including
the Administrative Agent) on terms that the Administrative Agent thinks fit,
in each case in the name or under the control of the Administrative Agent, and
the Administrative Agent shall hold those moneys, together with any accrued
income (net of any applicable Tax on such income) to the order of the Lenders,
and shall pay them to the Lenders on demand. (o) On a disposal of any of the
Charged Property which is permitted under the Loan Documents, the
Administrative Agent shall (at the cost of the Loan Parties) execute any
release of the Relevant Collateral Documents or other claim over that Charged
Property and issue any certificates of non-crystallization of floating charges
that may be required or take any other action that the Administrative Agent
considers desirable. (p) The Administrative Agent shall not be liable for: (i)
any defect in or failure of the title (if any) which any person may have to
any assets over which security is intended to be created by a Relevant
Collateral Document; (ii) any loss resulting from the investment or deposit at
any bank of moneys which it invests or deposits in a manner permitted by a
Relevant Collateral Document; (iii) the exercise of, or the failure to
exercise, any right, power or discretion given to it by or in connection with
any Loan Document or any other agreement, arrangement or document entered
into, or executed in anticipation of, under or in connection with, any Loan
Document; or (iv) any shortfall which arises on enforcing a Relevant
Collateral Document. (q) The Administrative Agent shall not be obligated to:
(i) obtain any authorization or environmental permit in respect of any of the
Charged Property or a Relevant Collateral Document; (ii) hold in its own
possession a Relevant Collateral Document, title deed or other document
relating to the Charged Property or a Relevant Collateral Document; (iii)
perfect, protect, register, make any filing or give any notice in respect of a
Relevant Collateral Document (or the order of ranking of a Relevant Collateral
Document), unless that failure arises directly from its own gross negligence
or willful misconduct; or (iv) require any further assurances in relation to a
Relevant Collateral Document. (r) In respect of any Relevant Collateral
Document, the Administrative Agent shall not be obligated to: (i) insure, or
require any other person to insure, the Charged Property; or (ii) make any
enquiry or conduct any investigation into the legality, validity,
effectiveness, adequacy or enforceability of any insurance existing over such
Charged Property. (s) In respect of any Relevant Collateral Document, the
Administrative Agent shall not have any obligation or duty to any person for
any loss suffered as a result of: (i) the lack or inadequacy of any insurance;
or (ii) the failure of the Administrative Agent to notify the insurers of any
material fact relating to the risk assumed by them, or of any other
information of any kind,
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DB2/ 43463576.548024258.7 200 unless Required Lenders have requested it to do
so in writing and the Administrative Agent has failed to do so within fourteen
(14) days after receipt of that request. (t) Every appointment of a successor
Administrative Agent under a Relevant Collateral Document shall be by deed.
(u) Section 1 of the Trustee Act 2000 (UK) shall not apply to the duty of the
Administrative Agent in relation to the trusts in respect of any U.K.
Collateral Document constituted by this Agreement. (v) In the case of any
conflict between the provisions of this Agreement and those of the Trustee Act
1925 (UK), the Trustee Act 2000 (UK) or the Trustee Acts 1893-1899 of Ireland,
the provisions of this Agreement shall prevail to the extent allowed by law,
and shall constitute a restriction or exclusion for the purposes of the
Trustee Act 2000 (UK). (w) The perpetuity period under the rule against
perpetuities if applicable to this Agreement and any U.K. Collateral Document
shall be 80 years from the Effective Date. SECTION 8.12. Parallel Debt
Undertaking. (a) In order to ensure the continuing validity and enforceability
of the Liens expressed to be created under the Collateral Documents governed
by the laws of The Netherlands, each Dutch Loan Party hereby irrevocably and
unconditionally undertakes (the resulting liabilities and obligations under
that undertaking in respect of any amount, a Parallel Debt Obligation and in
respect of all of them, the Parallel Debt Obligations) to pay to the
Administrative Agent amounts equal to, and in the currency of, all amounts
from time to time due and payable by any Loan Party to any Secured Party under
the Secured Obligations as and when the same fall due for payment under the
Secured Obligations. (b) Each Parallel Debt Obligation shall be separate from
and independent of the corresponding Secured Obligation, so that the
Administrative Agent will have its own independent right to demand payment of
the Parallel Debt Obligation. (c) The Parallel Debt Obligations shall be owed
to the Administrative Agent in its own name and not as agent or representative
of the Secured Parties. (d) Other than as set out in clause (e) below, the
Parallel Debt Obligations shall not limit or affect the existence of the
Secured Obligations, for which the Secured Parties shall have an independent
right to demand performance to the extent otherwise set forth herein. (e) The
rights of the Secured Parties to receive payment of the Secured Obligations
are several from the rights of the Administrative Agent to receive payment of
the Parallel Debt Obligations, provided that: (i) Payment by a Dutch Loan
Party of its Parallel Debt Obligations in accordance with this Section 8.12
shall to the same extent decrease and discharge the corresponding Secured
Obligations owing to the Secured Parties; and (ii) Payment by a Loan Party of
its Secured Obligations in accordance with the Secured Obligations shall to
the same extent decrease and discharge the corresponding Parallel Debt
Obligations. DB2/ 43463576.548024258.7 201 SECTION 8.13. Appointment of
Administrative Agent as Australian Security Trustee. (a) Each Secured Party
hereby, upon the execution, and in accordance with the terms, of the
Australian Security Trust Deed, appoints the Australian Security Trustee under
the terms of the Australian Security Trust Deed to act as its trustee under
and in relation to the Australian Collateral Documents and to hold the assets
subject to the security thereby created under the Australian Security Trust
Deed as trustee for the Secured Parties on trust and on the terms contained in
the Australian Collateral Documents and the Australian Security Trust Deed.
Each Secured Party authorizes the Australian Security Trustee under the terms
of the Australian Security Trust Deed to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Australian
Security Trustee by the terms of the Australian Collateral Documents and the
Australian Security Trust Deed, together with all such rights, remedies,
powers and discretions as are reasonably incidental thereto and Australian
Security Trustee hereby accepts that appointment. (b) Each Secured Party
hereby: (i) acknowledges that they are aware of, and consent to, the terms of
the Australian Security Trust Deed; (ii) agrees to comply with and be bound by
the Australian Security Trust Deed as a Beneficiary (as that term is defined
in the Australian Security Trust Deed); (iii) acknowledges that it has
received a copy of the Australian Security Trust Deed together with the other
information which it has required in connection with the Australian Security
Trust Deed and this Agreement; (iv) without limiting the general application
of clause (i) above: (A) acknowledges and agrees that it has been, and will
continue to be, solely responsible for making its own independent appraisal
and investigation of all risks arising under or in connection with the
Australian Security Trust Deed and the Australian Collateral Documents; and
(B) provides the indemnities as specified in clause 9 of the Australian
Security Trust Deed; and (v) without limiting the general application of
paragraph (i) above, for consideration received, (A) irrevocably appoints as
its attorney each Person who under the terms of the Australian Security Trust
Deed is appointed an attorney of a Beneficiary (as defined in the Australian
Security Trust Deed) on the same terms and for the same purposes as contained
in the Australian Security Trust Deed; and (B) irrevocably appoints the
Australian Security Trustee as its nominee for the purposes of Section 153 of
the Australian PPSA, and authorizes the Australian Security Trustee to act on
its behalf, in connection with a registration (in accordance with the
Australian PPSA) of any Lien in favor of the Secured Party under a Loan
Document.
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DB2/ 43463576.548024258.7 202 (c) This Section 8.13 is executed as a deed poll
in favour of the Australian Security Trustee and each Beneficiary (as defined
in the Australian Security Trust Deed) from time to time. The laws of New
South Wales governs this Section 8.13 and the parties submit to the exclusive
jurisdiction of the courts of New South Wales and of the Commonwealth of
Australia in relation to this Section 8.13. SECTION 8.14. Notification of
Completion of "Know Your Customer" Diligence. To the extent that any Lender
having a Foreign Tranche Commitment has not, prior to or as of the Third
Amendment Effective Date, satisfactorily completed all actions required for
such Lender to comply, with respect to any Australian Borrower, with all
applicable "know your customer" rules and regulations (including without
limitation the USA PATRIOT ACT) and such Lender's internal policies with
respect to the same, such Lender agrees to promptly notify the Administrative
Agent in writing following such Lender's completion of the same. ARTICLE IX
Miscellaneous SECTION 9.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone or
Electronic Systems (and subject in each case to paragraph (b) below), all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by facsimile, as follows: (i) if to any Loan Party,
to the Borrower Representative at: c/o Insight Enterprises, Inc. 2701 E.
Insight Way Chandler, Arizona 85286 Attention: Glynis Bryan; Samuel Cowley
Email: glynis.bryan@insight.com; sam.cowley@insight.com with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144 Attention: Leila Sayegh Email:
leila.sayegh@skadden.com (ii) if to the Administrative Agent, JPMCB in its
capacity as an Issuing Bank, to JPMorgan Chase Bank, N.A. at: JPMorgan Chase
Bank, N.A. 10 S. Dearborn Chicago, IL 60603 Attention: Kevin Podwika DB2/
43463576.548024258.7 203 Email: kevin.m.podwika@jpmorgan.com and, in the case
of a notice regarding the Foreign Borrowers, to: J.P. Morgan SE 25 Bank
Street, Canary Wharf London E145JP United Kingdom Attention: Loan and Agency
Group Facsimile No.: +44 (0)20 7777 2360 Email: loan_and_agency@jpmorgan.com
with a copy to: Morgan, Lewis & Bockius LLP 300 South Grand Avenue, 22nd Floor
Los Angeles, California 90071-3132 Attention: Marshall Stoddard, Jr., Esq.
Facsimile No: (212) 309-6001 Email: marshall.stoddard@morganlewis.com (iii) if
to any other Lender or Issuing Bank, to it at its address or facsimile number
set forth in its Administrative Questionnaire. All such notices and other
communications (A) sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received, (B) sent by facsimile shall be deemed to have been given when sent,
provided that if not given during normal business hours of the recipient, such
notice or communication shall be deemed to have been given at the opening of
business on the next Business Day of the recipient, or (C) delivered through
Electronic Systems or Approved Electronic Platforms, as applicable, to the
extent provided in paragraph (b) below shall be effective as provided in such
paragraph. (b) Notices and other communications to any Borrower, any Loan
Party, the Lenders and the Issuing Banks hereunder may be delivered or
furnished by using Electronic Systems or Approved Electronic Platforms, as
applicable, or pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender.
Each of the Administrative Agent and the Borrower Representative (on behalf of
the Loan Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by Electronic Systems or Approved Electronic
Platforms, as applicable, pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise proscribes, all such
notices and other communications (i) sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), provided that if not given
during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (ii) posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient, at its e-mail address as described in the foregoing clause
(i), of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both clauses (i)
and (ii) above, if such notice, e-mail
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DB2/ 43463576.548024258.7 204 or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day
of the recipient. (c) Any Loan Party may change its address, email or
facsimile number for notices and other communications hereunder by notice to
the Administrative Agent. Any other party hereto may change its address,
facsimile number or e-mail address for notices and other communications
hereunder by notice to the other parties hereto. SECTION 9.02. Waivers;
Amendments. (a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the
Lenders hereunder and under any other Loan Document are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document (other than any Fee Letter) or consent
to any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time. (b) Except as provided in the first sentence of Section
2.09(a)(vi) (with respect to any commitment increase), Section 2.09(c) and
Section 2.23 or as otherwise expressly provided herein or any other Loan
Document, and subject to Section 2.14(c) and Section 9.02(e) below, neither
this Agreement nor any other Loan Document (other than any Fee Letter) nor any
provision hereof or thereof may be waived, amended or modified except (x) in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders (or the Administrative
Agent with the consent of the Required Lenders) or (y) in the case of any such
other Loan Document (other than any such amendment to effectuate any
modification or supplement or joinder thereto expressly contemplated by the
terms of such other Loan Document), pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, with the consent of the Required Lenders;
provided that no such agreement shall: (i) increase the Revolving Commitment
or FILO Commitment of any Lender without the written consent of such Lender
(including any such Lender that is a Defaulting Lender); it being understood
that a waiver of any condition precedent set forth in Article IV or the waiver
of any Default, Event of Default or mandatory prepayment shall not constitute
an increase of any Revolving Commitment or FILO Commitment of any Lender, (ii)
reduce or forgive the principal amount of any Loan or LC Disbursement (it
being understood that a waiver of any Default, Event of Default or mandatory
prepayment shall not constitute a reduction or forgiveness in principal) or
reduce the rate of interest thereon, or reduce or forgive any interest or fees
payable hereunder, DB2/ 43463576.548024258.7 205 without the written consent
of each Lender (including any such Lender that is a Defaulting Lender)
directly affected thereby (provided that (A) any amendment or modification of
the financial covenants in this Agreement (or any defined term used therein)
shall not constitute a reduction in the rate of interest or fees for purposes
of this clause (ii) and (B) only the consent of the Required Lenders shall be
necessary to waive any obligation to pay default interest pursuant to Section
2.13(k)), (iii) postpone any scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any date for the payment of any interest,
fees or other Obligations payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Revolving Commitment or the scheduled date of expiration or reduction of any
FILO Commitment, or change the amount of any scheduled reduction of any FILO
Commitment, without the written consent of each Lender (including any such
Lender that is a Defaulting Lender) directly affected thereby (it being
understood that the waiver of, or the amendment to the terms of, any mandatory
prepayment shall not constitute a postponement of any date scheduled for the
payment of principal or interest or a reduction thereof), (iv) change Section
2.09(a)(iii) or (a)(iv), Section 2.09(b)(v), Section 2.10(b) or Section
2.18(b) or (d) in a manner that would alter the ratable reduction of Revolving
Commitments or FILO Commitments or the manner in which payments are shared,
without the written consent of each Lender directly affected thereby (other
than any Defaulting Lender), (v) increase the advance rates set forth in the
definition of the Global Borrowing Base, the Global Revolving Borrowing Base,
the U.S. Borrowing Base, the U.K. Borrowing Base, the Dutch Borrowing Base,
the Australian Borrowing Base or the FILO Borrowing Base, or add new
categories of eligible assets or otherwise amend or modify the definitions of
Eligible Accounts, Eligible Real Property, Real Estate Component, Eligible
Inventory, Eligible Finished Goods or Eligible Work-In-Process Inventory, in
each case in a manner which would increase any applicable Borrowing Base
without the written consent of the Required Lenders, the Supermajority U.S.
Tranche Lenders (solely with respect to the U.S. Borrowing Base, the Global
Borrowing Base and the Global Revolving Borrowing Base), the Supermajority
Foreign Tranche Lenders (solely with respect to the U.K. Borrowing Base, the
Dutch Borrowing Base, the Australian Borrowing Base, the Global Borrowing Base
and the Global Revolving Borrowing Base) and the FILO Supermajority Lenders
(solely with respect to the FILO Borrowing Base and the Global Borrowing
Base), (vi) change any of the provisions of this Section or the definitions of
"Required Lenders", "Required Revolving Lenders", "Required FILO Lenders",
"Supermajority U.S. Tranche Lenders", "Supermajority Foreign Tranche Lenders"
or "Supermajority FILO Lenders", or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (other than any Defaulting Lender) directly affected thereby,
(vii) change Section 2.20 without the consent of each Lender directly affected
thereby (other than any Defaulting Lender),
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DB2/ 43463576.548024258.7 206 (viii) release all or substantially all of the
value of all the Loan Guaranties (except as otherwise permitted herein or in
the other Loan Documents), without the written consent of each Lender (other
than any Defaulting Lender), (ix) except as provided in clause (c) of this
Section or in any Collateral Document, release (or subordinate) all or
substantially all of the Global Collateral, without the written consent of
each Lender (other than any Defaulting Lender), (x) amend or modify the
definitions of "Available Currency" or "Alternate Rate" without the consent of
each Lender directly affected thereby; or (xi) amend or modify Article XII or
the definitions of "CAM Exchange Date" or "CAM Percentage" without the consent
of each Lender (other than any Defaulting Lender); provided, further, that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent or any Issuing Bank hereunder without the prior
written consent of the Administrative Agent or such Issuing Bank, as the case
may be (it being understood that any amendment to Section 2.20 shall require
the consent of the Administrative Agent and the Issuing Banks); provided
further that no such agreement shall amend or modify the provisions of Section
2.06 or any letter of credit application or the respective rights and
obligations between any Borrower and such Issuing Bank in connection with the
issuance of Letters of Credit without the prior written consent of the
Administrative Agent and such Issuing Bank, respectively. The Administrative
Agent may also amend the Commitment Schedule to reflect assignments entered
into pursuant to Section 9.04. Any amendment, waiver or other modification of
this Agreement or any other Loan Document that by its terms affects the rights
or duties under this Agreement of the Lenders of one or more Classes (but not
the Lenders of any other Class), may be effected by an agreement or agreements
in writing entered into by the Borrowers and the requisite number or
percentage in interest of each affected Class of Lenders that would be
required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time. (c) The Lenders and the
Issuing Banks hereby irrevocably authorize the Administrative Agent to, and
the Administrative Agent shall, to release any Liens granted to the
Administrative Agent by the Loan Parties on any Collateral (i) upon the
Payment in Full of all Secured Obligations (other than the Unliquidated
Obligations), and the cash collateralization of all Unliquidated Obligations
in a manner reasonably satisfactory to each affected Lender, (ii) constituting
property being Disposed of (other than if being Disposed of to another Loan
Party) if such Disposition is permitted hereunder and, to the extent requested
by the Administrative Agent, the Loan Party Disposing of such property
certifies to the Administrative Agent that the Disposition is made in
compliance with the terms of this Agreement (and the Administrative Agent may
rely conclusively on any such certificate, without further inquiry), (iii)
constituting property leased to a Loan Party under a lease which has expired
or been terminated in a transaction permitted under this Agreement, or (iv) as
required to effect any Disposition of such Collateral in connection with any
exercise of remedies of the Administrative Agent and the Lenders pursuant to
Article VII. Except as provided in the preceding sentence, the Administrative
Agent will not release any Liens on Collateral without the prior written
authorization of the Required Lenders; provided that, the Administrative Agent
may in its discretion, release its Liens on Collateral valued in the aggregate
not in excess of $25,000,000 during any calendar year without the prior
written authorization of the Required Lenders (it being agreed that the
Administrative Agent may rely conclusively on one or more certificates of DB2/
43463576.548024258.7 207 the Borrower Representative or any other Loan Party
as to the value of any Collateral to be so released, without further inquiry).
Any such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly being released) upon (or
obligations of the Loan Parties in respect of) all interests retained by the
Loan Parties, including the proceeds of any sale, all of which shall continue
to constitute part of the Collateral. Any execution and delivery by the
Administrative Agent of documents in connection with any such release shall be
without recourse to or warranty by the Administrative Agent. (d) If, in
connection with any proposed amendment, waiver or consent requiring the
consent of "each Lender" or "each Lender affected thereby," the consent of the
Required Lenders is obtained, but the consent of other necessary Lenders is
not obtained (any such Lender whose consent is necessary but has not been
obtained being referred to herein as a "Non-Consenting Lender"), then the
Borrowers may elect to replace a Non-Consenting Lender as a Lender party to
this Agreement, provided that, concurrently with any such replacement, (i)
another bank or other entity which is reasonably satisfactory to the
Borrowers, the Administrative Agent and the Issuing Banks shall agree, as of
such date, to purchase for cash the Loans and other Obligations due to the
Non-Consenting Lender pursuant to an Assignment and Assumption and to become a
Lender for all purposes under this Agreement and to assume all obligations of
the Non-Consenting Lender to be terminated as of such date and to comply with
the requirements of clause (b) of Section 9.04 (with the Loan Parties or
replacement lender responsible for paying any applicable processing and
recordation fee), and (ii) the Borrowers (or applicable Borrower) shall pay to
such Non-Consenting Lender in same day funds on the day of such replacement
(1) all interest, fees and other amounts then accrued but unpaid to such
Non-Consenting Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Non-Consenting
Lender under Sections 2.15 and 2.17, and (2) if required by such Non-Consenting
Lender, an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 2.16 had the Loans of
such Non-Consenting Lender been prepaid on such date rather than sold to the
replacement Lender. Each party hereto agrees that an assignment required
pursuant to this paragraph may be effected pursuant to an Assignment and
Assumption executed by the Borrower Representative, the Administrative Agent
and the assignee (or, to the extent applicable, an agreement incorporating an
Assignment and Assumption by reference pursuant to an Approved Electronic
Platform as to which the Administrative Agent and such parties are
participants), and the Lender required to make such assignment need not be a
party thereto in order for such assignment to be effective and shall be deemed
to have consented to an be bound by the terms thereof; provided that,
following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence
such assignment as reasonably requested by the applicable Lender, provided
that any such documents shall be without recourse to or warranty by the
parties thereto. (e) The Lenders and the Issuing Banks hereby irrevocably
authorize the Administrative Agent to, and the Administrative Agent shall,
release a Loan Guarantor from its obligations under the Loan Guaranty, and
release any Equity Interests of such Loan Guarantor which have been pledged as
Collateral, upon the consummation of any transaction permitted by this
Agreement as a result of which such Loan Guarantor ceases to be a Restricted
Subsidiary (including by way of contribution to a joint venture) if, to the
extent requested by the Administrative Agent, the Borrower Representative
certifies to the Administrative Agent that such transaction is made in
compliance with the terms of this Agreement (and the Administrative Agent may
rely conclusively on any such certificates without any further inquiry). In
connection with any termination or release pursuant to this Section, the
Administrative Agent shall (and is hereby irrevocably authorized by each
Lender to) execute and deliver to any Loan Party, at such
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DB2/ 43463576.548024258.7 208 Loan Party's expense, all documents that such
Loan Party shall reasonably request to evidence such termination or release.
Any execution and delivery of documents pursuant to this Section shall be
without recourse to or warranty by the Administrative Agent. Further, the
Administrative Agent may (and is hereby irrevocably authorized by each Lender
to), and upon the request of the Borrower Representative shall, release any
Loan Guarantor from its obligations under the Loan Guaranty and release its
Liens on any Equity Interests of such Loan Guarantor which have been pledged
as Collateral if (i) such Loan Guarantor is no longer a Restricted Subsidiary
in accordance with the terms hereof or is otherwise no longer required to be a
Loan Party under the terms hereof and (ii) to the extent requested by the
Administrative Agent, the Borrower Representative certifies to the
Administrative Agent that such transaction is made in compliance with the
terms of this Agreement (and the Administrative Agent may rely conclusively on
any such certificates without any further inquiry). (f) Notwithstanding
anything to the contrary herein (i) the Administrative Agent may, with the
consent of the Borrower Representative only, amend, modify or supplement this
Agreement or any of the other Loan Documents to cure any ambiguity, omission,
mistake, defect or inconsistency and (ii) guarantees, collateral security
documents and related documents executed by any Loan Party in connection with
this Agreement may be in a form reasonably determined by the Administrative
Agent and may be amended, supplemented or waived by the Administrative Agent
(with the consent of the Borrower Representative) without the consent of any
Lender if such amendment, supplement or waiver is delivered in order to (x)
comply with local law or advice of local counsel, (y) cure ambiguities,
omissions, mistakes or defects or (z) cause such guarantee, collateral
security document or other document to be consistent with this Agreement and
the other Loan Documents. SECTION 9.03. Expenses; Indemnity; Limitation of
Liability; Etc. (a) Expenses. The Loan Parties shall, jointly and severally,
pay all (i) reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent, the Arrangers and their respective Affiliates (but
limited, in the case of legal expenses, to the reasonable and documented fees,
charges and disbursements of a single counsel for the Administrative Agent and
the Arrangers, taken as a whole, and, to the extent reasonably required by the
Administrative Agent and the Arrangers, taken as a whole, up to one local
counsel in each applicable jurisdiction), in connection with the syndication
and distribution (including, without limitation, via the internet or through
any Electronic System or Approved Electronic Platform) of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers of the provisions of
the Loan Documents (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) reasonable and documented out-of-pocket
expenses incurred by any Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) reasonable and documented out-of-pocket expenses
incurred by the Administrative Agent, any Issuing Bank or any Lender (but
limited, in the case of legal expenses, to the reasonable and documented
out-of-pocket fees, charges and disbursements of a single counsel for the
Administrative Agent, the Issuing Banks, and the Lenders, taken as a whole,
and, to the extent reasonably required by the Administrative Agent, the
Issuing Banks, and the Lenders, taken as a whole, up to one local counsel in
each applicable jurisdiction, and in the case of an actual or perceived
conflict of interest, one special counsel to each similarly situated group
affected by such conflict where such group notifies Insight of such conflict
and thereafter retains counsel), in connection with the enforcement,
collection or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such reasonable and
documented DB2/ 43463576.548024258.7 209 out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit. Expenses being reimbursed by the Loan Parties under this
Section include, without limiting the generality of the foregoing, reasonable
and documented out-of-pocket fees, costs and expenses incurred in connection
with: (A) subject to the limitations in Section 5.06, appraisals and insurance
reviews; (B) field examinations and the preparation of Reports based on the
fees charged by a third party retained by the Administrative Agent or the
internally allocated fees for each Person employed by the Administrative Agent
with respect to each field examination; (C) background checks regarding senior
management and/or key investors, as deemed necessary or appropriate in the
sole discretion of the Administrative Agent; (D) Taxes, fees and other charges
for (1) lien searches and (2) filing financing statements and continuations,
and other actions to perfect, protect, and continue the Administrative Agent's
Liens; (E) sums paid or incurred to take any action required of any Loan Party
under the Loan Documents that such Loan Party fails to pay or take; and (F)
forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining the accounts and lock boxes, and costs and
expenses of preserving and protecting the Collateral. (b) Indemnity. The Loan
Parties shall, jointly and severally, indemnify the Administrative Agent, each
Arranger, each Issuing Bank, any Controller appointed by the Australian
Security Trustee, each Lender, each Co-Syndication Agent, each Co-Documentation
Agent, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all Liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee (limited to,
for each occurrence giving rise to such indemnification event, one primary
counsel for Indemnitees taken as a whole, one local counsel in each reasonably
necessary jurisdiction, and, in the case of an actual or perceived conflict of
interest, one special counsel to each group of similarly situated Indemnitees
affected by such conflict of interest where such group notifies you of such
conflict and thereafter retains counsel), incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of the Loan Documents or any agreement or instrument
contemplated thereby, (ii) the performance by the parties hereto of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (iii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing
Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iv) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by a Loan Party
or a Subsidiary, or any Environmental Liability related in any way to a Loan
Party or a Subsidiary, or (v) any actual or prospective Proceeding relating to
any of the foregoing, whether or not such Proceeding is brought by any Loan
Party or their respective equity holders, Affiliates, creditors or any other
third Person and whether based on contract, tort
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DB2/ 43463576.548024258.7 210 or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such Liabilities or related
expenses are determined by a court of competent jurisdiction by final and
non-appealable judgment to have resulted from (x) the gross negligence, bad
faith or willful misconduct of such Indemnitee or its Related Parties, (y) a
material breach by such Indemnitee or its Related Parties of its obligations
under the Loan Documents, or (z) disputes solely between or among the
Indemnitees (other than (1) disputes involving claims against the
Administrative Agent, any Arranger or other similarly titled Person, in their
respective capacities as such and (2) any dispute arising out of any act or
omission of any Loan Party or any of the Affiliates of the Loan Parties). This
Section 9.03(b) shall not apply with respect to Taxes other than any Taxes
that represent losses or damages arising from any non-Tax claim. (c) Lender
Reimbursement. Each Lender severally agrees to pay any amount required to be
paid by any Loan Party under paragraph (a), (b) or (d) of this Section 9.03 to
the Administrative Agent, each Issuing Bank, and each Related Party of any of
the foregoing Persons (each, an "Agent-Related Person") (to the extent not
reimbursed by a Loan Party and without limiting the obligation of any Loan
Party to do so), ratably according to their respective Applicable Percentage
in effect on the date on which such payment is sought under this Section (or,
if such payment is sought after the date upon which the Revolving Commitments
and the FILO Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with such Applicable Percentage
immediately prior to such date), and agrees to indemnify and hold each
Agent-Related Person harmless from and against any and all Liabilities and
related expenses, including the fees, charges and disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent-Related
Person in any way relating to or arising out of the Revolving Commitments, the
FILO Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such
Agent-Related Person under or in connection with any of the foregoing;
provided that the unreimbursed expense or indemnified Liability or related
expense, as the case may be, was incurred by or asserted against such
Agent-Related Person in its capacity as such; provided, further, that no
Lender shall be liable for the payment of any portion of such Liabilities,
costs, expenses or disbursements that are found by a final and non-appealable
decision of a court of competent jurisdiction to have resulted from such
Agent-Related Person's gross negligence or willful misconduct. The agreements
in this Section shall survive the termination of this Agreement and the
Payment in Full of the Secured Obligations. (d) Limitation of Liability. To
the extent permitted by applicable law (i) no party hereto shall assert, and
each party hereto hereby waives, any claim against any other party hereto for
any Liabilities arising from the use by others of information or other
materials (including, without limitation, any personal data) obtained through
telecommunications, electronic or other information transmission systems
(including the Internet), except to the extent any such damages are found by a
final, non-appealable judgment of a court of competent jurisdiction to arise
from the gross negligence, bad faith or willful misconduct of, or material
breach of any Loan Document by, such party (or any of its Related Parties),
and (ii) no party hereto shall assert, and each such party hereby waives, any
Liabilities against any other party hereto, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document, or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof; provided that, nothing in this Section
9.03(d) shall relieve any Borrower or any Loan Party of any obligation it may
have to DB2/ 43463576.548024258.7 211 indemnify an Indemnitee, as provided in
Section 9.03(b), against any special, indirect, consequential or punitive
damages asserted against such Indemnitee by a third party. (e) All amounts due
under this Section shall be payable promptly, and in any event no later than
thirty (30) days after written demand therefor. SECTION 9.04. Successors and
Assigns. (a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), except that (i) except as expressly permitted
hereunder, no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its 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, their respective successors
and assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under 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 or more Persons (other
than an Ineligible Institution) all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Revolving Commitment,
FILO Commitment, participations in Letters of Credit and the Loans at the time
owing to it) with the prior written consent (each such consent not to be
unreasonably withheld) of: (A) the Borrower Representative, provided that the
Borrower Representative shall be deemed to have consented to any such
assignment of all or a portion of the Revolving Loans, FILO Loans, Revolving
Commitments and FILO Commitments unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after having
received written notice thereof and provided further that no consent of the
Borrower Representative shall be required for (i) an assignment to a Lender,
an Affiliate of a Lender, an Approved Fund or, (ii) if an Event of Default
under clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing, any other assignee (other than an Ineligible Institution); (B) the
Administrative Agent; and (C) the Issuing Banks. (ii) Assignments shall be
subject to the following additional conditions: (A) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning Lender's Revolving
Commitment, FILO Commitment or Loans
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DB2/ 43463576.548024258.7 212 of any Class, the amount of the Revolving
Commitment, FILO Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower Representative and the
Administrative Agent otherwise consent, provided that no such consent of the
Borrower Representative shall be required if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing; (B) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement; (C)
the parties to each assignment shall execute and deliver to the Administrative
Agent (x) an Assignment and Assumption or (y) to the extent applicable, an
agreement incorporating an Assignment and Assumption by reference pursuant to
an Approved Electronic Platform as to which the Administrative Agent and the
parties to the Assignment and Assumption are participants, together with a
processing and recordation fee of $3,500; and (D) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire in which the assignee designates one or more credit contacts to
whom all syndicate-level information (which may contain material non-public
information about Insight, the other Loan Parties and their Related Parties or
their respective securities) will be made available and who may receive such
information in accordance with the assignee's compliance procedures and
applicable laws, including Federal and state securities laws. Notwithstanding
anything herein or in any other Loan Document to the contrary, the
Administrative Agent shall not be responsible or have any liability for, or
have any duty to ascertain, inquire into, monitor or enforce, compliance with
the provisions of this Agreement relating to Ineligible Institutions, except
to make the list of Disqualified Institutions available to the Lenders upon
request. Without limiting the generality of the foregoing and notwithstanding
anything herein or in any other Loan Document to the contrary, the
Administrative Agent shall not (x) be obligated to ascertain, monitor or
inquire as to whether any Lender or Participant or prospective Lender or
Participant is an Ineligible Institution or (y) have any liability with
respect to or arising out of any assignment or participation of Loans,
Revolving Commitments, FILO Commitments or other Obligations, or disclosure of
confidential information, to any Ineligible Institution. Furthermore, the
Administrative Agent shall have the right, and the Borrowers hereby expressly
authorize the Administrative Agent, to disclose the list of Disqualified
Institutions to each Lender requesting the same. For the purposes of this
Section 9.04(b), the terms "Approved Fund" and "Ineligible Institution" have
the following meanings: "Approved Fund" means any Person (other than a natural
person) that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its business
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. DB2/ 43463576.548024258.7 213 "Ineligible Institution" means
(a) a natural person, (b) a Defaulting Lender or its Parent, (c) a holding
company, investment vehicle or trust for, or owned and operated for the
primary benefit of, a natural person or relative(s) thereof, (d) a Loan Party
or a Subsidiary or other Affiliate of a Loan Party, or (e) unless consented to
by the Borrower Representative, a Disqualified Institution. (iii) Subject to
acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights
and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Section shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section. (iv) The Administrative Agent, acting for this
purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of
its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the Revolving Commitment and the FILO Commitment of, and principal amount (and
stated interest) of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries
in the Register shall be conclusive, and the Borrowers, the Administrative
Agent, the Issuing Banks and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrowers, any Issuing
Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice. (v) Upon its receipt of (x) a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, or
(y) to the extent applicable, an agreement incorporating an Assignment and
Assumption by reference pursuant to an Approved Electronic Platform as to
which the Administrative Agent and the parties to the Assignment and
Assumption are participants, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register; provided that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.05, 2.06(d) or (e),
2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation
to accept such Assignment and Assumption and record the information therein in
the Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
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DB2/ 43463576.548024258.7 214 (c) Any Lender may, without the consent of, or
notice to, the Borrowers, the Administrative Agent, or the Issuing Banks, sell
participations to one or more banks or other entities (a "Participant") other
than an Ineligible Institution in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Revolving
Commitment, its FILO Commitment and/or the Loans owing to it); provided that
(i) such Lender's obligations under this Agreement shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations; and (iii) the Borrowers, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. The Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the
requirements and limitations therein, including the requirements under Section
2.17(f) and (g) (it being understood that the documentation required under
Section 2.17(f) shall be delivered to the participating Lender and the
information and documentation required under Section 2.17(g) will be delivered
to the Borrowers and the Administrative Agent)) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to clause
(b) of this Section; provided that such Participant (A) agrees to be subject
to the provisions of Sections 2.18 and 2.19 as if it were an assignee under
paragraph (b) of this Section; and (B) shall not be entitled to receive any
greater payment under Section 2.15 or 2.17, with respect to any participation,
than its participating Lender would have been entitled to receive, except to
the extent such entitlement to receive a greater payment results from a Change
in Law that occurs after the Participant acquired the applicable participation.
Each Lender that sells a participation agrees, at the Borrowers' request and
expense, to use reasonable efforts to cooperate with the Borrowers to
effectuate the provisions of Section 2.19(b) with respect to any Participant.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(d) as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrowers, maintain a register on which it enters
the name and address of each Participant and the principal amounts (and stated
interest) of each Participant's interest in the Loans or other obligations
under this Agreement or any other Loan Document (the "Participant Register");
provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant's interest in any Revolving
Commitments, FILO Commitments, Loans, Letters of Credit or its other
obligations under any Loan Document) to any Person except to the extent that
such disclosure is necessary to establish that such Revolving Commitment, FILO
Commitment, Loan, Letter of Credit or other obligation 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 shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register. (d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank or any DB2/ 43463576.548024258.7 215
central bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto. SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Revolving Commitments and FILO
Commitments have not expired or terminated. The provisions of Sections 2.15,
2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit, the Revolving Commitments and the FILO Commitments or the
termination of this Agreement or any other Loan Document or any provision
hereof or thereof. SECTION 9.06. Counterparts; Integration; Effectiveness;
Electronic Execution. (a) This Agreement may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall be
deemed an original, but all of which when taken together shall constitute a
single contract. This Agreement, the other Loan Documents and any separate
letter agreements with respect to fees payable to the Administrative Agent
constitute the entire contract among the parties relating 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 Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of 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 Loan Document and/or (z)
any document, amendment, approval, consent, information, notice (including,
for the 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 transactions contemplated hereby
and/or thereby (each an "Ancillary Document") that is an Electronic Signature
transmitted by facsimile, 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, 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 Electronic Signatures, deliveries or the keeping of records
in any electronic form (including deliveries by facsimile, 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
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DB2/ 43463576.548024258.7 216 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 any form 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 any Electronic Signature, the Administrative Agent and each
of the Lenders shall be entitled to rely on such Electronic Signature
purportedly given by or on behalf of any Borrower or any other Loan Party
without further verification thereof and without any obligation to review the
appearance or form of any such Electronic Signature and (ii) upon the request
of the Administrative Agent, any Electronic Signature shall be promptly
followed by a manually executed counterpart. Without limiting the generality
of the foregoing, each 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 Borrowers and the
Loan Parties, Electronic Signatures transmitted by facsimile, emailed pdf. or
any other electronic means that reproduces an image of an actual executed
signature page and/or any electronic images of this Agreement, 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 Lenders may, at its option, create one or more copies of
this Agreement, any other Loan Document and/or any Ancillary Document in the
form of an imaged electronic record in any format, which shall be deemed
created in the ordinary course of such Person's business, and destroy the
original paper document (and all such electronic records shall be considered
an original for all purposes and shall have the same legal effect, validity
and enforceability as a paper record), (C) waives any argument, defense or
right to contest the legal effect, validity or enforceability of this
Agreement, any other Loan Document and/or any Ancillary Document based solely
on the lack of paper original copies of this Agreement, such other Loan
Document and/or such Ancillary Document, respectively, including with respect
to any signature pages thereto and (D) waives any claim against any Indemnitee
for any Liabilities arising solely from the Administrative Agent's and/or any
Lender's reliance on or use of Electronic Signatures and/or transmissions by
facsimile, emailed pdf. or any other electronic means that reproduces an image
of an actual executed signature page, including any Liabilities arising as a
result of the failure of any Borrower and/or any Loan Party to use any
available security measures in connection with the execution, delivery or
transmission of any Electronic Signature. SECTION 9.07. Severability. Any
provision of any Loan Document 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 thereof; and
the invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction. SECTION 9.08. Right
of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the Issuing Bank and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held, and other obligations at any
time owing, by such Lender, the Issuing Bank or any such Affiliate, to or for
the credit or the account of any Loan Party against any and all of the Secured
Obligations held by such Lender, the Issuing Bank or their respective
Affiliates, irrespective of whether or not such Lender, the Issuing Bank or
their respective Affiliates shall have made any demand under the Loan
Documents and although such obligations may be contingent or unmatured or are
owed to a branch office or Affiliate of such Lender or the Issuing Bank
different from the branch office or Affiliate holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting
Lender shall exercise any such right of setoff, (x) all amounts so set off
shall be paid over immediately to the Administrative Agent for further
application in DB2/ 43463576.548024258.7 217 accordance with the provisions of
Section 2.20 and, pending such payment, shall be segregated by such Defaulting
Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the Issuing Bank, and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Secured Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The
applicable Lender, the Issuing Bank or such Affiliate shall notify the
Borrower Representative and the Administrative Agent of such setoff or
application, provided that any failure to give or any delay in giving such
notice shall not affect the validity of any such setoff or application under
this Section. The rights of each Lender, the Issuing Bank and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the Issuing Bank or their
respective Affiliates may have. SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process. (a) Subject to section 8.13, the Loan Documents
(other than those containing a contrary express choice of law provision) shall
be governed by and construed in accordance with the laws of the State of New
York; provided that (i) the interpretation of the definition of "Material
Adverse Effect" (as defined in the Trojan Merger Agreement) (and whether or
not such a Material Adverse Effect has occurred), (ii) the determination of
the accuracy of any Specified Merger Agreement Representations and whether as
a result of any inaccuracy thereof either that the Merger Sub or any of its
Affiliates has the right to terminate its obligations under the Trojan Merger
Agreement or to decline to consummate the Trojan Acquisition, and (iii) the
determination of whether the Trojan Acquisition has been consummated in
accordance with the terms of the Trojan Merger Agreement and, in any case,
claims or disputes arising out of any such interpretation or determination or
any aspect thereof shall, in each case, be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof. (b) Each of the Lenders and the Administrative Agent hereby
irrevocably and unconditionally agrees that, notwithstanding the governing law
provisions of any applicable Loan Document, any claims brought against the
Administrative Agent by any Secured Party relating to this Agreement, any
other Loan Document, the Collateral or the consummation or administration of
the transactions contemplated hereby or thereby shall be construed in
accordance with and governed by the law of the State of New York. (c) Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any U.S. federal or New
York state court sitting in New York, New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to any
Loan Documents, the transactions relating hereto or thereto, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may (and any such claims, cross-claims or third
party claims brought against the Administrative Agent or any of its Related
Parties may only) be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Loan Party or its properties in the courts of any jurisdiction.
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DB2/ 43463576.548024258.7 218 (d) Each Loan Party hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which 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 court referred to in paragraph (c) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court. (e) Each party to
this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other
Loan Document will affect the right of any party to this Agreement to serve
process in any other manner permitted by law. Each Loan Party (other than a
U.S. Loan Party) irrevocably designates and appoints Insight, as its
authorized agent, to accept and acknowledge on its behalf, service of any and
all process which may be served in any suit, action or proceeding of the
nature referred to in Section 9.09(b) in any federal or New York State court
sitting in New York City. Insight hereby represents, warrants and confirms
that Insight has agreed to accept such appointment (and any similar
appointment by a Loan Guarantor which is a Foreign Subsidiary). Said
designation and appointment shall be irrevocable by each such Loan Party until
all Loans, all reimbursement obligations, interest thereon and all other
amounts payable by such Loan Party hereunder and under the other Loan
Documents shall have been Paid in Full in accordance with the provisions
hereof and thereof. Each Loan Party (other than a U.S. Loan Party) hereby
consents to process being served in any suit, action or proceeding of the
nature referred to in Section 9.09(b) in any federal or New York State court
sitting in New York City by service of process upon Insight as provided in
this Section 9.09(e). Each Loan Party (other than a U.S. Loan Party)
irrevocably waives, to the fullest extent permitted by law, all claim of error
by reason of any such service in such manner and agrees that such service
shall be deemed in every respect effective service of process upon such Loan
Party in any such suit, action or proceeding and shall, to the fullest extent
permitted by law, be taken and held to be valid and personal service upon and
personal delivery to such Loan Party. To the extent any Loan Party (other than
a U.S. Loan Party) has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether from service or notice,
attachment prior to judgment, attachment in aid of execution of a judgment,
execution or otherwise), such Loan Party hereby irrevocably waives, to the
fullest extent permitted by law, such immunity in respect of its obligations
under the Loan Documents. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law. SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION. DB2/ 43463576.548024258.7 219 SECTION 9.11. Headings. Article
and Section headings and the Table of Contents 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. SECTION 9.12. Confidentiality. Each of the Administrative Agent,
the Issuing Banks and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates, and its and its Affiliates' employees, directors,
officers, independent auditors, rating agencies, professional advisors and
other experts or agents who need to know such Information in connection with
the transactions contemplated by the Loan Documents (it being understood that
the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential, and each of the Administrative Agent, the Issuing
Banks and the Lenders shall be responsible for each of their respective
Affiliates' compliance with the terms of this Section), (b) pursuant to the
order of any Governmental Authority or in any pending legal, judicial or
administrative proceeding, or otherwise as required by any Requirement of Law,
rule or regulation, subpoena or compulsory legal process or upon the request
or demand of any regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) or
other Governmental Authority purporting to have jurisdiction over the
Administrative Agent, any Issuing Bank or any Lender, or any of their
respective Affiliates (in which case the Administrative Agent, such Issuing
Bank or such Lender, as applicable, hereby agrees (except with respect to any
audit or examination conducted by bank accountants or any self-regulatory
authority or Governmental Authority or regulatory authority exercising
examination or regulatory authority), to the extent practicable and not
prohibited by applicable law or regulation, to inform the Borrower
Representative promptly thereof prior to disclosure), (c) to the extent that
such Information is independently developed by the Administrative Agent, any
Issuing Bank, any Lender, or any of their respective Affiliates, (d) to any
other party to this Agreement, (e) in connection with the exercise of any
remedies under this Agreement or any other Loan Document or any suit, action
or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee (other than a Disqualified Institution) of or Participant in, or
any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Loan Parties and their obligations, (g) with the consent of the
Borrower Representative, (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender
on a non-confidential basis from a source other than the Borrowers, or (i) on
a confidential basis to (1) any rating agency in connection with rating any
Borrower or its Subsidiaries or the credit facilities provided for herein or
(2) the CUSIP Service Bureau or any similar agency in connection with the
issuance and monitoring of identification numbers with respect to the credit
facilities provided for herein. For the purposes of this Section,
"Information" means all information received from the Loan Parties relating to
the Loan Parties or their business, other than any such information that is
available to the Administrative Agent, the Issuing Bank or any Lender on a
non-confidential basis prior to disclosure by the Loan Parties and other than
information pertaining to this Agreement customarily provided by arrangers to
data service providers, including league table providers, that serve the
lending industry. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. EACH LENDER ACKNOWLEDGES THAT
INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS
AGREEMENT MAY INCLUDE MATERIAL
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DB2/ 43463576.548024258.7 220 NON-PUBLIC INFORMATION CONCERNING EACH BORROWER
AND ITS AFFILIATES, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE
PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY
THE LOAN PARTIES OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF
ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY
CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT INSIGHT, THE OTHER LOAN PARTIES
AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY
RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS. SECTION 9.13. Several Obligations;
Nonreliance; Violation of Law. The respective obligations of the Lenders
hereunder are several and not joint and the failure of any Lender to make any
Loan or perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. Each Lender hereby represents
that it is not relying on or looking to any margin stock (as defined in
Regulation U of the Board) for the repayment of the Borrowings provided for
herein. After the Effective Date, anything contained in this Agreement to the
contrary notwithstanding, neither the Issuing Bank nor any Lender shall be
obligated to extend credit to the Borrowers in violation of any Requirement of
Law. SECTION 9.14. USA PATRIOT Act; UK "Know Your Customer" Checks; Canadian
Anti-Money Laundering; Australian "Know Your Customer" Checks. (a) USA PATRIOT
Act. Each Lender that is subject to the requirements of the USA PATRIOT Act
hereby notifies each Loan Party that pursuant to the requirements of the USA
PATRIOT Act, it is required to obtain, verify and record information that
identifies such Loan Party, which information includes the name and address of
such Loan Party and other information that will allow such Lender to identify
such Loan Party in accordance with the USA PATRIOT Act. (b) UK "Know Your
Customer" Checks. (i) If (A) the introduction of or any change in (or in the
interpretation, administration or application of) any law or regulation made
after the Effective Date, (B) any change in the status of a U.K. Loan Party
after the Effective Date, or (C) a proposed assignment or transfer by a Lender
of any of its rights and obligations under this Agreement to a party that is
not a Lender prior to such assignment or transfer, obliges the Administrative
Agent or any Lender (or, in the case of paragraph (C) above, any prospective
new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, each U.K. Loan Party shall promptly upon the request of the
Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in paragraph (C) above, on
behalf of any prospective new Lender) in DB2/ 43463576.548024258.7 221 order
for the Administrative Agent, such Lender or, in the case of the event
described in paragraph (C) above, any prospective new Lender to carry out and
be satisfied it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Loan Documents; and (ii) each Lender shall
promptly upon the request of the supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself) in order for the Administrative Agent to
carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Loan Documents. (c) Canadian
Anti-Money Laundering Legislation. (i) Each Loan Party acknowledges that,
pursuant to the Proceeds of Crime Act and other applicable anti-money
laundering, anti-terrorist financing, government sanction and "know your
client" laws (collectively, including any guidelines or orders thereunder,
"AML Legislation"), the Lenders may be required to obtain, verify and record
information regarding the Loan Parties and their respective directors,
authorized signing officers, direct or indirect shareholders or other Persons
in control of the Loan Parties, and the transactions contemplated hereby. Each
Loan Party shall promptly provide all such information, including supporting
documentation and other evidence, as may be reasonably requested by any Lender
or any prospective assignee or participant of a Lender, any Issuing Bank or
any Agent, in order to comply with any applicable AML Legislation, whether now
or hereafter in existence. (ii) If the Administrative Agent has ascertained
the identity of any Loan Party or any authorized signatories of the Loan
Parties for the purposes of applicable AML Legislation, then the Administrative
Agent: (A) shall be deemed to have done so as an agent for each Lender, and
this Agreement shall constitute a "written agreement" in such regard between
each Lender and the Administrative Agent within the meaning of the applicable
AML Legislation; and (B) shall provide to each Lender copies of all
information obtained in such regard without any representation or warranty as
to its accuracy or completeness. Notwithstanding the preceding sentence and
except as may otherwise be agreed in writing, each of the Lenders agrees that
neither the Administrative Agent nor any other Agent has any obligation to
ascertain the identity of the Loan Parties or any authorized signatories of
the Loan Parties on behalf of any Lender, or to confirm the completeness or
accuracy of any information it obtains from any Loan Party or any such
authorized signatory in doing so. (d) Australian "Know Your Customer" Checks.
(i) If:
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DB2/ 43463576.548024258.7 222 (A) the introduction of or any change in (or in
the interpretation, administration or application of) any law or regulation
made after the Third Amendment Effective Date; (B) any change in the status of
an Australian Loan Party (or of the Borrower Representative or other parent
entity of an Australian Loan Party) after the Third Amendment Effective Date;
(C) any change in the authorized signatories of an Australian Loan Party after
the Third Amendment Effective Date; or (D) a proposed assignment or transfer
by a Lender of any of its rights and obligations under this Agreement to a
party that is not a Lender prior to such assignment or transfer, obliges the
Administrative Agent or any Lender (or, in the case of clause (D) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Australian Loan Party shall promptly upon
the request of the Administrative Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in clause (D) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in clause (D) above, any
prospective new Lender to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Loan
Documents. (ii) The Borrower Representative shall by not less than 10 Business
Days' prior written notice to the Administrative Agent, notify the
Administrative Agent (which shall promptly notify the Lenders) of its
intention to request that one of its Subsidiaries incorporated in Australia
becomes an Australian Loan Party pursuant to Section 5.14 of this Agreement.
(iii) Following the giving of any notice pursuant to clause (ii) above, if the
accession of such Australian Loan Party obliges the Administrative Agent or
any Lender to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, the Borrower Representative shall promptly upon the request
of the Administrative Agent or any Lender supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or on behalf of any prospective new Lender) in order for the
Administrative Agent or such Lender or any prospective new Lender to carry out
and be satisfied it has complied with all necessary "know your customer" or
other similar checks under all applicable laws and regulations pursuant to the
joinder of such Australian Loan Party to this Agreement. (iv) The Borrower
Representative shall promptly supply, or procure the supply of, such
documentation and other evidence reasonably requested by the DB2/
43463576.548024258.7 223 Administrative Agent (for itself or on behalf of any
Lender) from time to time in relation to an Australian Loan Party or to enable
a Lender to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to the Lender. SECTION 9.15. Disclosure. Each Loan Party, each
Lender and the Issuing Bank hereby acknowledges and agrees that the
Administrative Agent and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with any of
the Loan Parties and their respective Affiliates. SECTION 9.16. Appointment
for Perfection. Each Lender hereby appoints each other Lender as its agent for
the purpose of perfecting Liens, for the benefit of the Administrative Agent
and the other Secured Parties, in assets which, in accordance with Article 9
of the UCC or any other applicable law can be perfected only by possession or
control. Should any Lender (other than the Administrative Agent) obtain
possession or control of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent's
request therefor shall deliver such Collateral to the Administrative Agent or
otherwise deal with such Collateral in accordance with the Administrative
Agent's instructions. SECTION 9.17. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable
to any Loan, together with all fees, charges and other amounts which are
treated as interest on such Loan under applicable law (collectively the
"Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the NYFRB Rate to the date of repayment, shall have been received
by such Lender. SECTION 9.18. Marketing Consent. The Borrowers hereby
authorize the Arrangers and their affiliates, at their respective sole
expense, but without any prior approval by the Borrowers, to publish such
tombstones and give such other similar customary publicity to this Agreement
as each may from time to time determine in its sole discretion. The foregoing
authorization shall remain in effect unless and until the Borrower
Representative notifies the Arrangers in writing that such authorization is
revoked. SECTION 9.19. Acknowledgement and Consent to Bail-In of Affected
Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any
such parties, each party hereto acknowledges that any liability of any
Affected Financial Institution arising under any Loan Document may be subject
to the Write-Down and Conversion Powers of the applicable Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by: (a)
the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arising hereunder which may be
payable to it by any party hereto that is an Affected Financial Institution;
and (b) the effects of any Bail-In Action on any such liability, including, if
applicable:
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DB2/ 43463576.548024258.7 224 (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 other instruments of ownership in such Affected
Financial Institution, its parent entity, or a bridge institution that may be
issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with
respect 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
exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority. SECTION 9.20. No Fiduciary Duty, etc. (a) Each Borrower
acknowledges and agrees, and acknowledges its Subsidiaries' understanding,
that no Credit Party will have any obligations under the Loan Documents except
those obligations expressly set forth herein and in the other Loan Documents,
and in connection with the transactions contemplated by the Loan Documents,
each Credit Party is acting solely in the capacity of an arm's length
contractual counterparty to each Borrower with respect to the Loan Documents
and the transactions contemplated herein and therein and not as a financial
advisor or a fiduciary to, or an agent of, any Borrower or any other person.
Each Borrower agrees that it will not assert any claim against any Credit
Party based on an alleged breach of fiduciary duty by such Credit Party in
connection with this Agreement and the transactions contemplated hereby.
Additionally, each Borrower acknowledges and agrees that no Credit Party is
advising any Borrower as to any legal, tax, investment, accounting, regulatory
or any other matters in any jurisdiction. Each Borrower shall, to the extent
it deems appropriate, consult with its own advisors concerning such matters
and shall be responsible for making its own independent investigation and
appraisal of the transactions contemplated herein or in the other Loan
Documents, and the Credit Parties shall have no responsibility or liability to
any Borrower with respect thereto. (b) Each Borrower further acknowledges and
agrees, and acknowledges its Subsidiaries' understanding, that each Credit
Party, together with its Affiliates, is a full service securities or banking
firm engaged in securities trading and brokerage activities as well as
providing investment banking and other financial services. In the ordinary
course of business, any Credit Party may provide investment banking and other
financial services to, and/or acquire, hold or sell, for its own accounts and
the accounts of customers, equity, debt and other securities and financial
instruments (including bank loans and other obligations) of, any Borrower and
other companies with which any Borrower may have commercial or other
relationships. With respect to any securities and/or financial instruments so
held by any Credit Party or any of its customers, all rights in respect of
such securities and financial instruments, including any voting rights, will
be exercised by the holder of the rights, in its sole discretion. (c) In
addition, each Borrower acknowledges and agrees, and acknowledges its
Subsidiaries' understanding, that each Credit Party and its affiliates may be
providing debt financing, equity capital or other services (including
financial advisory services) to other companies in respect of which a Borrower
may have conflicting interests regarding the transactions described herein and
otherwise. No Credit Party will use confidential information obtained from any
Loan Party by virtue of the transactions contemplated by the Loan Documents or
its other relationships with such Loan Party in connection with the
performance by such Credit Party of services for other companies, and no
Credit Party will furnish any such information to DB2/ 43463576.548024258.7
225 other companies. Each Borrower also acknowledges that no Credit Party has
any obligation to use in connection with the transactions contemplated by the
Loan Documents, or to furnish to any Borrower, confidential information
obtained from other companies. SECTION 9.21. Acknowledgement Regarding Any
Supported QFCs. To the extent that the Loan Documents provide support, through
a guarantee or otherwise, for Swap Agreements or any other agreement or
instrument that is a QFC (such support "QFC Credit Support" and each such QFC
a "Supported QFC"), the parties acknowledge and agree as follows with respect
to the resolution power of the Federal Deposit Insurance Corporation under the
Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the "U.S. Special Resolution Regimes") in respect of such
Supported QFC and QFC Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the
United States or any other state of the United States). In the event a Covered
Entity that is party to a Supported QFC (each, a "Covered Party") becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer
of such Supported QFC and the benefit of such QFC Credit Support (and any
interest and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if
the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United
States or a state of the United States. In the event a Covered Party or a BHC
Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.
Special Resolution Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no
greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and the Loan Documents were
governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, it is understood and agreed that rights
and remedies of the parties with respect to a Defaulting Lender shall in no
event affect the rights of any Covered Party with respect to a Supported QFC
or any QFC Credit Support. SECTION 9.22. Dutch CIT Fiscal Unity. If, at any
time, a Loan Party resident for tax purposes in The Netherlands or carrying on
a business through a permanent establishment or deemed permanent establishment
in The Netherlands is part of a Dutch CIT Fiscal Unity with any of its group
entities resident for tax purposes in The Netherlands or carrying on a
business through a permanent establishment or deemed permanent establishment
in The Netherlands (a "Dutch CIT Fiscal Unity Member"), and such Dutch CIT
Fiscal Unity is, in respect of such Dutch CIT Fiscal Unity Member, terminated
or disrupted within the meaning of Article 15(6) of the Dutch CITA (or any
other provision which facilitates the termination of a Dutch CIT Fiscal Unity)
pursuant to or in connection with the Administrative Agent or other Secured
Party enforcing its rights under a Loan Document with respect to any
Collateral Document or the execution of any Collateral Document, the relevant
member of such Dutch CIT Fiscal Unity shall, for no consideration, as soon as
possible at the request of and together with the Dutch CIT Fiscal Unity Member
leaving the Dutch CIT Fiscal Unity, lodge a request with the Dutch tax
authorities to allocate and surrender any tax losses as referred to in Article
20 of the Dutch CITA to the Dutch CIT Fiscal Unity Member leaving the Dutch
CIT Fiscal Unity in connection with Article 15af of the Dutch CITA (or any
other provision which facilitates such allocation of tax losses upon
termination of the Dutch CIT Fiscal Unity), to the extent such tax losses are
attributable to the Dutch CIT Fiscal Unity Member leaving the Dutch CIT Fiscal
Unity.
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DB2/ 43463576.548024258.7 226 SECTION 9.23. Future Non-US Loan Parties.
Following the Third Amendment Effective Date, the Loan Parties may request
that certain Subsidiaries organized under the laws of France and Germany be
joined to the applicable Loan Documents as Loan Parties and the assets of such
Subsidiaries included in the Global Revolving Borrowing Base, in each case,
subject to the voting requirements set forth in Section 9.02 and any
applicable collateral, guarantee or other credit support requirements set
forth in any applicable Loan Documents, including Section 5.14. For the
avoidance of doubt and notwithstanding the foregoing provisions of this
Section 9.23 or any other provision of this Agreement, no Lender will be
required to commit to, or participate in, any tranche or facility under this
Agreement with respect to borrowers organized or formed under the laws of
Germany or France. SECTION 9.24. English Language. The parties hereto confirm
that it is their wish that this Agreement and any other document executed in
connection with the Transactions be drawn up in the English language only and
that all other documents contemplated thereunder or relating thereto,
including notices, may also be drawn up in the English language only. Les
parties aux presentes confirment que c'est leur volonte que cette convention
et les autres documents de credit y afferents soient rediges en anglais
seulement et que tous les documents, y compris tous avis, envisages par cette
convention soient rediges en anglais seulement. ARTICLE X Loan Guaranty of
Global Loan Parties SECTION 10.01. Guaranty. Each Loan Guarantor that is a
Global Loan Party (each reference to Loan Guarantors in this Article X being
limited to such Global Loan Parties) (other than those that have delivered a
separate Guaranty) hereby agrees that (i) it is jointly and severally liable
for, and, as a primary obligor and not merely as surety, except as otherwise
provided herein, absolutely, unconditionally and irrevocably guarantees to the
Secured Parties, the prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of the Secured
Obligations and, subject to the limitations in Section 9.03, all costs and
expenses, including, without limitation, subject to the limitations in Section
9.03, all court costs and attorneys' and paralegals' fees (including allocated
costs of in-house counsel and paralegals) and expenses paid or incurred by the
Administrative Agent, the Issuing Banks and the Lenders in endeavoring to
collect all or any part of the Secured Obligations from, or in prosecuting any
action against, any Borrower, any Loan Guarantor or any other guarantor of all
or any part of the Secured Obligations (such costs and expenses, together with
the Secured Obligations, collectively the "Global Guaranteed Obligations" and
(ii) if any Global Guaranteed Obligation is or becomes unenforceable, invalid
or illegal, it will, as an independent and primary obligation, indemnify the
relevant Secured Party immediately on demand against any cost, loss or
liability it incurs as a result of any Loan Guarantor not paying any amount
which would, but for such unenforceability, invalidity or illegality, have
been payable by it under any Loan Document on the date when it would have been
due (provided that he amount payable by a Loan Guarantor under this indemnity
will not exceed the amount it would have had to pay if the amount claimed had
been recoverable on the basis of a guarantee); provided, however, that the
definition of "Global Guaranteed Obligations" shall not create any guarantee
by any Loan Guarantor of (or grant of security interest by any Loan Guarantor
to support, as applicable) any Excluded Swap Obligations of such Loan
Guarantor for purposes of determining any obligations of any Loan Guarantor).
Each Loan Guarantor further agrees that the Global Guaranteed Obligations may
be extended or renewed in whole or in part without notice to or further assent
from it (except as expressly provided in Section 9.02), and that it remains
bound upon its guarantee notwithstanding any such extension or renewal. All
terms of this Loan Guaranty apply to and may be enforced by or on behalf of
any domestic or foreign branch or Affiliate of any Lender that extended any
portion of the Global Guaranteed Obligations. DB2/ 43463576.548024258.7 227
SECTION 10.02. Guaranty of Payment. This Loan Guaranty is a guaranty of
payment and not of collection. Each Loan Guarantor waives any right to require
the Administrative Agent, any Issuing Bank or any Lender to sue any Borrower
or any Loan Guarantor obligated for all or any part of the Guaranteed
Obligations, or otherwise to enforce its payment against any collateral
securing all or any part of the Global Guaranteed Obligations. SECTION 10.03.
No Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise
provided for herein, the obligations of each Loan Guarantor hereunder are
unconditional and absolute and not subject to any reduction, limitation,
impairment or termination for any reason (other than Payment in Full of the
Global Guaranteed Obligations), including: (i) any claim of waiver, release,
extension, renewal, settlement, surrender, alteration or compromise of any of
the Global Guaranteed Obligations, by operation of law or otherwise; (ii) any
change in the corporate existence, structure or ownership of any Borrower or
any other Loan Guarantor liable for any of the Global Guaranteed Obligations;
(iii) any insolvency, bankruptcy, reorganization or other similar proceeding
affecting any Loan Guarantor or their assets or any resulting release or
discharge of any obligation of any Loan Guarantor; or (iv) the existence of
any claim, setoff or other rights which any Loan Guarantor may have at any
time against any other Loan Guarantor, the Administrative Agent, any Issuing
Bank, any Lender or any other Person, whether in connection herewith or in any
unrelated transactions. (b) The obligations of each Loan Guarantor hereunder
are not subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Global Guaranteed Obligations or otherwise, or
any provision of applicable law or regulation purporting to prohibit payment
by any Loan Guarantor, of the Global Guaranteed Obligations or any part
thereof. (c) Further, the obligations of any Loan Guarantor hereunder are not
discharged or impaired or otherwise affected by: (i) the failure of the
Administrative Agent, any Issuing Bank or any Lender to assert any claim or
demand or to enforce any remedy with respect to all or any part of the Global
Guaranteed Obligations; (ii) any waiver or modification of or supplement to
any provision of any agreement relating to the Global Guaranteed Obligations;
(iii) any release, non-perfection or invalidity of any indirect or direct
security for the obligations of any Borrower for all or any part of the Global
Guaranteed Obligations or any obligations of any other Loan Guarantor liable
for any of the Global Guaranteed Obligations; (iv) any action or failure to
act by the Administrative Agent, any Issuing Bank or any Lender with respect
to any collateral securing any part of the Global Guaranteed Obligations; or
(v) any default, failure or delay, willful or otherwise, in the payment or
performance of any of the Global Guaranteed Obligations, or any other
circumstance, act, omission or delay that might in any manner or to any extent
vary the risk of such Loan Guarantor or that would otherwise operate as a
discharge of any Loan Guarantor as a matter of law or equity (other than
Payment in Full of the Global Guaranteed Obligations). SECTION 10.04. Defenses
Waived. To the fullest extent permitted by applicable law, each Loan Guarantor
hereby waives any defense based on or arising out of any defense of any
Borrower or any other Loan Guarantor or the unenforceability of all or any
part of the Global Guaranteed Obligations from any cause, or the cessation
from any cause of the liability of any Borrower or any other Loan Guarantor,
other than Payment in Full of the Global Guaranteed Obligations. Without
limiting the generality of the foregoing, each Loan Guarantor irrevocably
waives, to the fullest extent permitted by applicable law, acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any
notice not provided for herein, as well as any requirement that at any time
any action be taken
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DB2/ 43463576.548024258.7 228 by any Person against any other Loan Guarantor
or any other Person. Each Loan Guarantor confirms that it is not a surety
under any state law and shall not raise any such law as a defense to its
obligations hereunder. The Administrative Agent may, at its election,
foreclose on any Collateral held by it by one or more judicial or nonjudicial
sales, accept an assignment of any such Global Collateral in lieu of
foreclosure or otherwise act or fail to act with respect to any collateral
securing all or a part of the Global Guaranteed Obligations, compromise or
adjust any part of the Global Guaranteed Obligations, make any other
accommodation with any other Loan Guarantor or exercise any other right or
remedy available to it against any Loan Guarantor, without affecting or
impairing in any way the liability of such Loan Guarantor under this Loan
Guaranty except to the extent the Global Guaranteed Obligations have been Paid
in Full. To the fullest extent permitted by applicable law, each Loan
Guarantor waives any defense arising out of any such election even though that
election may operate, pursuant to applicable law, to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Loan
Guarantor against any other Loan Guarantor or any security. SECTION 10.05.
Rights of Subrogation. No Loan Guarantor will assert any right, claim or cause
of action, including, without limitation, a claim of subrogation, contribution
or indemnification, that it has against any other Loan Guarantor or any
collateral, until the Global Loan Parties and the Loan Guarantors have fully
performed all their obligations to the Administrative Agent, the Issuing Bank
and the Lenders. SECTION 10.06. Reinstatement; Stay of Acceleration. If at any
time any payment of any portion of the Global Guaranteed Obligations
(including a payment effected through exercise of a right of setoff) is
rescinded, or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise (including pursuant
to any settlement entered into by a Secured Party in its discretion), each
Loan Guarantor's obligations under this Loan Guaranty with respect to that
payment shall be reinstated at such time as though the payment had not been
made and whether or not the Administrative Agent, the Issuing Banks and the
Lenders are in possession of this Loan Guaranty. If acceleration of the time
for payment of any of the Global Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of any Borrower, all such amounts
otherwise subject to acceleration under the terms of any agreement relating to
the Global Guaranteed Obligations shall nonetheless be payable by the Loan
Guarantors forthwith on demand by the Administrative Agent. SECTION 10.07.
Information. Each Loan Guarantor assumes all responsibility for being and
keeping itself informed of the Borrowers' financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the Global
Guaranteed Obligations and the nature, scope and extent of the risks that each
Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that
none of the Administrative Agent, any Issuing Bank or any Lender shall have
any duty to advise any Loan Guarantor of information known to it regarding
those circumstances or risks. SECTION 10.08. Termination. Each of the Lenders
and the Issuing Banks may continue to make loans or extend credit to the
Borrowers based on this Loan Guaranty until five (5) days after it receives
written notice of termination from any Loan Guarantor. Notwithstanding receipt
of any such notice, each Loan Guarantor will continue to be liable to the
Lenders for any Global Guaranteed Obligations created, assumed or committed to
prior to the fifth (5th) day after receipt of the notice, and all subsequent
renewals, extensions, modifications and amendments with respect to, or
substitutions for, all or any part of such Global Guaranteed Obligations.
Nothing in this Section 10.08 shall be deemed to constitute a waiver of, or
eliminate, limit, reduce or otherwise impair any rights or remedies the
Administrative Agent or any Lender may have in respect of, any Default or
Event of Default that shall exist under clause (o) of Article VII hereof as a
result of any such notice of termination. DB2/ 43463576.548024258.7 229
SECTION 10.09. Taxes. Each payment of the Global Guaranteed Obligations will
be made by each Loan Guarantor without withholding for any Taxes, unless such
withholding is required by law. If any Loan Guarantor determines, in its sole
discretion exercised in good faith, that it is so required to withhold Taxes,
then such Loan Guarantor may so withhold and shall timely pay the full amount
of withheld Taxes to the relevant Governmental Authority in accordance with
applicable law. If such Taxes are Indemnified Taxes, then the amount payable
by such Loan Guarantor shall be increased as necessary so that, net of such
withholding (including such withholding applicable to additional amounts
payable under this Section), the Administrative Agent, any Lender or any
Issuing Bank (as the case may be) receives the amount it would have received
had no such withholding been made. SECTION 10.10. Maximum Liability.
Notwithstanding any other provision of this Loan Guaranty, the amount
guaranteed by each Loan Guarantor hereunder shall be limited to the extent, if
any, required so that its obligations hereunder shall not be subject to
avoidance under Section 548 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act,
Uniform Voidable Transactions Act or similar statute or common law. In
determining the limitations, if any, on the amount of any Loan Guarantor's
obligations hereunder pursuant to the preceding sentence, it is the intention
of the parties hereto that any rights of subrogation, indemnification or
contribution which such Loan Guarantor may have under this Loan Guaranty, any
other agreement or applicable law shall be taken into account. SECTION 10.11.
Contribution. (a) To the extent that any Loan Guarantor shall make a payment
under this Loan Guaranty (a "Global Guarantor Payment") which, taking into
account all other Global Guarantor Payments then previously or concurrently
made by any other Loan Guarantor, exceeds the amount which otherwise would
have been paid by or attributable to such Loan Guarantor if each Loan
Guarantor had paid the aggregate Global Guaranteed Obligations satisfied by
such Global Guarantor Payment in the same proportion as such Loan Guarantor's
"Global Allocable Amount" (as defined below) (as determined immediately prior
to such Global Guarantor Payment) bore to the aggregate Global Allocable
Amounts of each of the Loan Guarantors as determined immediately prior to the
making of such Global Guarantor Payment, then, following indefeasible payment
in full in cash of the Global Guarantor Payment and the Payment in Full of the
Global Guaranteed Obligations and the termination of this Agreement, such Loan
Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each other Loan Guarantor for the amount
of such excess, pro rata based upon their respective Global Allocable Amounts
in effect immediately prior to such Global Guarantor Payment. (b) As of any
date of determination, the "Global Allocable Amount" of any Loan Guarantor
shall be equal to the excess of the fair saleable value of the property of
such Loan Guarantor over the total liabilities of such Loan Guarantor
(including the maximum amount reasonably expected to become due in respect of
contingent liabilities, calculated, without duplication, assuming each other
Loan Guarantor that is also liable for such contingent liability pays its
ratable share thereof), giving effect to all payments made by other Loan
Guarantors as of such date in a manner to maximize the amount of such
contributions. (c) This Section 10.11 is intended only to define the relative
rights of the Loan Guarantors, and nothing set forth in this Section 10.11 is
intended to or shall impair the obligations of the Loan Guarantors, jointly
and severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Loan Guaranty.
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DB2/ 43463576.548024258.7 230 (d) The parties hereto acknowledge that the
rights of contribution and indemnification hereunder shall constitute assets
of the Loan Guarantor or Loan Guarantors to which such contribution and
indemnification is owing. (e) The rights of the indemnifying Loan Guarantors
against other Loan Guarantors under this Section 10.11 shall be exercisable
upon the Payment in Full of the Global Guaranteed Obligations and the
termination of this Agreement. SECTION 10.12. Liability Cumulative. The
liability of each Global Loan Party as a Loan Guarantor under this Article X
is in addition to and shall be cumulative with all liabilities of each Global
Loan Party to the Administrative Agent, the Issuing Banks and the Lenders
under this Agreement and the other Loan Documents to which such Global Loan
Party is a party or in respect of any obligations or liabilities of the other
Loan Parties, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary. SECTION 10.13. Keepwell. Each Qualified ECP Guarantor that is a
Loan Guarantor under this Article X hereby jointly and severally absolutely,
unconditionally and irrevocably undertakes to provide such funds or other
support as may be needed from time to time by each other Global Loan Party to
honor all of its obligations under any Loan Guaranty in respect of a Swap
Obligation (provided, however, that each Qualified ECP Guarantor that is a
Loan Guarantor under this Article X shall only be liable under this Section
10.13 for the maximum amount of such liability that can be hereby incurred
without rendering its obligations under this Section 10.13 or otherwise under
any Loan Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). Except as
otherwise provided herein, the obligations of each Qualified ECP Guarantor
under this Section 10.13 shall remain in full force and effect until the
termination of all Swap Obligations. Each Qualified ECP Guarantor intends that
this Section 10.13 constitute, and this Section 10.13 shall be deemed to
constitute, a "keepwell, support, or other agreement" for the benefit of each
other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity
Exchange Act. ARTICLE XI The Borrower Representative SECTION 11.01.
Appointment; Nature of Relationship. Insight is hereby appointed by each of
the Borrowers as its contractual representative (herein referred to as the
"Borrower Representative") hereunder and under each other Loan Document, and
each of the Borrowers irrevocably authorizes the Borrower Representative to
act as the contractual representative of such Borrower with the rights and
duties expressly set forth herein and in the other Loan Documents. The
Borrower Representative agrees to act as such contractual representative upon
the express conditions contained in this Article XI. The Administrative Agent
and the Lenders, and their respective officers, directors, agents or
employees, shall not be liable to the Borrower Representative or any Borrower
for any action taken or omitted to be taken by the Borrower Representative or
the Borrowers pursuant to this Section 11.01. SECTION 11.02. Powers. The
Borrower Representative shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Borrower Representative by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Borrower Representative shall have no implied duties to the
Borrowers, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents to be taken by
the Borrower Representative. DB2/ 43463576.548024258.7 231 SECTION 11.03.
Employment of Agents. The Borrower Representative may execute any of its
duties as the Borrower Representative hereunder and under any other Loan
Document by or through authorized officers. SECTION 11.04. Successor Borrower
Representative. Upon the prior written consent of the Administrative Agent,
the Borrower Representative may resign at any time, such resignation to be
effective upon the appointment of a successor Borrower Representative. The
Administrative Agent shall give prompt written notice of such resignation to
the Lenders. SECTION 11.05. Execution of Loan Documents; Borrowing Base
Certificate. The Borrowers hereby empower and authorize the Borrower
Representative, on behalf of the Borrowers, to execute and deliver to the
Administrative Agent and the Lenders the Loan Documents and all related
agreements, certificates, documents, or instruments as shall be necessary or
appropriate to effect the purposes of the Loan Documents, including, without
limitation, the Borrowing Base Certificates and the Compliance Certificates.
Each Borrower agrees that any action taken by the Borrower Representative or
the Borrowers in accordance with the terms of this Agreement or the other Loan
Documents, and the exercise by the Borrower Representative of its powers set
forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of the Borrowers. ARTICLE XII
Collection Allocation Mechanism (a) On the CAM Exchange Date, (i) the
Revolving Commitments and FILO Commitments shall automatically and without
further act be terminated as provided in Article VII and (ii) the Revolving
Lenders shall automatically and without further act be deemed to have made
reciprocal purchases of interests in the Designated Obligations such that, in
lieu of the interests of each Revolving Lender in the particular Designated
Obligations that it shall own as of such date and immediately prior to the CAM
Exchange, such Revolving Lender shall own an interest equal to such Revolving
Lender's CAM Percentage in each Designated Obligation. Each Lender, each
person acquiring a participation from any Lender as contemplated by Section
9.04 and each Borrower hereby consents and agrees to the CAM Exchange. Each
Borrower and each Revolving Lender agrees from time to time to execute and
deliver to the Administrative Agent all such promissory notes and other
instruments and documents as the Administrative Agent shall reasonably request
to evidence and confirm the respective interests and obligations of the
Revolving Lenders after giving effect to the CAM Exchange, and each Revolving
Lender agrees to surrender any promissory notes originally received by it
hereunder to the Administrative Agent against delivery of any promissory notes
so executed and delivered; provided that the failure of any Borrower to
execute or deliver or of any Revolving Lender to accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of
the CAM Exchange. (b) As a result of the CAM Exchange, on and after the CAM
Exchange Date, each payment received by the Administrative Agent pursuant to
any Loan Document in respect of the Designated Obligations shall be
distributed to the Revolving Lenders pro rata in accordance with their
respective CAM Percentages (to be redetermined as of each such date of payment
or distribution to the extent required by the clause (c) below). (c) In the
event that, after the CAM Exchange, the aggregate amount of the Designated
Obligations shall change as a result of the making of an LC Disbursement by an
Issuing Bank that is not reimbursed by the applicable Borrower, then (i) each
Revolving Lender
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DB2/ 43463576.548024258.7 232 shall, in accordance with Section 2.06(d),
promptly purchase from such Issuing Bank a participation in such LC
Disbursement in the amount of such Revolving Lender's Applicable Percentage of
such LC Disbursement (without giving effect to the CAM Exchange), (ii) the
Administrative Agent shall redetermine the CAM Percentages after giving effect
to such LC Disbursement and the purchase of participations therein by the
applicable Revolving Lenders, and the Revolving Lenders shall automatically
and without further act be deemed to have made reciprocal purchases of
interests in the Designated Obligations such that each Revolving Lender shall
own an interest equal to such Revolving Lender's CAM Percentage in each of the
Designated Obligations and (iii) in the event distributions shall have been
made in accordance with the preceding paragraph, the Revolving Lenders shall
make such payments to one another as shall be necessary in order that the
amounts received by them shall be equal to the amounts they would have
received had each LC Disbursement been outstanding immediately prior to the
CAM Exchange. Each such redetermination shall be binding on each of the
Revolving Lenders and their successors and assigns in respect of the
Designated Obligations held by such Persons and shall be conclusive absent
manifest error. (d) Nothing in this Article shall prohibit the assignment by
any Revolving Lender of interests in some but not all of the Designated
Obligations held by it after giving effect to the CAM Exchange; provided, that
in connection with any such assignment such Revolving Lender and its assignee
shall enter into an agreement setting forth their reciprocal rights and
obligations in the event of a redetermination of the CAM Percentages as
provided in the immediately preceding paragraph. [Remainder of Page
Intentionally Left Blank; Signature Pages Intentionally Omitted] DB2/
48015900.9 EXHIBIT B UNMARKED CREDIT AGREEMENT Please see attached.
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CONFORMED THROUGH FOURTH AMENDMENT 899508.02-LACSR02A - MSW DB2/ 48024258.7
CREDIT AGREEMENT dated as of August 30, 2019 among INSIGHT ENTERPRISES, INC.,
PCM, INC., and THE OTHER U.S. BORROWERS FROM TIME TO TIME PARTY HERETO, each,
a U.S. Borrower, INSIGHT DIRECT (UK) LTD and THE OTHER U.K. BORROWERS FROM
TIME TO TIME PARTY HERETO, each, a U.K. Borrower, INSIGHT ENTERPRISES
NETHERLANDS B.V., INSIGHT ENTERPRISES B.V., and THE OTHER DUTCH BORROWERS FROM
TIME TO TIME PARTY HERETO, each, a Dutch Borrower, INSIGHT ENTERPRISES
AUSTRALIA PTY LTD and THE OTHER AUSTRALIAN BORROWERS FROM TIME TO TIME PARTY
HERETO, each, an Australian Borrower, The Other Loan Parties From Time to Time
Party Hereto, The Lenders From Time to Time Party Hereto and JPMORGAN CHASE
BANK, N.A., as Administrative Agent ___________________________ JPMORGAN CHASE
BANK, N.A., WELLS FARGO BANK, N.A., BANK OF AMERICA, N.A., and U.S. BANK
NATIONAL ASSOCIATION as Joint Bookrunners, Joint Lead Arrangers, and
Co-Syndication Agents BANK OF THE WEST, TRUIST BANK, and PNC BANK, NATIONAL
ASSOCIATION as Co-Documentation Agents i 899508.02-LACSR02A - MSW DB2/
48024258.7 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS ........................
................................................................................
................ 2 Defined Terms ...............................................
....................................................... 2 Classification of
Loans and Borrowings ...........................................................
. 74 Terms Generally ...........................................................
...................................... 74 Accounting Terms; GAAP ...............
.................................................................. 74 Interest
Rates; Benchmark Notifications .................................................
.......... 75 Pro Forma Calculations ...........................................
........................................... 76 Currency Translations; Currency
Matters .......................................................... 76 Quebec
Matters ........................................................................
.......................... 77 Limited Condition Transactions ...................
...................................................... 77 Reserves,
Eligibility and Advances Rates .................................................
......... 78 Divisions. ........................................................
................................................... 79 Australian matters.
................................................................................
............. 79 ARTICLE II THE CREDITS ........................................
.............................................................................
79 Commitments .................................................................
.................................... 79 Loans and Borrowings. ..................
.................................................................... 80
Requests for Borrowings ........................................................
............................ 81 Protective Advances. ...........................
............................................................... 83 Revolving
Overadvances and FILO Overadvances. ..........................................
84 Letters of Credit. ..........................................................
...................................... 86 Funding of Borrowings ................
...................................................................... 92
Interest Elections. ............................................................
................................... 93 Termination and Reduction of Revolving
Commitments and FILO Commitments; Increase in Revolving Commitments.
...................................... 95 Repayment of Loans; Evidence of
Debt. ......................................................... 100 Prepayment
of Loans........................................................................
................ 102 Fees. .....................................................
............................................................ 104 Interest.
................................................................................
............................. 105 Alternate Rate of Interest; Illegality.
................................................................ 107 Increased
Costs. .........................................................................
...................... 111 Break Funding Payments ..............................
................................................... 112 Withholding of Taxes;
Gross-Up .....................................................................
113 Payments Generally; Allocation of Proceeds; Sharing of Setoffs.
................... 124 Mitigation Obligations; Replacement of Lenders.
........................................... 128 Defaulting Lenders
................................................................................
........... 129 Returned Payments...............................................
............................................ 131 Banking Services and Swap
Agreements ......................................................... 132
Extension of Maturity Date. ....................................................
......................... 132 Judgment Currency ................................
.......................................................... 134 ARTICLE III
REPRESENTATIONS AND WARRANTIES. ................................................
................ 134 Organization; Powers ......................................
................................................. 134 Authorization;
Enforceability. ................................................................
.......... 134 Governmental Approvals; No Conflicts ............................
............................... 135
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DB2/ 48024258.7 ii Financial Condition; No Material Adverse Change.
........................................ 135 Properties ........................
................................................................................
. 136 Litigation and Environmental Matters. ....................................
........................ 136 Compliance with Laws and Agreements; No Default
...................................... 136 Investment Company Status
.............................................................................
137 Taxes ......................................................................
.......................................... 137 ERISA; Foreign Benefit
Arrangement; Canadian Pension Plan and Benefit Plan; UK Pensions.
.............................................................................
137 Disclosure. ................................................................
........................................ 138 [Reserved]. .......................
................................................................................
138 Solvency ..................................................................
......................................... 138 Insurance ........................
................................................................................
.. 139 Subsidiaries ............................................................
.......................................... 139 Security Interest in Collateral
...........................................................................
139 Employment Matters .........................................................
............................... 139 Margin Regulations .........................
................................................................. 139 Use of
Proceeds .......................................................................
......................... 139 [Reserved]. ......................................
................................................................. 139
Anti-Corruption Laws and Sanctions .............................................
.................. 140 [Reserved]. .............................................
.......................................................... 140 Common
Enterprise .....................................................................
.................... 140 Affected Financial Institutions .......................
.................................................. 140 Plan Assets; Prohibited
Transactions ...............................................................
140 Centre of Main Interest and Establishments .................................
................... 140 Fiscal Unity ...........................................
........................................................... 141 Australian Tax
Consolidation and Payment of Taxes. ..................................... 141
Commercial Benefit. ............................................................
............................ 141 No Immunity. ..................................
................................................................. 141 ARTICLE
IV CONDITIONS ..................................................................
................................................ 141 Effective Date
................................................................................
.................. 141 Each Credit Event after the Effective Date
...................................................... 144 ARTICLE V
AFFIRMATIVE COVENANTS ..........................................................
.............................. 144 Financial Statements; Borrowing Base and
Other Information ....................... 145 Notices of Material Events
...............................................................................
148 Existence; Conduct of Business .............................................
.......................... 149 Payment of Taxes ................................
............................................................. 149 Maintenance
of Properties ..................................................................
.............. 150 Books and Records; Inspection and Appraisal Rights
..................................... 150 Compliance with Laws and Material
Contractual Obligations. ....................... 151 Use of Proceeds.
................................................................................
............... 151 [Reserved]. ................................................
....................................................... 152 Insurance
................................................................................
.......................... 152 Casualty and Condemnation .......................
..................................................... 152 [Reserved].
................................................................................
....................... 153 [Reserved]. ........................................
............................................................... 153 Additional
Collateral; Further Assurances. ................................................
...... 153 Designation of Subsidiaries .........................................
..................................... 154 Foreign Loan Party Cash Management
Provisions .......................................... 155 DB2/ 48024258.7 iii
Transfer of Accounts of Foreign Loan Parties; Notification of Account Debtors
................................................................................
............................ 155 U.K ...........................................
........................................................................ 156
Dutch CIT Fiscal Unity .........................................................
........................... 156 [Reserved]. ....................................
................................................................... 156 Centre
of Main Interest and Establishments ............................................
........ 156 Post-Closing Matters ..............................................
.......................................... 156 ARTICLE VI NEGATIVE COVENANTS
................................................................................
............. 157 Indebtedness .................................................
.................................................... 157 Liens .................
................................................................................
................ 160 Fundamental Changes. ......................................
............................................... 162 Investments, Loans,
Advances, Guarantees and Acquisitions ......................... 164 Asset
Sales ..........................................................................
............................. 166 Sale and Leaseback Transactions
..................................................................... 169 Swap
Agreements......................................................................
....................... 169 Restricted Payments; Certain Payments of
Indebtedness................................. 169 Transactions with Affiliates
.............................................................................
171 Restrictive Agreements .....................................................
............................... 171 Amendment of Material Documents
................................................................ 172 Fixed
Charge Coverage Ratio ..........................................................
................ 172 Australian Tax Matters.. ..................................
............................................... 172 ARTICLE VII EVENTS OF
DEFAULT ........................................................................
......................... 172 ARTICLE VIII THE ADMINISTRATIVE AGENT
..............................................................................
176 Authorization and Action. ..................................................
.............................. 176 Administrative Agent's Reliance, Limitation
of Liability, Etc. ....................... 179 Posting of Communications.
............................................................................
180 The Administrative Agent Individually ......................................
..................... 182 Successor Administrative Agent. ......................
............................................... 182 Acknowledgements of
Lenders and Issuing Bank. .......................................... 183
Collateral Matters .............................................................
................................ 186 Credit Bidding ............................
...................................................................... 186
Certain ERISA Matters ..........................................................
.......................... 187 Flood Laws ......................................
................................................................. 189
Appointment of Administrative Agent as U.K Security Trustee ....................
. 189 Parallel Debt Undertaking ................................................
................................ 192 Appointment of Administrative Agent as
Australian Security Trustee. .......... 193 ARTICLE IX MISCELLANEOUS
................................................................................
......................... 194 Notices. .........................................
................................................................... 194
Waivers; Amendments. ...........................................................
......................... 196 Expenses; Indemnity; Limitation of Liability;
Etc. .......................................... 200 Successors and Assigns.
................................................................................
... 202 Survival ...............................................................
............................................. 206 Counterparts; Integration;
Effectiveness; Electronic Execution. ..................... 207 Severability
................................................................................
...................... 208 Right of Setoff .....................................
............................................................. 208 Governing
Law; Jurisdiction; Consent to Service of Process. .........................
208 WAIVER OF JURY TRIAL .......................................................
.................. 210
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DB2/ 48024258.7 iv Headings ....................................................
....................................................... 210 Confidentiality
................................................................................
................. 210 Several Obligations; Nonreliance; Violation of Law
....................................... 211 USA PATRIOT Act; UK "Know Your
Customer" Checks; Canadian Anti-Money Laundering; Australian "Know Your
Customer" Checks. ......... 212 Disclosure .....................................
.................................................................... 214
Appointment for Perfection .....................................................
......................... 214 Interest Rate Limitation..........................
.......................................................... 214 Marketing
Consent ........................................................................
................... 215 Acknowledgement and Consent to Bail-In of Affected
Financial Institutions .........................................................
.............................................. 215 No Fiduciary Duty, etc.
................................................................................
.... 215 Acknowledgement Regarding Any Supported QFCs ..........................
............ 216 Dutch CIT Fiscal Unity ........................................
............................................ 217 Future Non-US Loan Parties.
...........................................................................
217 English Language ...........................................................
.................................. 217 ARTICLE X LOAN GUARANTY OF GLOBAL LOAN
PARTIES ..................................................... 217 Guaranty
................................................................................
......................... 217 Guaranty of Payment...............................
....................................................... 218 No Discharge or
Diminishment of Loan Guaranty. ....................................... 218
Defenses Waived ................................................................
............................ 219 Rights of Subrogation .........................
........................................................... 219 Reinstatement;
Stay of Acceleration ...........................................................
... 219 Information ............................................................
......................................... 219 Termination ......................
..............................................................................
220 Taxes ......................................................................
........................................ 220 Maximum Liability .................
....................................................................... 220
Contribution. ..................................................................
................................ 220 Liability Cumulative ......................
................................................................ 221 Keepwell
................................................................................
........................ 221 ARTICLE XI THE BORROWER REPRESENTATIVE
........................................................................ 221
Appointment; Nature of Relationship ............................................
................ 221 Powers ....................................................
........................................................ 222 Employment of
Agents .........................................................................
......... 222 Successor Borrower Representative ................................
............................... 222 Execution of Loan Documents; Borrowing
Base Certificate ......................... 222 ARTICLE XII COLLECTION
ALLOCATION MECHANISM ...........................................................
. 222 v 899508.02-LACSR02A - MSW DB2/ 48024258.7 SCHEDULES: Commitment
Schedule Schedule 1.01(a) - Existing Letters of Credit Schedule 1.01(b) -
Unrestricted Subsidiaries Schedule 3.05 - Real Property Schedule 3.06 -
Disclosed Matters Schedule 3.15 - Subsidiaries Schedule 5.22 - Post-Closing
Matters Schedule 6.01 - Existing Indebtedness Schedule 6.02 - Existing Liens
Schedule 6.04 - Existing Investments Schedule 6.10 - Existing Restrictions
EXHIBITS: Exhibit A -- Form of Assignment and Assumption Exhibit B -- Form of
Borrowing Base Certificate Exhibit C -- Form of Compliance Certificate Exhibit
D - Form of Joinder Agreement Exhibit E - Form of Solvency Certificate Exhibit
F - Form of Borrowing Request Exhibit G-1 - Form of U.S. Tax Compliance
Certificate Exhibit G-2 - Form of U.S. Tax Compliance Certificate Exhibit G-3
- Form of U.S. Tax Compliance Certificate Exhibit G-4 - Form of U.S. Tax
Compliance Certificate
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DB2/ 48024258.7 CREDIT AGREEMENT CREDIT AGREEMENT dated as of August 30, 2019
(as it may be amended, amended and restated, supplemented or modified from
time to time, this "Agreement") by and among INSIGHT ENTERPRISES, INC., a
Delaware corporation ("Insight"), INSIGHT NORTH AMERICA, INC., an Arizona
corporation ("Insight NA"), INSIGHT DIRECT USA, INC., an Illinois corporation
("Insight Direct"), INSIGHT PUBLIC SECTOR, INC., an Illinois corporation
("Insight Public Sector"), INSIGHT RECEIVABLES, LLC, an Illinois limited
liability company ("Insight Receivables"), PCM, INC., a Delaware corporation
("PCM"), INSIGHT DIRECT PHILIPPINES, LLC (FORMERLY KNOWN AS PCM BPO, LLC), a
Delaware limited liability company ("Insight Direct Philippines"), SADA
SYSTEMS, LLC, a Delaware limited liability company ("SADA Systems"), the other
U.S. Borrowers (as defined below) from time to time party hereto, INSIGHT
DIRECT (UK) LTD, a company incorporated under the laws of England with
registration number 02579852 ("Insight UK"), INSIGHT NETWORKING SOLUTIONS
LIMITED, a company incorporated under the laws of England with registration
number 04482870 ("Insight Networking"), STACK TECHNOLOGY HOLDINGS LTD, a
company incorporated under the laws of England with registration number
07170448 ("Stack Technology"), STACK DATA SOLUTIONS LTD, a company
incorporated under the laws of England with registration number 01865047
("Stack Data Solutions"), STACK TELECOMMUNICATIONS SOLUTIONS LTD, a company
incorporated under the laws of England with registration number 07423212
("Stack Telecommunications"), INTERCONNECT NETWORK SYSTEMS LIMITED, a company
incorporated under the laws of England with registration number 03645464
("Interconnect Network"), PCM TECHNOLOGY SOLUTIONS UK, LTD, a company
incorporated under the laws of England with registration number 10326566 ("PCM
Technology"), the other U.K. Borrowers (as defined below) from time to time
party hereto, INSIGHT ENTERPRISES NETHERLANDS B.V., a besloten vennotschap met
beperkte aansprakelijkheid, incorporated under the laws of The Netherlands,
having its official seat in Apeldoorn, The Netherlands and registered with the
Dutch trade register under number 08074503 ("Insight Netherlands"), INSIGHT
ENTERPRISES B.V., a besloten vennotschap met beperkte aansprakelijkheid,
incorporated under the laws of The Netherlands, having its official seat in
The Hague, The Netherlands and registered with the Dutch trade register under
number 27148512 ("Insight Enterprises"), the other Dutch Borrowers (as defined
below) from time to time party hereto, INSIGHT ENTERPRISES AUSTRALIA PTY LTD
ACN 058 645 677, a company registered in New South Wales, Australia with its
registered address at 'Building C', Level 3, 114 Old Pittwater Road, Brookvale
NSW 2100 ("Insight Australia"), the other Australian Borrowers (as defined
below) from time to time party hereto, the other Loan Parties (as defined
below) from time to time party hereto, the Lenders (as defined below) from
time to time party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative
Agent (as defined below) and Australian Security Trustee. RECITALS WHEREAS,
pursuant to that certain Agreement and Plan of Merger, dated as of June 23,
2019 (as amended, supplemented, modified or otherwise in effect from time to
time, and including all exhibits and schedules thereto, collectively, the
"Trojan Merger Agreement"), entered into by and among Insight, Merger Sub, and
PCM, Insight will, directly or indirectly, acquire by merger (the "Trojan
Acquisition"), PCM (collectively with the Subsidiaries of PCM, the "Target")
pursuant to the terms of, and subject to the conditions set forth in, the
Trojan Merger Agreement; WHEREAS, on the Effective Date (as defined below),
the Trojan Acquisition will be effected by merger of Merger Sub with and into
PCM, with PCM being the surviving entity and a Wholly Owned Subsidiary of
Insight; DB2/ 48024258.7 2 WHEREAS, the Borrowers have requested, and the
Lenders have agreed to extend to the Borrowers, Revolving Commitments (as
defined below) of up to an aggregate principal amount of $1,800,000,000,
subject to the terms and conditions herein; and WHEREAS, the Lenders have
indicated their willingness to lend, and the Issuing Banks have indicated
their willingness to issue Letters of Credit, in each case, on the terms and
subject to the conditions set forth herein. In consideration of the mutual
covenants and agreements contained herein, the parties hereto agree as
follows: ARTICLE I Definitions Defined Terms. As used in this Agreement, the
following terms have the meanings specified below: "Acceptable Real Estate
Appraisal" has the meaning assigned to such term in the definition of
"Eligible Real Property". "Account" has the meaning assigned to the term (a)
"Accounts" in the U.S. Security Agreement, (b) "Book Debts" in the U.K.
Debenture (with respect to Accounts of a U.K. Loan Party), (c) "Receivables"
in the Dutch Omnibus Pledge (with respect to Accounts of a Dutch Loan Party),
(d) "Accounts" in the Canadian Security Agreement (with respect to Accounts of
a Canadian Loan Party) and (e) account in the Australian PPSA (with respect to
Accounts of an Australian Loan Party or Accounts owed by Account Debtors
located in Australia). "Account Advance Rate" means (i) with respect to
Eligible Accounts owing from Investment Grade Account Debtors, 90% and (ii)
with respect to Eligible Accounts owing from all other Account Debtors, 85%
(it being understood that the Borrower Representative shall have the ability
to increase this advance rate to 90% under this clause (ii) for any two (2)
consecutive calendar months of each year at its option by providing the
Administrative Agent written notice of such increase at least ten (10) days
prior to the beginning of such two calendar month period, and such increase
shall apply with respect to each Borrowing Base) (other than the FILO
Borrowing Base)). "Account Debtor" means any Person obligated on an Account.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Effective Date, by which any Loan Party or any
Restricted Subsidiary (a) acquires any going business or all or substantially
all of the assets of any Person, whether through purchase of assets, merger or
otherwise or (b) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the Equity Interests of a Person which has ordinary voting
power for the election of directors or other similar management personnel of a
Person (other than Equity Interests having such power only by reason of the
happening of a contingency) or a majority of the outstanding Equity Interests
of a Person. "Additional Perfection Steps" means the provision of Collateral
Documents or the taking of further perfection steps by the applicable
Borrowers and/or Canadian Loan Guarantors, as applicable (including
notification of any security to the relevant Account Debtors) (in each case to
the extent requested by, and satisfactory to the Administrative Agent), during
a Cash Dominion Period in respect of Accounts of
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DB2/ 48024258.7 3 Account Debtors of such Loan Parties to ensure, in the
Administrative Agent's Permitted Discretion, that the Administrative Agent has
a duly perfected and enforceable security interest and Lien on such Accounts
under the laws of the applicable jurisdiction. "Adjusted Daily Simple RFR"
means, (i) with respect to any RFR Borrowing denominated in Sterling, an
interest rate per annum equal to the Daily Simple RFR for Sterling and (ii)
with respect to any RFR Borrowing denominated in U.S. Dollars, an interest
rate per annum equal to the Daily Simple RFR for Dollars plus the Credit
Adjustment Spread. "Adjusted Daily Simple ESTR" means, with respect to any
Overnight Rate Loan denominated in Euros, an interest rate per annum equal to
the Daily Simple ESTR for Euros. "Adjusted EURIBOR Rate" means, with respect
to any Term Benchmark Borrowing denominated in Euros for any Interest Period,
an interest rate per annum equal to (a) the EURIBOR Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate. "Adjusted REVSOFR30 Rate"
(i) means an interest rate per annum equal to (a) the REVSOFR30 Rate plus (b)
the Credit Adjustment Spread; provided that (x) if the Adjusted REVSOFR30 Rate
as so determined would be less than the Floor, such rate shall be deemed to be
equal to the Floor for the purposes of this Agreement and (y) if the REVSOFR30
Rate shall not be available, then the Adjusted REVSOFR30 Rate shall be equal
to the CB Floating Rate (unless an alternate rate is established in accordance
with Section 2.14); and (ii) when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted REVSOFR30
Rate. "Adjusted Term SOFR Rate" means, with respect to any Term Benchmark
Borrowing denominated in U.S. Dollars for any Interest Period, an interest
rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus
(b) the Credit Adjustment Spread; provided that if the Adjusted Term SOFR Rate
as so determined would be less than the Floor, such rate shall be deemed to be
equal to the Floor for the purposes of this Agreement. "Administrative Agent"
means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for
the Lenders and collateral agent (including as Australian Security Trustee)
and hypothecary representative (pursuant to Section 8.01) for the Secured
Parties hereunder or, as applicable, such branches or affiliates of JPMorgan
Chase Bank, N.A. as it shall from time to time designate for the purposes of
performing its obligations hereunder in such capacities. References to the
"Administrative Agent" shall include any branch or affiliate of JPMorgan Chase
Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of
performing its obligations in such capacity. "Administrative Agent Fee Letter"
means that certain fee letter, dated June 23, 2019, by and between the
Administrative Agent and the Borrower Representative. "Administrative
Questionnaire" means an Administrative Questionnaire in a form supplied by the
Administrative Agent. "Affected Financial Institution" means (a) any EEA
Financial Institution or (b) any U.K. Financial Institution. "Affiliate"
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the specified Person. DB2/ 48024258.7 4
"Agent-Related Person" has the meaning assigned to it in Section 9.03(c).
"Aggregate Combined Commitment" means, at any time, the sum of (a) the
Aggregate Revolving Commitment at such time plus (b) the Aggregate FILO
Commitment at such time. "Aggregate Combined Exposure" means, at any time, the
sum of (a) the Aggregate Revolving Exposure at such time plus (b) the
Aggregate FILO Exposure at such time. "Aggregate Excess Availability" means,
as of any date of determination, an amount equal to the sum of (a) the U.S.
Excess Availability as of such time, plus (b) the Foreign Excess Availability
as of such time, plus (c) the FILO Excess Availability as of such time.
"Aggregate FILO Commitment" means, at any time, the aggregate of the FILO
Commitments of all of the Lenders at such time, as in effect or reduced from
time to time pursuant to the terms and conditions hereof. "Aggregate FILO
Exposure" means, at any time, the aggregate FILO Exposure of all the Lenders
at such time. "Aggregate Revolving Commitment" means, at any time, the
aggregate of the Revolving Commitments of all of the Lenders, as increased or
reduced from time to time pursuant to the terms and conditions hereof. As of
the Third Amendment Effective Date, the Aggregate Revolving Commitment is
$1,800,000,000. "Aggregate Revolving Exposure" means, at any time, the
aggregate Revolving Exposure of all the Lenders at such time. "Aggregate
Revolving Line Cap" means, at any time of determination, an amount equal to
the lesser of (a) the Aggregate Revolving Commitment and (b) the Global
Revolving Borrowing Base. "Alternate Rate" means, for any day and for any
Available Currency, the sum of (a) a rate per annum selected by the
Administrative Agent, in its reasonable discretion based on market conditions
and in consultation with the Borrower Representative, reflecting the cost to
the Lenders of obtaining funds (such rate shall become effective without any
further action or consent of any other party to this Agreement so long as the
Administrative Agent shall not have received, within five (5) Business Days of
the date notice of such alternate rate of interest is provided to the Lenders,
a written notice from the Required Lenders stating that such Required Lenders
object to such rate), plus (b) the Applicable Rate for Term Benchmark Loans.
When used in reference to any Loan or Borrowing, "Alternate Rate" refers to
whether such Loan, or the Loans comprising such Borrowing are bearing interest
at a rate determined by reference to the Alternate Rate. "Amortization Fixed
Amount" means, as any time, an amount equal to the lesser of (a) $120,000,000,
and (b) 80% of the fair market value of the Eligible Real Property as set
forth in the most recent Acceptable Real Estate Appraisal received by the
Administrative Agent at such time. "Anti-Corruption Laws" means all laws,
rules, and regulations of any jurisdiction applicable to any Loan Party or any
of its Subsidiaries from time to time concerning or relating to bribery or
corruption or money laundering, and includes the Canadian Anti-Money
Laundering & Anti-Terrorism Legislation, the Foreign Corrupt Practices Act of
1977, as amended, and the rules and regulations thereunder, and the U.K.
Bribery Act of 2010.
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DB2/ 48024258.7 5 "Applicable Parties" has the meaning assigned to it in
Section 8.03(c). "Applicable Percentage" means, (a) with respect to any U.S.
Tranche Lender in respect of a U.S. Tranche Credit Event, its U.S. Tranche
Percentage, (b) with respect to any Foreign Tranche Lender in respect of a
Foreign Tranche Credit Event, its Foreign Tranche Percentage, and (c) with
respect to any FILO Lender in respect of a FILO Credit Event, its FILO
Percentage. "Applicable Rate" means, for any day, with respect to any Loan,
the applicable rate per annum set forth below under the caption "Revolver
CBFR/REVSOFR30 Spread", "Revolver Term Benchmark Spread", "Revolver RFR
Spread/Overnight Rate Spread", "FILO CBFR/REVSOFR30 Spread" or "FILO Term
Benchmark Spread", as the case may be, based upon the Average Aggregate Excess
Availability during the most recently ended calendar quarter; provided that
the "Applicable Rate" shall be the applicable rates per annum set forth below
in Category 1 during the period from the Effective Date to, and including, the
last day of the calendar quarter ending on or about December 31, 2019: Average
Aggregate Excess Availability Revolver CBFR/ REVSOFR30 Spread Revolver Term
Benchmark Spread Revolver RFR Spread/ Overnight Rate Spread FILO CBFR/
REVSOFR30 Spread FILO Term Benchmark Spread Category 1 >50% of the Aggregate
Combined Commitment 1.25% (or 0.00% if clause (y) to the proviso to the
definition of Adjusted REVSOFR30 Rate is applicable) 1.25% 1.25% Percentage
set forth in FILO Amendment Percentage set forth in FILO Amendment Category 2
< 50% of the Aggregate Combined Commitment 1.50% (or 0.00% if clause (y) to
the proviso to the definition of Adjusted REVSOFR30 Rate is applicable) 1.50%
1.50% Percentage set forth in FILO Amendment Percentage set forth in FILO
Amendment For purposes of the foregoing, each change in the Applicable Rate
resulting from a change in Average Aggregate Excess Availability shall be
effective during the period commencing on and including the first day of each
calendar quarter and ending on the last day of such calendar quarter, it being
understood and agreed that, for purposes of determining the Applicable Rate on
the first day of any calendar quarter, the Average Aggregate Excess
Availability during the most recently ended calendar quarter shall be used.
Notwithstanding the foregoing, if the Borrowers fail to deliver any Borrowing
Base Certificate required to be delivered by them pursuant to Section 5.01(g)
to the Administrative Agent within ten (10) Business Days of the time required
to be delivered pursuant to the terms hereof, then upon written notice by the
Administrative Agent to the Borrower Representative, the Average Aggregate
Excess Availability shall be deemed to be in Category 2 until five (5) days
after such Borrowing Base Certificate is so delivered to the Administrative
Agent. DB2/ 48024258.7 6 "Approved Electronic Platform" has the meaning
assigned to it in Section 8.03(a). "Approved Fund" has the meaning assigned to
such term in Section 9.04. "Approved Jurisdiction" means any of the following
jurisdictions: United Kingdom, Belgium, France, Germany, Ireland, Italy, The
Netherlands, Spain, Switzerland, Norway, Denmark, Sweden, Finland, Austria,
Portugal, Luxembourg, Australia, New Zealand, Singapore, and Hong Kong.
"Arrangers" means, collectively, (a) JPMCB, (b) Wells Fargo Bank, N.A., (c)
Bank of America, N.A. and (d) U.S. Bank National Association in their
capacities as joint bookrunners and joint lead arrangers hereunder.
"Assignment and Assumption" means an assignment and assumption agreement
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form (including electronic
records generated by the use of an electronic platform) approved by the
Administrative Agent. "Attributable Indebtedness" means, in respect of a Sale
and Leaseback Transaction that is a Capital Lease Obligation, at any date of
determination, the amount of Indebtedness represented thereby according to the
definition of "Capital Lease Obligation". "AUD Interpolated Rate" means, at
any time, the rate per annum determined by the Administrative Agent to be
equal to the rate that results from interpolating on a linear basis between:
(a) the AUD Screen Rate for the longest period for which that AUD Screen Rate
is available that is shorter than the Impacted AUD Rate Interest Period and
(b) the AUD Screen Rate for the shortest period for which that AUD Screen Rate
is available that exceeds the Impacted AUD Rate Interest Period, in each case,
at such time. If at any time the AUD Interpolated Rate is less than the Floor,
the AUD Interpolated Rate shall be deemed to be the Floor for purposes of this
Agreement. "AUD Rate" means, with respect to any Term Benchmark Borrowing
denominated in Australian Dollars and for any Interest Period, an interest
rate per annum equal to the AUD Screen Rate at approximately 11:00 A.M.,
Sydney, Australia time, on the first Business Day of such Interest Period;
provided, that, if the AUD Screen Rate shall not be available at such time for
such Interest Period (an "Impacted AUD Rate Interest Period"), then the AUD
Rate shall be the AUD Interpolated Rate. "AUD Screen Rate" means with respect
to any Interest Period, Australian Bank Bill Swap Reference Rate (Bid)
administered by ASX Benchmarks Pty Limited (ACN 616 075 417) (or any other
Person that takes over the administration of such rate) for Australian Dollar
bills of exchange with a tenor equal in length to such Interest Period as
displayed on page BBSY of the Reuters screen (or, in the event such rate does
not appear on such Reuters page, on any successor or substitute page on such
screen that displays such rate, or on the appropriate page of such other
information service that publishes such rate as shall be selected by the
Administrative Agent from time to time in its reasonable discretion) at or
about 11:00 a.m. (Sydney, Australia time) on the first day of such Interest
Period. If the AUD Screen Rate shall be less than the Floor, the AUD Screen
Rate shall be deemed to be the Floor for purposes of this Agreement.
"Australian Borrowers" means, each of, and collectively, Insight Australia and
any other Restricted Subsidiary registered under the laws of Australia
approved by the Administrative Agent that joins this Agreement as an
"Australian Borrower" in accordance with the terms hereof, and "Australian
Borrower" means any of them or all of them individually, as the context may
require.
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DB2/ 48024258.7 7 "Australian Borrowing Base" means, at any time, the Dollar
Equivalent of the result of, subject to the terms of Section 1.10: (A) the
Account Advance Rate of the Australian Eligible Accounts at such time, less
(B) Reserves applicable to the Australian Borrowing Base (which include for
greater certainty, Australian Priority Payable Reserves) established by the
Administrative Agent in its Permitted Discretion in accordance with Section
1.10. "Australian Collateral Documents" means, collectively, the Australian
Specific Security Deed, the Australian General Security Deed and any other
agreements, instruments and documents executed in connection with this
Agreement that are intended to create, perfect or evidence Liens to secure any
of the Secured Obligations, including, without limitation, all other security
agreements, pledge agreements, debentures, share charges, pledges, powers of
attorney, assignments, financing statements, in each case now or hereafter
executed by any Australian Loan Party and delivered to the Administrative
Agent that are intended to create, perfect or evidence Liens on assets of any
Australian Loan Party to secure any of the Secured Obligations. "Australian
Corporations Act" means the Corporations Act 2001 (Cth) of Australia.
"Australian Dollars" or "A$" means dollars in the lawful currency of
Australia. "Australian Eligible Accounts" means the Eligible Accounts owned by
an Australian Borrower billed from and collected in Australia or any other
jurisdiction satisfactory to the Administrative Agent in its Permitted
Discretion owing by an Account Debtor in the United States, Canada or an
Approved Jurisdiction that comply in all material respects with each of the
representations and warranties respecting Eligible Accounts that are
Australian Eligible Accounts made in the Loan Documents. "Australian General
Security Deed" means that certain General Security Deed, dated as of the Third
Amendment Effective Date, by and among the Australian Loan Parties party
thereto and the Australian Security Trustee, for the benefit of the Australian
Security Trustee and the other Secured Parties. "Australian Loan Parties"
means, each of, and collectively, the Australian Borrowers, Ignia Pty Ltd ACN
093 490 823, a company registered in Western Australia, Australia, with its
registered address at 'Building C', Level 3, 120 Old Pittwater Road, Brookvale
NSW 2100, Insight Australia Holdings Pty Ltd ACN 073 091 406, a company
registered in New South Wales, Australia, with its registered address at
'Building C', Level 3, 120 Old Pittwater Road, Brookvale NSW 2100, and any
other Restricted Subsidiary of Insight organized under the laws of Australia
who becomes a party to this Agreement pursuant to a Joinder Agreement and
their respective successors and assigns, and the term "Australian Loan Party"
means any one of them or all of them individually, as the context may require.
For the avoidance of doubt, Australian Loan Parties shall not include any
Excluded Subsidiary. "Australian Overnight Rate" means, for any day in respect
of Loans made to any Australian Borrowers under the Foreign Tranche, with
respect to any amount denominated in U.S. Dollars, the Overnight Lending Rate.
"Australian Pension Plan" means a superannuation, retirement benefit or
pension fund (whether established by deed or under any statute of Australia or
any state or territory of Australia) contributed to by, or to which there is
or may be an obligation to contribute by, any Loan Party in respect of its
Australian employees and officers or former employees and officers. DB2/
48024258.7 8 "Australian PPSA" means the Personal Property Securities Act 2009
(Cth) of Australia and includes any regulations made thereunder. "Australian
Priority Payable Reserves" means, with respect to any Australian Loan Party, a
reserve established by the Administrative Agent in its Permitted Discretion in
accordance with Section 1.10 with respect to amounts which rank or are capable
of ranking senior to or pari passu with Liens securing the Secured Obligations
on any Collateral under any applicable law, including without limitation, any
such amounts due or which may become due and not paid for wages, long service
leave, retrenchment, payment in lieu of notice, or vacation pay (including in
all respects amounts protected by or payable pursuant to the Fair Work Act
2009 (Cth) of Australia), any preferential claims as set out in the Australian
Corporations Act, amounts due or which may become due and not paid under any
legislation relating to workers' compensation or to employment insurance, all
amounts deducted or withheld and not paid and remitted when due under the
Taxation Administration Act 1953 (Cth) of Australia (but excluding "Pay as You
Go" income withholding tax) and amounts in the future, currently or past due
and not contributed, remitted or paid in respect of any Australian Pension
Plan, together with any charges which may be levied by a Governmental
Authority as a result of any default in payment obligations in respect of any
Australian Pension Plan. "Australian Qualifying Lender" means, in respect of a
payment by or in respect of a Borrower that is tax resident in Australia, a
Lender which is beneficially entitled to interest payable to that Lender in
respect of a Loan Document and is (a) a resident of Australia (and not lending
in carrying on business at or through a permanent establishment outside
Australia) or is a non-resident of Australia and is lending in carrying on
business at or through a permanent establishment in Australia or (b) an
Australian Treaty Lender. "Australian Security Trust Deed" means the security
trust deed, dated as of the Third Amendment Effective Date, between the
Australian Loan Parties and the Australian Security Trustee. "Australian
Security Trustee" means the Administrative Agent and shall include its
successors and assigns. "Australian Specific Security Deed" means the specific
security deed (marketable securities), dated as of the Third Amendment
Effective Date, between the Australian Loan Parties and the Australian
Security Trustee, for the benefit of the Australian Security Trustee and the
other Secured Parties. "Australian Tax Act" means the Income Tax Assessment
Act 1936 (Cth) of Australia or the Income Tax Assessment Act 1997 (Cth) of
Australia, as relevant. "Australian Tax Consolidated Group" means a
"Consolidated Group" or an "MEC Group" as defined in the applicable Australian
Tax Act. "Australian Tax Consolidated Group Liabilities" means "group
liabilities" (as described in Section 721-10 of the Australian Tax Act) of the
Australian Tax Consolidated Group. "Australian Treaty" means a double tax
agreement between Australia and another jurisdiction. "Australian Treaty
Lender" means, in relation to a payment of interest by or in respect of a
Borrower resident in Australia for tax purposes under a Loan Document, a
Lender which (a) is treated as a resident of an Australian Treaty State for
the purposes of the Australian Treaty; (b) does not carry on a business in
Australia at or through a permanent establishment with which that Lender's
participation in a Loan, Letter of Credit or Revolving Commitment is
effectively connected; and (c) fulfils any other
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DB2/ 48024258.7 9 conditions which must be fulfilled under the Australian
Treaty and the laws of Australia by residents of that Australian Treaty State
for such residents to obtain full exemption from taxation on interest in
Australia (including the completion of any necessary procedural formalities).
"Australian Treaty State" means a jurisdiction which is party to an Australian
Treaty which makes provision for full exemption from tax imposed by Australia
on interest. "Available Currencies" means, collectively, U.S. Dollars, Euros,
Australian Dollars and Sterling; provided that in respect of any Borrowings
by, Loans made to or Letters of Credit issued for the account of any Borrower
that is (x) not an Australian Borrower, the term "Available Currencies" shall
not include Australian Dollars and (y) an Australian Borrower, the term
"Available Currencies" shall only mean Australian Dollars and U.S. Dollars.
"Available FILO Commitment" means, at any time, the Aggregate FILO Commitment
minus the Aggregate FILO Exposure (calculated, with respect to any Defaulting
Lender, as if such Defaulting Lender had funded its Applicable Percentage of
all outstanding FILO Borrowings). "Available Revolving Commitment" means, at
any time, the Aggregate Revolving Commitment minus the Aggregate Revolving
Exposure (calculated, with respect to any Defaulting Lender, as if such
Defaulting Lender had funded its Applicable Percentage of all outstanding
Revolving Borrowings). "Available Tenor" means, as of any date of
determination and with respect to the then-current Benchmark, as applicable,
any tenor for such Benchmark (or component thereof) or payment period for
interest calculated with reference to such Benchmark (or component thereof),
as applicable, that is or may be used for determining the length of an
Interest Period for any term rate or otherwise, for determining any frequency
of making payments of interest calculated pursuant to this Agreement as of
such date and not including, for the avoidance of doubt, any tenor for such
Benchmark that is then-removed from the definition of "Interest Period"
pursuant to clause (g) of Section 2.14. "Average Aggregate Excess
Availability" means, for any period, an amount equal to the average daily
Aggregate Excess Availability during such period, as determined by the
Administrative Agent's system of records; provided, that in order to determine
Aggregate Excess Availability on any day for purposes of this definition, the
Global Borrowing Base and each Borrower's Borrowing Base for such day shall be
determined by reference to the most recent Borrowing Base Certificate
delivered to the Administrative Agent pursuant to Section 4.01(h) (at all
times prior to the first delivery of a Borrowing Base Certificate after the
Effective Date pursuant to Section 5.01(g)) or Section 5.01(g) as of such day.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by
the applicable 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 Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law,
regulation, rule or requirement for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule and (b) with respect
to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in
the United Kingdom relating to the resolution of unsound or failing banks,
investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).
"Bank Levy" means any amount payable by any Loan Party or its Subsidiaries on
the basis of, or in relation to, (i) its balance sheet or capital base or any
part of that person or its liabilities or minimum DB2/ 48024258.7 10
regulatory capital or any combination thereof (including, without limitation,
the United Kingdom bank levy as set out in the Finance Act 2011, the French
taxe de risque systemique as set out in article 235 ter ZE of the French Code
general des impots and the French taxe pour le financement du fonds de soutien
aux collectivites territoriales as set out in article 235 ter ZE bis of the
French Code general des impots, the German bank levy as set out in the German
Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz), the Dutch
bankenbelasting as set out in the Dutch bank levy act (Wet bankenbelasting),
the Austrian bank levy as set out in the Austrian Stability Duty Act
(Stabilitatsgesetz), the Spanish bank levy (Impuesto sobre los Depositos en
las Entidades de Credito) as set out in the Law 16/2012 of December 27, 2012,
the Swedish bank levy as set out in the Swedish Precautionary Support Act (Sw.
lag (2015:1017) om forebyggande statligt stod till kreditinstitut) (as
amended)) and any tax in any jurisdiction levied on a similar basis or for a
similar purpose or (ii) any financial activities taxes (or other taxes) of a
kind contemplated in the European Commission consultation paper on financial
sector taxation dated February 22, 2011 which has been enacted and which has
been formally announced as proposed as at the date of this Agreement. "Banking
Services" means each and any of the following bank services provided to any
Loan Party (or its Subsidiaries if the Borrower Representative has provided
written notice to the Administrative Agent that such services are to be
included as "Banking Services" hereunder) by any Lender or any of its
Affiliates: (a) credit cards for commercial customers (including, without
limitation, "commercial credit cards" and purchasing cards), (b) stored value
cards, (c) merchant processing services, (d) treasury management services
(including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, any direct debit scheme or
arrangement, overdrafts, cash pooling services, and interstate depository
network services), (e) Secured Inventory Financing Indebtedness, and (f)
foreign exchange and currency management services. "Banking Services
Obligations" means any and all obligations of the Loan Parties and their
Subsidiaries, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor) in connection with
Banking Services. "Banking Services Reserves" means all Reserves which the
Administrative Agent from time to time establishes in its Permitted Discretion
in accordance with Section 1.10 for Banking Services then outstanding.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Bankruptcy Event" means, with respect to any Person, when such Person becomes
the subject of a voluntary or involuntary bankruptcy or insolvency proceeding,
or has had a receiver, receiver and manager, interim receiver, monitor,
conservator, trustee, administrator, custodian, sequestrator, liquidator,
Controller, assignee for the benefit of creditors or similar Person charged
with the reorganization or liquidation of its business, appointed for it, or,
in the good faith determination of the Administrative Agent, has taken any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any such proceeding or appointment or has had any order for
relief in such proceeding entered in respect thereof, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest,
or the acquisition of any ownership interest, in such Person by a Governmental
Authority or instrumentality thereof, unless such ownership interest results
in or provides such Person with immunity from the jurisdiction of courts
within the U.S., Canada, Australia, the United Kingdom, or The Netherlands or
from the enforcement of judgments or writs of attachment on its assets or
permits such Person (or such Governmental Authority or instrumentality), to
reject, repudiate, disavow or disaffirm any contracts or agreements made by
such Person.
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DB2/ 48024258.7 11 "Benchmark" means, initially, with respect to any (a) RFR
Loan in any Available Currency, the applicable Relevant Rate for such
Available Currency, (b) Term Benchmark Loan, the Relevant Rate for such
Available Currency or (c) Adjusted REVSOFR30 Rate Loan, the REVSOFR30 Rate;
provided that if a Benchmark Transition Event and the related Benchmark
Replacement Date have occurred with respect to the applicable Relevant Rate or
the then-current Benchmark for such Available Currency, then "Benchmark" means
the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate pursuant to clause (c) of
Section 2.14. "Benchmark Replacement" means, for any Available Tenor, the
first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date; provided
that, in the case of any Loan denominated in an Available Currency (other than
U.S. Dollars), "Benchmark Replacement" shall mean the alternative set forth in
(2) below: (1) in the case of any Loan denominated in U.S. Dollars, the
Adjusted Daily Simple RFR; and (2) the sum of: (a) the alternate benchmark
rate that has been selected by the Administrative Agent and the Borrower
Representative as the replacement for the then-current Benchmark for the
applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a replacement benchmark rate or the mechanism for
determining such a rate by the Relevant Governmental Body or (ii) any evolving
or then-prevailing market convention for determining a benchmark rate as a
replacement for the then-current Benchmark for syndicated credit facilities
denominated in the applicable Available Currency at such time in the United
States and (b) the related Benchmark Replacement Adjustment. If the Benchmark
Replacement as determined pursuant to clause (1) or (2) above would be less
than the Floor, the Benchmark Replacement will be deemed to be the Floor for
the purposes of this Agreement 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 and Available Tenor for any setting of such
Unadjusted Benchmark Replacement, the spread adjustment, or method for
calculating or determining such spread adjustment, (which may be a positive or
negative value or zero) that has been selected by the Administrative Agent and
the Borrower Representative for the applicable Corresponding Tenor giving due
consideration to (i) any selection or recommendation of a spread adjustment,
or method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body on the applicable Benchmark
Replacement Date and/or (ii) any evolving or then-prevailing market convention
for determining a spread adjustment, or method for calculating or determining
such spread adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement for syndicated credit facilities
denominated in the applicable Available Currency at such time. "Benchmark
Replacement Conforming Changes" means, with respect to any Benchmark
Replacement and/or any Term Benchmark Loan denominated in U.S. Dollars or
Adjusted REVSOFR30 Rate Loan, any technical, administrative or operational
changes (including changes to the definition of the definition of "Business
Day," the definition of "U.S. Government Securities Business Day", the
definition of "Interest Period," timing and frequency of determining rates and
making payments 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 or
operational matters) that the Administrative Agent decides may be appropriate
to reflect the adoption and implementation of such Benchmark and to permit the
administration thereof by the Administrative Agent in a manner substantially
DB2/ 48024258.7 12 consistent with market practice (or, if the Administrative
Agent decides that adoption of any portion of such market practice is not
administratively feasible or if the Administrative Agent determines that no
market practice for the administration of such Benchmark exists, in such other
manner of administration as the Administrative Agent decides is reasonably
necessary 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 of the 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 therein and (b) the date on
which the administrator of such Benchmark (or the published component used in
the calculation thereof) permanently or indefinitely ceases to provide all
Available Tenors of such Benchmark (or such component thereof); or (2) in the
case of clause (3) of the definition of "Benchmark Transition Event," the
first 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 such Benchmark (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 publication
referenced in such clause (3) and even if any Available Tenor of such
Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be
deemed to have occurred prior to the Reference Time for such determination and
(ii) the "Benchmark Replacement Date" will be deemed to have occurred in the
case of clause (1) or (2) with respect to any Benchmark upon the occurrence of
the applicable event or events set forth therein with respect to all
then-current Available Tenors of such Benchmark (or the published component
used in the calculation thereof). "Benchmark Transition Event" means, with
respect to any Benchmark, the occurrence of one or more 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 administrator of such
Benchmark (or the published component used in the calculation thereof)
announcing that such 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 such statement or publication,
there is no successor administrator that will continue to provide any
Available Tenor of such Benchmark (or such component thereof); (2) a public
statement or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in the
calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR
Administrator, the central bank for the Available Currency applicable to such
Benchmark, an insolvency official with jurisdiction over the administrator for
such Benchmark (or such component), a resolution authority with jurisdiction
over the administrator for such Benchmark (or such component) or a court or an
entity with similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), in each case, which states that the
administrator of such Benchmark (or such component) 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 such statement or
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DB2/ 48024258.7 13 publication, there is no successor administrator that will
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 the administrator 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 no longer,
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
occurred with respect to any Benchmark if a public statement or publication of
information set forth above has occurred with respect to each then-current
Available Tenor of such Benchmark (or the published component used in the
calculation thereof). "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 that definition has
occurred if, at such time, no Benchmark Replacement has replaced such
then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with Section 2.14 and (y) ending at the time that a Benchmark
Replacement has replaced such then-current Benchmark for all purposes
hereunder and under any Loan Document in accordance with Section 2.14.
"Beneficial Ownership Certification" means a certification regarding
beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation" means 31 C.F.R. (s) 1010.230. "Benefit Plan"
means any of (a) an "employee benefit plan" (as defined in Section 3(3) of
ERISA) that is subject to Title I of ERISA, (b) a "plan" as defined in Section
4975 of the Code to which Section 4975 of the Code applies, and (c) any Person
whose assets include (for purposes of the Plan Asset Regulations or otherwise
for purposes of Title I of ERISA or Section 4975 of the Code) the assets of
any such "employee benefit plan" or "plan". "BHC Act Affiliate": means an
"affiliate" (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of a party. "Blocking Regulation" has the meaning
assigned to it in Section 3.21. "Borrowers" means, collectively, the U.S.
Borrowers, the U.K. Borrowers, the Dutch Borrowers and the Australian
Borrowers, and "Borrower" means any of them. "Borrower Representative" has the
meaning assigned to such term in Section 11.01. "Borrowing" means (a)
Revolving Loans of the same Type and currency, made, converted or continued on
the same date and, in the case of Term Benchmark Loans, as to which a single
Interest Period is in effect, (b) FILO Loans of the same Type and currency,
made, converted or continued on the same date and, in the case of Term
Benchmark Loans, as to which a single Interest Period is in effect, (c) a
Protective Advance, (d) a Revolving Overadvance and (e) a FILO Overadvance.
"Borrowing Base" means the Global Borrowing Base, the Global Revolving
Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing Base, the Dutch
Borrowing Base, the Australian Borrowing Base or the FILO Borrowing Base, as
the context may require. DB2/ 48024258.7 14 "Borrowing Base Certificate" means
a certificate setting forth the calculation of the Global Borrowing Base, the
Global Revolving Borrowing Base, the U.S. Borrowing Base, the U.K. Borrowing
Base, the Dutch Borrowing Base, the Australian Borrowing Base and the FILO
Borrowing Base (in each case, as applicable), signed and certified in all
material respects as accurate and complete by a Financial Officer of the
Borrower Representative, in substantially the form of Exhibit B or another
form which is acceptable to the Administrative Agent in its Permitted
Discretion. "Borrowing Request" means a request by the Borrower Representative
for a Borrowing in accordance with Section 2.03. "Business Day" means any day
that is not a Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to remain closed; provided that,
(a) when used in connection with Loans to the U.K. Borrowers or the Dutch
Borrowers, the term "Business Day" shall also exclude any day on which banks
are not open for general business in London or Frankfurt, and (b) in relation
to Loans denominated in Euros and in relation to the calculation or
computation of EURIBOR, the term "Business Day" shall also exclude any day on
which the TARGET2 payment system is not open for the settlement payment of
payment in Euros, (c) in relation to Loans denominated in Australian Dollars
and in relation to the calculation or computation of the AUD Screen Rate, the
term "Business Day" shall also exclude any day (other than a Saturday or a
Sunday) on which banks are not open for business in Sydney, Australia, (d) in
relation to RFR Loans and any interest rate settings, fundings, disbursements,
settlements or payments of any such RFR Loan, or any other dealings in the
applicable Available Currency of such RFR Loan, the term "Business Day" shall
also exclude any day that is not an RFR Business Day and (e) in relation to
Loans referencing the Adjusted Term SOFR Rate and any interest rate settings,
fundings, disbursements, settlements or payments of any such Loans referencing
the Adjusted Term SOFR Rate or any other dealings of such Loans referencing
the Adjusted Term SOFR Rate, the term "Business Day" shall also exclude any
day that is not a U.S. Government Securities Business Day. "CAM" means the
mechanism for the allocation and exchange of interests in the Tranches and the
collections thereunder established under Article XII. "CAM Exchange" means the
exchange of any Lender's interests provided for in Article XII. "CAM Exchange
Date" means the first date on which there shall occur (a) any event referred
to in clause (h) or (i) of Article VII in respect of any Borrower or (b) an
acceleration of Loans and termination of the Revolving Commitments and FILO
Commitments pursuant to Article VII. "CAM Percentage" means, as to each
Revolving Lender, a fraction, expressed as a decimal, of which (a) the
numerator shall be the sum of the Dollar Equivalents (determined on the basis
of Spot Selling Rate prevailing on the CAM Exchange Date) of the Designated
Obligations owed to such Revolving Lender (whether or not at the time due and
payable) immediately prior to the CAM Exchange and (b) the denominator shall
be the sum of the Dollar Equivalents (as so determined) of the Designated
Obligations owed to all the Revolving Lenders (whether or not at the time due
and payable) immediately prior to the CAM Exchange. "Canadian Anti-Money
Laundering & Anti-Terrorism Legislation" means, collectively, the Criminal
Code, R.S.C. 1985, c. C-46, the Proceeds of Crime Act, c. 17 and the United
Nations Act, R.S.C. 1985, c. U-2 or any similar Canadian legislation, together
with all rules, regulations and interpretations thereunder or related thereto
including, without limitation, the Regulations Implementing the United Nations
Resolutions on the Suppression of Terrorism and the United Nations Al Qaida
and Taliban Regulations promulgated under the United Nations Act.
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DB2/ 48024258.7 15 "Canadian Blocked Person" means any Person that is a
"politically exposed foreign person" as defined in the Freezing Assets of
Corrupt Foreign Officials Act (Canada), or "terrorist group" as defined in
Part II.1 of the Criminal Code (Canada). "Canadian Collateral Documents"
means, collectively, the Canadian Security Agreement, and any other
agreements, instruments and documents executed in connection with this
Agreement that are intended to create, perfect or evidence Liens on assets of
any Loan Party to secure any of the Secured Obligations, including, without
limitation, all other security agreements, pledge agreements, deeds of
hypothec, debentures, share charges, pledges, powers of attorney, assignments,
and financing statements, in each case now or hereafter executed by any
Canadian Loan Guarantor and delivered to the Administrative Agent that are
intended to create, perfect or evidence Liens on assets of any Canadian Loan
Guarantor to secure any of the Secured Obligations. "Canadian Defined Benefit
Plan" means a pension plan for the purposes of any applicable pension benefits
standards statute or regulation in Canada, which contains a "defined benefit
provision," as defined in subsection 147.1(1) of the Income Tax Act (Canada).
"Canadian Economic Sanctions and Export Control Laws" means any Canadian laws,
regulations or orders governing transactions in controlled goods or
technologies or dealings with countries, entities, organizations, or
individuals subject to economic sanctions and similar measures, including the
Special Economic Measures Act (Canada), the United Nations Act (Canada), the
Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the
Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any
related regulations. "Canadian ITA" means the Income Tax Act (Canada) and the
regulations thereunder, as amended "Canadian Loan Guarantors" means, each of,
and collectively, 3683371 Canada Inc., a Canadian corporation, Insight Canada
Inc., an Ontario corporation, Insight Direct Canada, Inc., a Canadian
corporation, PCM Ventes Canada, Inc. / PCM Sales Canada, Inc., a Quebec
corporation, Acrodex Inc., an Alberta corporation and any other Restricted
Subsidiary of Insight organized under applicable law of Canada or any province
or territory of Canada which becomes a party to this Agreement pursuant to a
Joinder Agreement and their successors and assigns, and the term "Canadian
Loan Guarantor" means any one of them or all of them individually, as the
context may require. For the avoidance of doubt, Canadian Loan Guarantors
shall not include any Excluded Subsidiary. "Canadian Loan Party" means each
Canadian Loan Guarantor. "Canadian Pension Event" means (a) the whole or
partial withdrawal of the Canadian Loan Party or another Loan Party from a
Canadian Pension Plan during a plan year; or (b) the filing of a notice of
intent to terminate in whole or in part a Canadian Pension Plan or the
treatment of a Canadian Pension Plan amendment as a termination or partial
termination; or (c) the institution of proceedings by any Governmental
Authority to terminate in whole or in part or have a trustee appointed to
administer a Canadian Pension Plan; or (d) any other event or condition which
might constitute grounds for the termination of, winding up or partial
termination of winding up or the appointment of trustee to administer, any
Canadian Pension Plan. "Canadian Pension Plan" means a pension plan that is
covered by the applicable pension standards laws of any jurisdiction in Canada
including the Pension Benefits Act (Ontario) and the Income Tax Act (Canada)
and that is either (a) maintained or sponsored by the Canadian Loan Party for
employees or (b) maintained pursuant to a collective bargaining agreement, or
other arrangement under which more than one DB2/ 48024258.7 16 employer makes
contributions and to which the Canadian Loan Party is making or accruing an
obligation to make contributions or has within the preceding five years made
or accrued such contributions. "Canadian Priority Payable Reserves" means the
Reserves established in the Permitted Discretion of the Administrative Agent
in accordance with Section 1.10 for amounts owing by a Canadian Loan Party
secured by any Liens, choate or inchoate, which rank or are capable of ranking
in priority to the Administrative Agent's Liens and/or for amounts which may
represent costs relating to the enforcement of the Administrative Agent's
Liens including, without limitation, in the Permitted Discretion of the
Administrative Agent, any such amounts due and not paid for wages, salaries,
commission or compensation, including vacation pay (including as provided for
under WEPPA), amounts due and not paid under any legislation relating to
workers' compensation or to employment insurance, all amounts deducted or
withheld and not paid and remitted when due under the Income Tax Act (Canada),
amounts currently or past due and not paid for realty, municipal or similar
taxes, any and all solvency deficiencies, unfunded liabilities on wind-up or
wind-up deficiencies in regards to any Canadian Pension Plan which is a
defined benefit plan (to the extent impacting personal or moveable property)
and all amounts currently or past due and not contributed, remitted or paid to
any Canadian Pension Plan or under the Canada Pension Plan, the Pension
Benefits Act (Ontario) or any similar legislation. "Canadian Security
Agreement" means that certain Canadian Pledge and Security Agreement
(including any and all supplements thereto), dated as of the date hereof, by
and among the Canadian Loan Parties party thereto and the Administrative
Agent, for the benefit of the Administrative Agent and the other Secured
Parties. "Capital Expenditures" means, without duplication, any expenditure or
commitment to expend money for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a consolidated
balance sheet of Insight and its Restricted Subsidiaries prepared in
accordance with GAAP. "Capital Lease Obligations" of any Person means, subject
to Section 1.04(b), the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases or financing
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP. "Cash Dominion Period" means each period (a) commencing on the date
that (i) Aggregate Excess Availability shall be less than (A) 7.5% of the
Aggregate Combined Commitment then in effect or (B) 10% of the Aggregate
Combined Commitment then in effect for three (3) consecutive Business Days, or
(ii) a Specified Event of Default shall have occurred and be continuing, and
(b) continuing until (i) to the extent that the Cash Dominion Period has
occurred due to clause (a)(i) of this definition, during each of the preceding
thirty (30) consecutive days, Aggregate Excess Availability has been equal to
or more than an amount equal to 10% of the Aggregate Combined Commitment then
in effect or (ii) to the extent that the Cash Dominion Period has occurred due
to clause (a)(ii) of this definition, until no Specified Event of Default
shall be continuing. "Cash Management Obligations" means each and any of the
following bank services provided to any Loan Party or any of its Restricted
Subsidiaries: (a) credit cards for commercial customers (including, without
limitation, "commercial credit cards" and purchasing cards), (b) stored value
cards, (c) merchant processing services, (d) treasury management services
(including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, any direct debit scheme or
arrangement, overdrafts, cash pooling services, and interstate depository
network services), and (e) foreign exchange and currency management services.
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DB2/ 48024258.7 17 "Cash Pooling Arrangements" means the cash pooling
arrangements maintained by the Foreign Restricted Subsidiaries of Insight with
Bank of America, N.A. (or any other financial institution reasonably
acceptable to the Administrative Agent) in the ordinary course of business in
order to manage currency fluctuations and overdrafts among deposit accounts of
such Subsidiaries; provided that such arrangements are on a zero balance basis
with a net positive aggregate balance at all times. "CB Floating Rate" means
the greater of the Prime Rate or 2.5%. Any change in the CB Floating Rate due
to a change in the Prime Rate shall be effective from and including the
effective date of such change in the Prime Rate. "CBFR" when used in reference
to: (a) a rate of interest, refers to the Adjusted REVSOFR30 Rate and (b) any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, bear interest at a rate determined by reference to the Adjusted
REVSOFR30 Rate. "Cdn$" means dollars in the lawful currency of Canada.
"Central Bank Rate" means (A) the greater of (i) for any Loan denominated in
(a) Sterling, the Bank of England (or any successor thereto)'s "Bank Rate" as
published by the Bank of England (or any successor thereto) from time to time,
(b) Euro, one of the following three rates as may be selected by the
Administrative Agent in its reasonable discretion: (1) the fixed rate for the
main refinancing operations of the European Central Bank (or any successor
thereto), or, if that rate is not published, the minimum bid rate for the main
refinancing operations of the European Central Bank (or any successor
thereto), each as published by the European Central Bank (or any successor
thereto) from time to time, (2) the rate for the marginal lending facility of
the European Central Bank (or any successor thereto), as published by the
European Central Bank (or any successor thereto) from time to time or (3) the
rate for the deposit facility of the central banking system of the
Participating Member States, as published by the European Central Bank (or any
successor thereto) from time to time, and (c) any other Available Currency
determined after the Effective Date, a central bank rate as determined by the
Administrative Agent in its reasonable discretion and (ii) the Floor; plus (B)
the applicable Central Bank Rate Adjustment. "Central Bank Rate Adjustment"
means, for any day, for any Loan denominated in (a) Euro, a rate equal to the
difference (which may be a positive or negative value or zero) of (i) the
average of the EURIBOR Rate for the five most recent Business Days preceding
such day for which the EURIBOR Screen Rate was available (excluding, from such
averaging, the highest and the lowest EURIBOR Rate applicable during such
period of five Business Days) minus (ii) the Central Bank Rate in respect of
Euro in effect on the last Business Day in such period, (b) Sterling, a rate
equal to the difference (which may be a positive or negative value or zero) of
(i) the average of SONIA for the five (5) most recent RFR Business Days
preceding such day for which SONIA was available (excluding, from such
averaging, the highest and the lowest SONIA applicable during such period of
five (5) RFR Business Days) minus (ii) the Central Bank Rate in respect of
Sterling in effect on the last RFR Business Day in such period, and (c)
Australian Dollars or any other Available Currency determined after the
Effective Date, a Central Bank Rate Adjustment as determined by the
Administrative Agent in its reasonable discretion. For purposes of this
definition, (x) the term Central Bank Rate shall be determined disregarding
clause (B) of the definition of such term and (y) the EURIBOR Rate on any day
shall be based on the EURIBOR Screen Rate on such day at approximately the
time referred to in the definition of such term for deposits in the applicable
Available Currency for a maturity of one month (or, in the event the EURIBOR
Screen Rate for deposits in the applicable Available Currency is not available
for such maturity of one month, shall be based on the EURIBOR Interpolated
Rate as of such time); provided that if such rate shall be less than zero,
such rate shall be deemed to be zero. DB2/ 48024258.7 18 "Change in Control"
means (a) the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the
date hereof), of Equity Interests representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Equity
Interests of Insight; (b) occupation at any time of a majority of the seats
(other than vacant seats) on the board of directors of Insight by Persons who
were neither (i) (A) nominated by the board of directors of Insight, (B)
appointed by the board of directors of Insight or (C) approved by the board of
directors of Insight for consideration by the shareholders for election, nor
(ii) appointed by directors so nominated, appointed or approved; or (c) except
in a transaction permitted hereunder, Insight shall cease to own, directly or
indirectly, 100% of the outstanding voting Equity Interests of the other
Borrowers and Loan Parties. "Change in Law" means the occurrence after the
date of this Agreement (or, with respect to any Lender, such later date on
which such Lender becomes a party to this Agreement) of any of the following:
(a) the adoption of or taking effect of any law, rule, regulation or treaty;
(b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental
Authority; or (c) compliance by any Lender or the Issuing Bank (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's or the Issuing Bank's holding company, if any) with any request,
guideline, requirement or directive (whether or not having the force of law)
of any Governmental Authority made or issued after the date of this Agreement;
provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines, requirements or directives thereunder or issued in
connection therewith or in the implementation thereof or any European
equivalent regulation (such as the European Market and Infrastructure
Regulation), and (y) all requests, rules, guidelines, requirements or
directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a "Change in Law", regardless of
the date enacted, adopted, issued or implemented. "Charges" has the meaning
assigned to such term in Section 9.17. "Class", when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans, FILO Loans, Protective Advances, Revolving
Overadvances or FILO Overadvances. "CME Term SOFR Administrator" means CME
Group Benchmark Administration Limited as administrator of the forward-looking
term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
"Co-Documentation Agent" means each of (a) Bank of the West, (b) Truist Bank
and (c) PNC Bank, National Association. "Co-Syndication Agent" means each of
(a) JPMCB, (b) Wells Fargo Bank, N.A., (c) Bank of America, N.A. and (d) U.S.
Bank National Association. "Code" means the Internal Revenue Code of 1986, as
amended from time to time. "Collateral" means the Global Collateral.
"Collateral Access Agreement" has the meaning assigned to such term in the
applicable Collateral Documents.
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DB2/ 48024258.7 19 "Collateral Documents" means, collectively, the Canadian
Collateral Documents, the U.S. Collateral Documents, the U.K. Collateral
Documents, the Dutch Collateral Documents, the Australian Collateral
Documents, the Irish Security Agreement and the U.K. Book Debts and Account
Charge and any other agreements, instruments and documents executed in
connection with this Agreement that are intended to create, perfect or
evidence Liens on assets of any Loan Party to secure any of the Secured
Obligations, including, without limitation, all other security agreements,
pledge agreements, deeds of hypothec, debentures, share charges, pledges,
powers of attorney, assignments, financing statements, in each case now or
hereafter executed by any Loan Party and delivered to the Administrative Agent
that are intended to create, perfect or evidence Liens on assets of any Loan
Party to secure any of the Secured Obligations. "Collection Account" means,
(a) with respect to the U.S. Loan Parties, as defined in the U.S. Security
Agreement, (b) with respect to the Canadian Loan Guarantors, as defined in the
Canadian Security Agreement, (c) with respect to the U.K. Loan Parties, each
deposit account maintained by any U.K. Borrower into which cash, checks or
other similar payments relating to or constituting payments made in respect of
Accounts or other proceeds will be deposited, (d) with respect to the Dutch
Loan Parties, each deposit account maintained by any Dutch Borrower into which
cash, checks or other similar payments relating to or constituting payments
made in respect of Accounts or other proceeds will be deposited and (e) with
respect to the Australian Loan Parties, each deposit account maintained by any
Australian Borrower into which cash, credit card payment receipts, checks or
other similar payments relating to or constituting payments made in respect of
Accounts or other proceeds will be deposited. "Combined Commitment" means,
with respect to any Lender at any time, the sum of (a) such Lender's Revolving
Commitment at such time, plus (b) such Lender's FILO Commitment at such time.
"Combined Exposure" means, with respect to any Lender at any time, the sum of
(a) such Lender's Revolving Exposure at such time, plus (b) such Lender's FILO
Exposure at such time. "Commitment Letter" means that certain Commitment
Letter between JPMorgan Chase Bank, N.A. and Insight dated as of June 23,
2019, as supplemented by that certain Joinder Letter, dated July 12, 2019,
from Wells Fargo Bank, N.A. as further supplemented by that certain Joinder
Letter, dated July 12, 2019, from Bank of America, N.A., and as further
amended by that certain letter agreement, dated August 12, 2019, by and among
JPMCB, Bank of America, N.A., Wells Fargo Bank, N.A., and Insight. "Commitment
Schedule" means the Commitment Schedule attached hereto identified as such.
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. (s) 1 et
seq.), as amended from time to time, and any successor statute. "Communications"
has the meaning assigned to such term in Section 8.03(c). "Compliance
Certificate" means a certificate of a Financial Officer of the Borrower
Representative in substantially the form of Exhibit C attached hereto.
"Connection Income Taxes" means Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or
branch profits Taxes. "Consolidating Financial Statements" means consolidating
financial statements reflecting the adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) (which may be in footnote form
only) from the consolidated financial statements of Insight and its
Subsidiaries (it being agreed that no such Consolidating Financial Statements
shall be required to be audited). DB2/ 48024258.7 20 "Control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto. "Convertible Debt Security"
means debt securities, the terms of which provide for conversion into, or
exchange for, Qualified Equity Interests of Insight (or other securities or
property following a merger event, reclassification or other change of such
Qualified Equity Interests of Insight), cash in lieu thereof or a combination
of such Qualified Equity Interests of Insight (or other securities or property
following a merger event, reclassification or other change of such Qualified
Equity Interests of Insight) and cash in lieu thereof. "Convertible Senior
Notes" means those certain 0.750% Convertible Senior Notes due 2025 in an
aggregate principal amount of $350,000,000 issued pursuant to the Indenture,
dated as of August 15, 2019, among Insight, as issuer, Insight Direct, as
guarantor, and U.S. Bank National Association, as trustee. "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 (disregarding business day adjustment) as such Available
Tenor. "Covenant Testing Trigger Period" means the period (a) commencing on
any date that the Aggregate Excess Availability is less than 10% of the
Aggregate Combined Commitment and (b) continuing until Aggregate Excess
Availability has been greater than or equal to 10% of the Aggregate Combined
Commitment at all times for thirty (30) consecutive days. "Covered Entity"
means any of the following: (a) a "covered entity" as that term is defined in,
and interpreted in accordance with, 12 C.F.R. (s) 252.82(b); (b) a "covered
bank" as that term is defined in, and interpreted in accordance with, 12
C.F.R. (s) 47.3(b); or (c) a "covered FSI" as that term is defined in, and
interpreted in accordance with, 12 C.F.R. (s) 382.2(b). "Covered Party" has
the meaning assigned to it in Section 9.21. "Credit Adjustment Spread" means
0.10% per annum. "Credit Event" means a U.S. Tranche Credit Event, Foreign
Tranche Credit Event or FILO Credit Event, as the context may require. "Credit
Party" means the Administrative Agent, any Issuing Bank, or any other Lender.
"CTA" means the Corporation Tax Act 2009 (U.K.), as amended from time to time.
"Daily Simple ESTR" means, for any Business Day, an interest rate per annum
equal to the greater of (a) ESTR based on the published rate of ESTR as of the
Business Day of such request and (b) the Floor. Any change in Daily Simple
ESTR due to a change in the applicable ESTR shall be effective from and
including the effective date of such change in the ESTR without notice to the
Borrowers.
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DB2/ 48024258.7 21 "Daily Simple RFR" means, for any day (an "RFR Interest
Day"), an interest rate per annum equal to, for any RFR Loan denominated in
(i) Sterling, the greater of (a) SONIA for the day that is five (5) Business
Days prior to (A) if such RFR Interest Day is a Business Day, such RFR
Interest Day or (B) if such RFR Interest Day is not a Business Day, the
Business Day immediately preceding such RFR Interest Day and (b) the Floor
(provided that for any Overnight Rate Loans denominated in Sterling, SONIA
shall be based on the published rate for SONIA as of the Business Day of such
request) and (ii) U.S. Dollars, Daily Simple SOFR. Any change in Daily Simple
RFR due to a change in the applicable RFR shall be effective from and
including the effective date of such change in the RFR without notice to the
Borrowers. "Daily Simple SOFR" means, for any day (a "SOFR Rate Day"), a rate
per annum equal to the greater of (a) SOFR for the day (such day "SOFR
Determination Date") that is five (5) RFR Business Days prior to (i) if such
SOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR
Rate Day is not an RFR Business Day, the RFR Business Day immediately
preceding such SOFR Rate Day, in each case, as such SOFR is published by the
SOFR Administrator on the SOFR Administrator's Website and (b) the Floor. Any
change in Daily Simple SOFR due to a change in SOFR shall be effective from
and including the effective date of such change in SOFR without notice to the
Borrowers. "Debt Maturity Reserve" means, to the extent elected by the
Administrative Agent (acting at the direction of the Required Lenders) at any
time during any Debt Reserve Period, an amount equal to the amount by which
the then outstanding principal balance of the Convertible Senior Notes exceeds
$300,000,000 (or in the case of any Refinance Indebtedness in respect thereof,
an amount equal to the then outstanding principal balance of any such
Refinance Indebtedness) on the date which is ninety-one (91) days prior to the
maturity date of the Convertible Senior Notes (or any Refinance Indebtedness
in respect thereof) (but, in each case, shall be reduced to give effect to any
payments, repayments or redemptions of the Convertible Senior Notes (or any
Refinance Indebtedness in respect thereof) made during such Debt Reserve
Period to the extent such payments, repayments or redemptions are permitted
hereunder). "Debt Reserve Period" means a period beginning on the 91st day
prior to the maturity date of the Convertible Senior Notes (or any Refinance
Indebtedness in respect thereof) and ending on the date of the repayment in
full of the Convertible Senior Notes (or any Refinance Indebtedness in respect
thereof). "Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default. "Defaulting Lender" means any Lender that
(a) has failed, within two (2) Business Days of the date required to be funded
or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its
participations in Letters of Credit or (iii) pay over to any Credit Party any
other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Lender notifies the Administrative Agent in writing
that such failure is the result of such Lender's good faith determination that
a condition precedent to funding (specifically identified and including the
particular Default, if any) has not been satisfied; (b) has notified any
Borrower or any Credit Party in writing, or has made a public statement, to
the effect that it does not intend or expect to comply with any of its funding
obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender's good faith
determination that a condition precedent (specifically identified and
including the particular Default, if any) to funding a Loan under this
Agreement cannot be satisfied), (c) has failed, within three (3) Business Days
after request by a Credit Party or any Borrower, acting in good faith, to
provide a certification in writing from an authorized officer of such Lender
that it will comply with its obligations (and is financially able to meet such
obligations as of the date of certification) to fund prospective Loans and
participations in then outstanding Letters of Credit under this Agreement,
provided that such Lender shall cease to be a Defaulting Lender pursuant to
this clause (c) upon such Credit Party's or such Borrower's, as applicable,
receipt of such DB2/ 48024258.7 22 certification in form and substance
satisfactory to it and the Administrative Agent, or (d) has become the subject
of (i) a Bankruptcy Event or (ii) a Bail-In Action. "Default Right" has the
meaning assigned to that term in, and shall be interpreted in accordance with,
12 C.F.R. (s)(s) 252.81, 47.2 or 382.1, as applicable. "Deposit Account
Control Agreement" has the meaning assigned to such term in each applicable
Collateral Document; provided that with respect to any deposit account or
securities account maintained by an Australian Loan Party, the term "Deposit
Account Control Agreement" shall mean an account control deed (or any similar
agreement or documentation), in form and substance reasonably satisfactory to
the Australian Security Trustee, establishing "control" (for the purposes of
Part 9.5 of the Australian PPSA) of such an account by the Australian Security
Trustee. "Designated Non-Cash Consideration" means the fair market value (as
determined by Insight in good faith) of non-cash consideration received by any
Loan Party or any Restricted Subsidiary in connection with a Disposition
designated as Designated Non-Cash Consideration pursuant to a certificate of a
Financial Officer of the Borrower Representative setting forth the basis of
such valuation, less the amount of cash or Permitted Investments received in
connection with a subsequent sale of such Designated Non-Cash Consideration.
"Designated Obligations" means all obligations of the Borrowers with respect
to (a) principal of and interest on the Revolving Loans, Revolving
Overadvances, and Protective Advances, (b) unreimbursed LC Disbursements and
interest thereon and (c) all commitment fees with respect to the Revolving
Commitments and Letter of Credit participation fees. "Disclosed Matters" means
the actions, suits, proceedings and environmental matters disclosed in
Schedule 3.06. "Disposition" or "Dispose" means the sale, transfer, license,
lease or other disposition (in one transaction or in a series of transactions
and whether effected pursuant to a Division or otherwise) of any property by
any Person (including pursuant to any sale and leaseback transaction),
including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims
associated therewith. "Disqualified Equity Interests" means any Equity
Interest that, by its terms (or by the terms of any security or other Equity
Interests into which it is convertible or for which it is exchangeable), or
upon the happening of any event or condition (a) matures or is mandatorily
redeemable (other than solely for Equity Interests which do not otherwise
constitute Disqualified Equity Interests and cash in lieu of fractional
shares), pursuant to a sinking fund obligation or otherwise (except as a
result of a change of control or asset sale so long as any rights of the
holders thereof upon the occurrence of a change of control or asset sale event
shall be subject to the prior repayment in full of the Loans and all other
Obligations that are accrued and payable and the termination of the Revolving
Commitments and FILO Commitments), (b) is redeemable at the option of the
holder thereof (other than solely for Equity Interests which do not otherwise
constitute Disqualified Equity Interests and cash in lieu of fractional
shares), in whole or in part, (c) provides for the scheduled payments of
dividends in cash, or (d) is or becomes convertible into or exchangeable for
Indebtedness (which is not permitted under Section 6.01) or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case,
prior to the date that is ninety-one (91) days after the Maturity Date;
provided, however, that (i) only the portion of such Equity Interests which so
matures or is mandatorily redeemable, is so convertible or exchangeable or is
so redeemable at the option of the holder thereof prior to such date shall be
deemed to be Disqualified Equity Interests and (ii) with respect to any Equity
Interests issued to any employee or to any plan for the benefit of employees
of Insight or any of its
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DB2/ 48024258.7 23 Subsidiaries, or by any such plan to such employees, such
Equity Interests shall not constitute Disqualified Equity Interests solely
because they may be required to be repurchased by Insight or any of its
Subsidiaries in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee's termination, resignation, death
or disability and if any class of Equity Interests of such Person that by its
terms authorizes such Person to satisfy its obligations thereunder by delivery
of Equity Interests that are not Disqualified Equity Interests, such Equity
Interests shall not be deemed to be Disqualified Equity Interests.
"Disqualified Institution" means (a) any Person that is (directly or through a
controlled Subsidiary) a competitor of Insight or the Target that is
separately identified in writing by the Borrower Representative to the
Administrative Agent and the Arrangers from time to time prior to or after the
Effective Date, or (b) any Affiliate of any Person identified in clause (a)
(other than any Affiliate that is a bona fide debt fund or investment vehicle
that is engaged primarily in making, purchasing, holding or otherwise
investing in loans, commitments and similar extensions of credit in the
ordinary course of business for financial investment purposes and with respect
to which no personnel involved with the investment in the relevant competitor,
or the management, control or operation thereof, directly or indirectly,
possesses the power to direct or cause the investment policies of such fund,
vehicle or entity) that is (i) identified in writing by the Borrower
Representative from time to time after the Effective Date or (ii) clearly
identifiable as an Affiliate solely on the basis of the similarity of its
name; provided, however, any such designation of a Person as a Disqualified
Institution shall not have retroactive effect to any prior assignment to any
Lender permitted under this Agreement (but further assignments and
participations shall be prohibited); provided, further, however, that any
addition to the list of Disqualified Institutions made in accordance with this
definition shall not be effective until the third (3rd) Business Day following
the Administrative Agent's receipt of the Borrower Representative's written
notice of such addition. "Dividing Person" has the meaning assigned to it in
the definition of "Division." "Division" means the division of the assets,
liabilities and/or obligations of a Person (the "Dividing Person") among two
or more Persons (whether pursuant to a "plan of division" or similar
arrangement), which may or may not include the Dividing Person and pursuant to
which the Dividing Person may or may not survive. "Division Successor" means
any Person that, upon the consummation of a Division of a Dividing Person,
holds all or any portion of the assets, liabilities and/or obligations
previously held by such Dividing Person immediately prior to the consummation
of such Division. A Dividing Person which retains any of its assets,
liabilities and/or obligations after a Division shall be deemed a Division
Successor upon the occurrence of such Division. "Document" or "Document of
Title" has the meaning assigned to such term in the applicable Collateral
Document. "Dollar Equivalent" means, for any amount, at the time of
determination thereof, (a) if such amount is expressed in U.S. Dollars, such
amount, (b) if such amount is expressed in another Available Currency, the
equivalent of such amount in U.S. Dollars determined by using the rate of
exchange for the purchase of dollars with the Available Currency last provided
(either by publication or otherwise 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 to
provide a rate of exchange for the purchase of U.S. Dollars with the Available
Currency, as provided by such other publicly available information service
which provides that rate of exchange at such time in place of Reuters chosen
by the Administrative Agent in its reasonable discretion (or if such service
ceases to be available or ceases to provide such rate of exchange, the
equivalent of such amount in U.S. Dollars as determined by the DB2/ 48024258.7
24 Administrative Agent using any method of determination it deems appropriate
in its reasonable discretion) and (c) if such amount is denominated in any
other currency, the equivalent of such amount in U.S. Dollars as determined by
the Administrative Agent using any method of determination it deems
appropriate in its reasonable discretion. "Domestic Subsidiary" means a
Subsidiary organized under the laws of a jurisdiction located in the U.S.
"Dutch Borrowers" means, each of, and collectively, Insight Enterprises,
Insight Netherlands, and any other Restricted Subsidiary of Insight
incorporated under the laws of The Netherlands approved by the Administrative
Agent that joins this Agreement as a "Dutch Borrower" in accordance with the
terms hereof, and "Dutch Borrower" means any of them or all of them
individually, as the context may require. "Dutch Borrowing Base" means, at any
time, the Dollar Equivalent of the result of, subject to the terms of Section
1.10: (A) the Account Advance Rate of the Dutch Eligible Accounts at such
time, less (B) Reserves applicable to the Dutch Borrowing Base established by
the Administrative Agent in its Permitted Discretion in accordance with
Section 1.10. "Dutch CITA" means the Dutch Corporate Income Tax Act (Wet op de
vennootschapsbelasting 1969). "Dutch CIT Fiscal Unity" means a fiscal unity
(fiscale eenheid) for Dutch corporate income tax purposes (within the meaning
of Article 15 of the Dutch CITA). "Dutch CIT Fiscal Unity Member" has the
meaning assigned to such term in Section 9.22. "Dutch Civil Code" means the
Dutch Civil Code (Burgerlijk Wetboek). "Dutch Collateral Documents" means,
collectively, the Dutch Omnibus Pledge and any other agreements, instruments
and documents executed in connection with this Agreement that are intended to
create, perfect or evidence Liens to secure any of the Secured Obligations,
including, without limitation, all other security agreements, pledge
agreements, debentures, share charges, pledges, powers of attorney,
assignments, financing statements, in each case now or hereafter executed by
any Dutch Loan Party and delivered to the Administrative Agent that are
intended to create, perfect or evidence Liens on assets of any Dutch Loan
Party to secure any of the Secured Obligations. "Dutch Eligible Accounts"
means the Eligible Accounts owned by a Dutch Borrower billed from and
collected in The Netherlands or any other jurisdiction satisfactory to the
Administrative Agent in its Permitted Discretion owing by an Account Debtor in
the United States, Canada or an Approved Jurisdiction that comply in all
material respects with each of the representations and warranties respecting
Eligible Accounts that are Dutch Eligible Accounts made in the Loan Documents.
"Dutch Loan Parties" means, each of, and collectively, the Dutch Borrowers,
Insight Enterprises C.V., a limited partnership (commanditaire vennootschap),
incorporated under the laws of The Netherlands and registered with the Dutch
trade register under number 24410231, Insight Enterprises Holdings B.V., a
besloten vennootschap met beperkte aansprakelijkheid, incorporated under the
laws of The Netherlands, having its official seat in Den Haag, The Netherlands
and registered with the Dutch trade register under number 08154117 and any
other Restricted Subsidiary of Insight organized under applicable law of The
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DB2/ 48024258.7 25 Netherlands who becomes a party to this Agreement pursuant
to a Joinder Agreement and their respective successors and assigns, and the
term "Dutch Loan Party" means any one of them or all of them individually, as
the context may require. For the avoidance of doubt, Dutch Loan Parties shall
not include any Excluded Subsidiary. "Dutch Omnibus Pledge" means,
collectively, (i) the Dutch law governed omnibus pledge entered into on or
about the date of this Agreement by and among the Dutch Loan Parties, as
pledgors, and the Administrative Agent, as pledgee and (ii) the Dutch law
governed omnibus pledge entered into on or about the Third Amendment Effective
Date by and among the Dutch Loan Parties, as pledgors, and the Administrative
Agent, as pledgee. "EBITDA" means, for any Test Period, the sum of (a) Net
Income for such Test Period plus (b) to the extent deducted in determining Net
Income for such Test Period, (i) Interest Expense, (ii) expense for taxes paid
or accrued, (iii) depreciation, (iv) amortization, (v) any non-cash or
nonrecurring non-cash charges or losses incurred other than in the ordinary
course of business, (vi) any non-cash compensation charge arising from any
grant of stock, stock options or other equity-based awards, (vii) any cash
expenses or charges related to any issuance of Equity Interests, Permitted
Acquisition or other Investment, Disposition, recapitalization or the
incurrence, prepayment, amendment, modification, restructuring or refinancing
of Indebtedness, in each case, (x) solely to the extent such transaction is
not prohibited by this Agreement and (y) whether or not such transaction is
consummated in an aggregate amount not to exceed $50,000,000 during any Test
Period, (viii) costs, expenses and fees incurred in connection with the
Transactions and (ix) cash restructuring charges (including in connection with
headcount reductions, costs related to the closure, consolidation and
integration of facilities, IT infrastructure and legal entities, severance
costs and retention bonuses) in an amount, when aggregated with the amount of
any increase to EBITDA pursuant to clause (y) of the last sentence of the
definition of "Pro Forma Basis," not to exceed 10% of EBITDA for such Test
Period (calculated prior to giving effect to any increase pursuant to this
clause (ix) or clause (y) of the last sentence of the definition of "Pro Forma
Basis"), all calculated for Insight and its Subsidiaries on a consolidated
basis in accordance with GAAP; provided that, from and after the Borrower
Representative's written notice to the Administrative Agent of its irrevocable
election to deliver the Consolidating Financial Statements for all Test
Periods ending after such written notice (for so long as any Unrestricted
Subsidiaries exist), EBITDA shall be calculated for Insight and its Restricted
Subsidiaries on a consolidated basis in accordance with GAAP (it being
understood that Insight shall be required to deliver to the Administrative
Agent the related Consolidated Financial Statements with each set of
consolidated financial statements referred to in Sections 5.01(a) and (b) with
respect to the applicable Test Period ending after such written notice). "ECP"
means an "eligible contract participant" as defined in Section 1(a)(18) of the
Commodity Exchange Act or any regulations promulgated thereunder and the
applicable rules issued by the Commodity Futures Trading Commission and/or the
SEC. "EEA Financial Institution" means (a) any credit institution or
investment firm established in any EEA Member Country which is subject to the
supervision of an EEA Resolution Authority, (b) any entity established in an
EEA Member Country which is a parent of an institution described in clause (a)
of this definition, or (c) any financial institution established in an EEA
Member Country which is a subsidiary of an institution described in clauses
(a) or (b) of this definition and is subject to consolidated supervision with
its parent. "EEA Member Country" means any of the member states of the
European Union, Iceland, Liechtenstein, and Norway. DB2/ 48024258.7 26 "EEA
Resolution Authority" means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA
Financial Institution. "Effective Date" means August 30, 2019. "Electronic
Signature" means an electronic sound, symbol, or process attached to, or
associated with, a contract or other record and adopted by a Person with the
intent to sign, authenticate or accept such contract or record. "Electronic
System" means any electronic system, including e-mail, e-fax, web portal
access for such Borrower and any other Internet or extranet-based site,
whether such electronic system is owned, operated or hosted by the
Administrative Agent or any Issuing Bank and any of its respective Related
Parties or any other Person, providing for access to data protected by
passcodes or other security system. "Eligible Accounts" means, at any time,
the Accounts of a Borrower or, in respect of the U.S. Borrowing Base, a
Canadian Loan Guarantor, that are not excluded as ineligible by virtue of one
or more of the excluding criteria set forth below or established in accordance
with Section 1.10, in each case subject to the terms of Section 1.10. Eligible
Accounts shall not include any Account of a Borrower or a Canadian Loan
Guarantor: (a) which is not subject to a first priority perfected security
interest in favor of the Administrative Agent; (b) which is subject to any
Lien other than (i) a Lien in favor of the Administrative Agent and (ii) a
Lien permitted under Section 6.02 which does not have priority over (and is
not pari passu with) the Lien in favor of the Administrative Agent; (c) (i)
which is unpaid more than (A) with respect to any Accounts of any Account
Debtor with a corporate family rating of Baa3 (or higher) according to Moody's
or BBB- (or higher) according to S&P, 150 days after the date of the original
invoice therefor or (B) with respect to any Accounts of any other Account
Debtor, ninety (90) days after the date of the original invoice therefor, or
(ii) which has been written off the books of such Borrower or such Canadian
Loan Guarantor or otherwise designated by a Loan Party as uncollectible; (d)
which is owing by an Account Debtor for which more than 50% of the Accounts
owing from such Account Debtor and its Affiliates are ineligible pursuant to
clause (c) above; (e) which is owing by an Account Debtor to the extent the
aggregate amount of Accounts owing from such Account Debtor and its Affiliates
to all Borrowers and all Canadian Loan Guarantors, exceeds 25% of the
aggregate amount of Eligible Accounts of all Borrowers and all Canadian Loan
Guarantors, in each case solely to the extent of such excess; (f) with respect
to which any covenant, representation or warranty contained in this Agreement
or in any Collateral Document has been breached in any material respect or is
not true in any material respect (except that such materiality qualifier shall
not be applicable to any covenant, representation or warranty that already is
qualified or modified by materiality in the text thereof); (g) which (i) does
not arise from the sale of goods or performance of services in the ordinary
course of business, (ii) is not evidenced by an invoice or other documentation
satisfactory
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DB2/ 48024258.7 27 to the Administrative Agent in its Permitted Discretion
which has been sent to the Account Debtor, (iii) represents a progress
billing, (iv) is contingent upon such Borrower's or such Canadian Loan
Guarantor's completion of any further performance, (v) represents a sale on a
bill-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment, cash-on-delivery or any other repurchase or return basis or (vi)
relates to payments of interest (but only to the extent thereof); (h) other
than with respect to up to $100,000,000 of customer owned Inventory that is
segregated from Eligible Inventory of the U.S. Borrowers, for which the goods
giving rise to such Account have not been shipped to the Account Debtor or for
which the services giving rise to such Account have not been performed by such
Borrower or such Canadian Loan Guarantor, as applicable, or if such Account
was invoiced more than once; (i) with respect to which any check or other
instrument of payment has been returned uncollected for any reason; (j) which
is owed by an Account Debtor which has (i) applied for, suffered, or consented
to the appointment of any receiver, interim receiver, monitor, custodian,
trustee, administrator, administrative receiver, compulsory manager or
liquidator of its assets or similar official for such Account Debtor or its
assets, (ii) had possession of all or a material part of its property taken by
any receiver, interim receiver, monitor, custodian, trustee, administrator,
administrative receiver, compulsory manager or liquidator, (iii) filed, or had
filed against it, any assignment, application, request or petition for
liquidation, administration, reorganization, arrangement, compromise,
adjustment of debts, stay of proceedings, adjudication as bankrupt,
winding-up, or voluntary or involuntary case or proceeding under any
Insolvency Laws, (iv) admitted in writing its inability, or is generally
unable to, pay its debts as they become due, (v) become insolvent, or (vi)
ceased operation of its business; (k) which is owed by any Account Debtor
which has sold all or substantially all of its assets; (l) which is owed by an
Account Debtor which (i) does not maintain its chief executive office (or the
equivalent in the applicable jurisdiction) in the U.S., Canada or an Approved
Jurisdiction or (ii) is not organized under applicable law of the U.S., any
state of the U.S., the District of Columbia, Canada, any province of Canada,
or an Approved Jurisdiction unless, in any such case, such Account is backed
by a letter of credit or other credit support acceptable to the Administrative
Agent in its Permitted Discretion which is in the possession of, and is
directly drawable by, the Administrative Agent; (m) which, in respect of any
Account of any U.K. Borrower, any Dutch Borrower or any Australian Borrower,
the contract or agreement underlying such Account is governed by (or, if no
governing law is expressed therein, is deemed to be governed by) the laws of
any jurisdiction other than England and Wales, The Netherlands or the
Commonwealth of Australia; (n) which, in respect of any U.K. Borrower, any
Dutch Borrower, any Australian Borrower or any U.S. Borrower, is subject to
any limitation on assignment or other restriction (whether arising by
operation of law, by agreement or otherwise) which would under the local
governing law of the contract have the effect of restricting the assignment
for or by way of security or the creation of security; (o) which is owed in
any currency other than (i) U.S. Dollars, Euros, Australian Dollars or
Sterling in the case of any U.S. Borrower, any U.K. Borrower, any Australian
Borrower DB2/ 48024258.7 28 and/or any Dutch Borrower, and (ii) U.S. Dollars
or Cdn$ in the case of any Canadian Loan Guarantor; (p) which is owed by (i)
any government (or any department, agency, public corporation, or
instrumentality thereof) of any country other than the U.S., U.K., Canada or
Australia unless such Account is backed by a letter of credit or other credit
support acceptable to the Administrative Agent in its Permitted Discretion
which is in the possession of, and is directly drawable by, the Administrative
Agent, (ii) any government of the United States or any department, agency,
public corporation, or instrumentality thereof, unless the Federal Assignment
of Claims Act of 1940, as amended (31 U.S.C. (s) 3727 et seq. and 41 U.S.C.
(s) 15 et seq.) applies thereto, and any other steps necessary to perfect the
Lien of the Administrative Agent in such Account have been complied with to
the Administrative Agent's satisfaction in its Permitted Discretion; provided,
however, that Accounts in an aggregate amount not to exceed $100,000,000 at
any one time owing by any government of the United States or any department,
agency, public corporation, or instrumentality thereof, shall not be excluded
solely on account of this clause (p)(ii), (iii) the federal government of
Canada or any department, agency, public/crown corporation, or instrumentality
thereof, unless the provisions of the Financial Administration Act (Canada)
are complied with, and any other steps necessary to perfect the Lien of the
Administrative Agent in such Account, have been complied with to the
Administrative Agent's satisfaction in its Permitted Discretion, or (iv) any
government of any province or territory of Canada, if the provisions of
provincial or territorial laws are required to be complied with in order to
perfect the Lien of the Administrative Agent in such Account, unless such
provisions have been complied with to the Administrative Agent's satisfaction
in its Permitted Discretion; (q) which is owed by any Affiliate of any Loan
Party, or any employee, officer, director, agent or stockholder of any Loan
Party or any of their respective Affiliates; (r) which is owed by an Account
Debtor or any Affiliate of such Account Debtor to which any Borrower or any
Canadian Loan Guarantor is indebted, but only to the extent of such
indebtedness, or is subject to any security, deposit, progress payment,
retainage or other similar advance made by or for the benefit of an Account
Debtor, in each case to the extent thereof; (s) which is subject to any
counterclaim, deduction, defense, setoff or dispute but only to the extent of
any such counterclaim, deduction, defense, setoff or dispute; (t) which is
evidenced by any promissory note, chattel paper or instrument; (u) which is
owed by an Account Debtor (i) located in any jurisdiction which requires
filing of a "Notice of Business Activities Report" or other similar report in
order to permit such Borrower or Canadian Loan Guarantor, as applicable, to
seek judicial enforcement in such jurisdiction of payment of such Account,
unless such Borrower or Canadian Loan Guarantor, as applicable, has filed such
report or qualified to do business in such jurisdiction or (ii) which is a
Sanctioned Person; (v) with respect to which such Borrower or Canadian Loan
Guarantor, as applicable, has made any agreement with the Account Debtor for
any reduction thereof, other than discounts and adjustments given in the
ordinary course of business but only to the extent of any such reduction, or
any Account which was partially paid and such Borrower or Canadian Loan
Guarantor, as applicable, created a new receivable for the unpaid portion of
such Account;
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DB2/ 48024258.7 29 (w) which does not comply in all material respects with the
requirements of all applicable laws and regulations, whether Federal, state,
provincial, territorial, local, or those of a foreign jurisdiction, including
without limitation the Federal Consumer Credit Protection Act, the Federal
Truth in Lending Act and Regulation Z of the Board; (x) which is for goods
that have been sold under a purchase order or pursuant to the terms of a
contract or other agreement or understanding (written or oral) that indicates
or purports that any Person other than such Borrower or Canadian Loan
Guarantor, as applicable, has or has had an ownership interest in such goods,
or which indicates any party other than such Borrower or Canadian Loan
Guarantor, as applicable, as payee or remittance party; (y) which was created
on cash on delivery terms; (z) which are Accounts Disposed of by the
applicable Borrowers pursuant to Section 6.05(d); (aa) which are subject to
any valid extended retention of title right; (bb) [reserved]; or (cc) which is
(x) owed to an Australian Borrower or (y) owed to a U.S. Borrower by an
Account Debtor located in Belgium or any other Approved Jurisdiction and which
is billed and collected in Belgium, in each case, until such time after the
Third Amendment Effective Date as the Administrative Agent shall have first
conducted an audit and field examination of such Accounts, the results of
which are satisfactory to the Administrative Agent in its Permitted
Discretion. In determining the amount of an Eligible Account of a Borrower or
a Canadian Loan Guarantor, as applicable, the face amount of an Account may,
in the Administrative Agent's Permitted Discretion, be reduced by, without
duplication hereunder or under the foregoing eligibility criteria or Reserves
and, to the extent not reflected in such face amount, (i) the amount of all
accrued and actual discounts, claims, credits or credits pending, promotional
program allowances, price adjustments, finance charges or other allowances
(including any amount that such Borrower or such Canadian Loan Guarantor, as
applicable, is obligated to rebate to an Account Debtor pursuant to the terms
of any agreement or understanding (written or oral)) and (ii) the aggregate
amount of all cash received in respect of such Account but not yet applied by
such Borrower or such Canadian Loan Guarantor, as applicable, to reduce the
amount of such Account. Furthermore and notwithstanding anything to contrary
herein or any other Loan Document, (i) Accounts owed to a Borrower or a
Canadian Loan Guarantor, as applicable, from an Account Debtor located in an
Approved Jurisdiction shall be eligible from and after the Effective Date so
long as such Accounts satisfy the eligibility criteria set forth above in this
definition of Eligible Accounts; provided that during a Cash Dominion Period,
the Administrative Agent may request that Additional Perfection Steps be taken
by the applicable Borrowers and/or Canadian Loan Guarantors in relation to
such Accounts and, if the relevant Borrowers, or Canadian Loan Guarantors are
not able to complete such Additional Perfection Steps within the timeframe
specified for a particular Approved Jurisdiction by the Administrative Agent
in its sole discretion, such Approved Jurisdiction shall cease to be an
Approved Jurisdiction during a Cash Dominion Period and (ii) Accounts owed to
a U.S. Borrower (including any branch of a U.S. Borrower) from an Account
Debtor located in an Approved Jurisdiction shall only be eligible if such
Accounts are paid into a deposit account that is subject to a valid and
enforceable first ranking security interest under the laws of the jurisdiction
where the relevant deposit account is located and, unless otherwise agreed to
in writing by the Administrative Agent in its Permitted Discretion, subject to
a Deposit Account Control Agreement. DB2/ 48024258.7 30 "Eligible Finished
Goods Inventory" means, subject to the terms of Section 1.10, Eligible
Inventory constituting finished goods to be sold by a U.S. Borrower in the
ordinary course of business of such U.S. Borrower, excluding Eligible
Work-in-Process Inventory of such U.S. Borrower. "Eligible Inventory" means,
at any time, the Inventory of a U.S. Borrower which is not excluded as
ineligible by virtue of one or more of the excluding criteria set forth below
or established in accordance with Section 1.10, in each case subject to the
terms of Section 1.10, Eligible Inventory of a U.S. Borrower shall not include
any Inventory: (a) which is not subject to a first priority perfected Lien in
favor of the Administrative Agent; (b) which is subject to any Lien other than
(i) a Lien in favor of the Administrative Agent and (ii) a Lien permitted
under Section 6.02 which does not have priority over (and is not pari passu
with) the Lien in favor of the Administrative Agent; (c) which is, in the
Administrative Agent's Permitted Discretion, slow moving, obsolete,
unmerchantable, defective, used, unfit for sale, not salable at prices
approximating at least the cost of such Inventory in the ordinary course of
business or unacceptable due to age, type, category and/or quantity; (d) with
respect to which any covenant, representation or warranty contained in this
Agreement or in the U.S. Security Agreement has been breached in any material
respect or is not true in any material respect (except that such materiality
qualifier shall not be applicable to any covenant, representation or warranty
that already is qualified or modified by materiality in the text thereof) and
which does not conform to all standards imposed by any Governmental Authority;
(e) in which any Person other than such U.S. Borrower shall (i) have any
direct or indirect ownership, interest or title or (ii) be indicated on any
purchase order or invoice with respect to such Inventory as having or
purporting to have an interest therein; (f) which constitutes raw materials,
spare or replacement parts, subassemblies, packaging and shipping material,
manufacturing supplies, samples, prototypes, displays or display items,
bill-and-hold or ship-in-place goods, goods that are returned or marked for
return or repossessed goods (other than goods that are undamaged and are able
to be resold in the ordinary course of business), defective or damaged goods,
goods held on consignment, or goods which are not of a type held for sale in
the ordinary course of business; (g) which is not located in the U.S. or is in
transit with a common carrier from vendors and suppliers; (h) which is located
in any location leased by such U.S. Borrower unless (A)(i) the lessor has
delivered to the Administrative Agent a Collateral Access Agreement or (ii) a
Rent Reserve has been established by the Administrative Agent in its Permitted
Discretion and (B) at least $1,000,000 of Inventory of the U.S. Borrowers is
located at such location (it being agreed that up to $10,000,000 in the
aggregate of Inventory shall not be excluded solely on account of this clause
(h)(B) or clause (i)(B) below); (i) which is located in any third party
warehouse or is in the possession of a bailee (other than a third party
processor) and is not evidenced by a Document, unless (A)(i) such warehouseman
or bailee has delivered to the Administrative Agent a Collateral Access
Agreement
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DB2/ 48024258.7 31 or (ii) an appropriate Reserve has been established by the
Administrative Agent in its Permitted Discretion in accordance with Section
1.10 and (B) at least $1,000,000 of Inventory of the U.S. Borrowers is located
at such third party warehouse or in possession of such bailee (it being agreed
that up to $10,000,000 in the aggregate of Inventory shall not be excluded
solely on account of this clause (i)(B) or clause (h)(B) above); (j) which is
being processed offsite at a third party location or outside processor, or is
in-transit to or from such third party location or outside processor; (k)
which is a discontinued product or component thereof; (l) which is the subject
of a consignment by such U.S. Borrower as consignor; (m) which is perishable;
(n) which contains or bears any intellectual property rights licensed to such
U.S. Borrower unless the Administrative Agent is satisfied that it may sell or
otherwise dispose of such Inventory without (i) infringing the rights of such
licensor, (ii) violating any contract with such licensor, or (iii) incurring
any liability with respect to payment of royalties other than royalties
incurred pursuant to sale of such Inventory under the current licensing
agreement; (o) which is not reflected in a current perpetual inventory report
of such U.S. Borrower; (p) for which reclamation rights have been asserted by
the seller; or (q) which has been acquired from a Sanctioned Person. "Eligible
Real Property" shall mean the real property owned in fee by Insight Direct,
USA, Inc. located at 2701 E. Insight Way, Chandler, Arizona 85286, so long as
such real property satisfies each of the following criteria: (i) in respect of
which an appraisal report has been delivered to the Administrative Agent in
form, scope and substance reasonably satisfactory to the Administrative Agent
and the Lenders (each, an "Acceptable Real Estate Appraisal"); (ii) in respect
of which the Administrative Agent and the Lenders are satisfied that all
actions necessary or desirable in order to create a perfected first priority
Lien on such real property have been taken (subject to Permitted Encumbrances),
including the filing and recording of the related Mortgage; (iii) in respect
of which an environmental assessment report has been completed and delivered
to the Administrative Agent in form and substance reasonably satisfactory to
the Administrative Agent and the Lenders and, unless otherwise approved by
Administrative Agent and the Lenders, which does not indicate any pending,
threatened or existing Environmental Liability or noncompliance with any
Environmental Law; (iv) which is adequately protected by fully-paid valid
title insurance with endorsements and in amounts acceptable to the
Administrative Agent in its Permitted Discretion, insuring that the
Administrative Agent, for the benefit of the Lenders and the other Secured
Parties, shall have a perfected first priority Lien on such real property,
evidence of which shall have been provided in form and substance reasonably
satisfactory to the Administrative Agent; (v) in respect of which, the
Administrative Agent has received a "life of loan" flood zone determination
and, if any such parcel of real property is shown in such determination or
otherwise reasonably determined by the Administrative Agent to be in a flood
zone, a flood notification form signed by the Borrower Representative and
evidence that flood insurance is in place for the building and contents, all
in form and substance reasonably satisfactory to the Administrative Agent and
Lenders and otherwise in compliance with all applicable Flood Laws; (vi) an
ALTA survey has been delivered to the Administrative Agent for which all
necessary fees have been paid and which is acceptable to the title company for
the issuance of extended coverage loan DB2/ 48024258.7 32 policies (with no
survey exception), in a form that is customary and reasonably acceptable to
the Administrative Agent and the Lenders, and which shows all buildings and
other improvements, any offsite improvements, the location of any easements,
parking spaces, rights of way, building setback lines and other dimensional
regulations and the absence of encroachments, either by such improvements or
on to such property, and other defects, other than encroachments and other
defects acceptable to the Administrative Agent in its Permitted Discretion;
and (vii) if required by the Administrative Agent: (A) in respect of which
local counsel for such U.S. Borrower in the state in which such real property
is located has delivered a letter of opinion with respect to the enforceability
and perfection of the Mortgage and any related fixture filings in form and
substance reasonably satisfactory to the Administrative Agent in its Permitted
Discretion; and (B) in respect of which such U.S. Borrower shall have used its
commercially reasonable efforts to obtain estoppel certificates executed by
any tenants that lease a material portion of such real property and such other
material consents, agreements and confirmations of tenants, lessors and third
parties, in each case, as the Administrative Agent may deem necessary or
desirable in its Permitted Discretion (provided that so long as the applicable
U.S. Borrower is exercising diligent and commercially reasonable efforts to
obtain the certificates, consents, agreements and confirmations referenced in
this subclause (B), the failure of the U.S. Borrower to obtain such
certificates, consents, agreement and confirmations, including as a result of
the failure of any tenant or third-party to provide consent or confirmation,
will not preclude any such real property from constituting "Eligible Real
Property"), together with evidence that all other actions that the
Administrative Agent may deem necessary in its Permitted Discretion in order
to create perfected first priority Liens on the property described in the
Mortgage have been taken. "Eligible Work-In-Process Inventory" means, subject
to the terms of Section 1.10, Eligible Inventory of a U.S. Borrower
constituting work-in-process, excluding Eligible Finished Goods Inventory of
such U.S. Borrower. "En Pointe Technologies" means En Pointe Technologies
Sales, LLC, a Delaware limited liability company. "Environmental Laws" means
all laws, rules, regulations, codes, ordinances, orders, orders-in- council,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to (a) the environment, (b) preservation or reclamation of natural resources,
(c) the management, Release or threatened Release of any Hazardous Material or
(d) health and safety matters. "Environmental Liability" means any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of any Loan Party
or Restricted Subsidiary directly or indirectly resulting from or based upon
(a) any violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
the presence of or any exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing. "Equity
Interests" means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person, and any warrants, options or
other rights entitling the holder thereof to purchase or acquire any of the
foregoing, but excluding any debt securities convertible into any of the
foregoing and any and all Convertible Debt Securities, Permitted Convertible
Debt Hedge Transactions, and Permitted Share Repurchase Transactions.
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DB2/ 48024258.7 33 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the rules and regulations
promulgated thereunder. "ERISA Affiliate" means any trade or business (whether
or not incorporated) that, together with a Loan Party, is treated as a single
employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code,
is treated as a single employer under Section 414 of the Code. "ERISA Event"
means (a) any "reportable event", as defined in Section 4043 of ERISA or the
regulations issued thereunder, with respect to a Plan (other than an event for
which the thirty (30)-day notice period is waived); (b) the failure to satisfy
the "minimum funding standard" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(c) of the Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan; (d) the
incurrence by any Loan Party or any ERISA Affiliate of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party
or any ERISA Affiliate of any liability with respect to the withdrawal or
partial withdrawal of any Loan Party or any ERISA Affiliate from any Plan or
Multiemployer Plan; or (g) the receipt by any Loan Party or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from any
Loan Party or any ERISA Affiliate of any notice, concerning the imposition
upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent,
in critical or endangered status, within the meaning of Title IV of ERISA.
"ESTR" means, with respect to any Business Day, a rate per annum equal to the
Euro Short Term Rate for such Business Day published by the ESTR Administrator
on the ESTR Administrator's Website. "ESTR Administrator" means the European
Central Bank (or any successor administrator of the Euro Short Term Rate).
"ESTR Administrator's Website" means the European Central Bank's website,
currently at http://www.ecb.europa.eu, or any successor source for the Euro
Short Term Rate identified as such by the ESTR Administrator from time to
time. "EU Bail-In Legislation Schedule" means the EU Bail-In Legislation
Schedule published by the Loan Market Association (or any successor Person),
as in effect from time to time. "Euro" or "EUR" means the single currency of
the Participating Member States. "EURIBOR Interpolated Rate" means, at any
time, with respect to any Term Benchmark Borrowing denominated in Euros and
for any Interest Period, the rate per annum (rounded to the same number of
decimal places as the EURIBOR Screen Rate) determined by the Administrative
Agent (which determination shall be conclusive and binding absent manifest
error) to be equal to the rate that results from interpolating on a linear
basis between: (a) the EURIBOR Screen Rate for the longest period (for which
the EURIBOR Screen Rate is available for Euros) that is shorter than the
Impacted EURIBOR Rate Interest Period; and (b) the EURIBOR Screen Rate for the
shortest period (for which the EURIBOR Screen Rate is available for Euros)
that exceeds the Impacted EURIBOR Rate Interest Period, in each case, at such
time; provided that, if any EURIBOR Interpolated Rate shall be less than the
Floor, such rate shall be deemed to be the Floor for the purposes of this
Agreement. DB2/ 48024258.7 34 "EURIBOR Rate" means, with respect to any Term
Benchmark Borrowing denominated in Euros and for any Interest Period, the
EURIBOR Screen Rate at approximately 11:00 a.m., Brussels time, two TARGET
Days prior to the commencement of such Interest Period; provided that, if the
EURIBOR Screen Rate shall not be available at such time for such Interest
Period (an "Impacted EURIBOR Rate Interest Period") with respect to Euros then
the EURIBOR Rate shall be the EURIBOR Interpolated Rate. "EURIBOR Screen Rate"
means the euro interbank offered rate administered by the European Money
Markets Institute (or any other person which takes over the administration of
that rate) for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page EURIBOR01 of the
Thomson Reuters screen (or any replacement Thomson Reuters page which displays
that rate) or on the appropriate page of such other information service which
publishes that rate from time to time in place of Thomson Reuters as of 11:00
a.m. Brussels time two TARGET Days prior to the commencement of such Interest
Period. If such page or service ceases to be available, the Administrative
Agent may specify another page or service displaying the relevant rate after
consultation with the Borrower. If the EURIBOR Screen Rate shall be less than
the Floor, the EURIBOR Screen Rate shall be deemed to be the Floor for
purposes of this Agreement. "European Loan Parties" means, collectively, the
U.K. Loan Parties and the Dutch Loan Parties, and the term "European Loan
Party" means any one of them or all of them individually, as the context may
require. "European Union Regulation" means Regulation (EU) 2015/848 of 20 May
2015 on insolvency proceedings (recast), provided that in respect of each U.K.
Loan Party only "European Union Regulation" shall mean Regulation (EU)
2015/848 of 20 May 2015 on insolvency proceedings (recast), as that Regulation
forms part of the domestic law of the United Kingdom by virtue of the European
Union (Withdrawal) Act 2018 (as amended) and as that Regulation is amended by
the Insolvency (Amendment)(EU Exit) Regulations 2019 (SI 2019/146) (as
amended). "Event of Default" has the meaning assigned to such term in Article
VII. "Excess Availability" means the U.S. Excess Availability, the Foreign
Excess Availability or the FILO Excess Availability, as the context may
require. "Excluded Assets" means, with respect to any assets of any Loan
Party: (a) any Equity Interest in any Excluded Subsidiary, (b) any rights or
interest in any contract, lease, permit, license, or license agreement
covering real or personal property of any Loan Party if under the terms of
such contract, lease, permit, license, or license agreement, or applicable law
with respect thereto, the grant of a security interest or Lien therein is (i)
prohibited as a matter of law or under the terms of such contract, lease,
permit, license, or license agreement, (ii) would require governmental consent
or authorization or (iii) would create a right of termination in favor of, or
require the consent of, any other party thereto and such prohibition,
restriction or right of termination has not been waived or such governmental
consent or authorization or the consent of such other parties to such
contract, lease, permit, license or license agreement has not been obtained
(provided, that (A) the foregoing exclusions of this clause (b) shall in no
way be construed (1) to apply to the extent that any described prohibition or
restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the
UCC or other applicable law, or (2) to apply to the extent that any consent or
waiver has been obtained that would permit the Administrative Agent's security
interest or Lien to attach notwithstanding the prohibition or restriction on
the pledge of such contract, lease, permit, license, or license agreement and
(B) the foregoing exclusions of this clause (b) shall in no way be construed
to limit, impair, or otherwise affect any of the Administrative Agent's
continuing security interests in and Liens upon any rights or interests of any
Loan Party in or to (1) monies due or to become due under or in connection
with any described contract, lease, permit, license or license agreement, or
(2) any proceeds from the sale, license,
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DB2/ 48024258.7 35 lease, or other Dispositions of any such contract, lease,
permit, license or license agreement), (c) if the Borrower Representative and
the Administrative Agent in good faith determine the cost, burden or
consequences of obtaining or perfecting a security interest in such assets is
excessive in relation to the practical benefit afforded thereby, (d) trust or
fiduciary accounts, escrow accounts and deposit accounts solely used for the
purposes of making payments in respect of payroll, withholding taxes and
employee wages and benefits, (e) any fixed assets subject to a permitted
purchase money security interest, (f) any assets to the extent a security
interest in such assets would result in material adverse tax consequences as
reasonably determined by the Borrower Representative and the Administrative
Agent in good faith, (g) any asset or property to the extent providing or
perfecting such security would result in any risk to the directors or officers
of the relevant Loan Party of contravention of its fiduciary duties and/or of
civil or criminal liability as determined by such Loan Party in good faith,
(h) other than with respect to Loan Parties organized or incorporated in the
United States or Canada, pledges and security interests prohibited by laws and
regulations relating to financial assistance, fiduciary duties, corporate
benefit, fraudulent preference or similar principles, and (i) any
Letter-of-Credit Right (as defined in the UCC) in which a security interest
therein may not be perfected by a financing statement under the UCC; provided
that, with respect to any Loan Party organized or incorporated in England and
Wales, the Global Collateral shall include all of the assets of such Loan
Party (whether consisting of real, personal, tangible or intangible property,
including all of the outstanding Equity Interests of such Loan Party's
Subsidiaries) subject to a floating charge under English law and further
provided that, with respect to any Loan Party incorporated in Australia, the
Excluded Assets shall be subject to `featherweight' security which shall only
be enforceable in the event of an appointment an administrator to the
applicable Loan Party incorporated in Australia. "Excluded Subsidiary" means,
collectively, (a) any Immaterial Subsidiary (unless such Immaterial Subsidiary
is a Loan Guarantor or a Borrower at the election of Insight with the consent
of the Administrative Agent with respect to any such election with respect to
a Borrower (such consent not to be unreasonably withheld and it being agreed
that all Borrowers existing on the Effective Date are acceptable to the
Administrative Agent)), (b) any special purpose entity, captive insurance
Subsidiary or not for profit Subsidiaries, (c) any Subsidiary to the extent
that the burden or cost of obtaining a guaranty outweighs the benefit afforded
thereby as determined by the Borrower Representative and the Administrative
Agent together in good faith, (d) any Unrestricted Subsidiary, (e) any
Subsidiary prohibited or restricted (including, by any consent requirement)
from providing any Guarantee by (i) applicable law or regulation (including
but not limited to those relating to financial assistance, fiduciary duties,
corporate benefit and fraudulent preference or similar principles), (ii) any
permitted purchase money Indebtedness, capital lease or Sale and Leaseback
Transaction, provided such Subsidiary has no material assets other than those
financed thereby, or (iii) any contract (including any Indebtedness permitted
pursuant to Section 6.01) entered into prior to (and not entered into in
contemplation of) the Effective Date or the Acquisition of such Subsidiary,
(f) any Subsidiary (other than any Subsidiary of Insight or PCM organized or
incorporated under the laws of the United States, Canada, the United Kingdom
or Australia) if providing such Guarantee would result in any risk to the
directors or officers of the relevant Subsidiary of contravention of their
fiduciary duties and/or of civil or criminal liability, and (g) any Subsidiary
that is organized under the laws of any jurisdiction other than the United
States, Canada, The Netherlands, the United Kingdom or Australia; provided
that none of the foregoing exceptions (other than as set forth in the
foregoing clauses (d), (e)(i) or (f) (and in each case of clauses (e)(i) and
(f), solely to the extent any change in applicable law has retroactive
effect)) shall be applicable to any Global Loan Party. "Excluded Swap
Obligation" means, with respect to any Loan Guarantor, any Swap Obligation if,
and to the extent that, all or a portion of the Guarantee of such Loan
Guarantor of, or the grant by such Loan Guarantor of a security interest to
secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal
under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official
interpretation of any thereof) by virtue of such Loan Guarantor's failure for
any reason to constitute an ECP at the time the Guarantee of such Loan
Guarantor DB2/ 48024258.7 36 or the grant of such security interest becomes or
would become effective with respect to such Swap Obligation. If a Swap
Obligation arises under a master agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such Guarantee or security interest is or
becomes illegal. "Excluded Taxes" means any of the following Taxes imposed on
or with respect to a Recipient or required to be withheld or deducted from a
payment to a Recipient: (a) Taxes imposed on or measured by net income
(however denominated), franchise Taxes, and branch profits Taxes, in each
case, (i) imposed as a result of such Recipient being organized under the laws
of, or having its principal office or, in the case of any Lender, its
applicable lending office located in, the jurisdiction imposing such Tax (or
any political subdivision thereof) or (ii) that are Other Connection Taxes;
(b) in the case of a Lender, withholding Taxes imposed on amounts payable to
or for the account of such Lender with respect to an applicable interest in a
Loan, Letter of Credit, Revolving Commitment or FILO Commitment pursuant to a
law in effect on the date on which (i) such Lender acquires such interest in
the Loan, Letter of Credit, Revolving Commitment or FILO Commitment (other
than pursuant to an assignment request by the Borrowers under Section 2.19(b))
or (ii) such Lender changes its lending office, except in each case to the
extent that, pursuant to Section 2.17, amounts with respect to such Taxes were
payable either to such Lender's assignor immediately before such Lender
acquired the applicable interest in a Loan, Letter of Credit, Revolving
Commitment or FILO Commitment or to such Lender immediately before it changed
its lending office; (c) Taxes attributable to such Recipient's failure to
comply with Section 2.17(f) and (j); (d) without duplication, any withholding
Tax payable under Part XIII of the Canadian ITA that is imposed on amounts
payable to or for the account of a Recipient as a consequence of the Recipient
(i) not dealing at arm's length (within the meaning of the Canadian ITA) with
any Canadian Loan Guarantor at the time of such payment or (ii) being a
"specified non-resident shareholder" (within the meaning of subsection 18(5)
of the Canadian ITA) of any Canadian Loan Guarantor, or not dealing at arm's
length (within the meaning of the Canadian ITA) with a "specified
shareholder") (within the meaning of subsection 18(5) of the Canadian ITA) of
any Canadian Loan Guarantor (in each case, other than where the non-arm's
length relationship arises or the Recipient is a "specified non-resident
shareholder", or the Recipient does not deal at arm's length with a "specified
shareholder", as a result of the Recipient having executed, delivered or
performed its obligations under, received payment under, or enforced any
rights under, this Agreement or any Loan Document), (e) any withholding Taxes
imposed under FATCA, and (f) any Bank Levy. "Existing Collection Account" has
the meaning assigned to such term in Section 5.17. "Existing Indebtedness"
means outstanding loans, commitments and notes under: (a) the Existing Target
Credit Agreement; (b) the Fourth Amended and Restated Credit Agreement, dated
as of June 23, 2016 (as amended, supplemented or otherwise modified and in
effect immediately prior to the Effective Date), among Insight, the lenders
and other parties party thereto from time to time and JPMCB, as administrative
agent; (c) the Receivables Purchase Agreement, dated as of December 31, 2002
(as amended, supplemented or otherwise modified and in effect immediately
prior to the Effective Date), among Insight Receivables, LLC, Insight, Jupiter
Securitization Company LLC, Bank One N.A., and the entities party thereto from
time to time as financial institutions; (d) the Credit Agreement, dated as of
July 7, 2016 (as amended, supplemented or otherwise modified and in effect
immediately prior to the Effective Date), by and between Castle Pines Capital
LLC, and PCM, as reseller; and (e) the Second Amended and Restated Credit
Agreement, dated as of June 23, 2016 (as amended, supplemented or otherwise
modified and in effect immediately prior to the Effective Date), by and among
Calence, Insight Direct and Insight Public Sector, as resellers, Castle Pines
Capital LLC, as administrative agent, Wells Fargo Capital Finance, LLC, as
collateral agent, syndication agent and administrative agent, and the lenders
party thereto. "Existing Letters of Credit" means those letters of credit
outstanding immediately prior to the effectiveness of this Agreement as
described on Schedule 1.01(a).
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DB2/ 48024258.7 37 "Existing Target Credit Agreement" means that certain Fifth
Amended and Restated Loan and Security Agreement, dated as of October 24,
2017, by and among PCM, PCM Sales, Inc., PCM Logistics, PCMG, M2 Marketplace,
Abreon, Inc., Cross Line Products, Inc., PCM BPO, LLC, En Pointe Technologies,
Onsale Holdings, PCM Services, LLC, Stratiform USA, LLC, PCM Sales Canada,
Inc., Acrodex Inc., Stratiform Inc., and PCM Technology Solutions UK, LTD, as
borrowers, Wells Fargo Capital Finance, LLC, as administrative and collateral
agent for the lenders party thereto, and the lenders and other parties party
thereto, as amended, supplemented or otherwise modified and in effect
immediately prior to the Effective Date. "Extenuating Circumstance" means any
period during which the Administrative Agent has determined in its sole
discretion (i) that due to unforeseen and/or nonrecurring circumstances, it is
impractical and/or not feasible to submit or receive a Borrowing Request or
Interest Election Request by email or fax or through Electronic System, and
(ii) to accept a Borrowing Request or Interest Election Request telephonically.
"FATCA" means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or
future regulations or official interpretations thereof, any agreement entered
into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental
agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code. "FATCA Deduction" means a deduction or
withholding for a payment under a Loan Document required by FATCA. "FATCA
Exempt Party" means any party to this Agreement that is entitled to receive
payments free from any FATCA Deduction. "FCA" has the meaning assigned to such
term in Section 1.05. "Federal Funds Effective Rate" means, for any day, the
rate calculated by the NYFRB based on such day's federal funds transactions by
depositary institutions (as determined in such manner as shall be set forth on
the NYFRB's Website from time to time) and published on the next succeeding
Business Day by the NYFRB as the effective federal funds rate, provided that,
if the Federal Funds Effective Rate as so determined would be less than zero,
such rate shall be deemed to be zero for the purposes of this Agreement.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System of the United States of America. "Fee Letter" means the Administrative
Agent Fee Letter, the Third Amendment Fee Letter, the FILO Fee Letters, and/or
the Joint Fee Letter, as the context may require. "FILO Amendment" has the
meaning assigned to such term in Section 2.09(c). "FILO Availability Period"
means the period from and including the FILO Effective Date to but excluding
the earlier of the Maturity Date and the date of termination of the FILO
Commitments. "FILO Borrowing" means a Borrowing comprised of FILO Loans. DB2/
48024258.7 38 "FILO Borrowing Base" means, collectively, at any time, the
Dollar Equivalent of the result of, subject to the terms of Section 1.10: (a)
the sum of (i) 5% of the U.S. Eligible Accounts of each U.S. Borrower and each
Canadian Loan Guarantor at such time, (ii) the lesser of (A) $6,000,000 and
(B) 5% of the U.S. Borrowers' Eligible Accounts at such time billed from and
collected in the United States, Belgium or the United Kingdom (or any other
jurisdiction acceptable to the Administrative Agent) owing by an Account
Debtor in an Approved Jurisdiction, and (iii) the lesser of (A) $1,000,000 and
(B) 5% of the Eligible Accounts of each Canadian Loan Guarantor at such time
billed from and collected in Canada owing by an Account Debtor in an Approved
Jurisdiction, plus (b) the lesser of (i) 5% of the U.S. Borrowers' Eligible
Finished Goods Inventory (valued at the lower of cost (FIFO) or market) at
such time, and (ii) the product of 5% multiplied by the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
ordered by the Administrative Agent multiplied by the U.S. Borrowers' Eligible
Finished Goods Inventory (valued at the lower of cost (FIFO) or market) at
such time, plus (c) the product of 5% multiplied by the Net Orderly
Liquidation Value percentage identified in the most recent inventory appraisal
ordered by the Administrative Agent multiplied by the U.S. Borrowers' Eligible
Work-In-Process Inventory at such time, less (d) Reserves applicable to the
FILO Borrowing Base established by the Administrative Agent in its Permitted
Discretion in accordance with Section 1.10. "FILO Commitment" means, with
respect to each Lender, such Lender's commitment to make FILO Loans and to
acquire participations in FILO Overadvances hereunder, expressed as an amount
representing the maximum aggregate permitted amount of such Lender's FILO
Exposure hereunder, as such commitment may be reduced from time to time
pursuant to (a) Section 2.09(b) and (b) assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's FILO Commitment
is set forth on the Commitment Schedule delivered in connection with the FILO
Amendment, or in the Assignment and Assumption or other documentation or
record (as such term is defined in Section 9- 102(a)(70) of the New York
Uniform Commercial Code) as provided in Section 9.04(b)(ii)(C), pursuant to
which such Lender shall have assumed its FILO Commitment, as applicable. "FILO
Credit Event" means a FILO Borrowing or the making of a FILO Overadvance that
the FILO Lenders are required to participate in pursuant to the terms hereof,
or any of the foregoing. "FILO Effective Date" means the date of the
effectiveness of the FILO Amendment. "FILO Excess Availability" means, at any
time of determination, any amount equal to (a) the FILO Line Cap minus (b) the
aggregate FILO Exposure of all FILO Lenders. "FILO Exposure" means, with
respect to any FILO Lender at any time, and without duplication, the sum of
(a) the outstanding principal amount of such FILO Lender's FILO Loans plus (b)
an amount equal to such FILO Lender's FILO Percentage of the aggregate
outstanding principal amount of FILO Overadvances at such time that FILO
Lenders have purchased participations in pursuant to the terms hereof. "FILO
Exposure Limitations" shall have the meaning assigned to such term in Section
2.01(b).
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DB2/ 48024258.7 39 "FILO Fee Letters" shall mean any fee letters entered into
between JPMCB and the Borrower Representative in connection with the FILO
Amendment (which may be acknowledged by any FILO Lender). "FILO Lender" means
a Lender with a FILO Commitment or any FILO Exposure. "FILO Line Cap" means,
at any time of determination, an amount equal to the lesser of (a) the
aggregate amount of the FILO Commitments of all FILO Lenders and (b) the FILO
Borrowing Base. "FILO Loan" means a Loan made by a FILO Lender pursuant to
Section 2.01(b). "FILO Overadvance" has the meaning assigned to such term in
Section 2.05(b). "FILO Percentage" means, with respect to any FILO Lender,
percentage equal to a fraction the numerator of which is such FILO Lender's
FILO Commitment and the denominator of which is the aggregate FILO Commitments
of all FILO Lenders; provided that, if the FILO Commitments have terminated or
expired, the FILO Percentages shall be determined based upon such Lender's
share of the aggregate FILO Exposures of all FILO Lenders at that time;
provided further that, in accordance with Section 2.20, so long as any FILO
Lender shall be a Defaulting Lender, such FILO Lender's FILO Commitment shall
be disregarded in the foregoing calculation. "Financial Officer" means the
chief financial officer, principal accounting officer, treasurer or controller
of a Borrower or any director of any Dutch Borrower who fulfills an equivalent
role. "Fixed Charge Coverage Ratio" means, at any date, the ratio of (a)
EBITDA minus Unfinanced Capital Expenditures of Insight and its Subsidiaries
(other than any Capital Expenditures made in an amount equal to (x) all or
part of the proceeds of any casualty insurance, condemnation or eminent domain
or any amount otherwise reimbursed by third parties during such period or (y)
all or part of the proceeds of any sale of assets of Insight and its
Subsidiaries during such period so long as such proceeds were in fact applied
to make Capital Expenditures within twelve (12) months following receipt
thereof) to (b) Fixed Charges, all calculated for the period of four
consecutive fiscal quarters ended on such date (or, if such date is not the
last day of a fiscal quarter, ended on the last day of the fiscal quarter most
recently ended prior to such date for which financial statements are
available); provided that, from and after the Borrower Representative's
written notice to the Administrative Agent of its irrevocable election to
deliver the Consolidating Financial Statements for all Test Periods ending
after such written notice (for so long as any Unrestricted Subsidiaries
exist), Fixed Charge Coverage Ratio shall be calculated for Insight and its
Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it
being understood that Insight shall be required to deliver to the
Administrative Agent the related Consolidating Financial Statements with each
set of consolidated financial statements referred to in Sections 5.01(a) and
(b) with respect to each such applicable Test Period ending after such written
notice). "Fixed Charges" means, for any period, without duplication, (a)
Interest Expense (other than the amortization of deferred financing costs) for
such period paid or payable in cash, net of interest income, plus (b) the
aggregate amount of federal, state, local and foreign income, capital or
profits taxes, including foreign withholding taxes, expenses during such
period to the extent paid in cash, plus (c) the aggregate principal amount of
all regularly scheduled principal or amortization payments on Indebtedness for
borrowed money and Capital Lease Obligations of Insight and its Subsidiaries
(other than prepaid amounts, payments in respect of intercompany Indebtedness
among Insight and its Subsidiaries or any payments paid in cash from the
proceeds of any refinancing thereof) made in cash during such period, plus (d)
solely for purpose of calculating compliance with Payment Conditions (and not,
for the avoidance of doubt, for calculating compliance with Section 6.12),
Restricted Payments paid by any Loan Party (other than DB2/ 48024258.7 40
Restricted Payments (i) solely made by a Loan Party to another Loan Party,
(ii) solely made by any non- Loan Party to any other non-Loan Party, and (iii)
any Restricted Payments made by any Loan Party to any non-Loan Party as part
of a series of transactions whereby such Restricted Payment is ultimately made
to a Loan Party) in cash during period, all calculated for Insight and its
Subsidiaries on a consolidated basis in accordance with GAAP; provided that,
from and after the Borrower Representative's written notice to the
Administrative Agent of its irrevocable election to deliver the Consolidating
Financial Statements for all Test Periods ending after such written notice
(for so long as any Unrestricted Subsidiaries exist), Fixed Charges shall be
calculated for Insight and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that Insight shall be required to
deliver to the Administrative Agent the related Consolidating Financial
Statements with each set of consolidated financial statements referred to in
Sections 5.01(a) and (b) with respect to each such applicable Test Period
ending after such written notice). "Flood Laws" has the meaning assigned to
such term in Section 8.10. "Floor" means the benchmark rate floor, if any,
provided in this Agreement initially (as of the execution of this Agreement,
the modification, amendment or renewal of this Agreement or otherwise) with
respect to the Adjusted REVSOFR30 Rate, Adjusted Term SOFR Rate, AUD
Interpolated Rate, AUD Screen Rate, Central Bank Rate, Daily Simple ESTR, each
Daily Simple RFR, Daily Simple SOFR, EURIBOR Interpolated Rate, EURIBOR Screen
Rate, Overnight Lending Rate or each Overnight Rate (as applicable). The
initial Floor on the Third Amendment Effective Date for each of the Adjusted
REVSOFR30 Rate, Adjusted Term SOFR Rate, AUD Interpolated Rate, AUD Screen
Rate, Central Bank Rate, Daily Simple ESTR, each Daily Simple RFR, Daily
Simple SOFR, EURIBOR Interpolated Rate, EURIBOR Screen Rate, Overnight Lending
Rate and each Overnight Rate shall be 0.00%. "Foreign Benefit Arrangement"
means any employee benefit arrangement in existence at the date of this
Agreement or at any time thereafter which is mandated by non-U.S. law (other
than Canadian law) and that is maintained or contributed to by any Loan Party
or any of its Restricted Subsidiaries (other than any Canadian Loan Party or
its Subsidiaries). "Foreign Benefit Arrangement Event" means (a) the failure
of a Loan Party or any of its Restricted Subsidiaries (other than any Canadian
Loan Party or its Restricted Subsidiaries) to make its required material
contributions in respect of any Foreign Benefit Arrangement when such
contributions are payable; (b) the failure of a Loan Party or any of its
Restricted Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) to administer any Foreign Benefit Arrangement in any material
respect in accordance with its terms and all applicable laws, statutes, rules,
regulations and orders (to the extent that any Loan Party or Restricted
Subsidiary (other than any Canadian Loan Party or its Restricted Subsidiaries)
is required by law to administer); (c) the occurrence of an act or omission in
respect of any Foreign Benefit Arrangement which could give rise to the
imposition on a Loan Party or any of its Restricted Subsidiaries (other than
any Canadian Loan Party or its Restricted Subsidiaries) of material fines,
penalties or related charges under applicable laws, statutes, rules,
regulations and orders; (d) the assertion of a material claim (other than a
routine claim for benefits) against a Loan Party or any of its Restricted
Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) in respect of a Foreign Benefit Arrangement; (e) the imposition
of a Lien affecting the assets of a Loan Party or any of its Restricted
Subsidiaries (other than any Canadian Loan Party or its Restricted
Subsidiaries) in respect of any Foreign Benefit Arrangement; (f) the whole or
partial withdrawal of a Loan Party or a Restricted Subsidiary (other than any
Canadian Loan Party or its Restricted Subsidiaries) from a Foreign Benefit
Arrangement; or (g) any event or condition which might constitute grounds for,
or otherwise causes, the termination, in whole or in part, of any Foreign
Benefit Arrangement or the appointment of a trustee by a Governmental
Authority to administer any Foreign Benefit Arrangement.
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DB2/ 48024258.7 41 "Foreign Borrowers" means, collectively, the U.S.
Borrowers, the U.K. Borrowers, the Dutch Borrowers and the Australian
Borrowers. "Foreign Borrowing Base" means, at any time of determination, an
amount equal to the sum of (a) the U.K. Borrowing Base as of such time, plus
(b) the Dutch Borrowing Base as of such time, plus (c) the Australian
Borrowing Base as of such time. "Foreign Currency" or "Foreign Currencies"
means Available Currencies other than U.S. Dollars. "Foreign Currency LC
Exposure" means, at any time, the sum of (a) the Dollar Equivalent of the
aggregate undrawn and unexpired amount of all outstanding Foreign Currency
Letters of Credit at such time plus (b) the Dollar Equivalent of the aggregate
amount of all LC Disbursements in respect of Foreign Currency Letters of
Credit that have not yet been reimbursed at such time. "Foreign Currency
Letter of Credit" means a Letter of Credit denominated in a Foreign Currency.
"Foreign Excess Availability" means, at any time of determination, any amount
equal to (a) the Foreign Line Cap minus (b) the aggregate Foreign Tranche
Revolving Exposure of all Foreign Tranche Lenders. "Foreign Lender" means (a)
if a Borrower is a U.S. Person, a Lender, with respect to such Borrower, that
is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender,
with respect to such Borrower, that is resident or organized under the laws of
a jurisdiction other than that in which such Borrower is resident for tax
purposes. "Foreign Line Cap" means, at any time of determination, an amount
equal to the lesser of (a) the aggregate amount of the Foreign Tranche
Commitments of all Foreign Tranche Lenders and (b) the Foreign Borrowing Base.
"Foreign Loan Parties" means, each of, and collectively, the Loan Parties
other than the U.S. Loan Parties, and the term "Foreign Loan Party" means any
one of them or all of them individually, as the context may require. "Foreign
Restricted Subsidiary" means any Restricted Subsidiary that is a Foreign
Subsidiary. "Foreign Subsidiary" means any Subsidiary which is not a Domestic
Subsidiary. "Foreign Tranche" means the Foreign Tranche Commitments, the
Foreign Tranche Revolving Loans and the Foreign Tranche LC Exposure. "Foreign
Tranche Commitment" means, with respect to each Foreign Tranche Lender, the
commitment, if any, of such Foreign Tranche Lender to make Foreign Tranche
Revolving Loans and to acquire participations in Foreign Tranche Letters of
Credit, Revolving Overadvances, and Protective Advances hereunder, as such
commitment may be reduced or increased pursuant to (a) Section 2.09(a) and (b)
assignments by and to such Foreign Tranche Lender pursuant to Section 9.04.
The initial amount of each Foreign Tranche Lender's Foreign Tranche Commitment
is set forth on the Commitment Schedule, or in the Assignment and Assumption
(or other documentation contemplated by this Agreement) pursuant to which such
Foreign Tranche Lender shall have assumed its Foreign Tranche Commitment, as
applicable. The aggregate principal amount of the Foreign Tranche Commitments
as of the Third Amendment Effective Date is $350,000,000. DB2/ 48024258.7 42
"Foreign Tranche Credit Event" means a Foreign Tranche Revolving Borrowing,
the issuance, amendment, renewal or extension of a Foreign Tranche Letter of
Credit, the making of a Revolving Overadvance or a Protective Advance that the
Foreign Tranche Lenders are required to participate in pursuant to the terms
hereof, or any of the foregoing. "Foreign Tranche LC Exposure" means, at any
time, the sum of (a) the aggregate undrawn Dollar Equivalent of all
outstanding Foreign Tranche Letters of Credit at such time plus (b) the
aggregate Dollar Equivalent of all LC Disbursements in respect of Foreign
Tranche Letters of Credit that have not yet been reimbursed by or behalf of
the Foreign Borrowers at such time. The Foreign Tranche LC Exposure of any
Foreign Tranche Lender at any time shall be its Foreign Tranche Percentage of
the total Foreign Tranche LC Exposure at such time. "Foreign Tranche Lender"
means a Lender with a Foreign Tranche Commitment or any Foreign Tranche
Revolving Exposure. "Foreign Tranche Letter of Credit" means any Letter of
Credit issued under the Foreign Tranche Commitments pursuant to this
Agreement. "Foreign Tranche Percentage" means, with respect to any Foreign
Tranche Lender, percentage equal to a fraction the numerator of which is such
Foreign Tranche Lender's Foreign Tranche Commitment and the denominator of
which is the aggregate Foreign Tranche Commitments of all Foreign Tranche
Lenders; provided that, if the Foreign Tranche Commitments have terminated or
expired, the Foreign Tranche Percentages shall be determined based upon such
Lender's share of the aggregate Foreign Tranche Revolving Exposures of all
Foreign Tranche Lenders at that time; provided further that, in accordance
with Section 2.20, so long as any Foreign Tranche Lender shall be a Defaulting
Lender, such Foreign Tranche Lender's Foreign Tranche Commitment shall be
disregarded in the foregoing calculation. "Foreign Tranche Revolving
Borrowing" means a Revolving Borrowing comprised of Foreign Tranche Revolving
Loans. "Foreign Tranche Revolving Exposure" means, with respect to any Foreign
Tranche Lender at any time, and without duplication, the sum of (a) the Dollar
Equivalent of the outstanding principal amount of such Foreign Tranche
Lender's Foreign Tranche Revolving Loans plus (b) the Dollar Equivalent of
such Foreign Tranche Lender's Foreign Tranche LC Exposure plus (c) an amount
equal to such Foreign Tranche Lender's Foreign Tranche Percentage of the
aggregate outstanding principal amount of Revolving Overadvances at such time
that Foreign Tranche Lenders have purchased participations in pursuant to the
terms hereof plus (d) an amount equal to such Foreign Tranche Lender's Foreign
Tranche Percentage of the aggregate outstanding principal amount of Protective
Advances at such time that Foreign Tranche Lenders have purchased
participations in pursuant to the terms hereof. "Foreign Tranche Revolving
Loan" means a Revolving Loan made by a Foreign Tranche Lender pursuant to
Section 2.01(a). "Funding Account" means the deposit account(s) of each
applicable Borrower to which the Administrative Agent is authorized by the
Borrowers to transfer the proceeds of any Borrowings requested or authorized
pursuant to this Agreement. "GAAP" means, subject to Section 1.04, generally
accepted accounting principles in the U.S.
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DB2/ 48024258.7 43 "Global Borrowing Base" means, at any time of determination,
an amount equal to the sum of (a) the U.S. Borrowing Base as of such time,
plus (b) the Foreign Borrowing Base as of such time, plus (c) the FILO
Borrowing Base. "Global Collateral" means any and all property owned, leased
or operated by a Global Loan Party covered by the Collateral Documents and any
and all other property of any Global Loan Party, now existing or hereafter
acquired, that may at any time be, become or be intended to be, subject to a
security interest or Lien in favor of the Administrative Agent, on behalf of
itself and the Lenders and other Secured Parties, to secure the Secured
Obligations; provided, however, that, in respect of the assets of any Global
Loan Party, "Global Collateral" shall not include any Excluded Assets. "Global
Guaranteed Obligations" has the meaning assigned to such term in Section
10.01. "Global Loan Parties" means the Loan Parties. "Global Revolving
Borrowing Base" means, at any time of determination, an amount equal to the
sum of (a) the U.S. Borrowing Base as of such time, plus (b) the Foreign
Borrowing Base as of such time. "Global Secured Obligations" means all
Obligations, together with all (i) Banking Services Obligations and (ii) Swap
Agreement Obligations owing to one or more Lenders or their respective
Affiliates, in each case owing by any Loan Party or any Subsidiary thereof;
provided, however, that the definition of "Global Secured Obligations" shall
not create any guarantee by any Loan Guarantor of (or grant of security
interest or other Lien by any Loan Guarantor to support, as applicable) any
Excluded Swap Obligations of such Loan Guarantor for purposes of determining
any obligations of any Loan Guarantor. "Governmental Authority" means the
government of the United States, Canada, The Netherlands, the United Kingdom,
Australia or any other nation or any political subdivision thereof, whether
state, provincial, territorial or local, the European Central Bank, the
Council of Ministers of the European Union, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
(including any European supranational body) exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government. "Guarantee" of or by any Person (the "guarantor")
means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided, that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. "Hazardous Materials" means: (a) any substance,
material, or waste that is included within the definitions of "hazardous
substances," "hazardous materials," "hazardous waste," "toxic substances,"
"toxic materials," "toxic waste," or words of similar import in any
Environmental Law; (b) those substances listed as hazardous substances by the
United States Department of Transportation (or any successor agency) (49
C.F.R. 172.101 and amendments thereto) or by the Environmental Protection
Agency (or any successor agency or similar applicable foreign agency) (40
C.F.R. Part 302 and amendments thereto); and (c) any DB2/ 48024258.7 44
substance, material, or waste that is petroleum, petroleum-related, or a
petroleum by-product, asbestos or asbestos-containing material, polychlorinated
biphenyls, flammable, explosive, radioactive, freon gas, radon, or a
pesticide, herbicide, or any other agricultural chemical. "Immaterial
Subsidiary" means any Restricted Subsidiary that (i) on an individual basis,
accounts for less than five percent (5%) of EBITDA of Insight and its
Subsidiaries and (ii) together with its Subsidiaries that are Restricted
Subsidiaries and every other Immaterial Subsidiary, accounts for less than
fifteen percent (15%) of EBITDA of Insight and its Subsidiaries, in each case
for the four fiscal quarters ended on the last day of the most recently ended
fiscal quarter of Insight for which financial statements have been delivered
pursuant to Section 4.01(b) (at all times prior to the first delivery of
financial statements after the Effective Date under Section 5.01(a)or (b)) or
Section 5.01(a) or (b). "Impacted AUD Rate Interest Period" has the meaning
assigned to such term in the definition of "AUD Rate." "Impacted EURIBOR Rate
Interest Period" has the meaning assigned to such term in the definition of
"EURIBOR Rate." "Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations
of such Person in respect of the deferred purchase price of property or
services (excluding (i) current accounts payable, deferred compensation and
accrued expenses, in each case incurred in the ordinary course of business and
(ii) any bona-fide earn-out obligation until such obligation becomes (or
should become) a liability on the balance sheet of such Person in accordance
with GAAP and if not paid after being due and payable), (e) all Indebtedness
of others secured by any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (f) all
Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty (except to the extent cash collateralized in a manner permitted
hereunder), (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances, (j) any Disqualified Equity Interests of such
Person, and (k) obligations, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i)
any and all Swap Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Swap Agreement transaction;
provided that the term "Indebtedness" shall not include (w) deferred or
prepaid revenue arising in the ordinary course of business, (x) purchase price
holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the seller, (y) intercompany
liabilities arising from their cash management, tax, and accounting operations
and intercompany loans, advances or Indebtedness having a term not exceeding
364 days (inclusive of any rollover or extensions of terms) and made in the
ordinary course of business, and (z) obligations with respect to any Permitted
Convertible Debt Hedge Transaction and any Permitted Share Repurchase
Transaction. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor. "Indemnified Taxes" means (a) Taxes, other than Excluded
Taxes, imposed on or with respect to any payment made by, or on account of any
obligation of any Loan Party under any Loan Document and (b) to the extent not
otherwise described in the foregoing clause (a) hereof, Other Taxes.
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DB2/ 48024258.7 45 "Indemnitee" has the meaning assigned to such term in
Section 9.03(b). "Ineligible Institution" has the meaning assigned to such
term in Section 9.04(b). "Information" has the meaning assigned to such term
in Section 9.12. "Insight" has the meaning assigned to such term in the
preamble hereto. "Insight Australia" has the meaning assigned to such term in
the preamble hereto "Insight Direct" has the meaning assigned to such term in
the preamble hereto. "Insight Direct Philippines" has the meaning assigned to
such term in the preamble hereto. "Insight Enterprises" has the meaning
assigned to such term in the preamble hereto. "Insight NA" has the meaning
assigned to such term in the preamble hereto. "Insight Netherlands" has the
meaning assigned to such term in the preamble hereto. "Insight Networking" has
the meaning assigned to such term in the preamble hereto. "Insight Physical
Security" means Insight Physical Security Solutions, LLC, an Arizona limited
liability company. "Insight Public Sector" has the meaning assigned to such
term in the preamble hereto. "Insight Receivables" has the meaning assigned to
such term in the preamble hereto. "Insight UK" has the meaning assigned to
such term in the preamble hereto. "Insolvency Laws" means each of the
Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act
(Canada), Dutch Bankruptcy Act (Faillissementswet), the Insolvency Act 1986
(UK), the European Union Regulation and the Australian Corporations Act, in
each case as amended, and any other applicable state, provincial, territorial
or federal bankruptcy, liquidation, conservatorship, assignment for the
benefit of creditors, administration, examinership, moratorium, rearrangement,
receivership, insolvency, judicial management, reorganization, or similar
debtor relief laws, each as now and hereafter in effect, any successors to
such statutes and any other applicable insolvency or other similar law of any
jurisdiction, including any corporate law of any jurisdiction permitting a
debtor to obtain a stay or a compromise of the claims of its creditors against
it and including any rules and regulations pursuant thereto. "Interconnect
Network" has the meaning assigned to such term in the preamble hereto.
"Interest Election Request" means a request by the Borrower Representative to
convert or continue a Borrowing in accordance with Section 2.08. "Interest
Expense" means, for any period, total interest expense (including that
attributable to Capital Lease Obligations) of Insight and its Subsidiaries for
such period with respect to all outstanding Indebtedness of Insight and its
Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptances and net costs
under Swap Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance DB2/ 48024258.7 46 with
GAAP), calculated on a consolidated basis for Insight and its Subsidiaries for
such period in accordance with GAAP; provided that, from and after the
Borrower Representative's written notice to the Administrative Agent of its
irrevocable election to deliver the Consolidating Financial Statements for all
Test Periods ending after such written notice (for so long as any Unrestricted
Subsidiaries exist), Interest Expense shall be calculated for Insight and its
Restricted Subsidiaries on a consolidated basis in accordance with GAAP (it
being understood that Insight shall be required to deliver to the
Administrative Agent the related Consolidating Financial Statements with each
set of consolidated financial statements referred to in Sections 5.01(a) and
(b) with respect to each such applicable Test Period ending after such written
notice). "Interest Payment Date" means (a) with respect to any CBFR Loan or
Overnight Rate Loan, (i) the first (1st) Business Day of each calendar quarter
and (ii) the Maturity Date, and (b) with respect to any RFR Loan, (i) each
date that is on the numerically corresponding day in each calendar month that
is one (1) month after the Borrowing of such Loan (or, if there is no such
numerically corresponding day in such month, then the last day of such month)
and (ii) the Maturity Date, and (c) with respect to any Term Benchmark Loan,
(i) the last day of each Interest Period applicable to the Borrowing of which
such Loan is a part (and, in the case of a Term Benchmark Borrowing with an
Interest Period of more than three months' duration, each day prior to the
last day of such Interest Period that occurs at intervals of three months'
duration after the first day of such Interest Period) and (ii) the Maturity
Date. "Interest Period" means, with respect to any Term Benchmark Borrowing,
the period commencing on the date of such Term Benchmark Borrowing and ending
on the numerically corresponding day in the calendar month that is one, three
or six months thereafter (or, if consented to by each applicable Lender, such
other period), as the Borrower Representative may elect in each case, subject
to the availability for the Benchmark applicable to the relevant Revolving
Loan or FILO Loan or Revolving Commitment or FILO Commitment for any Available
Currency; provided, that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Term Benchmark Borrowing
only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, (ii) any Interest Period pertaining to a Term Benchmark Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period, and (iii) no tenor that has been removed from this
definition pursuant to Section 2.14(g) shall be available for specification in
such Borrowing Request or Interest Election Request. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing. "Inventory" has the meaning assigned to
such term in the applicable Collateral Documents. "Inventory Financing
Facilities" means those certain inventory finance transactions from time to
time entered into by any Loan Party or any Restricted Subsidiary with any of
MUFG Bank, Ltd., Wells Fargo Capital Finance, LLC and any of their respective
Affiliates and any other Person reasonably acceptable to the Administrative
Agent. "Investment" has the meaning assigned to such term in Section 6.04. For
purposes of the definition of "Unrestricted Subsidiary" and Section 6.04: (a)
"Investments" shall include the portion (proportionate to Insight's and its
Restricted Subsidiaries' Equity Interests in such subsidiary) of the fair
market value of the net assets of a subsidiary of Insight at the time that
such subsidiary is designated an Unrestricted Subsidiary; and
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DB2/ 48024258.7 47 (b) Any property transferred to or from an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by Insight. "Investment
Grade Account Debtor" means an Account Debtor that, at any time of
determination, has a corporate credit rating equal to or higher than BBB- (or
its equivalent) by S&P or Baa3 (or its equivalent) by Moody's. "Irish Security
Agreement" means that certain Irish law account charge, dated October 24,
2019, by and among Insight Enterprises and the Administrative Agent, for the
benefit of the Administrative Agent and the other Secured Parties. "IRS" means
the United States Internal Revenue Service. "Issuing Bank" means, individually
and collectively, (a) each of JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and any other Lender from time to time designated by the
Borrower Representative as an Issuing Bank, with the consent of such Lender
and the Administrative Agent (such consent of the Administrative Agent not to
be unreasonably withheld, delayed or conditioned), (b) with respect to
Existing Letters of Credit, each issuer thereof, and (c) in each case, their
respective successors in such capacity as provided in Section 2.06(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by its Affiliates, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate (it being agreed that such Issuing Bank shall, or shall cause such
Affiliate to, comply with the requirements of Section 2.06 with respect to
such Letters of Credit). At any time there is more than one Issuing Bank, all
singular references to the Issuing Bank shall mean any Issuing Bank, either
Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the
applicable Letter of Credit, or both (or all) Issuing Banks, as the context
may require. "ITA" means the Income Tax Act 2007 (U.K.), as amended from time
to time. "Joinder Agreement" means a Joinder Agreement in substantially the
form of Exhibit D. "Joining FILO Lender" has the meaning assigned to such term
in Section 2.09(c). "Joint Fee Letter" means that certain Fee Letter, dated as
of June 23, 2019, by and between JPMCB and the Borrower Representative as
supplemented by that certain Joinder Letter, dated July 12, 2019, from Wells
Fargo Bank, N.A. and as further supplemented by that certain Joinder Letter,
dated July 12, 2019, from Bank of America, N.A. "JPMCB" means JPMorgan Chase
Bank, N.A., a national banking association, in its individual capacity, and
its successors. "Junior Indebtedness" means any Subordinated Indebtedness of
the Loan Parties or any Restricted Subsidiary thereof. "LC Collateral Account"
has the meaning assigned to such term in Section 2.06(j). "LC Disbursement"
means any payment made by an Issuing Bank pursuant to a Letter of Credit. "LC
Exposure" means, at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit, plus (b) the aggregate amount of all LC
Disbursements relating to Letters of Credit that have not yet been reimbursed
by or on behalf of the Borrowers. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the aggregate LC Exposure at such time.
DB2/ 48024258.7 48 "LCT Election" has the meaning assigned to such term in
Section 1.09. "Lender Presentation" means the Lender Presentation dated July
2019 relating to the Borrowers and the Transactions, and delivered to the
Administrative Agent prior to the Effective Date. "Lenders" means the Persons
listed on the Commitment Schedule and any other Person that shall have become
a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or
otherwise, other than any such Person that ceases to be a Lender hereunder
pursuant to an Assignment and Assumption or otherwise. Unless the context
otherwise requires, the term "Lenders" includes the Issuing Banks. "Letters of
Credit" means the letters of credit (including any standby letter of credit,
time (usance), or documentary letter of credit or any indemnity, or bank
guarantee or similar form of credit support) issued pursuant to this Agreement
and shall include the Existing Letters of Credit, and the term "Letter of
Credit" means any one of them or each of them singularly, as the context may
require. "Letter of Credit Agreement" has the meaning assigned to it in
Section 2.06(b). "Liabilities" means any losses, claims (including intraparty
claims), demands, damages or liabilities of any kind. "Lien" means, with
respect to any asset, (a) any lien, hypothecation, pledge, encumbrance, charge
in the nature of a security interest or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset, and (c) and, in the case of any Collateral under an
Australian Collateral Document, any "security interest" as defined in sections
12(1) and 12(2) of the Australian PPSA. "Limited Condition Acquisition
Agreement" means the definitive acquisition agreement governing a Limited
Condition Transaction. "Limited Condition Eligible Transaction" means any
Acquisition or similar Investment by any Loan Party or one or more of the
Restricted Subsidiaries, including by way of merger or amalgamation, of any
assets, business or Person permitted pursuant to this Agreement whose
consummation is not conditioned on the availability of, or on obtaining, third
party financing. "Limited Condition Transaction" means any Limited Condition
Eligible Transaction with respect to which the Borrower Representative has
made an LCT Election. "Loan Documents" means, collectively, this Agreement,
each Fee Letter, any promissory notes issued pursuant to this Agreement, any
Letter of Credit Agreement, the Collateral Documents, the Australian Security
Trust Deed, each Compliance Certificate, any Loan Guaranty, and all other
agreements, instruments, documents and certificates executed and delivered by
or on behalf of any Loan Party to, or in favor of, the Administrative Agent or
any Lender in connection with this Agreement. Any reference in this Agreement
or any other Loan Document to a Loan Document shall include all appendices,
exhibits or schedules thereto, and all amendments, restatements, supplements
or other modifications thereto, and shall refer to this Agreement or such Loan
Document as the same may be in effect at any and all times such reference
becomes operative. "Loan Guarantor" means each Global Loan Party in the case
of Article X and the related obligations and rights thereunder.
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DB2/ 48024258.7 49 "Loan Guaranty" means Article X of this Agreement and, to
the extent applicable, each separate Guarantee, in form and substance
reasonably satisfactory to the Administrative Agent, delivered by each Loan
Guarantor that is a Foreign Subsidiary (which Guarantee shall be governed by
the laws of the country in which such Foreign Subsidiary is located). "Loan
Parties" means, collectively, the U.S. Loan Parties, the Canadian Loan
Parties, the U.K. Loan Parties, the Dutch Loan Parties, the Australian Loan
Parties and any other Restricted Subsidiary of Insight who becomes a party to
this Agreement pursuant to a Joinder Agreement (and the execution of any
Guarantee, as applicable) and their respective successors and assigns, and the
term "Loan Party" shall mean any one of them or all of them individually, as
the context may require. For the avoidance of doubt, Loan Parties shall not
include any Excluded Subsidiary. "Loans" means the loans and advances made by
the Lenders pursuant to this Agreement, including Revolving Loans, FILO Loans,
Revolving Overadvances, FILO Overadvances and Protective Advances. "Local
Time" means (a) (i) local time in New York with respect to a Loan, Letter of
Credit, Borrowing or LC Disbursement made, repaid, or requested, as
applicable, by or on behalf of any U.S. Borrower denominated in U.S. Dollars,
and (ii) local time in London with respect to a Loan, Letter of Credit,
Borrowing or LC Disbursement made, repaid, or requested, as applicable, by or
on behalf of any U.S. Borrower denominated in any Available Currency (other
than Dollars) and (b) local time in London with respect to a Loan, Letter of
Credit, Borrowing or LC Disbursement made, repaid, or requested, as
applicable, by or on behalf of any Dutch Borrower, any U.K. Borrower or any
Australian Borrower. "M2 Marketplace" means M2 Marketplace, Inc., a Delaware
corporation. "Margin Stock" means margin stock within the meaning of
Regulations T, U and X, as applicable. "Material Adverse Effect" means a
material adverse effect on (a) the business, assets, operations, or financial
condition of the Borrowers and their Restricted Subsidiaries, taken as a
whole, (b) the ability of any Loan Party to perform any of its obligations
under the Loan Documents to which it is a party, (c) a material portion of the
Collateral, or the Administrative Agent's liens (on behalf of itself and the
Lenders) on a material portion of the Collateral or the priority of such
liens, or (d) the material rights of or benefits available to the
Administrative Agent, the Issuing Banks or the Lenders in connection with the
Loan Documents. "Material Indebtedness" means Indebtedness (other than the
Obligations), or obligations in respect of one or more Swap Agreements, of any
one or more of the Loan Parties and their Restricted Subsidiaries in an
aggregate principal amount exceeding $50,000,0000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of any Loan
Party or any Restricted Subsidiary in respect of any Swap Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Loan Party or such Restricted Subsidiary would be
required to pay if such Swap Agreement were terminated at such time. "Material
Subsidiary" means any Restricted Subsidiary other than an Immaterial
Subsidiary. "Maturity Date" means July 22, 2027 or any earlier date on which
the Revolving Commitments and FILO Commitments are reduced to zero or
otherwise terminated pursuant to the terms hereof. "Maximum Rate" has the
meaning assigned to such term in Section 9.17. DB2/ 48024258.7 50 "Merger Sub"
means Trojan Acquisition Corp., a Delaware corporation and a Wholly Owned
Subsidiary of Insight prior to the Trojan Acquisition. "Moody's" means Moody's
Investors Service, Inc. "Mortgage" shall mean any mortgage, deed of trust,
deed to secure debt, assignment of leases and rents and any other security
document (including any assignment, amendment, amendment and restatement or
similar modification of any existing mortgage) delivered pursuant to the terms
hereof, in each case, reasonably acceptable to the Administrative Agent and
the Borrower Representative. "Multiemployer Plan" means a multiemployer plan
as defined in Section 4001(a)(3) of ERISA. "Net Income" means, for any period,
the consolidated net income (or loss) of Insight and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that,
from and after the Borrower Representative's written notice to the
Administrative Agent of its irrevocable election to deliver the Consolidating
Financial Statements for all Test Periods ending after such written notice
(for so long as any Unrestricted Subsidiaries exist), Net Income shall be
calculated for Insight and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP (it being understood that Insight shall be required to
deliver to the Administrative Agent the related Consolidating Financial
Statements with each set of consolidated financial statements referred to in
Sections 5.01(a) and (b) with respect to each such applicable Test Period
ending after such written notice). "Net Orderly Liquidation Value" means, with
respect to Inventory (or any category thereof) of any Person, the orderly
liquidation value thereof as determined by reference to the most recent
inventory appraisal received by the Administrative Agent by an appraiser
acceptable to the Administrative Agent in its Permitted Discretion, net of all
costs of liquidation thereof. "New Collection Account" has the meaning
assigned to such term in Section 5.17. "New JPM Collection Account" has the
meaning assigned to such term in Section 5.17. "Non-Consenting Lender" has the
meaning assigned to such term in Section 9.02(d). "NYFRB" means the Federal
Reserve Bank of New York. "NYFRB Rate" means, for any day, the greater of (a)
the Federal Funds Effective Rate in effect on such day and (b) the Overnight
Bank Funding Rate in effect on such day(or for any day that is not a Business
Day, for the immediately preceding Business Day); provided that if none of
such rates are published for any day that is a Business Day, the term "NYFRB
Rate" means the rate for a federal funds transaction quoted at 11:00 a.m. on
such day received by the Administrative Agent from a federal funds broker of
recognized standing selected by it; provided, further, that if any of the
aforesaid rates as so determined would be less than zero, such rate shall be
deemed to be zero for purposes of this Agreement. "NYFRB's Website" means the
website of the NYFRB at http://www.newyorkfed.org, or any successor source.
"Obligations" means all unpaid principal of and accrued and unpaid interest on
the Loans, all LC Exposure, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations and indebtedness (including
interest and fees accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), obligations and liabilities of any of the Loan
Parties to any of the Lenders, the Administrative Agent, the
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DB2/ 48024258.7 51 Issuing Bank or any indemnified party, individually or
collectively, existing on the Effective Date or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, in each case arising or incurred under this
Agreement or any of the other Loan Documents or in respect of any of the Loans
made or reimbursement or other obligations incurred or any of the Letters of
Credit or other instruments at any time evidencing any thereof; provided,
however, that the definition of "Obligations" shall not create any guarantee
by any Loan Guarantor of (or grant of security interest or other Lien by any
Loan Guarantor to support, as applicable) any Excluded Swap Obligations of
such Loan Guarantor for purposes of determining any obligations of any Loan
Guarantor. "OECD" means the Organisation for Economic Co-operation and
Development. "OnSale Holdings" means OnSale Holdings, Inc., an Illinois
corporation. "Other Connection Taxes" means, with respect to any Recipient,
Taxes imposed as a result of a present or former connection between such
Recipient and the jurisdiction imposing such Taxes (other than a connection
arising from such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received or
perfected a security interest under, engaged in any other transaction pursuant
to, or enforced, any Loan Document, or sold or assigned an interest in any
Loan, Letter of Credit or any Loan Document). "Other Taxes" means all present
or future stamp, court or documentary, intangible, recording, filing or
similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any
Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to
Section 2.19(b)). "Overnight Bank Funding Rate" means, for any day, the rate
comprised of both overnight federal funds and overnight Term Benchmark
Borrowings denominated in U.S. Dollars borrowings by U.S.- managed banking
offices of depository institutions (as such composite rate shall be determined
by the NYFRB as set forth on the NYFRB's Website from time to time) and
published on the next succeeding Business Day by the NYFRB as an overnight
bank funding rate. "Overnight Lending Rate" means, for any day, in the case of
Loans denominated in U.S. Dollars (1) Daily Simple SOFR; provided that if the
Overnight Lending Rate shall be less than the Floor, such rate shall be deemed
to be the Floor for all purposes of this Agreement, plus (2) any mandatory or
other reserve cost. "Overnight Rate" means: (a) as the context may require,
(a) the U.K./Dutch Overnight Rate, (b) the U.S. Overnight Rate and (c) the
Australian Overnight Rate; and (b) when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, bears interest at a rate determined by reference to the applicable
Overnight Rate; provided that if an Overnight Rate shall be less than the
Floor, such rate shall be deemed to be the Floor for all purposes of this
Agreement. DB2/ 48024258.7 52 "Overnight Rate Loans" means Loans the rate of
interest applicable to which is based on the Overnight Rate. "Paid in Full" or
"Payment in Full" means, (a) the indefeasible payment in full in cash of all
outstanding Loans and LC Disbursements, together with accrued and unpaid
interest thereon, (b) the termination, expiration, or cancellation and return
of all outstanding Letters of Credit (or alternatively, with respect to each
such Letter of Credit, the furnishing to the Administrative Agent of a cash
deposit, or at the discretion of the Administrative Agent a backup standby
letter of credit reasonably satisfactory to the Administrative Agent and the
applicable Issuing Bank, in an amount equal to 103% of the LC Exposure as of
the date of such payment), (c) the indefeasible payment in full in cash of the
accrued and unpaid fees, (d) the indefeasible payment in full in cash of all
reimbursable expenses and other Secured Obligations (other than Unliquidated
Obligations for which no claim has been made and other obligations expressly
stated to survive such payment and termination of this Agreement), together
with accrued and unpaid interest thereon, (e) the termination of all Revolving
Commitments and FILO Commitments, and (f) the termination of the Swap
Agreement Obligations and the Banking Services Obligations or entering into
other arrangements reasonably satisfactory to the Secured Parties
counterparties thereto. "Parent" means, with respect to any Lender, any Person
as to which such Lender is, directly or indirectly, a subsidiary.
"Participating Member States" means, at any time, any member state of the
European Union which has the Euro as its lawful currency in accordance with
the legislation of the European Union relating to the Economic and Monetary
Union. "Participant" has the meaning assigned to such term in Section 9.04(c).
"Participant Register" has the meaning assigned to such term in Section
9.04(c). "Payment" has the meaning assigned to such term in Section 8.06(d).
"Payment Conditions" means, at any applicable time of determination with
respect to a specified transaction, event, or payment that is subject to the
satisfaction of the Payment Conditions, that: (a) no Specified Event of
Default has then occurred and is continuing or would result after giving
effect to such specified transaction, event or payment, (b) either (i) pro
forma Aggregate Excess Availability on the date of such specified transaction,
event or payment and the pro forma Average Aggregate Excess Availability for
the thirty (30)-consecutive day period immediately preceding such specified
transaction, event or payment (in each case, calculated on a pro forma basis
to include the borrowing of any Revolving Loans or issuance of any Letters of
Credit in connection with such specified transaction, event or payment)
exceeds the greater of (A) 15% of the Aggregate Combined Commitment then in
effect and (B) $270,000,000, or (ii) both (A) the Fixed Charge Coverage Ratio,
determined on a Pro Forma Basis for the most recent fiscal quarter for which
financial statements have been delivered to the Administrative Agent pursuant
to Section 4.01(b) (at all times prior to the first delivery of financial
statements after the Effective Date under Section 5.01(a) or (b)) or Section
5.01(a) or (b) after giving effect to such specified transaction, event or
payment, is at least 1.0 to 1.0 and (B) pro forma Aggregate Excess
Availability on the date of such proposed transaction, event or payment and
the pro forma Average Aggregate Excess Availability for the thirty
(30)-consecutive day period immediately preceding such specified transaction,
event or payment (in each case, calculated on a pro forma basis to include the
borrowing of any Revolving Loans or issuance of any Letters of
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DB2/ 48024258.7 53 Credit in connection with such proposed transaction, event
or payment) is at least the greater of (1) 12.5% of the Aggregate Combined
Commitment and (2) $225,000,000, and (c) in the case of any such transaction,
event or payment involving more than $10,000,000, the Borrower Representative
shall have delivered a customary officer's certificate to the Administrative
Agent certifying as to compliance with the requirements of clauses (a) and
(b). "Payment Notice" has the meaning assigned to such term in Section
8.06(d). "PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions. "PCM"
has the meaning assigned to such in the preamble hereto. "PCM Logistics" means
PCM Logistics, LLC, a Delaware limited liability company. "PCM Technology" has
the meaning assigned to such term in the preamble hereto. "PCMG" means PCMG,
Inc. a Delaware corporation. "Permitted Acquisition" means (a) the Trojan
Acquisition and (b) any other Acquisition by any Loan Party or any Restricted
Subsidiary, in the case of clause (b) in a transaction that satisfies each of
the following requirements: (a) such Acquisition is not a hostile or contested
acquisition; (b) the business or Person acquired in connection with such
Acquisition is engaged in or constitutes a business permitted pursuant to
Section 5.03(b); (c) no Event of Default exists at the time of such
Acquisition or would result therefrom~ provided that, solely with respect to
Limited Condition Transactions, the condition set forth in this clause (b)
shall be required to be satisfied only at the time of execution of the
applicable Limited Condition Acquisition Agreement; (d) the Payment Conditions
are satisfied with respect to such Acquisition (or, at the option of the
Borrower Representative, if such Acquisition is a Limited Condition
Transaction, the condition set forth in this clause (d) shall be required to
be satisfied only at the time of execution of the applicable Limited Condition
Acquisition Agreement; provided, however, compliance with any Aggregate Excess
Availability or Average Aggregate Excess Availability requirement set forth in
the definition of "Payment Conditions" shall be tested as of the date of
consummation of such Limited Condition Transaction); (e) to the extent the
aggregate consideration for such Acquisition exceeds $150,000,000 (or, in the
case of an Acquisition of assets by a Loan Party, $100,000,000), then not less
than fifteen (15) Business Days (or such shorter time as may be agreed to by
the Administrative Agent) prior to such Acquisition, the Borrower
Representative has provided the Administrative Agent (i) notice of such
Acquisition and (ii) a copy of all business and financial information
(including pro forma financial statements and all Borrowing Base projections)
relating to the acquired business reasonably requested by the Administrative
Agent and available to the Borrower Representative; DB2/ 48024258.7 54 (f) if
the Accounts and Inventory acquired in connection with such Acquisition are
proposed to be included in the determination of the applicable Borrowing Base,
unless waived by the Administrative Agent in its sole discretion, the
Administrative Agent shall have conducted an audit and field examination of
such Accounts and Inventory, as applicable, the results of which shall be
satisfactory to the Administrative Agent in its Permitted Discretion;
provided, however, that Accounts and Inventory acquired in connection with
Permitted Acquisitions shall not be deemed ineligible solely on account of
this clause (f) to the extent the aggregate value of all such Accounts and
Inventory does not exceed $112,500,000 at any one time (provided, that, the
advance rate against Eligible Accounts included in accordance with this
proviso shall be deemed to be 70% and the advance rate against Eligible
Inventory included in accordance with this proviso shall be deemed to be 50%,
in each case, until such time as an appraisal and field examination with
respect to the applicable target or business, reasonably satisfactory to the
Administrative Agent, has been completed); (g) if such Acquisition is an
acquisition of Equity Interests, such Acquisition will not result in any
violation of Regulation U; (h) all actions required to be taken with respect
to any newly acquired or formed Wholly Owned Subsidiary of a Borrower or a
Loan Party, as applicable, required under Section 5.14 shall have been taken
or shall be taken within the times required thereby; and (i) to the extent the
aggregate consideration for such Acquisition exceeds $150,000,000 (or, in the
case of an Acquisition of assets by a Loan Party, $100,000,000), the Borrower
Representative shall have delivered to the Administrative Agent (i) the
substantially final form documentation relating to such Acquisition within
five (5) days (or such later date as the Administrative Agent may agree) prior
to the consummation thereof to the extent available to the Borrower
Representative, and (ii) the final executed documentation relating to such
Acquisition within three (3) days (or such later date as the Administrative
Agent may agree) following the consummation thereof. "Permitted Bond Hedge"
means any Swap Agreement that is settled (after payment of any premium or any
prepayment thereunder) through the delivery of cash, Qualified Equity
Interests of Insight (or other securities or property following a merger
event, reclassification or other change of such Qualified Equity Interests of
Insight) or a combination of cash and Qualified Equity Interests of Insight
(or other securities or property following a merger event, reclassification or
other change of such Qualified Equity Interests of Insight) and is entered
into in connection with any Convertible Debt Securities of Insight, one of the
purposes of which is, together with any Permitted Warrant entered into
concurrently therewith, to provide for an effectively higher conversion
premium. "Permitted Convertible Debt Hedge Transaction" means (a) any
Permitted Bond Hedge and any Permitted Warrant or (b) any capped call or
similar transaction having substantially the same economic effect as the
foregoing. "Permitted Discretion" means a determination made in good faith and
in the exercise of reasonable (from the perspective of a secured asset-based
lender) business judgment. "Permitted Encumbrances" means: (a) Liens imposed
by law for Taxes that are not yet due or are being contested in compliance
with Section 5.04;
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DB2/ 48024258.7 55 (b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's landlords' and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than sixty (60) days or are being contested in compliance with Section
5.04; (c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations; (d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature or obligations in
respect of letters of credit issued in support thereof, in each case in the
ordinary course of business; (e) any Lien deemed to be granted under Section
12(3) of the Australian PPSA which does not secure payment or performance of
an obligation; (f) judgment Liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and (g)
easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from the
value of the affected property or materially interfere with the ordinary
conduct of business of any Borrower or any Restricted Subsidiary; provided
that the term "Permitted Encumbrances" shall not include any Lien securing
Indebtedness, except with respect to clause (d) (solely with respect to
Letters of Credit) or (e) above. "Permitted Investments" means: (a) direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States or Canada (or by any agency
thereof to the extent such obligations are backed by the full faith and credit
of such government), in each case maturing within one year from the date of
acquisition thereof; (b) investments in commercial paper maturing within one
(1) year from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, bankers' acceptances and time
deposits maturing within one (1) year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States, Canada or any State, province or
territory thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000; (d) fully collateralized repurchase
agreements with a term of not more than thirty (30) days for securities
described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; DB2/ 48024258.7 56 (e)
money market funds that (i) comply with the criteria set forth in Securities
and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940,
and (ii) are rated AAA by S&P and Aaa by Moody's; (f) cash denominated in
Available Currencies or, in the case of any Foreign Subsidiary, such local
currencies held by it from time to time in the ordinary course of business;
and (g) in the case of any Foreign Subsidiary, high quality, short-term liquid
Investments made by such Foreign Subsidiary in the ordinary course of managing
its surplus cash position in investments in any OECD country of similar
quality as those described in clauses (a) through (f) above. "Permitted Share
Repurchase Transaction" means an accelerated share repurchase transaction or
other structured share repurchase transaction entered into by Insight for the
purpose of purchasing its Qualified Equity Interests. "Permitted Warrant"
means one or more call options settled through the delivery of cash, Qualified
Equity Interests of Insight (or other securities or property following a
merger event, reclassification or other change of such Qualified Equity
Interests of Insight) or a combination of cash and Qualified Equity Interests
of Insight (or other securities or property following a merger event,
reclassification or other change of such Qualified Equity Interests of
Insight), sold concurrently with the entry into one or more Permitted Bond
Hedges and having an initial strike or exercise price (howsoever defined) that
is greater than the strike or exercise price (howsoever defined) of such
Permitted Bond Hedge. "Person" means any natural person, corporation, limited
liability company, unlimited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA, and in respect of which any Loan Party or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Plan Asset Regulations" means 29 CFR (s) 2510.3-101 et seq., as modified by
Section 3(42) of ERISA, as amended from time to time. "PPSA" means the
Personal Property Security Act (Ontario), as amended from time to time (or any
successor statute) including the regulations thereto; provided that, if
validity, perfection or the effect of perfection or non-perfection or
opposability or the priority of any Lien created hereunder on the Collateral
is governed by the personal (movable) property security legislation or other
applicable legislation with respect to personal (movable) property security in
effect in a jurisdiction other than Ontario, "PPSA" means the Personal
Property Security Act or such other applicable legislation (including, without
limitation, the Civil Code of Quebec) in effect from time to time in such
other jurisdiction for purposes of the provisions hereof relating to such
validity, perfection, effect of perfection or non-perfection or opposability
or priority. "Prime Rate" means the rate of interest last quoted by The Wall
Street Journal as the "Prime Rate" in the U.S. or, if The Wall Street Journal
ceases to quote such rate, the highest per annum interest rate published by
the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519)
(Selected Interest Rates) as the "bank prime loan" rate or, if such rate is no
longer quoted therein, any similar rate quoted therein (as determined by the
Administrative Agent) or any similar release by the Federal Reserve Board
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DB2/ 48024258.7 57 (as determined by the Administrative Agent). Each change in
the Prime Rate shall be effective from and including the date such change is
publicly announced or quoted as being effective. "Priority Payable Reserve"
means, with respect to jurisdictions other than the U.S. (or any state
thereof) and Canada (or any province or territory thereof), any Reserve
established in the Permitted Discretion of the Administrative Agent in
accordance with Section 1.10 for amounts which rank or are capable of ranking
prior to the Liens granted to the Administrative Agent under the Collateral
Documents, including, without limitation, in the Permitted Discretion of the
Administrative Agent, any such amounts due and not paid for wages, or vacation
pay, severance pay, employee deductions, income tax, insolvency costs
(including the expenses and liabilities incurred by any administrator or other
insolvency officer) and any remuneration of such administrator or other
insolvency officer, amounts due and not paid under any legislation relating to
workers' compensation or to employment insurance amounts currently or past due
and not paid for realty, municipal or similar taxes (to the extent impacting
personal or movable property), sales tax and pension obligations and, to the
extent prescribed pursuant to English law and statute then in force, the
"prescribed part" of floating charge realizations held for unsecured
creditors. "Proceeding" means any claim, litigation, investigation, action,
suit, arbitration or administrative, judicial or regulatory action or
proceeding in any jurisdiction. "Proceeds of Crime Act" means the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from
time to time, and including all regulations thereunder. "Pro Forma Basis"
means, as to any Person, for all Specified Transactions that occur subsequent
to the commencement of an applicable Test Period except as set forth in
Section 1.06, all calculations of the Fixed Charge Coverage Ratio and EBITDA
will give pro forma effect to such Specified Transactions as if such Specified
Transactions occurred on the first day of such Test Period. Whenever any
calculation is made on a Pro Forma Basis hereunder, such calculation shall be
made in good faith by a Financial Officer of the Borrower Representative;
provided that no such calculation shall include cost savings or synergies
unless such cost savings and synergies are either (x) in compliance with
Regulation S-X under the Securities Act of 1933, as amended or (y) based on
actions taken or to be taken within 12 months of the relevant transaction and
in an amount for any Test Period, when aggregated with the amount of any
increase to EBITDA for such Test Period pursuant to clause (b)(ix) of the
definition of "EBITDA," that does not exceed 10% of EBITDA for such Test
Period (calculated prior to giving effect to any increase pursuant to this
clause (y) or clause (b)(ix) of the definition of "EBITDA"). "Projections" has
the meaning assigned to such term in Section 5.01(f). "Protective Advance" has
the meaning assigned to such term in Section 2.04(a). "PTE" means a prohibited
transaction class exemption issued by the U.S. Department of Labor, as any
such exemption may be amended from time to time. "Public-Sider" means a Lender
whose representatives may trade in securities of the Borrowers or their
Controlling Persons or any of their Subsidiaries while in possession of the
financial statements provided by the Loan Parties under the terms of this
Agreement. "QFC" has the meaning assigned to the term "qualified financial
contract" in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D). "QFC Credit Support" has the meaning assigned to it in Section
9.21. DB2/ 48024258.7 58 "Qualified ECP Guarantor" means, in respect of any
Swap Obligation, each Loan Party that has total assets exceeding $10,000,000
at the time the relevant Loan Guaranty or grant of the relevant security
interest becomes or would become effective with respect to such Swap
Obligation or such other person as constitutes an "eligible contract
participant" under the Commodity Exchange Act or any regulations promulgated
thereunder and can cause another person to qualify as an "eligible contract
participant" at such time by entering into a keepwell under Section
1a(18)(A)(v)(II) of the Commodity Exchange Act. "Qualified Equity Interests"
means any Equity Interests that do not constitute Disqualified Equity
Interests. "Reaffirmation Agreement" means the Reaffirmation Agreement dated
as of the Third Amendment Effective Date among each of the U.S. Loan Parties,
as grantors thereunder, and the Administrative Agent. "Real Estate Component"
means, at any time, an amount equal to the lesser of (a) the Real Estate
Sublimit at such time, and (b) 80% of the fair market value of the Eligible
Real Property as set forth in the most recent Acceptable Real Estate Appraisal
received by the Administrative Agent at such time. "Real Estate Sublimit"
means an amount equal to $120,000,000; provided, however, that commencing on
the first Business Day of the calendar quarter immediately following the first
Business Day that the Real Estate Component is first added to the U.S.
Borrowing Base, and on the first Business Day of each calendar quarter
thereafter, the Real Estate Sublimit shall be reduced by an amount equal to
1/60 of the Amortization Fixed Amount as in effect on the date of such
reduction. "Reallocation FILO Loan" has the meaning assigned to such term in
Section 2.11(b). "Reallocation Revolving Loan" has the meaning assigned to
such term in Section 2.11(b). "Recipient" means, as applicable, (a) the
Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any
combination thereof (as the context requires). "Reference Time" with respect
to any setting of the then-current Benchmark means (a) if such Benchmark is
the Term SOFR Rate or Adjusted REVSOFR30 Rate, 5:00 a.m. (Chicago time) on the
day that is two (2) U.S. Government Securities Business Days preceding the
date of such setting, (b) if the RFR for such Benchmark is SONIA, then 11:00
a.m. (London time) four (4) RFR Business Days prior to such setting, (c) if
such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days
preceding the date of such setting, (d) if such Benchmark is AUD Rate, 11:00
a.m. Sydney, Australia time two Business Days preceding the date of such
setting, (e) if the RFR for such Benchmark is Daily Simple SOFR, then four (4)
RFR Business Days prior to such setting or (f) if such Benchmark is none of
the Term SOFR Rate, EURIBOR Rate, AUD Rate, SONIA or Daily Simple SOFR, the
time determined by the Administrative Agent in its reasonable discretion.
"Refinance Indebtedness" has the meaning assigned to such term in Section
6.01(f). "Refinancing" means prior to, or substantially contemporaneously with
the consummation of the initial Borrowing on the Effective Date, all Existing
Indebtedness will be repaid, redeemed, defeased, discharged or terminated and,
as applicable, all commitments, guarantees, liens and security interests
thereunder will be terminated (or arrangements reasonably satisfactory to the
Arrangers for such termination shall have been made). "Register" has the
meaning assigned to such term in Section 9.04(b).
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DB2/ 48024258.7 59 "Regulation D" means Regulation D of the Federal Reserve
Board, as in effect from time to time and all official rulings and
interpretations thereunder or thereof. "Regulation T" means Regulation T of
the Federal Reserve Board, as in effect from time to time and all official
rulings and interpretations thereunder or thereof. "Regulation U" means
Regulation U of the Federal Reserve Board, as in effect from time to time and
all official rulings and interpretations thereunder or thereof. "Regulation X"
means Regulation X of the Federal Reserve Board, as in effect from time to
time and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, (a) any
controlling Person or controlled Affiliate of such Person, (b) the respective
directors, officers, or employees of such Person or any of its controlling
Persons or controlled Affiliates, and (c) the respective agents of such Person
or any of its controlling Persons or controlled Affiliates, in the case of
this clause (c), acting on behalf of or at the instructions of such Person,
controlling Person or controlled Affiliate; provided that each reference to a
controlled Affiliate in this definition pertains to a controlled Affiliate
involved in the negotiation or syndication of the Loan Documents and the Loans
hereunder. "Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, migrating,
disposing or dumping of any substance into the environment. "Relevant
Governmental Body" means (i) with respect to a Benchmark Replacement in
respect of Loans denominated in U.S. Dollars, the Federal Reserve Board and/or
the NYFRB, or a committee officially endorsed or convened by the Federal
Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii)
with respect to a Benchmark Replacement in respect of Loans denominated in
Sterling, the Bank of England, or a committee officially endorsed or convened
by the Bank of England or, in each case, any successor thereto, (iii) with
respect to a Benchmark Replacement in respect of Loans denominated in Euros,
the European Central Bank, or a committee officially endorsed or convened by
the European Central Bank or, in each case, any successor thereto and (iv)
with respect to a Benchmark Replacement in respect of Loans denominated in any
other currency, (a) the central bank for the currency in which such Benchmark
Replacement is denominated or any central bank or other supervisor which is
responsible for supervising either (1) such Benchmark Replacement or (2) the
administrator of such Benchmark Replacement or (b) any working group or
committee officially endorsed or convened by (1) the central bank for the
currency in which such Benchmark Replacement is denominated, (2) any central
bank or other supervisor that is responsible for supervising either (A) such
Benchmark Replacement or (B) the administrator of such Benchmark Replacement,
(3) a group of those central banks or other supervisors or (4) the Financial
Stability Board or any part thereof. "Relevant Rate" means (i) with respect to
any Term Benchmark Borrowing denominated in U.S. Dollars, the Adjusted Term
SOFR Rate, (ii) with respect to any Adjusted REVSOFR30 Rate Borrowing, the
Adjusted REVSOFR30 Rate, (iii) with respect to any Term Benchmark Borrowing
denominated in Euros, the EURIBOR Rate, (iv) with respect to any Term
Benchmark Borrowing denominated in Australian Dollars, the AUD Rate or (v)
with respect to any Borrowing denominated in Sterling or U.S. Dollars, the
applicable Adjusted Daily Simple RFR, as applicable. "Relevant Screen Rate"
means (i) with respect to any Term Benchmark Borrowing denominated in U.S.
Dollars, the Term SOFR Reference Rate, (ii) with respect to any Term Benchmark
Borrowing DB2/ 48024258.7 60 denominated in Euros, the EURIBOR Screen Rate and
(iii) with respect to any Term Benchmark Borrowing denominated in Australian
Dollars, the AUD Screen Rate, as applicable. "Rent Reserve" means, if and to
the extent that the Administrative Agent has not received a Collateral Access
Agreement with respect to any location where Eligible Inventory or books and
records are located, an amount equal to no more than three (3) months' rent or
charges payable in respect to such location, together with all other accrued
and unpaid fees, costs and expenses owing by the applicable Borrower in
connection therewith. "Report" means reports prepared by the Administrative
Agent or another Person showing the results of appraisals, field examinations
or audits pertaining to the assets of the Borrowers and the Canadian Loan
Guarantors from information furnished by or on behalf of the Borrowers and the
Canadian Loan Guarantors, after the Administrative Agent has exercised its
rights of inspection pursuant to this Agreement, which Reports may be
distributed to the Lenders by the Administrative Agent. "Required Lenders"
means, subject to Section 2.20, at any time, Lenders having Combined Exposures
and unused Combined Commitments representing more than 50% of the sum of the
Aggregate Combined Exposure and unused Combined Commitments at such time.
"Required FILO Lenders" means, subject to Section 2.20, at any time, Lenders
having FILO Exposures and unused FILO Commitments representing more than 50%
of the sum of the Aggregate FILO Exposure and unused FILO Commitments at such
time. "Required Revolving Lenders" means, subject to Section 2.20, at any
time, Lenders having Revolving Exposures and unused Revolving Commitments
representing more than 50% of the sum of the Aggregate Revolving Exposure and
unused Revolving Commitments at such time. "Requirement of Law" means, with
respect to any Person, (a) the charter, articles or certificate of
organization or incorporation and bylaws or operating, management or
partnership agreement, constitution or other organizational or governing
documents of such Person and (b) any statute, law (including common law),
treaty, rule, regulation, code, ordinance, order, decree, writ, judgment,
injunction or determination of any arbitrator or court or other Governmental
Authority (including Environmental Laws), in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject. "Reserves" means any and all reserves which the
Administrative Agent deems necessary, in its Permitted Discretion, to maintain
in accordance with Section 1.10 (including, without limitation, reserves for
accrued and unpaid interest on any of the Secured Obligations, Priority
Payable Reserves, Canadian Priority Payable Reserves, Australian Priority
Payable Reserves, Banking Services Reserves, Debt Maturity Reserves, reserves
in respect of Secured Inventory Financing Indebtedness solely in connection
with the U.S. Borrowing Base, Rent Reserves and reserves for consignee's,
processor's, warehousemen's and bailee's charges in respect of Eligible
Inventory, reserves for dilution of Accounts (not to exceed the amount
necessary to reduce advance rates by one percentage point (or fraction
thereof, rounding to the nearest one- tenth of one percentage point) for each
percentage point (or fraction thereof, rounding to the nearest one- tenth of
one percentage point) by which dilution exceeds five percent (5.0%)), reserves
for Inventory shrinkage, reserves for customs charges and shipping charges
related to any Inventory in transit, reserves for Swap Agreement Obligations,
reserves for uninsured losses in respect of Inventory of any U.S. Borrower,
and reserves for unpaid taxes, fees, assessments, and other governmental
charges) with respect to the Collateral or any Loan Party.
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DB2/ 48024258.7 61 "Resolution Authority" means an EEA Resolution Authority
or, with respect to any U.K. Financial Institution, a U.K. Resolution
Authority. "Responsible Officer" means the president, Financial Officer or
other executive officer of a Loan Party. "Restricted Payment" means any
dividend or other distribution (whether in cash, securities or other property)
with respect to any Equity Interests in Insight or any Restricted Subsidiary,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Equity
Interests or any option, warrant or other right to acquire any such Equity
Interests. "Restricted Subsidiary" means, collectively, any existing or future
direct or indirect Subsidiary of any Loan Party, other than any Unrestricted
Subsidiary but including, at all times, the Borrowers (other than Insight).
"Reuters" means, as applicable, Thomson Reuters Corp, Refinitiv, or any
successor thereto. "Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Maturity Date
and the date of termination of the Revolving Commitments. "Revolving
Borrowing" means a Borrowing comprised of Revolving Loans. "Revolving
Commitment" means, with respect to each Lender, such Lender's commitment to
make Revolving Loans and to acquire participations in Letters of Credit,
Revolving Overadvances and Protective Advances hereunder, expressed as an
amount representing the maximum aggregate permitted amount of such Lender's
Revolving Exposure hereunder, as such commitment may be reduced or increased
from time to time pursuant to (a) Section 2.09(a) and (b) assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Revolving Commitment is set forth on the Commitment Schedule, or in the
Assignment and Assumption or other documentation or record (as such term is
defined in Section 9- 102(a)(70) of the New York Uniform Commercial Code) as
provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have
assumed its Revolving Commitment, as applicable. "Revolving Excess
Availability" means as of any date of determination, an amount equal to the
sum of (a) the U.S. Excess Availability as of such time, plus (b) the Foreign
Excess Availability as of such time. "Revolving Exposure" means, with respect
to any Lender at any time, the sum of (a) the outstanding principal amount of
such Lender's Revolving Loans and its LC Exposure at such time, plus (b) an
amount equal to its Applicable Percentage of the aggregate principal amount of
Protective Advances outstanding at such time, plus (c) an amount equal to its
Applicable Percentage of the aggregate principal amount of Revolving
Overadvances outstanding at such time. "Revolving Exposure Limitations" shall
have the meaning assigned to such term in Section 2.01(a) "Revolving Lender"
means any Foreign Tranche Lender and/or U.S. Tranche Lender. "Revolving Loan"
means a Loan made pursuant to Section 2.01(a). "Revolving Overadvance" has the
meaning assigned to such term in Section 2.05(a). DB2/ 48024258.7 62
"REVSOFR30 Rate" means the Term SOFR Reference Rate for a (1) month period, as
such rate is published by the CME Term SOFR Administrator, at approximately
5:00 a.m., Chicago time, two (2) U.S. Government Securities Business Days
prior to the first (1st) Business Day of each month, adjusted monthly on the
first (1st) Business Day of each month. Any change in the REVSOFR30 Rate shall
be effective from and include the effective date of such change. "RFR" means,
for any RFR Loan denominated in (a) Sterling, SONIA and (b) U.S. Dollars,
Daily Simple SOFR. "RFR Borrowing" means, as to any Borrowing, the RFR Loans
comprising such Borrowing. "RFR Business Day" means, for any Loan denominated
in (a) Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a
day on which banks are closed for general business in London and (b) U.S.
Dollars, a U.S. Government Securities Business 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 Ratings Services, a Standard & Poor's Financial
Services LLC business. "SADA Systems" has the meaning assigned to such term in
the preamble hereto. "Sale and Leaseback Transaction" has the meaning assigned
to such term in Section 6.06. "Sanctioned Country" means, at any time, a
country, region or territory which is itself the subject or target of any
Sanctions (at the time of this Agreement, the so-called Donetsk People's
Republic, the so- called Luhansk People's Republic, the Crimea Region of
Ukraine, Cuba (only with respect to Loan Parties organized outside of Canada
or any province or territory thereof), Iran, North Korea and Syria).
"Sanctioned Person" means, at any time, (a) any Person listed in any
Sanctions-related list of designated Persons maintained by the Office of
Foreign Assets Control of the U.S. Department of the Treasury, the U.S.
Department of State, the Government of Canada, the Commonwealth of Australia,
the United Nations Security Council, the European Union or any European Union
member state, His Majesty's Treasury of the United Kingdom or other relevant
sanctions authority, (b) any Person operating, organized or resident in a
Sanctioned Country, (c) any Person owned or controlled by any such Person or
Persons described in the foregoing clauses, (a) or (b), or (d) any Person
otherwise the subject of any Sanctions, including a Canadian Blocked Person.
"Sanctions" means all economic or financial sanctions or trade embargoes
imposed, administered or enforced from time to time by (a) the U.S.
government, including those administered by the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of
State, (b) the Government of Canada (including the Canadian Economic Sanctions
and Export Control Laws), (c) the Commonwealth of Australia (including the
Australian Autonomous Sanctions Regime) or (d) the United Nations Security
Council, the European Union, any European Union member state, His Majesty's
Treasury of the United Kingdom or other relevant sanctions authority. "SEC"
means the Securities and Exchange Commission of the U.S.
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DB2/ 48024258.7 63 "Secured Inventory Financing Indebtedness" means any
Indebtedness of any Loan Party under any inventory supply chain financing
secured by the Collateral pursuant to the terms of the Loan Documents;
provided that the aggregate outstanding principal amount of such Indebtedness
shall not exceed $100,000,000. "Secured Obligations" means the Global Secured
Obligations. "Secured Parties" means (a) the Administrative Agent (including
in its capacity as the Australian Security Trustee), (b) the Lenders, (c) each
Issuing Bank, (d) each provider of Banking Services, to the extent the Banking
Services Obligations in respect thereof constitute Secured Obligations, (e)
each counterparty to any Swap Agreement, to the extent the obligations
thereunder constitute Secured Obligations, (f) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan
Document, and (g) the successors and assigns of each of the foregoing. "SOFR"
means a rate equal to the secured overnight financing rate as administered by
the SOFR Administrator. "SOFR Administrator" means the NYFRB (or a successor
administrator of the secured overnight financing rate). "SOFR Administrator's
Website" means the NYFRB's website, currently at http://www.newyorkfed.org, or
any successor source for the secured overnight financing rate identified as
such by the SOFR Administrator from time to time. "SOFR Determination Date"
has the meaning specified in the definition of "Daily Simple SOFR". "SOFR Rate
Day" has the meaning specified in the definition of "Daily Simple SOFR".
"SONIA" means, with respect to any Business Day, a rate per annum equal to the
Sterling Overnight Index Average for such Business Day published by the SONIA
Administrator on the SONIA Administrator's Website on the immediately
succeeding Business Day (provided that for any Overnight Rate Loans
denominated in Sterling, SONIA shall be based on the published rate for SONIA
as of the Business Day of such request). "SONIA Administrator" means the Bank
of England (or any successor administrator of the Sterling Overnight Index
Average). "SONIA Administrator's Website" means the Bank of England's website,
currently at http://www.bankofengland.co.uk, or any successor source for the
Sterling Overnight Index Average identified as such by the SONIA Administrator
from time to time. "Special Flood Hazard Area" shall mean an area that the
Federal Emergency Management Agency's current flood maps indicate has at least
a one percent (1%) chance of a flood equal to or exceeding the base flood
elevation (a 100-year flood) in any given year. "Specified Event of Default"
means an Event of Default set forth in clause (a), (b), (c) (solely in respect
of any material misrepresentation set forth in any Borrowing Base
Certificate), (d) (solely in respect of failure to comply with Section 6.12),
(e) (solely in respect of the failure (x) to deliver a Compliance Certificate
as required pursuant to Section 5.01(e) (y) to deliver a Borrowing Base
Certificate as required pursuant to Section 5.01(g), or (z) failure to comply
with Section 5.16 or 5.17), or (h) or (i) of Article VII, or an Event of
Default as a result of a breach of Article 7 of the U.S. Security Agreement
and/or the Canadian Security Agreement. DB2/ 48024258.7 64 "Specified Merger
Agreement Representations" means the representations and warranties made by
PCM in the Trojan Merger Agreement as are material to the interests of the
Lenders, but only to the extent that Insight (or Insight's applicable
Affiliates) have the right (determined without regard to any notice
requirement) not to consummate the transactions as contemplated by the Trojan
Merger Agreement or to terminate Insight's (or such Affiliates') obligations
under the Trojan Merger Agreement, as a result of a breach of such
representations and warranties. "Specified Representations" means those
representations and warranties made by the Loan Parties (after giving effect
to the Trojan Acquisition) in Sections 3.01(a) (solely as to the Loan
Parties), 3.02(a), 3.03(b), 3.08, 3.13, 3.16 (subject to the last paragraph of
Section 4.01), 3.18, 3.19, and 3.21. "Specified Transaction" means any
Disposition outside the ordinary course of business involving the Disposition
of assets with an aggregate book value in excess of $25,000,000 and any
Permitted Acquisition or other Investment permitted hereunder or occurring
prior to the Effective Date involving an aggregate consideration in excess of
$25,000,000 (or any similar transaction or transactions). "Specified
Zero-Balance Accounts" means, collectively, (a) the zero-balance deposit
account of Insight Direct (with Insight Technology Solutions Belgium Inc., the
Belgium division of Insight Direct, as beneficiary) held at Bank of America,
London Branch (with an address of 2 Kind Edward Street, London, EC1A 1 HQ,
UK), and (b) the zero-balance deposit account of Insight Direct (with Insight
Technology Solutions Belgium Inc., the Belgium division of Insight Direct, as
beneficiary) held at Bank of America Merrill Lynch (with an address of Square
De Meeus 38-40, 1000 Brussels). "Spot Selling Rate" means, on any date of
determination, the spot selling rate posted by ICE Data Services for the sale
of the applicable currency for U.S. Dollars at approximately 11:00 a.m., Local
Time, two (2) Business Days prior to such date (the "Applicable Quotation
Date"); provided that if, for any reason, no such spot rate is being quoted,
the spot selling rate shall be determined by reference to such publicly
available service for displaying exchange rates as may be reasonably selected
by the Administrative Agent, or, in the event no such service is selected,
such spot selling rate shall instead be the rate determined by the
Administrative Agent as the spot rate of exchange in the market where its
foreign currency exchange operations in respect of the applicable currency are
then being conducted, at or about 11.00 a.m. Local Time, on the Applicable
Quotation Date for the purchase of the relevant currency for delivery two (2)
Business Days later. "Stack Data Solutions" has the meaning assigned to such
term in the preamble hereto. "Stack Technology" has the meaning assigned to
such term in the preamble hereto. "Stack Telecommunications" has the meaning
assigned to such term in the preamble hereto. "Statements" has the meaning
assigned to such term in Section 2.18(g). "Statutory Reserve Rate" means a
fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve percentage (including any marginal, special, emergency or
supplemental reserves) established by the Federal Reserve Board to which the
Administrative Agent is subject with respect to the Adjusted EURIBOR Rate for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D) or any other reserve ratio or analogous requirement of any
central banking or financial regulatory authority imposed in respect of the
maintenance of the Revolving Commitments or FILO Commitments or the funding of
the Loans. Such reserve percentages shall include those imposed pursuant to
Regulation D of the Board. Term Benchmark Loans for which the associated
Benchmark is adjusted by reference to the
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DB2/ 48024258.7 65 Statutory Reserve Rate (per the related definition of such
Benchmark) shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under Regulation D of the Board or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage. "Sterling" and " "
means the lawful currency of the United Kingdom. "Subordinated Indebtedness"
of a Person means any Indebtedness of such Person the payment of which is
subordinated to payment of the Secured Obligations to the written satisfaction
of the Administrative Agent. "subsidiary" means, with respect to any Person
(the "parent") at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, controlled
or held, or (b) that is, as of such date, otherwise Controlled, by the parent
and/or one or more subsidiaries of the parent. "Subsidiary" means any direct
or indirect subsidiary of Insight or another Loan Party, as applicable.
"Supermajority FILO Lenders" means, at any time, FILO Lenders (other than
Defaulting Lenders) having FILO Exposures and unused FILO Commitments
representing at least 66 2/3% of the sum of the aggregate FILO Exposures of
all FILO Lenders and unused FILO Commitments at such time. "Supermajority
Foreign Tranche Lenders" means, at any time, Foreign Tranche Lenders (other
than Defaulting Lenders) having Foreign Tranche Revolving Exposures and unused
Foreign Tranche Commitments representing at least 66 2/3% of the sum of the
aggregate Foreign Tranche Revolving Exposures of all Foreign Tranche Lenders
and unused Foreign Tranche Commitments at such time. "Supermajority U.S.
Tranche Lenders" means, at any time, U.S. Tranche Lenders (other than
Defaulting Lenders) having U.S. Tranche Revolving Exposures and unused U.S.
Tranche Commitments representing at least 66 2/3% of the sum of the aggregate
U.S. Tranche Revolving Exposures of all U.S. Tranche Lenders and unused U.S.
Tranche Commitments at such time. "Supported QFC" has the meaning assigned to
in Section 9.21. "Swap Agreement" means any agreement with respect to any
swap, forward, spot, future, credit default or derivative transaction or
option or similar agreement involving, or settled by reference to, one or more
rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions (including, for the avoidance of doubt, any Permitted Convertible
Debt Hedge Transaction and any Permitted Share Repurchase Transaction);
provided that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers,
employees or consultants of the Borrowers or the Subsidiaries shall be a Swap
Agreement. "Swap Agreement Obligations" means any and all obligations of the
Loan Parties and their Subsidiaries, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or DB2/ 48024258.7 66
acquired (including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all Swap Agreements permitted
hereunder with a Lender or an Affiliate of a Lender, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments of any Swap
Agreement transaction permitted hereunder with a Lender or an Affiliate of a
Lender. "Swap Obligation" means, with respect to any Loan Guarantor, any
obligation to pay or perform under any agreement, contract or transaction that
constitutes a "swap" within the meaning of section 1a(47) of the Commodity
Exchange Act or any rules or regulations promulgated thereunder. "TARGET2"
means the Trans-European Automated Real-time Gross Settlement Express Transfer
(TARGET2) payment system. "TARGET Day" means any day on which TARGET2 (or, if
such payment system ceases to be operative, such other payment system, if any,
determined by the Administrative Agent to be a suitable replacement) is open
for the settlement of payments in Euros. "Target" has the meaning set forth in
the recitals hereto. "Tax Confirmation" means a confirmation by a Lender that
the person beneficially entitled to interest payable to that Lender in respect
of an advance under a Loan Document is either: (a) a company resident in the
United Kingdom for United Kingdom tax purposes; or (b) a partnership each
member of which is: (i) a company so resident in the United Kingdom; or (ii) a
company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings into account
in computing its chargeable profits (within the meaning of section 19 of the
CTA) the whole of any share of interest payable in respect of that advance
that falls to it by reason of Part 17 of the CTA; or (c) a company not so
resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account interest
payable in respect of that advance in computing the chargeable profits (within
the meaning of section 19 of the CTA) of that company. "Tax Deduction" means a
deduction or withholding for or on account of Taxes from a payment under a
Loan Document, other than a FATCA Deduction. "Taxes" means any and all present
or future taxes, levies, imposts, duties, deductions, withholdings, (including
backup withholding), value added taxes, or any other goods and services, use
or sales taxes, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto. "Term Benchmark" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted Term SOFR Rate, the
Adjusted EURIBOR Rate or the AUD Rate.
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DB2/ 48024258.7 67 "Term SOFR Determination Day" has the meaning assigned to
it under the definition of Term SOFR Reference Rate. "Term SOFR Rate" means,
with respect to any Term Benchmark Borrowing denominated in U.S. Dollars and
for any tenor comparable to the applicable Interest Period, the Term SOFR
Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government
Securities Business Days prior to the commencement of such tenor comparable to
the applicable Interest Period, as such rate is published by the CME Term SOFR
Administrator. "Term SOFR Reference Rate" means, for any day and time (such
day, the "Term SOFR Determination Day"), with respect to any Term Benchmark
Borrowing denominated in Dollars and for any tenor comparable to the
applicable Interest Period, the rate per annum published by the CME Term SOFR
Administrator and identified by the Administrative Agent as the forward-looking
term rate 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 SOFR Administrator 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 SOFR Reference Rate for such Term SOFR Determination Day will be the Term
SOFR Reference Rate as published in respect of the first preceding U.S.
Government Securities Business Day for which such Term SOFR Reference Rate was
published by the CME Term SOFR Administrator, so long as such first preceding
U.S. Government Securities Business Day is not more than five (5) U.S.
Government Securities Business Days prior to such Term SOFR Determination Day.
"Test Period" means each period of four consecutive fiscal quarters of Insight
and its Subsidiaries then most recently ended. "Third Amendment Effective
Date" means July 22, 2022. "Third Amendment Fee Letter" means that certain Fee
Letter, dated as of July 20, 2022, by and between JPMCB and the Borrower
Representative. "Tranche" means the U.S. Tranche and/or the Foreign Tranche,
as the context may require. "Transactions" means the execution, delivery and
performance by the Loan Parties of this Agreement and the other Loan
Documents, the borrowing of Loans and other credit extensions, the use of the
proceeds thereof, the issuance of Letters of Credit hereunder, and the
consummation of the Trojan Acquisition, in each case on the Effective Date.
"Trojan Acquisition" has the meaning set forth in the recitals hereto. "Trojan
Merger Agreement" has the meaning set forth in the recitals hereto. "Type",
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted Term SOFR Rate, the Adjusted EURIBOR
Rate, the AUD Rate, the CBFR, the Adjusted Daily Simple RFR, Adjusted Daily
Simple ESTR, or the Overnight Rate. "UCC" means the Uniform Commercial Code as
in effect from time to time in the State of New York or in any other state the
laws of which are required to be applied in connection with the issue of
perfection of security interests. DB2/ 48024258.7 68 "U.K. Book Debts and
Account Charge" means, collectively, (i) that certain English law book debts
and account charge, dated as of August 30, 2019, by and among Insight Direct,
Insight Enterprises and Insight Netherlands and the Administrative Agent, for
the benefit of the Administrative Agent and the other Secured Parties and (ii)
that certain English law book debts and account charge, dated as of the Third
Amendment Effective Date, by and among Insight Direct, Insight Enterprises and
Insight Netherlands and the Administrative Agent, for the benefit of the
Administrative Agent and the other Secured Parties. "U.K. Borrower DTTP
Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by
the relevant U.K. Borrower, which: (a) where it relates to a U.K. Treaty
Lender that is a party to this Agreement as a Lender as at the date of the
Agreement, contains the scheme reference number and jurisdiction of tax
residence stated opposite that Lender's name in the Commitment Schedule, and
is filed with HM Revenue & Customs within thirty (30) days of the date of this
Agreement; or (b) where it relates to a U.K. Treaty Lender that is not a party
to this Agreement as a Lender as at the date of this Agreement, contains the
scheme reference number and jurisdiction of tax residence stated in respect of
that Lender in the Assignment and Assumption which it executes on becoming a
party to this Agreement as a Lender, and is filed with HM Revenue & Customs
within thirty (30) days of the date on which that U.K. Treaty Lender becomes a
Party to this Agreement as a Lender. "U.K. Borrowers" means, each of, and
collectively, Insight UK, Insight Networking, Stack Technology, Stack Data
Solutions, Stack Telecommunications, Interconnect Network, PCM Technology, and
any other Restricted Subsidiary incorporated under the laws of England and
Wales approved by the Administrative Agent that joins this Agreement as a
"U.K. Borrower" in accordance with the terms hereof, and "U.K. Borrower" means
any of them or all of them individually, as the context may require. "U.K.
Borrowing Base" means, at any time, the Dollar Equivalent of the result of,
subject to the terms of Section 1.10: (a) the Account Advance Rate of the U.K.
Eligible Accounts at such time, less (b) Reserves applicable to the U.K.
Borrowing Base established by the Administrative Agent in its Permitted
Discretion in accordance with Section 1.10. "U.K. Collateral Documents" means,
collectively, the U.K. Debenture and any other agreements, instruments and
documents executed in connection with this Agreement that are intended to
create, perfect or evidence Liens to secure any of the Secured Obligations,
including, without limitation, all other security agreements, pledge
agreements, debentures, share charges, pledges, powers of attorney,
assignments, financing statements, in each case now or hereafter executed by
any U.K. Loan Party and delivered to the Administrative Agent that are
intended to create, perfect or evidence Liens on assets of any U.K. Loan Party
to secure any of the Secured Obligations. "U.K. Debenture" means,
collectively, (i) the English law debenture dated as of the date hereof, by
and among the U.K. Loan Parties and the Administrative Agent, for the benefit
of the Administrative Agent and the other Secured Parties and (ii) the English
law debenture dated as of the Third Amendment Effective Date by and among the
U.K. Loan Parties and the Administrative Agent, for the benefit of the
Administrative Agent and the other Secured Parties. "U.K. Eligible Accounts"
means the Eligible Accounts owned by a U.K. Borrower billed from and collected
in the United Kingdom or any other jurisdiction satisfactory to the
Administrative Agent in its Permitted Discretion owing by an Account Debtor in
the United States, Canada or an Approved Jurisdiction that comply in all
material respects with each of the representations and warranties respecting
Eligible Accounts that are U.K. Eligible Accounts made in the Loan Documents.
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DB2/ 48024258.7 69 "U.K. Financial Institutions" means any BRRD Undertaking
(as such term is defined under the PRA Rulebook (as amended from time to time)
promulgated by the United Kingdom Prudential Regulation Authority) or any
person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to
time) promulgated by the United Kingdom Financial Conduct Authority, which
includes certain credit institutions and investment firms, and certain
affiliates of such credit institutions or investment firms. "U.K. Loan
Parties" means, each of, and collectively, the U.K. Borrowers, Insight
Enterprises UK Limited, a company incorporated under the laws of England with
registration number 4051772, and any other Restricted Subsidiary of Insight
organized or incorporated under the laws of England and Wales who becomes a
party to this Agreement pursuant to a Joinder Agreement and their respective
successors and assigns, and the term "U.K. Loan Party" means any one of them
or all of them individually, as the context may require. For the avoidance of
doubt, U.K. Loan Parties shall not include any Excluded Subsidiary. "U.K.
Non-Bank Lender" means (a) a Lender identified in the Commitment Schedule as a
"U.K. Non-Bank Lender"; and (b) a Lender which becomes a party to this
Agreement after the Effective Date and which gives a Tax Confirmation in the
Assignment and Assumption which it executes on becoming a party to this
Agreement as a Lender. "U.K./Dutch Overnight Rate" means, for any day in
respect of Loans made to any Borrowers (other than any Australian Borrower)
under the Foreign Tranche, as applicable, with respect to any amount
denominated in (a) U.S. Dollars, the Overnight Lending Rate, (b) Sterling,
Adjusted Daily Simple RFR, (c) Euros, Adjusted Daily Simple ESTR, or (d) any
other Available Currency, an overnight rate determined by the Administrative
Agent or the Issuing Banks (in consultation with the applicable Borrower), as
the case may be, in accordance with banking industry rules on interbank
compensation. "U.K. Qualifying Lender" means (a) a Lender which is
beneficially entitled to interest payable to that Lender in respect of an
advance under a Loan Document and is (i) a Lender: (A) that is a bank (as
defined for the purpose of section 879 of the ITA) making an advance under a
Loan Document and is within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that advance or would be
within such charge as respects such payments apart from section 18A of the
CTA; or (B) in respect of an advance made under a Loan Document by a person
that was a bank (as defined for the purpose of section 879 of the ITA) at the
time that such advance was made and is within the charge to United Kingdom
corporation tax with respect to any payments of interest made in respect of
that advance; or (ii) a Lender which is: (A) a company resident in the United
Kingdom for United Kingdom tax purposes; (B) a partnership, each member of
which is: (1) a company so resident in the United Kingdom; or (2) a company
not so resident in the United Kingdom which carries on a trade in the United
Kingdom through a permanent establishment and which brings into account in
computing its chargeable profits (within the meaning of section 19 of the CTA)
the whole of any share of interest payable in respect of that advance falls to
it by reason of Part 17 of the CTA; or (C) a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (within the
meaning of section 19 of the CTA) of that company; or (iii) a U.K. Treaty
Lender; or (b) a Lender which is a building society (as defined for the
purposes of section 880 of the ITA) making an advance under a Loan Document.
"U.K. Resolution Authority" means the Bank of England or any other public
administrative authority having responsibility for the resolution of any U.K.
Financial Institution. "U.K. Treaty Lender" means a Lender which: (a) is
treated as a resident of a U.K. Treaty State for the purposes of the relevant
U.K. Treaty; (b) does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in any advance
is effectively connected; and (c) fulfils any other conditions which must be
fulfilled under the relevant U.K. Treaty by residents of DB2/ 48024258.7 70
that U.K. Treaty State (subject to the completion of any necessary procedural
or filing requirements) for such residents to obtain full exemption from
United Kingdom taxation on interest payable to that Lender in respect of an
advance under a Loan Document. "U.K. Treaty State" means a jurisdiction having
a double taxation agreement (a "U.K. Treaty") with the United Kingdom which
makes provision for full exemption from tax imposed by the United Kingdom on
interest. "Unadjusted Benchmark Replacement" means the applicable Benchmark
Replacement excluding the related Benchmark Replacement Adjustment.
"Unfinanced Capital Expenditures" means, for any period, Capital Expenditures
made during such period which are not financed from the proceeds of any
Indebtedness (other than the Loans; it being understood and agreed that, to
the extent any Capital Expenditures are financed with Loans, such Capital
Expenditures shall be deemed Unfinanced Capital Expenditures). "Unliquidated
Obligations" means, at any time, any Secured Obligations (or portion thereof)
that are contingent in nature or unliquidated at such time, including any
Secured Obligation that is: (i) an obligation to reimburse a bank for drawings
not yet made under a letter of credit issued by it; (ii) any other obligation
(including any guarantee) that is contingent in nature at such time; or (iii)
an obligation to provide collateral to secure any of the foregoing types of
obligations. "Unrestricted Subsidiary" means (a) as of the Effective Date,
each Subsidiary of Insight (if any) listed on Schedule 1.01(b), (b) any
Subsidiary of Insight designated by Insight as an Unrestricted Subsidiary
pursuant to Section 5.15 subsequent to the Effective Date and (c) any
Subsidiary of an Unrestricted Subsidiary; provided that (i) notwithstanding
the foregoing clauses (a), (b) and (c), in no event shall any Borrower be an
Unrestricted Subsidiary and (ii) subject to the provisions of Section 5.15,
any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary
shall cease to be an Unrestricted Subsidiary. "U.S." means the United States
of America. "U.S. Borrowers" means, each of, and collectively, Insight,
Insight NA, Insight Direct, Insight Public Sector, Insight Receivables, PCM,
Insight Direct Philippines, SADA Systems and any other Restricted Subsidiary
of Insight incorporated under the laws of the United States approved by the
Administrative Agent that joins this Agreement as a "U.S. Borrower" in
accordance with the terms hereof, and "U.S. Borrower" means any of them or all
of them individually, as the context may require. "U.S. Borrowing Base" means,
collectively, at any time, the Dollar Equivalent of the result of, subject to
the terms of Section 1.10: (a) the sum of (i) the Account Advance Rate of the
U.S. Eligible Accounts of each U.S. Borrower and each Canadian Loan Guarantor
at such time, (ii) the lesser of (A) $120,000,000 and (B) the Account Advance
Rate of the U.S. Borrowers' Eligible Accounts at such time billed from and
collected in the United States, Belgium or the United Kingdom (or any other
jurisdiction acceptable to the Administrative Agent) owing by an Account
Debtor in an Approved Jurisdiction, and (iii) the lesser of (A) $20,000,000
and (B) the Account Advance Rate of the Eligible Accounts of each Canadian
Loan Guarantor at such time billed from and collected in Canada owing by an
Account Debtor in an Approved Jurisdiction, plus (b) the lesser of (i) 70% of
the U.S. Borrowers' Eligible Finished Goods Inventory (valued at the lower of
cost (FIFO) or market) at such time, and (ii) the product of 85% multiplied
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DB2/ 48024258.7 71 by the Net Orderly Liquidation Value percentage identified
in the most recent inventory appraisal ordered by the Administrative Agent
multiplied by the U.S. Borrowers' Eligible Finished Goods Inventory (valued at
the lower of cost (FIFO) or market) at such time, plus (c) the product of 85%
multiplied by the Net Orderly Liquidation Value percentage identified in the
most recent inventory appraisal ordered by the Administrative Agent multiplied
by the U.S. Borrowers' Eligible Work-In-Process Inventory at such time, plus
(d) the Real Estate Component, less (e) Reserves applicable to the U.S.
Borrowing Base (which include for greater certainty, Canadian Priority Payable
Reserves) established by the Administrative Agent in its Permitted Discretion
in accordance with Section 1.10. "U.S. Collateral Documents" means,
collectively, the U.S. Security Agreement, and any other agreements,
instruments and documents executed in connection with this Agreement that are
intended to create, perfect or evidence Liens to secure any of the Secured
Obligations, including, without limitation, the Reaffirmation Agreement and
all other security agreements, pledge agreements, debentures, share charges,
pledges, powers of attorney, assignments, financing statements, in each case
now or hereafter executed by any U.S. Loan Party and delivered to the
Administrative Agent that are intended to create, perfect or evidence Liens on
assets of any U.S. Loan Party to secure any of the Secured Obligations. "U.S.
Dollar" or "$" refers to the lawful money of the U.S. "U.S. Eligible Accounts"
means, (a) the Eligible Accounts owned by a U.S. Borrower billed from and
collected in the United States or any other jurisdiction satisfactory to the
Administrative Agent in its Permitted Discretion owing by an Account Debtor in
the United States or Canada, and (b) the Eligible Accounts owned by a Canadian
Loan Guarantor billed and collected in Canada owing by an Account Debtor in
the United States or Canada, in each case, that comply in all material
respects with each of the representations and warranties respecting Eligible
Accounts that are U.S. Eligible Accounts made in the Loan Documents. "U.S.
Excess Availability" means, at any time of determination, any amount equal to
(a) the U.S. Line Cap minus (b) the aggregate U.S. Tranche Revolving Exposure
of all U.S. Tranche Lenders. "U.S. Government Securities Business Day" means
any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the
Securities Industry and Financial Markets Association recommends that the
fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities. "U.S. Line Cap"
means, at any time of determination, an amount equal to the lesser of (a) the
aggregate amount of the U.S. Tranche Commitments of all U.S. Tranche Lenders
and (b) the U.S. Borrowing Base. "U.S. Loan Parties" means, each of, and
collectively, the U.S. Borrowers, Insight Direct Worldwide, Inc., an Arizona
corporation, Insight Canada Holdings, Inc., an Arizona corporation, Insight
Technology Solutions, Inc., a Delaware corporation, Insight Receivables
Holding, LLC, an Illinois limited liability company, Calence, LLC, a Delaware
limited liability company, and any other Restricted Subsidiary of Insight
organized under the laws of the United States who becomes a party to this
Agreement pursuant to a Joinder Agreement and their respective successors and
assigns, and the term "U.S. Loan Party" means DB2/ 48024258.7 72 any one of
them or all of them individually, as the context may require. For the
avoidance of doubt, U.S. Loan Parties shall not include any Excluded
Subsidiary. "U.S. Overnight Rate" means, for any day in respect of Loans made
to the U.S. Borrowers under the U.S. Tranche, with respect to amount
denominated in dollars, the NYFRB Rate. "U.S. Person" means a "United States
person" within the meaning of Section 7701(a)(30) of the Code. "U.S.
Restricted Subsidiary" means each Restricted Subsidiary that is not a Foreign
Restricted Subsidiary. "U.S. Security Agreement" means that certain U.S.
Pledge and Security Agreement (including any and all supplements thereto),
dated as of the date hereof, by and among the U.S. Loan Parties party thereto
and the Administrative Agent, for the benefit of the Administrative Agent and
the other Secured Parties. "U.S. Special Resolution Regime" has the meaning
assigned to it in Section 9.21. "U.S. Tax Compliance Certificate" has the
meaning assigned to such term in Section 2.17(f)(ii)(B)(3). "U.S. Tranche"
means the U.S. Tranche Commitments, the U.S. Tranche Revolving Loans and the
U.S. Tranche LC Exposure. "U.S. Tranche Commitment" means, with respect to
each U.S. Tranche Lender, the commitment, if any, of such U.S. Tranche Lender
to make U.S. Tranche Revolving Loans and to acquire participations in U.S.
Tranche Letters of Credit, Revolving Overadvances, and Protective Advances
hereunder, as such commitment may be reduced or increased pursuant to (a)
Section 2.09(a) and (b) assignments by and to such U.S. Tranche Lender
pursuant to Section 9.04. The initial amount of each U.S. Tranche Lender's
U.S. Tranche Commitment is set forth on the Commitment Schedule, or in the
Assignment and Assumption (or other documentation contemplated by this
Agreement) pursuant to which such U.S. Tranche Lender shall have assumed its
U.S. Tranche Commitment, as applicable. The aggregate principal amount of the
U.S. Tranche Commitments as of the Third Amendment Effective Date is
$1,450,000,000. "U.S. Tranche Credit Event" means a U.S. Tranche Revolving
Borrowing, the issuance, amendment, renewal or extension of a U.S. Tranche
Letter of Credit, the making of a Revolving Overadvance or a Protective
Advance that the U.S. Tranche Lenders are required to participate in pursuant
to the terms hereof, or any of the foregoing. "U.S. Tranche LC Exposure"
means, at any time, the sum of (a) the aggregate undrawn Dollar Equivalent of
all outstanding U.S. Tranche Letters of Credit at such time plus (b) the
aggregate Dollar Equivalent of all LC Disbursements in respect of U.S. Tranche
Letters of Credit that have not yet been reimbursed by or behalf of the U.S.
Borrowers at such time. The U.S. Tranche LC Exposure of any U.S. Tranche
Lender at any time shall be its U.S. Tranche Percentage of the total U.S.
Tranche LC Exposure at such time. "U.S. Tranche Lender" means a Lender with a
U.S. Tranche Commitment or any U.S. Tranche Revolving Exposure. "U.S. Tranche
Letter of Credit" means any Letter of Credit issued under the U.S. Tranche
Commitments pursuant to this Agreement.
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DB2/ 48024258.7 73 "U.S. Tranche Percentage" means, with respect to any U.S.
Tranche Lender, percentage equal to a fraction the numerator of which is such
U.S. Tranche Lender's U.S. Tranche Commitment and the denominator of which is
the aggregate U.S. Tranche Commitments of all U.S. Tranche Lenders; provided
that, if the U.S. Tranche Commitments have terminated or expired, the U.S.
Tranche Percentages shall be determined based upon such Lender's share of the
aggregate U.S. Tranche Revolving Exposures of all U.S. Tranche Lenders at that
time; provided further that, in accordance with Section 2.20, so long as any
U.S. Tranche Lender shall be a Defaulting Lender, such U.S. Tranche Lender's
U.S. Tranche Commitment shall be disregarded in the foregoing calculation.
"U.S. Tranche Revolving Borrowing" means a Revolving Borrowing comprised of
U.S. Tranche Revolving Loans. "U.S. Tranche Revolving Exposure" means, with
respect to any U.S. Tranche Lender at any time, and without duplication, the
sum of (a) the Dollar Equivalent of the outstanding principal amount of such
U.S. Tranche Lender's U.S. Tranche Revolving Loans plus (b) the Dollar
Equivalent of such U.S. Tranche Lender's U.S. Tranche LC Exposure plus (c) an
amount equal to such U.S. Tranche Lender's U.S. Tranche Percentage of the
aggregate outstanding principal amount of Revolving Overadvances at such time
that U.S. Tranche Lenders have purchased participations in pursuant to the
terms hereof plus (d) an amount equal to such U.S. Tranche Lender's U.S.
Tranche Percentage of the aggregate outstanding principal amount of Protective
Advances at such time that U.S. Tranche Lenders have purchased participations
in pursuant to the terms hereof. "U.S. Tranche Revolving Loan" means a
Revolving Loan made by a U.S. Tranche Lender pursuant to Section 2.01(a). "USA
PATRIOT Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
"VAT" means (a) any value added tax imposed by the Value Added Tax Act 1994;
(b) any tax imposed in compliance with the Council Directive of 28 November
2006 on the common system of value added tax (EC Directive 2006/112); and (b)
any other tax of a similar nature, whether imposed in the United Kingdom or in
a member state of the European Union in substitution for, or levied in
addition to, such tax referred to in paragraph (a) or (b) above, or imposed
elsewhere. "WEPPA" means the Wage Earner Protection Program Act (Canada).
"Wholly Owned Subsidiary" means, with respect to any Person at any date, a
subsidiary of such Person of which securities or other ownership interests
representing 100% of the Equity Interests (other than (a) directors'
qualifying shares and (b) nominal shares issued to foreign nationals to the
extent required by applicable Requirements of Law) are, as of such date,
owned, controlled or held by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Subsidiaries of such Person. "Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title
IV of ERISA. "Write-Down and Conversion Powers" means, (a) with respect to any
EEA Resolution Authority, the write-down and conversion powers of such EEA
Resolution Authority from time to time under the Bail- In Legislation for the
applicable EEA Member Country, which write-down and conversion powers are
described in the EU Bail-In Legislation Schedule, and (b) with respect to the
United Kingdom, any powers DB2/ 48024258.7 74 of the applicable Resolution
Authority under the Bail-In Legislation to cancel, reduce, modify or change
the form of a liability of any UK Financial Institution or any contract or
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 or instrument is to have effect as
if a right had been exercised under it or to suspend any obligation in respect
of that liability or any of the powers under that Bail-In Legislation that are
related to or ancillary to any of those powers. Classification of Loans and
Borrowings. For purposes of this Agreement, Loans may be classified and
referred to by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Term
Benchmark Loan") or by Class and Type (e.g., a "Term Benchmark Revolving
Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Revolving Borrowing") or by Type (e.g., a "Term Benchmark Borrowing") or by
Class and Type (e.g., a "Term Benchmark Revolving Borrowing"). Terms
Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "law" shall be construed as
referring to all statutes, rules, regulations, codes and other laws (including
official rulings and interpretations thereunder having the force of law or
with which affected Persons customarily comply) and all judgments, orders and
decrees of all Governmental Authorities. The word "will" shall be construed to
have the same meaning and effect as the word "shall". Unless the context
requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, amended
and restated, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements, supplements or modifications
set forth herein), (b) any definition of or reference to any statute, rule or
regulation shall be construed as referring thereto as from time to time
amended, supplemented or otherwise modified (including by succession of
comparable successor laws), (c) any reference herein to any Person shall be
construed to include such Person's successors and assigns (subject to any
restrictions on assignments set forth herein) and, in the case of any
Governmental Authority, any other Governmental Authority that shall have
succeeded to any or all functions thereof, (d) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (e)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (f) any reference in any definition to the phrase "at any
time" or "for any period" shall refer to the same time or period for all
calculations or determinations within such definition, and (g) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights. Accounting Terms;
GAAP. (a) Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as
in effect from time to time; provided that, if after the date hereof there
occurs any change in GAAP or in the application thereof on the operation of
any provision hereof and the Borrower Representative notifies the
Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of such change in GAAP or in the application
thereof (or if the Administrative Agent notifies the Borrower Representative
that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith. Notwithstanding
any other provision contained herein, all terms of an accounting or financial
nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made (i) without giving effect to any
election under Financial
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DB2/ 48024258.7 75 Accounting Standards Board Accounting Standards
Codification 825-10-25 (or any other Accounting Standards Codification or
Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of any Loan Party or any Restricted
Subsidiary at "fair value", as defined therein and (ii) without giving effect
to any treatment of Indebtedness in respect of convertible debt instruments
under Financial Accounting Standards Board Accounting Standards Codification
470-20 (or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness in
a reduced or bifurcated manner as described therein, and such Indebtedness
shall at all times be valued at the full stated principal amount thereof. (b)
Notwithstanding anything to the contrary contained in Section 1.04(a) or in
the definition of "Capital Lease Obligations," any change in accounting for
leases pursuant to GAAP resulting from the adoption of Financial Accounting
Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842)
("FAS 842"), to the extent such adoption would require treating any lease (or
similar arrangement conveying the right to use) as a capital lease where such
lease (or similar arrangement) would not have been required to be so treated
under GAAP as in effect on December 31, 2018, such lease shall not be
considered a capital lease, and all calculations and deliverables (other than
financial statements) under this Agreement or any other Loan Document shall be
made or delivered, as applicable, in accordance therewith. Interest Rates;
Benchmark Notifications. The interest rate on a Loan denominated in U.S.
Dollars or a Foreign Currency may be derived from an interest rate benchmark
that is, or may in the future become, the subject of regulatory reform.
Regulators have signaled the need to use alternative benchmark reference rates
for some of these interest rate benchmarks and, as a result, such interest
rate benchmarks may cease to comply with applicable laws and regulations, may
be permanently discontinued, and/or the basis on which they are calculated may
change. Upon the occurrence of a Benchmark Transition Event, Section 2.14(c)
provides a mechanism for determining an alternative rate of interest. The
Administrative Agent will promptly notify the Borrower Representative,
pursuant to Section 2.14(f), of any change to the reference rate upon which
the interest rate on Term Benchmark Loans is based. However, the Administrative
Agent does not warrant or accept any responsibility for, and shall not have
any liability with respect to, the administration, submission, performance or
any other matter related to Adjusted Daily Simple RFR, Daily Simple RFR, the
Term SOFR Reference Rate, the Adjusted Term SOFR Rate, the Term SOFR Rate, the
Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD Rate or any component
definition thereof or rates referred to in the definition thereof or with
respect to any alternative or successor rate thereto, or replacement rate
thereof (including, without limitation, (i) any such alternative, successor or
replacement rate implemented pursuant to Section 2.14(c) upon the occurrence
of a Benchmark Transition Event and (ii) the implementation of any Benchmark
Replacement Conforming Changes pursuant to Section 2.14(e)), including without
limitation, whether the composition or characteristics of any such
alternative, successor or replacement reference rate will be similar to, or
produce the same value or economic equivalence of, or have the same volume of
liquidity as, the Adjusted Daily Simple RFR, Daily Simple RFR, the Term SOFR
Reference Rate, the Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted
EURIBOR Rate, the EURIBOR Rate, the AUD Rate or any other Benchmark prior to
its discontinuance or unavailability. The Administrative Agent and its
affiliates and/or other related entities may engage in transactions that
affect the calculation of any Adjusted Daily Simple RFR, any Daily Simple RFR,
the Term SOFR Reference Rate, the Adjusted Term SOFR Rate, the Term SOFR Rate,
the Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD Rate, 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
Borrowers. The Administrative Agent may select information sources or services
in its reasonable discretion to ascertain any RFR, any Adjusted Daily Simple
RFR, any Daily Simple RFR, the Term SOFR Reference Rate, the Adjusted Term
SOFR Rate, the Term SOFR Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate,
the AUD Rate or any other Benchmark, or any component thereof, or rates
referenced in the definition thereof, in each case pursuant to the terms of
this Agreement, and shall have no DB2/ 48024258.7 76 liability to the
Borrowers, 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 or otherwise and
whether at law or in equity), for any error or calculation of any such rate
(or component thereof) provided by any such information source or service. Pro
Forma Calculations. For purposes of any calculation of the Fixed Charge
Coverage Ratio or EBITDA, in the event that any Specified Transaction has
occurred during the Test Period for which the Fixed Charge Coverage Ratio or
EBITDA is being calculated or, except for purposes of determining whether an
Event of Default under Section 6.12 has occurred, following the end of such
Test Period but prior to the date that financial statements have been
delivered pursuant to Section 5.01(a) or (b), such calculation shall be made
on a Pro Forma Basis. Currency Translations; Currency Matters. (a) For
purposes of this Agreement and the other Loan Documents, where the
permissibility of a transaction or determinations of required actions or
circumstances depend upon compliance with, or are determined by reference to,
amounts stated in Dollars, such amounts shall be deemed to refer to Dollars or
Dollar Equivalents and any requisite currency translation shall be based on
the Spot Selling Rate; provided, however, that for purposes of determining
compliance with Article VI with respect to the amount of any Indebtedness,
Investment, Disposition or Restricted Payment in a currency other than
Dollars, no Default or Event of Default shall be deemed to have occurred
solely as a result of changes in rates of exchange occurring after the time
such Indebtedness or Investment is incurred or Disposition or Restricted
Payment made. In particular, without limitation, for purposes of computations
hereunder, unless expressly provided otherwise, where a reference is made to a
Dollar amount, the amount is to be considered as the amount in Dollars and,
therefore, each other currency shall be converted into the Dollar Equivalent
thereof in Dollars, as applicable. (b) For purposes of all calculations and
determinations under this Agreement, any amount in any currency other than
Dollars shall be deemed to refer to Dollars or Dollar Equivalents and any
requisite currency translation shall be based on the Spot Selling Rate, and
all certificates delivered under this Agreement, shall express such
calculations or determinations in Dollars or Dollar Equivalents. (c) The
Administrative Agent shall determine the Dollar Equivalent of (i) the Combined
Exposure, Revolving Exposure and FILO Exposure based on the Spot Selling Rate
(A) on or about the date of the related notice requesting any extension of
credit hereunder and (B) on any other date, in its reasonable discretion and
(ii) any other amount to be converted into U.S. Dollars in accordance with the
provisions hereof at the time of such conversion. (d) Each payment owing by
any Loan Party hereunder shall be made in the relevant currency specified
herein or, if not specified herein, specified in any other Loan Document
executed by the Administrative Agent and the Lenders (the "Currency of
Payment") at the place specified herein (such requirements are of the essence
to this Agreement). If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum due hereunder in a Currency of Payment into
another currency, the parties hereto agree that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase such Currency of Payment with such other
currency at the Spot Selling Rate on the Business Day preceding that on which
final judgment is given. The obligations in respect of any sum due hereunder
to any Secured Party shall, notwithstanding any adjudication expressed in a
currency other than the Currency of Payment, be discharged only to the extent
that, on the Business Day
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DB2/ 48024258.7 77 following receipt by such Secured Party of any sum adjudged
to be so due in such other currency, such Secured Party may, in accordance
with normal banking procedures, purchase the Currency of Payment with such
other currency. Each Loan Party agrees that (i) if the amount of the Currency
of Payment so purchased is less than the sum originally due to such Secured
Party in the Currency of Payment, as a separate obligation and notwithstanding
the result of any such adjudication, such Loan Party shall immediately pay the
shortfall (in the Currency of Payment) to such Secured Party and (ii) if the
amount of the Currency of Payment so purchased exceeds the sum originally due
to such Secured Party, such Secured Party shall promptly pay the excess over
to such Loan Party in the currency and to the extent actually received. Quebec
Matters. For purposes of any assets, liabilities or entities located in the
Province of Quebec (Canada) and for all other purposes pursuant to which the
interpretation or construction of this Agreement may be subject to the laws of
the Province of Quebec or a court or tribunal exercising jurisdiction in the
Province of Quebec, (a) "personal property" shall include "movable property",
(b) "real property" or "real estate" shall include "immovable property", (c)
"tangible property" shall include "corporeal property", (d) "intangible
property" shall include "incorporeal property", (e) "security interest" and
"lien" shall include a "hypothec", "right of retention", "prior claim",
"reservation of ownership" and a resolutory clause, (f) all references to
filing, perfection, priority, remedies, registering or recording under the
Uniform Commercial Code or a Personal Property Security Act shall include
publication under the Civil Code of Quebec, (g) all references to "perfection"
of or "perfected" liens or security interest shall include a reference to an
"opposable" or "set up" lien or security interest as against third parties,
(h) any "right of offset", "right of setoff" or similar expression shall
include a "right of compensation", (i) "goods" shall include "corporeal
movable property" other than chattel paper, documents of title, instruments,
money and securities, (j) an "agent" shall include a "mandatary", (k)
"construction liens" or "mechanics, materialmen, repairmen, construction
contractors or other like Liens" shall include "legal hypothecs" and "legal
hypothec in favour of Persons having taken part in the construction or
renovation of an immovable"; (l) "joint and several" shall include "solidary";
(m) "gross negligence or willful misconduct" shall be deemed to be
"intentional or gross fault"; (n) "beneficial ownership" shall include
"ownership on behalf of another as mandatary"; (o) "easement" shall include
"servitude"; (p) "priority" shall include "prior claim", as applicable; (q)
"survey" shall include "certificate of location and plan"; (r) "state" shall
include "province"; (s) "fee simple title" shall include "absolute ownership";
(t) "accounts" shall include "claims", (u) "legal title" shall include
"holding title on behalf of an owner as mandatory or prete-nom"; (v)
"leasehold interest" shall include a "valid lease"; (w) "lease" shall include
a "leasing contract" and (x) "guaranty" and "guarantor" shall include
"suretyship" and "surety", respectively. Within one month of the delivery of
any financial statements or other information written in a language other than
English, at the request of the Administrative Agent or any Lender, the
Borrower Representative shall deliver to the Administrative Agent (for
distribution to the Lenders) an English translation of such financial
statements. Limited Condition Transactions. Notwithstanding any other
provision of this Agreement, in connection with any action being taken in
connection with a Limited Condition Transaction, for purposes of (a)
determining compliance with any provision of this Agreement that requires the
calculation of the Fixed Charge Coverage Ratio, (b) testing availability under
baskets set forth in this Agreement or (c) determining the accuracy of
representations and warranties and/or whether a Default or Event of Default or
Specified Event of Default shall have occurred and be continuing (other than
with respect to Section 4.02), in each case, at the option of the Borrower
Representative (the Borrower Representative's election to exercise such option
in connection with any Limited Condition Transaction, an "LCT Election"), the
date of determination of whether any such action is permitted hereunder shall
be deemed to be the date the definitive agreements with respect to such
Limited Condition Transaction are entered into, in the case of a Limited
Condition Eligible Transaction (in each case, the "LCT Test Date"), and if,
after giving pro forma effect to the Limited Condition Transaction and the
other transactions to be entered into in connection therewith as if they had
occurred at the beginning of the most recent period of DB2/ 48024258.7 78 four
consecutive fiscal quarters ending on or prior to the LCT Test Date (or, if
such date is not the last day of any fiscal quarter, the most recently
completed fiscal quarter for which financial statements are required to have
been delivered pursuant to Section 4.01(b) (at all times prior to the first
delivery of financial statements after the Effective Date under Section
5.01(a) or (b)) or Section 5.01(a) or (b)), the Borrower Representative could
have taken such action on the relevant LCT Test Date in compliance with such
ratio, basket or requirement with respect to the accuracy of representations
and warranties or absence of Defaults or Events of Default or Specified Event
of Default, such ratio, basket or requirement shall be deemed to have been
complied with; provided, with respect to any provision that requires minimum
Aggregate Excess Availability or Average Aggregate Excess Availability,
compliance with such Aggregate Excess Availability or Average Aggregate Excess
Availability test shall be made at the time any Limited Condition Transaction
is consummated instead of on the LCT Test Date. If the Borrower Representative
has made an LCT Election for any Limited Condition Transaction, then, in
connection with any subsequent calculation of the ratios or baskets on or
following the relevant LCT Test Date and prior to the earlier of (i) the date
on which such Limited Condition Transaction is consummated or (ii) the date
that the definitive agreement for such Limited Condition Transaction is
terminated or expires without consummation of such Limited Condition
Transaction, any such ratio or basket shall be calculated on a pro forma basis
(or Pro Forma Basis, if applicable) assuming such Limited Condition
Transaction and other transactions in connection therewith (including any
incurrence of Indebtedness or Liens and the use of proceeds thereof) have been
consummated. Reserves, Eligibility and Advances Rates. The Administrative
Agent may, in its Permitted Discretion, but without duplication, (i) establish
additional standards of eligibility upon at least five (5) Business Days'
prior written notice to the Borrower Representative (which notice shall
include a reasonably detailed description of such additional standards of
eligibility), provided that no such additional standards of eligibility may be
imposed after the Effective Date based on circumstances, conditions, events or
contingencies known to the Administrative Agent as of the Effective Date and
for which no eligibility standards were imposed on the Effective Date, unless
such circumstances, conditions, events or contingencies shall have changed in
any material adverse respect since the Effective Date, (ii) upon the
occurrence of and during the continuation of an Event of Default, reduce the
advance rates set forth in the definition of any applicable Borrowing Base,
and (iii) establish Reserves against eligibility or adjust Reserves upon at
least five (5) Business Days' prior written notice to the Borrower
Representative (which notice shall include a reasonably detailed description
of such Reserve being established or the adjustment thereto); provided that no
such prior notice shall be required for changes to any Reserves resulting
solely by virtue of mathematical calculations of the amount of the Reserves in
accordance with the methodology of calculation previously utilized; provided,
further, that, other than with respect to Banking Services Reserves and Debt
Maturity Reserves, no Reserves may be taken after the Effective Date based on
circumstances, conditions, events or contingencies known to the Administrative
Agent as of the Effective Date and for which no Reserves were imposed on the
Effective Date, unless such circumstances, conditions, events or contingencies
shall have changed in any material adverse respect since the Effective Date or
such Reserve relates to changes in law coming into force after the Effective
Date. During such five (5) Business Day period, (x) the Administrative Agent
shall, if requested by the Borrower Representative, discuss any such
establishment of a Reserve or additional standard of eligibility or adjustment
to a Reserve with the Borrower Representative, and the Borrower Representative
may take such action as may be required so that the event, condition or matter
that is the basis for such Reserve or additional standard of eligibility or
adjustment no longer exists or exists in a manner that would result in the
establishment of a lower Reserve or result in an additional standard of
eligibility more favorable to the Borrowers or result in a lesser adjustment,
in each case in a manner and to the extent reasonably satisfactory to the
Administrative Agent and (y) no Borrower shall be permitted to request a
Borrowing if a Revolving Overadvance or FILO Overadvance would result after
giving effect to such Reserves, adjustments or additional standards of
eligibility. Notwithstanding anything to the contrary in this Agreement, (1)
the amount of any such Reserve or adjustment or additional standard of
eligibility shall have a reasonable relationship to the event, condition
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DB2/ 48024258.7 79 or other matter that is the basis for such Reserve or such
adjustment or such additional standard of eligibility, and (2) no Reserves or
changes shall be duplicative of Reserves or adjustments already accounted for
through eligibility criteria (including collection/advance rates). Divisions.
For all purposes under the Loan Documents, in connection with any Division or
plan of division under Delaware law (or any comparable event under a different
jurisdiction'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 the original
Person to the subsequent Person, and (b) if any new Person comes into
existence, such new Person shall be deemed to have been organized and acquired
on the first date of its existence by the holders of its Equity Interests at
such time. Australian matters. (a) Without prejudice to the generality of any
provision of this Agreement, in this Agreement where it relates to the
Australian Security Trust Deed, an Australian Collateral Document, any Deposit
Account Control Agreement governed by Australian law, an Australian Loan Party
or any of their Subsidiaries incorporated under the laws of Australia or any
state or territory thereof, a reference in this Agreement to: (i) with respect
to any reference to an Affiliate, "Control" has the meaning given to it in
section 50AA of the Australian Corporations Act; (ii) "Controller", "receiver"
or "receiver and manager" has the meaning given to it in section 9 of the
Australian Corporations Act; (iii) "Inventory" has the meaning provided in
section 10 of the Australian PPSA and (iv) "Subsidiary" means a subsidiary
within the meaning given in Part 1.2 Division 6 of the Australian Corporations
Act. (b) The parties agree that the Australian Banking Association Banking
Code of Practice does not apply to the Loan Documents nor the transactions
under them. ARTICLE II The Credits Commitments. (a) Subject to the terms and
conditions set forth herein, (x) each U.S. Tranche Lender severally (and not
jointly) agrees to make U.S. Tranche Revolving Loans to the U.S. Borrowers in
U.S. Dollars and (y) each Foreign Tranche Lender severally (and not jointly)
agrees to make Foreign Tranche Revolving Loans to the Foreign Borrowers in
Available Currencies, in each case from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in:
(i) such U.S. Tranche Lender's U.S. Tranche Revolving Exposure exceeding such
U.S. Tranche Lender's U.S. Tranche Commitment; DB2/ 48024258.7 80 (ii) such
Foreign Tranche Lender's Foreign Tranche Revolving Exposure exceeding such
Foreign Tranche Lender's Foreign Tranche Commitment; (iii) the Aggregate
Revolving Exposure exceeding the Aggregate Revolving Line Cap; (iv) the
aggregate U.S. Tranche Revolving Exposure of all U.S. Tranche Lenders
exceeding the U.S. Line Cap; or (v) the aggregate Foreign Tranche Revolving
Exposure of all Foreign Tranche Lenders exceeding the Foreign Line Cap;
subject, in each case, to the Administrative Agent's authority, in its sole
discretion, to make Protective Advances or Revolving Overadvances pursuant to
the terms of Sections 2.04 and 2.05 provided that no Revolving Loans (other
than Protective Advances permitted under Section 2.04 and Revolving Loans used
to reimburse LC Disbursements pursuant to Section 2.06(e)) will be made at any
time at which FILO Excess Availability is greater than zero. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrowers may borrow, prepay and reborrow Revolving Loans. The limitations on
Borrowing referred to in clauses (a)(i) through (a)(v) above are referred to
collectively as the "Revolving Exposure Limitations". (b) Subject to the terms
and conditions set forth herein, each FILO Lender severally (and not jointly)
agrees to make FILO Loans to the U.S. Borrowers in U.S. Dollars, in each case
from time to time during the FILO Availability Period in an aggregate
principal amount that will not result in: (i) such FILO Lender's FILO Exposure
exceeding such FILO Lender's FILO Commitment; or (ii) the Aggregate FILO
Exposure exceeding the FILO Line Cap; subject, in each case, to the
Administrative Agent's authority, in its sole discretion, to make FILO
Overadvances pursuant to the terms of Section 2.05. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow FILO Loans. The limitations on Borrowing
referred to in clauses (b)(i) through (b)(ii) above are referred to
collectively as the "FILO Exposure Limitations". Loans and Borrowings. (a)
Each Loan shall be made as part of a Borrowing consisting of Loans of the same
Class, Type and currency made by the Lenders ratably in accordance with their
respective Revolving Commitments (in the case of a Revolving Loan) or FILO
Commitments (in the case of a FILO Loan) of the applicable Class. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Revolving
Commitments and the FILO Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to make Loans as required.
Any Protective Advance, any Revolving Overadvance and any FILO Overadvance
shall be made in accordance with the procedures set forth in Sections 2.04 and
2.05. (b) Subject to Section 2.14, (i) each U.S. Tranche Revolving Borrowing
denominated in U.S. Dollars and made to the U.S. Borrowers shall be comprised
entirely of CBFR Loans or
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DB2/ 48024258.7 81 Term Benchmark Loans, (ii) each Revolving Borrowing
denominated in U.S. Dollars and made to the U.S. Borrowers that is not a U.S.
Tranche Revolving Borrowing shall be comprised entirely of Term Benchmark
Loans or Overnight Rate Loans, (iii) each Revolving Borrowing denominated in a
Foreign Currency and made to the U.S. Borrowers shall be comprised entirely of
Term Benchmark Loans, RFR Loans or Overnight Rate Loans, (iv) each Revolving
Borrowing denominated in an Available Currency and made to the U.K. Borrowers
shall be comprised entirely of Term Benchmark Loans, RFR Loans denominated in
a Foreign Currency, or Overnight Rate Loans, (v) each Revolving Borrowing
denominated in an Available Currency and made to the Dutch Borrowers shall be
comprised entirely of Term Benchmark Loans, RFR Loans denominated in a Foreign
Currency or Overnight Rate Loans, (vi) each Revolving Borrowing made to the
Australian Borrowers shall be comprised entirely of Overnight Rate Loans
(subject to Section 2.14, for Revolving Overadvances only) or Term Benchmark
Loans and (vii) each FILO Borrowing denominated in U.S. Dollars and made to
the U.S. Borrowers shall be comprised entirely of CBFR Loans or Term Benchmark
Loans, in each case as the Borrower Representative or the applicable Borrower
may request in accordance herewith, provided that (x) all Revolving Borrowings
made to the Australian Borrowers shall only be made in Australian Dollars and
U.S. Dollars, (y) all FILO Borrowings made to the U.S. Borrowers shall only be
made in U.S. Dollars and (z) all Revolving Borrowings made to the U.S.
Borrowers under the U.S. Tranche on the Effective Date must be made as CBFR
Borrowings but may be converted into Term Benchmark Borrowings in accordance
with Section 2.08, and all Revolving Borrowings made to the U.K. Borrowers,
the Dutch Borrowers, and/or the U.S. Borrowers under the Foreign Tranche on
the Effective Date must be made as Overnight Rate Borrowings but may be
converted into Term Benchmark Borrowings in accordance with Section 2.08. Each
Lender at its option may make any Term Benchmark Loan, Overnight Rate Loan or
RFR Loan by causing any domestic or foreign branch or Affiliate of such Lender
to make such Loan (and in the case of an Affiliate, the provisions of Sections
2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as
to such Lender); provided that any exercise of such option shall not affect
the obligation of the relevant Borrowers to repay such Loan in accordance with
the terms of this Agreement. (c) At the commencement of each Interest Period
for any Term Benchmark Borrowing, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 (or, if such Borrowing is
denominated in an Available Currency (other than U.S. Dollars), the Dollar
Equivalent thereof) and not less than $500,000 (or, if such Borrowing is
denominated in an Available Currency (other than U.S. Dollars), the Dollar
Equivalent thereof). At the time each RFR Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 (or,
if such Borrowing is denominated in an Available Currency (other than U.S.
Dollars), the Dollar Equivalent thereof) and not less than $500,000 (or, if
such Borrowing is denominated in an Available Currency (other than U.S.
Dollars), the Dollar Equivalent thereof), CBFR Borrowings and Overnight Rate
Borrowings may be in any amount. Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time
be more than a total of twenty (20) Term Benchmark Borrowings outstanding. (d)
Notwithstanding any other provision of this Agreement, the Borrower
Representative shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Maturity Date. Requests for Borrowings. To request a
Borrowing, the Borrower Representative shall notify the Administrative Agent
of such request either in writing (delivered by hand, email or fax) by
delivering a Borrowing Request in the form of Exhibit F attached hereto (or
such other form reasonably approved by the Administrative Agent) signed by a
Responsible Officer of the Borrower Representative or through an Electronic
System if arrangements for doing so have been approved by the Administrative
Agent DB2/ 48024258.7 82 (or if an Extenuating Circumstance shall exist, by
telephone) not later than (a) in the case of a Term Benchmark Borrowing (other
than a Term Benchmark Borrowing denominated in Australian Dollars or U.S.
Dollars), 3:00 p.m., Local Time, five (5) Business Days before the date of the
proposed Borrowing, (b) in the case of a Term Benchmark Borrowing denominated
in U.S. Dollars, 3:00 p.m., Local Time, three (3) U.S. Government Securities
Business Days before the date of the proposed Borrowing, (c) in the case of a
Term Benchmark Borrowing by an Australian Borrower denominated in Australian
Dollars, 11:00 a.m., Local Time, four (4) Business Days before the date of the
proposed Borrowing, (d) in the case of an RFR Borrowing, 3:00 p.m., Local Time
five (5) Business Days before the date of the proposed Borrowing, (e) in the
case of a CBFR Borrowing, 1:00 p.m., Local Time, on the date of the proposed
Borrowing, and (f) in the case of an Overnight Rate Borrowing, 10:00 a.m.,
Local Time, on the date of the proposed Borrowing; provided that any such
notice of a Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 12:00 noon, Local
Time, on the date of such proposed Borrowing. Each such Borrowing Request
shall be irrevocable (unless otherwise agreed by the Administrative Agent) and
each such telephonic Borrowing Request, if permitted, shall be confirmed
promptly upon the cessation of the Extenuating Circumstance by hand delivery,
facsimile or a communication through an Electronic System to the Administrative
Agent of a written Borrowing Request in the form of Exhibit F (or such other
form reasonably approved by the Administrative Agent) and signed by a
Responsible Officer of the Borrower Representative. Each such written (or if
permitted, telephonic) Borrowing Request shall specify the following
information in compliance with Section 2.02: (i) the name of the applicable
Borrower(s); (ii) the aggregate amount of the requested Borrowing and a
breakdown of the separate wires comprising such Borrowing; (iii) the date of
such Borrowing, which shall be a Business Day; (iv) whether such Borrowing is
a U.S. Tranche Revolving Borrowing, Foreign Tranche Revolving Borrowing or
FILO Borrowing; (v) whether such Borrowing is to be a CBFR Borrowing, a Term
Benchmark Borrowing, an Overnight Rate Borrowing or a Foreign Currency-denominat
ed RFR Borrowing; (vi) in the case of a Term Benchmark Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and (vii) the currency of the
Loan comprising such Borrowing. If no election as to the currency of a
Borrowing is specified, then the requested Borrowing shall be made in U.S.
Dollars. If no election as to the Type of Borrowing is specified, then (1) in
the case of a U.S. Tranche Revolving Borrowing, the requested Revolving
Borrowing shall be a CBFR Borrowing, (2) in the case of a Revolving Borrowing
made to a U.S. Borrower that is not a U.S. Tranche Revolving Borrowing, the
requested Revolving Borrowing shall be a Term Benchmark Borrowing, (3) in the
case of a Revolving Borrowing made to a U.K. Borrower or a Dutch Borrower in
Sterling, the requested Borrowing shall be a RFR Borrowing, (4) in the case of
a Revolving Borrowing made to a U.K. Borrower or a Dutch Borrower in an
Available Currency (other than Sterling), the requested Revolving Borrowing
shall be a Term Benchmark Borrowing, (5) in the case of a Revolving Borrowing
made to an Australian Borrower, the requested Borrowing shall be a Term
Benchmark Borrowing and (6) in the case of a FILO Borrowing made to a U.S.
Borrower, the requested FILO Borrowing shall be a CBFR Borrowing. If no
Interest Period is
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DB2/ 48024258.7 83 specified with respect to any requested Term Benchmark
Borrowing, then the applicable Borrower(s) shall be deemed to have selected an
Interest Period of one month's duration for such Term Benchmark Borrowing.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing. Protective Advances. (a) Subject to the limitations set
forth below, the Administrative Agent is authorized by the Borrowers and the
Lenders, from time to time in the Administrative Agent's sole discretion (but
shall not have the obligation to), (i) to make Revolving Loans (collectively,
the "U.S. Tranche Protective Advances") to the U.S. Borrowers in U.S. Dollars
on behalf of the U.S. Tranche Lenders or (ii) make Revolving Loans
(collectively, the "Foreign Tranche Protective Advances"; and together with
the U.S. Tranche Protective Advances, collectively, the "Protective Advances")
to the Foreign Borrowers (other than any Australian Borrower) in any Available
Currency on behalf of the Foreign Tranche Lenders, in each case which the
Administrative Agent, in its Permitted Discretion, deems necessary or
desirable (x) to preserve or protect the Collateral, or any portion thereof,
(y) to enhance the likelihood of, or maximize the amount of, repayment of the
Loans and other Obligations, or (z) during the occurrence and continuation of
an Event of Default or in order to prevent an Event of Default, to pay any
other amount chargeable to or required to be paid by the Loan Parties pursuant
to the terms of this Agreement, including payments of reimbursable expenses
(including costs, fees, and expenses as described in Section 9.03) and other
sums payable under the Loan Documents; provided that, (A) the aggregate amount
of Protective Advances outstanding at any time and made on behalf of the U.S.
Tranche Lenders shall not exceed ten percent (10%) of the aggregate U.S.
Tranche Commitments of all U.S. Tranche Lenders at such time, (B) the Dollar
Equivalent of the aggregate amount of Protective Advances outstanding at any
time and made on behalf of the Foreign Tranche Lenders shall not exceed ten
percent (10%) of the aggregate Foreign Tranche Commitments of all Foreign
Tranche Lenders at such time, (C) the U.S. Tranche Revolving Exposure of each
U.S. Tranche Lender after giving effect to any U.S. Tranche Protective Advance
shall not exceed the U.S. Tranche Commitment of such U.S. Tranche Lender, (D)
the Foreign Tranche Revolving Exposure of each Foreign Tranche Lender after
giving effect to any Foreign Tranche Protective Advance shall not exceed the
Foreign Tranche Commitment of such Foreign Tranche Lender and (E) the
Aggregate Revolving Exposure after giving effect to the Protective Advances
being made shall not exceed the Aggregate Revolving Commitment. Protective
Advances may be made even if the conditions precedent set forth in Section
4.02 have not been satisfied. The Protective Advances shall be secured by the
Liens in favor of the Administrative Agent in and to the applicable Collateral
and, all Protective Advances shall constitute Obligations hereunder. All
Protective Advances made to the U.S. Borrowers denominated in U.S. Dollars
shall be CBFR Borrowings, all Protective Advances made to the U.S. Borrowers
denominated in any other Available Currency (other than U.S. Dollars) shall be
Overnight Rate Borrowings and all Protective Advances made to the U.K.
Borrowers and/or the Dutch Borrowers denominated in any Available Currency
shall be Overnight Rate Borrowings. Notwithstanding anything herein to the
contrary, (x) no Protective Advances shall be made to the Australian Borrowers
and (y) Protective Advances shall not be denominated in Australian Dollars.
The making of a Protective Advance on any one occasion shall not obligate the
Administrative Agent to make any Protective Advance on any other occasion. The
Administrative Agent's authorization to make Protective Advances may be
revoked at any time by the Required Lenders. Any such revocation must be in
writing and shall become effective prospectively upon the Administrative
Agent's receipt thereof. At any time that there is sufficient Revolving Excess
Availability and the conditions precedent set forth in Section 4.02 have been
satisfied, the Administrative Agent may request the applicable Revolving
Lenders to make a Revolving Loan DB2/ 48024258.7 84 pursuant to Section
2.01(a) to repay a Protective Advance. At any other time the Administrative
Agent may require the Revolving Lenders to fund their risk participations
described in Section 2.04(b). (b) Upon the making of a Protective Advance by
the Administrative Agent (whether before or after the occurrence of a
Default), each U.S. Tranche Lender (in the case of any Protective Advance made
on behalf of the U.S. Tranche Lenders), or each Foreign Tranche Lender (in the
case of any Protective Advance made on behalf of the Foreign Tranche Lenders),
as applicable, shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably purchased from the Administrative Agent,
without recourse or warranty, an undivided interest and participation in such
Protective Advance in proportion to its Applicable Percentage. From and after
the date, if any, on which any Revolving Lender is required to fund its
participation in any Protective Advance purchased hereunder, the Administrative
Agent shall promptly distribute to such Revolving Lender, such Revolving
Lender's Applicable Percentage of all payments of principal and interest and
all proceeds of Collateral received by the Administrative Agent in respect of
such Protective Advance. Revolving Overadvances and FILO Overadvances. (a) Any
provision of this Agreement to the contrary notwithstanding, at the request of
the Borrower Representative, the Administrative Agent may in its sole
discretion (but with absolutely no obligation), on behalf of the U.S. Tranche
Lenders or the Foreign Tranche Lenders, (i) make Revolving Loans to the
applicable Borrowers in amounts such that the requested Revolving Loans are
not in compliance of the Revolving Exposure Limitations (any such Revolving
Loans made not in compliance of the Revolving Exposure Limitations, to the
extent not in compliance of such limitations, are herein referred to
collectively as "Revolving Overadvances") or (ii) (A) deem the amount of U.S.
Tranche Revolving Loans outstanding to the U.S. Borrowers that are in excess
of the U.S. Excess Availability to be Revolving Overadvances or (B) deem the
amount of Revolving Loans outstanding to the Foreign Borrowers that are in
excess of the Foreign Excess Availability to be Revolving Overadvances;
provided that, no Revolving Overadvance shall result in a Default due to
Borrowers' failure to comply with Section 2.01(a) for so long as such
Revolving Overadvance remains outstanding in accordance with the terms of this
paragraph, but solely with respect to the amount of such Revolving
Overadvance. In addition, Revolving Overadvances may be made even if the
condition precedent set forth in Section 4.02(c) has not been satisfied.
Notwithstanding anything herein to the contrary, (x) Revolving Overadvances
made to the Australian Borrowers shall only be denominated in U.S. Dollars and
(y) Revolving Overadvances shall not be denominated in Australian Dollars. All
Revolving Overadvances to the U.S. Borrowers shall constitute CBFR Borrowings.
All Revolving Overadvances to the U.K. Borrowers and/or the Dutch Borrowers
shall constitute Overnight Rate Borrowings. The making of a Revolving
Overadvance on any one occasion shall not obligate the Administrative Agent to
make any Revolving Overadvance on any other occasion. The authority of the
Administrative Agent to make Revolving Overadvances on behalf of the U.S.
Tranche Lenders shall be limited to an aggregate principal amount of ten
percent (10%) of the aggregate U.S. Tranche Commitments of all U.S. Tranche
Lenders at such time, and the authority of the Administrative Agent to made
Revolving Overadvances on behalf of the Foreign Tranche Lenders shall not
exceed an aggregate principal amount equal to the Dollar Equivalent of ten
percent (10%) of the aggregate Foreign Tranche Commitments of all Foreign
Tranche Lenders at such time. No Revolving Overadvance on behalf of a U.S.
Tranche Lender shall cause such Lender's U.S. Tranche Revolving Exposure to
exceed its U.S. Tranche Commitment, and no Revolving Overadvance on behalf of
a Foreign Tranche Lender shall cause such Lender's Foreign Tranche Revolving
Exposure to exceed its Foreign Tranche Commitment. No Revolving Overadvance
shall cause the Aggregate Combined
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DB2/ 48024258.7 85 Exposure to exceed the Aggregate Combined Commitment. No
Revolving Overadvance may remain outstanding for more than thirty (30) days.
Notwithstanding the foregoing, the Required Revolving Lenders may at any time
revoke the Administrative Agent's authorization to make Revolving
Overadvances. Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent's receipt thereof. (b)
Any provision of this Agreement to the contrary notwithstanding, at the
request of the Borrower Representative, the Administrative Agent may in its
sole discretion (but with absolutely no obligation), on behalf of the FILO
Lenders, (i) make FILO Loans to the applicable U.S. Borrowers in amounts such
that the requested FILO Loans are not in compliance of the FILO Exposure
Limitations (any such FILO Loans made not in compliance of the FILO Exposure
Limitations, to the extent not in compliance of such limitations, are herein
referred to collectively as "FILO Overadvances") or (ii) deem the amount of
FILO Loans outstanding to the U.S. Borrowers that are in excess of FILO Excess
Availability to be FILO Overadvances; provided that, no FILO Overadvance shall
result in a Default due to Borrowers' failure to comply with Section 2.01(b)
for so long as such FILO Overadvance remains outstanding in accordance with
the terms of this paragraph, but solely with respect to the amount of such
FILO Overadvance. In addition, FILO Overadvances may be made even if the
condition precedent set forth in Section 4.02(d) has not been satisfied. All
FILO Overadvances to the U.S. Borrowers shall constitute CBFR Borrowings. The
making of a FILO Overadvance on any one occasion shall not obligate the
Administrative Agent to make any FILO Overadvance on any other occasion. The
authority of the Administrative Agent to make FILO Overadvances on behalf of
the FILO Lenders shall be limited to an aggregate principal amount of ten
percent (10%) of the aggregate FILO Commitments of all FILO Lenders at such
time. No FILO Overadvance on behalf of a FILO Lender shall cause such FILO
Lender's FILO Exposure to exceed its FILO Commitment. No FILO Overadvance
shall cause the Aggregate Combined Exposure to exceed the Aggregate Combined
Commitment. No FILO Overadvance may remain outstanding for more than thirty
(30) days. Notwithstanding the foregoing, the Required FILO Lenders may at any
time revoke the Administrative Agent's authorization to make FILO
Overadvances. Any such revocation must be in writing and shall become
effective prospectively upon the Administrative Agent's receipt thereof. (c)
Upon the making of a Revolving Overadvance (whether before or after the
occurrence of a Default), each U.S. Tranche Lender (in the case of any
Revolving Overadvance made on behalf of the U.S. Tranche Lenders), and each
Foreign Tranche Lender (in the case of any Revolving Overadvance made on
behalf of the Foreign Tranche Lenders) shall be deemed, without further action
by any party hereto, to have unconditionally and irrevocably purchased from
the Administrative Agent without recourse or warranty, an undivided interest
and participation in such Revolving Overadvance in proportion to its
Applicable Percentage of the U.S. Tranche Commitments and/or the Foreign
Tranche Commitments, as applicable. The Administrative Agent may, at any time,
require the Revolving Lenders to fund their participations. From and after the
date, if any, on which any Revolving Lender is required to fund its
participation in any Revolving Overadvance purchased hereunder, the
Administrative Agent shall promptly distribute to such Revolving Lender, such
Revolving Lender's Applicable Percentage of all payments of principal and
interest and all proceeds of Collateral received by the Administrative Agent
in respect of such Revolving Overadvance. (d) Upon the making of a FILO
Overadvance (whether before or after the occurrence of a Default), each FILO
Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Administrative Agent
without recourse or warranty, an undivided interest and participation in such
FILO Overadvance in proportion to its Applicable Percentage of the FILO
Commitments. The Administrative Agent may, at any time, DB2/ 48024258.7 86
require the FILO Lenders to fund their participations. From and after the
date, if any, on which any FILO Lender is required to fund its participation
in any FILO Overadvance purchased hereunder, the Administrative Agent shall
promptly distribute to such FILO Lender, such FILO Lender's Applicable
Percentage of all payments of principal and interest and all proceeds of
Collateral received by the Administrative Agent in respect of such FILO
Overadvance. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower Representative may request the
issuance of Letters of Credit for its own account or for the account of
another Borrower denominated in an Available Currency as the applicant thereof
for the support of its or its Restricted Subsidiaries' obligations, in a form
reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time during the Revolving Availability
Period, and the Issuing Bank may, but shall have no obligation, to issue such
requested Letters of Credit pursuant to this Agreement. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any Letter of Credit Agreement, the terms and conditions of
this Agreement shall control. Notwithstanding anything herein to the contrary,
the applicable Issuing Bank shall have no obligation hereunder to issue, and
shall not issue, any Letter of Credit (i) the proceeds of which would be made
available to any Person (A) to fund any activity or business of or with any
Sanctioned Person, or in any country or territory that, at the time of such
funding, is the subject of any Sanctions or (B) in any manner that would
result in a violation of any Sanctions by any party to this Agreement, (ii) if
any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain such Issuing Bank from
issuing such Letter of Credit, or any Requirement of Law relating to such
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the issuance
of letters of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Bank with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such Issuing Bank is
not otherwise compensated hereunder) not in effect on the Effective Date, or
shall impose upon such Issuing Bank any unreimbursed loss, cost or expense
which was not applicable on the Effective Date and which such Issuing Bank in
good faith deems material to it, or (iii) if the issuance of such Letter of
Credit would violate one or more policies of such Issuing Bank applicable to
letters of credit generally; provided that, notwithstanding anything herein to
the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection
Act and all requests, rules, guidelines, requirements or directives thereunder
or issued in connection therewith or in the implementation thereof, and (y)
all requests, rules, guidelines, requirements or directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign
regulatory authorities, in each case pursuant to Basel III, shall in each case
be deemed not to be in effect on the Effective Date for purposes of clause
(ii) above, regardless of the date enacted, adopted, issued or implemented.
All Existing Letters of Credit shall be deemed to have been issued pursuant
hereto, and from and after the Effective Date shall be subject to and governed
by the terms and conditions hereof. (b) Notice of Issuance, Amendment,
Renewal, Extension; Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower Representative shall deliver by hand or facsimile (or
transmit through an Electronic System, if arrangements for doing so have been
approved by the applicable Issuing Bank) to the applicable Issuing Bank and
the Administrative Agent (reasonably in advance of, but in any event no less
than prior to (x) in the case of any Letter of Credit issued for the account
of any Borrower other than an Australian Borrower, 9:00 a.m., Local Time, at
least three (3)
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DB2/ 48024258.7 87 Business Days prior to the requested date of issuance,
amendment, renewal or extension or (y) in the case of any Letter of Credit
issued for the account of any Australian Borrower, 9:00 a.m., Local Time, at
least four (4) Business Days prior to the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit (which Letter of Credit shall be in a form reasonably acceptable to
the Administrative Agent and the applicable Issuing Bank), or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the name
of the applicable Borrower, whether such Letter of Credit is to constitute a
U.S. Tranche Letter of Credit or a Foreign Tranche Letter of Credit, the date
of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with
clause (c) of this Section), the amount of such Letter of Credit, the
Available Currency applicable to such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. Each U.S. Tranche
Letter of Credit shall be issued in U.S. Dollars for the account of a U.S.
Borrower. Each Foreign Tranche Letter of Credit shall be issued in any
Available Currency for the account of a Foreign Borrower; provided that (x)
Foreign Tranche Letters of Credit issued for the account of any Foreign
Borrower other than an Australian Borrower shall not be issued in Australian
Dollars and (y) Foreign Tranche Letters of Credit issued for the account of
any Australian Borrower shall only be issued in U.S. Dollars and Australian
Dollars. In addition, as a condition to any such Letter of Credit issuance,
the applicable Borrower shall have entered into a continuing agreement (or
other letter of credit agreement) for the issuance of letters of credit and/or
shall submit a letter of credit application in each case, as required by the
applicable Issuing Bank and using such Issuing Bank's standard form (each, a
"Letter of Credit Agreement"). A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrowers shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension, the Revolving Exposure Limitations shall be satisfied. (c)
Expiration Date. Each Letter of Credit (other than the Existing Letters of
Credit) shall expire (or be subject to termination or non-renewal by notice
from the Issuing Bank to the beneficiary thereof) at or prior to the close of
business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, including, without limitation, any automatic renewal provision, one
year after such renewal or extension) and (ii) the date that is five (5)
Business Days prior to the Maturity Date; provided that any Letter of Credit
with a one-year tenor may provide for the renewal thereof for additional one-
year periods (which shall in no event extend beyond the date referred to in
clause (ii) above). Borrowers understand and agree that Issuing Bank is not
required to extend the expiration date of any Letter of Credit for any reason.
With respect to any Letter of Credit containing an "automatic amendment" to
extend the expiration date of such Letter of Credit, the applicable Issuing
Bank, in its sole and absolute discretion, may give notice of nonrenewal of
such Letter of Credit and, if the applicable Borrower does not at any time
want the then current expiration date of such Letter of Credit to be extended,
such Borrower will so notify the Administrative Agent and the applicable
Issuing Bank at least 30 calendar days (or such shorter period as the
Administrative Agent and such Issuing Bank shall agree) before such Issuing
Bank is required to notify the beneficiary of such Letter of Credit or any
advising bank of such non-extension pursuant to the terms of such Letter of
Credit. (d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each U.S. Tranche Lender with respect to a U.S.
Tranche Letter of Credit, and to each Foreign Tranche Lender with respect to a
Foreign Tranche Letter of Credit, and each applicable Revolving Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Applicable Percentage DB2/ 48024258.7 88 of the
aggregate amount available to be drawn under such U.S. Tranche Letter of
Credit and/or Foreign Tranche Letter of Credit, as applicable. In
consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the applicable Issuing Bank, such Revolving Lender's
Applicable Percentage of each LC Disbursement (in the same currency as such LC
Disbursement) made by such Issuing Bank and not reimbursed by the applicable
Borrowers on the date due as provided in clause (e) of this Section, or of any
reimbursement payment required to be refunded to the applicable Borrowers for
any reason. Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of U.S.
Tranche Letters of Credit and/or Foreign Tranche Letters of Credit, as
applicable, is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction
or termination of the Revolving Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, (x) each U.S. Borrower, in the case of any
Letter of Credit issued at the request of or on behalf of the U.S. Borrowers,
jointly and severally agrees and (y) each Foreign Borrower, in the case of any
Letter of Credit issued at the request of or on behalf of the Foreign
Borrowers, jointly and severally agrees, to reimburse such LC Disbursement in
the same currency as such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Local
Time, on the next Business Day immediately following the day that the Borrower
Representative receives notice of such LC Disbursement; provided that the
Borrower Representative may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 (1) that such payment be
financed with, to the extent such LC Disbursement was made in U.S. Dollars
under the U.S. Tranche, a CBFR Borrowing in an equivalent amount and, to the
extent so financed, the applicable Borrowers' obligation to make such payment
shall be discharged and replaced by the resulting CBFR Borrowing, (2) that
such payment be financed with, to the extent such LC Disbursement was made in
an Available Currency under the Foreign Tranche (other than any such LC
Disbursement made in Australian Dollars on behalf of the Australian
Borrowers), an Overnight Rate Borrowing in an equivalent amount and, to the
extent so financed, the applicable Borrowers' obligation to make such payment
shall be discharged and replaced by the resulting Overnight Rate Borrowing and
(3) that such payment be financed with, to the extent such LC Disbursement was
made in Australian Dollars on behalf of the Australian Borrowers under the
Foreign Tranche, a Term Benchmark Borrowing in an equivalent amount and, to
the extent so financed, the applicable Borrowers' obligation to make such
payment shall be discharged and replaced by the resulting Term Benchmark
Borrowing. If the applicable Borrowers fail to make such payment when due, the
Administrative Agent shall notify each U.S. Tranche Lender (in the case of a
U.S. Tranche Letter of Credit), or each Foreign Tranche Lender (in the case of
a Foreign Tranche Letter of Credit), in each case of the applicable LC
Disbursement, the payment then due from the applicable Borrowers in respect
thereof and such Revolving Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each applicable Revolving Lender shall pay
to the Administrative Agent its Applicable Percentage of the payment then due
from the applicable Borrowers, in the same manner as provided in Section 2.07
with respect to Revolving Loans made by such Revolving Lender (and Section
2.07 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Lenders), and the Administrative Agent shall promptly pay to the
applicable Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
applicable Borrowers pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the applicable Issuing Bank or, to the extent
that Revolving Lenders have made payments pursuant to this paragraph to
reimburse the applicable Issuing Bank, then to such
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DB2/ 48024258.7 89 Revolving Lenders and the applicable Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this
paragraph to reimburse the applicable Issuing Bank for any LC Disbursement
(other than the funding of Revolving Loans as contemplated above) shall not
constitute a Revolving Loan and shall not relieve the Borrowers of their
obligation to reimburse such LC Disbursement. (f) Obligations Absolute. The
Borrowers' joint and several obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit, any Letter
of Credit Agreement or this Agreement, or any term or provision therein or
herein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) any payment by the
applicable Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit, or (iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrowers' obligations hereunder. None of the
Administrative Agent, the Revolving Lenders, the Issuing Banks or any of their
Related Parties shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice
or other communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes
beyond the control of the applicable Issuing Bank; provided that the foregoing
shall not be construed to excuse the applicable Issuing Bank from liability to
any Borrower to the extent of any direct damages (as opposed to special,
indirect, consequential or punitive damages, claims in respect of which are
hereby waived by each Borrower to the extent permitted by applicable law)
suffered by such Borrower that are caused by the applicable Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the applicable Issuing Bank (as finally determined
by a court of competent jurisdiction), the applicable Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit. Without limiting anything in this
Section 2.06, Borrower Representative will examine a copy of each Letter of
Credit and any other documents sent by the applicable Issuing Bank in
connection therewith and shall promptly notify Issuing Bank (not later than
three (3) Business Days following Borrowers' receipt of documents from Issuing
Bank) of any non- compliance with Borrowers' instructions and of any
discrepancy in any document under any presentment or other irregularity. (g)
Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand
for payment under a Letter of Credit. The applicable Issuing Bank shall
promptly notify the Administrative Agent and the applicable Borrower by
telephone (confirmed by email or fax or through Electronic Systems) DB2/
48024258.7 90 of such demand for payment and whether such Issuing Bank has
made or will make an LC Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Loan Parties of
their obligation to reimburse the applicable Issuing Bank and the Revolving
Lenders with respect to any such LC Disbursement. (h) Interim Interest. If an
Issuing Bank shall make any LC Disbursement, then, unless the applicable
Borrower shall reimburse such LC Disbursement in full on the date such LC
Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that such Borrower reimburses such LC Disbursement, at the rate per
annum then applicable to (i) if such Borrower is a U.S. Borrower, CBFR Loans
that are Revolving Loans and (ii) if such Borrower is a Foreign Borrower under
the Foreign Tranche, Overnight Rate Loans that are Revolving Loans, in each
case such interest shall be payable on the date when such reimbursement is
due; provided that, if any Borrower fails to reimburse such LC Disbursement
when due pursuant to clause (e) of this Section, then Section 2.13(k) shall
apply. Interest accrued pursuant to this paragraph shall be for the account of
the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Revolving Lender pursuant to clause (e) of this Section
to reimburse such Issuing Bank shall be for the account of such Revolving
Lender to the extent of such payment. (i) Replacement and Resignation of an
Issuing Bank. (i) Any Issuing Bank may be replaced at any time by written
agreement among the Borrower Representative, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Revolving Lenders of any such replacement of the Issuing
Bank. At the time any such replacement shall become effective, the Borrowers
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (A) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank being replaced under this Agreement with
respect to Letters of Credit to be issued thereafter and (B) references herein
to the term "Issuing Bank" shall be deemed to refer to such successor or to
any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit then outstanding and issued by it
prior to such replacement, but shall not be required to issue additional
Letters of Credit. (ii) Subject to the appointment and acceptance of a
successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at any
time upon thirty (30) days' prior written notice to the Administrative Agent,
the Borrower Representative and the Revolving Lenders, in which case, such
Issuing Bank shall be replaced in accordance with Section 2.06(i) above. (j)
Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day following the date that the Borrower Representative
receives written notice from the Administrative Agent or the Required
Revolving Lenders demanding the deposit of cash collateral pursuant to this
paragraph, there shall be deposited in one or more accounts with the
Administrative Agent (collectively, the "LC Collateral Account"), (i) by the
U.S. Borrowers in the name of the Administrative Agent and for the benefit of
U.S. Tranche Lenders, an amount in cash equal to 103% of the U.S. Tranche LC
Exposure as of such date plus accrued and unpaid interest thereon and (ii) by
the Foreign Borrowers in the name of the Administrative Agent and for the
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DB2/ 48024258.7 91 benefit of Foreign Tranche Lenders, an amount in cash equal
to 103% of the Dollar Equivalent amount of the Foreign Tranche LC Exposure as
of such date plus accrued and unpaid interest thereon; provided that (i) the
portions of such amount attributable to undrawn Foreign Currency Letters of
Credit or LC Disbursements in a Foreign Currency that any Borrower is not late
in reimbursing shall be deposited in the applicable Foreign Currencies in an
amount equal to 103% of the actual amount of such undrawn Letters of Credit
and LC Disbursements and (ii) the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence and during the continuance of any Event of Default with respect to
any Borrower described in clause (h) or (i) of Article VII. For the purposes
of this paragraph, the Foreign Currency LC Exposure shall be calculated using
the applicable Spot Selling Rate on the date notice demanding cash
collateralization is delivered to the Borrower Representative. Each applicable
Borrower shall also deposit cash collateral pursuant to this paragraph as and
to the extent required by Section 2.10(b), 2.11(b) or 2.20. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the applicable Secured Obligations. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over the LC Collateral Account. Each Borrower hereby grants the
Administrative Agent a security interest in its respective LC Collateral
Account and all money or other assets on deposit therein or credited thereto.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the applicable Borrowers' risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in the LC Collateral Account. Moneys in the
applicable LC Collateral Account shall be applied by the Administrative Agent
to reimburse the applicable Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the applicable Borrower(s)
for the LC Exposure at such time or, if the maturity of any of the Loans has
been accelerated, be applied to satisfy other applicable Secured Obligations.
If any Borrower is required to provide an amount of cash collateral hereunder
as a result of the occurrence and continuance of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to such
Borrower within three (3) Business Days after all such Events of Default have
been cured or waived as confirmed in writing by the Administrative Agent. The
Administrative Agent shall return to the applicable Borrowers cash collateral
required by Section 2.11(b) within three (3) Business Days following the date
that such cash collateral is no longer required thereunder. (k) Issuing Bank
Reports to the Administrative Agent. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall, in addition to its notification
obligations set forth elsewhere in this Section, report in writing to the
Administrative Agent (i) periodic activity (for such period or recurrent
periods as shall be requested by the Administrative Agent) in respect of
Letters of Credit issued by such Issuing Bank, including all issuances,
extensions, amendments and renewals (provided that none of the foregoing shall
apply to any renewal of a Letter of Credit pursuant to an automatic renewal
provision set forth in such Letter of Credit when it is initially issued), all
expirations and cancelations and all disbursements and reimbursements, (ii)
reasonably prior to the time that such Issuing Bank issues, amends, renews or
extends any Letter of Credit, the date of such issuance, amendment, renewal or
extension, and the stated amount of the Letters of Credit issued, amended,
renewed or extended by it and outstanding after giving effect to such
issuance, amendment, renewal or extension (and whether the amounts thereof
shall have changed) (provided that none of the foregoing shall apply to any
renewal of a Letter of Credit pursuant to an automatic renewal provision set
forth in such Letter of Credit when it is initially issued), (iii) on each
Business Day on which such Issuing Bank makes any LC Disbursement, the date
and Dollar Equivalent amount of such LC Disbursement, (iv) on any Business Day
on which any Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such DB2/ 48024258.7 92 day, the date of
such failure and the amount of such LC Disbursement, and (v) on any other
Business Day, such other information as the Administrative Agent shall
reasonably request as to the Letters of Credit issued by such Issuing Bank.
All reporting from each Issuing Bank with respect to any Letter of Credit
shall indicate whether each Letter of Credit constitutes a U.S. Tranche Letter
of Credit or a Foreign Tranche Letter of Credit. (l) LC Exposure Determination.
For all purposes of this Agreement, the amount of a Letter of Credit that, by
its terms or the terms of any document related thereto, provides for one or
more automatic increases in the stated amount thereof shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at the
time of determination. (m) Letters of Credit Issued for Account of
Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding
hereunder supports any obligations of, or is for the account of, a Restricted
Subsidiary, or states that a Restricted Subsidiary is the "account party,"
"applicant," "customer," "instructing party," or the like of or for such
Letter of Credit, and without derogating from any rights of any Issuing Bank
(whether arising by contract, at law, in equity or otherwise) against such
Restricted Subsidiary in respect of such Letter of Credit, the Borrowers (i)
shall reimburse, indemnify and compensate each Issuing Bank hereunder for, in
the case of the U.S. Borrowers, such U.S. Tranche Letter of Credit (including
to reimburse any and all drawings thereunder), and in the case of the Foreign
Borrowers, such Foreign Tranche Letter of Credit (including to reimburse any
and all drawings thereunder), in each case as if such Letter of Credit had
been issued solely for the account of such Borrower and (ii) irrevocably waive
any and all defenses that might otherwise be available to it as a guarantor or
surety of any or all of the obligations of such Restricted Subsidiary in
respect of such Letter of Credit. Each Borrower hereby acknowledges that the
issuance of such Letters of Credit for its Restricted Subsidiaries inures to
the benefit of the Borrowers, and that each Borrower's business derives
substantial benefits from the businesses of such Restricted Subsidiaries.
Funding of Borrowings. Each Lender shall make each Loan to be made by such
Lender hereunder on the proposed date thereof solely by wire transfer of
immediately available funds by 2:00 p.m., Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders in an amount equal to such Lender's Applicable Percentage. The
Administrative Agent will make such Loans available to the relevant Borrowers
by promptly crediting the funds so received in the aforesaid account of the
Administrative Agent to the applicable Funding Account; provided that (i)
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to
the applicable Issuing Bank, (ii) Loans made to finance the reimbursement of a
Protective Advance, a Revolving Overadvance or a FILO Overadvance shall be
retained by the Administrative Agent, (iii) FILO Loans that are Reallocation
FILO Loans shall be applied to prepay Revolving Loans as provided in Section
2.11(b)(ii) and (iv) Revolving Loans that are Reallocation Revolving Loans
shall be applied to prepay FILO Loans as provided in Section 2.11(b)(iii). (b)
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with clause (a) of this Section and may, in
reliance upon such assumption, make available to the applicable Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and such Borrowers each severally agree to pay to the
Administrative Agent forthwith on demand such corresponding
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DB2/ 48024258.7 93 amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the applicable Overnight Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (ii) in the case of the Borrowers, (A) if
such amount is a Borrowing made to the U.S. Borrowers in U.S. Dollars, the
interest rate applicable to CBFR Loans, or in the case of Foreign Currencies,
in accordance with such market practice, in each case, as applicable (B) if
such amount is a Borrowing made to the U.S. Borrowers in a Foreign Currency,
the interest rate applicable to Overnight Rate Loans, (C) if such amount is a
Borrowing made to the U.K. Borrowers, the interest rate applicable to
Overnight Rate Loans, (D) if such amount is a Borrowing made to the Dutch
Borrowers, the interest rate applicable to Overnight Rate Loans and (E) if
such amount is a Borrowing made to the Australian Borrowers, the interest rate
applicable to Overnight Rate Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing, provided, that any interest received from a
Borrower by the Administrative Agent during the period beginning when
Administrative Agent funded the Borrowing until such Lender pays such amount
shall be solely for the account of the Administrative Agent. Interest
Elections. (a) Each Borrowing initially shall be of the Type and Available
Currency specified in the applicable Borrowing Request and, in the case of a
Term Benchmark Borrowing, shall have an initial Interest Period as specified
in such Borrowing Request (or, if not specified therein, an Interest Period of
one (1) month's duration). Thereafter, the Borrower Representative may elect
to convert such Borrowing to a different Type or to continue such Borrowing
and, in the case of a Term Benchmark Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower Representative may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among
the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Revolving Overadvances, FILO Overadvances or
Protective Advances, which may not be converted or continued. Notwithstanding
anything to the contrary herein, this Section shall not be construed to permit
any Borrower, or the Borrower Representative on its behalf, to (i) change the
currency of any Borrowing, (ii) elect an Interest Period that does not comply
with Section 2.02, or (iii) convert any Borrowing to a Borrowing of a Type not
available under such Borrowing or to such Borrower as otherwise set forth
herein. (b) To make an election pursuant to this Section, the Borrower
Representative shall notify the Administrative Agent of such election either
in writing (delivered by hand, email or fax) by delivering an Interest
Election Request signed by a Responsible Officer of the Borrower Representative
or through Electronic System if arrangements for doing so have been approved
by the Administrative Agent (or if an Extenuating Circumstance shall exist, by
telephone) by the time that a Borrowing Request would be required under
Section 2.03 if the Borrower Representative were requesting a Borrowing of the
Type resulting from such election to be made on the effective date of such
election. Each such Interest Election Request shall be irrevocable (unless the
Administrative Agent otherwise agrees) and each such telephonic Interest
Election Request, if permitted, shall be confirmed immediately upon the
cessation of the Extenuating Circumstance by hand delivery, Electronic System
or facsimile to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by a
Responsible Officer of the Borrower Representative. DB2/ 48024258.7 94 (c)
Each written (or if permitted, telephonic) Interest Election Request
(including requests submitted through an Electronic System) shall specify the
following information in compliance with Section 2.02: (i) the Available
Currency, the name of the applicable Borrower and the Borrowing to which such
Interest Election Request applies and, if different options are being elected
with respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day; (iii) whether
the resulting Borrowing, (A) if in U.S. Dollars to a U.S. Borrower (other than
under the Foreign Tranche), is to be a CBFR Borrowing or a Term Benchmark
Borrowing, (B) if in U.S. Dollars to a U.S. Borrower under the Foreign
Tranche, is to be a Term Benchmark Borrowing or Overnight Rate Borrowing (C)
if in any Foreign Currency (other than Australian Dollars) to a U.S. Borrower
is to be a Term Benchmark Borrowing, RFR Borrowing or Overnight Rate
Borrowing, (D) if to a U.K. Borrower, is to be a Term Benchmark Borrowing, RFR
Borrowing denominated in a Foreign Currency (other than Australian Dollars) or
Overnight Rate Borrowing, (E) if to a Dutch Borrower, is to be a Term
Benchmark Borrowing, RFR Borrowing denominated in a Foreign Currency (other
than Australian Dollars) or Overnight Rate Borrowing or (F) if to an
Australian Borrower, is to be a Term Benchmark Borrowing; and (iv) if the
resulting Borrowing is a Term Benchmark Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest Period". If any
such Interest Election Request requests a Term Benchmark Borrowing but does
not specify an Interest Period, then the Borrowers shall be deemed to have
selected an Interest Period of one month's duration. Notwithstanding anything
to the contrary contained in this Section, this Section shall not be construed
to permit any Borrower, or the Borrower Representative on its behalf, to
change the currency of any Borrowing. (d) Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender
of the details thereof and of such Lender's portion of each resulting
Borrowing. (e) If the Borrower Representative fails to deliver a timely
Interest Election Request with respect to a Term Benchmark Borrowing in an
Available Currency prior to the end of the Interest Period applicable thereto,
then, unless such Term Benchmark Borrowing is repaid as provided herein, at
the end of such Interest Period (i) in the case of a Borrowing under the U.S.
Tranche by the U.S. Borrowers denominated in Dollars, such Borrowing shall be
converted to a CBFR Borrowing, (ii) in the case of a Borrowing by the U.S.
Borrowers under the Foreign Tranche denominated in any Available Currency,
such Borrowing shall automatically continue as a Term Benchmark Borrowing in
the same Available Currency with an Interest Period of one (1) month, (iii) in
the case of a Borrowing by a U.K. Borrower, such Borrowing shall continue as a
Term Benchmark Borrowing in the same Available Currency with an Interest
Period of one (1) month, (iv) in the case of a Borrowing by a Dutch Borrower,
such Borrowing shall continue as a Term Benchmark Borrowing in the same
Available Currency with an Interest Period of one (1) month,
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DB2/ 48024258.7 95 (v) in the case of a Borrowing by an Australian Borrower,
such Borrowing shall continue as a Term Benchmark Borrowing in the same
Available Currency with an Interest Period of one (1) month, and (vi) in the
case of a FILO Borrowing by the U.S. Borrowers, such Borrowing shall be
converted to a CBFR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower
Representative, then, so long as an Event of Default is continuing (1) no
outstanding Revolving Borrowing denominated in U.S. Dollars and made to a U.S.
Borrower may be converted to or continued as a Term Benchmark Borrowing, (2)
unless repaid, each Term Benchmark Borrowing made to the U.S. Borrowers under
the U.S. Tranche denominated in Dollars shall be converted to a CBFR Borrowing
at the end of the Interest Period applicable thereto, (3) unless repaid, each
Term Benchmark Borrowing under the Foreign Tranche denominated in any
Available Currency and made to a U.S. Borrower shall automatically be
continued as a Term Benchmark Borrowing in the same Available Currency with an
Interest Period of (1) month (or such other period determined by the
Administrative Agent in its sole discretion), (4) unless repaid, each Term
Benchmark Borrowing made to a U.K. Borrower or a Dutch Borrower shall bear
interest at the Central Bank Rate for the applicable Available Currency plus
the RFR Spread, (5) unless repaid, each Term Benchmark Borrowing made to an
Australian Borrower shall bear interest at the Central Bank Rate for the
applicable Available Currency plus the RFR Spread, (6) no outstanding FILO
Borrowing made to a U.S. Borrower may be converted to or continued as a Term
Benchmark Borrowing and (7) unless repaid, each Term Benchmark Borrowing
consisting of a FILO Loan made to a U.S. Borrower denominated in U.S. Dollars
shall be converted to a CBFR Borrowing at the end of the Interest Period
applicable thereto. Termination and Reduction of Revolving Commitments and
FILO Commitments; Increase in Revolving Commitments. (a) Termination and
Reduction of Revolving Commitments; Increase in Revolving Commitments. (i)
Unless previously terminated, the Revolving Commitments shall terminate on the
Maturity Date. (ii) The Borrowers may at any time terminate the Revolving
Commitments upon the Payment in Full of the Secured Obligations and the
concurrent termination of the FILO Commitments. (iii) The Borrowers may from
time to time reduce the Revolving Commitments; provided that (A) each
reduction of the Revolving Commitments (applied to the U.S. Tranche
Commitments and/or the Foreign Tranche Commitments as designated by the
Borrower Representative) shall be in a Dollar Equivalent amount that is an
integral multiple of $5,000,000 and not less than $5,000,000, (B) the
Borrowers shall not terminate or reduce the Revolving Commitments (or the U.S.
Tranche Commitments or the Foreign Tranche Commitments) if, after giving
effect to any concurrent prepayment of the Revolving Loans in accordance with
Section 2.11, the Revolving Exposure Limitations would not be satisfied and
(C) the Borrowers shall not terminate or reduce the Revolving Commitments (or
the U.S. Tranche Commitments or the Foreign Tranche Commitments) at any time
the FILO Commitments are greater than zero. (iv) The Borrower Representative
shall notify the Administrative Agent of any election to terminate or reduce
the Revolving Commitments under clause (a)(ii) or (a)(iii) of this Section at
least three (3) Business Days prior to the effective date of such termination
DB2/ 48024258.7 96 or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower Representative pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitments delivered
by the Borrower Representative may state that such notice is conditioned upon
the effectiveness of other credit facilities or any other transaction, in
which case such notice may be revoked by the Borrower Representative (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of the
Revolving Commitments shall be permanent. Each reduction of the Revolving
Commitments shall be made ratably among the Revolving Lenders in accordance
with their respective Revolving Commitments. (v) The Borrowers shall have the
right to increase the Revolving Commitments by obtaining additional Revolving
Commitments (with a corresponding increase to the U.S. Tranche Commitments
and/or the Foreign Tranche Commitments, as designated by the Borrower
Representative) (or, solely to the extent set forth in clause (a)(viii) below,
provide commitments under a new facility consisting a Last-Out Incremental
Tranche (as defined below)) (each, an "Incremental Commitment"), either from
one or more of the Revolving Lenders or another lending institution (each, an
"Incremental Lender") provided that (A) any such request for an increase shall
be in a minimum amount of $25,000,000, (B) the Borrower Representative, on
behalf of the Borrowers, may make a maximum of ten (10) such requests, (C)
after giving effect thereto, the sum of the total of the Incremental
Commitments following the Third Amendment Effective Date does not exceed
$750,000,000, (D) the Administrative Agent and the Issuing Banks have approved
the identity of any such new Incremental Lender, such approvals not to be
unreasonably withheld, (E) any such new Incremental Lender assumes all of the
rights and obligations of a "Lender" and a "Revolving Lender" hereunder, (F)
the procedure described in Section 2.09(a)(vii) has been satisfied, (G) the
structuring, upfront and arranger fees and other similar fees in respect of
such Incremental Commitment and the extension of credit thereunder shall be
determined by the Borrowers, the Administrative Agent, the Issuing Banks, and
the applicable Incremental Lenders, (H) except as set forth in clause (G)
above or with respect to any Last-Out Incremental Tranche under clause
(a)(viii) below, any Incremental Commitment shall be on the same terms and
pursuant to the same documentation applicable to the applicable existing
Revolving Commitments hereunder and (I) any Incremental Commitment may
establish a Canadian facility where one or more Canadian Loan Parties may
become borrowers pursuant to (I) customary restrictions and limitations
required by local law, (II) an amendment to this Agreement (and delivery of
all other additional Loan Documents) required to establish and reflect such
Canadian facility, and (III) as agreed between the Borrower Representative and
the Administrative Agent. Nothing contained in this Section 2.09(a) shall
constitute, or otherwise be deemed to be, a commitment on the part of any
Lender to increase its Revolving Commitment hereunder at any time. (vi) Any
amendment hereto for such an increase or addition shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower
Representative, and shall only require the written signatures of the
Administrative Agent, the Issuing Banks, the Borrowers and each Incremental
Lender being added or increasing its Revolving Commitment. Subject to
customary "SunGuard" or other "certain funds" conditionality provisions to the
extent the proceeds thereof are used to finance Acquisitions or similar
Investments in each case permitted hereunder (but subject to clause (a)(v)(H)
above), as a condition precedent to such an increase or addition, the
Borrowers shall deliver
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DB2/ 48024258.7 97 to the Administrative Agent (A) a certificate of each Loan
Party signed by an authorized officer of such Loan Party (I) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting
to such increase, and (II) in the case of the Borrowers, certifying that,
before and after giving effect to such increase or addition, (1) the
representations and warranties contained in Article III and the other Loan
Documents are true and correct in all material respects (it being understood
and agreed that any representation or warranty which by its terms is made as
of a specified date shall be required to be correct and in all material
respects only as of such specified date, and that any representation or
warranty which is subject to any materiality qualifier shall be required to be
true and correct in all respects), and (2) no Event of Default exists or would
result therefrom, and (B) customary legal opinions, in each case to the extent
requested by the Administrative Agent. (vii) On the effective date of any such
increase or addition, (A) any Incremental Lender increasing (or, in the case
of any newly added Incremental Lender, extending) its U.S. Tranche Commitment
and/or Foreign Tranche Commitment, as applicable, shall make available to the
Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Lenders
that have a U.S. Tranche Commitment and/or Foreign Tranche Commitment, as
applicable, as being required in order to cause, after giving effect to such
increase or addition and the use of such amounts to make payments to such
other Revolving Lenders, each such Revolving Lender's portion of the
outstanding U.S. Tranche Revolving Loans or Foreign Tranche Revolving Loans,
as applicable, of all the Revolving Lenders to equal its revised Applicable
Percentage of such outstanding U.S. Tranche Revolving Loans or Foreign Tranche
Revolving Loans, as applicable, and the Administrative Agent shall make such
other adjustments among the Revolving Lenders with respect to the U.S. Tranche
Revolving Loans or Foreign Tranche Revolving Loans, as applicable, then
outstanding and amounts of principal, interest, commitment fees and other
amounts paid or payable with respect thereto as shall be necessary, in the
opinion of the Administrative Agent, in order to effect such reallocation and
(B) the applicable Borrowers shall be deemed to have repaid and reborrowed all
outstanding U.S. Tranche Revolving Loans or Foreign Tranche Revolving Loans,
as applicable, as of the date of any increase (or addition) in the U.S.
Tranche Commitment and/or the Foreign Tranche Commitment, as applicable (with
such reborrowing to consist of the Types of Revolving Loans, with related
Interest Periods if applicable, specified in a notice delivered by the
Borrower Representative, in accordance with the requirements of Section 2.03).
The deemed payments made pursuant to clause (B) of the immediately preceding
sentence shall be accompanied by payment of all accrued interest on the amount
prepaid and, in respect of each Term Benchmark Loan, shall be subject to
indemnification by the Borrowers pursuant to the provisions of Section 2.16 if
the deemed payment occurs other than on the last day of the related Interest
Periods. Within a reasonable time after the effective date of any increase or
addition, the Administrative Agent shall, and is hereby authorized and
directed to, revise the Commitment Schedule to reflect such increase or
addition and shall distribute such revised Commitment Schedule to each of the
Lenders and the Borrower Representative, whereupon such revised Commitment
Schedule shall replace the old Commitment Schedule and become part of this
Agreement. (viii) Any Incremental Commitment may be in the form of a separate
"last-out" tranche (the "Last-Out Incremental Tranche") with interest rate
margins, rate floors, upfront fees, funding discounts and original issue
discounts and advance rates, in each case to be agreed upon (which, for the
avoidance of doubt, shall not require any adjustment to DB2/ 48024258.7 98 the
Applicable Rate or other Loans) among the Borrowers, the Administrative Agent
and the Incremental Lenders providing the Last-Out Incremental Tranche so long
as (A) any loans and related obligations in respect of the Last-Out
Incremental Tranche are not guaranteed by any Person other than the Loan
Guarantors and are not secured by any assets other than Collateral; (B) as
between (I) the Revolving Loans (other than the Last Out Incremental Tranche),
(ii) the FILO Loans and (III) the Last-Out Incremental Tranche, all proceeds
from the liquidation or other realization of the Collateral or application of
funds under Section 2.18(b) shall be applied, first to obligations owing
under, or with respect to, the Revolving Loans (other than the Last-Out
Incremental Tranche), second to obligations owing under, or with respect to,
the FILO Loans and third to the Last-Out Incremental Tranche; (C) the
Borrowers may not prepay Revolving Loans under the Last-Out Incremental
Tranche or terminate or reduce the commitments in respect thereof at any time
that (x) other Revolving Loans and/or amounts owed in respect of Letters of
Credit (unless Cash Collateralized or otherwise provided for in a manner
reasonably satisfactory to the Administrative Agent) or (y) FILO Loans are
outstanding; (D) the Required Lenders shall exercise control of remedies in
respect of the Collateral; (E) no changes affecting the priority status of the
Revolving Loans (other than the Last-Out Incremental Tranche) and the FILO
Loans vis-a-vis the Last-Out Incremental Tranche may be made without the
consent of each of the Lenders (other than the Lenders under Last-Out
Incremental Tranche), (F) the final maturity of any Last-Out Incremental
Tranche shall not occur, and no Last-Out Incremental Tranche shall require
mandatory commitment reductions prior to, the Maturity Date at such time and
(G) except as otherwise set forth in this clause (a)(viii), the terms of any
Last-Out Incremental Tranche are reasonably satisfactory to the Administrative
Agent and the Issuing Banks. (ix) Notwithstanding anything to the contrary in
this Agreement, clauses (a)(v) through (a)(viii) of this Section shall
supersede any provisions in Section 2.18 or Section 9.02 to the contrary. (b)
Termination and Reduction of FILO Commitments. (i) Unless previously
terminated, the FILO Commitments shall terminate on the Maturity Date. (ii)
The Borrowers may from time to time reduce the FILO Commitments; provided that
(A) each reduction of the FILO Commitments shall be in an amount that is an
integral multiple of $5,000,000 and not less than $5,000,000, (B) the
Borrowers shall not reduce the FILO Commitments if a Default exists, and (C)
no such reduction of the FILO Commitments may occur unless the Borrowers have
Revolving Excess Availability, calculated on a pro forma basis after giving
effect to such reduction, of not less than 20% of the Aggregate Revolving
Commitment. (iii) The Borrowers may at any time terminate the FILO Commitments
upon, (A) the indefeasible payment in full in cash of all outstanding FILO
Loans, together with accrued and unpaid interest thereon, (B) the indefeasible
payment in full in cash of the accrued and unpaid fees, and (C) the
indefeasible payment in full in cash of all reimbursable expenses relating to
such termination, together with accrued and unpaid interest thereon; provided
that, no such termination of the FILO Commitments may occur unless the
Borrowers have Revolving Excess Availability, calculated on a pro forma basis
after giving effect to such termination, of not less than 20% of the Aggregate
Revolving Commitment.
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DB2/ 48024258.7 99 (iv) The Borrower Representative shall notify the
Administrative Agent of any election to terminate or reduce the FILO
Commitments under clause (b)(ii) or (b)(iii) of this Section at least three
(3) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower
Representative pursuant to this clause (iv) shall be irrevocable; provided
that a notice of termination of the FILO Commitments delivered by the Borrower
Representative may state that such notice is conditioned upon the
effectiveness of other credit facilities or any other transaction, in which
case such notice may be revoked by the Borrower Representative (by notice to
the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. (v) Any termination or reduction of the FILO
Commitments shall be permanent. Each reduction of the FILO Commitments shall
be made ratably among the FILO Lenders in accordance with their respective
FILO Commitments. (c) FILO Amendment. (i) Following the Third Amendment
Effective Date, the Borrower Representative shall have the right to request
FILO Commitments from either one or more of the Lenders or other lending
institutions (each a "Joining FILO Lender"); provided that (i) any such
request for FILO Commitments shall be in a minimum amount of $25,000,000, (ii)
the Borrower Representative, on behalf of the U.S. Borrowers, may make a
maximum of two (2) such requests (it being understood and agreed that to the
extent any FILO Commitments are reduced or terminated pursuant to and in
accordance with Section 2.09(b), such reduced or terminated portion may not be
reborrowed pursuant to a subsequent request for FILO Commitments), (iii) the
aggregate amount of FILO Commitments of the Joining FILO Lenders shall not
exceed $100,000,000, (iv) the Administrative Agent shall have approved the
identity of any such Joining FILO Lender, any such approval not to be
unreasonably withheld (v) any such Joining FILO Lender shall assume all of the
rights and obligations of a "Lender" and "FILO Lender" hereunder by entering
into the FILO Amendment, and (vi) the procedure described in Section
2.09(c)(iii) has been satisfied. Nothing contained in this Section 2.09 shall
constitute, or otherwise be deemed to be, a commitment on the part of any
Lender to provide a FILO Commitment at any time. (ii) Each Joining FILO Lender
shall become a "Lender" and "FILO Lender" for all purposes of this Agreement,
by entering into an amendment to this agreement (the "FILO Amendment") with
the Administrative Agent and the Loan Parties that sets forth (A) the amount
of each such Joining FILO Lender's FILO Commitment (provided that the
aggregate amount of FILO Commitments of the Joining FILO Lenders is not in
excess of $100,000,000) and (B) the Applicable Rate for the FILO Loans;
provided that (x) the FILO Amendment shall make no other amendments or other
modifications to this Agreement other than as contemplated by the foregoing
clauses (A)-(B) or as otherwise required to establish and reflect such FILO
Commitments and (y) any structuring, upfront and arranger fees and other
similar fees in respect of the FILO Commitments and the extension of credit
thereunder shall be determined by the U.S. Borrowers, the Administrative Agent
and the applicable FILO Lenders pursuant to one or more FILO Fee Letters. The
FILO Amendment shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower Representative, and shall only require
the written signatures of the Administrative Agent, the Loan Parties, and each
Joining FILO Lender. The Loan Parties DB2/ 48024258.7 100 shall deliver to the
Administrative Agent (A) a certificate of each Loan Party signed by an
authorized officer of such Loan Party (I) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to the FILO
Amendment, and (II) in the case of the Borrowers, certifying that, immediately
before and immediately after giving effect to such FILO Amendment and the FILO
Commitments, (1) the representations and warranties contained in Article III
and the other Loan Documents are true and correct in all material respects (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be correct and in
all material respects only as of such specified date, and that any
representation or warranty which is subject to any materiality qualifier shall
be required to be true and correct in all respects), and (2) no Event of
Default exists or would immediately result from the FILO Amendment or the FILO
Commitments, and (B) customary legal opinions, in each case to the extent
requested by the Administrative Agent. The Commitment Schedule attached to the
FILO Amendment shall reflect the FILO Commitments as set forth in the FILO
Amendment and shall replace the old Commitment Schedule and become part of
this Agreement. (iii) On the effective date of any such addition of FILO
Commitments, each Joining FILO Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Lenders
that have a U.S. Tranche Commitment, as applicable, as being required in order
to cause the reallocation of Loans described in Sections 2.11(b)(ii) and
2.11(b)(iii) and in order to cause (after giving effect to such reallocation)
each Revolving Lender's portion of the outstanding U.S. Tranche Revolving
Loans, and each FILO Lender's portion of the outstanding FILO Loans, as
applicable, of all the Revolving Lenders and FILO Lenders, to equal their
respective revised Applicable Percentage of such outstanding U.S. Tranche
Revolving Loans or FILO Loans, as applicable, and the Administrative Agent
shall make such other adjustments among the Revolving Lenders and FILO Lenders
with respect to the U.S. Tranche Revolving Loans or FILO Loans, as applicable,
then outstanding and amounts of principal, interest, commitment fees and other
amounts paid or payable with respect thereto as shall be necessary, in the
opinion of the Administrative Agent, in order to effect such reallocation.
Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby unconditionally
promises to pay (i) to the Administrative Agent for the account of each U.S.
Tranche Lender the then unpaid principal amount of each U.S. Tranche Revolving
Loan made to such Borrower on the Maturity Date in the currency that such
Revolving Loan was made, (ii) to the Administrative Agent for the account of
each Foreign Tranche Lender the then unpaid principal amount of each Foreign
Tranche Revolving Loan made to such Borrower on the Maturity Date in the
currency that such Revolving Loan was made, (iii) to the Administrative Agent
for the account of each FILO Lender the then unpaid principal amount of each
FILO Loan made to such Borrower on the Maturity Date in the currency that such
FILO Loan was made, (iv) to the Administrative Agent the then unpaid amount of
each Protective Advance made for the account of such Borrower on the earlier
of the Maturity Date and demand by the Administrative Agent in the currency
that such Protective Advance was made, (v) to the Administrative Agent the
then unpaid principal amount of each Revolving Overadvance made for the
account of such Borrower on the earlier of the Maturity Date and demand by the
Administrative Agent in the currency that such Revolving Overadvance was made
and (v) to the Administrative Agent the then unpaid principal amount of each
FILO Overadvance made for the account of such
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DB2/ 48024258.7 101 Borrower on the earlier of the Maturity Date and demand by
the Administrative Agent in the currency that such FILO Overadvance was made.
(b) On each Business Day during a Cash Dominion Period, the Administrative
Agent shall apply all funds credited to any Collection Account on such
Business Day or the immediately preceding Business Day (at the discretion of
the Administrative Agent, whether or not the funds for checks are actually
collected, on such Business Day or the immediately preceding Business Day),
first to prepay any Protective Advances and Revolving Overadvances that may be
outstanding, pro rata, denominated in like currency to the currency of the
monies in such Collection Account, second to prepay the Revolving Loans and to
cash collateralize outstanding LC Exposure, denominated in like currency to
the currency of the monies in such Collection Account, third to the extent
that any Protective Advances or Revolving Overadvances remain unapplied
following such application as a result of a mismatch between the currencies of
the amounts in the Collection Accounts and the currencies in which the
outstanding Protective Advances and/or Revolving Overadvances are denominated,
to prepay such outstanding Protective Advances and/or Revolving Overadvances,
pro rata (and the applicable Borrowers shall be deemed to have requested the
Administrative Agent to convert any such excess funds to the currency or
currencies of the outstanding Protective Advances and/or Revolving
Overadvances), fourth to the extent that any Revolving Loans remain unapplied
following such application as a result of a mismatch between the currencies of
the amounts in the Collection Accounts and the currencies in which the
outstanding Revolving Loans are denominated, to prepay such outstanding
Revolving Loans (and the applicable Borrowers shall be deemed to have
requested the Administrative Agent to convert any such excess funds to the
currency or currencies of the outstanding Revolving Loans), fifth to prepay
any FILO Overadvances that may be outstanding denominated in like currency to
the currency of the monies in such Collection Account, sixth to prepay the
FILO Loans denominated in like currency to the currency of the monies in such
Collection Account, seventh, to the extent that any FILO Overadvances remain
unapplied following such application as a result of a mismatch between the
currencies of the amounts in the Collection Accounts and the currencies in
which the outstanding FILO Overadvances are denominated, to prepay such
outstanding FILO Overadvances (and the applicable Borrowers shall be deemed to
have requested the Administrative Agent to convert any such excess funds to
the currency or currencies of the outstanding FILO Overadvances), and eighth
to the extent that any FILO Loans remain unapplied following such application
as a result of a mismatch between the currencies of the amounts in the
Collection Accounts and the currencies in which the outstanding FILO Loans are
denominated, to prepay such outstanding FILO Loans (and the applicable
Borrowers shall be deemed to have requested the Administrative Agent to
convert any such excess funds to the currency or currencies of the outstanding
FILO Loans). (c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of each Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder. (d) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class, the
Available Currency and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof. DB2/ 48024258.7 102
(e) The entries made in the accounts maintained pursuant to clause (c) or (d)
of this Section shall be, absent manifest error, prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans made by it to any Borrower be evidenced
by a promissory note. In such event, the relevant Borrower(s) shall prepare,
execute and deliver to such Lender a promissory note payable to such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent and the Borrowers.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form. Prepayment of Loans.
(a) Optional Prepayments. (i) The Borrowers shall have the right at any time
and from time to time to prepay any Revolving Borrowing in whole or in part,
subject to prior notice in accordance with clause (c) of this Section and, if
applicable, payment of any break funding expenses under Section 2.16 but
otherwise without premium or penalty. (ii) The U.S. Borrowers shall have the
right to prepay any FILO Borrowing (x) in whole or in part at any time no
Revolving Loans are outstanding and (y) concurrently with, and in an amount
equal to the amount of, any reduction or termination of FILO Commitments made
pursuant to Section 2.09(b), in each case, subject to prior notice in
accordance with clause (c) of this Section and, if applicable, payment of any
break funding expenses under Section 2.16 but otherwise without premium or
penalty. (b) Mandatory Prepayments. (i) Except for Revolving Overadvances
permitted under Section 2.05, (A) in the event and on such occasion that the
aggregate U.S. Tranche Revolving Exposures exceed the U.S. Borrowing Base or
otherwise is in excess of any of the Revolving Exposure Limitations, the U.S.
Borrowers shall prepay their Revolving Loans and/or LC Exposure or cash
collateralize their LC Exposure in an account with the Administrative Agent
pursuant to Section 2.06(j), as applicable, in an aggregate amount equal to
such excess and (B) in the event and on such occasion that the aggregate
Foreign Tranche Revolving Exposures exceed the Foreign Borrowing Base, or
otherwise is in excess of any of the Revolving Exposure Limitations, the
Foreign Borrowers shall prepay their Revolving Loans and/or LC Exposure or
cash collateralize the LC Exposure in an account with the Administrative Agent
pursuant to Section 2.06(j), as applicable, in an aggregate amount equal to
such excess; provided, that in the case of clause (A) or (B) above, if such
excess arises as a result of the Administrative Agent's determination of the
Dollar Equivalent of the U.S. Tranche Revolving Exposure or the Foreign
Tranche Revolving Exposure, as applicable, based on the Spot Selling Rate,
then the Borrowers will have three (3) Business Days from the date that the
Borrower Representative is notified of such excess to prepay the Revolving
Loans or LC Exposure, as the case may be, as contemplated this clause (b).
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DB2/ 48024258.7 103 (ii) In the event that FILO Excess Availability is greater
than zero at any time that Revolving Loans are outstanding, the U.S. Borrowers
shall prepay the Revolving Loans in an aggregate amount equal to the amount of
FILO Excess Availability using proceeds of new FILO Loans. In the event that
the U.S. Borrowers are required to prepay the Revolving Loans pursuant to this
Section 2.11(b)(ii), unless any of the conditions precedent to the making of a
FILO Borrowing set forth in Section 4.02 are not satisfied, the U.S. Borrowers
shall be deemed to have requested pursuant to Section 2.03, and the FILO
Lenders shall make, a CBFR FILO Loan in an amount equal to such required
prepayment (a "Reallocation FILO Loan"). Each FILO Lender shall transfer the
amount of such FILO Lender's Applicable Percentage of any Reallocation FILO
Loan to the Administrative Agent, to such account of the Administrative Agent
as the Administrative Agent may designate, not later than 2:00 p.m., Local
Time, on the Business Day on which the Administrative Agent shall have
notified the FILO Lenders of such deemed request (which notification shall be
made by facsimile, telephone or e-mail); provided that, if such notification
shall have been made after 12:00 p.m., Local Time, on such Business Day, such
transfer shall be made not later than 2:00 p.m., Local Time, on the next
Business Day. Such amounts transferred to the Administrative Agent shall be
applied to ratably prepay the Revolving Loans. (iii) Except for FILO
Overadvances permitted under Section 2.05, in the event and on such occasion
that the Aggregate FILO Exposure exceeds the FILO Borrowing Base or otherwise
is in excess of any of the FILO Exposure Limitations, the FILO Borrowers shall
prepay their FILO Loans in an aggregate amount equal to such excess. In the
event that the FILO Borrowers are required to prepay the FILO Loans pursuant
to this Section 2.11(b)(iii), unless any of the conditions precedent to the
making of a Revolving Borrowing set forth in Section 4.02 are not satisfied,
the U.S. Borrowers shall be deemed to have requested pursuant to Section 2.03,
and the U.S. Tranche Lenders shall make, a U.S. Dollar denominated CBFR Loan
under the U.S. Tranche in an aggregate amount equal to such required
prepayment (the foregoing Revolving Loans, collectively, "Reallocation
Revolving Loans"). Each U.S. Tranche Lender shall transfer the amount of such
Lender's Applicable Percentage of any Reallocation Revolving Loan to the
Administrative Agent, to such account of the Administrative Agent as the
Administrative Agent may designate, not later than 2:00 p.m., Local Time, on
the Business Day on which the Administrative Agent shall have notified the
Revolving Lenders of such deemed request (which notification shall be made by
facsimile, telephone or e-mail); provided that, if such notification shall
have been made after 12:00 p.m., Local Time, on such Business Day, such
transfer shall be made not later than 2:00 p.m., Local Time, on the next
Business Day. Such amounts transferred to the Administrative Agent shall be
applied to prepay the FILO Loans. (c) The Borrower Representative shall notify
the Administrative Agent by telephone (confirmed by email or fax on the same
day) (except that in relating to Loans to the U.K. Borrowers, the Dutch
Borrowers and/or the Australian Borrowers, any notice of amounts to be prepaid
must be in writing) or through Electronic System, if arrangements for doing so
have been approved by the Administrative Agent, of any prepayment hereunder
(other than (i) any prepayment of a Revolving Loan made using the proceeds of
a Reallocation FILO Loan as provided in Section 2.11(b)(ii) and (ii) any
prepayment of a FILO Loan made using the proceeds of a Reallocation Revolving
Loan as provided in Section 2.11(b)(iii)) not later than 12:00 noon, Local
Time, (i) in the case of prepayment of a Term Benchmark Borrowing, three (3)
Business Days before the date of prepayment, (B) in the case of prepayment of
an RFR Borrowing, five (5) Business Days before the date of prepayment, or
(ii) in the case of prepayment of a CBFR Borrowing or an Overnight DB2/
48024258.7 104 Rate Borrowing, not later than 12:00 noon, Local Time on the
date of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if (x) a notice of prepayment is given
in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.09(a), then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09(a), and (y) a notice of prepayment is given in connection with a
conditional notice of termination of the FILO Commitments as contemplated by
Section 2.09(b), then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.09(b). Promptly
following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing or any FILO
Borrowing (other than (i) any prepayment of a Revolving Loan made using the
proceeds of a Reallocation FILO Loan as provided in Section 2.11(b)(ii) and
(ii) any prepayment of a FILO Loan made using the proceeds of a Reallocation
Revolving Loan as provided in Section 2.11(b)(iii)) shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing or a
FILO Borrowing, as applicable, of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the
Revolving Loans included in the prepaid Borrowing. Each prepayment of a FILO
Borrowing shall be applied ratably to the FILO Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.13 and, if applicable, subject to the requirements of
Section 2.16. Fees. (a) Commitment Fees. (i) The Borrowers agree to pay to the
Administrative Agent for the account of each Revolving Lender (other than a
Defaulting Lender) a commitment fee, which shall accrue at a rate equal to
0.25% per annum on the average daily amount of the Available Revolving
Commitment of such Revolving Lender during the period from and including the
Effective Date to but excluding the date on which the Revolving Commitments
terminate. The foregoing commitment fees accrued through and including the
first (1st) Business Day of each January, April, July and October shall be
payable in arrears on such Business Day and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that any commitment fees accruing after the date on
which Revolving Commitments terminate shall be payable on demand. (ii) The
Borrowers agree to pay to the Administrative Agent for the account of each
FILO Lender (other than a Defaulting Lender) a commitment fee, which shall
accrue at a rate equal to 0.25% per annum on the average daily amount of the
Available FILO Commitment of such FILO Lender during the period from and
including the FILO Effective Date to but excluding the date on which the FILO
Commitments terminate. The foregoing commitment fees accrued through and
including the first (1st) Business Day of each January, April, July and
October shall be payable in arrears on such Business Day and on the date on
which the FILO Commitments terminate, commencing on the first such date to
occur after the FILO Effective Date; provided that any commitment fees
accruing after the date on which the FILO Commitments terminate shall be
payable on demand. (iii) All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
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DB2/ 48024258.7 105 (b) (i) (A) the U.S. Borrowers agree to pay, or cause to
be paid, to the Administrative Agent for the account of each U.S. Tranche
Lender (in the case of a U.S. Tranche Letter of Credit) and (B) the Foreign
Borrowers agree to pay, or cause to be paid, to the Administrative Agent for
the account of each Foreign Tranche Lender (in the case of a Foreign Tranche
Letter of Credit), in each case a participation fee with respect to the
applicable Revolving Lender's participations in the applicable Letters of
Credit issued for the account of the applicable Borrower, which shall accrue
on the daily maximum stated amount then available to be drawn under such
Letter of Credit at the same Applicable Rate used to determine the interest
rate applicable to Term Benchmark Revolving Loans during the period from and
including the Effective Date to but excluding the later of the date on which
such Revolving Lender's Revolving Commitment terminates and the date on which
such Revolving Lender ceases to have any LC Exposure, and (ii) each Borrower
agrees to pay to each Issuing Bank for its own account a fronting fee with
respect to each Letter of Credit issued by such Issuing Bank, which shall
accrue at the rate of 0.125% per annum on the daily maximum stated amount then
available to be drawn under such Letter of Credit, during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure with respect to Letters of Credit issued by such Issuing
Bank, as well as the Issuing Bank's standard fees and commissions with respect
to the issuance, amendment, or extension of any Letter of Credit and other
processing fees and other standard costs and charges, of such Issuing Bank
relating to Letters of Credit as from time to time in effect. Participation
fees and fronting fees accrued through and including the last day of each
calendar quarter shall be payable on the first (1st) Business Day of each
January, April, July and October following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to an Issuing
Bank pursuant to this paragraph shall be payable within ten (10) Business Days
after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
Participation fees and fronting fees in respect of Letters of Credit
denominated in U.S. Dollars shall be paid in U.S. Dollars, and participation
fees and fronting fees in respect of Letters of Credit denominated in a
Foreign Currency shall be paid in such Foreign Currency. (c) The Borrowers
agree to pay to the Administrative Agent, for its own account, fees payable in
the amounts and at the times separately agreed upon between the Borrowers and
the Administrative Agent. In addition, the Borrowers agree to pay all fees
payable in the amounts and at the times set forth in the Fee Letters. (d) All
fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or to an Issuing Bank, in the
case of fees payable to it) for distribution, in the case of commitment fees
and participation fees, to the Lenders. Fees paid shall not be refundable
under any circumstances. Interest. (a) The Loans (other than Protective
Advances, Revolving Overadvances and FILO Overadvances) comprising CBFR
Borrowings shall bear interest at the CBFR plus the Applicable Rate. (b) The
Loans comprising each Term Benchmark Borrowing shall bear interest at the
Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the AUD Rate, as
applicable, for the Interest Period in effect for such Borrowing plus the
Applicable Rate. DB2/ 48024258.7 106 (c) The Loans (other than Protective
Advances, Revolving Overadvances and FILO Overadvances) comprising each
Overnight Rate Borrowing shall bear interest at the applicable Overnight Rate
plus the Applicable Rate. (d) The Loans comprising each Alternate Rate
Borrowing shall bear interest at the Alternate Rate plus, if such Loan is a
Protective Advance or Revolving Overadvance, 2.00%. (e) Each RFR Loan shall
bear interest at a rate per annum equal to the applicable Adjusted Daily
Simple RFR plus the Applicable Rate then in effect. (f) Each Protective
Advance and each Revolving Overadvance made to the U.S. Borrowers (i) in U.S.
Dollars under the U.S. Tranche shall bear interest at the CBFR plus the
Applicable Rate for Revolving Loans plus 2.00% and (ii) in any Available
Currency under the Foreign Tranche shall bear interest at the applicable
Overnight Rate plus the Applicable Rate plus 2.00%. (g) Each Protective
Advance and each Revolving Overadvance made to the U.K. Borrowers shall bear
interest at the applicable Overnight Rate plus the Applicable Rate plus 2.00%.
(h) Each Protective Advance and each Revolving Overadvance made to the Dutch
Borrowers shall bear interest at the applicable Overnight Rate plus the
Applicable Rate plus 2.00%. (i) Each Revolving Overadvance made to the
Australian Borrowers shall bear interest at the applicable Overnight Rate plus
the Applicable Rate plus 2.00%. (j) Each FILO Overadvance shall bear interest
at the CBFR plus the Applicable Rate for FILO Loans plus 2.00%. (k)
Notwithstanding the foregoing, during the occurrence and continuance of an
Event of Default pursuant to clause (a), (b) (h) or (i) of Article VII, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrowers hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2.00% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2.00% plus the rate applicable to CBFR Loans as
provided in paragraph (a) of this Section. (l) Accrued interest on each Loan
(for CBFR Loans and Overnight Rate Loans, accrued through the last day of the
prior calendar month) shall be payable in arrears on each Interest Payment
Date for such Loan and upon termination of the Revolving Commitments (in the
case of the Revolving Loans) or the termination of the FILO Commitments (in
the case of the FILO Loans); provided that (i) interest accrued pursuant to
clause (i) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of a CBFR
Revolving Loan or an Overnight Rate Loan that is a Revolving Loan prior to the
end of the Revolving Availability Period or a prepayment of a CBFR FILO Loan
prior to the end of the FILO Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any Term
Benchmark Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
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DB2/ 48024258.7 107 (m) All interest hereunder shall be computed on the basis
of a year of 360 days, except that (i) interest computed by reference to the
CB Floating Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year) and (ii) interest computed in reference to any Borrowings
in Sterling shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and, in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). A
determination of the applicable CB Floating Rate, Adjusted Term SOFR Rate,
Term SOFR Rate, Daily Simple SOFR, Adjusted EURIBOR Rate, EURIBOR Rate, AUD
Rate, Adjusted REVSOFR30 Rate, REVSOFR30 Rate, Overnight Rate, Daily Simple
RFR or Adjusted Daily Simple RFR or the applicable interest rate in respect of
any Borrowings in Sterling shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error. (n) All
interest hereunder shall be paid in the currency in which the Loan giving rise
to such interest is denominated. Alternate Rate of Interest; Illegality. (a)
Subject to clauses (c), (e), (f), (g), and (h) of this Section 2.14, if: (i)
the Administrative Agent determines (which determination shall be conclusive
and binding absent manifest error) (A) prior to the commencement of any
Interest Period for a Term Benchmark Borrowing, that adequate and reasonable
means do not exist for ascertaining the Adjusted Term SOFR Rate, the Term SOFR
Rate, the Adjusted EURIBOR Rate, the EURIBOR Rate, the AUD Rate or the
Overnight Rate, as applicable (including, without limitation, because the
Relevant Screen Rate is not available or published on a current basis) for the
applicable currency and such Interest Period or (B) at any time, that adequate
and reasonable means do not exist for ascertaining the applicable Adjusted
Daily Simple RFR, Daily Simple RFR, Overnight Rate or RFR for the applicable
currency; or (ii) the Administrative Agent is advised by the Required Lenders
that (A) prior to the commencement of any Interest Period for a Term Benchmark
Borrowing, the Adjusted Term SOFR Rate, the Term SOFR Rate, the Adjusted
EURIBOR Rate, the EURIBOR Rate, the AUD Rate or the Overnight Rate, as
applicable, for the applicable currency and such Interest Period or such
Borrowing, as applicable, will not adequately and fairly reflect the cost to
such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for the applicable currency and such Interest
Period or (B) at any time, the applicable Adjusted Daily Simple RFR, Daily
Simple RFR, Overnight Rate or 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 for the
applicable currency; then the Administrative Agent shall give notice thereof
to the Borrower Representative and the Lenders through Electronic System as
provided in Section 9.01 as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower Representative and the Lenders that
the circumstances giving rise to such notice no longer exist, (A) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Term Benchmark Borrowing or Overnight Rate
Borrowing shall be ineffective and (B) with respect to any Borrowing Request
that requests a Term Benchmark Borrowing or Overnight Rate Borrowing, (1) in
the case of a Borrowing to the U.S. Borrowers under the U.S. Tranche or a FILO
Borrowing to the U.S. Borrowers, such Borrowing shall be made as a CBFR
Borrowing (or in the case of any DB2/ 48024258.7 108 such Borrowing that is a
Term Benchmark Borrowing denominated in U.S. Dollars, made as an RFR Borrowing
denominated in U.S. Dollars, if the Adjusted Daily Simple RFR for U.S. Dollar
RFR Borrowings is not the subject of Section 2.14(a)(i) or (ii) above), (2) in
the case of a Borrowing to the U.S. Borrowers under the Foreign Tranche, such
Borrowing shall be made as an Alternate Rate Borrowing, (3) in the case of a
Borrowing to the U.K. Borrowers, such Borrowing shall bear interest at the
Central Bank Rate for the applicable Available Currency plus the Applicable
Rate for RFR Loans, (4) in the case of a Borrowing to the Dutch Borrowers,
such Borrowing shall bear interest at the Central Bank Rate for the applicable
Available Currency plus the Applicable Rate for RFR Loans and (5) in the case
of a Borrowing to the Australian Borrowers, such Borrowing shall bear interest
at the Central Bank Rate for the applicable Available Currency plus the
Applicable Rate for RFR Loans; provided that if such circumstances only affect
one Class or Type of Borrowing or currency, then the foregoing will only be
applicable to the affected Class or Type of Borrowing or currency. If any Term
Benchmark Borrowing or Overnight Rate Borrowing is outstanding on the date of
the Borrower Representative's receipt of the notice from the Administrative
Agent referred to in this Section 2.14(a) with respect to the Relevant Rate
applicable to such Term Benchmark Borrowing or Overnight Rate Borrowing, then
until the Administrative Agent notifies the Borrower Representative and the
Lenders that the circumstances giving rise to such notice no longer exist (i)
in the case of a Borrowing to the U.S. Borrowers under the U.S. Tranche or a
FILO Borrowing to the U.S. Borrowers, such Borrowing, unless repaid, shall
convert, on the last day of the Interest Period applicable thereto, to a CBFR
Borrowing (or in the case of any such Borrowing that is a Term Benchmark
Borrowing denominated in U.S. Dollars, convert to an RFR Borrowing denominated
in U.S. Dollars, if the Adjusted Daily Simple RFR for U.S. Dollar RFR
Borrowings is not the subject of Section 2.14(a)(i) or (ii) above), (ii) in
the case of a Borrowing to the U.S. Borrowers under the Foreign Tranche, such
Borrowing, unless repaid, shall convert, on the last day of the Interest
Period applicable thereto, as an Alternate Rate Borrowing, (iii) in the case
of a Borrowing to the U.K. Borrowers, such Borrowing, unless repaid, shall
convert, on the last day of the Interest Period applicable thereto, to a
Borrowing that bears interest at the Central Bank Rate for the applicable
Available Currency plus the Applicable Rate for RFR Loans, (iv) in the case of
a Borrowing to the Dutch Borrowers, such Borrowing, unless repaid, shall
convert, on the last day of the Interest Period applicable thereto, to a
Borrowing that bears interest at the Central Bank Rate for the applicable
Available Currency plus the Applicable Rate for RFR Loans and (v) in the case
of a Borrowing to the Australian Borrowers, such Borrowing, unless repaid,
shall convert, on the last day of the Interest Period applicable thereto, to a
Borrowing that bears interest at the Central Bank Rate for the applicable
Available Currency plus the Applicable Rate for RFR Loans; provided that if
such circumstances only affect one Class or Type of Borrowing or currency,
then the foregoing will only be applicable to the affected Class or Type of
Borrowing or currency. (b) If any Lender determines that any Requirement of
Law has made it unlawful, or if any Governmental Authority has asserted that
it is unlawful, for any Lender or its applicable lending office to make,
maintain, fund or continue any Term Benchmark Borrowing, RFR Borrowing or
Overnight Rate Borrowing, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, any applicable currency in the applicable offshore interbank
market, then, on notice thereof by such Lender to the Borrower Representative
through the Administrative Agent, any obligations of such Lender to make,
maintain, fund or continue Term Benchmark Loans, RFR Loans or Overnight Rate
Borrowings or to convert CBFR Borrowings or Overnight Rate Borrowings to Term
Benchmark Borrowings or Term Benchmark Borrowings to Overnight Rate Borrowings
will be suspended and all Borrowings shall continue as Alternate Rate
Borrowings and any request for Borrowings under the Foreign Tranche shall bear
interest at the Alternate Rate (in the case of Borrowings made to a U.S.
Borrower) or the Central Bank Rate (in the case of Borrowings made to a U.K.
Borrower, a Dutch Borrower or an Australian Borrower), in each case, until
such Lender notifies the
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DB2/ 48024258.7 109 Administrative Agent and the Borrower Representative that
the circumstances giving rise to such determination no longer exist; provided
that if such circumstances only affect one Class or Type of Borrowing or
currency, then the foregoing will only be applicable to the affected Class or
Type of Borrowing or currency. Upon receipt of such notice, the Borrowers will
upon demand from such Lender (with a copy to the Administrative Agent), either
(i) in the case of Borrowings of such Lender made to the U.S. Borrowers under
the U.S. Tranche or FILO Borrowings to the U.S. Borrowers convert such
Borrowings to CBFR Borrowings or (ii) in all other cases, prepay the
Borrowings of such Lender, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Borrowings to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Loans. Upon any such conversion or prepayment, the Borrowers will also
pay accrued interest on the amount so converted or prepaid. (c) Notwithstanding
anything to the contrary herein or in any other Loan Document (and any Swap
Agreement shall be deemed not to be a "Loan Document" for purposes of this
Section 2.14), if a Benchmark Transition Event and its related Benchmark
Replacement Date have occurred prior to the Reference Time in respect of any
setting of the then-current Benchmark, then (x) if a Benchmark Replacement is
determined in accordance with clause (1) of the definition of "Benchmark
Replacement" with respect to U.S. Dollars for such Benchmark Replacement Date,
such Benchmark Replacement will replace such Benchmark for all purposes
hereunder and under any Loan Document in respect of such Benchmark setting and
subsequent Benchmark settings without any amendment to, or further action or
consent of any other party to, this Agreement or any other Loan Document and
(y) if a Benchmark Replacement is determined in accordance with clause (2) of
the definition of "Benchmark Replacement" with respect to any Available
Currency for such Benchmark Replacement Date, such Benchmark Replacement will
replace such Benchmark for all purposes hereunder and under any Loan Document
in respect of any Benchmark setting at or after 5:00 p.m. (New York City time)
on the fifth (5th) Business Day after the date notice of such Benchmark
Replacement is provided to the Lenders without any amendment to, or further
action or consent of any other party to, this Agreement or any other Loan
Document so long as the Administrative Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders
comprising the Required Lenders of each affected Class. (d) [Reserved]. (e) In
connection with the implementation of a Benchmark Replacement, the
Administrative Agent will have the right to make Benchmark Replacement
Conforming Changes from time to time and, notwithstanding anything to the
contrary herein or in any other Loan Document, any amendments implementing
such Benchmark Replacement Conforming Changes will become effective without
any further action or consent of any other party to this Agreement or any
other Loan Document. (f) The Administrative Agent will promptly notify the
Borrower Representative and the Lenders of (i) any occurrence of a Benchmark
Transition Event and its related Benchmark Replacement Date, (ii) the
implementation of any Benchmark Replacement, (iii) the effectiveness of any
Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of
any tenor of a Benchmark pursuant to clause (g) below and (v) the commencement
or conclusion of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the Administrative Agent or, if
applicable, any Lender (or group of Lenders) pursuant to this Section 2.14,
including any determination with respect to a tenor, rate or adjustment or of
the occurrence or non-occurrence of an event, circumstance or date and any
decision to take or refrain from taking any action or any selection, will be
conclusive and binding absent manifest error and may be made in its or their
sole discretion and without consent from any other party to this DB2/
48024258.7 110 Agreement or any other Loan Document, except, in each case, as
expressly required pursuant to this Section 2.14. (g) 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-current Benchmark is a term rate (including the Term SOFR Rate, the
REVSOFR30 Rate, a term rate as part of an Overnight Rate Loan, EURIBOR Rate or
AUD Rate) and either (A) any tenor for such Benchmark is not displayed on a
screen or other information service that publishes such rate from time to time
as selected by the Administrative Agent in its reasonable discretion or (B)
the regulatory supervisor for the administrator of such Benchmark has provided
a public statement or publication of information announcing that any tenor for
such Benchmark is or will be no longer representative, then the Administrative
Agent may modify the definition of "Interest Period" for any Benchmark
settings at or after such time to remove such unavailable or non-
representative tenor and (ii) if a tenor that was removed pursuant to clause
(i) above either (A) is subsequently displayed on a screen or information
service for a Benchmark (including a Benchmark Replacement) or (B) is not, or
is no longer, subject to an announcement that it is or will no longer be
representative for a Benchmark (including a Benchmark Replacement), then the
Administrative Agent may modify the definition of "Interest Period" for all
Benchmark settings at or after such time to reinstate such previously removed
tenor. (h) Upon the Borrower Representative's receipt of notice of the
commencement of a Benchmark Unavailability Period, the applicable Borrower (or
the Borrower Representative on its behalf) may revoke any request for a Term
Benchmark Borrowing, Overnight Rate Borrowing or RFR Borrowing, or conversion
to or continuation of Term Benchmark Loans, Overnight Rate Loans or RFR Loans,
to be made, converted or continued during any Benchmark Unavailability Period
and, failing that, either (x) the applicable Borrower will be deemed to have
converted any such request for a Term Benchmark Borrowing denominated in U.S.
Dollars (other than any such requested Term Benchmark Borrowing denominated in
U.S. Dollars that constitute Loans to any Borrower under the Foreign Tranche)
into a request for a Borrowing of, or conversion to, (A) RFR Loans denominated
in U.S. Dollars, so long as the Adjusted Daily Simple RFR for U.S. Dollar RFR
Borrowings is not the subject of a Benchmark Transition Event or (B) CBFR
Loans if the Adjusted Daily Simple RFR for U.S. Dollar RFR Borrowings is the
subject of a Benchmark Transition Event, or (y) any request for a Term
Benchmark Borrowing, Overnight Rate Borrowing or RFR Borrowing constituting a
Loan to any Borrower under the Foreign Tranche or any request for a Term
Benchmark Borrowing, Overnight Rate Borrowing, or RFR Borrowing denominated in
any Available Currency shall be ineffective. During any Benchmark
Unavailability Period or at any time that a tenor for the then-current
Benchmark is not an Available Tenor, the component of CBFR based upon the
then-current Benchmark or such tenor for such Benchmark, as applicable, will
not be used in any determination of CBFR. Furthermore, if any Term Benchmark
Loan, Overnight Rate Loan, or RFR Loan in any Available Currency is
outstanding on the date of the Borrower Representative's receipt of notice of
the commencement of a Benchmark Unavailability Period with respect to a
Relevant Rate applicable to such Term Benchmark Loan, Overnight Rate Loan, or
RFR Loan, then until such time as a Benchmark Replacement for such Available
Currency is implemented pursuant to this Section 2.14, (i) if such Loan is
denominated in U.S. Dollars (other than Loans made to any Borrower under the
Foreign Tranche), then on the last day of the Interest Period applicable to
such Loan, such Loan shall be converted by the Administrative Agent to, and
shall constitute, a CBFR Loan denominated in U.S. Dollars on such day (or in
the case of any such Loan that is a Term Benchmark Loan denominated in U.S.
Dollars, converted to an RFR Loan denominated in U.S. Dollars, if the Adjusted
Daily Simple RFR for U.S. Dollar RFR Borrowings is not the subject of a
Benchmark Transition Event) or (ii) if such Loan is a Loan made to any
Borrower under the Foreign Tranche or is denominated in any Foreign Currency,
then such Loan
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DB2/ 48024258.7 111 shall, on the last day of the Interest Period applicable
to such Loan bear interest at (A) with respect to Loans denominated in U.S.
Dollars under the Foreign Tranche, the Alternate Rate or (B) with respect to
Loans denominated in any Foreign Currency, the Central Bank Rate for the
applicable currency plus the Applicable Rate for RFR Loans. Increased Costs.
(a) If any Change in Law shall: (i) impose, modify or deem applicable any
reserve, special deposit, liquidity or similar requirement (including any
compulsory loan requirement, insurance charge or other assessment) against
assets of, deposits with or for the account of, or credit extended by, any
Lender or Issuing Bank (except any such reserve requirement reflected in the
Adjusted Term SOFR Rate, Adjusted REVSOFR30 Rate or Adjusted EURIBOR Rate, as
applicable) or the Issuing Bank; (ii) impose on any Lender or the Issuing Bank
or the applicable offshore interbank market for the applicable Available
Currency any other condition, cost or expense (other than Taxes) affecting
this Agreement or Loans made by such Lender or any Letter of Credit or
participation therein; or (iii) subject any Recipient to any Taxes (other than
(A) Indemnified Taxes, (B) Taxes described in clauses (b) through (g) of the
definition of Excluded Taxes and (C) Connection Income Taxes) on its loans,
loan principal, letters of credit, commitments, or other obligations, or its
deposits, reserves, other liabilities or capital attributable thereto; and the
result of any of the foregoing shall be to increase the cost to such Lender,
Issuing Bank or such other Recipient of making, continuing, converting into or
maintaining any Loan (or of maintaining its obligation to make any such Loan)
or to increase the cost to such Lender, the Issuing Bank or such other
Recipient of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender, the
Issuing Bank or such other Recipient hereunder (whether of principal, interest
or otherwise), then the Borrowers will, following delivery by such Lender,
Issuing Bank or other Recipient of the certificate as described in Section
2.15(c) below, pay to such Lender, the Issuing Bank or such other Recipient,
as the case may be, such additional amount or amounts as will compensate such
Lender, the Issuing Bank or such other Recipient, as the case may be, for such
additional costs incurred or reduction suffered, as reasonably determined by
such Lender, such Issuing Bank or such other Recipient (which determination
shall be made in good faith (and not on an arbitrary or capricious basis) and
generally consistent with similarly situated customers of such Lender, such
Issuing Bank or such other Recipient, as applicable, under agreements having
provisions similar to this Section 2.15, after consideration of such factors
as such Lender, such Issuing Bank or such other Recipient, as applicable, then
reasonably determines to be relevant~ provided that none of such Lender, such
Issuing Bank or such other Recipient, as applicable, shall be required to
disclose any confidential or proprietary information in connection therewith).
(b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital or liquidity requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if
any, as a consequence of this Agreement, the Revolving Commitments or FILO
Commitments of, or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such DB2/ 48024258.7 112 Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company could have achieved
but for such Change in Law (taking into consideration such Lender's or such
Issuing Bank's policies and the policies of such Lender's or such Issuing
Bank's holding company with respect to capital adequacy and liquidity), then
from time to time the applicable Borrowers will, following delivery by such
Lender or such Issuing Bank of the certificate as described in Section 2.15(c)
below, pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender's or such Issuing Bank's holding company for any such
reduction suffered, as reasonably determined by such Lender or such Issuing
Bank (which determination shall be made in good faith (and not on an arbitrary
or capricious basis) and generally consistent with similarly situated
customers of such Lender or such Issuing Bank, as applicable, under agreements
having provisions similar to this Section 2.15, after consideration of such
factors as such Lender or such Issuing Bank, as applicable, then reasonably
determines to be relevant~ provided that none of such Lender or such Issuing
Bank, as applicable, shall be required to disclose any confidential or
proprietary information in connection therewith). (c) A certificate of a
Lender or an Issuing Bank setting forth the amount or amounts necessary to
compensate such Lender or an Issuing Bank or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower Representative and shall be conclusive absent
manifest error. The applicable Borrowers shall pay such Lender or such Issuing
Bank, as the case may be, the amount shown as due on any such certificate
within ten (10) Business Days after receipt thereof. (d) Failure or delay on
the part of any Lender or any Issuing Bank to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender's or such Issuing
Bank's right to demand such compensation; provided that the Borrowers shall
not be required to compensate a Lender or an Issuing Bank pursuant to this
Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender or such Issuing Bank, as the case may be,
notifies the Borrower Representative of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof. (e) Section 2.15(a) shall not apply with
respect to a Loan or Revolving Commitment made to a U.K. Borrower to the
extent any increased cost is attributable to a Tax Deduction required by law
to be made by any Loan Party, or is compensated for by Section 2.17(l) (or
would have been compensated for under Section 2.17(l) but was not so
compensated solely because any of the exclusions in Section 2.17(l)(ii)
applied). Break Funding Payments. (a) With respect to Loans that are not RFR
Loans, in the event of (a) the payment of any principal of any Term Benchmark
Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default or as a result of any prepayment
pursuant to Section 2.11), (b) the conversion of any Term Benchmark Loan other
than on the last day of the Interest Period applicable thereto, (c) the
failure to borrow, convert, continue or prepay any Term Benchmark Loan on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.09(a)(iv) or Section 2.09(b)(iv)
and is revoked in accordance therewith), or (d) the assignment of any Term
Benchmark Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower Representative pursuant to
Section 2.19 or 9.02(d) or the CAM Exchange, then, in any such event, the
applicable Borrowers shall compensate each Lender for the loss, cost and
expense
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DB2/ 48024258.7 113 attributable to such event. In the case of a Term
Benchmark Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount of
such Term Benchmark Loan had such event not occurred, at the Adjusted Term
SOFR Rate, the Adjusted EURIBOR Rate or the AUD Rate that would have been
applicable to such Term Benchmark Loan (exclusive of the Applicable Rate), for
the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Term Benchmark Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for deposits in
the applicable Available Currency of a comparable amount and period from other
banks in the applicable offshore interbank market for such Available Currency,
whether or not such Term Benchmark Loan was in fact so funded. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the Borrower
Representative and shall be conclusive absent manifest error. The applicable
Borrowers shall pay such Lender the amount shown as due on any such
certificate within ten (10) Business Days after receipt thereof. (b) With
respect to RFR Loans, in the event of (i) the payment of any principal of any
RFR Loan other than on the Interest Payment Date applicable thereto (including
as a result of an Event of Default or an optional or mandatory prepayment of
Loans), (ii) the failure to borrow or prepay any RFR Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice may be revoked under Section 2.09(a)(iv), Section 2.09(b)(iv) or
Section 2.11(e) and is revoked in accordance therewith), or (iii) the
assignment of any RFR Loan other than on the Interest Payment Date applicable
thereto as a result of a request by the Borrower Representative pursuant to
Section 2.19, then, in any such event, the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower Representative and shall be conclusive absent manifest error. The
applicable Borrowers shall pay such Lender the amount shown as due on any such
certificate within ten (10) Business Days after receipt thereof. Withholding
of Taxes; Gross-Up. The provisions of Sections 2.17(a) to (h) shall apply in
respect of a U.K. Loan Party to the extent set out therein and where the
provisions of Sections 2.17(l) to (r) (inclusive) apply in respect of any U.K.
Loan Party, the provisions of Sections 2.17(a) to (h) (inclusive) of Section
2.17 shall not apply to the extent of any conflict with those provisions. (a)
Payments Free of Taxes. Any and all payments by or on account of any
obligation of any Loan Party under any Loan Document shall be made without
deduction or withholding for any Taxes, except as required by applicable law
(which includes, for these purposes, the administrative practice of any
relevant Governmental Authority). If any applicable law (as determined in the
good faith discretion of an applicable withholding agent) requires the
deduction or withholding of any Tax from any such payment by a withholding
agent, then the applicable withholding agent shall be entitled to make such
deduction or withholding and shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable
law. If such Tax is an Indemnified Tax and is payable with respect to a Loan
or Revolving Commitment or FILO Commitment extended to a Borrower other than a
U.K. Borrower, then an additional amount is payable by the Loan Party as
necessary so that after such deduction or withholding has been made (including
such deductions and withholdings applicable to additional sums payable under
this Section 2.17) the applicable Recipient receives an amount equal to the
sum it would have received had no such deduction or withholding been made. In
respect of any applicable increase to an amount payable as a result of the
application of deductions and withholdings from payments with respect to a
U.K. Loan Party, see Section 2.17(l) below. DB2/ 48024258.7 114 (b) Payment of
Other Taxes by the Loan Parties. The applicable Loan Parties shall timely pay
to the relevant Governmental Authority in accordance with applicable law, or
at the option of the Administrative Agent timely reimburse it for the payment
of, any Other Taxes. (c) Evidence of Payment. Save in respect of a U.K. Loan
Party, to which the provisions of Section 2.17(l)(v) shall apply, as soon as
practicable after any payment of Taxes by any Loan Party to a Governmental
Authority pursuant to this Section 2.17, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent. (d) Indemnification by the Loan
Parties. The Loan Parties shall jointly and severally indemnify each
Recipient, within ten (10) Business Days after demand therefor, for the full
amount of any Indemnified Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section) payable or
paid by such Recipient or required to be withheld or deducted from a payment
to such Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any
Loan Party by a Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error. Notwithstanding the foregoing, this Section
2.17(d) shall not apply to a U.K. Loan Party with respect to a Loan or
Revolving Commitment extended to a U.K. Borrower, the relevant tax indemnity
obligations of which with respect to this Section 2.17 shall be governed by
Section 2.17(n). (e) Indemnification by the Lenders. Each Lender shall
severally indemnify the Administrative Agent, within ten (10) Business Days
after demand therefor, for (i) any Indemnified Taxes attributable to such
Lender (but only to the extent that any Loan Party has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Loan Parties to do so), (ii) any Taxes attributable to such
Lender's failure to comply with the provisions of Section 9.04(c) relating to
the maintenance of a Participant Register and (iii) any Excluded Taxes
attributable to such Lender, in each case, that are payable or paid by the
Administrative Agent in connection with any Loan Document, and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent
manifest error. Each Lender hereby authorizes the Administrative Agent to set
off and apply any and all amounts at any time owing to such Lender under any
Loan Document or otherwise payable by the Administrative Agent to such Lender
from any other source against any amount due to the Administrative Agent under
this clause (e). (f) Status of Lenders. This Section 2.17(f) shall not apply
in respect of a payment made under any Loan Document by a U.K. Loan Party. (i)
Any Lender that is entitled to an exemption from or reduction of withholding
Tax with respect to payments made under any Loan Document shall deliver to the
Borrower Representative and the Administrative Agent, at the time or times
reasonably requested by the Borrower Representative or the Administrative
Agent, such properly completed and executed documentation reasonably requested
by the Borrower Representative or the Administrative Agent as will permit such
payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender, if
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DB2/ 48024258.7 115 reasonably requested by the Borrower Representative or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower Representative or the
Administrative Agent as will enable the Borrower Representative or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation
set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be
required if in the Lender's reasonable judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such
Lender. (ii) Without limiting the generality of the foregoing, in the event
that any Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall
deliver to the Borrower Representative and the Administrative Agent on or
prior to the date on which such Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower
Representative or the Administrative Agent), an executed copy of IRS Form W-9
certifying that such Lender is exempt from U.S. federal backup withholding
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower Representative and the Administrative Agent (in
such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the reasonable request of the Borrower
Representative or the Administrative Agent), whichever of the following is
applicable: (1) in the case of a Foreign Lender claiming the benefits of an
income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, an executed copy of IRS Form
W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the "interest" article
of such tax treaty and (y) with respect to any other applicable payments under
any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
establishing an exemption from, or reduction of, U.S. Federal withholding Tax
pursuant to the "business profits" or "other income" article of such tax
treaty; (2) in the case of a Foreign Lender claiming that its extension of
credit will generate U.S. effectively connected income, an executed copy of
IRS Form W-8ECI, and in the case of an applicable Foreign Lender, executed
copies of IRS Form W-8EXP; (3) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) a U.S. Tax Compliance Certificate substantially in the form of
Exhibit G- 1 to the effect that such Foreign Lender is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of a
Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a DB2/
48024258.7 116 "controlled foreign corporation" described in Section
881(c)(3)(C) of the Code (a "U.S. Tax Compliance Certificate") and (y) an
executed copy of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or (4)
to the extent a Foreign Lender is not the beneficial owner, an executed copy
of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN or IRS
Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially
in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect
partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit G-4 on behalf of each such direct and
indirect partner; (C) any Foreign Lender shall, to the extent it is legally
entitled to do so, deliver to the Borrower Representative and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower Representative or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a
basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrowers or the Administrative
Agent to determine the withholding or deduction required to be made; and (D)
if a payment made to a Lender under any Loan Document would be subject to U.S.
Federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained
in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower Representative and the Administrative Agent at the
time or times prescribed by law and at such time or times reasonably requested
by the Borrower Representative or the Administrative Agent such documentation
prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i
) of the Code) and such additional documentation reasonably requested by the
Borrower Representative or the Administrative Agent as may be necessary for
the Borrowers and the Administrative Agent to comply with their obligations
under FATCA and to determine that such Lender has complied with such Lender's
obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (D), "FATCA" shall include
any amendments made to FATCA after the date of this Agreement. Each Lender
agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower Representative and the
Administrative Agent in writing of its legal inability to do so. (g) Treatment
of Certain Refunds. If any party determines, in its sole discretion exercised
in good faith, that it has received a refund of any Taxes as to which it has
been
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DB2/ 48024258.7 117 indemnified pursuant to this Section (including by the
payment of additional amounts pursuant to this Section), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of
indemnity payments made under this Section with respect to the Taxes giving
rise to such refund), net of all out-of-pocket expenses (including Taxes) of
such indemnified party and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to
such indemnified party the amount paid over pursuant to this clause (g) (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority. Notwithstanding anything to the
contrary in this clause (g), in no event will the indemnified party be
required to pay any amount to an indemnifying party pursuant to this clause
(g) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the
Tax subject to indemnification and giving rise to such refund had not been
deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts giving rise to such refund had never been paid. This clause
(g) shall not be construed to require any indemnified party to make available
its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other Person. (h) VAT. (i) All
amounts set out or expressed under a Loan Document to be payable by any Loan
Party to any Credit Party which (in whole or in part) constitute the
consideration for a supply or supplies for VAT purposes shall be deemed to be
exclusive of any VAT which is chargeable on such supply or supplies, and
accordingly, subject to Section 2.17(h)(ii), if VAT is or becomes chargeable
on any supply made by any Credit Party to any Loan Party under a Loan
Document, that Loan Party shall pay to the Credit Party (in addition to and at
the same time as paying any other consideration for such supply) an amount
equal to the amount of such VAT (and the relevant Credit Party shall promptly
provide an appropriate VAT invoice to such Loan Party). (ii) If VAT is or
becomes chargeable on any supply made by any Credit Party (the "Supplier") to
any other Credit Party (for purposes of this Section 2.17(h), the "Customer")
under a Loan Document, and any party other than the Customer (the "Relevant
Party") is required by the terms of any Loan Document to pay an amount equal
to the consideration for that supply to the Supplier (rather than being
required to reimburse or indemnify the Customer in respect of that
consideration): (A) (where the Supplier is the person required to account to
the relevant tax authority for the VAT) the Relevant Party must also pay to
the Supplier (at the same time as paying that amount) an additional amount
equal to the amount of the VAT. The Customer must (where this Section
2.17(h)(ii)(A) applies) promptly pay to the Relevant Party an amount equal to
any credit or repayment the Customer receives from the relevant tax authority
which the Customer reasonably determines relates to the VAT chargeable on that
supply; and (B) (where the Customer is the person required to account to the
relevant tax authority for the VAT) the Relevant Party must promptly,
following demand from the Customer, pay to the Customer an amount equal to the
VAT chargeable on that supply but only to the extent that the Customer
reasonably determines that it is not entitled to a credit or repayment from
the relevant tax authority in respect of that VAT. DB2/ 48024258.7 118 (iii)
Where a Loan Document requires any Loan Party to reimburse or indemnify a
Credit Party for any cost or expense, that Loan Party shall reimburse or
indemnify (as the case may be) such Credit Party for the full amount of such
cost or expense, including such part as represents VAT, save to the extent
that such Credit Party reasonably determines that it is entitled to credit or
repayment in respect of such VAT from the relevant tax authority. (iv) Any
reference in this Section 2.17(h) to any Loan Party shall, at any time when
such Loan Party is treated as a member of a group or unity (or fiscal unity)
for VAT purposes, include (where appropriate and unless the context otherwise
requires) a reference to the person who is treated at that time as making the
supply or (as appropriate) receiving the supply, under the grouping rules
(provided for in Article 11 of Council Direction of 28 November 2006
(2006/112/EC) (or as implemented by the relevant member state of the European
Union or any other similar provision in any jurisdiction which is not a member
state of the European Union)) so that a reference to a Loan Party shall be
construed as a reference to that Loan Party or the relevant group or unity (or
fiscal unity) of which that Loan Party is a member for VAT purposes at the
relevant time or the relevant member (or head) of such group or unity (or
fiscal unity) at such time (as the case may be). (v) In relation to any supply
made by a Credit Party to any Loan Party under a Loan Document, if reasonably
requested by such Credit Party, that Loan Party must promptly provide such
Credit Party with details of that Loan Party's VAT registration and such other
information as is reasonably requested in connection with such Credit Party's
VAT reporting requirements in relation to such supply. (i) Determination.
Except as otherwise expressly provided in Section 2.17, a reference to
"determines" or "determined" in connection with tax provisions contained in
Section 2.17 means a determination made in the absolute discretion of the
person making the determination. (j) Survival. Each party's obligations under
this Section shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender, the
termination of the Revolving Commitments and FILO Commitments and the
repayment, satisfaction or discharge of all obligations under any Loan
Document (including the Payment in Full of the Secured Obligations). (k) For
purposes of this Section 2.17, the term "Lender" includes any Issuing Bank and
the term "applicable law" includes FATCA. United Kingdom Tax Matters: (l) Tax
Gross-Up. (i) A U.K. Loan Party shall, promptly upon becoming aware that it
must make a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Administrative Agent accordingly.
Similarly, a Lender shall promptly notify the Administrative Agent on becoming
so aware in respect of a payment payable to that Lender. If the Administrative
Agent receives such notification from a Lender it shall notify the Borrower
Representative. (ii) If a Tax Deduction is required by law to be made by or on
account of any U.K. Loan Party, the amount of the payment due from that U.K.
Loan Party shall be
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DB2/ 48024258.7 119 increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have been due if
no Tax Deduction had been required. (iii) A payment by a U.K. Borrower shall
not be increased under Section 2.17(l)(ii) above by reason of a Tax Deduction
on account of Taxes imposed by the United Kingdom on interest if, on the date
the payment falls due: (A) the payment could have been made to the relevant
Lender without a Tax Deduction if the Lender had been a U.K. Qualifying
Lender, but on that date that Lender is not or has ceased to be a U.K.
Qualifying Lender other than as a result of any change after the date it
became a Lender under this Agreement in (or in the interpretation,
administration, or application of) any law or U.K. Treaty or any published
practice or published concession of any relevant taxing authority; or (B) the
relevant Lender is a U.K. Qualifying Lender solely by virtue of sub-section
(a)(ii) of the definition of U.K. Qualifying Lender, and: (1) an officer of HM
Revenue & Customs has given (and not revoked) a direction (a "Direction")
under section 931 of the ITA which relates to the payment and that Lender has
received from the U.K. Borrower making the payment a certified copy of that
Direction; and (2) the payment could have been made to the Lender without any
Tax Deduction if that Direction had not been made; or (C) the relevant Lender
is a U.K. Qualifying Lender solely by virtue of sub-section (a)(ii) of the
definition of U.K. Qualifying Lender and: (1) the relevant Lender has not
given a Tax Confirmation to the Borrower Representative; and (2) the payment
could have been made to the Lender without any Tax Deduction if the Lender had
given a Tax Confirmation to the Borrower Representative, on the basis that the
Tax Confirmation would have enabled the applicable U.K. Borrower to have
formed a reasonable belief that the payment was an "excepted payment" for the
purpose of section 930 of the ITA; or (D) the relevant Lender is a U.K. Treaty
Lender and the applicable U.K. Borrower making the payment is able to
demonstrate that the payment could have been made to the Lender without the
Tax Deduction had that Lender complied with its obligations under Section
2.17(l)(vi) or (vii) (as applicable) below. (iv) If a U.K. Loan Party is
required to make a Tax Deduction, that U.K. Loan Party shall make that Tax
Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by law. (v) Within
thirty (30) days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the U.K. Loan Party making that Tax
Deduction shall deliver to the Administrative Agent for the benefit of the
Lender entitled to the payment a statement under section 975 of the ITA or
other evidence reasonably DB2/ 48024258.7 120 satisfactory to that Lender that
the Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority. (vi) (A) Subject to sub-section (B)
below, a U.K. Treaty Lender and each U.K. Loan Party which makes a payment to
which that U.K. Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that U.K. Loan Party to obtain
authorization to make that payment without a Tax Deduction. (B) (1) A U.K.
Treaty Lender which is a Lender on the Effective Date and that holds a
passport under the HMRC DT Treaty Passport scheme, and which wishes that
scheme to apply to this Agreement, shall confirm its scheme reference number
and its jurisdiction of tax residence opposite its name in the Commitment
Schedule; and (2) a U.K. Treaty Lender which is not a Lender on the Effective
Date and that holds a passport under the HMRC DT Treaty Passport scheme, and
which wishes that scheme to apply to this Agreement, shall include an
indication to that effect (for the benefit of the Administrative Agent and
without liability to a U.K. Loan Party) in the Assignment and Assumption which
it executes on becoming a party as a Lender by including its scheme reference
number and its jurisdiction of tax residence in that Assignment and
Assumption, and, having done so, that Lender shall be under no obligation
pursuant to sub-section (A) above. (vii) If a Lender has confirmed its scheme
reference number and its jurisdiction of tax residence in accordance with
Section 2.17(l)(vi)(B) above and: (A) a U.K. Borrower making a payment to that
Lender has not made a U.K. Borrower DTTP Filing in respect of that Lender; or
(B) a U.K. Borrower making a payment to that Lender has made a U.K. Borrower
DTTP Filing in respect of that Lender but: (1) that U.K. Borrower DTTP Filing
has been rejected by HM Revenue & Customs; or (2) HM Revenue & Customs has not
given a U.K. Borrower authority to make payments to that Lender without a Tax
Deduction within sixty (60) days of the date of the U.K. Borrower DTTP Filing,
and in each case, the applicable U.K. Borrower has notified that Lender in
writing, that Lender and such U.K. Borrower shall co-operate in completing any
additional procedural formalities necessary for that U.K. Borrower to obtain
authorization to make that payment without a Tax Deduction.
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DB2/ 48024258.7 121 (viii) If a Lender provides an indication to the effect
that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement,
as described in Section 2.17(i)(vi)(B) above, a U.K. Borrower shall make a
U.K. Borrower DTTP Filing in respect of such Lender, and shall promptly
provide the Administrative Agent with a copy of that filing for delivery to
the relevant Lender. (ix) If a Lender has not provided an indication to the
effect that it wishes the HMRC DT Treaty Passport scheme to apply to this
Agreement, as described in Section 2.17(i)(vi)(B) above, no U.K. Borrower
shall file any form relating to the HMRC DT Treaty Passport scheme in respect
of that Lender's advance or its participation in any advance unless the Lender
otherwise agrees. (x) A U.K. Non-Bank Lender which becomes a party to this
Agreement on the day on which this Agreement is entered into gives a Tax
Confirmation to each U.K. Borrower by entering into this Agreement. (xi) A
U.K. Non-Bank Lender shall notify each U.K. Borrower and the Administrative
Agent if there is any change in the position from that set out in a Tax
Confirmation. (m) Lender Status Confirmation. Each Lender which becomes a
party to this Agreement after the Effective Date with respect to a Loan or
Revolving Commitment extended to a U.K. Borrower (each a "New Lender") shall
indicate, in the Assignment and Assumption which it executes on becoming a
party, and for the benefit of the Administrative Agent and without liability
to any U.K. Loan Party, which of the following categories it falls within (i)
not a U.K. Qualifying Lender, (ii) a U.K. Qualifying Lender (other than a U.K.
Treaty Lender), or (iii) a U.K. Treaty Lender. If a New Lender fails to
indicate its status in accordance with this Section 2.17(m), then such New
Lender shall be treated for the purposes of this Agreement (including by each
U.K. Loan Party) as if it is not a U.K. Qualifying Lender until such time as
it notifies the Administrative Agent which category applies (and the
Administrative Agent, upon receipt of such notification, shall inform the
Borrower Representative). For the avoidance of doubt, an Assignment and
Assumption shall not be invalidated by any failure of a New Lender to comply
with this Section 2.17(m). (n) Tax Indemnity. (i) Any U.K. Loan Party shall
(within three (3) Business Days of demand by the Administrative Agent) pay to
a Lender an amount equal to the loss, liability or cost which that Lender
determines will be or has been (directly or indirectly) suffered for or on
account of Tax by that Lender in respect of a Loan or Revolving Commitment
extended to a U.K. Borrower. (ii) Section 2.17(n)(i) above shall not apply:
(A) with respect to any Tax assessed on a Lender: (1) under the law of the
jurisdiction in which that Lender is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Lender is treated as resident
for Tax purposes; or DB2/ 48024258.7 122 (2) under the law of the jurisdiction
in which that Lender's lending office is located in respect of amounts
received or receivable in that jurisdiction, if such Taxes are imposed on or
calculated by reference to the net income received or receivable (but not any
sum deemed to be received or receivable) by that Lender; or (B) to the extent
a loss, liability or cost: (1) is compensated for by an increased payment
under Section 2.17(l)(ii); or (2) would have been compensated for by an
increased payment under Section 2.17(l)(ii) but was not so compensated solely
because one of the exclusions in Section 2.17(l)(iii) applied; or (3) relates
to a FATCA Deduction. (iii) A Lender making, or intending to make a claim
under Section 2.17(l)(i) above shall promptly notify the Administrative Agent
of the event which will give, or has given, rise to the claim, following which
the Administrative Agent shall notify the U.K. Loan Party. (iv) A Lender
shall, on receiving a payment from a U.K. Loan Party under this Section
2.17(n), notify the Administrative Agent. (o) Australian Tax Matters. (i) If
requested in writing by the Australian Borrowers, each Lender that becomes a
party to this Agreement after the Third Amendment Effective Date shall provide
a representation to each Australian Borrower within ten (10) days of becoming
a party to this Agreement confirming either that: (A) it is an Australian
Qualifying Lender; or (B) it is not an Australian Qualifying Lender. If the
status of the Lender as either an Australian Qualifying Lender or not an
Australian Qualifying Lender changes after the initial representation is
given, then the Lender must provide a new representation to each Australian
Borrower in writing within ten (10) days of this change confirming its new
status. (ii) Each Lender who is a party to this Agreement as at the Third
Amendment Effective Date and who makes a Loan to an Australian Borrower
represents that: (A) it makes the Loan in carrying on business in Australia at
or through a permanent establishment in Australia; (B) it will not at any time
derive or be in receipt of any funds (including, for the avoidance of doubt,
interest) in relation to a Loan to an
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DB2/ 48024258.7 123 Australian Borrower at or through a permanent
establishment outside Australia; and (C) it will not change its lending office
for funding or booking any Loans to an Australian Borrower hereunder without
the prior written approval of each Australian Loan Party. (p) FATCA
Information. (i) Subject to Section 2.17(p)(iii) below, each party shall,
within ten (10) Business Days of a reasonable request by another party: (A)
confirm to that other party whether it is: (1) a FATCA Exempt Party; or (2)
not a FATCA Exempt Party; (B) supply to that other party such forms,
documentation and other information relating to its status under FATCA as that
other party reasonably requests for the purposes of that other party's
compliance with FATCA; and (C) supply to that other party such forms,
documentation and other information relating to its status as that other party
reasonably requests for the purposes of that other party's compliance with any
other law, regulation, or exchange of information regime. (ii) If a party
confirms to another party pursuant to Section 2.17(p)(i) above that it is a
FATCA Exempt Party and it subsequently becomes aware that it is not or has
ceased to be a FATCA Exempt Party, that party shall notify that other party
reasonably promptly. (iii) Section 2.17(p)(i) above shall not oblige any
Lender to do anything, and Section 2.17(p)(i)(C) above shall not oblige any
other Party to do anything, which would or might in its reasonable opinion
constitute a breach of: (A) any law or regulation; (B) any fiduciary duty; or
(C) any duty of confidentiality. (iv) If a party fails to confirm whether or
not it is a FATCA Exempt Party or to supply forms, documentation or other
information requested in accordance with Section 2.17(p)(i)(A) or Section
2.17(p)(i)(B) above (including, for the avoidance of doubt, where Section
2.17(p)(iii) above applies), then such party shall be treated for the purposes
of the Loan Documents (and payments under them) as if it is not a FATCA Exempt
Party until such time as the party in question provides the requested
confirmation, forms, documentation or other information. DB2/ 48024258.7 124
(q) FATCA Deduction. (i) Each party may make any FATCA Deduction it is
required to make by FATCA, and any payment required in connection with that
FATCA Deduction, and no party shall be required to increase any payment in
respect of which it makes such a FATCA Deduction or otherwise compensate the
recipient of the payment for that FATCA Deduction. (ii) Each party shall
promptly, upon becoming aware that it must make a FATCA Deduction (or that
there is any change in the rate or the basis of such FATCA Deduction), notify
the party to whom it is making the payment and, in addition, shall notify the
Borrower Representative and the Administrative Agent and the Administrative
Agent shall notify the Lenders. (r) Transfer and Assignment. (i) a Lender
assigns or transfers any of its rights or obligations under the Loan Documents
or changes its applicable lending office; and (ii) as a result of
circumstances existing at the date the assignment, transfer or change occurs,
a U.K. Loan Party would be obliged to make a payment to the New Lender or
Lender acting through its new lending office under Section 2.15 or this
Section 2.17, then the New Lender or Lender acting through its new lending
office is only entitled to receive payment under those Sections to the same
extent as the existing Lender or Lender acting through its previous lending
office would have been if the assignment, transfer or change had not occurred.
This Section 2.17(r) shall not apply: (x) in respect of an assignment or
transfer made in the ordinary course of the primary syndication of any Loan;
or (y) in relation to Section 2.17(l), to a U.K. Treaty Lender that has
included a confirmation of its scheme reference number and its jurisdiction of
tax residence in accordance with Section 2.17(l)(vi)(B) if the U.K. Borrower
making the payment has not made a U.K. Borrower DTTP Filing in respect of that
U.K. Treaty Lender; or (z) in respect of an assignment or transfer made (A) at
the request of a Loan Party, or (B) at a time when an Event of Default is
continuing Payments Generally; Allocation of Proceeds; Sharing of Setoffs. (a)
Each Borrower shall make each payment or prepayment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 2:00 p.m., Local Time, on the date when due or the date
fixed for any prepayment hereunder, in immediately available funds, without
setoff, recoupment or counterclaim. Any amounts received after such time on
any date may, in the discretion of the Administrative Agent, be deemed to have
been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made (i) with respect to all
payments of any Loans made by the U.S. Borrowers under the U.S.
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DB2/ 48024258.7 125 Tranche or of any FILO Loans, to the Administrative Agent
at its offices at 10 South Dearborn Street, Floor L2, Chicago, Illinois, and
(ii) with respect to all payments of any Loans made by the U.S. Borrowers,
U.K. Borrowers, the Dutch Borrowers and/or the Australian Borrowers under the
Foreign Tranche, in each case to the Administrative Agent at its offices at 25
Bank Street, Canary Wharf London E14 5JP, except payments to be made directly
to any Issuing Bank as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such
payments denominated in the same currency received by it for the account of
any other Person to the appropriate recipient promptly following receipt
thereof. Unless otherwise provided for herein, if any payment hereunder shall
be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be payable for the period of such
extension. Notwithstanding the foregoing provisions of this Section, if, after
the making of any Credit Event in any Foreign Currency, currency control or
exchange regulations are imposed in the country which issues such currency
with the result that the type of currency in which the Credit Event was made
(the "Original Currency") no longer exists, or any Borrower is not able to
make payment to the Administrative Agent for the account of the Lenders in
such Original Currency, or the terms of this Agreement require the conversion
of such Credit Event into U.S. Dollars, then all payments to be made by such
Borrower hereunder in such currency shall, to the fullest extent permitted by
law, instead be made when due in U.S. Dollars in an amount equal to the Dollar
Equivalent of such amount (as of the date of repayment) of such payment due,
it being the intention of the parties hereto that the Borrowers take all risks
of the imposition of any such currency control or exchange regulations or
conversion, and each Borrower agrees to indemnify and hold harmless each
Issuing Bank, the Administrative Agent and each Lender from and against any
loss resulting from any Credit Event made to or for the benefit of such
Borrower denominated in a Foreign Currency that is not repaid to such Issuing
Bank, the Administrative Agent or such Lender, as the case may be, in the
Original Currency. (b) All payments and any proceeds of Collateral received by
the Administrative Agent (i) not constituting either (A) a specific payment of
principal, interest, fees or other sum payable under the Loan Documents (which
shall be applied as specified by the applicable Borrowers), (B) a mandatory
prepayment (which shall be applied in accordance with Section 2.11) or (C)
amounts to be applied from the Collection Account during a Cash Dominion
Period (which shall be applied in accordance with Section 2.10(b)) or (ii)
after an Event of Default has occurred and is continuing and the Administrative
Agent so elects or the Required Lenders so direct, shall be applied ratably
first, to pay any fees, indemnities, or expense reimbursements then due to the
Administrative Agent and the Issuing Banks from the Borrowers (other than in
connection with Banking Services Obligations or Swap Agreement Obligations),
second, to pay any fees, indemnities, or expense reimbursements then due to
the Lenders from the Borrowers (other than in connection with Banking Services
Obligations or Swap Agreement Obligations), third, to pay interest due in
respect of the Revolving Overadvances and Protective Advances, fourth, to pay
the principal of the Revolving Overadvances and Protective Advances, fifth, to
pay interest then due and payable on the Revolving Loans (other than the
Revolving Overadvances and Protective Advances) ratably, sixth, to prepay
principal on the Revolving Loans (other than the Revolving Overadvances and
Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to
pay an amount to the Administrative Agent equal to 103% of the aggregate LC
Exposure, to be held as cash collateral for such Obligations, eighth, to pay
interest due in respect of the FILO Overadvances, ninth, to pay the principal
of the FILO Overadvances, tenth, to pay interest then due and payable on the
FILO Loans (other than the FILO Overadvances) ratably, eleventh, to prepay
principal on the FILO Loans (other than the FILO Overadvances) ratably,
twelfth, to payment of any amounts owing in respect of Banking Services
Obligations and Swap Agreement Obligations (other than in respect of the DB2/
48024258.7 126 Secured Inventory Financing Indebtedness) up to and including
the amount most recently provided to the Administrative Agent pursuant to
Section 2.22, thirteenth, to the payment of any other Secured Obligation due
to the Administrative Agent or any Lender by the Borrowers, and fourteenth, to
payment of any amounts owing in respect of the Secured Inventory Financing
Indebtedness up to and including the amount most recently provided to the
Administrative Agent pursuant to Section 2.22. Notwithstanding the foregoing
amounts received from any Loan Party shall not be applied to any Excluded Swap
Obligation of such Loan Party. Notwithstanding anything to the contrary
contained in this Agreement, unless so directed by the Borrower Representative,
or unless a Default is in existence, neither the Administrative Agent nor any
Lender shall apply any payment which it receives to any Term Benchmark Loan of
a Class, except (a) on the expiration date of the Interest Period applicable
thereto or (b) in the event, and only to the extent, that (i) in the case of
payments in U.S. Dollars under the U.S. Tranche, there are no outstanding CBFR
Loans of the same Class, (ii) in the case of payments in U.S. Dollars of FILO
Loans, there are no outstanding CBFR Loans of the same Class, and (iii) in the
case of payments in any Available Currency under the Foreign Tranche, there
are no outstanding Overnight Rate Loans of the same class, and, in any such
event under either clause (i), (ii) or (iii), the Borrowers shall pay the
break funding payment required in accordance with Section 2.16. The
Administrative Agent and the Lenders shall have the continuing and exclusive
right to apply and reverse and reapply any and all such proceeds and payments
to any portion of the Secured Obligations. (c) At the election of the
Administrative Agent, all scheduled payments of interest and all payments of
fees required to be paid pursuant to Section 2.12(a) and (b) hereof may be (x)
to the extent any Borrowings are outstanding at such time, paid from the
proceeds of Borrowings made hereunder (whether made following a request by the
Borrower Representative pursuant to Section 2.03 or a deemed request as
provided in this Section) or (y) to the extent no Borrowings are outstanding
at such time, deducted from any deposit account of any Borrower maintained
with the Administrative Agent (in each case, unless otherwise agreed between
the Administrative Agent and the Borrower Representative). Each U.S. Borrower
hereby irrevocably authorizes (unless otherwise agreed between the
Administrative Agent and the Borrower Representative) (i) the Administrative
Agent, to the extent any Borrowings are outstanding at such time, to make a
Borrowing for the purpose of paying each scheduled payment of interest and
each payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder, and agrees that all such
amounts charged shall constitute Loans and that all such Borrowings shall be
deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as
applicable, and (ii) the Administrative Agent, to the extent no Borrowings are
outstanding at such time, to charge any deposit account of the relevant U.S.
Borrower maintained with the Administrative Agent for each scheduled payment
of interest and each payment of fees required to be paid pursuant to Section
2.12(a) and (b) hereof, in each case as it becomes due hereunder. Each U.K.
Borrower hereby irrevocably authorizes (unless otherwise agreed between the
Administrative Agent and the Borrower Representative) (i) the Administrative
Agent, to the extent any Borrowings are outstanding at such time, to make a
Borrowing for the purpose of paying each scheduled payment of interest and
each payment of fees required to be paid pursuant to Section 2.12(a) and (b)
hereof, in each case as it becomes due hereunder, and agrees that all such
amounts charged shall constitute Loans and that all such Borrowings shall be
deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as
applicable, and (ii) the Administrative Agent, to the extent no Borrowings are
outstanding at such time, to charge any deposit account of the relevant U.K.
Borrower maintained with the Administrative Agent for each scheduled payment
of interest and each payment of fees required to be paid pursuant to Section
2.12(a) and (b) hereof, in each case as it becomes due hereunder. Each Dutch
Borrower hereby irrevocably authorizes (unless otherwise agreed between the
Administrative Agent and the Borrower Representative) (i) the Administrative
Agent, to the extent any Borrowings are outstanding at such time, to make a
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DB2/ 48024258.7 127 Borrowing for the purpose of paying each scheduled payment
of interest and each payment of fees required to be paid pursuant to Section
2.12(a) and (b) hereof, in each case as it becomes due hereunder, and agrees
that all such amounts charged shall constitute Loans and that all such
Borrowings shall be deemed to have been requested pursuant to Section 2.03,
2.04 or 2.05, as applicable, and (ii) the Administrative Agent, to the extent
no Borrowings are outstanding at such time, to charge any deposit account of
the relevant Dutch Borrower maintained with the Administrative Agent for each
scheduled payment of interest and each payment of fees required to be paid
pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due
hereunder. Each Australian Borrower hereby irrevocably authorizes (unless
otherwise agreed between the Administrative Agent and the Borrower
Representative) (i) the Administrative Agent, to the extent any Borrowings are
outstanding at such time, to make a Borrowing for the purpose of paying each
scheduled payment of interest and each payment of fees required to be paid
pursuant to Section 2.12(a) and (b) hereof, in each case as it becomes due
hereunder, and agrees that all such amounts charged shall constitute Loans and
that all such Borrowings shall be deemed to have been requested pursuant to
Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent,
to the extent no Borrowings are outstanding at such time, to charge any
deposit account of the relevant Australian Borrower maintained with the
Administrative Agent for each scheduled payment of interest and each payment
of fees required to be paid pursuant to Section 2.12(a) and (b) hereof, in
each case as it becomes due hereunder. (d) If, except as otherwise expressly
provided herein, any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other similarly situated
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by all such Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Loans and participations in LC Disbursements; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrowers pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrowers or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent shall have received, prior to any date on
which any payment is due to the Administrative Agent for the account of the
Lenders or the applicable Issuing Bank pursuant to the terms hereof or any
other Loan Document (including any date that is fixed for prepayment by notice
from the Borrower Representative to the Administrative Agent pursuant to
Section 2.11(c)), notice from the Borrower Representative that the Borrowers
will not make such payment or prepayment, the Administrative Agent may assume
that the Borrowers have made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders or the
applicable Issuing Bank, as the case may be, the amount DB2/ 48024258.7 128
due. In such event, if the Borrowers have not in fact made such payment, then
each of the Lenders or the applicable Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon,
for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater
of the NYFRB Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation. (f) If any
Lender shall fail to make any payment required to be made by it hereunder,
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations hereunder until all such unsatisfied obligations are fully paid
and/or (ii) hold any such amounts in a segregated account as cash collateral
for, and application to, any future funding obligations of such Lender
hereunder. Application of amounts pursuant to (i) and (ii) above shall be made
in any order determined by the Administrative Agent in its discretion. (g) The
Administrative Agent may from time to time provide the Borrowers with account
statements or invoices with respect to any of the Secured Obligations (the
"Statements"). The Administrative Agent is under no duty or obligation to
provide Statements, which, if provided, will be solely for the Borrowers'
convenience. Statements may contain estimates of the amounts owed during the
relevant billing period, whether of principal, interest, fees or other Secured
Obligations. If the Borrowers pay the full amount indicated on a Statement on
or before the due date indicated on such Statement, the Borrowers shall not be
in default of payment with respect to the billing period indicated on such
Statement; provided, that acceptance by the Administrative Agent, on behalf of
the Lenders, of any payment that is less than the total amount actually due at
that time (including but not limited to any past due amounts) shall not
constitute a waiver of the Administrative Agent's or the Lenders' right to
receive payment in full at another time. Mitigation Obligations; Replacement
of Lenders. (a) If any Lender requests compensation under Section 2.15, or if
any Loan Party is required to pay any Indemnified Taxes or additional amounts
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.17, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Loan Parties hereby agree
to pay all reasonable and documented costs and expenses incurred by any Lender
in connection with any such designation or assignment. (b) If any Lender
requests compensation under Section 2.15, or if any Loan Party is required to
pay any Indemnified Taxes or additional amounts to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender becomes a Defaulting Lender, then the Loan Parties may, at
their sole expense and effort, upon notice by the Borrower Representative to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04, with the Loan Parties or replacement lender
responsible for paying any applicable processing and recordation fee), all its
interests, rights (other than its existing rights to payments
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DB2/ 48024258.7 129 pursuant to Section 2.15 or 2.17) and obligations under
this Agreement and other Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Loan Parties shall have received the prior
written consent of the Administrative Agent (and in circumstances where its
consent would be required under Section 9.04, each such Issuing Bank), which
consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Loan Parties (in the case of all other amounts), (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments, (iv) such assignment
does not conflict with applicable law, and (v) in the case of any assignment
resulting from a Lender becoming a Non- Consenting Lender, the applicable
assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and
delegation cease to apply. Each party hereto agrees that (x) an assignment
required pursuant to this paragraph may be effected pursuant to an Assignment
and Assumption executed by the Borrower Representative, the Administrative
Agent and the assignee (or, to the extent applicable, an agreement
incorporating an Assignment and Assumption by reference pursuant to an
Approved Electronic Platform as to which the Administrative Agent and such
parties are participants), and (y) the Lender required to make such assignment
need not be a party thereto in order for such assignment to be effective and
shall be deemed to have consented to an be bound by the terms thereof;
provided that, following the effectiveness of any such assignment, the other
parties to such assignment agree to execute and deliver such documents
necessary to evidence such assignment as reasonably requested by the
applicable Lender, provided that any such documents shall be without recourse
to or warranty by the parties thereto. Defaulting Lenders. Notwithstanding any
provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as
such Lender is a Defaulting Lender: (a) fees shall cease to accrue on the
unfunded portions of the Revolving Commitment and the FILO Commitment of such
Defaulting Lender pursuant to Section 2.12(a); (b) any payment of principal,
interest, fees or other amounts received by the Administrative Agent for the
account of such Defaulting Lender (whether voluntary or mandatory, at
maturity, pursuant to Section 2.18(b) or otherwise) or received by the
Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall
be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by such
Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to
any Issuing Bank hereunder; third, to cash collateralize each Issuing Bank's
LC Exposure with respect to such Defaulting Lender in accordance with this
Section; fourth, as the Borrower Representative may request (so long as no
Default or Event of Default exists), to the funding of any Loan in respect of
which such Defaulting Lender has failed to fund its portion thereof as
required by this Agreement, as determined by the Administrative Agent; fifth,
if so determined by the Administrative Agent and the Borrower Representative,
to be held in a deposit account and released pro rata in order to (x) satisfy
such Defaulting Lender's potential future funding obligations with respect to
Loans under this Agreement and (y) cash collateralize each Issuing Bank's
future LC Exposure with respect to such Defaulting Lender with respect to
future Letters of Credit issued under this Agreement, in DB2/ 48024258.7 130
accordance with this Section; sixth, to the payment of any amounts owing to
the Lenders and/or the Issuing Banks as a result of any judgment of a court of
competent jurisdiction obtained by any Lender or any Issuing Bank against such
Defaulting Lender as a result of such Defaulting Lender's breach of its
obligations under this Agreement or under any other Loan Document; seventh, so
long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrowers as a result of any judgment of a court of competent
jurisdiction obtained by any Borrower against such Defaulting Lender as a
result of such Defaulting Lender's breach of its obligations under this
Agreement or under any other Loan Document; and eighth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided
that if (x) such payment is a payment of the principal amount of any Loans or
LC Disbursements in respect of which such Defaulting Lender has not fully
funded its appropriate share, and (y) such Loans were made or the related
Letters of Credit were issued at a time when the conditions set forth in
Section 4.02 were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on
a pro rata basis prior to being applied to the payment of any Loans of, or LC
Disbursements owed to, such Defaulting Lender until such time as all Loans and
funded and unfunded participations in the Borrowers' obligations corresponding
to such Defaulting Lender's LC Exposure are held by the Lenders pro rata in
accordance with the Revolving Commitments without giving effect to clause (d)
below. Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post cash collateral pursuant to this Section shall be
deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto; (c) such Defaulting Lender shall not have the
right to vote on any issue on which voting is required (other than to the
extent expressly provided in Section 9.02(b)) and the Revolving Commitment,
Revolving Exposure, FILO Commitment and FILO Exposure of such Defaulting
Lender shall not be included in determining whether the Required Lenders,
Required Revolving Lenders, Required FILO Lenders, Supermajority FILO Lenders,
Supermajority U.S. Tranche Lenders and/or Supermajority Foreign Tranche
Lenders, as applicable, have taken or may take any action hereunder (including
any consent to any amendment, waiver or other modification pursuant to Section
9.02) or under any other Loan Document; provided, that, except as otherwise
provided in Section 9.02, this clause (c) shall not apply to the vote of a
Defaulting Lender in the case of an amendment, waiver or other modification
requiring the consent of such Lender or each Lender directly affected thereby;
(d) if any LC Exposure exists at the time a Revolving Lender becomes a
Defaulting Lender then: (i) all or any part of the LC Exposure of such
Defaulting Lender shall be reallocated among the non-Defaulting Lenders that
are Revolving Lenders in accordance with their respective Applicable
Percentages but only to the extent that such reallocation does not, as to any
non-Defaulting Lender, cause such non-Defaulting Lender's (A) Revolving
Exposure to exceed its Revolving Commitment, (B) U.S. Tranche Revolving
Exposure to exceed its U.S. Tranche Commitment, or (C) Foreign Tranche
Revolving Exposure to exceed its Foreign Tranche Commitment, as applicable;
(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the applicable Borrower shall within one (1) Business
Day following notice by the Administrative Agent cash collateralize, for the
benefit of the Issuing Banks, the Borrowers' obligations corresponding to such
Defaulting Lender's LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above) in accordance with the procedures
set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;
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DB2/ 48024258.7 131 (iii) if the applicable Borrower cash collateralizes any
portion of such Defaulting Lender's LC Exposure pursuant to clause (ii) above,
the Borrowers shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.12(b) with respect to such Defaulting Lender's LC
Exposure during the period such Defaulting Lender's LC Exposure is cash
collateralized; (iv) if the LC Exposure of the non-Defaulting Lenders is
reallocated pursuant to clause (i) above, then the fees payable to the
Revolving Lenders (in their capacity as Revolving Lenders) pursuant to
Sections 2.12(a) and 2.12(b) shall be adjusted in accordance with such
non-Defaulting Lenders' Applicable Percentages; and (v) if all or any portion
of such Defaulting Lender's LC Exposure is neither reallocated nor cash
collateralized pursuant to clause (i) or (ii) above, then, without prejudice
to any rights or remedies of the Issuing Bank or any other Lender hereunder,
all letter of credit fees payable under Section 2.12(b) with respect to such
Defaulting Lender's LC Exposure shall be payable to the Issuing Bank until and
to the extent that such LC Exposure is reallocated and/or cash collateralized;
and (e) so long as such Lender is a Defaulting Lender, the Issuing Bank shall
not be required to issue, amend, renew, extend or increase any Letter of
Credit, unless it is satisfied that such Defaulting Lender's then outstanding
LC Exposure will be 100% covered by the Revolving Commitments of the
non-Defaulting Lenders and/or cash collateral will be provided by the
applicable Borrower in accordance with Section 2.20(d), and LC Exposure
related to any newly issued or increased Letter of Credit shall be allocated
among non-Defaulting Lenders that are Revolving Lenders in a manner consistent
with Section 2.20(d)(i) (and such Defaulting Lender shall not participate
therein). (f) If (i) a Bankruptcy Event or a Bail-In Action with respect to
the Parent of any Lender shall occur following the date hereof and for so long
as such event shall continue or (ii) any Issuing Bank has a good faith belief
that any Lender has defaulted in fulfilling its obligations under one or more
other agreements in which such Lender commits to extend credit, such Issuing
Bank shall not be required to issue, amend or increase any Letter of Credit,
unless such Issuing Bank shall have entered into arrangements with the
Borrowers or such Lender, satisfactory to the Issuing Bank to defease any risk
to it in respect of such Lender hereunder. (g) In the event that each of the
Administrative Agent, the Borrowers and the Issuing Banks agrees that a
Defaulting Lender has adequately remedied all matters that caused such Lender
to be a Defaulting Lender, then the LC Exposure of the Revolving Lenders shall
be readjusted to reflect the inclusion of such Lender's Revolving Commitment
and on the date of such readjustment such Lender shall purchase at par such of
the Loans of the other Lenders as the Administrative Agent shall determine may
be necessary in order for such Lender to hold such Loans in accordance with
its Applicable Percentage. Returned Payments. If after receipt of any payment
which is applied to the payment of all or any part of the Obligations
(including a payment effected through exercise of a right of setoff), the
Administrative Agent or any Lender is for any reason compelled to surrender
such payment or proceeds to any Person because such payment or application of
proceeds is invalidated, declared fraudulent, set aside, determined to be void
or voidable as a preference, impermissible setoff, or a diversion of trust
funds, or for any other reason (including pursuant to any settlement entered
into by the Administrative Agent or such Lender in its discretion), then the
Obligations or part thereof intended to be satisfied shall be revived and
continued and this Agreement shall continue in full force as if such payment
or proceeds had DB2/ 48024258.7 132 not been received by the Administrative
Agent or such Lender. The provisions of this Section 2.21 shall be and remain
effective notwithstanding any contrary action which may have been taken by the
Administrative Agent or any Lender in reliance upon such payment or
application of proceeds. The provisions of this Section 2.21 shall survive the
termination of this Agreement. Banking Services and Swap Agreements. Each
Lender or Affiliate thereof providing Banking Services for, or having Swap
Agreements with, any Loan Party or any Restricted Subsidiary of a Loan Party
shall deliver to the Administrative Agent, promptly after entering into such
Banking Services or Swap Agreements (or to the extent existing on the
Effective Date, promptly after the Effective Date), written notice setting
forth the aggregate amount of all Banking Services Obligations and Swap
Agreement Obligations of such Loan Party or Restricted Subsidiary thereof to
such Lender or Affiliate (whether matured or unmatured, absolute or
contingent). In addition, each such Lender or Affiliate thereof shall deliver
to the Administrative Agent, from time to time after a significant change
therein or upon a request therefor, a summary of the amounts due or to become
due in respect of such Banking Services Obligations and Swap Agreement
Obligations. The most recent information provided to the Administrative Agent
shall be used in determining the amounts to be applied in respect of such
Banking Services Obligations and/or Swap Agreement Obligations pursuant to
Section 2.18(b) and which tier of the waterfall, contained in Section 2.18(b),
such Banking Services Obligations and/or Swap Agreement Obligations will be
placed, and the Administrative Agent shall be under no obligation to inquire
as to the existence of any Banking Services Obligations or Swap Agreement
Obligations of which it has not been specifically advised. For the avoidance
of doubt, so long as JPMCB or its Affiliate is the Administrative Agent,
neither JPMCB nor any of its Affiliates providing Banking Services for, or
having Swap Agreements with, any Loan Party or any Subsidiary or Affiliate of
a Loan Party shall be required to provide any notice described in this Section
2.22 in respect of such Banking Services or Swap Agreements. Extension of
Maturity Date. (a) Request for Extension. The Borrower Representative may, by
notice to the Administrative Agent (each, an "Extension Request") not later
than ninety (90) days prior to the Maturity Date then in effect hereunder (the
"Existing Maturity Date"), request that each Lender extend the Existing
Maturity Date and, as part of such Extension Request, propose amendments to
the terms hereunder and the requested deadline for responding to such
Extension Request (the "Extension Request Deadline"). (b) Lender Elections to
Extend. Each Lender, acting in its sole and individual discretion, shall, by
notice to the Administrative Agent advise the Administrative Agent as to
whether or not such Lender agrees to the applicable Extension Request (each
Lender that agrees to such Extension Request an "Extending Lender" and each
Lender that determines not to agree to such Extension Request, a "Non-Extending
Lender") promptly after making such determination (but in any event no later
than the Extension Request Deadline) and any Lender that does not so advise
the Administrative Agent on or before the Extension Request Deadline shall be
deemed to be a Non-Extending Lender. The election of any Lender to agree to an
Extension Request shall not obligate any other Lender to so agree. (c)
Additional Commitment Lenders. On the effective date of the Extension
Amendment (as defined below), the Borrowers shall have the right to replace
each Non-Extending Lender with, and add as "Revolving Lenders" or "FILO
Lenders", as applicable, under this Agreement in place thereof, one or more
assignees subject to the consent (such consent not to be unreasonably
withheld) of the Administrative Agent and the Issuing Banks (each, an
"Additional Commitment Lender") in order to obtain sufficient commitments with
respect to any Extension Request.
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DB2/ 48024258.7 133 (d) Extension Documentation. The Existing Maturity Date
shall be extended with respect to the Extending Lenders and Additional
Commitment Lenders, each Additional Commitment Lender, if any, shall become a
"Lender" and "Revolving Lender" and/or "FILO Lender", as applicable, for all
purposes of this Agreement, and any other proposed amendments to the terms
hereunder (such other proposed amendments, the "Other Extended Loan
Amendments") shall (as to the Extending Lenders and the Additional Commitment
Lenders only) become effective (subject to clause (f) below) on the effective
date of, and pursuant to, an amendment (an "Extension Amendment") to this
Agreement and, as appropriate, the other Loan Documents, executed by the
Borrowers, the other Loan Guarantors, each Extending Lender, each Additional
Commitment Lender and the Administrative Agent; provided that (except for
Other Extended Loan Amendments (i) with respect to the Applicable Rate for the
Loans made by the Extending Lenders and/or the Additional Commitment Lenders,
(ii) with respect to the available Interest Periods for the Loans made by
Extending Lenders and Additional Commitment Lenders, (iii) approved by the
Required Lenders (or such greater percentage required by Section 9.02) or (iv)
that are less favorable to the Extending Lenders and the Additional Commitment
Lenders than the terms applicable to Loans made by Non-Extending Lenders),
such Other Extended Loan Amendments shall only apply to periods after the date
on which all Non-Extending Lenders cease to be Lenders. An Extension Amendment
may, without the consent of any Non-Extending Lenders, effect such amendments
to any Loan Documents as may be necessary or appropriate, in the opinion of
the Administrative Agent, to effect the provisions of this Section, including,
for the avoidance of doubt, by amending Sections 2.18(b) or (d) to alter the
pro rata sharing of payments to the Lenders by Borrowers to the extent
necessary to account for the Payment in Full of the Secured Obligations of the
Non- Extending Lenders. Upon the effectiveness thereof, the Administrative
Agent shall provide a copy of any Extension Amendment to all Lenders. (e)
Repayment for Non-Extending Lenders. On the effective date of the Extension
Amendment, the Borrowers shall prepay in full, to the extent that any
Non-Extending Lenders are to be replaced on such date by one or more
Additional Commitment Lenders, any Obligations owing to such Non-Extending
Lenders on a pro rata basis, and shall also prepay any Loans outstanding on
such date to the extent necessary to keep outstanding Loans ratable with any
revised Applicable Percentages of the respective Lenders effective as of such
date. To the extent any Non- Extending Lenders are not replaced on the
effective date of the Extension Amendment, the Borrowers shall repay in full
any Obligations owing to such Non-Extending Lenders on the Existing Maturity
Date (it being understood that notwithstanding anything contained herein to
the contrary, the FILO Commitments may be reduced in connection with any such
Extension Amendment to the extent agreed to by the Additional Commitment
Lenders, the Extending Lenders and the Loan Parties in such Extension
Amendment). (f) Administrative Agent. If the Administrative Agent is not also
an Extending Lender, and the Administrative Agent desires to resign, the
Extension Amendment shall not become effective until: (i) the Extending
Lenders and Additional Commitment Lenders have appointed a replacement
administrative agent and such replacement administrative agent has agreed in
writing to assume the rights and duties of the resigning Administrative Agent,
(ii) such replacement agent executes such documents as reasonably requested by
the resigning Administrative Agent to effect such replacement, (iii) the
Borrowers, Extending Lenders, and Additional Commitment Lenders agree in
writing that the indemnification and reimbursement provisions set forth herein
for the benefit of the Administrative Agent or any Lender shall continue in
full force effect for such resigning Administrative Agent, and (iv) all
Obligations owing to such resigning Administrative Agent are repaid in full by
Borrower or cash collateralized on terms and conditions reasonably
satisfactory to such resigning Administrative Agent. DB2/ 48024258.7 134 (g)
Payments. For the avoidance of doubt, the provisions of Section 2.18(d) shall
not apply to any payments made by Borrowers pursuant to clause (e) of this
Section 2.23 or to any upfront fees paid by Borrowers to any Extending Lender
or Additional Commitment Lender as part of such Extending Lender's or
Additional Commitment Lender's commitment with respect to an Extension
Request. (h) Conflicting Provisions. This Section 2.24 shall supersede any
provisions in Section 9.02 to the contrary. Judgment Currency. If for the
purposes of obtaining judgment in any court it is necessary to convert a sum
due from any Borrower or any other Loan Party hereunder in the currency
expressed to be payable herein (the "specified currency") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main New York City office on the Business Day preceding that on which
final, non-appealable judgment is given. The obligations of each Borrower and
each other Loan Party in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender or the Administrative Agent (as the case may be) may in
accordance with normal, reasonable banking procedures purchase the specified
currency with such other currency. If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, each
Borrower and each Loan Party agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case
may be, against such loss, and if the amount of the specified currency so
purchased exceeds (a) the sum originally due to any Lender or the
Administrative Agent, as the case may be, in the specified currency and (b)
any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 2.19, such
Lender or the Administrative Agent, as the case may be, agrees to remit such
excess to such Borrower or such Loan Party. ARTICLE III Representations and
Warranties. Each Loan Party represents and warrants to the Lenders that:
Organization; Powers. Each Loan Party and each Restricted Subsidiary (a) is
duly organized, incorporated, or formed, as applicable, validly existing and
in good standing (to the extent such concept exists in the relevant
jurisdictions) under the laws of the jurisdiction of its organization, (b) has
all requisite power and authority to carry on its business as now conducted
and (c) is qualified to do business, and is in good standing (to the extent
such concept exists in the relevant jurisdictions), in every jurisdiction
where such qualification is required, except in the case of clause (a) (other
than with respect to any Loan Party), (b) or (c), where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. Authorization; Enforceability. (a) The
execution, delivery and performance by each Loan Party of each of the Loan
Documents to which such Loan Party is a party, the borrowing of Loans and
other extensions of credit, and the use of proceeds thereof, in each case are
within each Loan Party's corporate or other
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DB2/ 48024258.7 135 organizational powers and have been duly authorized by all
necessary corporate or other organizational actions on the part of such Loan
Party and, if required, actions by such Loan Party's equity holders,
including, with respect to each Dutch Loan Party, an unconditional, positive,
written advice from any works council in relation to the transactions
contemplated by this Agreement and any other document required for compliance
with the Dutch Works Council Act (Wet op de Ondernemingsraden). Each Loan
Document to which each Loan Party is a party has been duly executed and
delivered by such Loan Party and constitutes a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law. (b) The choice of governing law provisions contained in this
Agreement and each other Loan Document to which any European Loan Party is a
party are enforceable in the jurisdictions where such European Loan Party is
organized or incorporated or any Collateral of such European Loan Party is
located. Any judgment obtained in connection with this Agreement or any other
Loan Document in the jurisdiction of the governing law this Agreement or such
other Loan Document will be recognized and be enforceable in the jurisdictions
where such European Loan Party is organized or any Collateral of such European
Loan Party is located, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and subject to (i) general principles of
equity, regardless of whether considered in a proceeding at equity or at law,
and (ii) the matters which are set out as qualifications or reservations as to
matters of law of general applicability in the legal opinions provided to the
Administrative Agent in accordance with Section 4.01(a). Governmental
Approvals; No Conflicts. The execution, delivery and performance by each Loan
Party of each of the Loan Documents to which such Loan Party is a party, the
borrowing of Loans and other extensions of credit, and the use of proceeds
thereof (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except (i) such as
have been obtained or made and are in full force and effect, (ii) for filings
necessary to perfect Liens created pursuant to the Loan Documents, and (iii)
those consents, approvals, registrations, filings or actions, the failure of
which to obtain or make would not reasonably be expected to have a Material
Adverse Effect, (b) will not violate any charter, articles or certificate of
organization or formation, bylaws, operating agreements, constitution or other
organizational or governing documents of any Loan Party, (c) will not violate
any Requirement of Law applicable to any Loan Party or any Restricted
Subsidiary in a manner which would reasonably be expected to have a Material
Adverse Effect, (d) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Loan Party or any
Restricted Subsidiary or the assets of any Loan Party or any Restricted
Subsidiary in a manner which would reasonably be expected to have a Material
Adverse Effect, or give rise to a right thereunder (other than any Loan
Document) to require any payment to be made by any Loan Party or any
Restricted Subsidiary in a manner which would reasonably be expected to have a
Material Adverse Effect, and (e) will not result in the creation or imposition
of, or the requirement to create, any Lien on any asset of any Loan Party or
any Restricted Subsidiary, except Liens permitted under Section 6.02.
Financial Condition; No Material Adverse Change. (a) Insight has made
available to the Lenders (i) the consolidated balance sheet and consolidated
statements of operations, stockholders' equity and cash flows of Insight and
its Subsidiaries as of and for the fiscal year ended December 31, 2018,
reported on by KPMG LLP, independent public accountants, and (ii) the
consolidated balance sheet and consolidated statements of operations and cash
flows of Insight and its Subsidiaries as of and for the fiscal quarter and the
DB2/ 48024258.7 136 portion of the fiscal year ended June 30, 2019, certified
by its Financial Officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of Insight and its Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above. (b) After the Effective Date only, no event, change or condition has
occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect, since December 31, 2018. Properties. Schedule 3.05 sets forth
the address of each real property that is owned or leased by any Loan Party as
of the Third Amendment Effective Date. Each of the Loan Parties and each of
its Restricted Subsidiaries has good and indefeasible title to, or valid
leasehold or other interests in, all of its real and personal property
material to the present conduct of its business, (i) free of all Liens other
than those permitted by Section 6.02 and (ii) other than with respect to
Eligible Accounts, Eligible Real Property, Eligible Finished Goods Inventory,
Eligible Inventory and Eligible Work-In-Process Inventory, except for defects
in title that do not materially interfere with its ability to conduct its
business or to utilize such properties and assets for their intended purposes
and except where the failure to have such title or other interests would not
reasonably be expected to have a Material Adverse Effect. Except as would not
reasonably be expected to have a Material Adverse Effect, each Loan Party and
each Restricted Subsidiary owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents, industrial designs, and other intellectual
property necessary to its business as currently conducted; and the use thereof
by each Loan Party and each Restricted Subsidiary does not infringe upon the
rights of any other Person in a manner that would reasonably be expected to
have a Material Adverse Effect. Litigation and Environmental Matters. (a)
There are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of any Loan Party,
threatened in writing against or affecting any Loan Party or any Restricted
Subsidiary (i) that would reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that challenge the validity or enforceability of this
Agreement or any other material Loan Document. (b) Except for the Disclosed
Matters and except as could not reasonably be expected to result in a Material
Adverse Effect, no Loan Party or any Restricted Subsidiary (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received notice
of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability. (c) Since the Third Amendment Effective
Date, there has been no change in the status of the Disclosed Matters that,
individually or in the aggregate, has resulted in a Material Adverse Effect.
Compliance with Laws and Agreements; No Default. Except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, each Loan Party and each Restricted
Subsidiary is in compliance with (a) all Requirement of Law applicable to it
or its property and (b) each charter, articles or certificate of organization
or formation, bylaws, operating agreement, constitution or other organizational
or governing document of any Loan Party or any Restricted Subsidiary. No
Default has occurred and is continuing.
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DB2/ 48024258.7 137 Investment Company Status. No Loan Party nor any
Restricted Subsidiary is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940. Taxes. Each Loan Party
and each Restricted Subsidiary has timely filed or caused to be filed all Tax
returns and Tax reports required to have been filed and has paid or caused to
be paid all Taxes required to have been paid by it, except (a) Taxes that are
being contested in good faith by appropriate proceedings and for which such
Loan Party or such Restricted Subsidiary, as applicable, has set aside on its
books adequate reserves or (b) to the extent that the failure to do so could
not be reasonably expected to result in a Material Adverse Effect. No tax
liens (other than those permitted by Section 6.02) have been filed. Except, in
each case, to the extent failure to do so could not reasonably be expected to
have a Material Adverse Effect, each Canadian Loan Party or other Loan Party
having employees in Canada has withheld all employee withholdings and has made
all employer contributions to be withheld and made by it pursuant to
applicable law on account of any Canadian Pension Plan, employment insurance
and employee income taxes. ERISA; Foreign Benefit Arrangement; Canadian
Pension Plan and Benefit Plan; UK Pensions. (a) No ERISA Event or Foreign
Benefit Arrangement Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events and Foreign Benefit
Arrangement Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87 or subsequent recodification thereof, as applicable) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of such Plan, except for any such
underfunding that could not reasonably be expected to have a Material Adverse
Effect. The fair market value of the assets of each funded Foreign Benefit
Arrangement, the liability of each insurer for any Foreign Benefit Arrangement
funded through insurance or the book reserve established for any Foreign
Benefit Arrangement, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the Third
Amendment Effective Date, with respect to all current and former participants
in such Foreign Benefit Arrangements according to the actuarial assumptions
and valuations most recently used to account for such obligations in
accordance with applicable generally accepted accounting principles except for
any underfunding that could not reasonably be expected to have a Material
Adverse Effect. (b) The Canadian Pension Plans are duly registered under the
Canadian ITA and all other material applicable laws which require
registration. As of the Third Amendment Effective Date, none of the Canadian
Pension Plans is a Canadian Defined Benefit Plan. Except as would not
reasonably be expected to have a Material Adverse Effect, each relevant Loan
Party and each of their Restricted Subsidiaries has complied with and
performed in all of its obligations under and in respect of the Canadian
Pension Plans under the terms thereof, any funding agreements and all
applicable laws (including any fiduciary, funding, investment and
administration obligations). Except as would not reasonably be expected to
have a Material Adverse Effect, all material employer and employee payments,
contributions or premiums to be remitted, paid to or in respect of each
Canadian Pension Plan have been paid in a timely fashion in accordance with
the terms thereof, any funding agreement and all applicable laws. Except as
would not reasonably be expected to have a Material Adverse Effect, there have
been no material improper withdrawals or applications of the assets of the
Canadian Pension Plans. Except, in each such case, as would not reasonably be
expected to have a Material Adverse Effect, there has been no termination or
partial termination of any Canadian Pension Plan and, no facts or
circumstances have occurred or existed DB2/ 48024258.7 138 that could result,
or be reasonably anticipated to result, in the declaration of a termination or
partial termination of any Canadian Pension Plan under Requirements of Law.
(c) As of the Third Amendment Effective Date, no Loan Party nor any of its
Restricted Subsidiaries is: (i) an employer (for the purposes of sections 38
to 51 of the Pensions Act 2004) of an occupational pension scheme which is not
a money purchase scheme (both terms as defined in the Pensions Schemes Act
1993); or (ii) "connected" with or an "associate" (as those terms are used in
sections 38 and 43 of the Pensions Act 2004) of such an employer. Disclosure.
(a) Neither the Lender Presentation nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of any
Loan Party or any Restricted Subsidiary to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document (other than information of a general economic or industry specific
nature, any projections and other forward looking information) (as modified or
supplemented by other information so furnished) (in the case of information
regarding the Target prior to the Effective Date, to the knowledge of any Loan
Party) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information contained in the
materials referenced above, the Loan Parties represent only that such
information was prepared in good faith based upon assumptions believed by such
Loan Parties to be reasonable at the time delivered (it being recognized by
the Administrative Agent and Lenders that such projections are not to be
viewed as facts or a guarantee of performance and are subject to significant
uncertainties and contingencies many of which are beyond the Loan Parties'
control, that no assurance can be given that any particular projections will
be realized, that actual results may differ from projected results and that
such differences may be material). (b) As of the Third Amendment Effective
Date, to the best knowledge of any Borrower, the information included in the
Beneficial Ownership Certification provided on or prior to the Third Amendment
Effective Date to any Lender in connection with this Agreement is true and
correct in all respects. [Reserved]. Solvency. For the Borrowers and their
Restricted Subsidiaries, as of the Third Amendment Effective Date, (i) the sum
of the debt (including contingent liabilities) of the Borrowers and their
Restricted Subsidiaries, taken as a whole, does not exceed the fair value of
the assets (on a going concern basis) of the Borrowers and their Restricted
Subsidiaries, taken as a whole, (ii) the present fair saleable value of the
assets of the Borrowers and their Restricted Subsidiaries, taken as a whole,
is not less than the amount that will be required to pay the probable
liabilities (including contingent liabilities) of the Borrowers and their
Restricted Subsidiaries, taken as a whole, on their debts as they become
absolute and matured, (iii) the capital of the Borrowers and their Restricted
Subsidiaries, taken as a whole, is not unreasonably small in relation to the
business of the Borrowers and their Restricted Subsidiaries, taken as a whole,
contemplated as of the Third Amendment Effective Date; and (iv) the Borrowers
and their Restricted Subsidiaries, taken as a whole, do not intend to incur,
or believe that they will incur, debts (including current obligations and
contingent liabilities) beyond their ability to pay such debt as they mature
in the ordinary course of business. For the purposes hereof, the amount of any
contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
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DB2/ 48024258.7 139 Insurance. Each Loan Party maintains, and has caused each
Restricted Subsidiary to maintain, with financially sound and reputable
insurance companies, insurance on all their real and personal property in such
amounts, subject to such deductibles and self-insurance retentions and
covering such properties and risks as are prudent and customarily maintained
by companies engaged in the same or similar businesses operating in the same
or similar locations. Subsidiaries. Schedule 3.15 sets forth, in each case as
of the Third Amendment Effective Date (a) a correct and complete list of all
of Insight's Subsidiaries and (b) the jurisdiction of organization of Insight
and each of its Subsidiaries. All of the issued and outstanding Equity
Interests owned by any Loan Party in its Restricted Subsidiaries have been (to
the extent such concepts are relevant with respect to such ownership
interests) duly authorized and issued and are fully paid and non-assessable.
There are no outstanding commitments or other obligations of any Loan Party to
issue, and no options, warrants or other rights of any Person to acquire, any
shares of any class of capital stock or other Equity Interests of any Loan
Party, in each case which would constitute Disqualified Equity Interests.
Security Interest in Collateral. Subject to the last paragraph of Section 4.01
and the other exceptions and limitations set forth in the Loan Documents, the
provisions of this Agreement and the other Loan Documents create legal and
valid Liens on all of the Collateral in favor of the Administrative Agent, for
the benefit of the holders of Secured Obligations, and, when and to the extent
required by the Security Agreements, such Liens constitute perfected and
continuing Liens on the Collateral, securing the Secured Obligations and
having priority over all other Liens on the Collateral except in the case of
(a) Liens permitted by Section 6.02, to the extent such Liens would have
priority over the Liens in favor of the Administrative Agent pursuant to any
applicable law or agreement and (b) Liens perfected only by possession
(including possession of any certificate of title) to the extent the
Administrative Agent has not obtained or does not maintain possession of such
Collateral. Employment Matters. As of the Third Amendment Effective Date,
there are no strikes, lockouts or slowdowns against any Loan Party or any
Restricted Subsidiary pending or, to the knowledge of any Loan Party,
threatened in writing that would reasonably be expected to have a Material
Adverse Effect. Except, in each such case, as would not reasonably be expected
to have a Material Adverse Effect, the hours worked by and payments made to
employees of the Loan Parties and their Restricted Subsidiaries have not been
in violation of the Fair Labor Standards Act, the Employee Standards Act
(Ontario), the Fair Work Act 2009 (Cth) of Australia or any other applicable
Federal, state, provincial, territorial, local or foreign law dealing with
such matters. Except, in each such case, as would not reasonably be expected
to have a Material Adverse Effect, all payments due from any Loan Party or any
Restricted Subsidiary, or for which any claim may be made against any Loan
Party or any Restricted Subsidiary, on account of wages and employee health
and welfare insurance and other benefits, including on account of any Canadian
Pension Plan or Australian Pension Plans, have been paid or accrued as a
liability on the books of such Loan Party or such Restricted Subsidiary.
Margin Regulations. No Loan Party is engaged and will not engage, principally
or as one of its important activities, in the business of purchasing or
carrying Margin Stock, or extending credit for the purpose of purchasing or
carrying Margin Stock, and no part of the proceeds of any Borrowing or Letter
of Credit hereunder will be used to buy or carry any Margin Stock in violation
of Regulation T, Regulation U or Regulation X. Use of Proceeds. The proceeds
of the Loans have been used and will be used, whether directly or indirectly
as set forth in Section 5.08. [Reserved]. DB2/ 48024258.7 140 Anti-Corruption
Laws and Sanctions. Each Loan Party has implemented and maintains in effect
policies and procedures designed to ensure compliance by such Loan Party, its
Subsidiaries and their respective directors, officers, employees and agents
with Anti-Corruption Laws and applicable Sanctions, and such Loan Party, its
Subsidiaries and their respective officers and directors and, to the knowledge
of such Loan Party, its employees and agents, are in compliance with
Anti-Corruption Laws in all material respects and applicable Sanctions and are
not knowingly engaged in any activity that would reasonably be expected to
result in any Loan Party being designated as a Sanctioned Person. None of (a)
any Loan Party, any Subsidiary or any of their respective directors, officers
or, to the knowledge of any such Loan Party or Subsidiary, employees, or (b)
to the knowledge of any such Loan Party or Subsidiary, any agent of such Loan
Party or any Subsidiary that will act in any capacity in connection with or
benefit from the credit facility established hereby, is a Sanctioned Person.
No Borrowing or Letter of Credit, use of proceeds of any Borrowing or Letter
of Credit or other transaction contemplated by this Agreement or the other
Loan Documents will violate Anti-Corruption Laws or applicable Sanctions. The
foregoing representations in this Section 3.21 will not apply to any party
hereto to which Council Regulation (EC) 2271/96 (the "Blocking Regulation")
applies, if and to the extent that such representations are or would be
unenforceable by or in respect of that party pursuant to, or would otherwise
result in a breach and/or violation of, (i) any provision of the Blocking
Regulation (or any law or regulation implementing the Blocking Regulation in
any member state of the European Union) or (ii) any similar blocking or anti-
boycott law in the United Kingdom. [Reserved]. Common Enterprise. The
successful operation and condition of each of the Loan Parties is dependent on
the continued successful performance of the functions of the group of the Loan
Parties as a whole and the successful operation of each of the Loan Parties is
dependent on the successful performance and operation of each other Loan
Party. Each Loan Party expects to derive benefit (and its board of directors
or other governing body has determined that it may reasonably be expected to
derive benefit), directly and indirectly, from (a) successful operations of
each of the other Loan Parties and (b) the credit extended by the Lenders to
the Borrowers hereunder, both in their separate capacities and as members of
the group of companies. Each Loan Party has determined that execution,
delivery, and performance of this Agreement and any other Loan Documents to be
executed by such Loan Party is within its purpose, in furtherance of its
direct and/or indirect business interests, will be of direct and/or indirect
benefit to such Loan Party, and is in its best interest. Affected Financial
Institutions. No Loan Party is an Affected Financial Institution. Plan Assets;
Prohibited Transactions. No Loan Party or any of its Restricted Subsidiaries
is an entity deemed to hold "plan assets" (within the meaning of the Plan
Asset Regulations), and, subject to the accuracy of Lenders' representations
in Section 8.09, neither the execution, delivery nor performance of the
transactions contemplated under this Agreement, including the making of any
Loan and the issuance of any Letter of Credit hereunder, will give rise to a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code. Centre of Main Interest and Establishments. For the purpose of
the European Union Regulation, the centre of main interest (as that term is
used in Article 3(1) of the European Union Regulation) for each Foreign Loan
Party (other than any Canadian Loan Party or Australian Loan Party) is
situated in its jurisdiction of incorporation, and it has no establishment (as
that term is used in Article 2(10) of the European Union Regulation) in any
other jurisdiction.
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DB2/ 48024258.7 141 Fiscal Unity. With respect to each Dutch Loan Party, it is
not a member of a fiscal unity (fiscale eenheid) other than a Dutch CIT Fiscal
Unity among Dutch Loan Parties only. Australian Tax Consolidation and Payment
of Taxes. As of the Third Amendment Effective Date, no Australian Loan Party
is a member of an Australian Tax Consolidated Group except for an Australian
Tax Consolidated Group where all the members are Loan Parties. Commercial
Benefit. In relation to the Australian Loan Parties, the entry into this
Agreement and each other Loan Document to which it is a party is for such
Australian Loan Party's commercial benefit. No Immunity. The Australian Loan
Parties do not have any right of immunity from set-off, legal action, suit or
proceeding, attachment or execution or the jurisdiction of any court with
respect to the Collateral owned by the Australian Loan Parties or their
obligations under this Agreement or the other Loan Documents to which they are
a party. ARTICLE IV Conditions Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder on
the Effective Date shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section
9.02): (a) Credit Agreement and Other Loan Documents. The Administrative Agent
(or its counsel) shall have received (i) from each Loan Party party hereto a
counterpart of this Agreement signed on behalf of such Loan Party (which,
subject to Section 9.06(b), may include any Electronic Signatures transmitted
by facsimile, emailed pdf. or any other electronic means that reproduces an
image of an actual executed signature page), (ii) from each Loan Party party
thereto, a counterpart of each other Loan Document signed on behalf of such
Loan Party (which may include facsimile or other electronic transmission of a
signed signature page thereof) and (iii) customary legal opinions of the U.S.
and Canadian Loan Parties' counsel, addressed to the Administrative Agent, the
Issuing Banks and the Lenders, customary legal opinions of the Administrative
Agent's foreign counsel (other than Canadian counsel), addressed to the
Administrative Agent, the Issuing Banks and the Lenders, and customary legal
opinions of the Loan Parties' foreign counsel (other than Canadian counsel),
addressed to the Administrative Agent, the Issuing Banks and the Lenders. (b)
Financial Statements and Projections. The Arrangers shall have received (i)
the unaudited condensed consolidated statements of operations, comprehensive
income and cash flows of PCM for each fiscal quarter (other than the fourth
fiscal quarter in any fiscal year) that shall have ended after March 31, 2019
and at least forty-five (45) days prior to the Effective Date, (ii) the
unaudited consolidated balance sheet and related unaudited consolidated
statements of operations and cash flows of Insight for each fiscal quarter
(other than the fourth fiscal quarter in any fiscal year) that shall have
ended after March 31, 2019 and at least forty-five (45) days prior to the
Effective Date, and (iii) pro forma consolidated balance sheet and related pro
forma statements of income and cash flows of the Borrowers as of the last day
of and for the four fiscal quarters ended on the last date for which financial
statements pursuant to clauses (i) and (ii) were most recently required (the
"Pro Forma Financial Statements"), prepared after giving effect to the
Transactions as if the Transactions had occurred as of such date (in the case
of such balance sheet) or at the beginning of such period (in the case of the
statements of income and cash flows). DB2/ 48024258.7 142 (c) Closing
Certificates; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate
of each Loan Party dated the Effective Date and executed by its Director(s),
Secretary or Assistant Secretary, or other officer or director, which shall
(A) certify the resolutions of its Board of Directors (or extracts thereof for
any Australian Loan Party), members and/or other body authorizing the
execution, delivery and performance of the Loan Documents to which it is a
party, (B) identify by name and title and bear the signatures of the officers,
directors and/or authorized signatories of such Loan Party authorized to sign
the Loan Documents to which it is a party and, in the case of each Borrower,
its Financial Officers, and (C) contain appropriate attachments, including the
certificate, constitution or articles of incorporation or organization of each
Loan Party which is, for each Loan Party other than the Canadian Loan Parties,
certified by the relevant authority of the jurisdiction of organization or
incorporation of such Loan Party (and, in the case of each European Loan
Party, certified by a director) and a true and correct copy of its memorandum
and articles of association, constitution, by-laws or operating, management or
partnership agreement, or other organizational or governing documents of such
Loan Party, and (ii) (if available in the relevant jurisdiction) a good
standing certificate (or equivalent) for each Loan Party from its jurisdiction
of organization or the substantive equivalent available in the jurisdiction of
organization for each relevant Loan Party from the appropriate governmental
officer in such jurisdiction. (d) Fees. All (i) fees required to be paid on
the Effective Date pursuant to the Fee Letters and (ii) expenses required to
be paid on the Effective Date pursuant to the Commitment Letter (in the case
of this clause (ii), for which invoices have been presented to the Borrower
Representative at least two (2) Business Days prior to the Effective Date), in
each case shall be paid by the Borrowers substantially concurrently with the
initial Borrowings hereunder on the Effective Date (or shall have been
authorized to be deducted from the proceeds of the initial Borrowings
hereunder on the Effective Date). (e) Refinancing. Substantially concurrently
with the initial borrowings under this Agreement, the Refinancing shall have
been consummated. (f) Borrowing Request. The Administrative Agent shall have
received a Borrowing Request from the Borrower Representative in accordance
with Section 2.03. (g) Solvency. The Administrative Agent shall have received
a solvency certificate signed by a Financial Officer (or other officer with
reasonably equivalent responsibilities) of the Borrower Representative dated
the Effective Date substantially in the form attached hereto as Exhibit E. (h)
Borrowing Base Certificate. The Administrative Agent shall have received a
Borrowing Base Certificate which calculates the Global Borrowing Base, the
U.S. Borrowing Base, the U.K. Borrowing Base and the Dutch Borrowing Base of
the applicable Borrowers as of a period agreed to by the Administrative Agent
and the Borrower Representative. (i) Aggregate Closing Excess Availability.
After giving effect to all Borrowings to be made on the Effective Date, the
issuance of any Letters of Credit on the Effective Date and the payment of all
fees and expenses due hereunder on the Effective Date, the Aggregate Closing
Excess Availability (as defined in this Agreement immediately prior to the
Third Amendment Effective Date) shall not be less than $200,000,000. (j)
Filings, Registrations and Recordings. Subject to the last paragraph of this
Section 4.01, each document (including any Uniform Commercial Code and PPSA
financing
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DB2/ 48024258.7 143 statement) required by the Collateral Documents and
necessary to establish that the Administrative Agent will have perfected
security interests (subject to Liens permitted under Section 6.02) in the
Collateral shall have been executed by the applicable Loan Party (to the
extent applicable) and delivered to the Administrative Agent and, if
applicable, be in proper form for filing. (k) Trojan Acquisition.
Substantially concurrently with the initial borrowings under this Agreement on
the Effective Date, the Trojan Acquisition shall have been consummated in
accordance in all material respects with the terms of the Trojan Merger
Agreement, but without giving effect to any amendments, waivers or consents by
Insight that are materially adverse to the interests of the Lenders or the
Arrangers in their respective capacities as such without the consent of the
Arrangers, such consent not to be unreasonably withheld, delayed or
conditioned. (l) Material Adverse Effect. Since June 23, 2019, there shall not
have occurred a Material Adverse Effect (as defined in the Trojan Merger
Agreement). (m) Representations and Warranties. (i) The Specified Merger
Agreement Representations shall be true and correct on the Effective Date, and
(ii) the Specified Representations shall be true and correct in all material
respects on the Effective Date; provided that the foregoing materiality
qualifier shall not be applicable any representation qualified or modified by
materiality; provided, further the condition under clause (i) hereof shall be
deemed satisfied unless Insight has (or an Affiliate of Insight has) the right
(determined without regard to any notice requirement) to terminate its
obligations under the Trojan Merger Agreement or decline to consummate the
Trojan Acquisition as a result of such breach. The Administrative Agent shall
have received a certificate executed by a Responsible Officer of the Borrower
Representative certifying that the condition set forth in clause (ii) hereof
is satisfied on the Effective Date. (n) Letter of Credit Application. If a
Letter of Credit is requested to be issued on the Effective Date, the
Administrative Agent shall have received a properly completed letter of credit
application (whether standalone or pursuant to a master agreement, as
applicable) with respect thereto. (o) USA PATRIOT Act, Etc. (i) The
Administrative Agent shall have received, at least three (3) Business Days
prior to the Effective Date (or such shorter period as the Arrangers may agree
to in their sole discretion), all documentation and other information
regarding the Loan Parties required by applicable "know your customer" and
anti-money laundering rules and regulations, including, without limitation,
the USA PATRIOT Act and the Proceeds of Crime Act, in each case to the extent
reasonably requested in writing of the Loan Parties by the Administrative
Agent or any Lender at least ten (10) Business Days prior to the Effective
Date, and (ii) to the extent any Loan Party qualifies as a "legal entity
customer" under the Beneficial Ownership Regulation, at least three (3)
Business Days prior to the Effective Date (or such shorter period as the
Arrangers may agree to in their sole discretion), any Lender that has
requested, in a written notice to the Loan Parties at least ten (10) Business
Days prior to the Effective Date, a Beneficial Ownership Certification in
relation to a Loan Party shall have received such Beneficial Ownership
Certification. Notwithstanding anything to the contrary in this Agreement or
any other Loan Document, it is understood that, to the extent any Collateral
is not or cannot be provided on the Effective Date after the Loan Parties' and
their Restricted Subsidiaries' commercially reasonable efforts to do so (other
than the filing of (1) Uniform Commercial Code financing statements in respect
of any U.S. Loan Party, (2) form MR01 with the Registrar of Companies House in
respect of any U.K. Loan Party, and (3) PPSA financing statements and/or
hypothecary filings in respect of any Canadian Loan Party), the providing of
such DB2/ 48024258.7 144 Collateral (including the creation or perfection of
any security interests on such Collateral) shall not constitute a condition
precedent to the availability of the Loans and Letters of Credit on the
Effective Date, but instead shall be required to be provided within ninety
(90) days after the Effective Date (or such longer period as otherwise
provided for in the Loan Documents or as the Administrative Agent may agree to
in its sole discretion). Each Credit Event after the Effective Date. Subject
to Sections 1.09 and 4.03, the obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or
extend any Letter of Credit, in each case after the Effective Date, is subject
to the satisfaction of the following conditions: (a) The representations and
warranties of the Loan Parties set forth in the Loan Documents shall be true
and correct in all material respects with the same effect as though made on
and as of the date of such Borrowing or the date of issuance, amendment,
renewal or extension of such Letter of Credit, as applicable (it being
understood and agreed that any representation or warranty which by its terms
is made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date, and that any representation
or warranty which is subject to any materiality qualifier shall be required to
be true and correct in all respects). (b) At the time of and immediately after
giving effect to such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default or Event of
Default shall have occurred and be continuing. (c) With respect to any
Revolving Borrowing or the issuance, amendment, renewal or extension of any
Letter of Credit, immediately after giving effect to any such Revolving
Borrowing or the issuance, amendment, renewal or extension of any such Letter
of Credit, the Borrowers shall be in compliance with the Revolving Exposure
Limitations. (d) With respect to any FILO Borrowing, immediately after giving
effect to any such FILO Borrowing, the U.S. Borrowers shall be in compliance
with the FILO Exposure Limitations. (e) In the case of any such Borrowing,
Administrative Agent shall have received a Borrowing Request from the Borrower
Representative in accordance with Section 2.03. Subject to Section 1.09, each
Borrowing after the Effective Date and each issuance, amendment, renewal or
extension of a Letter of Credit after the Effective Date shall be deemed to
constitute a representation and warranty by the Borrowers on the date thereof
as to the matters specified in clauses (a) through (d) of this Section. Loans
to Australian Borrowers. Notwithstanding any provision of this Agreement to
the contrary, no Australian Borrower may request, and no Loans or other
advances of credit (including without limitation Letters of Credit) under this
Agreement shall be made to or issued to the account of, any Australian
Borrower prior to the date on which the Administrative Agent has notified the
Borrower Representative in writing that each Lender having a Foreign Tranche
Commitment has satisfactorily completed all actions required (as determined by
such Lender) for such Lender to comply, with respect to such Australian
Borrower, with all applicable "know your customer" rules and regulations
(including without limitation the USA PATRIOT ACT) and such Lender's internal
policies with respect to the same. Affirmative Covenants
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DB2/ 48024258.7 145 Until all of the Secured Obligations have been Paid in
Full, each Loan Party executing this Agreement covenants and agrees with the
Lenders that: Financial Statements; Borrowing Base and Other Information. The
Borrowers will furnish to the Administrative Agent (for distribution to each
Lender): (a) within ninety (90) days after the end of each fiscal year of
Insight, its audited consolidated balance sheet and related consolidated
statements of operations, stockholders' equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by independent public
accountants of recognized national standing (without a "going concern" or like
qualification, commentary or exception and without any qualification or
exception as to the scope of such audit other than an exception or explanatory
note with respect to an upcoming maturity date of any Indebtedness occurring
within one (1) year from the time such opinion is delivered) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of Insight and its
Subsidiaries as of, or for, the period covered thereby on a consolidated basis
in accordance with GAAP consistently applied; (b) within forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal year
of Insight, its consolidated balance sheet and related consolidated statements
of operations, and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of such fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or,
in the case of the balance sheet, as of the end of) the previous fiscal year,
all certified by a Financial Officer of the Borrower Representative as
presenting fairly in all material respects the financial condition and results
of operations of Insight and its Subsidiaries as of, or for, the period
covered thereby on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes; (c) [Reserved]; (d) concurrently with any delivery of financial
statements under clause (a) or (b) above, a Compliance Certificate (i)
certifying, as to the financial statements as required under clause (a) or (b)
above, as applicable, (ii) certifying as to whether a Default exists and, if a
Default exists, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, and (iii) setting forth reasonably
detailed calculations of the Fixed Charge Coverage Ratio (whether or not a
Covenant Testing Trigger Period exists) and, if a Covenant Testing Trigger
Period exists, demonstrating whether the Loan Parties are in compliance with
Section 6.12; (e) [reserved]; (f) within ninety (90) days after the beginning
of each fiscal year of Insight, a copy of the plan and forecast (including a
projected consolidated balance sheet, income statement and cash flow
statement) of Insight for each quarter of the upcoming fiscal year (the
"Projections") in substantially the form provided to the Administrative Agent
prior to the Effective Date or such other form reasonably satisfactory to the
Administrative Agent; (g) within twenty-five (25) days after the end of each
calendar month (or, in the case of the first three (3) months ending after the
Effective Date, forty-five (45) days), a Borrowing Base Certificate and
supporting information in connection therewith, together with any additional
reports with respect to each Borrowing Base as the Administrative Agent may
reasonably request; provided that, during a Cash Dominion Period, such
Borrowing Base Certificate and the other documents set DB2/ 48024258.7 146
forth above will be delivered within seven (7) days after the end of each
calendar week. Concurrently with the delivery of each Borrowing Base
Certificate, in respect of any Accounts of a Dutch Borrower, in order to
perfect the Administrative Agent's security interest over such Accounts prior
to the notification of the relevant Account Debtors, a supplemental deed of
pledge duly executed by the applicable Dutch Borrower pledging all Accounts
owed to it and existing on or arising directly out of a legal relationship
(rechtsverhouding) existing on the date that such Borrowing Base Certificate
is delivered in accordance with the Dutch Omnibus Pledge; (h) within
twenty-five (25) days after the end of each calendar month (or, in the case of
the first three (3) months ending after the Effective Date, forty-five (45)
days) (or, during a Cash Dominion Period, within seven (7) days of the end of
each calendar week) and at such other times as may be requested by the
Administrative Agent, as of the period then ended, all delivered electronically
in a text formatted file acceptable to the Administrative Agent in its
Permitted Discretion: (i) a reasonably detailed aging of the U.S. Borrowers'
Accounts, the Canadian Loan Guarantors' Accounts, the U.K. Borrowers'
Accounts, the Dutch Borrowers' Accounts and the Australian Borrowers' Accounts
including all invoices aged by invoice date and due date (with an explanation
of the terms offered), each prepared in a manner reasonably acceptable to the
Administrative Agent, together with a summary specifying the name, address,
and balance due for each Account Debtor; (ii) a schedule detailing the U.S.
Borrowers' Inventory, in form reasonably satisfactory to the Administrative
Agent, (A) by location (showing Inventory in transit, any Inventory located
with a third party under any consignment, bailee arrangement, or warehouse
agreement), by class (raw material, work-in-process and finished goods), by
product type, and by volume on hand, which Inventory shall be valued at the
lower of cost (determined on a first-in, first-out basis) or market and
adjusted for Reserves as the Administrative Agent has previously indicated to
the Borrower Representative are deemed by the Administrative Agent to be
appropriate in its Permitted Discretion in accordance with Section 1.10, and
(B) including a report of any variances or other results of Inventory counts
performed by the U.S. Borrowers since the last Inventory schedule (including
information regarding sales or other reductions, additions, returns, credits
issued by U.S. Borrowers and complaints and claims made against the U.S.
Borrowers); (iii) (A) a worksheet of calculations prepared by the U.S.
Borrowers to determine their Eligible Accounts, Eligible Finished Goods
Inventory, and Eligible Work- In-Process Inventory, each such worksheet
detailing the Inventory excluded from Eligible Accounts, Eligible Finished
Goods Inventory, and Eligible Work-In-Process Inventory, as applicable, and
the reason for such exclusion (B) a worksheet of calculations prepared by the
Canadian Loan Guarantors to determine their Eligible Accounts, (C) a worksheet
of calculations prepared by the U.K. Borrowers to determine their Eligible
Accounts, (D) a worksheet of calculations prepared by the Dutch Borrowers to
determine their Eligible Accounts and (E) a worksheet of calculations prepared
by the Australian Borrowers to determine their Eligible Accounts, each such
worksheet in clauses (B) through (E) detailing the Accounts excluded from
Eligible Accounts, and the reason for such exclusion; and (iv) a reconciliation
of the respective Borrowers' Accounts and U.S. Borrowers' Inventory between
(A) the amounts shown in the respective Borrowers' general ledger and
financial statements and the reports delivered pursuant to clauses (i) and
(ii) above and (B) the amounts and dates shown in the reports delivered
pursuant to clauses (i)
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DB2/ 48024258.7 147 and (ii) above and the Borrowing Base Certificate
delivered pursuant to clause (g) above as of such date; (i) within twenty-five
(25) days after the end of each calendar month (or, in the case of the first 3
months ending after the Effective Date, forty-five (45) days) (or, during a
Cash Dominion Period, within seven (7) days of the end of each calendar week),
as of the period then ended, a schedule and aging of the U.S. Borrowers'
accounts payable, the Canadian Loan Guarantors' accounts payable, the U.K.
Borrowers' accounts payable, the Australian Borrowers' accounts payable and
the Dutch Borrowers' accounts payable, in each case delivered electronically
in a text formatted file acceptable to the Administrative Agent in its
Permitted Discretion; (j) promptly in connection with a field examination in
any fiscal year and on or prior to the last day of each fiscal year, in each
case to the extent requested by the Administrative Agent, an updated customer
list for each Loan Party, which list shall state the customer's name, mailing
address and phone number, delivered electronically in a text formatted file
acceptable to the Administrative Agent in its Permitted Discretion; (k)
promptly upon the Administrative Agent's request: (i) copies of invoices
issued by the Borrowers in connection with any Accounts, credit memos,
shipping and delivery documents, and other information related thereto; (ii)
copies of purchase orders, invoices, and shipping and delivery documents in
connection with any Inventory or Equipment purchased by any Loan Party; (iii)
a schedule detailing the balance of all intercompany accounts of the Loan
Parties; and (iv) a reconciliation of the loan balance per the Borrowers'
general ledger to the loan balance under this Agreement; (l) promptly upon the
Administrative Agent's request, as of the period specified by the
Administrative Agent, the Borrowers' sales journal, cash receipts journal
(identifying trade and non-trade cash receipts) and debit memo/credit memo
journal; (m) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any
Loan Party or any Restricted Subsidiary with the SEC, or any Governmental
Authority succeeding to any or all of the functions of the SEC, or with any
national securities exchange; (n) promptly following any request therefor, (i)
such other information regarding the operations, business affairs and
financial condition of any Loan Party or any Restricted Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent (or
any Lender through the Administrative Agent) may reasonably request in
writing, and (ii) information and documentation reasonably requested by the
Administrative Agent or any Lender in writing for purposes of compliance with
applicable "know your customer" and anti-money laundering rules and
regulations, including the USA PATRIOT Act and the Beneficial Ownership
Regulation; and (o) (i) promptly upon receipt thereof, final plan texts for
all Canadian Defined Benefit Plans, (ii) promptly upon receipt thereof, each
annual information return and each actuarial report DB2/ 48024258.7 148
(including schedules) in respect any Canadian Defined Benefit Plan, in each
case that is required to be filed with the applicable regulatory authorities,
and (iii) promptly upon receipt thereof, the most recent Canadian Defined
Benefit Plan financial statements that are required to be filed with the
applicable regulatory authorities. The Loan Parties acknowledge that the
Administrative Agent may periodically order, at the Borrowers' expense,
certificates of good standing or the substantive equivalent in the
jurisdiction of the incorporation, formation or organization for Loan Party
from the appropriate government office or officer in such jurisdiction.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (m) (to
the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and, if so delivered, shall be deemed
to have been delivered on the date (i) on which such materials are publicly
available as posted on the Electronic Data Gathering, Analysis and Retrieval
system (EDGAR); or (ii) on which such documents are posted on a Borrower's
behalf on an Internet or intranet website, if any, to which each Lender and
the Administrative Agent have access (whether a commercial, third-party
website or whether made available by the Administrative Agent); provided that:
upon written request by the Administrative Agent (or any Lender through the
Administrative Agent) to the Borrower Representative, the Borrower
Representative shall deliver paper copies of such documents to the
Administrative Agent or such Lender until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender.
The Administrative Agent shall have no obligation to request the delivery of
or to maintain paper copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by any Borrower with
any such request by a Lender for delivery, and each Lender shall be solely
responsible for timely accessing posted documents or requesting delivery of
paper copies of such documents to it and maintaining its copies of such
documents. Notices of Material Events. The Borrower Representative will
furnish to the Administrative Agent (for distribution to each Lender) written
notice promptly (but in any event within any time period that may be specified
below) after a Responsible Officer of any Loan Party obtains knowledge of the
following: (a) the occurrence of any Default; (b) receipt of any notice of any
investigation by a Governmental Authority or any litigation or proceeding
commenced or threatened in writing against any Loan Party or any Restricted
Subsidiary that would reasonably be expected to have a Material Adverse
Effect; (c) any Lien (other than Liens permitted under Section 6.02) against
any material portion of the Collateral; (d) any loss, damage, or destruction
to Eligible Inventory in the amount of $50,000,000 or more, whether or not
covered by insurance; (e) within two (2) Business Days of receipt thereof (or
such later date as may be agreed by the Administrative Agent), any and all
default notices received under or with respect to any leased location or
public warehouse where Eligible Inventory with a value of $50,000,000 or more
is located; (f) the occurrence of any ERISA Event or Foreign Benefit
Arrangement Event or Canadian Pension Event that, alone or together with any
other ERISA Events or Foreign Benefit Arrangement Events or Canadian Pension
Events that have occurred, would reasonably be expected
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DB2/ 48024258.7 149 to result in liability of the Loan Parties and their
Restricted Subsidiaries in an aggregate amount exceeding $100,000,000; (g) any
other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect; and (h) (i) any termination or partial
termination of any Canadian Pension Plan or existence of facts or
circumstances that could result, or be reasonably anticipated to result, in
the declaration of a termination or partial termination of any Canadian
Pension Plan under Requirements of Law, and (ii) the existence of any solvency
or wind-up deficiency in any Canadian Defined Benefit Plan. Each notice
delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower Representative
setting forth the details of the event or development requiring such notice
and (if applicable) any action taken or proposed to be taken with respect
thereto. Documents and information required to be delivered pursuant to this
Section 6.02 (other than Section 6.02(a)) (to the extent any such documents or
information is included in materials otherwise filed with the SEC) may be
delivered electronically and, if so delivered, shall be deemed to have been
delivered on the date (i) on which such materials are publicly available as
posted on the Electronic Data Gathering, Analysis and Retrieval system
(EDGAR); or (ii) on which such documents are posted on a Borrower's behalf on
an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether made available by the Administrative Agent); provided that (A) upon
written request by the Administrative Agent (or any Lender through the
Administrative Agent) to the Borrower Representative, the Borrower
Representative shall deliver paper copies of such documents to the
Administrative Agent or such Lender until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender,
as applicable, and (B) the Borrower Representative shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any
such documents. The Administrative Agent shall have no obligation to request
the delivery of or to maintain paper copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
any Borrower with any such request by a Lender for delivery, and each Lender
shall be solely responsible for timely accessing posted documents or
requesting delivery of paper copies of such document to it and maintaining its
copies of such documents. Existence; Conduct of Business. (a) Each Loan Party
will, and will cause each Restricted Subsidiary to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, qualifications, licenses, permits, franchises,
governmental authorizations, intellectual property rights, licenses and
permits material to the conduct of its business, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business
is conducted, in each case (other than the preservation of the existence of
each Loan Party) to the extent that the failure to do so would reasonably be
expected to have a Material Adverse Effect; provided that the foregoing shall
not prohibit any merger, amalgamation, consolidation, liquidation or
dissolution permitted under Section 6.03, and (b) each Loan Party will not,
and will not permit any of its Restricted Subsidiaries to, engage to any
material extent in any business if as a result thereof the general nature of
the business of the Loan Parties and their Restricted Subsidiaries taken as a
whole would be substantially changed from the general nature of the business
of the Loan Parties and their Restricted Subsidiaries taken as a whole on the
Effective Date. Payment of Taxes. Each Loan Party will, and will cause each
Restricted Subsidiary to, pay or discharge all Taxes, before the same shall
become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings and such
Loan Party or Restricted Subsidiary has set aside on its books adequate
reserves with respect thereto DB2/ 48024258.7 150 to the extent required by
GAAP or (b) where failure to do so would not reasonably be expected to result
in a Material Adverse Effect. Maintenance of Properties. Each Loan Party will,
and will cause each Restricted Subsidiary to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear, casualty and condemnation excepted, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect. Books and Records; Inspection and Appraisal Rights.
Each Loan Party will, and will cause each Restricted Subsidiary to, (a) keep
proper books of record and account in which entries full, true and correct in
all material respects are made of all material dealings and transactions in
relation to its business and activities and (b) permit any representatives
designated by the Administrative Agent (including employees of the
Administrative Agent or any consultants, accountants, lawyers, agents and
appraisers retained by the Administrative Agent), upon reasonable prior
notice, to visit and inspect its properties, to conduct at such Loan Party's
premises field examinations of such Loan Party's assets, liabilities, books
and records, including examining and making extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times during normal
business hours and as often as reasonably requested; provided that the
Borrower Representative may, if it so chooses, be present at or participate in
any such discussion to the extent the Borrower Representative is available to
be so present or participate; provided, further that no Loan Party or any
Restricted Subsidiary will be required to disclose, permit the inspection,
examination or making copies of or abstracts from, or discussion of, any
document, information or other matter that (x) constitutes non-financial trade
secrets or non-financial proprietary information and is not related to
Collateral included in the Borrowing Base, (y) in respect of which disclosure
to the Administrative Agent or any Lender (or their respective representatives
or contractors) is prohibited by any Requirement of Law or any contractual
obligation of Insight or its Restricted Subsidiaries or (z) is subject to
attorney-client or similar privilege or constitutes attorney work product.
Each Loan Party acknowledges that the Administrative Agent, after exercising
its rights of inspection, may prepare and distribute to the Lenders certain
Reports pertaining to each Loan Party's assets for internal use by the
Administrative Agent and the Lenders. The Loan Parties shall only be
responsible for the costs of expenses of one (1) field examination per each of
the U.S., the United Kingdom, Canada, Australia and The Netherlands during any
12-month period (in each case, exclusive of (i) the initial field examinations
performed prior to the Effective Date, (ii) with respect to the Australian
Borrowers, the initial field examination performed after the Third Amendment
Effective Date, (iii) with respect to any Accounts owed to a U.S. Borrower by
an Account Debtor located in Belgium or any other Approved Jurisdiction and
which is billed and collected in Belgium, the initial field examination
performed after the Third Amendment Effective Date and (iv) any field
examinations conducted in connection with any new asset class being added to a
Borrowing Base); provided, that the Loan Parties shall be responsible for the
costs and expenses of all field examinations conducted while an Event of
Default has occurred and is continuing. At any time that the Administrative
Agent requests, but subject to the limitations herein, each U.S. Borrower will
permit the Administrative Agent to conduct appraisals or updates thereof of
their Inventory and Eligible Real Property from an appraiser selected and
engaged by the Administrative Agent, such appraisals and updates to include,
without limitation, information required by any applicable Requirement of Law.
The Loan Parties shall only be responsible for the costs of expenses of (x)
one (1) Inventory appraisal in the U.S. during any 12- month period (in each
case, exclusive of (i) the initial appraisals performed prior to the Effective
Date and (ii) any appraisals conducted in connection with any new asset class
being added to a Borrowing Base), (y) one (1) real property appraisal in the
U.S. per location of any Eligible Real Property prior to such Eligible Real
Property being added to the U.S. Borrowing Base and (z) any real property
appraisals of Eligible Real Property to the extent any such appraisal is
required by the Administrative Agent in order for the Administrative Agent to
comply with any applicable Requirement of Law. Additionally, there shall be no
limitation on the number or frequency of appraisals of the Inventory or
Eligible Real Property of the U.S.
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DB2/ 48024258.7 151 Borrowers if an Event of Default has occurred and is
continuing, and the Loan Parties shall be responsible for the costs and
expenses of any such appraisals conducted while an Event of Default has
occurred and is continuing. Compliance with Laws and Material Contractual
Obligations. (a) Each Loan Party will, and will cause each Restricted
Subsidiary to, (i) comply with each Requirement of Law applicable to it or its
property (including without limitation Environmental Laws), (ii) comply with
each charter, articles or certificate of organization or incorporation and
bylaws, constitution or other organizational or governing documents applicable
to such Loan Party or Restricted Subsidiary, and (iii) perform in all material
respects its obligations under material agreements to which it is a party,
except, in each case, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Each Loan Party will maintain in effect and enforce policies and
procedures designed to comply with Anti-Corruption Laws and applicable
Sanctions by such Loan Party, its Subsidiaries and their respective directors,
officers, employees and agents. (b) Each Loan Party will, in a timely fashion,
comply with and perform all of its obligations under and in respect of each
Canadian Pension Plan, including under any funding agreements and all
applicable laws (including any fiduciary, funding, investment and
administration obligations); and no Canadian Loan Party shall contribute to or
assume an obligation to contribute to or have any liability under any Canadian
Defined Benefit Plan (whether as a result of merger, amalgamation, acquisition
or otherwise), except, in each case, where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. (c) In addition to and without limiting the generality of
clause (a) above, each Loan Party will, and will cause each Restricted
Subsidiary to (i) except as would not reasonably be expected to have a
Material Adverse Effect, comply with all applicable laws, statutes, rules,
regulations and orders (whether discretionary or otherwise) and published
interpretations thereunder with respect to all Foreign Benefit Arrangements,
(ii) except as would not reasonably be expected to have a Material Adverse
Effect, not take any action or fail to take action in respect of a Foreign
Benefit Arrangement the result of which would result in a liability to a
Governmental Authority; and (iii) furnish to the Administrative Agent promptly
following Administrative Agent's request such additional information about any
Foreign Benefit Arrangement concerning compliance with this covenant, and in
respect of any Foreign Benefit Arrangement which is funded, information and
applicable valuation reports about the funding of that Foreign Benefit
Arrangement, as may be reasonably requested by the Administrative Agent. Use
of Proceeds. (a) The proceeds of the Loans and the Letters of Credit will be
used only for financing expenses incurred by Insight and its Restricted
Subsidiaries in connection with the Transactions and the Trojan Acquisition,
financing the Refinancing, and to backstop or replace letters of credit
outstanding on the Effective Date under credit facilities no longer available
to the Borrowers and their Restricted Subsidiaries as of the Effective Date,
and for financing the working capital needs of the Borrowers and, subject to
the terms hereof, their Restricted Subsidiaries, and for other general
corporate purposes of the Borrowers and, subject to the terms hereof, their
Restricted Subsidiaries. No part of the proceeds of any Loan and no Letter of
Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the regulations of the Federal Reserve Board,
including Regulations T, U and X. DB2/ 48024258.7 152 (b) No Borrower will
request any Borrowing or Letter of Credit, and no Borrower shall use, and each
Borrower shall procure that its Subsidiaries and its and their respective
directors, officers, employees and agents shall not use, the proceeds of any
Borrowing or Letter of Credit (i) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else
of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the
purpose of funding, financing or facilitating any activities, business or
transaction of or with any Sanctioned Person, or in any Sanctioned Country,
except to the extent permitted for a Person required to comply with Sanctions,
or (iii) in any manner that would result in the violation of any Sanctions
applicable to any party hereto. The foregoing clauses (a) and (b) of this
Section 5.08 will not apply to any party hereto to which the Blocking
Regulation applies, if and to the extent that such representations are or
would be unenforceable by or in respect of that party pursuant to, or would
otherwise result in a breach and/or violation of, (x) any provision of the
Blocking Regulation (or any law or regulation implementing the Blocking
Regulation in any member state of the European Union) or (y) any similar
blocking or anti-boycott law in the United Kingdom. Notwithstanding the
foregoing, the representations given in this Section 5.08 shall not be made by
nor apply to any Person that qualifies as a corporation that is registered or
incorporated under the laws of Canada or any province thereof and that carries
on business in whole or in part in Canada within the meaning of Section 2 of
the Foreign Extraterritorial Measures (United States) Order, 1992 passed under
the Foreign Extraterritorial Measures Act (Canada) in so far as such
representations would result in a violation of or conflict with the Foreign
Extraterritorial Measures Act (Canada) or any similar law. [Reserved].
Insurance. (a) Each Loan Party will, and will cause each Restricted Subsidiary
to, maintain with financially sound and reputable carriers (i) insurance in
such amounts (with no greater risk retention) and against such risks and such
other hazards, as is customarily maintained by companies of established repute
engaged in the same or similar businesses operating in the same or similar
locations, and (ii) all insurance required pursuant to the Collateral
Documents. The Borrower Representative will furnish to the Administrative
Agent, promptly following the request of the Administrative Agent in writing,
information in reasonable detail as to the insurance so maintained. (b) If at
any time the improvement(s) located on the Eligible Real Property is located
in a Special Flood Hazard Area or otherwise determined by the Administrative
Agent to be in a flood zone, the Loan Parties shall obtain and thereafter
maintain flood insurance with financially sound and reputable insurance
companies (except to the extent that any insurance company insuring the
Eligible Real Property ceases to be financially sound and reputable after the
Closing Date, the Loan Parties shall promptly replace such insurance company
with a financially sound and reputable insurance company) in an amount as the
Administrative Agent and the Lenders may from time to time reasonably require
and otherwise sufficient to comply with the National Flood Insurance Program
as set forth in the Flood Laws. Following the date on which flood insurance is
required as set forth above, the Borrower Representative shall, promptly upon
request of the Administrative Agent or any Lender, deliver to the
Administrative Agent or such Lender, as applicable, evidence of such
compliance in form and substance reasonably acceptable to the Administrative
Agent or such Lender, including, without limitation, evidence of annual
renewals of such flood insurance. Casualty and Condemnation. The Borrower
Representative will furnish to the Administrative Agent prompt written notice
of any casualty or other insured damage to any material portion
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DB2/ 48024258.7 153 of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral under
power of eminent domain or by condemnation or similar proceeding. [Reserved].
[Reserved]. Additional Collateral; Further Assurances. (a) Subject to
applicable Requirement of Law, each Loan Party will cause (x) each Restricted
Subsidiary (other than any Excluded Subsidiary) formed or acquired after the
date of this Agreement that is a Restricted Subsidiary and a Wholly Owned
Subsidiary or (y) each Unrestricted Subsidiary that is redesignated as a
Restricted Subsidiary in accordance with Section 5.15 and that is a Wholly
Owned Subsidiary (other than any Excluded Subsidiary), in each case to become
a Loan Party (and in the case of a Subsidiary organized under the laws of the
U.S., the United Kingdom, Australia or The Netherlands, at Insight's election
with the Administrative Agent's consent (such consent not to be unreasonably
withheld), a Borrower) by executing a Joinder Agreement within sixty (60) days
after the date of such formation or acquisition, or redesignation, or if
later, the date such Restricted Subsidiary becomes a Subsidiary (as such date
may be extended from time to time by the Administrative Agent in its sole
discretion). In connection therewith, the applicable Loan Party shall deliver
to the Administrative Agent all documentation and other information reasonably
requested by the Administrative Agent in writing regarding such Subsidiary as
may be required to comply with the applicable "know your customer" rules and
regulations, including the USA Patriot Act. Upon execution and delivery
thereof, each such Person (i) shall automatically become a Loan Guarantor (or
a Borrower, as applicable) hereunder and thereupon shall have all of the
rights, benefits, duties and obligations in such capacity under the Loan
Documents and (ii) will grant Liens to the Administrative Agent, for the
benefit of the Administrative Agent and the other Secured Parties, in any
property of such Loan Party which constitutes Collateral (which for
clarification, will exclude Excluded Assets), subject to the exceptions and
limitations in the Loan Documents. (b) [Reserved]. (c) Without limiting the
foregoing but subject to the limitations and restrictions contained in the
Loan Documents, each Loan Party will, and will cause each Restricted
Subsidiary to, execute and deliver, or cause to be executed and delivered, to
the Administrative Agent such documents, agreements and instruments, and will
take or cause to be taken such further actions (including the filing and
recording of financing statements and other documents and such other actions
or deliveries of the type required by Section 4.01, as applicable), which the
Administrative Agent may, from time to time, reasonably request to carry out
the terms and conditions of this Agreement and the other Loan Documents and to
ensure perfection and priority of the Liens created or intended to be created
by the Collateral Documents, all in form and substance reasonably satisfactory
to the Administrative Agent and all at the expense of the Loan Parties. (d)
[Reserved]. (e) Subject to any applicable limitations set forth herein or in
any other Loan Document, if any Wholly Owned Subsidiary ceases to be an
Excluded Subsidiary after the Effective Date, the Loan Parties will, within
sixty (60) days after the next following date on which the Borrower
Representative is required to deliver a Compliance Certificate pursuant to
Section 5.01(d) (or such longer period as may be agreed to by the
Administrative Agent in its sole discretion), cause DB2/ 48024258.7 154 such
Subsidiary to become a Loan Party (and in the case of a Subsidiary organized
under the laws of the U.S., the United Kingdom, Australia or The Netherlands,
at Insight's election with the Administrative Agent's consent (such consent
not to be unreasonably withheld), a Borrower) and (i) execute a Joinder
Agreement and (ii) grant Liens to the Administrative Agent, for the benefit of
the Administrative Agent and the other Secured Parties, in any property of
such Loan Party which constitutes Collateral to the extent not Excluded Assets
and subject to the exceptions and limitations in the Loan Documents, in each
case, pursuant to such documents, agreements and instruments as the
Administrative Agent shall reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent. In connection therewith,
the applicable Loan Party shall deliver to the Administrative Agent all
documentation and other information reasonably requested by the Administrative
Agent in writing regarding such Subsidiary as may be required to comply with
the applicable "know your customer" rules and regulations, including the USA
Patriot Act. (f) Notwithstanding the foregoing or anything to the contrary
contained in any Loan Document, the parties hereto acknowledge and agree that
(i) in circumstances where the Administrative Agent and Borrower Representative
in good faith determine that the cost, burden or consequences of obtaining or
perfecting a security interest in any asset that constitutes Collateral is
excessive in relation to the benefit afforded to the Secured Parties thereby,
the Administrative Agent in its Permitted Discretion may exclude such
Collateral from the creation and perfection requirements set forth in this
Agreement and the other Loan Documents, (ii) the Administrative Agent in its
Permitted Discretion may grant extensions of time for the creation or
perfection of Liens in particular property where the Administrative Agent and
the Borrower Representative determine that such creation or perfection cannot
be accomplished without undue effort or expense by the time or times at which
it would otherwise be required by this Agreement or any other Loan Document,
(iii) no security or pledge agreements or other Collateral Documents governed
under the laws of any non-U.S. jurisdiction shall be required (other than the
laws of Canada, the United Kingdom, Australia or The Netherlands), and the
Loan Parties shall not be required to take any actions outside the U.S. to
create or perfect Liens in any assets located or titled outside the U.S.
(other than Collateral located or titled in Canada, the United Kingdom,
Australia or The Netherlands) except (x)to the extent required as Additional
Perfection Steps during a Cash Dominion Period and (y) where amounts received
in respect of Accounts of a Borrower or Canadian Loan Guarantor (or any branch
thereof) are paid into a deposit account domiciled in a jurisdiction other
than Canada, the United Kingdom, Australia or the Netherlands and security
governed by the law of that jurisdiction and/or a Deposit Account Control
Agreement governed by the law of that jurisdiction is required for creation
and/or perfection of an effective Lien in that deposit account (in each case
solely to the extent necessary to have such Accounts qualify as Eligible
Accounts), and (iv) no mortgages or deeds of trust (or similar documentation
providing Liens with respect to real property under any non-U.S. jurisdiction)
shall be required (other than in respect of any Eligible Real Property).
Designation of Subsidiaries. The Borrower Representative may at any time after
the Effective Date (a) designate any Subsidiary as an Unrestricted Subsidiary
or (b) redesignate any Subsidiary that was an Unrestricted Subsidiary on the
Effective Date or that was designated as an Unrestricted Subsidiary at the
time of the formation or acquisition of such Subsidiary as a Restricted
Subsidiary; provided that (i) immediately before and immediately after any
such designation, no Default or Event of Default shall have occurred and be
continuing, (ii) immediately after giving effect to such designation, the Loan
Parties shall be in compliance with the financial covenant set forth in
Section 6.12 (as if a Covenant Testing Trigger Period was in effect),
determined on a Pro Forma Basis as of the last day of the most recently ended
four fiscal quarters of the Borrower Representative for which financial
statements have been delivered pursuant to Section 4.01 (at all times prior to
the first delivery of financial statements after the Effective Date under
Section 5.01(a) or (b)) or Section 5.01(a) or 5.01(b), as applicable,
regardless whether such date of determination precedes the first test date for
such covenant, (iii) no
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DB2/ 48024258.7 155 Subsidiary of the Borrower Representative may be
designated as an Unrestricted Subsidiary for purposes of this Agreement if it
is a "Restricted Subsidiary" for the purpose of any other Material
Indebtedness of any Borrower or any of the Restricted Subsidiaries that has an
"Unrestricted Subsidiary" concept, (iv) the Payment Conditions are satisfied
after giving effect to such designation, and (v) any Subsidiary that was an
Unrestricted Subsidiary and then was designated as a Restricted Subsidiary may
not thereafter be redesignated as an Unrestricted Subsidiary. The designation
of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the
incurrence at the time of such designation of any Indebtedness or Liens of
such Subsidiary existing at such time. The designation of any Subsidiary as an
Unrestricted Subsidiary after the Effective Date shall constitute an
Investment by the Borrower Representative (or its relevant Restricted
Subsidiary) therein at the date of designation in an amount equal to the fair
market value (as determined by the Borrower Representative in good faith) of
the Borrower Representative's (or such Restricted Subsidiary's) Investment
therein. Foreign Loan Party Cash Management Provisions. Commencing with the
date that is one (1) year after the Effective Date (or such later date as the
Administrative Agent may agree): (a) each Foreign Loan Party (other than any
Canadian Loan Party) will ensure that all of the proceeds of their Accounts
are deposited (whether directly or indirectly) into segregated Collection
Accounts (other than as agreed to by the Administrative Agent) (which
Collection Accounts shall be located in England (in respect of the U.K. Loan
Parties), The Netherlands, England or Ireland (in respect of the Dutch Loan
Parties), Australia (in respect of the Australian Loan Parties) or any other
jurisdiction satisfactory to the Administrative Agent in its Permitted
Discretion) only containing the proceeds of the Accounts of the applicable
Foreign Loan Parties (other than any Canadian Loan Parties), in a manner that
is satisfactory to the Administrative Agent in its Permitted Discretion which
Collection Accounts, for the avoidance of doubt, shall not be used for general
payment purposes and which shall not, during the existence of a Cash Dominion
Period be subject to the Cash Pooling Arrangements; (b) the Administrative
Agent shall be given sufficient access to each relevant Collection Account to
ensure that the provisions of Section 2.10(b) are capable of being complied
with; and (c) subject to Section 5.22 (and any applicable time periods set
forth in Schedule 5.22), each Foreign Loan Party (other than any Canadian Loan
Party) will ensure that each of its Collection Accounts is subject to a valid
and enforceable first ranking security interest under the laws of the
jurisdiction where the relevant Collection Account is located and a Deposit
Account Control Agreement. Transfer of Accounts of Foreign Loan Parties;
Notification of Account Debtors. (a) At any time at the request of the
Administrative Agent in its Permitted Discretion during the existence of a
Cash Dominion Period, each Foreign Loan Party (other than any Canadian Loan
Party) shall (i) at the option of the Administrative Agent, promptly open new
Collection Accounts in the name of such Foreign Loan Party (other than any
Canadian Loan Party) with the Administrative Agent in England (in respect of
the U.K. Loan Parties), The Netherlands (in respect of the Dutch Loan
Parties), Australia (in respect of the Australian Loan Parties) or such other
location requested by the Administrative Agent (such new bank accounts being
Collection Accounts under and for the purposes of this Agreement (including
Section 5.16(c) hereof)) (such new bank accounts with the Administrative
Agent, "New JPM Collection Accounts"); provided that if an Event of Default is
continuing and the New JPM Collection Accounts have not been established, such
Foreign Loan Party (other than any Canadian Loan Party) shall, at the option
of DB2/ 48024258.7 156 the Administrative Agent, use its reasonable endeavors
to cause all of its Collection Accounts (each an "Existing Collection
Account") to be transferred to the name of the Administrative Agent (but only
to the extent such transfer is permitted by applicable law and/or the internal
policies and procedures of the relevant account bank) and (ii) if new
Collection Accounts have been established pursuant to this Section (each a
"New Collection Account") ensure that the proceeds of all Accounts owing to it
will promptly be re-directed to the New Collection Accounts. Until all such
proceeds have been redirected to the New Collection Accounts, each Foreign
Loan Party (other than any Canadian Loan Party) shall cause all amounts on
deposit in any Existing Collection Account to be transferred to a New
Collection Account at the end of each Business Day; provided that if any
Foreign Loan Party (other than any Canadian Loan Party) does not instruct such
re-direction or transfer, it hereby authorizes the Administrative Agent to
give such instructions on its behalf to the applicable Account Debtors and/or
the account bank holding such Existing Collection Account (as applicable). (b)
At any time at the request of the Administrative Agent in its Permitted
Discretion during the existence of (i) an Event of Default or (ii) a Cash
Dominion Period that the Administrative Agent reasonably expects to continue,
each Foreign Loan Party (other than any Canadian Loan Party) agrees that, it
shall promptly give notice to Account Debtors of the security interest of the
Administrative Agent over its Accounts and instruct the Account Debtors as to
the bank account into which further payments are to be made and if such
Foreign Loan Party (other than any Canadian Loan Party) does not serve such
notice, it hereby authorizes the Administrative Agent to serve such notice on
its behalf. U.K. Pensions. Each U.K. Loan Party shall ensure that neither it
nor any of its Restricted Subsidiaries is or has been at any time an employer
(for the purposes of sections 38 to 51 of the Pensions Act 2004) of an
occupational pension scheme which is not a money purchase scheme (both terms
as defined in the Pension Schemes Act 199) or "connected" with or an
"associate" of (as those terms are used in sections 38 or 43 of the Pensions
Act 2004) such an employer. Dutch CIT Fiscal Unity. No Dutch Loan Party shall
become a member of a Dutch CIT Fiscal Unity with any Person that is not a
Dutch Loan Party without the prior written consent of the Administrative
Agent. Australian Tax Matters. The Loan Parties will ensure that any
Subsidiary incorporated in Australia which is a member of an Australian Tax
Consolidated Group is also a Loan Party under this Agreement. At all times,
the "head company" (as defined in the applicable Australian Tax Act) of any
Australian Tax Consolidated Group must be an Australian Loan Party. Centre of
Main Interest and Establishments. No Foreign Loan Party (other than any
Canadian Loan Party or Australian Loan Party) shall, without the prior written
consent of the Administrative Agent, take any action that shall cause its
centre of main interest (as that term is used in Article 3(1) of the European
Union Regulation) to be situated outside of its jurisdiction of incorporation,
or cause it to have an establishment (as that term is used in Article 2(10) of
the European Union Regulation) situated in any other jurisdiction.
Post-Closing Matters. Each Loan Party, as applicable, shall execute and
deliver and complete the tasks set forth on Schedule 5.22 attached hereto, in
each case within time limits specified on such schedule (or such later times
as the Administrative Agent may agree to in its sole discretion). ARTICLE VI
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DB2/ 48024258.7 157 Negative Covenants Until all of the Secured Obligations
have been Paid in Full, each Loan Party executing this Agreement covenants and
agrees with the Lenders that: Indebtedness. No Loan Party will, nor will it
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Indebtedness, except: (a) the Secured Obligations; (b) Indebtedness
existing on the Third Amendment Effective Date and set forth in Schedule 6.01
and any extensions, renewals, refinancings and replacements of any such
Indebtedness in accordance with clause (f) hereof; (c) Indebtedness of any
Loan Party to any Restricted Subsidiary or any other Loan Party and of any
Restricted Subsidiary to any Loan Party or any other Restricted Subsidiary;
provided that (i) Indebtedness of any Restricted Subsidiary that is not a Loan
Party to any Loan Party shall be subject to the limitations set forth in
Section 6.04 and (ii) Indebtedness of any Loan Party to any Restricted
Subsidiary that is not a Loan Party shall be subordinated to the Secured
Obligations on customary terms reasonably satisfactory to the Administrative
Agent; (d) Guarantees by any Loan Party of Indebtedness of any Restricted
Subsidiary or any other Loan Party and by any Restricted Subsidiary of
Indebtedness of any Loan Party or any other Restricted Subsidiary, provided
that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01,
(ii) Guarantees by any Loan Party or any other Loan Party of Indebtedness of
any Subsidiary that is not a Loan Party shall be subject to the limitations
set forth in Section 6.04 and (iii) if the Indebtedness so Guaranteed is
subordinated to the Secured Obligations, Guarantees permitted under this
clause (d) shall be subordinated to the Secured Obligations on the same terms
as the Indebtedness so Guaranteed is subordinated to the Secured Obligations;
(e) Indebtedness of any Loan Party or any Restricted Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets (whether or not constituting purchase money Indebtedness), including
Capital Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior
to the acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness in accordance with clause (f) below; provided that (i) such
Indebtedness is incurred prior to or within 180 days after such acquisition or
the completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness outstanding in reliance on this clause (e)
together with any outstanding Refinance Indebtedness in respect thereof
incurred in reliance on clause (f) below and the principal amount of any
Indebtedness outstanding in reliance on clause (i) below, shall not exceed, at
the time of the incurrence thereof, in an aggregate principal amount equal to
the greater of (x) $75,000,000 and (y) 18.75% of EBITDA as of the last day of
the most recently ended four fiscal quarter period for which financial
statements have been delivered pursuant to Section 4.01 (at all times prior to
the first delivery of financial statements after the Effective Date under
Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of such time;
provided, however, any financings of equipment in the ordinary course of
business shall not be taken into account to determine compliance with the
limitations set forth in this clause (e); (f) Indebtedness which represents
extensions, renewals, refinancing or replacements (such Indebtedness being so
extended, renewed, refinanced or replaced being referred to herein as the
"Refinance Indebtedness") of any of the Indebtedness described in clauses (b),
(e) and (j) hereof DB2/ 48024258.7 158 (such Indebtedness being referred to
herein as the "Original Indebtedness"); provided that (i) such Refinance
Indebtedness does not increase the principal amount of the Original
Indebtedness (unless such excess amount is separately permitted under this
Section 6.01), (ii) any Liens securing such Refinance Indebtedness are not
extended to any additional property of any Loan Party or any Restricted
Subsidiary (unless otherwise permitted under this Agreement), (iii) no Loan
Party or any Restricted Subsidiary that is not originally obligated with
respect to repayment of such Original Indebtedness is required to become
obligated with respect to such Refinance Indebtedness (unless otherwise
permitted under this Agreement) and (iv) such Refinance Indebtedness does not
result in a shortening of the average weighted maturity of such Original
Indebtedness; (g) Indebtedness incurred by any Loan Party or any Restricted
Subsidiary in respect of letters of credit, bank guarantees, bankers'
acceptances or similar instruments issued or created, or related to
obligations or liabilities incurred, in the ordinary course of business,
including in respect of workers compensation claims, health, disability or
other employee benefits or property, casualty or liability insurance or
self-insurance or other reimbursement-type obligations regarding workers
compensation claims; (h) Indebtedness (including deposits) of any Loan Party
or any Restricted Subsidiary in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and similar obligations or obligations in respect
of letters of credit, bank guarantees or similar instruments related thereto,
in each case provided in the ordinary course of business; (i) Attributable
Indebtedness in respect of Sale and Leaseback Transactions permitted by
Section 6.06; (j) Indebtedness of any Person that becomes a Restricted
Subsidiary after the date hereof; provided that (i) such Indebtedness exists
at the time such Person becomes a Restricted Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Restricted
Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted
by this clause (j), together with any Refinance Indebtedness in respect
thereof permitted by clause (f) above, shall not exceed $100,000,000 at any
time outstanding; (k) unsecured Indebtedness of the Loan Parties and their
Restricted Subsidiaries outstanding under the Inventory Financing Facilities;
provided that the aggregate principal amount of Indebtedness outstanding in
reliance on this clause (k), together with the amount of any then outstanding
Secured Inventory Financing, shall not in the aggregate exceed, at the time of
incurrence thereof, the greater of (i) $600,000,000 and (ii) 125% of EBITDA as
of the last day of the most recently ended four fiscal quarter period for
which financial statements have been delivered pursuant to Section 4.01 (at
all times prior to the first delivery of financial statements after the
Effective Date under Section 5.01(a) or (b)) or clause (a) or (b) of Section
5.01 as of such time; provided that no Event of Default has occurred and is
continuing at the time of incurrence of such Indebtedness or would result from
the incurrence thereof; (l) Secured Inventory Financing Indebtedness; (m)
Indebtedness in respect of Swap Agreements permitted under Section 6.07; (n)
unsecured Indebtedness of the Loan Parties and their Restricted Subsidiaries;
provided that the aggregate principal amount of Indebtedness outstanding in
reliance on this clause (n) shall not exceed, at the time of incurrence
thereof, the greater of (i) $800,000,000 and (ii) 200% of EBITDA as of the
last day of the most recently ended four fiscal quarter period for which
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DB2/ 48024258.7 159 financial statements have been delivered pursuant to
Section 4.01 (at all times prior to the first delivery of financial statements
after the Effective Date under Section 5.01(a) or (b)) or clause (a) or (b) of
Section 5.01 as of such time; provided that (A) no such Indebtedness of any
Loan Party shall be subject to scheduled amortization (or mandatory
prepayments) or have a final maturity, in either case prior to the date
occurring ninety-one (91) days following the Maturity Date at the time of
incurrence of such Indebtedness (other than (x) any customary bridge financing
that provides for automatic conversion or exchange into Indebtedness that
otherwise complies with the requirements of this clause (n), (y) mandatory
prepayments consisting of customary mandatory (including at the election of
the relevant debt holder or holders) prepayments, repayments, repurchases or
redemptions in respect of change of control or a fundamental change (or
customary offers to purchase upon a change of control or a fundamental
change), conversion or exchange of any Convertible Debt Security in accordance
with the terms and conditions set forth in the documents evidencing such
Convertible Debt Security, excess cash flow, equity issuances, non- permitted
Indebtedness and proceeds of asset sales not used (or required to be used) to
repay other Indebtedness (or customary offers to purchase with proceeds of
asset sales not used (or required to be used) to repay other Indebtedness) and
proceeds of casualty events not used (or required to be used) to repay other
Indebtedness (or customary offers to purchase with proceeds of casualty events
not used (or required to be used) to repay other Indebtedness), and customary
acceleration rights upon an event of default, and (z) an aggregate outstanding
principal amount of such Indebtedness not to exceed $25,000,000), and (B) no
Event of Default has occurred and is continuing at the time of incurrence of
such Indebtedness or would result from the incurrence thereof; (o)
Indebtedness representing deferred compensation to employees of any Loan Party
or any Restricted Subsidiary incurred in the ordinary course of business; (p)
Indebtedness constituting indemnification obligations or obligations in
respect of purchase price or other similar adjustments (including adjustments
of purchase price, incentive, non-compete, consulting or other similar
arrangements and other contingent payments, earnouts and similar obligations)
incurred in connection with the Transactions or any Permitted Acquisition or
any other Investment or any Disposition permitted under this Agreement; (q)
Cash Management Obligations incurred in the ordinary course of business and
other Indebtedness incurred in the ordinary course of business in respect of
netting services, overdraft protections and similar arrangements and
Indebtedness incurred in the ordinary course of business arising from the
honoring of a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds; (r) Indebtedness in connection
with the Cash Pooling Arrangements; (s) Indebtedness as a result of the
issuance of a declaration of joint and several liability used for the purpose
of Section 2:403 of the Dutch Civil Code (and any residual liability under
such declarations arising pursuant to Section 2:404(2) of the Dutch Civil
Code); (t) Indebtedness as a result of a fiscal unity (fiscal eenheid) for
Dutch tax purposes between or among the Dutch Loan Parties; (u) Indebtedness
owing to any insurance company in connection with the financing of any
insurance premiums permitted by such insurance company in the ordinary course
of business; (v) other Indebtedness so long as the aggregate principal amount
of such Indebtedness shall not exceed $200,000,000 at any time outstanding;
and DB2/ 48024258.7 160 (w) all premiums (if any), interest (including
post-petition interest), fees, expenses, charges and additional or contingent
interest on obligations described in clauses (a) through (v) above. For
purposes of determining compliance with this Section 6.01, in the event that
an item of Indebtedness (or any portion thereof) meets the criteria of more
than one of the categories of Indebtedness described in clauses (a) through
(v) above, the Loan Parties and their Restricted Subsidiaries will be
permitted to, in their sole discretion, classify and reclassify or later
divide, classify or reclassify such item of Indebtedness (or any portion
thereof) and will only be required to include the amount and type of such
Indebtedness in one or more of the above clauses. Liens. No Loan Party will,
nor will it permit any Restricted Subsidiary to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, except: (a) Liens created pursuant to any Loan Document; (b)
Permitted Encumbrances; (c) any Lien on any property or asset of any Loan
Party or any Restricted Subsidiary existing on the Third Amendment Effective
Date and set forth in Schedule 6.02 and any modifications, replacements,
renewals or extensions thereof; provided that (i) such Lien shall not apply to
any other property or asset of such Loan Party or Restricted Subsidiary or any
other Loan Party or Restricted Subsidiary other than (A) after-acquired
property that is affixed or incorporated into the property covered by such
Lien and (B) proceeds thereof, and (ii) to the extent securing Indebtedness,
the modification, renewal, extension or refinancing of the Indebtedness or
other obligations secured or benefited by such Liens is permitted by Section
6.01; (d) Liens on fixed or capital assets (other than any Eligible Real
Property) acquired, constructed or improved by any Loan Party or any
Restricted Subsidiary; provided that (i) such Liens secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such Liens and the Indebtedness
secured thereby are incurred prior to or within 180 days after such
acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such Liens
shall not apply to any other property or assets of such Loan Party or
Restricted Subsidiary (other than improvements, accessions, proceeds,
dividends or distributions in respect thereof and assets fixed or appurtenant
thereto); (e) any Lien existing on any property or asset (other than
Collateral) prior to the acquisition thereof by any Loan Party or any
Restricted Subsidiary or existing on any property or asset (other than
Collateral) of any Person that becomes a Loan Party or Restricted Subsidiary
after the date hereof prior to the time such Person becomes a Loan Party or
Restricted Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Loan Party or Restricted Subsidiary, as the case may be, (ii) such
Lien shall not apply to any other property or assets of the Loan Party or
Restricted Subsidiary or proceeds thereof and (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition or the
date such Person becomes a Loan Party or Restricted Subsidiary, as the case
may be, and extensions, renewals and replacements thereof to the extent
otherwise permitted hereunder; (f) Liens (i) of a collecting bank arising in
the ordinary course of business under Section 4-210 of the UCC in effect in
the relevant jurisdiction covering only the items being
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DB2/ 48024258.7 161 collected upon and (ii) in favor of a banking institution
arising as a matter of law encumbering deposits (including the right of
setoff) and that are within the general parameters customary in the banking
industry; (g) Liens arising out of Sale and Leaseback Transactions permitted
by Section 6.06; (h) Liens granted by a Restricted Subsidiary that is not a
Loan Party in favor of any Borrower or another Loan Party in respect of
Indebtedness owed by such Restricted Subsidiary; (i) Liens on assets (other
than Collateral) of Subsidiaries that are not Loan Parties to secure
Indebtedness of such Subsidiary; (j) Liens in favor of the Loan Parties or any
of their Restricted Subsidiaries securing intercompany Indebtedness permitted
under Section 6.01; (k) Liens arising under the general terms and conditions
(Algemene Bankvoorwaarden) of any member of the Dutch Bankers' Association
(Nederlandse Verenging van Banken) in respect of a Collection Account
maintained in the Netherlands in favour of the relevant account bank; provided
that (i) a Deposit Account Control Agreement containing, among other things,
an undertaking (A) not to exercise such Liens or any right of set-off arising
under such general terms and conditions other than for recovery of costs
directly arising out of the maintenance of such Collection Accounts and (B) to
cooperate with the transfer of the balance of the Collection Accounts in
accordance with the instructions of the Administrative Agent, in form and
substance acceptable to the Administrative Agent has been entered into with
respect to such Collection Account and (ii) such Lien does not secure
Indebtedness; (l) leases, licenses, subleases or sublicenses granted to others
that do not (A) interfere in any material respect with the business of Insight
and its Restricted Subsidiaries, taken as a whole, or (B) secure any
Indebtedness; (m) Liens (A) on cash advances or escrow deposits in favor of
the seller of any property to be acquired in an Investment permitted pursuant
to Section 6.05 to be applied against the purchase price for such Investment
or otherwise in connection with any escrow arrangements with respect to any
such Investment or any Disposition permitted under Section 6.05 (including any
letter of intent or purchase agreement with respect to such Investment or
Disposition) or (B) consisting of an agreement to dispose of any property in a
Disposition permitted under Section 6.05, in each case, solely to the extent
such Investment or Disposition, as the case may be, would have been permitted
on the date of the creation of such Lien; (n) any interest or title of a
lessor under leases (other than leases constituting Capital Lease Obligations)
entered into by any Loan Party or any Restricted Subsidiary in the ordinary
course of business; (o) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale or purchase of goods
by any Loan Party or any Restricted Subsidiary in the ordinary course of
business; (p) Liens that are contractual rights of setoff (A) relating to the
establishment of depository relations with banks in the ordinary course of
business not given in connection with the incurrence of Indebtedness, (B)
relating to pooled deposit or sweep accounts to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of business
of any Loan Party or DB2/ 48024258.7 162 any Restricted Subsidiary or (C)
relating to purchase orders and other agreements entered into with customers
of any Loan Party or any Restricted Subsidiary in the ordinary course of
business; (q) Liens on insurance policies and the proceeds thereof securing
the financing of the premiums with respect thereto in the ordinary course of
business; (r) Liens placed on the Equity Interests of any non-Wholly Owned
Subsidiary or joint venture in the form of a transfer restriction, purchase
option, call or similar right of a third party joint venture partner; (s)
Liens on cash or Permitted Investments (for customary periods of time) used to
defease or to satisfy and discharge Indebtedness; provided that such
defeasance or satisfaction and discharge is not prohibited hereunder; (t)
purported Liens evidenced by the filing of precautionary UCC or similar
financing statements or notices relating solely to operating leases,
consignment arrangements or bailee arrangements entered into in the ordinary
course of business; (u) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of property in the ordinary course of business; (v) Liens
on cash and Cash Equivalents securing Swap Obligations permitted under Section
6.07 in an aggregate amount not to exceed $25,000,000 at any one time
outstanding; or (w) other Liens which do not secure Indebtedness for borrowed
money or letters of credit and as to which the aggregate amount of the
obligations secured thereby does not exceed $150,000,000 at any one time
outstanding. Fundamental Changes. (a) No Loan Party will, nor will it permit
any Restricted Subsidiary to, merge into, amalgamate or consolidate with any
other Person, or permit any other Person to merge into or amalgamate or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto (or, in the case of a
Limited Condition Transaction, at the time of the entry into of the applicable
Limited Condition Acquisition Agreement) no Event of Default shall have
occurred and be continuing: (i) any Restricted Subsidiary of any U.S. Loan
Party that is not a Loan Party may merge into a U.S. Loan Party in a
transaction in which a U.S. Loan Party is the surviving entity, (ii) any U.S.
Borrower can merge with any other U.S. Borrower; provided, however, if Insight
is a party to such merger, Insight must be the surviving entity, (iii) any
U.S. Loan Party (other than a U.S. Borrower) may merge into any other U.S.
Loan Party in a transaction in which the surviving entity is a U.S. Loan Party
(and, if such transaction involves a U.S. Borrower, a U.S. Borrower is the
surviving entity), (iv) any Canadian Loan Party may amalgamate into any other
Canadian Loan Party,
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DB2/ 48024258.7 163 (v) any Restricted Subsidiary of any Canadian Loan Party
that is not a Loan Party may amalgamate with such Canadian Loan Party in a
transaction in which a Canadian Loan Party is the surviving entity, (vi) any
Restricted Subsidiary of any U.K. Loan Party that is not a Loan Party may
merge into a U.K. Loan Party in a transaction in which a U.K. Loan Party is
the surviving entity, (vii) any U.K. Borrower can merge with any other U.K.
Borrower, (viii) any U.K. Loan Party (other than a U.K. Borrower) may merge
into any other U.K. Loan Party in a transaction in which the surviving entity
is a U.K. Loan Party (and, if such transaction involves a U.K. Borrower, a
U.K. Borrower is the surviving entity), (ix) any Restricted Subsidiary of any
Dutch Loan Party that is not a Loan Party may merge into a Dutch Loan Party in
a transaction in which a Dutch Loan Party is the surviving entity, (x) any
Dutch Borrower can merge with any other Dutch Borrower, (xi) any Dutch Loan
Party (other than a Dutch Borrower) may merge into any other Dutch Loan Party
in a transaction in which the surviving entity is a Dutch Loan Party (and, if
such transaction involves a Dutch Borrower, a Dutch Borrower is the surviving
entity), (xii) any Restricted Subsidiary of any Australian Loan Party that is
not a Loan Party may merge into an Australian Loan Party in a transaction in
which an Australian Loan Party is the surviving entity, (xiii) any Australian
Borrower can merge with any other Australian Borrower, (xiv) any Australian
Loan Party (other than an Australian Borrower) may merge into any other
Australian Loan Party in a transaction in which the surviving entity is an
Australian Loan Party (and, if such transaction involves an Australian
Borrower, an Australian Borrower is the surviving entity), (xv) any Restricted
Subsidiary that is not a Loan Party may merge or consolidate or amalgamate
with or into any other Restricted Subsidiary that is not a Loan Party, (xvi)
any Restricted Subsidiary may merge, consolidate or amalgamate with any other
Person in order to effect an Investment permitted pursuant to Section 6.04
(provided, however, if a Loan Party is a party to such merger, consolidation
or amalgamation, a Loan Party must be the surviving entity or the surviving
entity shall become a Loan Party in compliance with Section 5.15); (xvii) a
merger, amalgamation, dissolution, liquidation or consolidation, the purpose
of which is to effect a Disposition otherwise permitted pursuant to Section
6.05 may be effected; DB2/ 48024258.7 164 (xviii) the Trojan Acquisition and
the other transactions contemplated by the Trojan Merger Agreement may be
consummated, and (xix) any Subsidiary that is not a Borrower or a Canadian
Loan Guarantor that has assets included in the U.S. Borrowing Base may
liquidate or dissolve if Insight determines in good faith that such
liquidation or dissolution is in the best interests of such Subsidiary and is
not materially disadvantageous to the Lenders. (b) No Loan Party will
consummate a Division as the Dividing Person, without the prior written
consent of Administrative Agent. Without limiting the foregoing, if any Loan
Party that is a limited liability company consummates a Division (with or
without the prior consent of Administrative Agent as required above), each
Division Successor shall be required to comply with the applicable obligations
set forth in Section 5.14 and the other applicable further assurances
obligations set forth in the Loan Documents and become a Loan Party under this
Agreement and the other Loan Documents. (c) No Loan Party will, nor will it
permit any Restricted Subsidiary to, change its fiscal year from the basis in
effect on the Effective Date without the consent of the Administrative Agent.
Investments, Loans, Advances, Guarantees and Acquisitions. No Loan Party will,
nor will it permit any Restricted Subsidiary to, form any subsidiary after the
Effective Date, or purchase, hold or acquire (including pursuant to any merger
or amalgamation with any Person that was not a Loan Party and a wholly owned
Subsidiary prior to such merger) any evidences of Indebtedness or Equity
Interests or other securities (including any option, warrant or other right to
acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit (whether through purchase of
assets, merger or otherwise) (each, an "Investment"), except: (a) Permitted
Investments; (b) (i) Investments in existence on the Third Amendment Effective
Date and described in Schedule 6.04 and (ii) Investments existing on the Third
Amendment Effective Date in Restricted Subsidiaries existing on the Third
Amendment Effective Date; (c) Investments (i) by any Loan Party in any other
Loan Party (including any newly created Restricted Subsidiary that becomes a
Loan Party), (ii) by any Restricted Subsidiary that is not a Loan Party in any
Restricted Subsidiary that is not a Loan Party, (iii) by any Restricted
Subsidiary that is not a Loan Party in any Loan Party, and (iv) by any Loan
Party in Restricted Subsidiaries that are not Loan Parties, provided that (A)
at the time any such Investment is made under this clause (iv) the aggregate
outstanding amount of such Investments by Loan Parties in Restricted
Subsidiaries that are not Loan Parties (together with outstanding amount of
Investments in any joint ventures permitted under Section 6.04(j)) shall not
exceed the greater of (x) $40,000,000 and (y) 10% of EBITDA as of the last day
of the most recently ended four fiscal quarter period for which financial
statements have been delivered pursuant to Section 4.01(b) (at all times prior
to the first delivery of financial statements after the Effective Date under
Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of such time
(in each case determined without regard to any write-downs or write-offs) and
such Investments by Loan Parties in Restricted Subsidiaries that are not Loan
Parties under this clause (iv) shall only be permitted so long as no Event of
Default has occurred immediately prior to giving effect to such Investment and
immediately after such Investment giving pro forma effect to such Investment;
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DB2/ 48024258.7 165 (d) loans or advances made by a Loan Party or any
Restricted Subsidiary to its employees in the ordinary course of business up
to a maximum of $2,500,000 in the aggregate at any one time outstanding; (e)
notes payable, or stock or other securities issued by Account Debtors to a
Loan Party or any Restricted Subsidiary pursuant to negotiated agreements with
respect to settlement of such Account Debtor's Accounts in the ordinary course
of business; (f) Investments in the form of Swap Agreements permitted by
Section 6.07; (g) Investments of any Person existing at the time such Person
becomes a Restricted Subsidiary or consolidates or merges or amalgamates with
or into a Loan Party or any of the Restricted Subsidiaries (including in
connection with a Permitted Acquisition) so long as such Investments were not
made in contemplation of such Person becoming a Restricted Subsidiary or of
such consolidation or merger or amalgamation; (h) Investments received in
connection with Dispositions permitted by Section 6.05; (i) Investments
constituting deposits described in clauses (c) and (d) of the definition of
the term "Permitted Encumbrances"; (j) other Investments by any Loan Party or
Restricted Subsidiary, including, without limitation, in joint ventures in
which such Loan Party or Restricted Subsidiary owns less than a majority of
the Equity Interests of such joint venture, so long as at the time any such
Investment is made under this Section 6.04(j) the aggregate outstanding amount
of such Investments made in reliance on this Section 6.04(j) (together with
then outstanding Investments permitted under clause (iv) of Section 6.04(c))
does not exceed the greater of (x) $40,000,000 and (y) 10% of EBITDA as of the
last day of the most recently ended four fiscal quarter period for which
financial statements have been delivered pursuant to Section 4.01(b) (at all
times prior to the first delivery of financial statements after the Effective
Date under Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 as of
such time and such Investments by Loan Parties or Restricted Subsidiaries in
joint ventures shall only be permitted so long as no Event of Default has
occurred immediately prior to giving effect to such Investment and immediately
after such Investment giving pro forma effect to such Investment; (k)
Permitted Acquisitions; (l) Investments consisting of prepayments to suppliers
in the ordinary course of business; (m) Investments consisting of extensions
of trade credit in the ordinary course of business; (n) Investments in the
ordinary course of business consisting of endorsements for collection or
deposit and customary trade arrangements with customers consistent with past
practices; (o) Investments (including debt obligations and Equity Interests)
received in connection with the bankruptcy or reorganization of suppliers and
customers, from financially troubled account debtors or in settlement of
delinquent obligations of, or other disputes with, DB2/ 48024258.7 166
customers and suppliers or upon the foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;
(p) advances of payroll payments to employees in the ordinary course of
business; (q) to the extent that they constitute Investments, purchases and
acquisitions of inventory, supplies, materials or equipment or purchases,
acquisitions, licenses or leases of other assets, intellectual property, or
other rights, in each case in the ordinary course of business; (r) Guarantees
by Insight or any Restricted Subsidiary of the obligations of Insight or any
Restricted Subsidiary of leases or other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;
(s) deposits in the ordinary course of business to secure the performance of
operating leases or utility contracts, or in connection with obligations in
respect of tenders, statutory obligations, surety, stay and appeal bonds,
bids, licenses, leases, government contracts, trade contracts, performance and
return-of-money bonds, completion guarantees and other similar obligations
(exclusive of obligations for the payment of money), in each case incurred in
the ordinary course of business; (t) Investments in the form of Restricted
Payments permitted pursuant to Section 6.08(a); and (u) so long as the Payment
Conditions are satisfied, other Investments (other than Acquisitions) pursuant
to this clause (u). For purposes of determining compliance with this Section
6.04, in the event that a proposed Investment (or portion thereof) meets the
criteria of clauses (a) through (u) above, the Loan Parties and the Restricted
Subsidiaries will be entitled to classify or later reclassify (based on
circumstances existing on the date of such reclassification) such Investment
(or portion thereof) between such clauses (a) through (u), in a manner that
otherwise complies with this Section 6.04. For the avoidance of doubt, an
Investment entered into in reliance on clause (u) above that was permitted at
the time entered into shall continue to be permitted under such clause
notwithstanding any failure to satisfy the Payment Conditions (or any other
condition in such clause) at a later date with respect to any subsequent
Investment. For purposes of determining the amount of any Investment
outstanding, such amount shall be deemed to be the amount of such Investment
when made, purchased or acquired (without adjustment for subsequent increases
or decreases in the value of such Investment, but giving effect to any net
reduction in such Investment resulting from any repurchase, repayment or
redemption of such Investment, proceeds realized on the sale of such
Investments and taking into account any funds returned to the Person making
the Investments (including amounts received representing interest, dividends
or any other return of capital)). Asset Sales. No Loan Party will, nor will it
permit any Restricted Subsidiary to Dispose any asset, including any Equity
Interest owned by it, except: (a) Dispositions of (i) Inventory in the
ordinary course of business and (ii) used, obsolete, worn out or surplus
equipment or property or assets no longer used or usable in the business of
any Loan Party or any Restricted Subsidiary in the ordinary course of business
(including allowing any registration or application for registration of any
intellectual property that is no longer used or useful, or economically
practicable to maintain, to lapse or go abandoned or be invalidated);
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DB2/ 48024258.7 167 (b) Dispositions of assets to any Loan Party or any
Restricted Subsidiary; provided that for any such Dispositions made by a Loan
Party to a Restricted Subsidiary that is not a Loan Party (other than
Dispositions made to a Restricted Subsidiary that is not a Loan Party which is
part of a series of transactions whereby such Disposition is ultimately made
to a Loan Party), such Dispositions are either (x) on terms and conditions
substantially as favorable to such Loan Party as would be obtained on an arm's
length basis from unrelated third parties or (y) the Payment Conditions are
satisfied after giving effect to such Disposition; (c) (i) Dispositions of
Accounts in connection with the compromise, settlement or collection thereof
and (ii) Dispositions of Accounts originated in connection with transactions
consummated by a Loan Party or Restricted Subsidiary in the ordinary course of
such Loan Party's or such Restricted Subsidiary's business consistent with
past practices in which the applicable Loan Party or Restricted Subsidiary
purchases hardware, software or services (as the case may be) from its vendors
and subsequently sells or leases (as the case may be) such hardware, software
or services to its customers, and then Disposes of the contracts for such
transactions (including all Accounts arising from such transactions) to
unaffiliated third-party financial institutions or other finance companies
within fifteen (15) days (or such later date as agreed to by the Administrative
Agent in its sole discretion) after such Accounts have been originated in
connection with such transactions (it being understood and agreed that all
Accounts owing by customers of a Loan Party or Restricted Subsidiary
originated pursuant to such purchase and sale/lease transactions with such
customers and so sold to any such unaffiliated third-party financial
institutions or other finance companies shall not constitute Eligible Accounts
but any Accounts owing to a Loan Party by any such unaffiliated third-party
financial institutions or other finance companies in connection with the
Disposition of such contracts to any such unaffiliated third-party financial
institutions or other finance companies shall constitute Eligible Accounts to
the extent such Accounts so qualify pursuant to the definition of Eligible
Accounts); (d) Dispositions of Accounts not in excess of $200,000,000 during
any fiscal year in connection with any receivables financing; provided that
(i) no Event of Default has occurred and is continuing at the time of any such
Disposition or would result immediately therefrom, (ii) in the case of
Dispositions of Accounts of a Borrower or Canadian Loan Party, no Revolving
Overadvance or FILO Overadvance would result after giving effect to any such
Disposition, (iii) in the case of Dispositions of Accounts of a Borrower or
Canadian Loan Party, the applicable Account Debtor(s) owing such Accounts to
the applicable Borrower are identified by name in writing to the Administrative
Agent prior to any such Disposition, (iv) in the case of Dispositions of
Accounts of a Borrower or Canadian Loan Party, the aggregate amount of
Accounts sold, transfer or Disposed, and retained by, the applicable Borrower
in connection with each such receivables financing are identified by the
Borrowers in an updated Borrowing Base Certificate delivered to the
Administrative Agent giving pro forma effect to such Disposition (as if such
Disposition occurred on such date of the Borrowing Base Certificate), and (v)
in the case of Dispositions of Accounts of a Borrower or Canadian Loan Party,
to the extent an Account owing from a particular Account Debtor is sold during
any calendar month then all other Accounts owing from such Account Debtor,
whether or not such other Accounts are sold, shall be ineligible for inclusion
in the applicable Borrowing Base during such calendar month; (e) Dispositions
of (i) cash (in a manner not otherwise prohibited by the terms of this
Agreement or any other Loan Document) and Permitted Investments and (ii) other
Investments permitted by clauses (g) and (i) of Section 6.04; (f) Sale and
Leaseback Transactions permitted by Section 6.06; DB2/ 48024258.7 168 (g)
Dispositions resulting from any casualty or other insured damage to, or any
taking under power of eminent domain or by condemnation or similar proceeding
of, any property or asset of any Loan Party or any Restricted Subsidiary; (h)
Dispositions of assets acquired in an Acquisition or other Investment, either
(i) pursuant to agreements executed in connection with such Acquisition or
Investment or (ii) for fair market value within one (1) year after such
Acquisition or Investment, in each case so long as (A) the assets to be so
sold, transferred or Disposed are not necessary or economically desirable in
connection with the business of the Loan Parties and their Restricted
Subsidiaries, and (B) the assets to be so Disposed are readily identifiable as
assets acquired pursuant to the subject Acquisition or Investment; (i)
Dispositions of assets in an aggregate fair market value (as determined by the
Borrower Representative in good faith) not to exceed $125,000,000 (subject, in
the case of Dispositions of Collateral with a value in excess of $25,000,000
to delivery of an updated Borrowing Base Certificate to the Administrative
Agent giving pro forma effect to such Disposition (as if such Disposition
occurred on such date of the Borrowing Base Certificate)); (j) other
Dispositions of assets (other than Collateral) so long as the aggregate fair
market value of all assets Disposed of in reliance upon this clause (j) (as
determined by the Borrower Representative in good faith) shall not exceed in
any fiscal year the greater of (A) $150,000,000 and (B) 37.5% of EBITDA as of
the last day of the most recently ended four fiscal quarter period for which
financial statements have been delivered pursuant to Section 4.01(b) (at all
times prior to the first delivery of financial statements after the Effective
Date under Section 5.01(a) or (b)) or clause (a) or (b) of Section 5.01 at
such time; provided, however, the limitation set forth in this clause (j)
shall not apply if at least seventy-five percent (75%) of the aggregate sales
price from such Disposition shall be paid in cash or Permitted Investments;
provided that each of the following items will be deemed to be cash or
Permitted Investments for purposes of this Section 6.05(j): (1) any
liabilities of the Loan Parties or the Restricted Subsidiaries (as shown on
the most recently delivered financial statements pursuant to Section 4.01(b)
(at all times prior to the first delivery of financial statements after the
Effective Date under Section 5.01(a) or (b)) or Section 5.01(a) or (b) or in
the notes thereto), other than liabilities that are by their terms
subordinated in right of payment to the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Loan
Parties and the Restricted Subsidiaries have been validly released by all
applicable creditors in writing; and/or (2) any Designated Non-Cash
Consideration received in respect of such Disposition; provided that the
aggregate fair market value of all such Designated Non-Cash Consideration, as
determined by the Borrower Representative in good faith, taken together with
all other Designated Non-Cash Consideration received pursuant to this clause
(2) that is then outstanding, does not exceed $25,000,000 as of the date any
such Designated Non-Cash Consideration is received, with the fair market value
of each item of Designated Non-Cash Consideration being measured at the time
received and without giving effect to subsequent changes in value;
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DB2/ 48024258.7 169 (k) sales or other issuances of Qualified Equity Interests
of Insight (or other securities or property following a merger event,
reclassification or other change of such Qualified Equity Interests of
Insight) upon (i) settlement of any Convertible Debt Security or (b) the
exercise of any Permitted Warrant~ (l) Dispositions of fixed or capital assets
(other than Eligible Real Property) to the extent that such property is
exchanged for credit against the purchase price of similar replacement
property; (m) leases, subleases, licenses or sublicenses, in each case in the
ordinary course of business and that do not materially interfere with the
business of Insight and its Restricted Subsidiaries, taken as a whole; (n)
Dispositions of Investments in joint ventures to the extent required by, or
made pursuant to customary buy/sell arrangements between, the joint venture
parties set forth in joint venture arrangements and similar binding
arrangements; (o) the unwinding or other Disposition of any Swap Obligations
or Cash Management Obligations; (p) Dispositions permitted by Section 6.03,
Investments permitted by Section 6.04, Restricted Payments permitted by
Section 6.08(a), and Liens permitted by Section 6.02, in each case, other than
by reference to this clause (p); and (q) other Dispositions of assets so long
as the aggregate fair market value of all such assets Disposed of during the
term of this Agreement (as determined by the Borrower Representative in good
faith) pursuant to this clause (q), as determined as of the date of such
Disposition, shall not exceed $10,000,000. Sale and Leaseback Transactions. No
Loan Party will, nor will it permit any Restricted Subsidiary to, enter into
any arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred (a "Sale and Leaseback Transaction"),
except for any such sale of any fixed or capital assets by any Loan Party or
any Restricted Subsidiary that is made for cash consideration in an amount not
less than the fair value of such fixed or capital asset and is consummated
within 180 days after such Loan Party or such Restricted Subsidiary acquires
or completes the construction of such fixed or capital asset. Swap Agreements.
No Loan Party will, nor will it permit any Restricted Subsidiary to, enter
into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which any Borrower or any Restricted Subsidiary has actual
exposure, (b) Swap Agreements entered into in order to effectively cap, collar
or exchange interest rates (from floating to fixed rates, from one floating
rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of any Borrower or any Restricted Subsidiary, and (c)
Permitted Convertible Debt Hedge Transactions, and (d) Permitted Share
Repurchase Transactions. Restricted Payments; Certain Payments of
Indebtedness. (a) No Loan Party will, nor will it permit any Restricted
Subsidiary to, declare or make, or agree to declare or make, directly or
indirectly, any Restricted Payment, except (i) each DB2/ 48024258.7 170 of the
Loan Parties and the Restricted Subsidiaries may declare and pay dividends
with respect to its Equity Interests payable solely in additional shares of
its Equity Interests (other than Disqualified Equity Interests), (ii) any Loan
Party may declare and make Restricted Payments to any Loan Party, (iii) any
Restricted Subsidiary that is not a Loan Party may declare and make Restricted
Payments to any Loan Party or other Restricted Subsidiary, (iv) Restricted
Payments made by any Loan Party to any non-Loan Party as part of a series of
transactions whereby such Restricted Payment is ultimately made to a Loan
Party, (v) the Loan Parties and the Restricted Subsidiaries may make
Restricted Payments, not exceeding $25,000,000 during any fiscal year of
Insight, pursuant to and in accordance with equity option plans, equity award
plans, or other benefit plans for management or employees of the Loan Parties
and their Restricted Subsidiaries (including non-cash repurchases of Equity
Interests deemed to occur upon the exercise of equity awards if such Equity
Interests represent a portion of the purchase price therefor), (vi) the Loan
Parties may make other Restricted Payments subject to the satisfaction of the
Payment Conditions immediately after giving effect to such Restricted Payment,
(vi) Insight and its Restricted Subsidiaries may make cash payments in lieu of
issuance of fractional shares in connection with the conversion of any
convertible Equity Interests of Insight, (viii) Insight may make repurchases
of Equity Interests of Insight (A) deemed to occur on the exercise of stock
options or warrants or similar rights if such Equity Interests represent the
delivery of a portion of the Equity Interests subject to such options or
warrants or similar rights in satisfaction of the exercise price of such stock
options, warrants or similar rights (and do not involve cash consideration) or
(B) deemed to occur in the case of payment by Insight of withholding or
similar Taxes payable by any future, present or former officer, director,
employee, consultant or agent (or heirs or other permitted transferees
thereof), in connection with the exercise or vesting of stock options,
restricted stock warrants or similar rights (in lieu of a portion of the
shares that otherwise would be issued upon such exercise or vesting), (ix)
Insight may redeem, repurchase, acquire or retire any of its outstanding
Qualified Equity Interests upon the exercise, termination or unwind of any
Permitted Convertible Debt Hedge Transaction or upon conversion, exchange,
repurchase, redemption or retirement of any Convertible Debt Security, (x)
Insight may make Restricted Payments (A) in connection with (including,
without limitation, purchases of) any Permitted Convertible Debt Hedge
Transaction, (B) to settle any Permitted Warrant (I) by delivery of its
Qualified Equity Interests, (II) by set-off against the related Permitted Bond
Hedge or (III) with cash payments in an aggregate amount not to exceed the
aggregate amount of any payments and/or deliveries received pursuant to the
settlement of any related Permitted Bond Hedge (subject to any increase in the
price of the underlying common stock since the settlement of such Permitted
Bond Hedge), (C) to terminate any Permitted Warrant or (D) to terminate any
Permitted Share Repurchase Transaction, and (xii) Insight may make cash
payments in lieu of the issuance of fractional shares in connection with the
exercise, conversion or settlement of any Convertible Debt Hedge Transaction
or cash payments on any Convertible Debt Security in accordance with the terms
and conditions set forth in the documents evidencing such Convertible Debt
Security. (b) (i) No Loan Party will, nor will it permit any Restricted
Subsidiary to, make, directly or indirectly, any voluntary prepayment or other
voluntary distribution (whether in cash, securities or other property) of or
in respect of principal of any Junior Indebtedness (other than intercompany
Indebtedness), or any voluntary payment or other distribution (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Junior Indebtedness (other than
intercompany Indebtedness), except (A) refinancings of Junior Indebtedness to
the extent permitted by Section 6.01, (B) the non-cash payment, purchase,
redemption, defeasance or other acquisition or retirement of any Junior
Indebtedness in exchange for Equity Interests of Insight and (C) any payment
or other distribution in respect of Junior Indebtedness so long as the Payment
Conditions are satisfied immediately after giving effect to
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DB2/ 48024258.7 171 such payment or other distribution, other than payments in
respect of the Junior Indebtedness prohibited by subordination provisions
thereof, and (ii) no Loan Party will make, directly or indirectly, any payment
or distribution (whether in cash, securities or other property) of or in
respect of any amount of any intercompany Indebtedness that is Junior
Indebtedness if prohibited by the subordination provisions thereof.
Transactions with Affiliates. No Loan Party will, nor will it permit any
Restricted Subsidiary to, engage in any transactions with, any of its
Affiliates, except (a) transactions on terms and conditions substantially as
favorable to such Loan Party or such Restricted Subsidiary as would be
obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among Insight and any of the Restricted Subsidiaries,
(c) any Investment permitted by Section 6.04, (d) any Indebtedness permitted
under Section 6.01(c), (e) any Restricted Payment permitted by Section
6.08(a), (f) the payment of reasonable fees and indemnities to directors of
any Loan Party or any Restricted Subsidiary, and compensation and employee
benefit arrangements paid to, and indemnities provided for the benefit of,
directors, officers or employees of the Loan Parties or their Restricted
Subsidiaries in the ordinary course of business, (g) any issuances of
securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements, stock options
and stock ownership plans approved by a Loan Party's or a Restricted
Subsidiary's board of directors (or equivalent governing body), (h) the
Transactions, (i) issuances of Equity Interests of Insight or any Restricted
Subsidiary to the extent not prohibited by this Agreement and (j) transactions
for consideration less than $5,000,000 in the aggregate for all such
transactions after the Third Amendment Effective Date. Restrictive Agreements.
No Loan Party will, nor will it permit any Restricted Subsidiary to, directly
or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of such Loan Party or any Restricted Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets in favor of the
Administrative Agent to secure the Secured Obligations, or (b) the ability of
any Restricted Subsidiary to pay dividends or other distributions with respect
to any of its Equity Interests or to make or repay loans or advances to any
Loan Party or any other Restricted Subsidiary or to Guarantee Indebtedness of
any Loan Party or any other Restricted Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by any
Requirement of Law or by any Loan Document, (ii) the foregoing shall not apply
to restrictions and conditions existing on the date hereof identified on
Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the Disposition of a Restricted
Subsidiary or assets pending such Disposition, provided that such restrictions
and conditions apply only to the Restricted Subsidiary or assets to be sold
and such Disposition is permitted hereunder, (iv) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (v) clause (a) of the foregoing shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof;
(vi) the foregoing shall not apply to restrictions imposed by customary
provisions in partnership agreements, limited liability company organizational
governance documents, joint venture agreements and other similar agreements
that restrict the transfer of ownership interests in such partnership, limited
liability company, joint venture or similar Person; (vii) the foregoing shall
not apply to restrictions in any one or more agreements governing Indebtedness
entered into after the Effective Date that contain encumbrances and other
restrictions that are, taken as a whole, in the good faith judgment of
Insight, (i) no more restrictive in any material respect with respect to the
Loan Parties than those encumbrances and other restrictions that are in effect
pursuant to this Agreement, and (ii) no more disadvantageous in any material
respect, taken as a whole, to the Lenders than the Loan Documents; (viii) the
foregoing shall not apply to restrictions that are binding on a Subsidiary at
the time such Subsidiary first becomes a Subsidiary, as applicable, so long as
such restrictions were not entered into in contemplation of DB2/ 48024258.7
172 such Person becoming such a Subsidiary; and (ix) clause (a) of the
foregoing shall not apply to negative pledges and restrictions on Liens in
favor of any holder of Indebtedness permitted under Section 6.01 but solely to
the extent any negative pledge relates to the property financed by or secured
by such Indebtedness. Amendment of Material Documents. No Loan Party will, nor
will it permit any Restricted Subsidiary to, amend, modify or waive any of its
rights under (a) any agreement relating to any Junior Indebtedness to the
extent that any such amendment, modification or waiver, either individually or
in the aggregate, could reasonably be expected to be materially adverse to the
interests of the Lenders or that is prohibited by the applicable subordination
agreement governing such Junior Indebtedness, or (b) the charter, articles or
certificate of incorporation or organization, by-laws, operating, management
or partnership agreement or other organizational or governing document of such
Loan Party to the extent that any such amendment, modification or waiver,
either individually or in the aggregate, could reasonably be expected to be
materially adverse to the interests of the Lenders. Fixed Charge Coverage
Ratio. During any Covenant Testing Trigger Period, the Borrowers will not
permit the Fixed Charge Coverage Ratio to be less than 1.0 to 1.0 when
measured, on a trailing four fiscal quarter basis, as of the last day of: (a)
the last fiscal quarter immediately preceding the occurrence of such Covenant
Testing Trigger Period for which financial statements have been delivered to
the Administrative Agent pursuant to clause (a) or (b) of Section 5.01, and
(b) each fiscal quarter for which financial statements have been delivered to
the Administrative Agent pursuant to clause (a) or (b) of Section 5.01 during
such Covenant Testing Trigger Period. [Reserved]. Specified Zero Balance
Accounts. No Loan Party shall cause any Specified Zero Balance Account to (i)
cease to be a zero-balance account unless a Deposit Account Control Agreement
covering such account has been executed and delivered by the applicable Loan
Party (or its Affiliate, as applicable), or (ii) be swept to any deposit
account other than a deposit account of a Loan Party that is subject to a
Deposit Account Control Agreement. ARTICLE VII Events of Default If any of the
following events ("Events of Default") shall occur: (a) the Borrowers shall
fail to pay any principal of any Loan or any reimbursement obligation in
respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise; (b) the Borrowers shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement 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 (5) Business Days; (c) any
representation or warranty made or deemed made by or on behalf of any Loan
Party or any Subsidiary in, or in connection with, this Agreement or any other
Loan Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or
any other Loan Document or any amendment or modification hereof or
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DB2/ 48024258.7 173 thereof or waiver hereunder or thereunder, shall prove to
have been materially incorrect when made or deemed made; (d) any Loan Party
shall fail to observe or perform any covenant, condition or agreement
contained in (i) Section 5.02(a), 5.03 (with respect to a Loan Party's
existence only), 5.08, 5.16, 5.17 or 5.22, or in Article VI, (ii) Article VII
of the U.S. Security Agreement or (iii) Article VII of the Canadian Security
Agreement; (e) any Loan Party shall fail to observe or perform any covenant,
condition or agree- ment contained in this Agreement (other than those which
constitute a default under another Section of this Article) or any other Loan
Document, and such failure shall continue unremedied for a period of (i) five
(5) days after the earlier of any Loan Party's knowledge of such breach or
notice thereof from the Administrative Agent (which notice will be given at
the Administrative Agent's election or at the request of the Required Lenders)
if such breach relates to terms or provisions of Section 5.01, 5.02 (other
than Section 5.02(a)), 5.06, or 5.10 of this Agreement, or (ii) thirty (30)
days after the earlier of any Loan Party's knowledge of such breach or notice
thereof from the Administrative Agent (which notice will be given at the
Administrative Agent's election or at the request of the Required Lenders) if
such breach relates to terms or provisions of any other Section of this
Agreement or any other Loan Document; (f) any Loan Party or Restricted
Subsidiary shall fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable (after giving effect to any applicable
grace period); (g) any breach or default with respect to any Material
Indebtedness occurs by any Loan Party or Material Subsidiary, in each case
beyond the grace period, if any, provided therefor, if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Material Indebtedness (or a trustee on behalf of such holder or holders) to
cause, that Material Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity; provided that this clause (g) shall
not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness to the extent such Disposition is permitted by Section 6.05; (h)
(i) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (A) liquidation, administration, receivership,
reorganization or other relief in respect of a Loan Party (other than an
Australian Loan Party) or any Material Subsidiary (other than a Material
Subsidiary incorporated in Australia) or its debts, or of a substantial part
of its assets, under any Insolvency Laws now or hereafter in effect or (B) the
appointment of a liquidator, Controller, receiver, receiver and manager,
interim receiver, monitor, trustee, administrator, custodian, sequestrator,
conservator or similar official for any Loan Party (other than an Australian
Loan Party) or Material Subsidiary (other than a Material Subsidiary
incorporated in Australia) or for a substantial part of its assets, and, in
any such case, such proceeding or petition, (I) in the case of any U.K. Loan
Party or Material Subsidiary incorporated in England and Wales, is not
frivolous or vexatious and is discharged, and shall continue unstayed or
undismissed within twenty-one (21) days of commencement, and (II) in the case
of each other Loan Party (other than an Australian Loan Party) or Material
Subsidiary (other than a Material Subsidiary incorporated in Australia), shall
continue undismissed for sixty (60) days or an order or decree approving or
ordering any of the foregoing shall be entered or (ii) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed
seeking (A) liquidation, administration, receivership, reorganization or other
relief in respect of an Australian Loan Party or any Material Subsidiary
incorporated in Australia or its debts, or of a substantial part of its
assets, under any Insolvency DB2/ 48024258.7 174 Laws now or hereafter in
effect or (B) the appointment of a liquidator, Controller, receiver, receiver
and manager, interim receiver, monitor, trustee, administrator, custodian,
sequestrator, conservator or similar official for any Australian Loan Party or
Material Subsidiary incorporated in Australia or for a substantial part of its
assets, except on application made to a court for the purpose of appointing
such a Person referenced in this clause (ii)(B) which is disputed by that
Australian Loan Party or Material Subsidiary acting diligently and in good
faith and is dismissed within 30 days; (i) any Loan Party or Material
Subsidiary shall (i) voluntarily commence any proceeding or file any petition
or proposal seeking liquidation, administration, reorganization or other
relief under any Insolvency Laws now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of an administrator, liquidator, Controller,
receiver, receiver and manager, interim receiver, monitor, trustee, custodian,
sequestrator, conservator or similar official for such Loan Party or Material
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing; (j) any
Loan Party shall become unable, admit in writing its inability, or publicly
declare its intention not to, or fail generally to pay its debts as they
become due; (k) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 (to the extent not paid or covered by a valid
and binding policy of insurance (as to which a solvent insurance company has
not denied coverage)) shall be rendered against any Loan Party, any Material
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of thirty (30) consecutive days during which execution shall not
be effectively stayed; (l) (i) an ERISA Event or Canadian Pension Event shall
have occurred that, when taken together with all other ERISA Events and
Canadian Pension Events that have occurred could reasonably be expected to
result in liability of the Borrowers and their Restricted Subsidiaries in an
aggregate amount exceeding $50,000,000 for all periods, or (ii) any Lien
arises (save for contribution amounts not yet due) in connection with any
Canadian Pension Plan that could reasonably be expected to have a Material
Adverse Effect; (m) a Change in Control shall occur; (n) except, in each case,
as expressly contemplated by the Loan Guaranty, the Loan Guaranty shall fail
to remain in full force or effect or any action shall be taken by any Person
other than any Secured Party to discontinue or to reasonably assert the
invalidity or unenforceability of the Loan Guaranty, or any Loan Guarantor
shall deny that it has any further liability under the Loan Guaranty to which
it is a party, or shall give notice to such effect, including, but not limited
to notice of termination delivered pursuant to Section 10.08; (o) except as
permitted by the terms of any Collateral Document, (i) any Collateral Document
shall for any reason fail to create a valid security interest in any
Collateral (with respect to Collateral having an aggregate book value in
excess of $50,000,000) purported to be covered thereby, or (ii) any Lien
securing any Secured Obligation shall cease to be a perfected, first priority
Lien (with respect to Collateral having an aggregate book value in excess of
$50,000,000) or such Lien (with respect to Collateral having an aggregate book
value in excess of $50,000,000) shall not have the priority contemplated by
the Loan Documents, in each case except (A) as a result of the Disposition of
the applicable Collateral in a transaction permitted under the Loan Documents,
(B)
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DB2/ 48024258.7 175 any action taken by the Administrative Agent to release
any such Lien in compliance with the provisions of this Agreement or any other
Loan Documents, or (C) as a result of the Administrative Agent's failure to
maintain possession of any stock certificates or other instruments delivered
to it under and pursuant to a Loan Document; (p) except as expressly
contemplated by any Collateral Document and except as the result of an action
or failure to act on the part of the Administrative Agent, the U.S. Security
Agreement, Canadian Security Agreement, the Dutch Omnibus Pledge, the U.K.
Debenture, the Australian Collateral Documents or any other material
Collateral Document shall fail to remain in full force or effect or any action
shall be taken by any Person other than any Secured Party to discontinue or to
reasonably assert the invalidity or unenforceability of any Collateral
Document; (q) except as expressly contemplated by any Loan Document, any
material provision of any material Loan Document for any reason ceases to be
valid, binding and enforceable in accordance with its terms (or any Loan Party
shall challenge the enforceability of any Loan Document or shall assert in
writing, or engage in any action or inaction that evidences its assertion,
that any provision of any of the Loan Documents has ceased to be or otherwise
is not valid, binding and enforceable in accordance with its terms); or (r) in
the case of a U.K. Loan Party, a moratorium is declared in respect of any
Indebtedness of such U.K. Loan Party (it being understood and agreed that, if
a moratorium occurs, the ending of the moratorium will not remedy any Event of
Default caused by that moratorium). then, and in every such event (other than
an event with respect to the Borrowers described in clause (h) or (i) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower Representative, take any or all of the following
actions, at the same or different times: (i) terminate the Revolving
Commitments and the FILO Commitments, whereupon the Revolving Commitments and
the FILO Commitments shall terminate immediately, (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, but ratably as among
the Classes of Loans and the Loans of each Class at the time outstanding, in
which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees (including, for the avoidance of doubt, any break funding payments) and
other obligations of the Borrowers accrued hereunder and under any other Loan
Document, shall become due and payable immediately, in each case without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers, and (iii) require cash collateral for the LC
Exposure in accordance with Section 2.06(j) hereof; and in the case of any
event with respect to the Borrowers described in clause (h) or (i) of this
Article, the Revolving Commitments and the FILO Commitments shall
automatically terminate and the principal of the Loans then outstanding and
the cash collateral for the LC Exposure, together with accrued interest
thereon and all fees (including, for the avoidance of doubt, any break funding
payments) and other obligations of the Borrowers accrued hereunder and under
any other Loan Document, shall automatically become due and payable, in each
case without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrowers. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and at the
request of the Required Lenders shall, increase the rate of interest
applicable to the Loans and other Obligations as set forth in this Agreement
and exercise any rights and remedies provided to the Administrative Agent
under the Loan Documents or at law or equity, including all remedies provided
under the UCC and the Australian PPSA. ARTICLE VIII DB2/ 48024258.7 176 The
Administrative Agent Authorization and Action. (a) Each Lender, on behalf of
itself and any of its Affiliates that are Secured Parties and each Issuing
Bank hereby irrevocably appoints the entity named as Administrative Agent in
the heading of this Agreement and its successors and assigns to serve as the
administrative agent and collateral agent under the Loan Documents and each
Lender and each Issuing Bank authorizes the Administrative Agent to take such
actions as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent under such agreements and to exercise such powers as are reasonably
incidental thereto. In addition, to the extent required under the laws of any
jurisdiction other than within the United States, each Lender and each Issuing
Bank hereby grants to the Administrative Agent any required powers of attorney
to execute and enforce any Collateral Document governed by the laws of such
jurisdiction on such Lender's or such Issuing Bank's behalf. Each Lender and
each Issuing Bank exempts the Administrative Agent from the restrictions
pursuant to Section 181 Civil Code (Burgerliches Gesetzbuch) and similar
restrictions applicable to it pursuant to any other applicable law, in each
case to the extent legally possible to such Lender and Issuing Bank. Any
Lender and any Issuing Bank which cannot grant such exemption shall notify the
Administrative Agent accordingly and, upon request of the Administrative
Agent, either act in accordance with the terms of this Agreement and/or any
other Loan Document as required pursuant to this Agreement and/or such other
Loan Document or grant a special power of attorney to a party acting on its
behalf, in a manner that is not prohibited pursuant to Section 181 of the
German Civil Code (Burgerliches Gesetzbuch) and/or any other applicable laws.
Without limiting the foregoing, each Lender and each Issuing Bank hereby
authorizes the Administrative Agent to execute and deliver, and to perform its
obligations under, each of the Loan Documents to which the Administrative
Agent is a party, and to exercise all rights, powers and remedies that the
Administrative Agent may have under such Loan Documents. Without limiting the
powers of the Administrative Agent, for the purposes of holding any hypothec
granted pursuant to the laws of the Province of Quebec to secure the prompt
payment and performance of any and all Secured Obligations by any Loan Party,
each of the Secured Parties hereby irrevocably appoints and authorizes the
Administrative Agent and, to the extent necessary, ratifies the appointment
and authorization of the Administrative Agent, to act as the hypothecary
representative of the present and future Lenders as contemplated under Article
2692 of the Civil Code of Quebec (in such capacity, the "Attorney"), and to
enter into, to take and to hold on their behalf, and for their benefit, any
hypothec, and to exercise such powers and duties that are conferred upon the
Attorney under any related deed of hypothec and applicable law. The Attorney
shall: (a) have the sole and exclusive right and authority to exercise, except
as may be otherwise specifically restricted by the terms hereof, all rights
and remedies given to the Attorney pursuant to any such deed of hypothec and
applicable law, and (b) benefit from and be subject to all provisions hereof
with respect to the Administrative Agent mutatis mutandis, including, without
limitation, all such provisions with respect to the liability or responsibility
to and indemnification by the Secured Parties and the Loan Parties. Any person
who becomes a Secured Party shall, by its execution of an Assignment and
Acceptance Agreement, be deemed to have consented to and confirmed the
Attorney as the person acting as hypothecary representative holding the
aforesaid hypothecs as aforesaid and to have ratified, as of the date it
becomes a Secured Party, all actions taken by the Attorney in such capacity.
The substitution of the Administrative Agent pursuant to the provisions of
this Section 8.01 also constitute the substitution of the Attorney.
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DB2/ 48024258.7 177 (b) As to any matters not expressly provided for herein
and in the other Loan Documents (including enforcement or collection), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the written
instructions of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, pursuant to the terms in the Loan
Documents), and, unless and until revoked in writing, such instructions shall
be binding upon each Lender and each Issuing Bank; provided, however, that the
Administrative Agent shall not be required to take any action that (i) the
Administrative Agent in good faith believes exposes it to liability unless the
Administrative Agent receives an indemnification and is exculpated in a manner
satisfactory to it from the Lenders and the Issuing Banks with respect to such
action or (ii) is contrary to this Agreement or any other Loan Document or
applicable law, including any action that may be in violation of the automatic
stay under any requirement of law relating to bankruptcy, insolvency or
reorganization or relief of debtors or that may effect a forfeiture,
modification or termination of property of a Defaulting Lender in violation of
any requirement of law relating to bankruptcy, insolvency or reorganization or
relief of debtors; provided, further, that the Administrative Agent may seek
clarification or direction from the Required Lenders prior to the exercise of
any such instructed action and may refrain from acting until such
clarification or direction has been provided. Except as expressly set forth in
the Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Borrower, any other Loan Party, any Subsidiary or any
Affiliate of any of the foregoing that is communicated to or obtained by the
Person serving as Administrative Agent or any of its Affiliates in any
capacity. Nothing in this Agreement shall require the Administrative Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. (c) In performing its functions and duties
hereunder and under the other Loan Documents, the Administrative Agent is
acting solely on behalf of the Lenders and the Issuing Banks (except in
limited circumstances expressly provided for herein relating to the
maintenance of the Register), and its duties are entirely mechanical and
administrative in nature. Without limiting the generality of the foregoing:
(i) the Administrative Agent does not assume and shall not be deemed to have
assumed any obligation or duty or any other relationship as the agent,
fiduciary or trustee of or for any Lender, any Issuing Bank, any other Secured
Party or holder of any other obligation other than as expressly set forth
herein and in the other Loan Documents, regardless of whether a Default or an
Event of Default has occurred and is continuing (and it is understood and
agreed that the use of the term "agent" (or any similar term) herein or in any
other Loan Document with reference to the Administrative Agent is not intended
to connote any fiduciary duty or other implied (or express) obligations
arising under agency doctrine of any applicable law, and that such term is
used as a matter of market custom and is intended to create or reflect only an
administrative relationship between contracting parties); additionally, each
Lender agrees that it will not assert any claim against the Administrative
Agent based on an alleged breach of fiduciary duty by the Administrative Agent
in connection with this Agreement and/or the transactions contemplated hereby;
(ii) where the Administrative Agent is required or deemed to act as a trustee
(including in its capacity as the Australian Security Trustee) in respect of
any Collateral over which a security interest has been created pursuant to a
Loan Document expressed to be governed by the laws of any jurisdiction other
than the U.S. or any of its states or DB2/ 48024258.7 178 territories, or is
required or deemed hold any Collateral "on trust" pursuant to the foregoing,
the obligations and liabilities of the Administrative Agent to the Secured
Parties in its capacity as trustee shall be excluded to the fullest extent
permitted by applicable law; (iii) to the extent that English law is
applicable to the duties of the Administrative Agent under any of the Loan
Documents, Section 1 of the Trustee Act 2000 of the United Kingdom shall not
apply to the duties of the Administrative Agent in relation to the trusts
constituted by that Loan Document; where there are inconsistencies between the
Trustee Act 1925 or the Trustee Act 2000 of the United Kingdom and the
provisions of this Agreement or such Loan Document, the provisions of this
Agreement shall, to the extent permitted by applicable law, prevail and, in
the case of any inconsistency with the Trustee Act 2000 of the United Kingdom,
the provisions of this Agreement shall constitute a restriction or exclusion
for the purposes of that Act; and (iv) nothing in this Agreement or any Loan
Document shall require the Administrative Agent to account to any Lender for
any sum or the profit element of any sum received by the Administrative Agent
for its own account. (d) The Administrative Agent may perform any of its
duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any of their respective duties and exercise their respective rights
and powers through their respective Related Parties. The exculpatory
provisions of this Article shall apply 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 pursuant to this Agreement. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any sub agent except to the extent that a court of competent jurisdiction
determines in a final and non-appealable judgment that the Administrative
Agent acted with gross negligence or willful misconduct in the selection of
such sub-agent. (e) None of any Co-Syndication Agent, any Arranger or any
Co-Documentation Agent shall have obligations or duties whatsoever in such
capacity under this Agreement or any other Loan Document and shall incur no
liability hereunder or thereunder in such capacity, but all such persons shall
have the benefit of the indemnities provided for hereunder. (f) In case of the
pendency of any proceeding with respect to any Loan Party under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, the Administrative Agent (irrespective of whether the
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent
shall have made any demand on any Borrower) shall be entitled and empowered
(but not obligated) by intervention in such proceeding or otherwise: (i) to
file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, LC Disbursements and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders, the
Issuing Banks and the Administrative Agent (including any claim under Sections
2.12, 2.13, 2.15, 2.17 and 9.03) allowed in such judicial proceeding; and
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DB2/ 48024258.7 179 (ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding is hereby authorized by each Lender,
each Issuing Bank and each other Secured Party to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, the Issuing
Banks or the other Secured Parties, to pay to the Administrative Agent any
amount due to it, in its capacity as the Administrative Agent, under the Loan
Documents (including under Section 9.03). Nothing contained herein shall be
deemed to authorize the Administrative Agent to authorize or consent to or
accept or adopt on behalf of any Lender or Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or Issuing Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or Issuing
Bank in any such proceeding. (g) The provisions of this Article are solely for
the benefit of the Administrative Agent, the Lenders and the Issuing Banks,
and, except solely to the extent of the Borrowers' right to consent pursuant
to and subject to the conditions set forth in this Article, no Borrower nor
any Subsidiary, or any of their respective Affiliates, shall have any rights
as a third party beneficiary under any such provisions. Each Secured Party,
whether or not a party hereto, will be deemed, by its acceptance of the
benefits of the Collateral and of the Guarantees of the Secured Obligations
provided under the Loan Documents, to have agreed to the provisions of this
Article. Administrative Agent's Reliance, Limitation of Liability, Etc. (a)
Neither the Administrative Agent nor any of its Related Parties shall be (i)
liable for any action taken or omitted to be taken by such party, the
Administrative Agent or any of its Related Parties under or in connection with
this Agreement or the other Loan Documents (x) with the consent of or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan
Documents) or (y) in the absence of its own gross negligence or willful
misconduct (such absence to be presumed unless otherwise determined by a court
of competent jurisdiction by a final and non-appealable judgment) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document (including, for the avoidance of doubt, in connection with the
Administrative Agent's reliance on any Electronic Signature transmitted by
facsimile, emailed pdf, or any other electronic means that reproduces an image
of an actual executed signature page) or for any failure of any Loan Party to
perform its obligations hereunder or thereunder. (b) The Administrative Agent
shall be deemed not to have knowledge of any (i) notice of any of the events
or circumstances set forth or described in Section 5.02 unless and until
written notice thereof stating that it is a "notice under Section 5.02" in
respect of this Agreement and identifying the specific clause under said
Section is given to the Administrative Agent by the Borrower Representative,
or (ii) notice of any Default or Event of Default unless and until written
notice thereof (stating that it is a "notice of Default" or a "notice of an
Event of Default") is given to the Administrative Agent by the Borrower
Representative, a Lender or the Issuing Bank. DB2/ 48024258.7 180 Further, the
Administrative Agent 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 any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document or the
occurrence of any Default or Event of Default, (iv) the sufficiency, validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, (v) the satisfaction of any condition set
forth in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items (which on their face purport to be such items) expressly
required to be delivered to the Administrative Agent or satisfaction of any
condition that expressly refers to the matters described therein being
acceptable or satisfactory to the Administrative Agent, or (vi) the creation,
perfection or priority of Liens on the Collateral. Notwithstanding anything
herein to the contrary, the Administrative Agent shall not be liable for, or
be responsible for any claim, liability, loss, cost or expense suffered by any
Borrower, any other Loan Party, any Subsidiary, any Lender or any Issuing Bank
as a result of, any determination of the Combined Exposure, Revolving
Exposure, FILO Exposure, the U.S. Tranche Revolving Exposure, the Foreign
Tranche Revolving Exposure, any of the component amounts thereof or any
portion thereof attributable to each Lender or Issuing Bank, or any exchange
rate or Dollar Equivalent. (c) Without limiting the foregoing, the
Administrative Agent (i) may treat the payee of any promissory note as its
holder until such promissory note has been assigned in accordance with Section
9.04, (ii) may rely on the Register to the extent set forth in Section
9.04(b), (iii) may consult with legal counsel (including counsel to the
Borrowers), independent public accountants and other experts selected by it,
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts, (iv) makes no warranty or representation to any Lender or Issuing
Bank and shall not be responsible to any Lender or Issuing Bank for any
statements, warranties or representations made by or on behalf of any Loan
Party in connection with this Agreement or any other Loan Document, (v) in
determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Lender or an Issuing Bank, may presume that such
condition is satisfactory to such Lender or Issuing Bank unless the
Administrative Agent shall have received notice to the contrary from such
Lender or Issuing Bank sufficiently in advance of the making of such Loan or
the issuance of such Letter of Credit and (vi) shall be entitled to rely on,
and shall incur no liability under or in respect of this Agreement or any
other Loan Document by acting upon, any notice, consent, certificate or other
instrument or writing (which writing may be a fax, any electronic message,
Internet or intranet website posting or other distribution) or any statement
made to it orally or by telephone and believed by it to be genuine and signed
or sent or otherwise authenticated by the proper party or parties (whether or
not such Person in fact meets the requirements set forth in the Loan Documents
for being the maker thereof). Posting of Communications. (a) The Borrowers
agree that the Administrative Agent may, but shall not be obligated to, make
any Communications available to the Lenders and the Issuing Bank by posting
the Communications on IntraLinks", DebtDomain, SyndTrak, ClearPar or any other
electronic system chosen by the Administrative Agent to be its electronic
transmission system (the "Approved Electronic Platform"). (b) Although the
Approved Electronic Platform and its primary web portal are secured with
generally-applicable security procedures and policies implemented or modified
by the Administrative Agent from time to time (including, as of the Effective
Date, a user ID/password
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DB2/ 48024258.7 181 authorization system) and the Approved Electronic Platform
is secured through a per-deal authorization method whereby each user may
access the Approved Electronic Platform only on a deal-by-deal basis, each of
the Lenders, the Issuing Bank and each Borrower acknowledges and agrees that
the distribution of material through an electronic medium is not necessarily
secure, that the Administrative Agent is not responsible for approving or
vetting the representatives or contacts of any Lender that are added to the
Approved Electronic Platform, and that there may be confidentiality and other
risks associated with such distribution. Each of the Lenders, the Issuing
Banks and each Borrower hereby approves distribution of the Communications
through the Approved Electronic Platform and understands and assumes the risks
of such distribution. (c) THE APPROVED ELECTRONIC PLATFORM AND THE
COMMUNICATIONS ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE APPLICABLE PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND
EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED
ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL
THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY CO-SYNDICATION AGENT, ANY
CO-DOCUMENTATION AGENT, OR ANY OF THEIR RESPECTIVE RELATED PARTIES
(COLLECTIVELY, "APPLICABLE PARTIES") HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY
LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY
KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING
OUT OF ANY LOAN PARTY'S OR THE ADMINISTRATIVE AGENT'S TRANSMISSION OF
COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM,
EXCEPT, WITH RESPECT TO AN APPLICABLE PARTY, TO THE EXTENT OF DIRECT OR ACTUAL
DAMAGES AS ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND
NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF SUCH APPLICABLE PARTY; PROVIDED THAT ANY
COMMUNICATION TO ANY LENDERS, PROSPECTIVE LENDERS, PARTICIPANTS OR PROSPECTIVE
PARTICIPANTS OR, TO THE EXTENT SUCH DISCLOSURE IS OTHERWISE PERMITTED, TO ANY
OTHER PERSON THROUGH THE APPROVED ELECTRONIC PLATFORM SHALL BE MADE SUBJECT TO
THE ACKNOWLEDGEMENT AND ACCEPTANCE BY SUCH PERSON THAT SUCH COMMUNICATION IS
BEING DISSEMINATED OR DISCLOSED ON A CONFIDENTIAL BASIS (ON TERMS
SUBSTANTIALLY THE SAME AS SET FORTH IN SECTION 9.12 OR OTHERWISE REASONABLY
ACCEPTABLE TO THE ADMINISTRATIVE AGENT AND THE BORROWER REPRESENTATIVE), WHICH
SHALL IN ANY EVENT REQUIRE "CLICK THROUGH" OR OTHER AFFIRMATIVE ACTIONS ON THE
PART OF THE RECIPIENT TO ACCESS SUCH COMMUNICATION. "Communications" means,
collectively, any notice, demand, communication, information, document or
other material provided by or on behalf of any Loan Party pursuant to any Loan
Document or the transactions contemplated therein which is distributed by the
DB2/ 48024258.7 182 Administrative Agent, any Lender or Issuing Bank by means
of electronic communications pursuant to this Section, including through an
Approved Electronic Platform. (d) Each Lender and Issuing Bank agrees that
notice to it (as provided in the next sentence) specifying that Communications
have been posted to the Approved Electronic Platform shall constitute
effective delivery of the Communications to such Lender for purposes of the
Loan Documents. Each Lender and Issuing Bank agrees (i) to notify the
Administrative Agent in writing (which could be in the form of electronic
communication) from time to time of such Lender's or Issuing Bank's (as
applicable) email address to which the foregoing notice may be sent by
electronic transmission and (ii) that the foregoing notice may be sent to such
email address. (e) Each of the Lenders, Issuing Bank and each Borrower agrees
that the Administrative Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Communications on the
Approved Electronic Platform in accordance with the Administrative Agent's
generally applicable document retention procedures and policies. (f) Nothing
herein shall prejudice the right of the Administrative Agent, any Lender or
Issuing Bank to give any notice or other communication pursuant to any Loan
Document in any other manner specified in such Loan Document. The
Administrative Agent Individually. With respect to its Revolving Commitment,
FILO Commitment, Loans and Letters of Credit, the Person serving as the
Administrative Agent shall have and may exercise the same rights and powers
hereunder and is subject to the same obligations and liabilities as and to the
extent set forth herein for any other Lender or Issuing Bank, as the case may
be. The terms "Issuing Bank", "Lenders", "Required Lenders" and any similar
terms shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity as a Lender, Issuing Bank or
as one of the Required Lenders, as applicable. The Person serving as the
Administrative Agent 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 engage in any kind of banking, trust or other
business with, any Loan Party, any Subsidiary or any Affiliate of any of the
foregoing as if such Person was not acting as the Administrative Agent and
without any duty to account therefor to the Lenders or the Issuing Bank.
Successor Administrative Agent. (a) The Administrative Agent may resign at any
time by giving thirty (30) days' prior written notice thereof to the Lenders,
the Issuing Bank and the Borrower Representative, whether or not a successor
Administrative Agent has been appointed. Upon any such resignation, (i) the
Administrative Agent may appoint one of its Affiliates acting through an
office in the European Union as a successor Administrative Agent and (ii) if
the Administrative Agent has not appointed one of its Affiliates acting
through an office in the European Union as a successor Administrative Agent
pursuant to clause (i) above, the Required Lenders shall have the right, to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York or an Affiliate of any such bank. In either case (other than if the
Administrative Agent appoints one of its Affiliates acting through an office
in the European Union as a successor Administrative Agent pursuant to clause
(i) above), such appointment shall be subject to the prior written approval of
the Borrower Representative (which approval may not be unreasonably withheld
and shall not be required while
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DB2/ 48024258.7 183 an Event of Default has occurred and is continuing). Upon
the acceptance of any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to and
become vested with, all the rights, powers, privileges and duties of the
retiring Administrative Agent. Upon the acceptance of appointment as
Administrative Agent by a successor Administrative Agent, the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. Prior to any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
retiring Administrative Agent shall take such action as may be reasonably
necessary to assign to the successor Administrative Agent its rights as
Administrative Agent under the Loan Documents. (b) Notwithstanding paragraph
(a) of this Section, in the event no successor Administrative Agent shall have
been so appointed and shall have accepted such appointment within thirty (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 the Lenders, the Issuing Bank and the Borrowers,
whereupon, on the date of effectiveness of such resignation stated in such
notice, (i) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents; provided
that, solely for purposes of maintaining any security interest granted to the
Administrative Agent under any Collateral Document for the benefit of the
Secured Parties, the retiring Administrative Agent shall continue to be vested
with such security interest as collateral agent for the benefit of the Secured
Parties and continue to be entitled to the rights set forth in such Collateral
Document and Loan Document, and, in the case of any Collateral in the
possession of the Administrative Agent, shall continue to hold such
Collateral, in each case until such time as a successor Administrative Agent
is appointed and accepts such appointment in accordance with this Section (it
being understood and agreed that the retiring Administrative Agent shall have
no duty or obligation to take any further action under any Collateral
Document, including any action required to maintain the perfection of any such
security interest), and (ii) the Required Lenders shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent; provided that (A) all payments required to be made
hereunder or under any other Loan Document to the Administrative Agent for the
account of any Person other than the Administrative Agent shall be made
directly to such Person and (B) all notices and other communications required
or contemplated to be given or made to the Administrative Agent shall directly
be given or made to each Lender and Issuing Bank. Following the effectiveness
of the Administrative Agent's resignation from its capacity as such, the
provisions of this Article, Section 2.17(d) and Section 9.03, as well as any
exculpatory, reimbursement and indemnification provisions set forth in any
other Loan Document, shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Administrative Agent was acting as Administrative Agent and in
respect of the matters referred to in the proviso under clause (a) above.
Acknowledgements of Lenders and Issuing Bank. (a) Each Lender and each Issuing
Bank represents and warrants that (i) the Loan Documents set forth the terms
of a commercial lending facility, (ii) it is engaged in making, acquiring or
holding commercial loans and in providing other facilities set forth herein as
may be applicable to such Lender or Issuing Bank, in each case in the ordinary
course of business, and not for the purpose of purchasing, acquiring or
holding any other type of financial instrument (and each Lender and each
Issuing Bank agrees not to assert a claim in contravention of the foregoing),
(iii) it has, independently and without reliance upon the Administrative
Agent, any Arranger, any Co- Syndication Agent, any Co-Documentation Agent, or
any other Lender or Issuing Bank, or any of the Related Parties of any of the
foregoing, and based on such documents and information as it has DB2/
48024258.7 184 deemed appropriate, made its own credit analysis and decision
to enter into this Agreement as a Lender, and to make, acquire or hold Loans
hereunder and (iv) it is sophisticated with respect to decisions to make,
acquire and/or hold commercial loans and to provide other facilities set forth
herein, as may be applicable to such Lender or such Issuing Bank, and either
it, or the Person exercising discretion in making its decision to make,
acquire and/or hold such commercial loans or to provide such other facilities,
is experienced in making, acquiring or holding such commercial loans or
providing such other facilities. Each Lender and each Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, any Arranger, any Co-Syndication Agent, any
Co-Documentation Agent, or any other Lender or Issuing Bank, or any of the
Related Parties of any of the foregoing, and based on such documents and
information (which may contain material, non-public information within the
meaning of the United States securities laws concerning the Borrowers and
their Affiliates) as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder. (b) Each Lender, by delivering its
signature page to this Agreement on the Effective Date, or delivering its
signature page to an Assignment and Assumption or any other Loan Document
pursuant to which it shall become a Lender hereunder, shall be deemed to have
acknowledged receipt of, and consented to and approved, each Loan Document and
each other document required to be delivered to, or be approved by or
satisfactory to, the Administrative Agent or the Lenders on the Effective Date
or the effective date of any such Assignment and Assumption or any other Loan
Document pursuant to which it shall have become a Lender hereunder. (c) Each
Lender hereby agrees that (i) it has requested a copy of each Report prepared
by or on behalf of the Administrative Agent; (ii) the Administrative Agent (A)
makes no representation or warranty, express or implied, as to the
completeness or accuracy of any Report or any of the information contained
therein or any inaccuracy or omission contained in or relating to a Report and
(B) shall not be liable for any information contained in any Report; (iii) the
Reports are not comprehensive audits or examinations, and that any Person
performing any field examination will inspect only specific information
regarding the Loan Parties and will rely significantly upon the Loan Parties'
books and records, as well as on representations of the Loan Parties'
personnel and that the Administrative Agent undertakes no obligation to
update, correct or supplement the Reports; (iv) it will keep all Reports
confidential and strictly for its internal use, not share the Report with any
Loan Party or any other Person except as otherwise permitted pursuant to this
Agreement; and (v) without limiting the generality of any other indemnification
provision contained in this Agreement, (A) it will hold the Administrative
Agent and any such other Person preparing a Report harmless from any action
the indemnifying Lender may take or conclusion the indemnifying Lender may
reach or draw from any Report in connection with any extension of credit that
the indemnifying Lender has made or may make to a Borrower, or the
indemnifying Lender's participation in, or the indemnifying Lender's purchase
of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend,
and hold the Administrative Agent and any such other Person preparing a Report
harmless from and against, the claims, actions, proceedings, damages, costs,
expenses, and other amounts (including reasonable attorneys' fees) incurred by
the Administrative Agent or any such other Person as the direct or indirect
result of any third parties who might obtain all or part of any Report through
the indemnifying Lender. (d) (i) Each Lender hereby agrees that (x) if the
Administrative Agent notifies such Lender that the Administrative Agent has
determined in its sole discretion that any funds received by such Lender from
the Administrative Agent or any of its Affiliates (whether as a payment,
prepayment or repayment of principal, interest, fees or otherwise;
individually and collectively, a
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DB2/ 48024258.7 185 "Payment") were erroneously transmitted to such Lender
(whether or not known to such Lender), and demands the return of such Payment
(or a portion thereof), such Lender shall promptly, but in no event later than
two (2) Business Days thereafter, return to the Administrative Agent the
amount of any such Payment (or portion thereof) as to which such a demand was
made in same day funds, together with interest thereon in respect of each day
from and including the date such Payment (or portion thereof) was received by
such Lender to the date such amount is repaid to the Administrative Agent at
the greater of the NYFRB Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation from
time to time in effect, and (y) to the extent permitted by applicable law,
such Lender shall not assert, and hereby waives, as to the Administrative
Agent, any claim, counterclaim, defense or right of set-off or recoupment with
respect to any demand, claim or counterclaim by the Administrative Agent 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 under this Section 8.06(d) shall be
conclusive, absent manifest error. (ii) Each Lender hereby further agrees that
if it receives a Payment from the Administrative Agent or any of its
Affiliates (x) that is in a different amount than, or on a different date
from, that specified in a notice 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
on notice, in each such case, that an error has been made with respect to such
Payment. Each Lender agrees that, in each such case, or if it otherwise
becomes aware a Payment (or portion thereof) may have been sent in error, such
Lender shall promptly notify the Administrative Agent of such occurrence and,
upon demand from the Administrative Agent, it shall promptly, but in no event
later than one (1) Business Day thereafter, return to the Administrative Agent
the amount of any such Payment (or portion thereof) as to which such a demand
was made in same day funds, together with interest thereon in respect of each
day from and including the date such Payment (or portion thereof) was received
by such Lender to the date such amount is repaid to the Administrative Agent
at the greater of the NYFRB Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation from
time to time in effect. (iii) Each Borrower and each other Loan Party hereby
agrees that (x) in the event an erroneous Payment (or portion thereof) are not
recovered from any Lender that has received such Payment (or portion thereof)
for any reason, the Administrative Agent shall be subrogated to all the rights
of such Lender with respect to such amount and (y) an erroneous Payment shall
not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by
any Borrower or any other Loan Party, except, in each case to the extent such
erroneous Payment is, and solely with respect to the amount of such erroneous
Payment that is, comprised of funds received by the Administrative Agent from
any Borrower or any other Loan Party for the purpose of making such erroneous
Payment. (iv) Each party's obligations under this Section 8.06(d) shall
survive the resignation or replacement of the Administrative Agent or any
transfer of rights or obligations by, or the replacement of, a Lender, the
termination of the Revolving Commitments or the FILO Commitments or the
repayment, satisfaction or discharge of all Obligations under any Loan
Document. DB2/ 48024258.7 186 Collateral Matters. (a) Except with respect to
the exercise of setoff rights in accordance with Section 9.08 or with respect
to a Secured Party's right to file a proof of claim in an insolvency
proceeding, no Secured Party shall have any right individually to realize upon
any of the Collateral or to enforce any Guarantee of the Secured Obligations,
it being understood and agreed that all powers, rights and remedies under the
Loan Documents may be exercised solely by the Administrative Agent (including
in its capacity as the Australian Security Trustee) on behalf of the Secured
Parties in accordance with the terms thereof. In its capacity, the
Administrative Agent is a "representative" of the Secured Parties within the
meaning of the term "secured party" as defined in the UCC. In the event that
any Collateral is hereafter pledged by any Person as collateral security for
the Secured Obligations, the Administrative Agent (including in its capacity
as the Australian Security Trustee) is hereby authorized, and hereby granted a
power of attorney, to execute and deliver on behalf of the Secured Parties any
Loan Documents necessary or appropriate to grant and perfect a Lien on such
Collateral in favor of the Administrative Agent on behalf of the Secured
Parties. (b) In furtherance of the foregoing and not in limitation thereof, no
arrangements in respect of Banking Services the obligations under which
constitute Secured Obligations and no Swap Agreement the obligations under
which constitute Secured Obligations, will create (or be deemed to create) in
favor of any Secured Party that is a party thereto any rights in connection
with the management or release of any Collateral or of the obligations of any
Loan Party under any Loan Document. By accepting the benefits of the
Collateral, each Secured Party that is a party to any such arrangement in
respect of Banking Services or Swap Agreement, as applicable, shall be deemed
to have appointed the Administrative Agent to serve as administrative agent
and collateral agent under the Loan Documents and agreed to be bound by the
Loan Documents as a Secured Party thereunder, subject to the limitations set
forth in this paragraph. (c) The Secured Parties irrevocably authorize the
Administrative Agent, at its option and in its discretion, to subordinate any
Lien on any property granted to or held by the Administrative Agent under any
Loan Document to the holder of any Lien on such property that is permitted by
clause (b), (d) or (e) of Section 6.02. The Administrative Agent shall not be
responsible for or have a duty to ascertain or inquire into any representation
or warranty regarding the existence, value or collectability of the
Collateral, the existence, priority or perfection of the Administrative
Agent's Lien thereon or any certificate prepared by any Loan Party in
connection therewith, nor shall the Administrative Agent be responsible or
liable to the Lenders or any other Secured Party for any failure to monitor or
maintain any portion of the Collateral. Credit Bidding. The Secured Parties
hereby irrevocably authorize the Administrative Agent, at the direction of the
Required Lenders, to credit bid all or any portion of the Obligations
(including by accepting some or all of the Collateral in satisfaction of some
or all of the Obligations pursuant to a deed in lieu of foreclosure or
otherwise) and in such manner purchase (either directly or through one or more
acquisition vehicles) all or any portion of the Collateral (a) at any sale
thereof conducted under the provisions of the Bankruptcy Code, including under
Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any
other jurisdictions to which a Loan Party is subject, or (b) at any other
sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or
with the consent or at the direction of) the Administrative Agent (whether by
judicial action or otherwise) in accordance with any applicable law. In
connection with any such credit bid and purchase, the Obligations owed to the
Secured Parties shall be entitled to be, and shall be, credit bid by the
Administrative Agent at the direction of the Required Lenders on a ratable
basis (with Obligations with respect to contingent or unliquidated claims
receiving contingent interests in the acquired assets on a ratable basis that
shall vest upon the liquidation of such claims in an amount proportional to
the liquidated portion of the contingent
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DB2/ 48024258.7 187 claim amount used in allocating the contingent interests)
for the asset or assets so purchased (or for the equity interests or debt
instruments of the acquisition vehicle or vehicles that are issued in
connection with such purchase). In connection with any such bid (i) the
Administrative Agent shall be authorized to form one or more acquisition
vehicles and to assign any successful credit bid to such acquisition vehicle
or vehicles, (ii) each of the Secured Parties' ratable interests in the
Obligations which were credit bid shall be deemed without any further action
under this Agreement to be assigned to such vehicle or vehicles for the
purpose of closing such sale, (iii) the Administrative Agent shall be
authorized to adopt documents providing for the governance of the acquisition
vehicle or vehicles (provided that any actions by the Administrative Agent
with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or equity interests thereof, shall be governed,
directly or indirectly, by, and the governing documents shall provide for,
control by the vote of the Required Lenders or their permitted assignees under
the terms of this Agreement or the governing documents of the applicable
acquisition vehicle or vehicles, as the case may be, irrespective of the
termination of this Agreement and without giving effect to the limitations on
actions by the Required Lenders contained in Section 9.02 of this Agreement),
(iv) the Administrative Agent on behalf of such acquisition vehicle or
vehicles shall be authorized to issue to each of the Secured Parties, ratably
on account of the relevant Obligations which were credit bid, interests,
whether as equity, partnership interests, limited partnership interests or
membership interests, in any such acquisition vehicle and/or debt instruments
issued by such acquisition vehicle, all without the need for any Secured Party
or acquisition vehicle to take any further action, and (v) to the extent that
Obligations that are assigned to an acquisition vehicle are not used to
acquire Collateral for any reason (as a result of another bid being higher or
better, because the amount of Obligations assigned to the acquisition vehicle
exceeds the amount of Obligations credit bid by the acquisition vehicle or
otherwise), such Obligations shall automatically be reassigned to the Secured
Parties pro rata with their original interest in such Obligations and the
equity interests and/or debt instruments issued by any acquisition vehicle on
account of such Obligations shall automatically be cancelled, without the need
for any Secured Party or any acquisition vehicle to take any further action.
Notwithstanding that the ratable portion of the Obligations of each Secured
Party are deemed assigned to the acquisition vehicle or vehicles as set forth
in clause (ii) above, each Secured Party shall execute such documents and
provide such information regarding the Secured Party (and/or any designee of
the Secured Party which will receive interests in or debt instruments issued
by such acquisition vehicle) as the Administrative Agent may reasonably
request in connection with the formation of any acquisition vehicle, the
formulation or submission of any credit bid or the consummation of the
transactions contemplated by such credit bid. Certain ERISA Matters. (a) Each
Lender (x) represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person became a Lender
party hereto to the date such Person ceases being a Lender party hereto, for
the benefit of, the Administrative Agent, and each Arranger and their
respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of any Borrower or any other Loan Party, that at least one of the
following is and will be true: (i) such Lender is not using "plan assets"
(within the meaning of the Plan Asset Regulations) of one or more Benefit
Plans in connection with the Loans, the Letters of Credit, the Revolving
Commitments or the FILO Commitments, (ii) the transaction exemption set forth
in one or more PTEs, such as PTE 84- 14 (a class exemption for certain
transactions determined by independent qualified professional asset managers),
PTE 95-60 (a class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38
(a class DB2/ 48024258.7 188 exemption for certain transactions involving bank
collective investment funds) or PTE 96- 23 (a class exemption for certain
transactions determined by in-house asset managers), is applicable with
respect to such Lender's entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Commitments, the FILO Commitments and this Agreement, (iii) (A) such Lender is
an investment fund 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 such Lender to enter into,
participate in, administer and perform the Loans, the Letters of Credit, the
Revolving Commitments, the FILO Commitments and this Agreement, (C) the
entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Revolving Commitments, the FILO Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g)
of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the
requirements of subsection (a) of Part I of PTE 84- 14 are satisfied with
respect to such Lender's entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Revolving
Commitments, the FILO Commitments and this Agreement, or (iv) such other
representation, warranty and covenant as may be agreed in writing between the
Administrative Agent, in its sole discretion, and such Lender. (b) In
addition, unless sub-clause (i) in the immediately preceding clause (a) is
true with respect to a Lender or such Lender has not provided another
representation, warranty and covenant as provided in sub-clause (iv) in the
immediately preceding clause (a), such Lender further (x) represents and
warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date
such Person ceases being a Lender party hereto, for the benefit of, the
Administrative Agent, each Arranger and their respective Affiliates, and not,
for the avoidance of doubt, to or for the benefit of any Borrower or any other
Loan Party, that none of the Administrative Agent, any Arranger, any
Co-Syndication Agent, or any of their respective Affiliates is a fiduciary
with respect to the Collateral or assets of such Lender (including in
connection with the reservation or exercise of any rights by the Administrative
Agent under this Agreement, any Loan Document or any documents related to
hereto or thereto), (c) The Administrative Agent, each Arranger, each
Co-Syndication Agent, and each Co-Documentation Agent hereby informs the
Lenders that each such Person is not undertaking to provide investment advice,
or to give advice in a fiduciary capacity, in connection with the transactions
contemplated hereby, and that such Person has a financial interest in the
transactions contemplated hereby in that such Person or an Affiliate thereof
(i) may receive interest or other payments with respect to the Loans, the
Letters of Credit, the Revolving Commitments, the FILO Commitments this
Agreement, and any other Loan Documents, (ii) may recognize a gain if it
extended the Loans, the Letters of Credit, the Revolving Commitments or the
FILO Commitments for an amount less than the amount being paid for an interest
in the Loans, the Letters of Credit, the Revolving Commitments or the FILO
Commitments by such Lender or (iii) may receive fees or other payments in
connection with the transactions contemplated hereby, the Loan Documents or
otherwise, including structuring fees, commitment fees, arrangement fees,
facility fees, upfront fees, underwriting fees, ticking fees, agency fees,
administrative agent or collateral agent fees, utilization fees, minimum usage
fees, letter of credit fees, fronting fees, deal-away or alternate transaction
fees, amendment fees, processing fees, term out premiums, banker's acceptance
fees, breakage or other early termination fees or fees similar to the
foregoing.
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DB2/ 48024258.7 189 Flood Laws. JPMCB has adopted internal policies and
procedures that address requirements placed on federally regulated lenders
under the National Flood Insurance Reform Act of 1994 and related legislation
(the "Flood Laws"). JPMCB, as administrative agent or collateral agent on a
syndicated facility, will post on the applicable electronic platform (or
otherwise distribute to each Lender in the syndicate) documents that it
receives in connection with the Flood Laws. However, JPMCB reminds each Lender
and Participant in the facility that, pursuant to the Flood Laws, each
federally regulated Lender (whether acting as a Lender or Participant in the
facility) is responsible for assuring its own compliance with the flood
insurance requirements. No real property shall be taken as Collateral and no
Mortgage delivered with respect to any real property, unless the Lenders
receive at least forty-five (45) days advance notice and each Lender confirms
to the Administrative Agent that it has completed all flood due diligence,
received copies of all flood insurance documentation (including the documents
described in clause (v) of the definition of Eligible Real Property) and
confirmed flood insurance compliance as required by the Flood Laws or as
otherwise satisfactory to such Lender. At any time that any real property
constitutes Collateral, no modification of any Loan Document shall add,
increase, renew or extend any loan, commitment or credit line hereunder until
the completion of flood due diligence, documentation and coverage as required
by the Flood Laws or as otherwise satisfactory to all Lenders. Appointment of
Administrative Agent as U.K Security Trustee. For the purposes of any Liens or
Collateral created under the U.K. Collateral Documents or any Collateral
Document governed by Irish law (together, for the purposes of this section,
each a "Relevant Collateral Document" and together "Relevant Collateral
Documents"), the following additional provisions shall apply. (a) In this
Section 8.11, the following expressions have the following meanings:
"Appointee" means any receiver, administrator or other insolvency officer
appointed in respect of any Loan Party or its assets. "Charged Property" means
the assets of the Loan Parties subject to a security interest under the
Relevant Collateral Documents. "Delegate" means any delegate, agent, attorney
or co-trustee appointed by the Administrative Agent (in its capacity as
security trustee). (b) The Secured Parties appoint the Administrative Agent to
hold the security interests constituted by the Relevant Collateral Documents
on trust for the Secured Parties on the terms of the Loan Documents and the
Administrative Agent accepts that appointment. (c) The Administrative Agent,
its subsidiaries and associated companies may each retain for its own account
and benefit any fee, remuneration and profits paid to it in connection with
(i) its activities under the Loan Documents; and (ii) its engagement in any
kind of banking or other business with any Loan Party. (d) Nothing in this
Agreement constitutes the Administrative Agent as a trustee or fiduciary of,
nor shall the Administrative Agent have any duty or responsibility to, any
Loan Party. (e) The Administrative Agent shall have no duties or obligations
to any other person except for those which are expressly specified in the Loan
Documents or mandatorily required by applicable law. (f) The Administrative
Agent may appoint one or more Delegates on such terms (which may include the
power to sub-delegate) and subject to such conditions as it thinks fit, to
DB2/ 48024258.7 190 exercise and perform all or any of the duties, rights,
powers and discretions vested in it by the Relevant Collateral Documents and
shall not be obliged to supervise any Delegate or be responsible to any person
for any loss incurred by reason of any act, omission, misconduct or default on
the part of any Delegate. (g) The Administrative Agent may (whether for the
purpose of complying with any law or regulation of any overseas jurisdiction,
or for any other reason) appoint (and subsequently remove) any person to act
jointly with the Administrative Agent either as a separate trustee or as a
co-trustee on such terms and subject to such conditions as the Administrative
Agent thinks fit and with such of the duties, rights, powers and discretions
vested in the Administrative Agent by the Relevant Collateral Documents as may
be conferred by the instrument of appointment of that person. (h) The
Administrative Agent shall notify the Lenders of the appointment of each
Appointee (other than a Delegate). (i) The Administrative Agent may pay
reasonable remuneration to any Delegate or Appointee, together with any costs
and expenses (including legal fees) reasonably incurred by the Delegate or
Appointee in connection with its appointment. All such remuneration, costs and
expenses shall be treated, for the purposes of this Agreement, as paid or
incurred by the Administrative Agent. (j) Each Delegate and each Appointee
shall have every benefit, right, power and discretion and the benefit of every
exculpation (together "Rights") of the Administrative Agent (in its capacity
as security trustee) under the Relevant Collateral Documents, and each
reference to the Administrative Agent (where the context requires that such
reference is to the Administrative Agent in its capacity as security trustee)
in the provisions of the Relevant Collateral Documents which confer Rights
shall be deemed to include a reference to each Delegate and each Appointee.
(k) Each Secured Party confirms its approval of the Relevant Collateral
Documents and authorizes and instructs the Administrative Agent: (i) to
execute and deliver the Relevant Collateral Documents; (ii) to exercise the
rights, powers and discretions given to the Administrative Agent (in its
capacity as security trustee) under or in connection with the Relevant
Collateral Documents together with any other incidental rights, powers and
discretions; and (iii) to give any authorizations and confirmations to be
given by the Administrative Agent (in its capacity as security trustee) on
behalf of the Secured Parties under the Relevant Collateral Documents. (l) The
Administrative Agent may accept without inquiry the title (if any) which any
person may have to the Charged Property. (m) Each other Secured Party confirms
that it does not wish to be registered as a joint proprietor of any security
interest constituted by a Relevant Collateral Document and accordingly
authorizes: (a) the Administrative Agent to hold such security interest in its
sole name (or in the name of any Delegate) as trustee for the Secured Parties;
and (b) the Land Registry (or other relevant registry) to register the
Administrative Agent (or any Delegate or Appointee) as a sole proprietor of
such security interest. (n) Except to the extent that a Relevant Collateral
Document otherwise requires, any moneys which the Administrative Agent
receives under or pursuant to a Relevant Collateral Document may be: (a)
invested in any investments which the Administrative Agent selects and which
are authorized by applicable law; or (b) placed on deposit at any bank or
institution
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DB2/ 48024258.7 191 (including the Administrative Agent) on terms that the
Administrative Agent thinks fit, in each case in the name or under the control
of the Administrative Agent, and the Administrative Agent shall hold those
moneys, together with any accrued income (net of any applicable Tax on such
income) to the order of the Lenders, and shall pay them to the Lenders on
demand. (o) On a disposal of any of the Charged Property which is permitted
under the Loan Documents, the Administrative Agent shall (at the cost of the
Loan Parties) execute any release of the Relevant Collateral Documents or
other claim over that Charged Property and issue any certificates of
non-crystallization of floating charges that may be required or take any other
action that the Administrative Agent considers desirable. (p) The
Administrative Agent shall not be liable for: (i) any defect in or failure of
the title (if any) which any person may have to any assets over which security
is intended to be created by a Relevant Collateral Document; (ii) any loss
resulting from the investment or deposit at any bank of moneys which it
invests or deposits in a manner permitted by a Relevant Collateral Document;
(iii) the exercise of, or the failure to exercise, any right, power or
discretion given to it by or in connection with any Loan Document or any other
agreement, arrangement or document entered into, or executed in anticipation
of, under or in connection with, any Loan Document; or (iv) any shortfall
which arises on enforcing a Relevant Collateral Document. (q) The
Administrative Agent shall not be obligated to: (i) obtain any authorization
or environmental permit in respect of any of the Charged Property or a
Relevant Collateral Document; (ii) hold in its own possession a Relevant
Collateral Document, title deed or other document relating to the Charged
Property or a Relevant Collateral Document; (iii) perfect, protect, register,
make any filing or give any notice in respect of a Relevant Collateral
Document (or the order of ranking of a Relevant Collateral Document), unless
that failure arises directly from its own gross negligence or willful
misconduct; or (iv) require any further assurances in relation to a Relevant
Collateral Document. (r) In respect of any Relevant Collateral Document, the
Administrative Agent shall not be obligated to: (i) insure, or require any
other person to insure, the Charged Property; or (ii) make any enquiry or
conduct any investigation into the legality, validity, effectiveness, adequacy
or enforceability of any insurance existing over such Charged Property. (s) In
respect of any Relevant Collateral Document, the Administrative Agent shall
not have any obligation or duty to any person for any loss suffered as a
result of: (i) the lack or inadequacy of any insurance; or (ii) the failure of
the Administrative Agent to notify the insurers of any material fact relating
to the risk assumed by them, or of any other information of any kind, DB2/
48024258.7 192 unless Required Lenders have requested it to do so in writing
and the Administrative Agent has failed to do so within fourteen (14) days
after receipt of that request. (t) Every appointment of a successor
Administrative Agent under a Relevant Collateral Document shall be by deed.
(u) Section 1 of the Trustee Act 2000 (UK) shall not apply to the duty of the
Administrative Agent in relation to the trusts in respect of any U.K.
Collateral Document constituted by this Agreement. (v) In the case of any
conflict between the provisions of this Agreement and those of the Trustee Act
1925 (UK), the Trustee Act 2000 (UK) or the Trustee Acts 1893-1899 of Ireland,
the provisions of this Agreement shall prevail to the extent allowed by law,
and shall constitute a restriction or exclusion for the purposes of the
Trustee Act 2000 (UK). (w) The perpetuity period under the rule against
perpetuities if applicable to this Agreement and any U.K. Collateral Document
shall be 80 years from the Effective Date. Parallel Debt Undertaking. (a) In
order to ensure the continuing validity and enforceability of the Liens
expressed to be created under the Collateral Documents governed by the laws of
The Netherlands, each Dutch Loan Party hereby irrevocably and unconditionally
undertakes (the resulting liabilities and obligations under that undertaking
in respect of any amount, a Parallel Debt Obligation and in respect of all of
them, the Parallel Debt Obligations) to pay to the Administrative Agent
amounts equal to, and in the currency of, all amounts from time to time due
and payable by any Loan Party to any Secured Party under the Secured
Obligations as and when the same fall due for payment under the Secured
Obligations. (b) Each Parallel Debt Obligation shall be separate from and
independent of the corresponding Secured Obligation, so that the Administrative
Agent will have its own independent right to demand payment of the Parallel
Debt Obligation. (c) The Parallel Debt Obligations shall be owed to the
Administrative Agent in its own name and not as agent or representative of the
Secured Parties. (d) Other than as set out in clause (e) below, the Parallel
Debt Obligations shall not limit or affect the existence of the Secured
Obligations, for which the Secured Parties shall have an independent right to
demand performance to the extent otherwise set forth herein. (e) The rights of
the Secured Parties to receive payment of the Secured Obligations are several
from the rights of the Administrative Agent to receive payment of the Parallel
Debt Obligations, provided that: (i) Payment by a Dutch Loan Party of its
Parallel Debt Obligations in accordance with this Section 8.12 shall to the
same extent decrease and discharge the corresponding Secured Obligations owing
to the Secured Parties; and (ii) Payment by a Loan Party of its Secured
Obligations in accordance with the Secured Obligations shall to the same
extent decrease and discharge the corresponding Parallel Debt Obligations.
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DB2/ 48024258.7 193 Appointment of Administrative Agent as Australian Security
Trustee. (a) Each Secured Party hereby, upon the execution, and in accordance
with the terms, of the Australian Security Trust Deed, appoints the Australian
Security Trustee under the terms of the Australian Security Trust Deed to act
as its trustee under and in relation to the Australian Collateral Documents
and to hold the assets subject to the security thereby created under the
Australian Security Trust Deed as trustee for the Secured Parties on trust and
on the terms contained in the Australian Collateral Documents and the
Australian Security Trust Deed. Each Secured Party authorizes the Australian
Security Trustee under the terms of the Australian Security Trust Deed to
exercise such rights, remedies, powers and discretions as are specifically
delegated to the Australian Security Trustee by the terms of the Australian
Collateral Documents and the Australian Security Trust Deed, together with all
such rights, remedies, powers and discretions as are reasonably incidental
thereto and Australian Security Trustee hereby accepts that appointment. (b)
Each Secured Party hereby: (i) acknowledges that they are aware of, and
consent to, the terms of the Australian Security Trust Deed; (ii) agrees to
comply with and be bound by the Australian Security Trust Deed as a
Beneficiary (as that term is defined in the Australian Security Trust Deed);
(iii) acknowledges that it has received a copy of the Australian Security
Trust Deed together with the other information which it has required in
connection with the Australian Security Trust Deed and this Agreement; (iv)
without limiting the general application of clause (i) above: (A) acknowledges
and agrees that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising
under or in connection with the Australian Security Trust Deed and the
Australian Collateral Documents; and (B) provides the indemnities as specified
in clause 9 of the Australian Security Trust Deed; and (v) without limiting
the general application of paragraph (i) above, for consideration received,
(A) irrevocably appoints as its attorney each Person who under the terms of
the Australian Security Trust Deed is appointed an attorney of a Beneficiary
(as defined in the Australian Security Trust Deed) on the same terms and for
the same purposes as contained in the Australian Security Trust Deed; and (B)
irrevocably appoints the Australian Security Trustee as its nominee for the
purposes of Section 153 of the Australian PPSA, and authorizes the Australian
Security Trustee to act on its behalf, in connection with a registration (in
accordance with the Australian PPSA) of any Lien in favor of the Secured Party
under a Loan Document. DB2/ 48024258.7 194 (c) This Section 8.13 is executed
as a deed poll in favour of the Australian Security Trustee and each
Beneficiary (as defined in the Australian Security Trust Deed) from time to
time. The laws of New South Wales governs this Section 8.13 and the parties
submit to the exclusive jurisdiction of the courts of New South Wales and of
the Commonwealth of Australia in relation to this Section 8.13. Notification
of Completion of "Know Your Customer" Diligence. To the extent that any Lender
having a Foreign Tranche Commitment has not, prior to or as of the Third
Amendment Effective Date, satisfactorily completed all actions required for
such Lender to comply, with respect to any Australian Borrower, with all
applicable "know your customer" rules and regulations (including without
limitation the USA PATRIOT ACT) and such Lender's internal policies with
respect to the same, such Lender agrees to promptly notify the Administrative
Agent in writing following such Lender's completion of the same. ARTICLE IX
Miscellaneous Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone or Electronic
Systems (and subject in each case to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by facsimile, as follows: (i) if to any Loan Party, to
the Borrower Representative at: c/o Insight Enterprises, Inc. 2701 E. Insight
Way Chandler, Arizona 85286 Attention: Glynis Bryan; Samuel Cowley Email:
glynis.bryan@insight.com; sam.cowley@insight.com with a copy to: Skadden,
Arps, Slate, Meagher & Flom LLP 300 South Grand Avenue, Suite 3400 Los
Angeles, California 90071-3144 Attention: Leila Sayegh Email: leila.sayegh@skadd
en.com (ii) if to the Administrative Agent, JPMCB in its capacity as an
Issuing Bank, to JPMorgan Chase Bank, N.A. at: JPMorgan Chase Bank, N.A. 10 S.
Dearborn Chicago, IL 60603 Attention: Kevin Podwika
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DB2/ 48024258.7 195 Email: kevin.m.podwika@jpmorgan.com and, in the case of a
notice regarding the Foreign Borrowers, to: J.P. Morgan SE 25 Bank Street,
Canary Wharf London E145JP United Kingdom Attention: Loan and Agency Group
Facsimile No.: +44 (0)20 7777 2360 Email: loan_and_agency@jpmorgan.com with a
copy to: Morgan, Lewis & Bockius LLP 300 South Grand Avenue, 22nd Floor Los
Angeles, California 90071-3132 Attention: Marshall Stoddard, Jr., Esq.
Facsimile No: (212) 309-6001 Email: marshall.stoddard@morganlewis.com (iii) if
to any other Lender or Issuing Bank, to it at its address or facsimile number
set forth in its Administrative Questionnaire. All such notices and other
communications (A) sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received, (B) sent by facsimile shall be deemed to have been given when sent,
provided that if not given during normal business hours of the recipient, such
notice or communication shall be deemed to have been given at the opening of
business on the next Business Day of the recipient, or (C) delivered through
Electronic Systems or Approved Electronic Platforms, as applicable, to the
extent provided in paragraph (b) below shall be effective as provided in such
paragraph. (b) Notices and other communications to any Borrower, any Loan
Party, the Lenders and the Issuing Banks hereunder may be delivered or
furnished by using Electronic Systems or Approved Electronic Platforms, as
applicable, or pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II
unless otherwise agreed by the Administrative Agent and the applicable Lender.
Each of the Administrative Agent and the Borrower Representative (on behalf of
the Loan Parties) may, in its discretion, agree to accept notices and other
communications to it hereunder by Electronic Systems or Approved Electronic
Platforms, as applicable, pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications. Unless the Administrative Agent otherwise proscribes, all such
notices and other communications (i) sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), provided that if not given
during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (ii) posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient, at its e-mail address as described in the foregoing clause
(i), of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both clauses (i)
and (ii) above, if such notice, e-mail or other communication is not sent
during the DB2/ 48024258.7 196 normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of
business on the next Business Day of the recipient. (c) Any Loan Party may
change its address, email or facsimile number for notices and other
communications hereunder by notice to the Administrative Agent. Any other
party hereto may change its address, facsimile number or e-mail address for
notices and other communications hereunder by notice to the other parties
hereto. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Issuing Banks and the Lenders hereunder and under any other Loan Document are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document (other than
any Fee Letter) or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance of a Letter
of Credit shall not be construed as a waiver of any Default, regardless of
whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time. (b) Except as provided in the
first sentence of Section 2.09(a)(vi) (with respect to any commitment
increase), Section 2.09(c) and Section 2.23 or as otherwise expressly provided
herein or any other Loan Document, and subject to Section 2.14(c) and Section
9.02(e) below, neither this Agreement nor any other Loan Document (other than
any Fee Letter) nor any provision hereof or thereof may be waived, amended or
modified except (x) in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Borrowers and the Required Lenders
(or the Administrative Agent with the consent of the Required Lenders) or (y)
in the case of any such other Loan Document (other than any such amendment to
effectuate any modification or supplement or joinder thereto expressly
contemplated by the terms of such other Loan Document), pursuant to an
agreement or agreements in writing entered into by the Administrative Agent
and the Loan Party or Loan Parties that are parties thereto, with the consent
of the Required Lenders; provided that no such agreement shall: (i) increase
the Revolving Commitment or FILO Commitment of any Lender without the written
consent of such Lender (including any such Lender that is a Defaulting
Lender); it being understood that a waiver of any condition precedent set
forth in Article IV or the waiver of any Default, Event of Default or
mandatory prepayment shall not constitute an increase of any Revolving
Commitment or FILO Commitment of any Lender, (ii) reduce or forgive the
principal amount of any Loan or LC Disbursement (it being understood that a
waiver of any Default, Event of Default or mandatory prepayment shall not
constitute a reduction or forgiveness in principal) or reduce the rate of
interest thereon, or reduce or forgive any interest or fees payable hereunder,
without the written consent of each Lender (including any such Lender that is
a Defaulting Lender) directly affected thereby (provided that (A) any
amendment or modification of the financial covenants in this Agreement (or any
defined term used therein) shall not constitute a
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DB2/ 48024258.7 197 reduction in the rate of interest or fees for purposes of
this clause (ii) and (B) only the consent of the Required Lenders shall be
necessary to waive any obligation to pay default interest pursuant to Section
2.13(k)), (iii) postpone any scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any date for the payment of any interest,
fees or other Obligations payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Revolving Commitment or the scheduled date of expiration or reduction of any
FILO Commitment, or change the amount of any scheduled reduction of any FILO
Commitment, without the written consent of each Lender (including any such
Lender that is a Defaulting Lender) directly affected thereby (it being
understood that the waiver of, or the amendment to the terms of, any mandatory
prepayment shall not constitute a postponement of any date scheduled for the
payment of principal or interest or a reduction thereof), (iv) change Section
2.09(a)(iii) or (a)(iv), Section 2.09(b)(v), Section 2.10(b) or Section
2.18(b) or (d) in a manner that would alter the ratable reduction of Revolving
Commitments or FILO Commitments or the manner in which payments are shared,
without the written consent of each Lender directly affected thereby (other
than any Defaulting Lender), (v) increase the advance rates set forth in the
definition of the Global Borrowing Base, the Global Revolving Borrowing Base,
the U.S. Borrowing Base, the U.K. Borrowing Base, the Dutch Borrowing Base,
the Australian Borrowing Base or the FILO Borrowing Base, or add new
categories of eligible assets or otherwise amend or modify the definitions of
Eligible Accounts, Eligible Real Property, Real Estate Component, Eligible
Inventory, Eligible Finished Goods or Eligible Work-In-Process Inventory, in
each case in a manner which would increase any applicable Borrowing Base
without the written consent of the Required Lenders, the Supermajority U.S.
Tranche Lenders (solely with respect to the U.S. Borrowing Base, the Global
Borrowing Base and the Global Revolving Borrowing Base), the Supermajority
Foreign Tranche Lenders (solely with respect to the U.K. Borrowing Base, the
Dutch Borrowing Base, the Australian Borrowing Base, the Global Borrowing Base
and the Global Revolving Borrowing Base) and the FILO Supermajority Lenders
(solely with respect to the FILO Borrowing Base and the Global Borrowing
Base), (vi) change any of the provisions of this Section or the definitions of
"Required Lenders", "Required Revolving Lenders", "Required FILO Lenders",
"Supermajority U.S. Tranche Lenders", "Supermajority Foreign Tranche Lenders"
or "Supermajority FILO Lenders", or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (other than any Defaulting Lender) directly affected thereby,
(vii) change Section 2.20 without the consent of each Lender directly affected
thereby (other than any Defaulting Lender), (viii) release all or
substantially all of the value of all the Loan Guaranties (except as otherwise
permitted herein or in the other Loan Documents), without the written consent
of each Lender (other than any Defaulting Lender), DB2/ 48024258.7 198 (ix)
except as provided in clause (c) of this Section or in any Collateral
Document, release (or subordinate) all or substantially all of the Global
Collateral, without the written consent of each Lender (other than any
Defaulting Lender), (x) amend or modify the definitions of "Available
Currency" or "Alternate Rate" without the consent of each Lender directly
affected thereby; or (xi) amend or modify Article XII or the definitions of
"CAM Exchange Date" or "CAM Percentage" without the consent of each Lender
(other than any Defaulting Lender); provided, further, that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or any Issuing Bank hereunder without the prior written
consent of the Administrative Agent or such Issuing Bank, as the case may be
(it being understood that any amendment to Section 2.20 shall require the
consent of the Administrative Agent and the Issuing Banks); provided further
that no such agreement shall amend or modify the provisions of Section 2.06 or
any letter of credit application or the respective rights and obligations
between any Borrower and such Issuing Bank in connection with the issuance of
Letters of Credit without the prior written consent of the Administrative
Agent and such Issuing Bank, respectively. The Administrative Agent may also
amend the Commitment Schedule to reflect assignments entered into pursuant to
Section 9.04. Any amendment, waiver or other modification of this Agreement or
any other Loan Document that by its terms affects the rights or duties under
this Agreement of the Lenders of one or more Classes (but not the Lenders of
any other Class), may be effected by an agreement or agreements in writing
entered into by the Borrowers and the requisite number or percentage in
interest of each affected Class of Lenders that would be required to consent
thereto under this Section if such Class of Lenders were the only Class of
Lenders hereunder at the time. (c) The Lenders and the Issuing Banks hereby
irrevocably authorize the Administrative Agent to, and the Administrative
Agent shall, to release any Liens granted to the Administrative Agent by the
Loan Parties on any Collateral (i) upon the Payment in Full of all Secured
Obligations (other than the Unliquidated Obligations), and the cash
collateralization of all Unliquidated Obligations in a manner reasonably
satisfactory to each affected Lender, (ii) constituting property being
Disposed of (other than if being Disposed of to another Loan Party) if such
Disposition is permitted hereunder and, to the extent requested by the
Administrative Agent, the Loan Party Disposing of such property certifies to
the Administrative Agent that the Disposition is made in compliance with the
terms of this Agreement (and the Administrative Agent may rely conclusively on
any such certificate, without further inquiry), (iii) constituting property
leased to a Loan Party under a lease which has expired or been terminated in a
transaction permitted under this Agreement, or (iv) as required to effect any
Disposition of such Collateral in connection with any exercise of remedies of
the Administrative Agent and the Lenders pursuant to Article VII. Except as
provided in the preceding sentence, the Administrative Agent will not release
any Liens on Collateral without the prior written authorization of the
Required Lenders; provided that, the Administrative Agent may in its
discretion, release its Liens on Collateral valued in the aggregate not in
excess of $25,000,000 during any calendar year without the prior written
authorization of the Required Lenders (it being agreed that the Administrative
Agent may rely conclusively on one or more certificates of the Borrower
Representative or any other Loan Party as to the value of any Collateral to be
so released, without further inquiry). Any such release shall not in any
manner discharge, affect, or impair the Obligations or any Liens (other than
those expressly being released) upon (or obligations of the Loan Parties in
respect of) all interests retained by the Loan Parties, including the proceeds
of any sale, all of which shall continue to constitute part of the Collateral.
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DB2/ 48024258.7 199 Any execution and delivery by the Administrative Agent of
documents in connection with any such release shall be without recourse to or
warranty by the Administrative Agent. (d) If, in connection with any proposed
amendment, waiver or consent requiring the consent of "each Lender" or "each
Lender affected thereby," the consent of the Required Lenders is obtained, but
the consent of other necessary Lenders is not obtained (any such Lender whose
consent is necessary but has not been obtained being referred to herein as a
"Non-Consenting Lender"), then the Borrowers may elect to replace a
Non-Consenting Lender as a Lender party to this Agreement, provided that,
concurrently with any such replacement, (i) another bank or other entity which
is reasonably satisfactory to the Borrowers, the Administrative Agent and the
Issuing Banks shall agree, as of such date, to purchase for cash the Loans and
other Obligations due to the Non-Consenting Lender pursuant to an Assignment
and Assumption and to become a Lender for all purposes under this Agreement
and to assume all obligations of the Non-Consenting Lender to be terminated as
of such date and to comply with the requirements of clause (b) of Section 9.04
(with the Loan Parties or replacement lender responsible for paying any
applicable processing and recordation fee), and (ii) the Borrowers (or
applicable Borrower) shall pay to such Non-Consenting Lender in same day funds
on the day of such replacement (1) all interest, fees and other amounts then
accrued but unpaid to such Non-Consenting Lender by the Borrowers hereunder to
and including the date of termination, including without limitation payments
due to such Non- Consenting Lender under Sections 2.15 and 2.17, and (2) if
required by such Non-Consenting Lender, an amount, if any, equal to the
payment which would have been due to such Lender on the day of such
replacement under Section 2.16 had the Loans of such Non-Consenting Lender
been prepaid on such date rather than sold to the replacement Lender. Each
party hereto agrees that an assignment required pursuant to this paragraph may
be effected pursuant to an Assignment and Assumption executed by the Borrower
Representative, the Administrative Agent and the assignee (or, to the extent
applicable, an agreement incorporating an Assignment and Assumption by
reference pursuant to an Approved Electronic Platform as to which the
Administrative Agent and such parties are participants), and the Lender
required to make such assignment need not be a party thereto in order for such
assignment to be effective and shall be deemed to have consented to an be
bound by the terms thereof; provided that, following the effectiveness of any
such assignment, the other parties to such assignment agree to execute and
deliver such documents necessary to evidence such assignment as reasonably
requested by the applicable Lender, provided that any such documents shall be
without recourse to or warranty by the parties thereto. (e) The Lenders and
the Issuing Banks hereby irrevocably authorize the Administrative Agent to,
and the Administrative Agent shall, release a Loan Guarantor from its
obligations under the Loan Guaranty, and release any Equity Interests of such
Loan Guarantor which have been pledged as Collateral, upon the consummation of
any transaction permitted by this Agreement as a result of which such Loan
Guarantor ceases to be a Restricted Subsidiary (including by way of
contribution to a joint venture) if, to the extent requested by the
Administrative Agent, the Borrower Representative certifies to the
Administrative Agent that such transaction is made in compliance with the
terms of this Agreement (and the Administrative Agent may rely conclusively on
any such certificates without any further inquiry). In connection with any
termination or release pursuant to this Section, the Administrative Agent
shall (and is hereby irrevocably authorized by each Lender to) execute and
deliver to any Loan Party, at such Loan Party's expense, all documents that
such Loan Party shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section
shall be without recourse to or warranty by the Administrative Agent. Further,
the Administrative Agent may (and is hereby irrevocably authorized by each
Lender to), and upon the request of the Borrower Representative shall, release
any Loan Guarantor from its obligations under the Loan Guaranty and release
its Liens on any Equity Interests of such Loan Guarantor which have been
pledged as DB2/ 48024258.7 200 Collateral if (i) such Loan Guarantor is no
longer a Restricted Subsidiary in accordance with the terms hereof or is
otherwise no longer required to be a Loan Party under the terms hereof and
(ii) to the extent requested by the Administrative Agent, the Borrower
Representative certifies to the Administrative Agent that such transaction is
made in compliance with the terms of this Agreement (and the Administrative
Agent may rely conclusively on any such certificates without any further
inquiry). (f) Notwithstanding anything to the contrary herein (i) the
Administrative Agent may, with the consent of the Borrower Representative
only, amend, modify or supplement this Agreement or any of the other Loan
Documents to cure any ambiguity, omission, mistake, defect or inconsistency
and (ii) guarantees, collateral security documents and related documents
executed by any Loan Party in connection with this Agreement may be in a form
reasonably determined by the Administrative Agent and may be amended,
supplemented or waived by the Administrative Agent (with the consent of the
Borrower Representative) without the consent of any Lender if such amendment,
supplement or waiver is delivered in order to (x) comply with local law or
advice of local counsel, (y) cure ambiguities, omissions, mistakes or defects
or (z) cause such guarantee, collateral security document or other document to
be consistent with this Agreement and the other Loan Documents. Expenses;
Indemnity; Limitation of Liability; Etc. (a) Expenses. The Loan Parties shall,
jointly and severally, pay all (i) reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent, the Arrangers and their
respective Affiliates (but limited, in the case of legal expenses, to the
reasonable and documented fees, charges and disbursements of a single counsel
for the Administrative Agent and the Arrangers, taken as a whole, and, to the
extent reasonably required by the Administrative Agent and the Arrangers,
taken as a whole, up to one local counsel in each applicable jurisdiction), in
connection with the syndication and distribution (including, without
limitation, via the internet or through any Electronic System or Approved
Electronic Platform) of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any amendments,
modifications or waivers of the provisions of the Loan Documents (whether or
not the transactions contemplated hereby or thereby shall be consummated),
(ii) reasonable and documented out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) reasonable and
documented out-of-pocket expenses incurred by the Administrative Agent, any
Issuing Bank or any Lender (but limited, in the case of legal expenses, to the
reasonable and documented out-of-pocket fees, charges and disbursements of a
single counsel for the Administrative Agent, the Issuing Banks, and the
Lenders, taken as a whole, and, to the extent reasonably required by the
Administrative Agent, the Issuing Banks, and the Lenders, taken as a whole, up
to one local counsel in each applicable jurisdiction, and in the case of an
actual or perceived conflict of interest, one special counsel to each
similarly situated group affected by such conflict where such group notifies
Insight of such conflict and thereafter retains counsel), in connection with
the enforcement, collection or protection of its rights in connection with the
Loan Documents, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
reasonable and documented out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
Expenses being reimbursed by the Loan Parties under this Section include,
without limiting the generality of the foregoing, reasonable and documented
out-of-pocket fees, costs and expenses incurred in connection with: (A)
subject to the limitations in Section 5.06, appraisals and insurance reviews;
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DB2/ 48024258.7 201 (B) field examinations and the preparation of Reports
based on the fees charged by a third party retained by the Administrative
Agent or the internally allocated fees for each Person employed by the
Administrative Agent with respect to each field examination; (C) background
checks regarding senior management and/or key investors, as deemed necessary
or appropriate in the sole discretion of the Administrative Agent; (D) Taxes,
fees and other charges for (1) lien searches and (2) filing financing
statements and continuations, and other actions to perfect, protect, and
continue the Administrative Agent's Liens; (E) sums paid or incurred to take
any action required of any Loan Party under the Loan Documents that such Loan
Party fails to pay or take; and (F) forwarding loan proceeds, collecting
checks and other items of payment, and establishing and maintaining the
accounts and lock boxes, and costs and expenses of preserving and protecting
the Collateral. (b) Indemnity. The Loan Parties shall, jointly and severally,
indemnify the Administrative Agent, each Arranger, each Issuing Bank, any
Controller appointed by the Australian Security Trustee, each Lender, each
Co-Syndication Agent, each Co-Documentation Agent, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all Liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee (limited to, for each occurrence giving rise to such
indemnification event, one primary counsel for Indemnitees taken as a whole,
one local counsel in each reasonably necessary jurisdiction, and, in the case
of an actual or perceived conflict of interest, one special counsel to each
group of similarly situated Indemnitees affected by such conflict of interest
where such group notifies you of such conflict and thereafter retains
counsel), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of the Loan
Documents or any agreement or instrument contemplated thereby, (ii) the
performance by the parties hereto of their respective obligations thereunder
or the consummation of the Transactions or any other transactions contemplated
hereby, (iii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iv) any actual or alleged presence or Release of Hazardous Materials on or
from any property owned or operated by a Loan Party or a Subsidiary, or any
Environmental Liability related in any way to a Loan Party or a Subsidiary, or
(v) any actual or prospective Proceeding relating to any of the foregoing,
whether or not such Proceeding is brought by any Loan Party or their
respective equity holders, Affiliates, creditors or any other third Person and
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such Liabilities or related
expenses are determined by a court of competent jurisdiction by final and
non-appealable judgment to have resulted from (x) the gross negligence, bad
faith or willful misconduct of such Indemnitee or its Related Parties, (y) a
material breach by such Indemnitee or its Related Parties of its obligations
under the Loan Documents, or (z) disputes solely between or among the
Indemnitees (other than (1) disputes involving claims against the
Administrative Agent, any Arranger or other similarly titled Person, in their
respective capacities as such and (2) any dispute arising out of any act or
omission of any Loan Party or any of the Affiliates of the Loan DB2/
48024258.7 202 Parties). This Section 9.03(b) shall not apply with respect to
Taxes other than any Taxes that represent losses or damages arising from any
non-Tax claim. (c) Lender Reimbursement. Each Lender severally agrees to pay
any amount required to be paid by any Loan Party under paragraph (a), (b) or
(d) of this Section 9.03 to the Administrative Agent, each Issuing Bank, and
each Related Party of any of the foregoing Persons (each, an "Agent-Related
Person") (to the extent not reimbursed by a Loan Party and without limiting
the obligation of any Loan Party to do so), ratably according to their
respective Applicable Percentage in effect on the date on which such payment
is sought under this Section (or, if such payment is sought after the date
upon which the Revolving Commitments and the FILO Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Applicable Percentage immediately prior to such date), and agrees to
indemnify and hold each Agent-Related Person harmless from and against any and
all Liabilities and related expenses, including the fees, charges and
disbursements of any kind whatsoever that may at any time (whether before or
after the payment of the Loans) be imposed on, incurred by or asserted against
such Agent-Related Person in any way relating to or arising out of the
Revolving Commitments, the FILO Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent-Related Person under or in connection with any of the
foregoing; provided that the unreimbursed expense or indemnified Liability or
related expense, as the case may be, was incurred by or asserted against such
Agent-Related Person in its capacity as such; provided, further, that no
Lender shall be liable for the payment of any portion of such Liabilities,
costs, expenses or disbursements that are found by a final and non- appealable
decision of a court of competent jurisdiction to have resulted from such
Agent-Related Person's gross negligence or willful misconduct. The agreements
in this Section shall survive the termination of this Agreement and the
Payment in Full of the Secured Obligations. (d) Limitation of Liability. To
the extent permitted by applicable law (i) no party hereto shall assert, and
each party hereto hereby waives, any claim against any other party hereto for
any Liabilities arising from the use by others of information or other
materials (including, without limitation, any personal data) obtained through
telecommunications, electronic or other information transmission systems
(including the Internet), except to the extent any such damages are found by a
final, non-appealable judgment of a court of competent jurisdiction to arise
from the gross negligence, bad faith or willful misconduct of, or material
breach of any Loan Document by, such party (or any of its Related Parties),
and (ii) no party hereto shall assert, and each such party hereby waives, any
Liabilities against any other party hereto, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document, or any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof; provided that, nothing in this Section
9.03(d) shall relieve any Borrower or any Loan Party of any obligation it may
have to indemnify an Indemnitee, as provided in Section 9.03(b), against any
special, indirect, consequential or punitive damages asserted against such
Indemnitee by a third party. (e) All amounts due under this Section shall be
payable promptly, and in any event no later than thirty (30) days after
written demand therefor. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
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DB2/ 48024258.7 203 Affiliate of the Issuing Bank that issues any Letter of
Credit), except that (i) except as expressly permitted hereunder, no Borrower
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by any Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its 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, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of
Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under 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 or more Persons (other than an Ineligible
Institution) all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Commitment, FILO
Commitment, participations in Letters of Credit and the Loans at the time
owing to it) with the prior written consent (each such consent not to be
unreasonably withheld) of: (A) the Borrower Representative, provided that the
Borrower Representative shall be deemed to have consented to any such
assignment of all or a portion of the Revolving Loans, FILO Loans, Revolving
Commitments and FILO Commitments unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after having
received written notice thereof and provided further that no consent of the
Borrower Representative shall be required for (i) an assignment to a Lender,
an Affiliate of a Lender, an Approved Fund or, (ii) if an Event of Default
under clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing, any other assignee (other than an Ineligible Institution); (B) the
Administrative Agent; and (C) the Issuing Banks. (ii) Assignments shall be
subject to the following additional conditions: (A) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an
assignment of the entire remaining amount of the assigning Lender's Revolving
Commitment, FILO Commitment or Loans of any Class, the amount of the Revolving
Commitment, FILO Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower Representative and the
Administrative Agent otherwise consent, provided that no such consent of the
Borrower Representative shall be required if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing; DB2/
48024258.7 204 (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement; (C) the parties to each assignment shall execute and deliver
to the Administrative Agent (x) an Assignment and Assumption or (y) to the
extent applicable, an agreement incorporating an Assignment and Assumption by
reference pursuant to an Approved Electronic Platform as to which the
Administrative Agent and the parties to the Assignment and Assumption are
participants, together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about Insight, the other
Loan Parties and their Related Parties or their respective securities) will be
made available and who may receive such information in accordance with the
assignee's compliance procedures and applicable laws, including Federal and
state securities laws. Notwithstanding anything herein or in any other Loan
Document to the contrary, the Administrative Agent shall not be responsible or
have any liability for, or have any duty to ascertain, inquire into, monitor
or enforce, compliance with the provisions of this Agreement relating to
Ineligible Institutions, except to make the list of Disqualified Institutions
available to the Lenders upon request. Without limiting the generality of the
foregoing and notwithstanding anything herein or in any other Loan Document to
the contrary, the Administrative Agent shall not (x) be obligated to
ascertain, monitor or inquire as to whether any Lender or Participant or
prospective Lender or Participant is an Ineligible Institution or (y) have any
liability with respect to or arising out of any assignment or participation of
Loans, Revolving Commitments, FILO Commitments or other Obligations, or
disclosure of confidential information, to any Ineligible Institution.
Furthermore, the Administrative Agent shall have the right, and the Borrowers
hereby expressly authorize the Administrative Agent, to disclose the list of
Disqualified Institutions to each Lender requesting the same. For the purposes
of this Section 9.04(b), the terms "Approved Fund" and "Ineligible
Institution" have the following meanings: "Approved Fund" means any Person
(other than a natural person) that is engaged in making, purchasing, holding
or investing in bank loans and similar extensions of credit in the ordinary
course of its business 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. "Ineligible Institution" means (a) a
natural person, (b) a Defaulting Lender or its Parent, (c) a holding company,
investment vehicle or trust for, or owned and operated for the primary benefit
of, a natural person or relative(s) thereof, (d) a Loan Party or a Subsidiary
or other Affiliate of a Loan Party, or (e) unless consented to by the Borrower
Representative, a Disqualified Institution. (iii) Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) of this Section, from and
after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to
the extent of the
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DB2/ 48024258.7 205 interest assigned by such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17
and 9.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as a non-fiduciary
agent of the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Revolving Commitment and
the FILO Commitment of, and principal amount (and stated interest) of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent, the Issuing Banks and
the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, any Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice. (v)
Upon its receipt of (x) a duly completed Assignment and Assumption executed by
an assigning Lender and an assignee, or (y) to the extent applicable, an
agreement incorporating an Assignment and Assumption by reference pursuant to
an Approved Electronic Platform as to which the Administrative Agent and the
parties to the Assignment and Assumption are participants, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register; provided that if either the assigning Lender or the assignee shall
have failed to make any payment required to be made by it pursuant to Section
2.05, 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent
shall have no obligation to accept such Assignment and Assumption and record
the information therein in the Register unless and until such payment shall
have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph. (c) Any Lender
may, without the consent of, or notice to, the Borrowers, the Administrative
Agent, or the Issuing Banks, sell participations to one or more banks or other
entities (a "Participant") other than an Ineligible Institution in all or a
portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Revolving Commitment, its FILO Commitment
and/or the Loans owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged; (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations; and (iii) the Borrowers, the Administrative Agent, the Issuing
Banks and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or DB2/
48024258.7 206 instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. The Borrowers agree that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and
limitations therein, including the requirements under Section 2.17(f) and (g)
(it being understood that the documentation required under Section 2.17(f)
shall be delivered to the participating Lender and the information and
documentation required under Section 2.17(g) will be delivered to the
Borrowers and the Administrative Agent)) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to clause (b) of
this Section; provided that such Participant (A) agrees to be subject to the
provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph
(b) of this Section; and (B) shall not be entitled to receive any greater
payment under Section 2.15 or 2.17, with respect to any participation, than
its participating Lender would have been entitled to receive, except to the
extent such entitlement to receive a greater payment results from a Change in
Law that occurs after the Participant acquired the applicable participation.
Each Lender that sells a participation agrees, at the Borrowers' request and
expense, to use reasonable efforts to cooperate with the Borrowers to
effectuate the provisions of Section 2.19(b) with respect to any Participant.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(d) as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrowers, maintain a register on which it enters
the name and address of each Participant and the principal amounts (and stated
interest) of each Participant's interest in the Loans or other obligations
under this Agreement or any other Loan Document (the "Participant Register");
provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant
or any information relating to a Participant's interest in any Revolving
Commitments, FILO Commitments, Loans, Letters of Credit or its other
obligations under any Loan Document) to any Person except to the extent that
such disclosure is necessary to establish that such Revolving Commitment, FILO
Commitment, Loan, Letter of Credit or other obligation 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 shall treat each Person whose name is recorded in the
Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant Register. (d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank or any central bank, and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto. Survival. All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered
in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of the Loan Documents and the making
of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, any Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Revolving
Commitments
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DB2/ 48024258.7 207 and FILO Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit, the Revolving Commitments
and the FILO Commitments or the termination of this Agreement or any other
Loan Document or any provision hereof or thereof. Counterparts; Integration;
Effectiveness; Electronic Execution. (a) This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall be deemed an original, but all of which when taken together
shall constitute a single contract. This Agreement, the other Loan Documents
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
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 Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of 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
Loan Document and/or (z) any document, amendment, approval, consent,
information, notice (including, for the 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 transactions contemplated hereby and/or thereby (each an "Ancillary
Document") that is an Electronic Signature transmitted by facsimile, 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, 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
Electronic Signatures, deliveries or the keeping of records in any electronic
form (including deliveries by facsimile, 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; provided that nothing
herein shall require the Administrative Agent to accept Electronic Signatures
in any form 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 any Electronic
Signature, the Administrative Agent and each of the Lenders shall be entitled
to rely on such Electronic Signature purportedly given by or on behalf of any
Borrower or any other Loan Party without further verification thereof and
without any obligation to review the appearance or form of any such Electronic
Signature and (ii) upon the request of the Administrative Agent, any
Electronic Signature shall be promptly followed by a manually executed
counterpart. Without limiting the generality of the foregoing, each 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 Borrowers and the Loan Parties, Electronic Signatures
transmitted by facsimile, emailed pdf. or any other electronic means that
reproduces an image of an actual executed signature page and/or any electronic
images of this Agreement, 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 Lenders may, at
DB2/ 48024258.7 208 its option, create one or more copies of this Agreement,
any other Loan Document and/or any Ancillary Document in the form of an imaged
electronic record in any format, which shall be deemed created in the ordinary
course of such Person's business, and destroy the original paper document (and
all such electronic records shall be considered an original for all purposes
and shall have the same legal effect, validity and enforceability as a paper
record), (C) waives any argument, defense or right to contest the legal
effect, validity or enforceability of this Agreement, any other Loan Document
and/or any Ancillary Document based solely on the lack of paper original
copies of this Agreement, such other Loan Document and/or such Ancillary
Document, respectively, including with respect to any signature pages thereto
and (D) waives any claim against any Indemnitee for any Liabilities arising
solely from the Administrative Agent's and/or any Lender's reliance on or use
of Electronic Signatures and/or transmissions by facsimile, emailed pdf. or
any other electronic means that reproduces an image of an actual executed
signature page, including any Liabilities arising as a result of the failure
of any Borrower and/or any Loan Party to use any available security measures
in connection with the execution, delivery or transmission of any Electronic
Signature. Severability. Any provision of any Loan Document 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 thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender, the Issuing Bank and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held, and other obligations at any time owing, by such Lender, the
Issuing Bank or any such Affiliate, to or for the credit or the account of any
Loan Party against any and all of the Secured Obligations held by such Lender,
the Issuing Bank or their respective Affiliates, irrespective of whether or
not such Lender, the Issuing Bank or their respective Affiliates shall have
made any demand under the Loan Documents and although such obligations may be
contingent or unmatured or are owed to a branch office or Affiliate of such
Lender or the Issuing Bank different from the branch office or Affiliate
holding such deposit or obligated on such indebtedness; provided that in the
event that any Defaulting Lender shall exercise any such right of setoff, (x)
all amounts so set off shall be paid over immediately to the Administrative
Agent for further application in accordance with the provisions of Section
2.20 and, pending such payment, shall be segregated by such Defaulting Lender
from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the Issuing Bank, and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Secured Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The
applicable Lender, the Issuing Bank or such Affiliate shall notify the
Borrower Representative and the Administrative Agent of such setoff or
application, provided that any failure to give or any delay in giving such
notice shall not affect the validity of any such setoff or application under
this Section. The rights of each Lender, the Issuing Bank and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, the Issuing Bank or their
respective Affiliates may have. Governing Law; Jurisdiction; Consent to
Service of Process. (a) Subject to section 8.13, the Loan Documents (other
than those containing a contrary express choice of law provision) shall be
governed by and construed in accordance with the laws of the State of New
York; provided that (i) the interpretation of the definition of "Material
Adverse Effect" (as defined in the Trojan Merger Agreement) (and whether or
not such a Material
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DB2/ 48024258.7 209 Adverse Effect has occurred), (ii) the determination of
the accuracy of any Specified Merger Agreement Representations and whether as
a result of any inaccuracy thereof either that the Merger Sub or any of its
Affiliates has the right to terminate its obligations under the Trojan Merger
Agreement or to decline to consummate the Trojan Acquisition, and (iii) the
determination of whether the Trojan Acquisition has been consummated in
accordance with the terms of the Trojan Merger Agreement and, in any case,
claims or disputes arising out of any such interpretation or determination or
any aspect thereof shall, in each case, be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof. (b) Each of the Lenders and the Administrative Agent hereby
irrevocably and unconditionally agrees that, notwithstanding the governing law
provisions of any applicable Loan Document, any claims brought against the
Administrative Agent by any Secured Party relating to this Agreement, any
other Loan Document, the Collateral or the consummation or administration of
the transactions contemplated hereby or thereby shall be construed in
accordance with and governed by the law of the State of New York. (c) Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any U.S. federal or New
York state court sitting in New York, New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to any
Loan Documents, the transactions relating hereto or thereto, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may (and any such claims, cross-claims or third
party claims brought against the Administrative Agent or any of its Related
Parties may only) be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Loan Party or its properties in the courts of any jurisdiction. (d) Each Loan
Party hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which 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 court referred
to in paragraph (c) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court. (e) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law. Each
Loan Party (other than a U.S. Loan Party) irrevocably designates and appoints
Insight, as its authorized agent, to accept and acknowledge on its behalf,
service of any and all process which may be served in any suit, action or
proceeding of the nature referred to in Section 9.09(b) in any federal or New
York State court sitting in New York City. Insight hereby represents, warrants
and confirms that Insight has agreed to accept such appointment (and any
similar appointment by a Loan Guarantor which is a Foreign Subsidiary). Said
designation and appointment shall be irrevocable by each such Loan Party until
all Loans, all reimbursement obligations, interest thereon and all other
amounts payable by such Loan Party hereunder and under DB2/ 48024258.7 210 the
other Loan Documents shall have been Paid in Full in accordance with the
provisions hereof and thereof. Each Loan Party (other than a U.S. Loan Party)
hereby consents to process being served in any suit, action or proceeding of
the nature referred to in Section 9.09(b) in any federal or New York State
court sitting in New York City by service of process upon Insight as provided
in this Section 9.09(e). Each Loan Party (other than a U.S. Loan Party)
irrevocably waives, to the fullest extent permitted by law, all claim of error
by reason of any such service in such manner and agrees that such service
shall be deemed in every respect effective service of process upon such Loan
Party in any such suit, action or proceeding and shall, to the fullest extent
permitted by law, be taken and held to be valid and personal service upon and
personal delivery to such Loan Party. To the extent any Loan Party (other than
a U.S. Loan Party) has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether from service or notice,
attachment prior to judgment, attachment in aid of execution of a judgment,
execution or otherwise), such Loan Party hereby irrevocably waives, to the
fullest extent permitted by law, such immunity in respect of its obligations
under the Loan Documents. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE
OR OTHER AGENT (INCLUDING ANY ATTORNEY) OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Headings. Article and Section headings and the Table of Contents 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. Confidentiality. Each of the Administrative
Agent, the Issuing Banks and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates, and its and its Affiliates' employees,
directors, officers, independent auditors, rating agencies, professional
advisors and other experts or agents who need to know such Information in
connection with the transactions contemplated by the Loan Documents (it being
understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to keep such
Information confidential, and each of the Administrative Agent, the Issuing
Banks and the Lenders shall be responsible for each of their respective
Affiliates' compliance with the terms of this Section), (b) pursuant to the
order of any Governmental Authority or in any pending legal, judicial or
administrative proceeding, or otherwise as required by any Requirement of Law,
rule or regulation, subpoena or compulsory legal process or upon the request
or demand of any regulatory authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) or
other Governmental Authority purporting to have jurisdiction over the
Administrative Agent, any Issuing Bank or any Lender, or any of their
respective Affiliates (in which case the Administrative Agent, such Issuing
Bank or such Lender, as applicable, hereby agrees (except with respect to any
audit or examination conducted by bank accountants or any self-regulatory
authority or Governmental Authority or regulatory authority exercising
examination or regulatory authority), to the
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DB2/ 48024258.7 211 extent practicable and not prohibited by applicable law or
regulation, to inform the Borrower Representative promptly thereof prior to
disclosure), (c) to the extent that such Information is independently
developed by the Administrative Agent, any Issuing Bank, any Lender, or any of
their respective Affiliates, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies under this Agreement or any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee (other than a Disqualified
Institution) of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Loan Parties and their obligations, (g)
with the consent of the Borrower Representative, (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis from a source other
than the Borrowers, or (i) on a confidential basis to (1) any rating agency in
connection with rating any Borrower or its Subsidiaries or the credit
facilities provided for herein or (2) the CUSIP Service Bureau or any similar
agency in connection with the issuance and monitoring of identification
numbers with respect to the credit facilities provided for herein. For the
purposes of this Section, "Information" means all information received from
the Loan Parties relating to the Loan Parties or their business, other than
any such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis prior to disclosure by
the Loan Parties and other than information pertaining to this Agreement
customarily provided by arrangers to data service providers, including league
table providers, that serve the lending industry. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED
TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON- PUBLIC INFORMATION
CONCERNING EACH BORROWER AND ITS AFFILIATES, THE OTHER LOAN PARTIES AND THEIR
RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC
INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND
STATE SECURITIES LAWS. ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE LOAN PARTIES OR THE ADMINISTRATIVE AGENT PURSUANT
TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT INSIGHT,
THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWERS AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE
QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES
AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. Several
Obligations; Nonreliance; Violation of Law. The respective obligations of the
Lenders hereunder are several and not joint and the failure of any Lender to
make any Loan or perform any of its obligations hereunder shall not relieve
any other Lender from any of its obligations hereunder. Each Lender hereby
represents that it is not relying on or looking to any margin stock (as
defined DB2/ 48024258.7 212 in Regulation U of the Board) for the repayment of
the Borrowings provided for herein. After the Effective Date, anything
contained in this Agreement to the contrary notwithstanding, neither the
Issuing Bank nor any Lender shall be obligated to extend credit to the
Borrowers in violation of any Requirement of Law. USA PATRIOT Act; UK "Know
Your Customer" Checks; Canadian Anti-Money Laundering; Australian "Know Your
Customer" Checks. (a) USA PATRIOT Act. Each Lender that is subject to the
requirements of the USA PATRIOT Act hereby notifies each Loan Party that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies such Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender to identify such Loan Party in
accordance with the USA PATRIOT Act. (b) UK "Know Your Customer" Checks. (i)
If (A) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after the
Effective Date, (B) any change in the status of a U.K. Loan Party after the
Effective Date, or (C) a proposed assignment or transfer by a Lender of any of
its rights and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer, obliges the Administrative Agent
or any Lender (or, in the case of paragraph (C) above, any prospective new
Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, each U.K. Loan Party shall promptly upon the request of the
Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in paragraph (C) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in paragraph (C) above, any
prospective new Lender to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Loan
Documents; and (ii) each Lender shall promptly upon the request of the supply,
or procure the supply of, such documentation and other evidence as is
reasonably requested by the Administrative Agent (for itself) in order for the
Administrative Agent to carry out and be satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable
laws and regulations pursuant to the transactions contemplated in the Loan
Documents. (c) Canadian Anti-Money Laundering Legislation. (i) Each Loan Party
acknowledges that, pursuant to the Proceeds of Crime Act and other applicable
anti-money laundering, anti-terrorist financing, government sanction and "know
your client" laws (collectively, including any guidelines or orders
thereunder, "AML Legislation"), the Lenders may be required to obtain, verify
and record information regarding the Loan Parties and their respective
directors, authorized signing officers, direct or indirect shareholders or
other Persons in control of the Loan Parties, and the transactions
contemplated hereby. Each Loan Party shall promptly provide all such
information, including supporting documentation and other evidence, as may be
reasonably requested by any Lender or any prospective assignee or participant
of a Lender, any Issuing Bank or any Agent, in order to comply with any
applicable AML Legislation, whether now or hereafter in existence.
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DB2/ 48024258.7 213 (ii) If the Administrative Agent has ascertained the
identity of any Loan Party or any authorized signatories of the Loan Parties
for the purposes of applicable AML Legislation, then the Administrative Agent:
(A) shall be deemed to have done so as an agent for each Lender, and this
Agreement shall constitute a "written agreement" in such regard between each
Lender and the Administrative Agent within the meaning of the applicable AML
Legislation; and (B) shall provide to each Lender copies of all information
obtained in such regard without any representation or warranty as to its
accuracy or completeness. Notwithstanding the preceding sentence and except as
may otherwise be agreed in writing, each of the Lenders agrees that neither
the Administrative Agent nor any other Agent has any obligation to ascertain
the identity of the Loan Parties or any authorized signatories of the Loan
Parties on behalf of any Lender, or to confirm the completeness or accuracy of
any information it obtains from any Loan Party or any such authorized
signatory in doing so. (d) Australian "Know Your Customer" Checks. (i) If: (A)
the introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the Third Amendment
Effective Date; (B) any change in the status of an Australian Loan Party (or
of the Borrower Representative or other parent entity of an Australian Loan
Party) after the Third Amendment Effective Date; (C) any change in the
authorized signatories of an Australian Loan Party after the Third Amendment
Effective Date; or (D) a proposed assignment or transfer by a Lender of any of
its rights and obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer, obliges the Administrative Agent
or any Lender (or, in the case of clause (D) above, any prospective new
Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already
available to it, each Australian Loan Party shall promptly upon the request of
the Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in clause (D) above, on
behalf of any prospective new Lender) in order for the Administrative Agent,
such Lender or, in the case of the event described in clause (D) above, any
prospective new Lender to carry out and be satisfied it has complied with all
necessary "know your DB2/ 48024258.7 214 customer" or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Loan Documents. (ii) The Borrower Representative shall by
not less than 10 Business Days' prior written notice to the Administrative
Agent, notify the Administrative Agent (which shall promptly notify the
Lenders) of its intention to request that one of its Subsidiaries incorporated
in Australia becomes an Australian Loan Party pursuant to Section 5.14 of this
Agreement. (iii) Following the giving of any notice pursuant to clause (ii)
above, if the accession of such Australian Loan Party obliges the
Administrative Agent or any Lender to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, the Borrower Representative shall
promptly upon the request of the Administrative Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Administrative Agent (for itself or on behalf of any Lender)
or any Lender (for itself or on behalf of any prospective new Lender) in order
for the Administrative Agent or such Lender or any prospective new Lender to
carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and regulations
pursuant to the joinder of such Australian Loan Party to this Agreement. (iv)
The Borrower Representative shall promptly supply, or procure the supply of,
such documentation and other evidence reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) from time to time
in relation to an Australian Loan Party or to enable a Lender to comply with
"know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to the Lender.
Disclosure. Each Loan Party, each Lender and the Issuing Bank hereby
acknowledges and agrees that the Administrative Agent and/or its Affiliates
from time to time may hold investments in, make other loans to or have other
relationships with any of the Loan Parties and their respective Affiliates.
Appointment for Perfection. Each Lender hereby appoints each other Lender as
its agent for the purpose of perfecting Liens, for the benefit of the
Administrative Agent and the other Secured Parties, in assets which, in
accordance with Article 9 of the UCC or any other applicable law can be
perfected only by possession or control. Should any Lender (other than the
Administrative Agent) obtain possession or control of any such Collateral,
such Lender shall notify the Administrative Agent thereof, and, promptly upon
the Administrative Agent's request therefor shall deliver such Collateral to
the Administrative Agent or otherwise deal with such Collateral in accordance
with the Administrative Agent's instructions. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the "Charges"), shall exceed the maximum lawful rate (the "Maximum Rate")
which may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not
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DB2/ 48024258.7 215 above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the NYFRB Rate to the date of
repayment, shall have been received by such Lender. Marketing Consent. The
Borrowers hereby authorize the Arrangers and their affiliates, at their
respective sole expense, but without any prior approval by the Borrowers, to
publish such tombstones and give such other similar customary publicity to
this Agreement as each may from time to time determine in its sole discretion.
The foregoing authorization shall remain in effect unless and until the
Borrower Representative notifies the Arrangers in writing that such
authorization is revoked. Acknowledgement and Consent to Bail-In of Affected
Financial Institutions. Notwithstanding anything to the contrary in any Loan
Document or in any other agreement, arrangement or understanding among any
such parties, each party hereto acknowledges that any liability of any
Affected Financial Institution arising under any Loan Document may be subject
to the Write-Down and Conversion Powers of the applicable Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by: (a)
the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arising hereunder which may be
payable to it by any party 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 other instruments of ownership in such Affected Financial
Institution, its parent entity, or a bridge institution that may be issued to
it or otherwise conferred on it, and that such shares or other instruments of
ownership will be accepted by it in lieu of any rights with respect 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 exercise of
the Write-Down and Conversion Powers of the applicable Resolution Authority.
No Fiduciary Duty, etc. (a) Each Borrower acknowledges and agrees, and
acknowledges its Subsidiaries' understanding, that no Credit Party will have
any obligations under the Loan Documents except those obligations expressly
set forth herein and in the other Loan Documents, and in connection with the
transactions contemplated by the Loan Documents, each Credit Party is acting
solely in the capacity of an arm's length contractual counterparty to each
Borrower with respect to the Loan Documents and the transactions contemplated
herein and therein and not as a financial advisor or a fiduciary to, or an
agent of, any Borrower or any other person. Each Borrower agrees that it will
not assert any claim against any Credit Party based on an alleged breach of
fiduciary duty by such Credit Party in connection with this Agreement and the
transactions contemplated hereby. Additionally, each Borrower acknowledges and
agrees that no Credit Party is advising any Borrower as to any legal, tax,
investment, accounting, regulatory or any other matters in any jurisdiction.
Each Borrower shall, to the extent it deems appropriate, consult with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated
herein or in the other Loan Documents, and the Credit Parties shall have no
responsibility or liability to any Borrower with respect thereto. DB2/
48024258.7 216 (b) Each Borrower further acknowledges and agrees, and
acknowledges its Subsidiaries' understanding, that each Credit Party, together
with its Affiliates, is a full service securities or banking firm engaged in
securities trading and brokerage activities as well as providing investment
banking and other financial services. In the ordinary course of business, any
Credit Party may provide investment banking and other financial services to,
and/or acquire, hold or sell, for its own accounts and the accounts of
customers, equity, debt and other securities and financial instruments
(including bank loans and other obligations) of, any Borrower and other
companies with which any Borrower may have commercial or other relationships.
With respect to any securities and/or financial instruments so held by any
Credit Party or any of its customers, all rights in respect of such securities
and financial instruments, including any voting rights, will be exercised by
the holder of the rights, in its sole discretion. (c) In addition, each
Borrower acknowledges and agrees, and acknowledges its Subsidiaries'
understanding, that each Credit Party and its affiliates may be providing debt
financing, equity capital or other services (including financial advisory
services) to other companies in respect of which a Borrower may have
conflicting interests regarding the transactions described herein and
otherwise. No Credit Party will use confidential information obtained from any
Loan Party by virtue of the transactions contemplated by the Loan Documents or
its other relationships with such Loan Party in connection with the
performance by such Credit Party of services for other companies, and no
Credit Party will furnish any such information to other companies. Each
Borrower also acknowledges that no Credit Party has any obligation to use in
connection with the transactions contemplated by the Loan Documents, or to
furnish to any Borrower, confidential information obtained from other
companies. Acknowledgement Regarding Any Supported QFCs. To the extent that
the Loan Documents provide support, through a guarantee or otherwise, for Swap
Agreements or any other agreement or instrument that is a QFC (such support
"QFC Credit Support" and each such QFC a "Supported QFC"), the parties
acknowledge and agree as follows with respect to the resolution power of the
Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act
and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(together with the regulations promulgated thereunder, the "U.S. Special
Resolution Regimes") in respect of such Supported QFC and QFC Credit Support
(with the provisions below applicable notwithstanding that the Loan Documents
and any Supported QFC may in fact be stated to be governed by the laws of the
State of New York and/or of the United States or any other state of the United
States). In the event a Covered Entity that is party to a Supported QFC (each,
a "Covered Party") becomes subject to a proceeding under a U.S. Special
Resolution Regime, the transfer of such Supported QFC and the benefit of such
QFC Credit Support (and any interest and obligation in or under such Supported
QFC and such QFC Credit Support, and any rights in property securing such
Supported QFC or such QFC Credit Support) from such Covered Party will be
effective to the same extent as the transfer would be effective under the U.S.
Special Resolution Regime if the Supported QFC and such QFC Credit Support
(and any such interest, obligation and rights in property) were governed by
the laws of the United States or a state of the United States. In the event a
Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under the
Loan Documents that might otherwise apply to such Supported QFC or any QFC
Credit Support that may be exercised against such Covered Party are permitted
to be exercised to no greater extent than such Default Rights could be
exercised under the U.S. Special Resolution Regime if the Supported QFC and
the Loan Documents were governed by the laws of the United States or a state
of the United States. Without limitation of the foregoing, it is understood
and agreed that rights and remedies of the parties with respect to a
Defaulting Lender shall in no event affect the rights of any Covered Party
with respect to a Supported QFC or any QFC Credit Support.
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DB2/ 48024258.7 217 Dutch CIT Fiscal Unity. If, at any time, a Loan Party
resident for tax purposes in The Netherlands or carrying on a business through
a permanent establishment or deemed permanent establishment in The Netherlands
is part of a Dutch CIT Fiscal Unity with any of its group entities resident
for tax purposes in The Netherlands or carrying on a business through a
permanent establishment or deemed permanent establishment in The Netherlands
(a "Dutch CIT Fiscal Unity Member"), and such Dutch CIT Fiscal Unity is, in
respect of such Dutch CIT Fiscal Unity Member, terminated or disrupted within
the meaning of Article 15(6) of the Dutch CITA (or any other provision which
facilitates the termination of a Dutch CIT Fiscal Unity) pursuant to or in
connection with the Administrative Agent or other Secured Party enforcing its
rights under a Loan Document with respect to any Collateral Document or the
execution of any Collateral Document, the relevant member of such Dutch CIT
Fiscal Unity shall, for no consideration, as soon as possible at the request
of and together with the Dutch CIT Fiscal Unity Member leaving the Dutch CIT
Fiscal Unity, lodge a request with the Dutch tax authorities to allocate and
surrender any tax losses as referred to in Article 20 of the Dutch CITA to the
Dutch CIT Fiscal Unity Member leaving the Dutch CIT Fiscal Unity in connection
with Article 15af of the Dutch CITA (or any other provision which facilitates
such allocation of tax losses upon termination of the Dutch CIT Fiscal Unity),
to the extent such tax losses are attributable to the Dutch CIT Fiscal Unity
Member leaving the Dutch CIT Fiscal Unity. Future Non-US Loan Parties.
Following the Third Amendment Effective Date, the Loan Parties may request
that certain Subsidiaries organized under the laws of France and Germany be
joined to the applicable Loan Documents as Loan Parties and the assets of such
Subsidiaries included in the Global Revolving Borrowing Base, in each case,
subject to the voting requirements set forth in Section 9.02 and any
applicable collateral, guarantee or other credit support requirements set
forth in any applicable Loan Documents, including Section 5.14. For the
avoidance of doubt and notwithstanding the foregoing provisions of this
Section 9.23 or any other provision of this Agreement, no Lender will be
required to commit to, or participate in, any tranche or facility under this
Agreement with respect to borrowers organized or formed under the laws of
Germany or France. English Language. The parties hereto confirm that it is
their wish that this Agreement and any other document executed in connection
with the Transactions be drawn up in the English language only and that all
other documents contemplated thereunder or relating thereto, including
notices, may also be drawn up in the English language only. Les parties aux
presentes confirment que c'est leur volonte que cette convention et les autres
documents de credit y afferents soient rediges en anglais seulement et que
tous les documents, y compris tous avis, envisages par cette convention soient
rediges en anglais seulement. ARTICLE X Loan Guaranty of Global Loan Parties
Guaranty. Each Loan Guarantor that is a Global Loan Party (each reference to
Loan Guarantors in this Article X being limited to such Global Loan Parties)
(other than those that have delivered a separate Guaranty) hereby agrees that
(i) it is jointly and severally liable for, and, as a primary obligor and not
merely as surety, except as otherwise provided herein, absolutely,
unconditionally and irrevocably guarantees to the Secured Parties, the prompt
payment when due, whether at stated maturity, upon acceleration or otherwise,
and at all times thereafter, of the Secured Obligations and, subject to the
limitations in Section 9.03, all costs and expenses, including, without
limitation, subject to the limitations in Section 9.03, all court costs and
attorneys' and paralegals' fees (including allocated costs of in-house counsel
and paralegals) and expenses paid or incurred by the Administrative Agent, the
Issuing Banks and the Lenders in endeavoring to collect all or any part of the
Secured Obligations from, or in prosecuting any action against, any Borrower,
any Loan Guarantor or any other guarantor of all or any part of the Secured
Obligations (such costs and expenses, together with the Secured Obligations,
collectively the "Global DB2/ 48024258.7 218 Guaranteed Obligations" and (ii)
if any Global Guaranteed Obligation is or becomes unenforceable, invalid or
illegal, it will, as an independent and primary obligation, indemnify the
relevant Secured Party immediately on demand against any cost, loss or
liability it incurs as a result of any Loan Guarantor not paying any amount
which would, but for such unenforceability, invalidity or illegality, have
been payable by it under any Loan Document on the date when it would have been
due (provided that he amount payable by a Loan Guarantor under this indemnity
will not exceed the amount it would have had to pay if the amount claimed had
been recoverable on the basis of a guarantee); provided, however, that the
definition of "Global Guaranteed Obligations" shall not create any guarantee
by any Loan Guarantor of (or grant of security interest by any Loan Guarantor
to support, as applicable) any Excluded Swap Obligations of such Loan
Guarantor for purposes of determining any obligations of any Loan Guarantor).
Each Loan Guarantor further agrees that the Global Guaranteed Obligations may
be extended or renewed in whole or in part without notice to or further assent
from it (except as expressly provided in Section 9.02), and that it remains
bound upon its guarantee notwithstanding any such extension or renewal. All
terms of this Loan Guaranty apply to and may be enforced by or on behalf of
any domestic or foreign branch or Affiliate of any Lender that extended any
portion of the Global Guaranteed Obligations. Guaranty of Payment. This Loan
Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor
waives any right to require the Administrative Agent, any Issuing Bank or any
Lender to sue any Borrower or any Loan Guarantor obligated for all or any part
of the Guaranteed Obligations, or otherwise to enforce its payment against any
collateral securing all or any part of the Global Guaranteed Obligations. No
Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise provided
for herein, the obligations of each Loan Guarantor hereunder are unconditional
and absolute and not subject to any reduction, limitation, impairment or
termination for any reason (other than Payment in Full of the Global
Guaranteed Obligations), including: (i) any claim of waiver, release,
extension, renewal, settlement, surrender, alteration or compromise of any of
the Global Guaranteed Obligations, by operation of law or otherwise; (ii) any
change in the corporate existence, structure or ownership of any Borrower or
any other Loan Guarantor liable for any of the Global Guaranteed Obligations;
(iii) any insolvency, bankruptcy, reorganization or other similar proceeding
affecting any Loan Guarantor or their assets or any resulting release or
discharge of any obligation of any Loan Guarantor; or (iv) the existence of
any claim, setoff or other rights which any Loan Guarantor may have at any
time against any other Loan Guarantor, the Administrative Agent, any Issuing
Bank, any Lender or any other Person, whether in connection herewith or in any
unrelated transactions. (b) The obligations of each Loan Guarantor hereunder
are not subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Global Guaranteed Obligations or otherwise, or
any provision of applicable law or regulation purporting to prohibit payment
by any Loan Guarantor, of the Global Guaranteed Obligations or any part
thereof. (c) Further, the obligations of any Loan Guarantor hereunder are not
discharged or impaired or otherwise affected by: (i) the failure of the
Administrative Agent, any Issuing Bank or any Lender to assert any claim or
demand or to enforce any remedy with respect to all or any part of the Global
Guaranteed Obligations; (ii) any waiver or modification of or supplement to
any provision of any agreement relating to the Global Guaranteed Obligations;
(iii) any release, non- perfection or invalidity of any indirect or direct
security for the obligations of any Borrower for all or any part of the Global
Guaranteed Obligations or any obligations of any other Loan Guarantor liable
for any of the Global Guaranteed Obligations; (iv) any action or failure to
act by the
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DB2/ 48024258.7 219 Administrative Agent, any Issuing Bank or any Lender with
respect to any collateral securing any part of the Global Guaranteed
Obligations; or (v) any default, failure or delay, willful or otherwise, in
the payment or performance of any of the Global Guaranteed Obligations, or any
other circumstance, act, omission or delay that might in any manner or to any
extent vary the risk of such Loan Guarantor or that would otherwise operate as
a discharge of any Loan Guarantor as a matter of law or equity (other than
Payment in Full of the Global Guaranteed Obligations). Defenses Waived. To the
fullest extent permitted by applicable law, each Loan Guarantor hereby waives
any defense based on or arising out of any defense of any Borrower or any
other Loan Guarantor or the unenforceability of all or any part of the Global
Guaranteed Obligations from any cause, or the cessation from any cause of the
liability of any Borrower or any other Loan Guarantor, other than Payment in
Full of the Global Guaranteed Obligations. Without limiting the generality of
the foregoing, each Loan Guarantor irrevocably waives, to the fullest extent
permitted by applicable law, acceptance hereof, presentment, demand, protest
and, to the fullest extent permitted by law, any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any other Loan Guarantor or any other Person. Each Loan
Guarantor confirms that it is not a surety under any state law and shall not
raise any such law as a defense to its obligations hereunder. The
Administrative Agent may, at its election, foreclose on any Collateral held by
it by one or more judicial or nonjudicial sales, accept an assignment of any
such Global Collateral in lieu of foreclosure or otherwise act or fail to act
with respect to any collateral securing all or a part of the Global Guaranteed
Obligations, compromise or adjust any part of the Global Guaranteed
Obligations, make any other accommodation with any other Loan Guarantor or
exercise any other right or remedy available to it against any Loan Guarantor,
without affecting or impairing in any way the liability of such Loan Guarantor
under this Loan Guaranty except to the extent the Global Guaranteed
Obligations have been Paid in Full. To the fullest extent permitted by
applicable law, each Loan Guarantor waives any defense arising out of any such
election even though that election may operate, pursuant to applicable law, to
impair or extinguish any right of reimbursement or subrogation or other right
or remedy of any Loan Guarantor against any other Loan Guarantor or any
security. Rights of Subrogation. No Loan Guarantor will assert any right,
claim or cause of action, including, without limitation, a claim of
subrogation, contribution or indemnification, that it has against any other
Loan Guarantor or any collateral, until the Global Loan Parties and the Loan
Guarantors have fully performed all their obligations to the Administrative
Agent, the Issuing Bank and the Lenders. Reinstatement; Stay of Acceleration.
If at any time any payment of any portion of the Global Guaranteed Obligations
(including a payment effected through exercise of a right of setoff) is
rescinded, or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of any Borrower or otherwise (including pursuant
to any settlement entered into by a Secured Party in its discretion), each
Loan Guarantor's obligations under this Loan Guaranty with respect to that
payment shall be reinstated at such time as though the payment had not been
made and whether or not the Administrative Agent, the Issuing Banks and the
Lenders are in possession of this Loan Guaranty. If acceleration of the time
for payment of any of the Global Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of any Borrower, all such amounts
otherwise subject to acceleration under the terms of any agreement relating to
the Global Guaranteed Obligations shall nonetheless be payable by the Loan
Guarantors forthwith on demand by the Administrative Agent. Information. Each
Loan Guarantor assumes all responsibility for being and keeping itself
informed of the Borrowers' financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Global Guaranteed
Obligations and the nature, scope and extent of the risks that each Loan
Guarantor assumes and incurs under this Loan Guaranty, and agrees that none
DB2/ 48024258.7 220 of the Administrative Agent, any Issuing Bank or any
Lender shall have any duty to advise any Loan Guarantor of information known
to it regarding those circumstances or risks. Termination. Each of the Lenders
and the Issuing Banks may continue to make loans or extend credit to the
Borrowers based on this Loan Guaranty until five (5) days after it receives
written notice of termination from any Loan Guarantor. Notwithstanding receipt
of any such notice, each Loan Guarantor will continue to be liable to the
Lenders for any Global Guaranteed Obligations created, assumed or committed to
prior to the fifth (5th) day after receipt of the notice, and all subsequent
renewals, extensions, modifications and amendments with respect to, or
substitutions for, all or any part of such Global Guaranteed Obligations.
Nothing in this Section 10.08 shall be deemed to constitute a waiver of, or
eliminate, limit, reduce or otherwise impair any rights or remedies the
Administrative Agent or any Lender may have in respect of, any Default or
Event of Default that shall exist under clause (o) of Article VII hereof as a
result of any such notice of termination. Taxes. Each payment of the Global
Guaranteed Obligations will be made by each Loan Guarantor without withholding
for any Taxes, unless such withholding is required by law. If any Loan
Guarantor determines, in its sole discretion exercised in good faith, that it
is so required to withhold Taxes, then such Loan Guarantor may so withhold and
shall timely pay the full amount of withheld Taxes to the relevant
Governmental Authority in accordance with applicable law. If such Taxes are
Indemnified Taxes, then the amount payable by such Loan Guarantor shall be
increased as necessary so that, net of such withholding (including such
withholding applicable to additional amounts payable under this Section), the
Administrative Agent, any Lender or any Issuing Bank (as the case may be)
receives the amount it would have received had no such withholding been made.
Maximum Liability. Notwithstanding any other provision of this Loan Guaranty,
the amount guaranteed by each Loan Guarantor hereunder shall be limited to the
extent, if any, required so that its obligations hereunder shall not be
subject to avoidance under Section 548 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act, Uniform Voidable Transactions Act or similar statute or common
law. In determining the limitations, if any, on the amount of any Loan
Guarantor's obligations hereunder pursuant to the preceding sentence, it is
the intention of the parties hereto that any rights of subrogation,
indemnification or contribution which such Loan Guarantor may have under this
Loan Guaranty, any other agreement or applicable law shall be taken into
account. Contribution. (a) To the extent that any Loan Guarantor shall make a
payment under this Loan Guaranty (a "Global Guarantor Payment") which, taking
into account all other Global Guarantor Payments then previously or
concurrently made by any other Loan Guarantor, exceeds the amount which
otherwise would have been paid by or attributable to such Loan Guarantor if
each Loan Guarantor had paid the aggregate Global Guaranteed Obligations
satisfied by such Global Guarantor Payment in the same proportion as such Loan
Guarantor's "Global Allocable Amount" (as defined below) (as determined
immediately prior to such Global Guarantor Payment) bore to the aggregate
Global Allocable Amounts of each of the Loan Guarantors as determined
immediately prior to the making of such Global Guarantor Payment, then,
following indefeasible payment in full in cash of the Global Guarantor Payment
and the Payment in Full of the Global Guaranteed Obligations and the
termination of this Agreement, such Loan Guarantor shall be entitled to
receive contribution and indemnification payments from, and be reimbursed by,
each other Loan Guarantor for the amount of such excess, pro rata based upon
their respective Global Allocable Amounts in effect immediately prior to such
Global Guarantor Payment.
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DB2/ 48024258.7 221 (b) As of any date of determination, the "Global Allocable
Amount" of any Loan Guarantor shall be equal to the excess of the fair
saleable value of the property of such Loan Guarantor over the total
liabilities of such Loan Guarantor (including the maximum amount reasonably
expected to become due in respect of contingent liabilities, calculated,
without duplication, assuming each other Loan Guarantor that is also liable
for such contingent liability pays its ratable share thereof), giving effect
to all payments made by other Loan Guarantors as of such date in a manner to
maximize the amount of such contributions. (c) This Section 10.11 is intended
only to define the relative rights of the Loan Guarantors, and nothing set
forth in this Section 10.11 is intended to or shall impair the obligations of
the Loan Guarantors, jointly and severally, to pay any amounts as and when the
same shall become due and payable in accordance with the terms of this Loan
Guaranty. (d) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of the Loan Guarantor or
Loan Guarantors to which such contribution and indemnification is owing. (e)
The rights of the indemnifying Loan Guarantors against other Loan Guarantors
under this Section 10.11 shall be exercisable upon the Payment in Full of the
Global Guaranteed Obligations and the termination of this Agreement. Liability
Cumulative. The liability of each Global Loan Party as a Loan Guarantor under
this Article X is in addition to and shall be cumulative with all liabilities
of each Global Loan Party to the Administrative Agent, the Issuing Banks and
the Lenders under this Agreement and the other Loan Documents to which such
Global Loan Party is a party or in respect of any obligations or liabilities
of the other Loan Parties, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability
specifically provides to the contrary. Keepwell. Each Qualified ECP Guarantor
that is a Loan Guarantor under this Article X hereby jointly and severally
absolutely, unconditionally and irrevocably undertakes to provide such funds
or other support as may be needed from time to time by each other Global Loan
Party to honor all of its obligations under any Loan Guaranty in respect of a
Swap Obligation (provided, however, that each Qualified ECP Guarantor that is
a Loan Guarantor under this Article X shall only be liable under this Section
10.13 for the maximum amount of such liability that can be hereby incurred
without rendering its obligations under this Section 10.13 or otherwise under
any Loan Guaranty voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount). Except as
otherwise provided herein, the obligations of each Qualified ECP Guarantor
under this Section 10.13 shall remain in full force and effect until the
termination of all Swap Obligations. Each Qualified ECP Guarantor intends that
this Section 10.13 constitute, and this Section 10.13 shall be deemed to
constitute, a "keepwell, support, or other agreement" for the benefit of each
other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity
Exchange Act. ARTICLE XI The Borrower Representative Appointment; Nature of
Relationship. Insight is hereby appointed by each of the Borrowers as its
contractual representative (herein referred to as the "Borrower Representative")
hereunder and under each other Loan Document, and each of the Borrowers
irrevocably authorizes the Borrower Representative to act as the contractual
representative of such Borrower with the rights and duties expressly set forth
herein and in the other Loan Documents. The Borrower Representative agrees to
act as DB2/ 48024258.7 222 such contractual representative upon the express
conditions contained in this Article XI. The Administrative Agent and the
Lenders, and their respective officers, directors, agents or employees, shall
not be liable to the Borrower Representative or any Borrower for any action
taken or omitted to be taken by the Borrower Representative or the Borrowers
pursuant to this Section 11.01. Powers. The Borrower Representative shall have
and may exercise such powers under the Loan Documents as are specifically
delegated to the Borrower Representative by the terms of each thereof,
together with such powers as are reasonably incidental thereto. The Borrower
Representative shall have no implied duties to the Borrowers, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Borrower
Representative. Employment of Agents. The Borrower Representative may execute
any of its duties as the Borrower Representative hereunder and under any other
Loan Document by or through authorized officers. Successor Borrower
Representative. Upon the prior written consent of the Administrative Agent,
the Borrower Representative may resign at any time, such resignation to be
effective upon the appointment of a successor Borrower Representative. The
Administrative Agent shall give prompt written notice of such resignation to
the Lenders. Execution of Loan Documents; Borrowing Base Certificate. The
Borrowers hereby empower and authorize the Borrower Representative, on behalf
of the Borrowers, to execute and deliver to the Administrative Agent and the
Lenders the Loan Documents and all related agreements, certificates,
documents, or instruments as shall be necessary or appropriate to effect the
purposes of the Loan Documents, including, without limitation, the Borrowing
Base Certificates and the Compliance Certificates. Each Borrower agrees that
any action taken by the Borrower Representative or the Borrowers in accordance
with the terms of this Agreement or the other Loan Documents, and the exercise
by the Borrower Representative of its powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall
be binding upon all of the Borrowers. ARTICLE XII Collection Allocation
Mechanism (a) On the CAM Exchange Date, (i) the Revolving Commitments and FILO
Commitments shall automatically and without further act be terminated as
provided in Article VII and (ii) the Revolving Lenders shall automatically and
without further act be deemed to have made reciprocal purchases of interests
in the Designated Obligations such that, in lieu of the interests of each
Revolving Lender in the particular Designated Obligations that it shall own as
of such date and immediately prior to the CAM Exchange, such Revolving Lender
shall own an interest equal to such Revolving Lender's CAM Percentage in each
Designated Obligation. Each Lender, each person acquiring a participation from
any Lender as contemplated by Section 9.04 and each Borrower hereby consents
and agrees to the CAM Exchange. Each Borrower and each Revolving Lender agrees
from time to time to execute and deliver to the Administrative Agent all such
promissory notes and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective
interests and obligations of the Revolving Lenders after giving effect to the
CAM Exchange, and each Revolving Lender agrees to surrender any promissory
notes originally received by it hereunder to the Administrative Agent against
delivery of any promissory notes so executed and delivered; provided that the
failure of any Borrower to execute or deliver or of any Revolving Lender to
accept any such promissory note, instrument or document shall not affect the
validity or effectiveness of the CAM Exchange.
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DB2/ 48024258.7 223 (b) As a result of the CAM Exchange, on and after the CAM
Exchange Date, each payment received by the Administrative Agent pursuant to
any Loan Document in respect of the Designated Obligations shall be
distributed to the Revolving Lenders pro rata in accordance with their
respective CAM Percentages (to be redetermined as of each such date of payment
or distribution to the extent required by the clause (c) below). (c) In the
event that, after the CAM Exchange, the aggregate amount of the Designated
Obligations shall change as a result of the making of an LC Disbursement by an
Issuing Bank that is not reimbursed by the applicable Borrower, then (i) each
Revolving Lender shall, in accordance with Section 2.06(d), promptly purchase
from such Issuing Bank a participation in such LC Disbursement in the amount
of such Revolving Lender's Applicable Percentage of such LC Disbursement
(without giving effect to the CAM Exchange), (ii) the Administrative Agent
shall redetermine the CAM Percentages after giving effect to such LC
Disbursement and the purchase of participations therein by the applicable
Revolving Lenders, and the Revolving Lenders shall automatically and without
further act be deemed to have made reciprocal purchases of interests in the
Designated Obligations such that each Revolving Lender shall own an interest
equal to such Revolving Lender's CAM Percentage in each of the Designated
Obligations and (iii) in the event distributions shall have been made in
accordance with the preceding paragraph, the Revolving Lenders shall make such
payments to one another as shall be necessary in order that the amounts
received by them shall be equal to the amounts they would have received had
each LC Disbursement been outstanding immediately prior to the CAM Exchange.
Each such redetermination shall be binding on each of the Revolving Lenders
and their successors and assigns in respect of the Designated Obligations held
by such Persons and shall be conclusive absent manifest error. (d) Nothing in
this Article shall prohibit the assignment by any Revolving Lender of
interests in some but not all of the Designated Obligations held by it after
giving effect to the CAM Exchange; provided, that in connection with any such
assignment such Revolving Lender and its assignee shall enter into an
agreement setting forth their reciprocal rights and obligations in the event
of a redetermination of the CAM Percentages as provided in the immediately
preceding paragraph. [Remainder of Page Intentionally Left Blank; Signature
Pages Intentionally Omitted]
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EXHIBIT 99.1
FOR IMMEDIATE RELEASE N
ASDAQ
: N
SIT
INSIGHT ENTERPRISES, INC. ANNOUNCES PROPOSED $500 MILLION OFFERING OF SENIOR
NOTES
CHANDLER, AZ, May 15, 2024 - Insight Enterprises, Inc. (NASDAQ: NSIT)
(the "Company") announced today that it intends to offer, subject to market
and other conditions, $500 million aggregate principal amount of Senior Notes
due 2032 (the "notes"). The Company expects to use the net proceeds of the
offering to repay a portion of the outstanding borrowings under its senior
secured revolving credit facility due 2027 and, to the extent of any remaining
net proceeds, for general corporate purposes.
The notes will be senior unsecured obligations of the Company and will be
guaranteed on a senior unsecured basis by each of its existing and future
direct and indirect U.S. subsidiaries that is or becomes a guarantor or
borrower under its ABL facility, subject to certain exceptions.
The notes will be offered and sold in a transaction exempt from registration
under the Securities Act of 1933 (the "Securities Act") only to persons
reasonably believed to be qualified institutional buyers in reliance on Rule
144A under the Securities Act and to non-U.S. persons outside the United
States in reliance on Regulation S under the Securities Act.
This press release is for informational purposes only and is neither an offer
to sell nor a solicitation of an offer to buy any security, including the
notes, and shall not constitute an offer to sell or a solicitation of an offer
to buy, or a sale of, the notes or any other security in any jurisdiction in
which such offer, solicitation, or sale is unlawful. The notes have not been
and will not be registered under the Securities Act or any state securities
laws, and may not be offered or sold in the United States absent registration
under the Securities Act or an applicable exemption from the registration
requirements of the Securities Act and applicable state laws.
Forward-Looking Information
Certain statements in this release are "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements, including those with respect to the proposed offering, the
expected terms of the notes and the expected use of proceeds, are inherently
subject to risks and uncertainties, some of which cannot be predicted or
quantified. Future events and actual results could differ materially from
those set forth in, contemplated by, or underlying the forward-looking
statements. There can be no assurances that the results discussed by the
forward-looking statements will be achieved, and actual results may differ
materially from those set forth in the forward-looking statements. Some of the
important factors that could cause the Company's actual results to differ
materially from those projected in any forward-looking statements include, but
are not limited to, the following, which are discussed in the Company's
filings with the Securities and Exchange Commission (the "SEC"), including in
the "Risk Factors" sections of the Company's most recently filed periodic
reports on Form 10-K and Form 10-Q and subsequent filings with the SEC:
actions of our competitors, including manufacturers and publishers of products
we sell; our reliance on our partners for product availability, competitive
products to sell and marketing funds and purchasing incentives, which can
change significantly in the amounts made available and in the requirements
year over year; our ability to keep pace with rapidly evolving technological
advances and the evolving competitive marketplace; general economic
conditions, economic uncertainties and changes in geopolitical conditions,
including the possibility of a recession or a decline in market activity
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EXHIBIT 99.1
as a result of the ongoing conflicts in Ukraine and Gaza; changes in the IT
industry and/or rapid changes in technology; our ability to provide high
quality services to our clients; our reliance on independent shipping
companies; the risks associated with our international operations; supply
constraints for products; natural disasters or other adverse occurrences,
including public health issues such as pandemics or epidemics; disruptions in
our IT systems and voice and data networks; cyberattacks, outages, or
third-party breaches of data privacy as well as related breaches of government
regulations; intellectual property infringement claims and challenges to our
registered trademarks and trade names; potential liability and competitive
risk based on the development, adoption, and use of generative artificial
intelligence; legal proceedings, client audits and failure to comply with laws
and regulations; risks of termination, delays in payment, audits and
investigations related to our public sector contracts; exposure to changes in,
interpretations of, or enforcement trends related to tax rules and
regulations; our potential to draw down a substantial amount of indebtedness;
the conditional conversion feature of the Company's convertible notes, which
has been triggered, and may adversely affect the Company's financial condition
and operating results; the Company is subject to counterparty risk with
respect to certain hedge and warrant transactions entered into in connection
with the issuance of the Company's convertible notes; increased debt and
interest expense and the possibility of decreased availability of funds under
our financing facilities; possible significant fluctuations in our future
operating results as well as seasonality and variability in client demands;
potential contractual disputes with our clients and third-party suppliers; our
dependence on certain key personnel and our ability to attract, train and
retain skilled teammates; risks associated with the integration and operation
of acquired businesses, including achievement of expected synergies and
benefits; and future sales of the Company's common stock or equity-linked
securities in the public market could lower the market price for our common
stock.
Additionally, there may be other risks that are otherwise described from time
to time in the reports that the Company files with the SEC. Any forward-looking
statements in this release speak only as of the date on which they are made
and should be considered in light of various important factors, including the
risks and uncertainties listed above, as well as others. The Company assumes
no obligation to update, and, except as may be required by law, does not
intend to update, any forward-looking statements.
C RYAN MIYASATO
ONTACT
:
INVESTOR RELATIONS
T
EL
. 408.975.8507
E
MAIL
Ryan.Miyasato@insight.com
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