Execution Version 1 AMENDMENT NO. 1 (INCLUDING LIBOR HARDWIRE TRANSITION AMENDMENT) AMENDMENT NO. 1 (this “Agreement”), dated as of June 7, 2023, by and among CDW LLC, an Illinois limited liability company (the “US Borrower”), CDW FINANCE HOLDINGS LIMITED, a private limited company incorporated under the laws of England & Wales with company number 05872067, having its registered office address at 3rd Floor One New Change, London, United Kingdom, EC4M 9AF (the “UK Borrower” and, together with the US Borrower, the “Borrowers”), the Lenders party hereto (which shall constitute the Required Lenders), and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”). RECITALS WHEREAS, the Borrowers desire to amend Section 6.02 of that certain Credit Agreement, dated as of December 1, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement” and, the Existing Credit Agreement, as amended by this Agreement, the “Credit Agreement”), among the Borrowers, each Guarantor party thereto (together with the Borrowers, the “Loan Parties”) and the lenders from time to time party thereto (the “Lenders”) and the Administrative Agent, in accordance with Section 9.02(b) of the Existing Credit Agreement as further described in Section 2 below (the “Required Lender Amendments”); WHEREAS, Section 9.02(b) of the Existing Credit Agreement provides that the Administrative Agent, the Borrowers and those Lenders that constitute the Required Lenders may amend the Existing Credit Agreement for certain purposes; WHEREAS, the Borrowers, the Administrative Agent and the Lenders party hereto (which constitute the Required Lenders) have agreed, on the terms and conditions set forth herein, to the Required Lender Amendments; WHEREAS, certain loans, commitments and/or other extensions of credit (the “Loans”) under the Existing Credit Agreement denominated in dollars incur or are permitted to incur interest, fees or other amounts based on the London interbank offered rate as administered by the ICE Benchmark Administration (“LIBOR”) in accordance with the terms of the Existing Credit Agreement; and WHEREAS, pursuant to Section 2.11(c) of the Existing Credit Agreement, the Administrative Agent has determined in accordance with the Existing Credit Agreement that LIBOR for dollars should be replaced with an alternate rate of interest in accordance with the Existing Credit Agreement and, in connection therewith, the Administrative Agent (in consultation with the Company) has determined that certain Benchmark Replacement Conforming Changes are necessary or advisable and such changes shall become effective, on July 1, 2023, without any further consent of any other party to the Existing Credit Agreement or any other Loan Document (the “Conforming Changes Effective Date”); NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings given to such terms in the Credit Agreement.
2 2. Required Lender Amendments. (a) Section 6.02 of the Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), subject to the terms and conditions set forth in Section 3 below, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) as set forth below: “The Borrowers and the Subsidiary Guarantors will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:”. (b) Section 6.02(l) of the Existing Credit Agreement is, effective as of the Amendment No. 1 Effective Date (as defined below), subject to the terms and conditions set forth in Section 3 below, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth below: “Liens on cash securing amounts not to exceed the greater of $250,000,000 and 2% of Total Assets collected by the Company or any Subsidiary solely to the extent belonging to and owed to owned by leasing partners, finance companies or third parties, in each case, in connection with Bundled Solutions or consumer customer transaction financings in the ordinary course of business; provided that, in the case of any such Liens securing Indebtedness of the Company or any Subsidiary, such Indebtedness shall not exceed the greater of $250,000,000 and 2% of Total Assets;” 3. Conditions to Effectiveness of the Required Lender Amendments. The Required Lender Amendments shall become effective on the date (such date, if any, the “Amendment No. 1 Effective Date”) that the following conditions have been satisfied: (a) The Administrative Agent shall have received a counterpart of this Agreement (which, subject to Section 8, may include any Electronic Signatures transmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page) executed by the Borrowers, the Lenders party hereto constituting the Required Lenders and the Administrative Agent; and (b) All reasonable and documented out-of-pocket expenses incurred by the Administrative Agent (but limited to, in the case of legal fees, the reasonable and documented fees, charges and disbursements of a single external counsel) shall have been paid on or prior to the Amendment No. 1 Effective Date, in each case, to the extent invoiced at least three (3) Business Days prior to the Amendment No. 1 Effective Date. 4. Conforming Changes Amendments. Effective as of the Conforming Changes Effective Date, the Existing Credit Agreement (as amended by the Required Lender Amendments following the Amendment No. 1 Effective Date) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Exhibit A attached hereto.
3 5. Reaffirmation; Reference to and Effect on the Loan Documents. (a) From and after each of the Amendment No. 1 Effective Date and the Conforming Changes Effective Date, each reference in the Existing Credit Agreement to “hereunder,” “hereof,” “this Agreement” or words of like import and each reference in the other Loan Documents to “Credit Agreement,” “thereunder,” “thereof” or words of like import shall, unless the context otherwise requires, mean and be a reference to the Existing Credit Agreement as amended by the Required Lender Amendments and the Conforming Changes Amendments, as applicable. This Agreement is a Loan Document. (b) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. (c) In the event of any conflict between the terms of this Agreement and the terms of the Existing Credit Agreement or the other Loan Documents, the terms hereof shall control. 6. Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury Trial, Etc. SECTIONS 9.09 and 9.10 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS. 7. Amendments; Headings; Severability. This Agreement may not be amended nor may any provision hereof be waived except pursuant to a writing signed by the parties hereto. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting this Agreement. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. 8. Execution in Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement that is an Electronic Signature transmitted by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution”, “signed”, “signature”, “delivery”, and words of like import in or relating to this Agreement shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed .pdf or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. 9. Notices. All notices hereunder shall be given in accordance with the provisions of Section 9.01 of the Credit Agreement. 10. Transition to Adjusted Term SOFR Rate. Notwithstanding any other provision herein or in the Existing Credit Agreement, the parties hereto acknowledge and agree that Eurocurrency Loans (as defined in the Existing Credit Agreement) denominated in dollars that are outstanding immediately prior to the Conforming Changes Effective Date (the “Existing Eurocurrency Loans”) shall, after the Conforming Changes Effective Date, continue as Eurocurrency Loans denominated in dollars and interest thereon shall
4 continue to be calculated in a manner consistent with the interest calculated thereon prior to the Conforming Changes Effective Date until the end of the applicable Interest Period(s) currently in effect and applicable to such Existing Eurocurrency Loans; provided that, after the end of such applicable Interest Period(s) currently in effect and applicable to such Existing Eurocurrency Loans, the applicable Borrower shall be deemed to have selected a conversion of such Existing Eurocurrency Loans into Term Benchmark Loans with an Interest Period of one (1) month. [Remainder of Page Intentionally Left Blank; Signature Pages Follow]
[Signature Page to Amendment No. 1 (Revolver)] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. CDW LLC, as the US Borrower By: Name: Robert J. Welyki Title: Vice President CDW FINANCE HOLDINGS LIMITED, as the UK Borrower By: Name: Robert J. Welyki Title: Authorised Signatory
[Signature Page to Amendment No. 1 (Revolver)] MORGAN STANLEY BANK, N.A., as a Lender By: Name: Phillip Magdaleno Title: Authorized Signatory DocuSign Envelope ID: A12E0AD3-FECD-4A68-A5C9-C3077C051403
[Signature Page to Amendment No. 1 (Revolver)] CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender By: Name: Vince Parsons Title: Duly Authorized Signatory
[Signature Page to Amendment No. 1 (Revolver)] MIZUHO BANK, LTD., as a Lender By: Name: Tracy Rahn Title: Executive Director
[Signature Page to Amendment No. 1 (Revolver)] MUFG BANK, LTD., as a Lender By: Name: Matthew Antioco Title: Director
[Signature Page to Amendment No. 1 (Revolver)] The Bank of Nova Scotia, as a Lender By: Name: Luke Copley Title: Director
[Signature Page to Amendment No. 1 (Revolver)] BNP PARIBAS, as a Lender By: Name: Gregory Paul Title: Managing Director By: Name: Eve Ravelojaona Title: Director
[Signature Page to Amendment No. 1 (Revolver)] INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED., NEW YORK BRANCH, , as a Lender By:_________________________________ Name: Yu Wang Title: Director By:_________________________________ Name: Yuanyuan Peng Title: Executive Director
[Signature Page to Amendment No. 1 (Revolver)] PNC BANK, NATIONAL ASSOCIATION, as a Lender By: Name: Donna Benson Title: Assistant Vice President
Regions Bank, as a Lender By: Name: George Hunter Title: Vice President [Signature Page to Amendment No. 1 (Revolver)]
[Signature Page to Amendment No. 1 (Revolver)] SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: Name: Irlen Mak Title: Director
[Signature Page to Amendment No. 1 (Revolver)] THE HUNTINGTON NATIONAL BANK, as a Lender By: Name: Patrick McMullan Title: Director
[Signature Page to Amendment No. 1 (Revolver)] THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Lender By: Name: Kristen Posluszny Title: Authorized Signatory
[Signature Page to Amendment No. 1 (Revolver)] BMO Harris Bank, N.A., as a Lender By: Name: Joan Murphy Title: Managing Director
[Signature Page to Amendment No. 1 (Revolver)] The Northern Trust Company, as a Lender By: Name: Lisa DeCristofaro Title: SVP
Exhibit A (Attached hereto)
Exhibit AREVOLVING CREDIT AGREEMENTdated as ofDecember 1, 2021,amongCDW LLC,as US Borrower,CDW FINANCE HOLDINGS LIMITED,as UK Borrower,the GUARANTORS Party Hereto,the LENDERS Party Hereto,JPMORGAN CHASE BANK, N.A.,as the Administrative Agent,andJPMORGAN CHASE BANK, N.A., BOFA SECURITIES, INC.,MORGAN STANLEY SENIOR FUNDING, INC. and WELLS FARGO SECURITIES, LLC,as Joint Lead Arrangers and Bookrunners,andJPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A.,MORGAN STANLEY SENIOR FUNDING, INC. and WELLS FARGO BANK, N.A.,as Syndication Agents,andCAPITAL ONE, NATIONAL ASSOCIATION,MIZUHO BANK LTD. and MUFG BANK, LTD,as Documentation Agents
TABLE OF CONTENTS PageARTICLE IDefinitions 1SECTION 1.01. Defined Terms 1SECTION 1.02. Classification of Loans and Borrowings 4948SECTION 1.03. Terms Generally 49SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations 5049SECTION 1.05. Currency Translation 5251SECTION 1.06. Rounding 5251SECTION 1.07. Interest Rates 5251SECTION 1.08. Divisions 5352SECTION 1.09. Times of Day 5352SECTION 1.10. Timing of Payment and Performance 5352SECTION 1.11. Letter of Credit Amounts 5352SECTION 1.12. Leases 5352ARTICLE IIThe Credits 53SECTION 2.01. Commitments 53SECTION 2.02. Loans and Borrowings 5453SECTION 2.03. Requests for Borrowings 5554SECTION 2.04. Funding of Borrowings 5655SECTION 2.05. Interest Elections 5756SECTION 2.06. Termination and Reduction of Revolving Commitments 58SECTION 2.07. Repayment of Loans; Evidence of Debt 5958SECTION 2.08. Prepayment of Loans 6059SECTION 2.09. Fees 6160SECTION 2.10. Interest 6261SECTION 2.11. Inability to Determine Rates 6362SECTION 2.12. Increased Costs; Illegality 6665SECTION 2.13. Break Funding PaymentsLosses 6867SECTION 2.14. Taxes 6968SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs 7775SECTION 2.16. Mitigation Obligations; Replacement of Lenders 7877SECTION 2.17. Defaulting Lenders 7978SECTION 2.18. Certain Permitted Amendments 8280SECTION 2.19. Swingline Loans 8382SECTION 2.20. Letters of Credit 8584SECTION 2.21. Revolving Commitment Increase 8988SECTION 2.22. Floorplan Loans 9089-i-
PageARTICLE IIIRepresentations and Warranties 9493SECTION 3.01. Organization; Powers 94SECTION 3.02. Authorization; Enforceability 9594SECTION 3.03. Governmental Approvals; Absence of Conflicts 9594SECTION 3.04. Financial Condition; No Material Adverse Change 9594SECTION 3.05. Properties 9695SECTION 3.06. Litigation and Environmental Matters 9695SECTION 3.07. Compliance with Laws 96SECTION 3.08. Investment Company Status 9796SECTION 3.09. Taxes 9796SECTION 3.10. ERISA 9796SECTION 3.11. Solvency 9796SECTION 3.12. Disclosure 9897SECTION 3.13. Federal Reserve Regulations 9897SECTION 3.14. Use of Proceeds 9897SECTION 3.15. Ranking of Obligations 9897SECTION 3.16. Labor Matters 98SECTION 3.17. Subsidiaries 9998ARTICLE IVConditions 9998SECTION 4.01. Effective Date 9998SECTION 4.02. Each Revolving Credit Event 101100ARTICLE VAffirmative Covenants 101100SECTION 5.01. Financial Statements and Other Information 102101SECTION 5.02. Notices of Material Events 103102SECTION 5.03. Existence; Conduct of Business 103102SECTION 5.04. Payment of Taxes 104103SECTION 5.05. Maintenance of Properties and Rights 104103SECTION 5.06. Insurance 104103SECTION 5.07. Books and Records; Inspection and Audit Rights 104103SECTION 5.08. Compliance with Laws 105104SECTION 5.09. Use of Proceeds 105104SECTION 5.10. Guaranty 105104SECTION 5.11. Business of the Company and its Subsidiaries 106105SECTION 5.12. Centre of Main Interests 106105SECTION 5.13. Transactions with Affiliates 106105SECTION 5.14. Post-Closing Obligations 108107-ii-
PageARTICLE VINegative Covenants 108107SECTION 6.01. Limitation on Non-Guarantor Subsidiary Indebtedness and Issuance of Non-Guarantor Preferred Stock 108107SECTION 6.02. Liens 111SECTION 6.03. Sale/Leaseback Transactions 114113SECTION 6.04. Fundamental Changes 115114SECTION 6.05. Restrictive Agreements 115SECTION 6.06. Leverage Ratio 116115ARTICLE VIIEvents of Default 116SECTION 7.01. Events of Default; Remedies 116ARTICLE VIIIThe Administrative Agent 119118ARTICLE IXMiscellaneous 126125SECTION 9.01. Notices 126125SECTION 9.02. Waivers; Amendments 127SECTION 9.03. Expenses; Indemnity; Damage Waiver 130129SECTION 9.04. Successors and Assigns 132131SECTION 9.05. Survival 137136SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution 137136SECTION 9.07. Severability 138137SECTION 9.08. Right of Setoff 138137SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 139138SECTION 9.10. WAIVER OF JURY TRIAL 139SECTION 9.11. Headings 140139SECTION 9.12. Confidentiality 140139SECTION 9.13. Interest Rate Limitation 141140SECTION 9.14. USA PATRIOT Act Notice 141140SECTION 9.15. No Fiduciary Relationship 141140SECTION 9.16. Non-Public Information 141SECTION 9.17. Judgment Currency 142141SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 142ARTICLE XGuarantees 143142SECTION 10.01. The Guarantees 143142-iii-
PageSECTION 10.02. Guarantee Unconditional 143SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in CertainCircumstances 144SECTION 10.04. Subrogation 144SECTION 10.05. Waivers 145144SECTION 10.06. Limit on Liability 145144SECTION 10.07. Stay of Acceleration 145144SECTION 10.08. Benefit to Guarantors 145144SECTION 10.09. Guarantor Covenants 145144SCHEDULES:Schedule 1.01(a) — Disqualified InstitutionsSchedule 1.01(b)— Immaterial SubsidiariesSchedule 2.01 — CommitmentsSchedule 2.20 — Existing Letters of CreditSchedule 3.06 — LitigationSchedule 3.16 — Labor MattersSchedule 3.17 — SubsidiariesSchedule 5.14 — Post-Closing ObligationsSchedule 6.01 — Existing IndebtednessSchedule 6.02 — Existing LiensSchedule 6.03 — Certain Sale/Leaseback TransactionsSchedule 6.05 — Restrictive AgreementsSchedule 9.01 — Administrative Agent’s Office; Certain Addresses for NoticesEXHIBITS:Exhibit A — Form of Assignment and AssumptionExhibit B — Form of Borrowing RequestExhibit C — Form of Compliance CertificateExhibit D — Form of Interest Election RequestExhibit E — Form of Solvency CertificateExhibit F — Form of Additional Guarantor SupplementExhibit G — Form of Notice of Loan PrepaymentExhibit H — Form of Floorplan Inventory Financing AgreementExhibit I — Form of U.S. Tax Compliance Certificates-iv-
REVOLVING CREDIT AGREEMENT dated as of December 1, 2021, among CDW LLC, anIllinois limited liability company (the “US Borrower”), CDW FINANCE HOLDINGS LIMITED, aprivate limited company incorporated under the laws of England & Wales with company number05872067, having its registered office address at 3rd Floor One New Change, London, United Kingdom,EC4M 9AF (the “UK Borrower” and, together with the US Borrower, the “Borrowers”), theGUARANTORS party hereto, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as theAdministrative Agent, and WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC (“WellsFargo CDF”), as Floorplan Funding Agent (as defined herein).The parties hereto agree as follows: ARTICLE IDefinitionsSECTION 1.01. Defined Terms. As used in this Agreement, the following terms have themeanings specified below:“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or theLoans comprising such Borrowing, are bearing interest at a rate determined by reference to the AlternateBase Rate.“Accepting Lender” has the meaning specified in Section 2.18(a).“Acquired Debt” means, with respect to any specified Person:(1) Indebtedness of any other Person existing at the time such other Person is merged with orinto or became a Subsidiary of such specified Person, including Indebtedness incurred in connection with,or in contemplation of, or to provide all or any portion of the funds or credit support utilized inconnection with, such other Person merging with or into, or becoming a Subsidiary of, such specifiedPerson; provided, however, that any Indebtedness of such acquired Person that is redeemed, defeased,retired or otherwise repaid at the time of or immediately upon consummation of the transactions by whichsuch Person merges with or into, consolidates, amalgamates or otherwise combines with or becomes aSubsidiary of such Person shall not be considered to be Acquired Debt; and(2) Indebtedness secured by an existing Lien encumbering any asset acquired by such specifiedPerson. “Acquisition” means any acquisition, or series of related acquisitions (including pursuant to anyamalgamation, merger or consolidation), of property that constitutes (a) assets comprising all orsubstantially all of a division, business or operating unit or product line of any Person or (b) all orsubstantially all of the Equity Interests in a Person.“Acquisition Indebtedness” means any Indebtedness of the Company or any Subsidiary that hasbeen incurred for the purpose of financing, in whole or in part, an Acquisition and any relatedtransactions (including for the purpose of refinancing or replacing all or a portion of any related bridgefacilities or any pre-existing Indebtedness of the Persons or assets to be acquired); provided that either (x)the release of the proceeds thereof to the Company and the Subsidiaries is contingent upon thesubstantially simultaneous consummation of such Acquisition (and, if the definitive agreement for suchAcquisition is terminated prior to the consummation of such Acquisition, or if such Acquisition isotherwise not consummated by the date specified in the definitive documentation evidencing, governing-1-
the rights of the holders of or otherwise relating to such Indebtedness, then, in each case, such proceedsare, and pursuant to the terms of such definitive documentation are required to be, promptly applied tosatisfy and discharge all obligations of the Company and the Subsidiaries in respect of such Indebtedness)or (y) such Indebtedness contains a “special mandatory redemption” provision (or a similar provision) ifsuch Acquisition is not consummated by the date specified in the definitive documentation evidencing,governing the rights of the holders of or otherwise relating to such indebtedness (and, if the definitiveagreement for such Acquisition is terminated prior to the consummation of such Acquisition or suchAcquisition is otherwise not consummated by the date so specified, such Indebtedness is, and pursuant tosuch “special mandatory redemption” (or similar) provision is required to be, redeemed or otherwisesatisfied and discharged promptly after such termination or such specified date, as the case may be).“Additional Guarantor Supplement” has the meaning specified in Section 10.01.“Additional Lender” has the meaning assigned to such term in Section 2.21(a).“Adjusted Daily Simple RFR” means, (i) with respect to any Borrowing denominated in Sterling,an interest rate per annum equal to (a) the Daily Simple RFR for Sterling, plus (b)(1) to the extent theInterest Payment Date occurs every month, 0.00% and (2) to the extent the Interest Payment Date occursevery three months, 0.1193%, (ii) with respect to any RFR Borrowing of Swingline Loans denominatedin eurosEuros, an interest rate per annum equal to (a) the Daily Simple RFR for Euros, plus (b) 0.0243%;(iii) with respect to any RFR Borrowing of Swingline Loans denominated in Sterling, an interest rate perannum equal to (a) the Daily Simple RFR for Sterling, plus (b) 0.0168%, and (iv) with respect to anyRFR Borrowing denominated in Dollars, an interest rate per annum equal to (a) the Daily Simple RFR forDollars, plus (b) 0.100%; provided that if the Adjusted Daily Simple RFR Rate as so determined wouldbe less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of thisAgreement.“Adjusted EURIBOR Rate” means, with respect to any Term Benchmark Borrowingdenominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Ratefor such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the AdjustedEURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal tothe Floor for the purposes of this Agreement.“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any InterestPeriod, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a)the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided, however,that in no event shall the Adjusted LIBO Rate be less than zero.“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowingdenominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFRRate for such Interest Period, plus (b) 0.100%; provided that if the Adjusted Term SOFR Rate as sodetermined would be less than the Floor, such rate shall be deemed to be equal to the Floor for thepurposes of this Agreement.“Administrative Agent” means JPMorgan, in its capacity as the administrative agent hereunderand under the other Loan Documents, and its successors in such capacity as provided in Article VIII.“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by theAdministrative Agent. -2-
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK FinancialInstitution.“Affiliate” means, with respect to a specified Person, another Person that directly or indirectlyControls, is Controlled by or is under common Control with the Person specified.“Agent Fee Letter” means the Agency Fee Letter, dated December 1, 2021 (as amended fromtime to time), between the Company and JPMorgan Chase Bank, N.A.“Aggregate Revolving Commitment” means the sum of the Revolving Commitments of all theLenders.“Aggregate Revolving Exposure” means the sum of the Revolving Exposures of all the Lenders.“Agreement” means this Revolving Credit Agreement.“Agreed Currencies” means dollarsDollars and each Alternative Currency.“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the PrimeRate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00% perannum and (c) the Adjusted LIBOTerm SOFR Rate onfor a one month Interest Period as published twoU.S. Government Securities Business Days prior to such day (or if such day is not a U.S. GovernmentSecurities Business Day, the immediately preceding U.S. Government Securities Business Day) for adeposit in dollars with a maturity of one month plus 1.00% per annum; provided that if such rate shall beless than 1.00%, such rate shall be deemed to be 1.00%. For purposes of clause (c) abovefor the purposeof this definition, the Adjusted LIBOTerm SOFR Rate on any day shall be based on the LIBO ScreenRate on such day for a deposit in dollars with a maturity of one monthTerm SOFR Reference Rate atapproximately 11:005:00 a.m., LondonChicago time, on such day (or any amended publication time forthe Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFRReference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate,the Federal Funds Effective Rate or the Adjusted LIBOTerm SOFR Rate shall be effective from andincluding the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or theAdjusted LIBOTerm SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternaterate of interest pursuant to Section 2.11 hereof (for the avoidance of doubt, only until the BenchmarkReplacement has been determined pursuant to Section 2.11(b)), then the Alternate Base Rate shall be thegreater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For theavoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than1.00%, such rate shall be deemed to be 1.00% for purposes of the Agreement.“Alternative Currency” means Sterling and Euros.“Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, asamended, 15 U.S.C. §§ 78dd-1, et seq., the Bribery Act 2010 of the United Kingdom, and all other laws,rules, and regulations of any jurisdiction applicable to the Company or any of its Affiliates from time totime concerning or relating to bribery, corruption or money laundering.“Applicable Creditor” has the meaning set forth in Section 9.17.“Applicable Floorplan Loan Exposure Fee Percentage” means, with respect to the Floorplan LoanExposure Fee contemplated in Section 2.09(e), the applicable percentage per annum set forth below,-3-
based upon average daily Floorplan Utilization for the most recent calendar quarter, as calculated by theAdministrative Agent as of the last day of such calendar quarter:Average Daily Floorplan Utilization Applicable Floorplan Loan Exposure Fee Percentage> 30% 0.750%≤ 30% 0.625%“Applicable Issuing Bank” means, with respect to any Letter of Credit, the Issuing Bank that hasissued or shall issue such Letter of Credit, and with respect to any LC Disbursement, the Issuing Bankthat has made such LC Disbursement.“Applicable Rate” means, for any day, with respect to any Loan that is an ABR Loan, aEurocurrency Loan, a RFR Loan or a Term Benchmark Loan or with respect to the RevolvingCommitment Fees, the applicable rate per annum set forth below under the applicable caption “ABRSpread”, “Eurocurrency Spread”, “Term Benchmark Spread” or “RFR Spread” or “RevolvingCommitment Fee Rate”, as the case may be, based upon the Senior Unsecured Ratings in effect on suchdate. Senior Unsecured Ratings(S&P/Moody’s/Fitch) ABR Spread(per annum) EurocurrencySpread, RFRSpread or TermBenchmark Spread(per annum) RevolvingCommitment FeeRate(per annum)Level 1BBB+/Baa1/BBB+ or above 0.000% 1.000% 0.125%Level 2BBB/Baa2/BBB 0.125% 1.125% 0.150%Level 3BBB-/Baa3/BBB- 0.250% 1.250% 0.175%Level 4BB+/Ba1/BB+ 0.625% 1.625% 0.225%Level 5BB/Ba2/BB or below 0.750% 1.750% 0.250%For purposes of the foregoing, (a) if any Rating Agency shall not have in effect a Senior UnsecuredRating (other than by reason of the circumstances referred to in the last sentence of this paragraph), then(i) if only one Rating Agency shall not have in effect a Senior Unsecured Rating, the Level then in effectshall be determined by reference to the remaining two effective Senior Unsecured Ratings, (ii) if twoRating Agencies shall not have in effect a Senior Unsecured Rating, one of such Rating Agencies shall bedeemed to have in effect a Senior Unsecured Rating in Level 5 and the Level then in effect shall bedetermined by reference to such deemed Senior Unsecured Rating and the remaining effective SeniorUnsecured Rating and (iii) if no Rating Agency shall have in effect a Senior Unsecured Rating, then-4-
Level 5 shall apply, (b) if the Senior Unsecured Ratings in effect or deemed to be in effect shall fallwithin different Levels, then (i) if three Senior Unsecured Ratings are in effect, then either (x) if two ofthe three Senior Unsecured Ratings are in the same Level, such Level shall apply or (y) if all three of theSenior Unsecured Ratings are in different Levels, then the Level corresponding to the middle SeniorUnsecured Rating shall apply and (ii) if only two Senior Unsecured Ratings are in effect or deemed to bein effect, the Level then in effect shall be based on the higher of the two Senior Unsecured Ratings unlessone of the two Senior Unsecured Ratings is two or more Levels lower than the other, in which case theLevel then in effect shall be determined by reference to the Level next below that of the higher of the twoSenior Unsecured Ratings, and (c) if the Senior Unsecured Ratings established or deemed to have beenestablished by any Rating Agency shall be changed (other than as a result of a change in the rating systemof such Rating Agency), such change shall be effective as of the date on which it is first publiclyannounced by such Rating Agency, irrespective of when notice of such change shall have been furnishedby the Company to the Administrative Agent and the Lenders pursuant to this Agreement or otherwise.Each change in the Applicable Rate for any change in Senior Unsecured Ratings shall apply during theperiod commencing on the effective date of such change and ending on the date immediately precedingthe effective date of the next such change. If the rating system of any Rating Agency shall change, or ifany Rating Agency shall cease to be in the business of rating corporate debt obligations, the Companyand the Lenders shall negotiate in good faith to amend this definition to reflect such changed ratingsystem or the unavailability of a Senior Unsecured Rating from such Rating Agency and, pending theeffectiveness of any such amendment, the Applicable Rate shall be determined by reference to the SeniorUnsecured Rating of such Rating Agency most recently in effect prior to such change or cessation.“Approved Fund” means any Person (other than a natural person) that is engaged in making,purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinarycourse of its activities and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or(c) an entity or an Affiliate of an entity that administers or manages a Lender.“Arrangers” means JPMorgan, BofA Securities, Inc., Morgan Stanley Senior Funding, Inc. andWells Fargo Securities, LLC in their capacities as joint lead arrangers and bookrunners for the RevolvingFacility.“Assignment and Assumption” means an assignment and assumption entered into by a Lenderand an Eligible Assignee, with the consent of any Person whose consent is required by Section 9.04, andaccepted by the Administrative Agent, in the form of Exhibit A or any other form approved by theAdministrative Agent.“Assumption Agreement” has the meaning set forth in Section 6.04(a).“Attributable Debt” means, with respect to any Sale/Leaseback Transaction, the present value(discounted at the rate set forth or implicit in the terms of the lease included in such Sale/LeasebackTransaction) of the total obligations of the lessee for rental payments (other than amounts required to bepaid on account of taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costsand other items that do not constitute payments for property rights) during the remaining term of the leaseincluded in such Sale/Leaseback Transaction (including any period for which such lease has beenextended). In the case of any lease that is terminable by the lessee upon payment of a penalty, theAttributable Debt shall be the lesser of the Attributable Debt determined assuming termination on the firstdate such lease may be terminated (in which case the Attributable Debt shall also include the amount ofthe penalty, but no rent shall be considered as required to be paid under such lease subsequent to the firstdate upon which it may be so terminated) or the Attributable Debt determined assuming no suchtermination. -5-
“Available Revolving Commitment” means, at any time, the aggregate Revolving Commitmentsthen in effect minus the sum of (a) the outstanding principal amount of Loans (but excluding SwinglineLoans) of all Lenders at such time plus (b) the LC Exposure of all Lenders at such time plus (c) theFloorplan Loan Exposure in effect at such time.“Available Tenor” means, as of any date of determination and with respect to the then-currentBenchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or componentthereof) or payment period for interest calculated with reference to such Benchmark (or componentthereof), as applicable, that is or may be used for determining the length of an Interest Period for any termrate or otherwise, for determining any frequency of making payments of interest calculated pursuant tothis Agreement as of such date and not including, for the avoidance of doubt, any tenor for suchBenchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section2.11. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by theapplicable Resolution Authority in respect of any liability of an Affected Financial Institution.“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, theimplementing law, regulation rule or requirement for such EEA Member Country from time to timewhich 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” shall mean any amount payable by any Recipient or any of its Affiliates on thebasis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities orminimum regulatory capital or any combination thereof, including, without limitation, the UK bank levyas set out in the Finance Act 2011, and any other levy or tax in any jurisdiction levied on a similar basisor for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in theEuropean Commission consultation paper on financial sector taxation dated 22 February 2011 or theSingle Resolution Mechanism established by EU Regulation n 806/2014 of July 15, 2014 which has beenenacted or which has been formally announced as proposed as at the date of this Agreement or (ifapplicable) in respect of any new Lender, as at the date that new Lender accedes as a new Lender to thisAgreement.“Bankruptcy Event” means, with respect to any Person, that such Person has become the subjectof a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee,administrator, custodian, assignee for the benefit of creditors or similar Person charged with thereorganization or liquidation of its business appointed for it, or, in the good faith determination of theAdministrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of oracquiescence in, any such proceeding or appointment (unless, in the case of any such Person that is aLender hereunder, a Borrower, the Administrative Agent, the Issuing Banks, the Swingline Lender andthe Floorplan Funding Agent shall be satisfied that such Lender intends, and has all approvals required toenable it, to continue to perform its obligations as a Lender hereunder); provided that a Bankruptcy Eventshall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, insuch Person by a Governmental Authority; provided, however, that such ownership interest does notresult in or provide such Person with immunity from the jurisdiction of courts within the United States ofAmerica or from the enforcement of judgments or writs of attachment on its assets or permit such Person-6-
(or such Governmental Authority) to reject, repudiate, disavow or disaffirm any agreements made by suchPerson. “Benchmark” means, initially, with respect to any (i) EurocurrencyTerm Benchmark Loandenominated in dollarsDollars, the Adjusted LIBOTerm SOFR Rate, (ii) RFR Loan denominated inDollars, the Daily Simple SOFR, (iii) RFR Loan denominated in Sterling, the applicable Relevant Ratefor Sterling, or (iiiiv) Term Benchmark Loan denominated in Euros, the applicable Relevant Rate forEuros; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date haveoccurred with respect to the applicable Relevant Rate or the then-current Benchmark for such AgreedCurrency, then “Benchmark” means the applicable Benchmark Replacement to the extent that suchBenchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.11.“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in theorder below that can be determined by the Administrative Agent for the applicable BenchmarkReplacement Date:(1) in the case of any Loan denominated in Dollars, the Adjusted Term SOFR Rate;(21) in the case of any Loan denominated in Dollars, the Adjusted Daily Simple RFR;(32) in the case of any Loan denominated in Euros, the sum of (a) the Daily SimpleESTR and (b) the related Benchmark Replacement Adjustment; or(43) the sum of: (a) the alternate benchmark rate that has been selected by theAdministrative Agent and the applicable Borrower as the replacement for the then-currentBenchmark for the applicable Corresponding Tenor giving due consideration to (i) any selectionor recommendation of a replacement benchmark rate or the mechanism for determining such arate by the Relevant Governmental Body or (ii) any evolving or then-prevailing marketconvention for determining a benchmark rate as a replacement for the then-current Benchmark forsyndicated credit facilities denominated in the applicable Agreed Currency at such time in theUnited States and (b) the related Benchmark Replacement Adjustment;.If the Benchmark Replacement as determined pursuant to clause (1), (2), or (3) or (4) abovewould be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposesof 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 andAvailable Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, ormethod for calculating or determining such spread adjustment (which may be a positive or negative valueor zero) that has been selected by the Administrative Agent and the Company for the applicableCorresponding Tenor giving due consideration to (i) any selection or recommendation of a spreadadjustment, or method for calculating or determining such spread adjustment, for the replacement of suchBenchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Bodyon the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing marketconvention for determining a spread adjustment, or method for calculating or determining such spreadadjustment, for the replacement of such Benchmark with the applicable Unadjusted BenchmarkReplacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.“Benchmark Replacement Conforming Changes” means, with respect to any BenchmarkReplacement and/or any Term Benchmark Loan, any technical, administrative or operational changes-7-
(including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” thedefinition of “U.S. Government Securities Business Day,” the definition of “RFR Business Day,” thedefinition of “Interest Period,” timing and frequency of determining rates and making payments ofinterest, timing of borrowing requests or prepayment, conversion or continuation notices, length oflookback periods, the applicability of breakage provisions, and other technical, administrative oroperational matters) that the Administrative Agent (in consultation with the Company) decides may beappropriate to reflect the adoption and implementation of such Benchmark and to permit theadministration thereof by the Administrative Agent in a manner substantially consistent with marketpractice (or, if the Administrative Agent decides (in consultation with the Company) that adoption of anyportion of such market practice is not administratively feasible or if the Administrative Agent determinesthat no market practice for the administration of such Benchmark exists, in such other manner ofadministration as the Administrative Agent decides (in consultation with the Company) is reasonablynecessary in connection with the administration of this Agreement and the other Loan Documents).“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur ofthe following events with respect to such then-current Benchmark:(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”,the later of (a) the date of the public statement or publication of information referenced thereinand (b) the date on which the administrator of such Benchmark (or the published component usedin the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors ofsuch Benchmark (or such component thereof); or(2) in the case of clause (3) of the definition of “Benchmark Transition Event”, thefirst date on which such Benchmark (or the published component used in the calculation thereof)has been determined and announced by the regulatory supervisor for the administrator of suchBenchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publicationreferenced in such clause (c3) and even if any Available Tenor of such Benchmark (or suchcomponent thereof) continues to be provided on such date.For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Dateoccurs on the same day as, but earlier than, the Reference Time in respect of any determination, theBenchmark Replacement Date will be deemed to have occurred prior to the Reference Time for suchdetermination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case ofclause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events setforth therein with respect to all then-current Available Tenors of such Benchmark (or the publishedcomponent used in the calculation thereof).“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one ormore of the following events with respect to such then-current Benchmark:(1) a public statement or publication of information by or on behalf of the administratorof such Benchmark (or the published component used in the calculation thereof) announcing thatsuch administrator has ceased or will cease to provide all Available Tenors of such Benchmark(or such component thereof), permanently or indefinitely, provided that, at the time of suchstatement or publication, there is no successor administrator that will continue to provide anyAvailable Tenor of such Benchmark (or such component thereof);(2) a public statement or publication of information by the regulatory supervisor for theadministrator of such Benchmark (or the published component used in the calculation thereof),-8-
the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bankfor the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdictionover the administrator for such Benchmark (or such component), a resolution authority withjurisdiction over the administrator for such Benchmark (or such component) or a court or anentity 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 (orsuch component) has ceased or will cease to provide all Available Tenors of such Benchmark (orsuch component thereof) permanently or indefinitely; provided that, at the time of such statementor publication, there is no successor administrator that will continue to provide any AvailableTenor of such Benchmark (or such component thereof); or(3) a public statement or publication of information by the regulatory supervisor for theadministrator of such Benchmark (or the published component used in the calculation thereof)announcing that all Available Tenors of such Benchmark (or such component thereof) are nolonger, or as of a specified future date will no longer be, representative.For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurredwith respect to any Benchmark if a public statement or publication of information set forth above hasoccurred with respect to each then-current Available Tenor of such Benchmark (or the publishedcomponent used in the calculation thereof).“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 definitionhas occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark forall purposes hereunder and under any Loan Document in accordance with Section 2.11 and (y) ending atthe time that a Benchmark Replacement has replaced such then-current Benchmark for all purposeshereunder and under any Loan Document in accordance with Section 2.11.“Beneficial Ownership Certification” means a certification regarding beneficial ownership asrequired by the Beneficial Ownership Regulation.“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subjectto Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Personwhose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISAor Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.“Board of Governors” means the Board of Governors of the Federal Reserve System of theUnited States of America.“Borrowers” has the meaning assigned to such term in the preamble.“Borrowing” means (a) Loans of the same Class and Type made, converted or continued on thesame date and, in the case of Eurocurrency Loans and Term Benchmark Loans, as to which a singleInterest Period is in effect and (b) a Swingline Loan.“Borrowing Request” means a request by the Company for a Borrowing in accordance withSection 2.03, which shall be, in the case of any such written request, in the form of Exhibit B or any otherform approved by the Administrative Agent. -9-
“Bundled Solutions” means sales and/or leasing by the Company, its Subsidiaries and thirdparties in the ordinary course of business of equipment together with items invoiced on a subscriptionbasis including (but not limited to) software and services relating to such equipment provided by theCompany, its Subsidiaries and such third parties under a combined invoice pursuant to which theproceeds from such invoice (including proceeds belonging to third parties) (a) are collected by theCompany, its Subsidiaries or such third parties and comingled with other collections of the Company, itsSubsidiaries or such third parties, (b) are directed into a segregated deposit account or trust account or (c)are collected pursuant to an arrangement with a financial institution or such third party.“Business Day” means, as applicable, (a) any day that is not a Saturday, Sunday or other day onwhich commercial banks in New York City are authorized or required by law to remain closed, (b) inrelation to Loans and Letters of Credit to the UK Borrower, any day (other than a Saturday or a Sunday)on which banks are open for business in London, (c) in relation to Loans denominated in Euros and inrelation to the calculation or computation of EURIBOR, any day which is a TARGET Day, (d) in relationto RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any suchRFR Loan, or any other dealings in the applicable Agreed Currency of such RFR Loan, any such day thatis only an RFR Business Day and (e) in relation to RFR Loans bearing interest based on Daily SimpleESTR and in relation to the calculation or computation of ESTR, any day which is a TARGET Day;provided that, when used in connection with a Eurocurrency Loan, the term “Business Day” shall alsoexclude any day on which banks are not open for dealings in dollar deposits in the international interbankmarket.in addition to the foregoing, a Business Day shall be (i) in relation to RFR Loans and any interestrate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any otherdealings of such RFR Loan, and (ii) in relation to Loans referencing the Adjusted Term SOFR Rate andany interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencingthe Adjusted Term SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFRRate, any such day that is only a U.S. Government Securities Business Day.“Canadian dollarsDollars” or “C$” means dollars in lawful currency of Canada.“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent orother amounts under any lease of (or other arrangement conveying the right to use) real or personalproperty, or a combination thereof, which obligations are required to be classified and accounted for ascapital leases on a balance sheet of such Person under GAAP; and the amount of such obligations shall bethe capitalized amount thereof determined in accordance with GAAP. For purposes of Section 6.02, aCapital Lease Obligation shall be deemed to be secured by a Lien on the property being leased and suchproperty shall be deemed to be owned by the lessee.“Cash Equivalents” means:(a) dollars,Dollars, Canadian Dollars, Euros and Sterling;(b) in the case of the US Borrower or a Subsidiary, such local currencies held bythem from time to time in the ordinary course of business;(c) securities issued or directly and fully and unconditionally guaranteed or insuredby the U.S. government or any agency or instrumentality thereof the securities of which areunconditionally guaranteed as a full faith and credit obligation of such government withmaturities of 24 months or less from the date of acquisition;(d) certificates of deposit, time deposits and eurodollar time deposits with maturitiesof one year or less from the date of acquisition, bankers’ acceptances with maturities not-10-
exceeding one year and overnight bank deposits, in each case with any commercial bank havingcapital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (orthe U.S. dollar equivalentDollar Equivalent as of the date of determination) in the case of non-U.S. banks;(e) repurchase obligations for underlying securities of the types described inclauses (c) and (d) entered into with any financial institution meeting the qualifications specifiedin clause (d) above;(f) commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and ineach case maturing within 24 months after the date of creation thereof;(g) marketable short-term money market and similar securities having a rating of atleast P-1 or A-1 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s norS&P shall be rating such obligations, an equivalent rating from another Rating Agency) and ineach case maturing within 24 months after the date of creation thereof;(h) investment funds investing 95% of their assets in securities of the types describedin clauses (a) through (g) above;(i) readily marketable direct obligations issued by any state, commonwealth orterritory of the United States or any political subdivision or taxing authority thereof having anInvestment Grade Rating from either Moody’s or S&P with maturities of 24 months or less fromthe date of acquisition;(j) [Intentionally Reserved];(k) Investments with average maturities of 12 months or less from the date ofacquisition in money market funds rated AAA (or the equivalent thereof) or better by S&P or Aaa(or the equivalent thereof) or better by Moody’s;(l) shares of investment companies that are registered under the InvestmentCompany Act of 1940 and substantially all the investments of which are one or more of the typesof securities described in clauses (a) through (k) above; and(m) in the case of any Foreign Subsidiary, investments of comparable tenure andcredit quality to those described in the foregoing clauses (a) through (l) or other high quality shortterm in-vestments, in each case, customarily utilized in countries in which such ForeignSubsidiary operates for short term cash management purposes.Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated incurrencies other than those set forth in clauses (a) and (b) above, provided that such amounts areconverted into any currency listed in clause (a) and (b) as promptly as practicable and in any event withinten Business Days following the receipt of such amounts.“Cash Management Obligations” means Obligations under any facilities or services related tocash management, including treasury, depository, overdraft, credit or debit card, automated clearinghouse fund transfer services, purchase card, electronic funds transfer (including non-card e-payables services) and other cash management arrangements and commercial credit card and merchantcard services. -11-
“Cash Netting Amount” means the aggregate amount of Cash and Cash Equivalents (other thanRestricted Cash), in each case, included on the consolidated balance sheet of the US Borrower and itsSubsidiaries as of such date in an aggregate amount not to exceed $250.0 million.“Cash Pooling Arrangements” means a deposit account arrangement among a single depositoryinstitution, the US Borrower and one or more Foreign Subsidiaries involving the pooling of cash depositsin and overdrafts in respect of one or more deposit accounts (each located outside of the United States andany States and territories thereof) with such institution by the US Borrower and such Foreign Subsidiariesfor cash management purposes.“CFC” means a Foreign Subsidiary of the US Borrower that is a “controlled foreign corporation”within the meaning of Section 957 of the Code.“CBR Loan” means a Loan that bears interest at a rate determined by reference to the CentralBank Rate.“CBR Spread” means the Applicable Rate, applicable to such Loan that is replaced by a CBRLoan. “Central Bank Rate” means, (A) the greater of (i) for any Loan denominated in (a) Sterling, theBank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or anysuccessor thereto) from time to time and (b) Euro, one of the following three rates as may be selected bythe Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancingoperations of the European Central Bank (or any successor thereto), or, if that rate is not published, theminimum bid rate for the main refinancing operations of the European Central Bank (or any successorthereto), 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), aspublished by the European Central Bank (or any successor thereto) from time to time or (3) the rate forthe deposit facility of the central banking system of the Participating Member States, as published by theEuropean Central Bank (or any successor thereto) from time to time and (ii) the Floor; plus (B) theapplicable Central Bank Rate Adjustment.“Central Bank Rate Adjustment” means, for any day, for any Loan denominated in (a) Euro, arate equal to the difference (which may be a positive or negative value or zero) of (i) the average of theAdjusted EURIBOR Rate for the five most recent Business Days preceding such day for which theEURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowestAdjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the CentralBank Rate in respect of Euro in effect on the last Business Day in such period and (b) Sterling, a rateequal to the difference (which may be a positive or negative value or zero) of (i) the average of AdjustedDaily Simple RFR for Sterling Borrowings for the five most recent RFR Business Days preceding suchday for which SONIA was available (excluding, from such averaging, the highest and the lowest suchAdjusted Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) theCentral Bank Rate in respect of Sterling in effect on the last RFR Business Day in such period. Forpurposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) ofthe definition of such term and (y) each of the EURIBOR Rate on any day shall be based on theEURIBOR Screen Rate on such day at approximately the time referred to in the definition of such termfor deposits in the applicable Agreed Currency for a maturity of one month.A “Change in Control” shall be deemed to have occurred if (a) any Person or group of Persons(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 as in effect onthe date hereof, but excluding any employee benefit plan of the US Borrower and its Subsidiaries, and-12-
any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any suchplan), shall have acquired beneficial ownership (within the meaning of Section 13(d) or 14(d) of theExchange Act and the applicable rules and regulations thereunder) of more than 40% of the outstandingVoting Shares in the Company, (b) a “change in control” (or similar event, however denominated), underand as defined in any indenture, credit agreement or other agreement or instrument evidencing, governingthe rights of the holders of or otherwise relating to any Material Indebtedness of the Company or anySubsidiary, shall have occurred with respect to the Company, (c) Holdings shall directly or indirectlyown, beneficially and of record, less than 100% of the issued and outstanding Equity Interests of the USBorrower or (d) at any time prior to the UK Commitment Termination Date, US Borrower shall directlyor indirectly own, beneficially and of record, less than 100% of the issued and outstanding EquityInterests of the UK Borrower.“Change in Law” means the occurrence, after the date of this Agreement, of any of the following:(a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,regulation or treaty or in the administration, interpretation, implementation or application thereof by anyGovernmental Authority or (c) the making or issuance of any request, rule, guideline or directive(whether or not having the force of law) by any Governmental Authority; provided that, notwithstandinganything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act andall requests, rules, guidelines or directives thereunder or issued in connection therewith or in theimplementation thereof and (ii) all requests, rules, guidelines or directives promulgated by the Bank forInternational Settlements, the Basel Committee on Banking Supervision (or any successor or similarauthority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall ineach case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated orissued or implemented.“Charges” has the meaning set forth in Section 9.13.“Class”, when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, orthe Loans comprising such Borrowing, are Global Dollar Loans, Dollar Tranche Revolving Loans orMulticurrency Tranche Revolving Loans, (b) any Commitment, refers to whether such Commitment is aDollar Tranche Revolving Commitment or Multicurrency Tranche Revolving Commitment and (c) anyLender, refers to whether such Lender has a Loan or Commitment of a particular Class.“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited asadministrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successoradministrator).“Code” means the U.S. Internal Revenue Code of 1986, as amended.“Communications” means, collectively, any notice, demand, communication, information,document or other material provided by or on behalf of the Company pursuant to any Loan Document orthe transactions contemplated therein that is distributed to the Administrative Agent or any Lender bymeans of electronic communications pursuant to Section 9.01, including through the Platform.“Company” means CDW LLC, an Illinois limited liability company, and any successor theretopermitted under Section 6.04(a)(ii)(B).“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit Cor any other form approved by the Administrative Agent in its reasonable discretion.-13-
“Consolidated Depreciation and Amortization Expense” means, with respect to any Person, forany period, the total amount of depreciation and amortization expense, including the amortization ofdeferred financing fees and amortization of unrecognized prior service costs and actuarial gains and lossesrelated to pensions and other post-employment benefits, of such Person and its Subsidiaries for suchperiod on a consolidated basis and otherwise determined in accordance with GAAP. “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated NetIncome of such Person and its Subsidiaries for such period(a) increased (without duplication) by:(i) provision for taxes based on income or profits or capital (or anyalternative tax in lieu thereof), including, without limitation, payroll taxes related tocompensation, foreign, state, franchise and similar taxes and foreign withholding taxes ofsuch Person and such subsidiaries paid or accrued during such period deducted (and notadded back) in computing Consolidated Net Income, including payments made pursuantto any tax sharing agreements or arrangements among the US Borrower, its Subsidiariesand any direct or indirect parent company of the US Borrower (so long as such taxsharing payments are attributable to the operations of the US Borrower and itsSubsidiaries); plus(ii) Fixed Charges of such Person and such subsidiaries for such period tothe extent the same was deducted (and not added back) in calculating such ConsolidatedNet Income; plus(iii) Consolidated Depreciation and Amortization Expense of such Person andsuch subsidiaries for such period to the extent the same were deducted (and not addedback) in computing Consolidated Net Income; plus(iv) any fees, costs, commissions, expenses or other charges (other thanConsolidated Depreciation and Amortization Expense but including the effects ofpurchase accounting adjustments) related to the Transactions, any issuance of EquityInterests, Investment, acquisition, disposition, dividend or similar Restricted Payment,recapitalization or the incurrence, repayment, amendment or modification ofIndebtedness permitted to be incurred under this Agreement (including a refinancingthereof) and any charges or non-recurring merger costs incurred during such period (ineach case whether or not successful), including (x) any expensing of bridge, commitmentor other financing fees, (y) any such fees, costs (including call premium), commissions,expenses or other charges related to any amendment or other modification of theRevolving Facility, the Term Loan Facility and the Senior Notes and (z) commissions,discounts, yield and other fees and charges (including any interest expense) related to anyReceivables Facility, and, in each case, deducted (and not added back) in computingConsolidated Net Income; plus(v) any other non-cash charges, expenses or losses including any write offsor write downs and any non-cash expense relating to the vesting of warrants, reducingConsolidated Net Income for such period (provided that if any such non-cash chargesrepresent an accrual or reserve for potential cash items in any future period, the cashpayment in respect thereof in such future period shall be subtracted from Consolidated-14-
EBITDA in such future period to the extent paid, and excluding amortization of a prepaidcash item that was paid in a prior period); plus(vi) the amount of loss on sale of receivables and related assets to theReceivables Subsidiary in connection with a Receivables Facility deducted (and notadded back) in computing Consolidated Net Income; plus(vii) (A) non-cash compensation or other expense recorded from grants ofstock appreciation or similar rights, stock options, restricted stock or other rights and (B)other costs or expenses deducted (and not added back) in computing Consolidated NetIncome pursuant to any management equity plan or stock option plan or any othermanagement or employee benefit plan or agreement or any stock subscription orshareholder agreement, to the extent that such costs or expenses are funded with cashproceeds contributed to the capital of the US Borrower or net cash proceeds of anissuance of Equity Interest of the US Borrower (other than Disqualified Stock); plus(viii) any adjustments (including pro forma adjustments) of the type reflectedin any quality of earnings report made available to the Administrative Agent andprepared by accounting, appraisal or investment banking firm or consultant, in each caseof nationally recognized standing that is, in the good faith determination of the Company,qualified to perform the task for which it has been engaged or otherwise reasonablyacceptable to the Administrative Agent (which shall include any of the “Big Four”accounting firms, BDO, Alvarez & Marsal, FTI and Grant Thornton); provided that theaggregate amount added pursuant to this clause (viii) and clause (ix) for any period(together with the amount of Pro Forma Adjustments taken under Section 1.04) shall notexceed an amount equal to the greater of (x) $175,000,000 and (y) 10% of ConsolidatedEBITDA of the US Borrower for the period of four consecutive fiscal quarters mostrecently ended prior to the determination date (calculated after giving effect to anyadjustments pursuant to this clause (viii), clause (ix) or pursuant to Section 1.04);(ix) the amount of cost savings and synergies projected by the US Borrowerin good faith to be realizable during such period as a result of actions taken, committed tobe taken or expected to be taken in connection with any acquisition or investment ordisposition by the US Borrower or any Subsidiary, any restructuring, operationalinitiatives, business optimization, operational or technology improvements and including“run rate” cost savings and synergies from any such initiatives (calculated on a pro formabasis as though such cost savings or synergies had been realized on the first day of suchperiod), in each case as a result of actions taken, committed to be taken or expected to betaken in connection with any such transaction or initiative by the US Borrower or anySubsidiary, net of the amount of actual benefits realized during such period that areotherwise included in the calculation of Consolidated EBITDA from such actions;provided that (A) such cost savings and synergies are reasonably identifiable andfactually supportable and (B) such actions are taken, committed to be taken or expectedto be taken within 18 months after the consummation or commencement, as applicable, ofany change that is expected to result in such cost savings or synergies and (C) theaggregate amount added pursuant to this clause (ix) and clause (viii) for any period(together with the amount of Pro Forma Adjustments taken under Section 1.04) shall notexceed an amount equal to the greater of (x) $175,000,000 and (y) 10% of ConsolidatedEBITDA of the US Borrower for the period of four consecutive fiscal quarters most-15-
recently ended prior to the determination date (calculated after giving effect to anyadjustments pursuant to this clause (ix), clause (viii) or pursuant to Section 1.04); plus(x) any net after-tax non-recurring, extraordinary, exceptional, infrequent orunusual gains or losses (less all fees and expenses relating thereto), special items orexpenses; plus(xi) to the extent covered by insurance and actually reimbursed or otherwisepaid, or, so long as the US Borrower has made a determination that there existsreasonable evidence that such amount will in fact be reimbursed or otherwise paid by theinsurer and only to the extent that such amount is (A) not denied by the applicable carrierin writing within 180 days and (B) in fact reimbursed or otherwise paid within 365 daysof the date of such evidence (with a deduction for any amount so added back to the extentnot so reimbursed or otherwise paid within such 365 days), expenses with respect toliability or casualty events and expenses or losses relating to business interruption; plus(xii) expenses to the extent covered by contractual indemnification orrefunding provisions in favor of the US Borrower or a Subsidiary and actually paid orrefunded, or, so long as the US Borrower has made a determination that there existsreasonable evidence that such amount will in fact be paid or refunded by theindemnifying party or other obligor and only to the extent that such amount is (A) notdenied by the applicable indemnifying party or obligor in writing within 90 days and (B)in fact reimbursed within 180 days of the date of such evidence (with a deduction for anyamount so added back to the extent not so reimbursed within such 180 days); plus(xiii) any non-cash increase in expenses (A) resulting from the revaluation ofinventory (including any impact of changes to inventory valuation policy methodsincluding changes in capitalization of variances) or (B) due to purchase accountingassociated with any future acquisitions; plus(xiv) the amount of loss from the early extinguishment of Indebtedness orHedging Obligations or other derivative instruments;(b) decreased by (without duplication) non-cash gains increasing Consolidated NetIncome of such Person and such subsidiaries for such period, excluding any non-cashgains to the extent they represent the reversal of an accrual or reserve for a potential cashitem that reduced Consolidated EBITDA in any prior period; and(c) increased or decreased by (without duplication):(i) any net gain or loss resulting in such period from Hedging Obligationsand the application of Statement of Financial Accounting Standards No. 133 andInternational Accounting Standards No. 39 and their respective related pronouncementsand interpretations; plus or minus, as applicable,(ii) any net gain or loss included in calculating Consolidated Net Incomeresulting in such period from currency translation gains or losses related to currencyremeasurements of indebtedness (including any net loss or gain resulting from hedgeagreements for currency exchange risk), plus or minus, as applicable,-16-
(iii) the cumulative effect of a change in accounting principles during suchperiod, plus or minus, as applicable,(iv) any net gain or loss from disposed or discontinued operations and anynet gains or losses on disposal of disposed, abandoned or discontinued operations, plus orminus, as applicable, and(v) the amount of gains or losses (less all accrued fees and expenses relatingthereto) attributable to asset dispositions other than in the ordinary course of business,plus or minus, as applicable.“Consolidated Interest Expense” means, with respect to any Person for any period, withoutduplication, the sum of:(a) consolidated interest expense of such Person and its Subsidiaries for such period, to the extentsuch expense was deducted (and not added back) in computing Consolidated Net Income (including (i)amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (ii) allcommissions, discounts and other fees and charges owed with respect to letters of credit or bankersacceptances, (iii) non-cash interest expense (but excluding any non-cash interest expense attributable tothe movement in the mark to market valuation of Hedging Obligations or other derivative instrumentspursuant to GAAP), (iv) the interest component of Capital Lease Obligations, (v) net payments, if any,pursuant to interest rate Hedging Obligations with respect to Indebtedness; (vi) net losses on HedgingObligations or other derivative instruments entered into for the purpose of hedging interest rate risk and(vii) costs of surety bonds in connection with financing activities and excluding (x) amortization ofdeferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge,commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges(including any interest expense) related to any Receivables Facility); plus(b) consolidated capitalized interest of such Person and its Subsidiaries for such period, whetherpaid or accrued; minus(c) interest income of such Person and its Subsidiaries for such period.For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrueat an interest rate reasonably determined by the Company to be the rate of interest implicit in such CapitalLease Obligation in accordance with GAAP.“Consolidated Net Income” means, with respect to any Person for any period, the net income(loss) of such Person and its subsidiaries that are Subsidiaries for such period, determined on aconsolidated basis in accordance with GAAP; provided, however, that (without duplication) the netincome for such period of any Person that is not a subsidiary or that is accounted for by the equity methodof accounting, shall be excluded; provided that Consolidated Net Income of such Person shall beincreased by the amount of dividends or distributions or other payments that are actually paid in cash (orto the extent converted into cash) to such Person or a subsidiary thereof that is the US Borrower or aSubsidiary in respect of such period.“Consolidated Total Indebtedness” means, as of any date of determination, the sum, withoutduplication, of (a) the total amount of Indebtedness under clauses (a)(i), (a)(ii) (but excluding suretybonds, performance bonds or other similar instruments), (a)(iii) (but, in the case of clause (iii), only to theextent of any unreimbursed drawings thereunder) and (a)(iv) (only with respect to the principal portionthereof) of the definition thereof of the US Borrower and its Subsidiaries, plus (b) the greater of the-17-
aggregate liquidation value and maximum fixed repurchase price without regard to any change of controlor redemption premiums of all Disqualified Stock of the Borrowers and the Guarantors and all PreferredStock of its Subsidiaries that are not Guarantors, in each case, as determined on a consolidated basis inaccordance with GAAP. “Control” means the possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies, or the dismissal or appointment of the management, of a Person,whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and“Controlled” have meanings correlative thereto.“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor(including overnight) or an interest payment period having approximately the same length (disregardingbusiness day adjustment) as such Available Tenor.“Credit Party” means the Administrative Agent and each Lender.“CTA” means the United Kingdom Corporation Tax Act 2009.“Daily Simple ESTR” means, for any day, ESTR, with the conventions for this rate (which mayinclude a lookback) being established by the Administrative Agent in accordance with the conventions forthis rate selected or recommended by the Relevant Governmental Body for determining “Daily SimpleESTR” for business loans; provided that, if the Administrative Agent decides that any such convention isnot administratively feasible for the Administrative Agent, then the Administrative Agent may establishanother convention in its reasonable discretion (in consultation with the Company).“Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annumequal to, for any RFR Loan denominated in (i) Sterling, SONIA for the day that is 5 RFR Business Days(or 1 RFR Business Day for Swingline Loan) prior to (A) if such RFR Interest Day is an RFR BusinessDay, such RFR Interest Day or (B) if such RFR Interest Day is not an RFR Business Day, the RFRBusiness Day immediately preceding such RFR Interest Day, (ii) Euros, Daily Simple ESTR and(iii) Dollars, Daily Simple SOFR.“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFRfor the day (such day “SOFR Determination Date”) that is five (5) RFR Business Days prior to (i) if suchSOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not anRFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in each case, assuch SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any changein Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective dateof such change in SOFR without notice to the Borrower.“Default” means any event or condition that constitutes, or upon notice, lapse of time or bothhereunder would constitute, an Event of Default.“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the daterequired to be funded or paid, (i) to fund any portion of its Loans, (ii) fund any portion of itsparticipations in Letters of Credit or Swingline Loans or any portion of its Floorplan Loan PaymentObligation or (iii) to pay 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 failureis the result of such Lender’s good faith determination that a condition precedent to funding (nototherwise waived in accordance with the terms hereof) (specifically identified in such writing, including,if applicable, by reference to a specific Default) has not been satisfied, (b) has notified the Company or-18-
the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend orexpect to comply with any of its funding obligations under this Agreement (unless such writing or publicstatement indicates that such position is based on such Lender’s good-faith determination that a conditionprecedent (specifically identified in such writing, including, if applicable, by reference to a specificDefault) to funding a Loan cannot be satisfied) or generally under other agreements in which it commitsto extend credit, (c) has failed, within three Business Days after request by the Administrative Agentmade in good faith, to provide a certification in writing from an authorized officer of such Lender that itwill comply with its obligations to fund prospective Loans or Floorplan Loan Payment Obligations andparticipations in then outstanding Letters of Credit and Swingline Loans under this Agreement, providedthat such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the AdministrativeAgent’s receipt of such certification in form and substance satisfactory to it and the Floorplan FundingAgent, or (d) has become, or is a subsidiary of a Person that has become, the subject of a BankruptcyEvent or a Bail-In Action, or, in the good faith belief of any Issuing Bank, the Swingline Lender or theFloorplan Funding Agent, has defaulted in fulfilling its obligations under one or more other agreements inwhich such Lender agrees to extend credit and, in either such case under this clause (d), any of an IssuingBank, the Swingline Lender or the Floorplan Funding Agent has deemed such Lender to be a DefaultingLender, unless such Issuing Bank, the Swingline Lender or the Floorplan Funding Agent, as the case maybe, shall have entered into arrangements with the US Borrower or such Lender satisfactory to suchIssuing Bank, the Swingline Lender and/or the Floorplan Funding Agent, as the case may be, to defeaseany risk in respect of such Lender hereunder. Any determination by the Administrative Agent that aLender is a Defaulting Lender under any of the foregoing clauses, and the effective date of such status,shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a DefaultingLender (subject to Section 2.17) as of the date established therefor by the Administrative Agent in awritten notice of such determination, which shall be delivered by the Administrative Agent to theCompany and each other Lender promptly following such determination.“Disposition” means any sale, transfer or other disposition, or series of related sales, transfers, ordispositions (including pursuant to any merger, amalgamation or consolidation), of property thatconstitutes (a) assets comprising all or substantially all of a division, business or operating unit or productline of any Person or (b) all or substantially all of the Equity Interests in a Person.“Disqualified Institutions” means (a) those institutions set forth on Schedule 1.01(a) hereto, (b)any Person who is a competitor of the US Borrower and its subsidiaries that are separately identified inwriting by the US Borrower to the Administrative Agent from time to time and (c) any affiliate of anyPerson described in clauses (a) and (b) above (other than bona fide debt fund affiliates that have notthemselves been identified in accordance with clause (a) above) that are either (1) identified in writing byyou from time to time or (2) clearly identifiable as affiliates solely on the basis of such affiliate’s name. Itis understood and agreed that (i) the foregoing provisions shall not apply retroactively to any person ifsuch Person shall have previously acquired an assignment or participation interest (or shall havepreviously entered into a trade therefor) prior thereto, but shall disqualify such Person from taking anyfurther assignment or participation thereafter, (ii) each written supplement shall become effective two (2)Business Days after delivery thereof to the Administrative Agent and (iii) the Administrative Agent, uponprior request of any potential assignee or participant, may confirm, on a confidential basis, if a specifiedPerson is on the list.“Disqualified Stock” means, with respect to any Person, any Equity Interest of such Personwhich, by its terms, or by the terms of any security into which it is convertible or for which it is puttableor exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other thansolely for Equity Interest which is not Disqualified Stock and cash in lieu of fractional shares) pursuant toa sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (in each case,other than solely as a result of a change of control, asset sale or similar events), in whole or in part, in-19-
each case prior to the date that is 91 days after the date set forth in the definition of Maturity Date;provided, however, that if such Equity Interest is issued to any plan for the benefit of employees, officers,directors, managers or consultants of Holdings (or any direct or indirect parent thereof), the US Borroweror its Subsidiaries or by any such plan to such employees, officers, directors, managers or consultants,such Equity Interest shall not constitute Disqualified Stock solely because it may be required to berepurchased in order to satisfy applicable statutory or regulatory obligations or as a result of thetermination, death or disability of such officers, directors, managers or consultants.“Documentation Agents” means Capital One, National Association, Mizuho Bank Ltd. andMUFG Bank, Ltd. in their capacities as documentation agents for the Revolving Facility.“Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if suchamount is expressed in dollarsDollars, such amount, (b) if such amount is expressed in an AlternativeCurrency, the equivalent of such amount in dollarsDollars determined by using the rate of exchange forthe purchase of dollarsDollars with the Alternative Currency last provided (either by publication orotherwise provided to the Administrative Agent) by Reuters on the Business Day (New York City time)immediately preceding the date of determination or if such service ceases to be available or ceases toprovide a rate of exchange for the purchase of dollarsDollars with the Alternative Currency, as providedby such other publicly available information service which provides that rate of exchange at such time inplace of Reuters as agreed upon by the Administrative Agent and the Company (or if such service ceasesto be available or ceases to provide such rate of exchange, the equivalent of such amount in dollarsDollarsas mutually determined by the Administrative Agent and the Company) and (c) if such amount isdenominated in any other currency, the equivalent of such amount in dollarsDollars as determined by theAdministrative Agent using procedures similar to clause (b) above or otherwise using any method ofdetermination mutually determined by the Administrative Agent and the Company.“Dollar Tranche” means the Tranche under the Revolving Facility pursuant to which DollarTranche Revolving Loans, Letters of Credit or Swingline Loans are made under the Dollar TrancheRevolving Commitments.“Dollar Tranche Revolving Commitment” means, with respect to each Dollar Tranche RevolvingLender, the commitment of such Dollar Tranche Revolving Lender to make Dollar Tranche RevolvingLoans, to acquire participations in certain Letters of Credit and certain Swingline Loans to the USBorrower hereunder and to pay Floorplan Loan Payment Obligations in each case with respect to the USBorrower, expressed as an amount representing the maximum aggregate permitted amount of such DollarTranche Revolving Lender’s Revolving Exposure hereunder, as such commitment may be (a) reducedfrom time to time pursuant to Section 2.06, (b) increased from time to time pursuant to Section 2.21 or (b)reduced or increased from time to time pursuant to assignments by or to such Dollar Tranche RevolvingLender pursuant to Section 9.04. The initial amount of each Dollar Tranche Revolving Lender’s DollarTranche Revolving Commitment is set forth on Schedule 2.01 under the heading “Dollar TrancheRevolving Commitment”, or in the Assignment and Assumption pursuant to which such Lender shallhave assumed its Dollar Tranche Revolving Commitment, as applicable. The initial aggregate amount ofthe Lenders’ Dollar Tranche Revolving Commitments is $93,000,000. Any expiration or termination infull of the Revolving Commitments shall be deemed an automatic expiration or termination in full of theDollar Tranche Revolving Commitments.“Dollar Tranche Revolving Lender” means each Person listed on Schedule 2.01 that has a DollarTranche Revolving Commitment at such time and any other Person that shall have become a party heretopursuant to an Assignment and Assumption with respect to Dollar Tranche Revolving Commitments,-20-
other than any such Person that shall have ceased to be a party hereto pursuant to an Assignment andAssumption.“Dollar Tranche Revolving Loan” has the meaning assigned to such term in Section 2.01(a).“dollarsDollars” or “$” refers to lawful money of the United States of America.“Domestic Subsidiaries” means, with respect to any Person, any subsidiary of such Person otherthan a Foreign Subsidiary.“DQ List” has the meaning assigned to such term in Section 9.04(e)(iv).“EEA Financial Institution” means (a) any credit institution or investment firm established in anyEEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entityestablished in an EEA Member Country that is a parent of any Person described in clause (a) above, or (c)any entity established in an EEA Member Country that is a subsidiary of any Person described in clause(a) or (b) above and is subject to consolidated supervision with its parent.“EEA Member Country” means any of the member states of the European Union, Iceland,Liechtenstein and Norway.“EEA Resolution Authority” means any public administrative authority or any Person entrustedwith public administrative authority of any EEA Member Country (including any delegee) havingresponsibility for the resolution of any EEA Financial Institution.“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied(or waived in accordance with Section 9.02).“Effective Date Refinancing” means the refinancing of (a) that certain Third Amended andRestated Revolving Loan Credit Agreement, dated as of March 26, 2021 (as amended, amended andrestated, supplemented or otherwise modified from time to time, the “Existing Revolving CreditAgreement”), by and among Borrowers, the other parties thereto from time to time as a borrower orguarantor, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrativeagent, and the other parties from time to time party thereto and (b) that certain Amended and RestatedTerm Loan Credit Agreement, dated as of April 17, 2016 (as amended, amended and restated,supplemented or otherwise modified from time to time, the “Existing Term Loan Credit Agreement”), byand among US Borrower, the other parties thereto from time to time as guarantors, the lenders from timeto time party thereto, Barclays Bank PLC, as administrative agent, and the other parties from time to timeparty thereto.“Electronic Signature” means an electronic sound, symbol, or process attached to, or associatedwith, a contract or other record and adopted by a Person with the intent to sign, authenticate or acceptsuch contract or record.“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and(d) any other Person, other than, in each case, a natural person, a Disqualified Institution, a DefaultingLender, the Company or any Subsidiary or other Affiliate of the Company.“Environmental Laws” means all rules, regulations, codes, ordinances, judgments, orders,decrees, directives, laws, injunctions or binding agreements issued, promulgated or entered into by orwith any Governmental Authority and relating in any way to the environment, to preservation or-21-
reclamation of natural resources, to the management, generation, use, handling, transportation, storage,treatment, disposal, Release or threatened Release or the classification, registration, disclosure or importof, or exposure to, any toxic or hazardous materials, substance or waste or to related health or safetymatters.“Environmental Liability” means any liability, obligation, loss, claim, action, order or cost,contingent or otherwise (including any liability for damages, costs of environmental remediation, fines,penalties and indemnities), directly or indirectly resulting from or based upon (a) any EnvironmentalLaw, (b) the generation, use, handling, transportation, storage, treatment or disposal of any HazardousMaterial, (c) any exposure to any Hazardous Material, (d) the Release or threatened Release of anyHazardous Material or (e) any contract, agreement or other consensual arrangement pursuant to whichliability is assumed or imposed with respect to any of the foregoing.“Equity Interests” means shares of capital stock, partnership interests, membership interests,beneficial interests or other ownership interests, whether voting or nonvoting, in, or interests in theincome or profits of, a Person, and any warrants, options or other rights entitling the holder thereof topurchase or acquire any of the foregoing (other than, prior to the date of conversion, Indebtedness that isconvertible into any such Equity Interests).“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from timeto time, and the rules and regulations promulgated thereunder.“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together withthe Company or any Subsidiary, is treated as a single employer under Section 414(b) or 414(c) of theCode or Section 4001(a)(14) of ERISA or, solely for purposes of Section 302 of ERISA and Section 412of the Code, is treated as a single employer under Section 414(m) or 414(o) of the Code.“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or theregulations issued thereunder with respect to a Plan (other than an event for which the 30-day noticeperiod is waived), (b) any failure by any Plan to satisfy the “minimum funding standard” (within themeaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each casewhether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISAof an application for a waiver of the minimum funding standard with respect to any Plan, (d) adetermination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) ofERISA or Section 430(i)(4) of the Code), (e) the incurrence by the Company or any of its ERISAAffiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (f) thereceipt by the Company or any of its ERISA Affiliates from the PBGC or a plan administrator of anynotice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan,(g) the incurrence by the Company or any of its ERISA Affiliates of any liability with respect to thewithdrawal or partial withdrawal (including under Section 4062(e) of ERISA) of the Company or any ofits ERISA Affiliates from any Plan or Multiemployer Plan, or (h) the receipt by the Company or any of itsERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Company or any of itsERISA Affiliates of any notice, concerning the imposition upon the Company or any of its ERISAAffiliates of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,insolvent, within the meaning of Title IV of ERISA or in endangered or critical status, within the meaningof Section 305 of ERISA.“ESTR” means, with respect to any Business Day, a rate per annum equal to the Euro Short TermRate for such Business Day published by the ESTR Administrator on the ESTR Administrator’s Website.-22-
“ESTR Administrator” means the European Central Bank (or any successor administrator of theEuro Short Term Rate).“ESTR Administrator’s Website” means the European Central Bank’s website, currently athttp://www.ecb.europa.eu, or any successor source for the Euro Short Term Rate identified as such by theESTR Administrator from time to time.“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by theLoan Market Association (or any successor person), as in effect from time to time.“EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euroand for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencementof such Interest Period.“EURIBOR Screen Rate” means the euro interbank offered rate administered by the EuropeanMoney Markets Institute (or any other person which takes over the administration of that rate) for therelevant period displayed (before any correction, recalculation or republication by the administrator) onpage EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page whichdisplays that rate) or on the appropriate page of such other information service which publishes that ratefrom time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels timetwo TARGET Days prior to the commencement of such Interest Period. If such page or service ceases tobe available, the Administrative Agent may specify another page or service displaying the relevant rate.“Euro” or “€” means the single currency of the Participating Member States.“Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether such Loan,or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the AdjustedLIBO Rate.“Events of Default” has the meaning set forth in Section 7.01.“Exchange Act” means the United States Securities Exchange Act of 1934.“Excluded Subsidiary” means (a) any subsidiary that is not a wholly-owned Subsidiary, (b) anyImmaterial Subsidiary, (c) any subsidiary that is prohibited by applicable law or contractual obligationsfrom guaranteeing the Obligations, (d) (i) any direct or indirect Domestic Subsidiary of a CFC or (ii) anyFSHCO, (e) any captive insurance subsidiary, (f) any not-for-profit subsidiary, (g) any other subsidiarywith respect to which in the reasonable judgment of the Administrative Agent and the US Borrower, thecost or other consequences of providing a guarantee of the Obligations shall be excessive in view of thebenefits to be obtained by the Lenders therefrom (it being agreed that the cost and other consequences ofa Foreign Subsidiary providing a guarantee are excessive in view of the benefits except as elected (andsolely as so elected) by the Company pursuant to Section 5.10), (i) any Receivables Subsidiary and (j)any subsidiary that is a special purpose entity“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient orrequired to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured bynet income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposedas a result of such Recipient being organized under the laws of, or having its principal office or, in thecase of any Lender, its applicable lending office or permanent establishment located in, the jurisdictionimposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in thecase of any Lender, with respect of any Loan made to the US Borrower, U.S. federal withholding Taxes-23-
imposed on amounts payable to or for the account of such Recipient with respect to an applicable interestin a Loan pursuant to a law in effect on the date on which (i) such Lender acquires the applicable interestin the applicable Commitment to which such Loan relates (other than pursuant to an assignment requestby the Borrower under Section 2.16) or (ii) such Lender changes its lending office, except in each case tothe extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to suchLender's assignor, if any, immediately before such Lender acquired such applicable interest in theapplicable Commitment or to such Lender immediately before it changed its lending office, (c) Taxesattributable to such Recipient’s failure to comply with Section 2.14(f), (d) any Taxes imposed underFATCA, (e) any U.S. federal backup withholding taxes; (f) Taxes compensated for under 2.14(h); (g) tothe extent attributable to a Loan to a UK Borrower, Taxes suffered or incurred in respect of any BankLevy (or payment attributable to, or liability arising as a consequence of, a Bank Levy), and (h) in thecase of a Lender, with respect to a Loan to the UK Borrower, United Kingdom withholding Taxesimposed on amounts payable to or for the account of the Lender if, on the date on which the payment fallsdue, the payment could have been made to that Lender without a deduction of withholding for or onaccount of United Kingdom withholding Tax if the Lender had been a Qualifying Lender, but on thatdate, the Lender is not, or has ceased to be, a Qualifying Lender other than as a result of any change afterthe date it became a Lender under this Agreement in (or in the interpretation, administration, orapplication of) any law or Treaty or any published practice or published concession of any relevant taxingauthority, or the relevant Lender is a Treaty Lender and the Borrower or Guarantor making the payment isable to demonstrate that the payment could have been made to the Lender without the Tax Deduction hadthat Lender complied with its obligations under Sections 2.14(g)(i), 2.14(g)(ii) or 2.14(g)(iii) below.“Existing Letters of Credit” has the meaning set forth in Section 2.20.“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (orany amended or successor version that is substantively comparable and not materially more onerous tocomply with), any current or future regulations thereunder or official interpretations thereof, anyagreements entered into pursuant to current Section 1471(b) of the Code (or any amended or successorversion described above), any intergovernmental agreement (and related fiscal or regulatory legislation,rules or official administrative guidance) implementing the foregoing.“Federal Funds Effective Rate” means, for any day, the rate per annum calculated by the FederalReserve Bank of New York based on such day’s federal funds transactions by depository institutions (asdetermined in such manner as the Federal Reserve Bank of New York shall set forth on its public websitefrom time to time) and published on the next succeeding Business Day by the Federal Reserve Bank ofNew York as the federal funds effective rate; provided that if the Federal Funds Effective Rate as sodetermined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of theUnited States of America.“Financial Officer” means, with respect to any Person, the chief financial officer, principalaccounting officer, vice president-treasury, treasurer or controller of such Person.“Fitch” means Fitch Ratings, Inc., or any successor to its rating agency business.“Fixed Charges” means, with respect to any Person for any period, the sum, without duplication,of: (a) Consolidated Interest Expense of such Person and Subsidiaries for such period; plus-24-
(b) all cash dividends or other distributions paid to any Person other than such Person or any suchSubsidiary (excluding items eliminated in consolidation) on any series of Preferred Stock of the USBorrower or a Subsidiary during such period; plus(c) all cash dividends or other distributions paid to any Person other than such Person or any suchSubsidiary (excluding items eliminated in consolidation) on any series of Disqualified Stock of the USBorrower or a Subsidiary during such period.“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of theexecution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise)with respect to the Adjusted EURIBOR Rate, each Adjusted Daily Simple RFR or the Central Bank Rate,as applicable. For the avoidance of doubt the initial Floor for each of Adjusted EURIBOR Rate, eachAdjusted Daily Simple RFR, each Daily Simple ESTR, each Adjusted Term SOFR Rate or the CentralBank Rate shall be zero.“Floorplan Approval” means the Floorplan Funding Agent’s approval to finance particularInventory for US Borrower or a Subsidiary Guarantor in accordance with the terms of the FloorplanInventory Financing Agreement and which is evidenced by the Floorplan Funding Agent issuing afinancing approval number to the Floorplan Approved Vendor of such Inventory.“Floorplan Approved Invoice” has the meaning assigned to such term in Section 2.22(b).“Floorplan Approved Vendor” means Cisco Systems, Inc. and any other vendor approved by theFloorplan Funding Agent in its sole discretion.“Floorplan Collateral Account” has the meaning assigned to such term in Section 2.22(h).“Floorplan Due Date” has the meaning assigned to such term in Section 2.22(b).“Floorplan Facility” means the floorplan loan facility provided for under Section 2.22.“Floorplan Funding Agent” means Wells Fargo CDF, in its capacity as funding agent for theFloorplan Loans.“Floorplan Inventory Financing Agreement” means the Amended and Restated InventoryFinancing Agreement (Multi-Dealer) (MD) by and among the Floorplan Funding Agent, CDW Logistics,Inc., CDW Technologies, Inc., CDW Government LLC, CDW Direct, LLC, the US Borrower, SiriusFederal, LLC and Sirius Computer Solutions, Inc., as amended, modified, restated or replaced from timeto time, the form of which that is in effect as of the Effective Date is attached hereto as Exhibit H.“Floorplan Loan” means a loan made pursuant to Section 2.22(b).“Floorplan Loan Exposure” means, at any time, the sum of (i) the aggregate unfunded amount ofall outstanding Floorplan Loan Payment Obligations at such time plus (ii) the aggregate amount of allFloorplan Loan Payments that have not yet been reimbursed by the US Borrower at such time. TheFloorplan Loan Exposure of any Lender at any time shall be its Pro Rata Percentage of the total FloorplanLoan Exposure at such time. Floorplan Loan Exposure will be deemed to be Revolving Exposure withrespect to the US Borrower.“Floorplan Loan Exposure Fee” has the meaning assigned to such term in Section 2.09(e).-25-
“Floorplan Loan Payment” has the meaning assigned to such term in Section 2.22(c).“Floorplan Loan Payment Obligations” has the meaning assigned to such term in Section 2.22(c).“Floorplan Open Approval” means any Floorplan Approval that has not been cancelled by theFloorplan Funding Agent and with respect to which the Floorplan Funding Agent has not received aFloorplan Approved Invoice covering the Inventory subject to such Floorplan Approval.“Floorplan Required Payment” has the meaning assigned to such term in Section 2.22(d).“Floorplan Utilization” means, for any day, the percentage equivalent to a fraction, (a) thenumerator of which is the Floorplan Loan Exposure on such day and (b) the denominator of which is theamount of Aggregate Revolving Commitments on such day.“Floorplan Vendor Credits” has the meaning assigned to such term in Section 2.22(i).“Foreign Subsidiary” means, with respect to any Person, any subsidiary of such Person that isorganized and existing under the laws of any jurisdiction other than the United States of America, anystate thereof or the District of Columbia.“FSHCO” means any Domestic Subsidiary of the US Borrower that has no material assets otherthan the Equity Interests of one or more CFCs.“GAAP” means, subject to Section 1.04(a), generally accepted accounting principles in theUnited States of America, applied in accordance with the consistency requirements thereof.“Global Applicable Percentage” means at any time, with respect to any Lender, the percentage ofthe Global Adjusted Aggregate Revolving Commitments represented by such Lender’s Global AdjustedLender Commitment at such time; provided that, in the case of Section 2.17 when a Defaulting Lendershall exist, “Global Applicable Percentage” shall mean the percentage of the Global Adjusted AggregateRevolving Commitments (disregarding any Defaulting Lender’s Revolving Commitment) represented bysuch Lender’s Global Adjusted Lender Commitment. If all the Revolving Commitments have terminatedor expired, the Global Applicable Percentages shall be determined based upon the RevolvingCommitments most recently in effect, giving effect to any assignments and to any Lender’s status as aDefaulting Lender at the time of determination.“Global Adjusted Aggregate Revolving Commitments” means the Aggregate RevolvingCommitments minus (x) the Aggregate Revolving Exposure to the UK Borrower and (y) the aggregateoutstanding principal amount of Multicurrency Tranche Revolving Loans to the US Borrowerdenominated in an Alternative Currency.“Global Adjusted Lender Commitment” means, with respect to any Lender, such Lender’sRevolving Commitment minus (x) such Lender’s Revolving Exposure to the UK Borrower and (y) theaggregate outstanding principal amount of Multicurrency Tranche Revolving Loans denominated in anAlternative Currency made by such Lender to the US Borrower.“Global Dollar LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amountof all outstanding Letters of Credit denominated in dollarsDollars at such time, plus (b) the aggregateamount of all Global Dollar LC Disbursements that have not yet been reimbursed by or on behalf of a-26-
Borrower at such time. The Global Dollar LC Exposure of any Lender at any time shall be its GlobalApplicable Percentage of the total Global Dollar LC Exposure at such time.“Global Dollar LC Disbursement” means a payment made by an Issuing Bank pursuant to aLetter of Credit denominated in dollarsDollars.“Global Dollar Loan” has the meaning set forth in Section 2.02(a).“Global Dollar Loan Borrowing” means a Borrowing consisting of simultaneous Global DollarLoans of the same Type and, in the case of any Eurocurrency Borrowing or Term Benchmark Borrowing,having the same Interest Period made by each of the Dollar Tranche Revolving Lenders and theMulticurrency Tranche Revolving Lenders pursuant to Section 2.01.“Global Dollar Swingline Exposure” means, at any time, the sum of the aggregate of alloutstanding Global Dollar Swingline Loans. The Global Dollar Swingline Exposure of any Lender at anytime shall be its Global Applicable Percentage of the aggregate Global Dollar Swingline Exposure.“Global Dollar Swingline Loan” means a Swingline Loan denominated in dollarsDollars made tothe US Borrower.“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses andexemptions of, registrations and filings with, and reports to, Governmental Authorities.“Governmental Authority” means the government of the United States of America, the UnitedKingdom or any other nation or any political subdivision of any thereof, and any agency, authority,instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,judicial, taxing, regulatory or administrative powers or functions of or pertaining to government(including any supra-national body exercising such powers or functions, such as the European Union, theBank of England, the UK Financial Conduct Authority or the European Central Bank).“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise,of the guarantor guaranteeing any Indebtedness or other obligation of any other Person (the “primaryobligor”) 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) suchIndebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) anysecurity for the payment thereof, (b) to purchase or lease property, securities or services for the purpose ofassuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintainworking capital, equity capital or any other financial statement condition or liquidity of the primaryobligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as anaccount party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness orother obligation; provided that the term “Guarantee” shall not include endorsements for collection ordeposit in the ordinary course of business. The amount, as of any date of determination, of any Guaranteeshall be the principal amount outstanding on such date of the Indebtedness or other obligation guaranteedthereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of theguarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximummonetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case ofclause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by the chieffinancial officer of the Company)).“Guarantor” and “Guarantors” has the meaning set forth in Section 5.10(a).-27-
“Hazardous Materials” means all explosive, radioactive, hazardous or toxic substances, wastes orother pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials,polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes ofany nature regulated pursuant to any Environmental Law.“Hedging Agreement” means any agreement with respect to any swap, forward, future orderivative transaction, or any option or similar agreement, involving, or settled by reference to, one ormore rates, currencies, commodities, prices of equity or debt securities or instruments, or economic,financial or pricing indices or measures of economic, financial or pricing risk or value, or any similartransaction or combination of the foregoing transactions; provided that no phantom stock or similar planproviding for payments only on account of services provided by current or former directors, officers,employees or consultants of the Company or the Subsidiaries shall be a Hedging Agreement. The amountof the obligations of the Company or any Subsidiary in respect of any Hedging Agreement at any timeshall be the maximum aggregate amount (giving effect to any netting agreements) that the Company orsuch Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.“Hedging Obligations” means, with respect to any Person, the obligations of such Person underany Hedging Agreement.“HMRC DT Treaty Passport Scheme” means the Board of H.M. Revenue and Customs DoubleTaxation Treaty Passport scheme.“Holdings” means CDW Corporation, a Delaware corporation, and shall include any successorsto such Person or assigns.“IBM Inventory Financing Agreement” means, collectively, (i) that certain Agreement forWholesale Financing - Credit Agreement, dated December 1, 2021, by and between IBM Credit LLC, aDelaware limited liability company, CDW Logistics LLC, an Illinois limited liability company, as thesame may be amended, amended and restated, supplemented or otherwise modified from time to time and(ii) that certain Agreement for Wholesale Financing - Credit Agreement, dated December 1, 2021, by andbetween IBM Credit LLC, a Delaware limited liability company, and Sirius Computer Solutions, Inc., aTexas corporation, as the same may be amended, amended and restated, supplemented or otherwisemodified from time to time.“Immaterial Subsidiary” means each of the Subsidiaries of the Company for which (a) (i) theassets of such Subsidiary constitute less than 2.5% of the total assets of the Company and its Subsidiarieson a consolidated basis and (ii) the Consolidated EBITDA of such Subsidiary accounts for less than 2.5%of the Consolidated EBITDA of the Company and its Subsidiaries on a consolidated basis and (b) (i) theassets of all relevant Subsidiaries constitute 5.0% or less than the total assets of the Company and itsSubsidiaries on a consolidated basis, and (ii) the Consolidated EBITDA of all relevant Subsidiariesaccounts for less than 5.0% of the Consolidated EBITDA of the Company and its Subsidiaries on aconsolidated basis, in each case that has been designated as such by the US Borrower in a written noticedelivered to the Administrative Agent (or, on the Effective Date, listed on Schedule 1.01(b)) other thanany such Subsidiary as to which the US Borrower has revoked such designation by written notice to theAdministrative Agent. Prior to the UK Commitment Termination Date, the UK Borrower shall not bedeemed to be an Immaterial Subsidiary.“Impacted Loans” has the meaning specified in Section 2.11(a).“Incremental Amendment” has the meaning assigned to such term in Section 2.21(b).-28-
“Indebtedness” means, with respect to any Person, without duplication:(a) any indebtedness (including principal and premium) of such Person, whether or not contingent(i) in respect of borrowed money;(ii) evidenced by bonds, notes, debentures or similar instruments;(iii) evidenced by letters of credit or bankers’ acceptances (or, without duplication,reimbursement agreements in respect thereof);(iv) Capital Lease Obligations;(v) representing the balance deferred and unpaid of the purchase price of any property(other than Capital Lease Obligations); or(vi) representing any Hedging Obligations;if and to the extent that any of the foregoing Indebtedness (other than letters of credit, bankers’acceptances and Hedging Obligations) would appear as a liability upon a balance sheet (excluding thefootnotes thereto) of such Person prepared in accordance with GAAP;(b) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay,as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (a) of a third Person(whether or not such items would appear upon the balance sheet of such obligor or guarantor), other thanby endorsement of negotiable instruments for collection in the ordinary course of business;(c) Disqualified Stock of such Person; and(d) to the extent not otherwise included, the obligations of the type referred to in clause (a) of athird Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtednessis assumed by such first Person;provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (A)contingent obligations incurred in the ordinary course of business, (B) obligations under or in respect ofReceivables Facilities, (C) Floorplan Loans, other Inventory financing arrangements incurred in theordinary course of business and any obligations under any customer financing arrangements incurred inthe ordinary course of business, (D) any such balance that constitutes a trade payable or similar obligationto a trade creditor, in each case accrued in the ordinary course of business, (E) liabilities accrued in theordinary course of business, (F) earn-outs and other contingent payments in respect of acquisitions exceptto the extent that the liability on account of any such earn-outs or contingent payment becomes fixed, (G)deferred or prepaid revenue and (H) purchase price holdbacks in respect of a portion of the purchase priceof an asset to satisfy warranty or other unperformed obligations of the seller. The amount of Indebtednessof any Person under clause (c) above shall be deemed to equal the lesser of (x) the aggregate unpaidamount of such Indebtedness secured by such Lien and (y) the fair market value of the propertyencumbered thereby as reasonably determined by such Person in good faith. The Indebtedness of anyperson shall include the Indebtedness of any other Person (including any partnership in which suchPerson is a general partner) to the extent such Person is liable therefor as a result of such Person’sownership interest in or other relationship with such other Person, except to the extent the terms of suchIndebtedness provide that such Person is not liable therefor.-29-
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect toany payment made by or on account of any obligation of the Company or any Guarantor under any LoanDocument and (b) to the extent not otherwise described in clause (a), Other Taxes.“Indemnitee” has the meaning set forth in Section 9.03(b).“Interest Election Request” means a request by the Company to convert or continue a Borrowingin accordance with Section 2.05, which shall be, in the case of any such written request, substantially inthe form of Exhibit D or any other form approved by the Administrative Agent.“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan),the last Business Day of each March, June, September and December, (b) with respect to anyEurocurrency Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan isa part (and, in the case of a Eurocurrency Borrowing with an Interest Period of more than three months’duration, such day or days prior to the last day of such Interest Period as shall occur at intervals of threemonths’ duration after the first day of such Interest Period), (c) with respect to any RFR Loan (other thana Swingline Loan), (1) each date that is on the numerically corresponding day in each calendar month thatis one month (or, at the election of the applicable Borrower solely with respect to a RFR Loandenominated in Sterling, three months) after the Borrowing of such Loan (or, if there is no suchnumerically corresponding day in such month, then the last day of such month) and (2) the Maturity Date,(dc) with respect to any Term Benchmark Loan, the last day of each Interest Period applicable to theBorrowing of which such Loan is a part and, in the case of a Term Benchmark Borrowing with an InterestPeriod of more than three months’ duration, each day prior to the last day of such Interest Period thatoccurs at intervals of three months’ duration after the first day of such Interest Period, and the MaturityDate and (ed) with respect to any Swingline Loan, the day that such Loan is required to be repaid and theMaturity Date.“Interest Period” means, with respect to (i) any Eurocurrency Borrowing or Term BenchmarkBorrowing bearing interest at the Adjusted EURIBOR Rate, the period commencing on the date of suchBorrowing and ending on the numerically corresponding day in the calendar month that is one, three orsix months thereafter (or such shorter or longer period as shall have been consented to by each Lenderparticipating in such Borrowing), as the Company may elect or (ii) any Term Benchmark Borrowingbearing interest at the Adjusted Term SOFR Rate, the period commencing on the date of such Borrowingand ending on the numerically corresponding day in the calendar month that is one month thereafter;provided that (a) if any Interest Period would end on a day other than a Business Day, such InterestPeriod shall be extended to the next succeeding Business Day unless such next succeeding Business Daywould fall in the next calendar month, in which case such Interest Period shall end on the next precedingBusiness Day, (b) any Interest Period that commences on the last Business Day of a calendar month (oron a day for which there is no numerically corresponding day in the last calendar month of such InterestPeriod) shall end on the last Business Day of the last calendar month of such Interest Period and, (c) noInterest Period shall extend beyond the Maturity Date and (d) no tenor that has been removed from thisdefinition pursuant to Section 2.11(e) shall be available for specification in such Borrowing Request orInterest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date onwhich such Borrowing is made and thereafter shall be the effective date of the most recent conversion orcontinuation of such Borrowing.“Interpolated Rate” means, at any time, for any interest period, the rate per annum (rounded tothe same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent(which determination shall be conclusive and binding absent manifest error) to be equal to the rate thatresults from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (forwhich the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the-30-
LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds theImpacted Interest Period, in each case, at such time; provided that if any Interpolated Rate shall be lessthan zero, such rate shall be deemed to be zero for the purposes of this Agreement.“Inventory Financing Agreements” means the Wells Fargo Inventory Financing Agreement andthe IBM Inventory Financing Agreement and any other inventory financing arrangement entered into inthe ordinary course of business.“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) byMoody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.“Issuing Bank” means each of JPMorgan Chase Bank, N.A., Bank of America, N.A., MorganStanley Bank, N.A., Wells Fargo Bank, N.A. and each other Lender so designated by the US Borrowerwith such Lender’s consent and with prior written notice to the Administrative Agent, in its capacity asthe issuer of Letters of Credit hereunder, and any of their successors in such capacity as provided inSection 2.20(i)(i). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit tobe issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include anysuch Affiliate with respect to Letters of Credit issued by such Affiliate.“Issuing Bank Individual Sublimit” means, (i) for each of the Issuing Banks party hereto on theEffective Date, the amount set forth in the schedule below next to such Issuing Bank’s name, (ii) for eachIssuing Bank that replaces a previous Issuing Bank pursuant to Section 2.20(i)(i), the Issuing BankIndividual Sublimit of the replaced Issuing Bank that was in effect immediately prior to the replacementand (iii) for each additional Issuing Bank added pursuant to Section 2.20(i)(ii), an amount agreed amongthe US Borrower, the Administrative Agent and such additional Issuing Bank, with the Issuing BankIndividual Sublimit or Issuing Bank Individual Sublimits of one or more other Issuing Banks beingreduced (with the consent of such Issuing Bank or Issuing Banks) to the extent necessary to maintaincompliance with the following proviso; provided that the sum of all Issuing Bank Individual Sublimitsshall equal $125,000,000.Issuing Bank Issuing Bank Individual SublimitJPMorgan Chase Bank, N.A. $31,250,000Bank of America, N.A. $31,250,000Morgan Stanley Bank, N.A. $31,250,000Wells Fargo Bank, N.A. $31,250,000“Issuing Bank Issued Amount” means, with respect to each Issuing Bank, at any time, the sum of(a) the aggregate undrawn amount of all outstanding Letters of Credit at such time issued by such IssuingBank plus (b) the aggregate amount of all LC Disbursements made by such Issuing Bank that have not yetbeen reimbursed by or on behalf of a Borrower at such time.“ITA” means, the United Kingdom Income Tax Act 2007.“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.“Judgment Currency” has the meaning set forth in Section 9.17.-31-
“LC Collateral Account” has the meaning assigned to such term in Section 2.20(j).“LC Disbursement” means a Global Dollar LC Disbursement or a Multicurrency LCDisbursement, as applicable.“LC Exposure” means, at any time, the sum of the Global Dollar LC Exposure and theMulticurrency LC Exposure. For all purposes of this Agreement, if on any date of determination a Letterof Credit has expired by its terms but any amount may still be drawn thereunder by reason of theoperation of Article 29(a) of the Uniform Customs and Practice for Documentary Credits, InternationalChamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at theapplicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamberof Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time)or similar terms of the Letter of Credit itself, or if compliant documents have been presented but not yethonored, such Letter of Credit shall be deemed to be “outstanding” and “undrawn” in the amount soremaining available to be paid, and the obligations of the Borrowers and each Lender shall remain in fullforce and effect until the Issuing Bank and the Lenders shall have no further obligations to make anypayments or disbursements under any circumstances with respect to any Letter of Credit (unless cashcollateralized, backstopped or rolled into another facility on terms reasonably acceptable to the applicableIssuing Bank and the Administrative Agent). Unless otherwise specified herein, the amount of a Letter ofCredit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time;provided that with respect to any Letter of Credit that, by its terms or the terms of any document relatedthereto, provides for one or more automatic increases in the stated amount thereof, the amount of suchLetter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after givingeffect to all such increases, whether or not such maximum stated amount is in effect at such time.“Legal Reservations” means, in the case of the UK Borrower: (i) the principle that certainremedies may be granted or refused at the discretion of the court, the limitation of enforcement by lawsrelating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administrationand other laws generally affecting the rights of creditors and secured creditors; (ii) the time barring ofclaims under applicable limitation laws and defences of acquiescence, set off or counterclaim and thepossibility that an undertaking to assume liability for or to indemnify a person against non-payment ofstamp duty may be void; (iii) the principle that additional interest imposed pursuant to any relevantagreement may be held to be unenforceable on the grounds that it is a penalty and thus void; (iv) theprinciple that a court may not give effect to an indemnity for legal costs incurred by an unsuccessfullitigant; (v) similar principles, rights and defences under the laws of any relevant jurisdiction; and (vi) anyother matters which are set out as qualifications or reservations (however described) as to matters of lawin any legal opinion delivered to the Administrative Agent pursuant to any Loan Document.“Lender-Related Person” has the meaning assigned to it in Section 9.03(d).“Lenders” means the Dollar Tranche Revolving Lenders and the Multicurrency TrancheRevolving Lenders from time to time party hereto. Unless the context otherwise requires, the term“Lenders” shall include the Swingline Lender.“Letter of Credit” means any letter of credit issued pursuant to this Agreement (including, in thecase of any Existing Letter of Credit, deemed to be issued hereunder).“Leverage Ratio” means, on any date, the ratio of (a) Consolidated Total Indebtedness as of suchdate minus the Cash Netting Amount to (b) Consolidated EBITDA for the period of four consecutivefiscal quarters of the Company most recently ended on or prior to such date.-32-
“Liabilities” means any actual losses, claims (including intraparty claims), demands, damages orliabilities of any kind.“LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, theLIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to thecommencement of such interest period; provided that if the LIBO Screen Rate shall not be available atsuch time for such interest period (an “Impacted Interest Period”) then the LIBO Rate shall be theInterpolated Rate. Notwithstanding the foregoing, if the LIBO Rate, determined as provided above,would otherwise be less than zero, then the LIBO Rate shall be deemed to be zero for all purposes.“LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Borrowingfor any Interest Period, or with respect to any determination of the Alternate Base Rate pursuant to clause(c) of the definition thereof, the London interbank offered rate as administered by the ICE BenchmarkAdministration (or any other Person that takes over the administration of such rate) for deposits in dollars(for delivery on the first day of such Interest Period) for a period equal in length to such Interest Period asdisplayed on either the Reuters screen page or the Bloomberg screen page, as selected by theAdministrative Agent, that displays such rate (currently page LIBOR01 or LIBOR02) or, in the eventsuch rate does not appear on a page of the Reuters screen or the Bloomberg screen, on the appropriatepage of such other information service that publishes such rate from time to time as selected by theAdministrative Agent in its reasonable discretion; provided that if the LIBO Screen Rate as so determinedwould be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,hypothecation, charge, security interest or other encumbrance on, in or of such asset, and (b) the interestof a vendor or a lessor under any conditional sale agreement or title retention agreement (or any financinglease having substantially the same economic effect as any of the foregoing) relating to such asset;provided that in no event shall an operating lease or occupancy agreement be deemed to constitute a Lien.“Loan Documents” means this Agreement, the Assumption Agreement (if any), the SubsidiaryGuaranties (if any), the Agent Fee Letter, any Letter of Credit and Letter of Credit Application, and,except for purposes of Section 9.02, any promissory notes delivered pursuant to Section 2.07(c).“Loan Modification Agreement” means a Loan Modification Agreement in form and substancereasonably satisfactory to the Administrative Agent and the Company, among the Company, one or moreAccepting Lenders and the Administrative Agent.“Loan Modification Offer” has the meaning specified in Section 2.18(a).“Loans” means the Dollar Tranche Revolving Loans, the Multicurrency Tranche RevolvingLoans, the Global Dollar Loans and any other loans made by the Lenders to the Company pursuant to thisAgreement, including Swingline Loans, but excluding Floorplan Loans.“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, (a)in the case of the Dollar Tranche Revolving Lenders, Lenders having Revolving Exposures under theDollar Tranche and unused Dollar Tranche Revolving Commitments representing more than 50% ofthe aggregate outstanding principal amount of the sum of the aggregate Revolving Exposure under theDollar Tranche and the aggregate amount of the unused Dollar Tranche Revolving Commitments atsuch time and (b) in the case of the Multicurrency Revolving Lenders, Lenders having RevolvingExposures under the Multicurrency Tranche and unused Multicurrency Tranche RevolvingCommitments representing more than 50% of the aggregate outstanding principal amount of the sum-33-
of the aggregate Revolving Exposure under the Multicurrency Tranche and the aggregate amount ofthe unused Multicurrency Tranche Revolving Commitments at such time.“Material Adverse Effect” means a material adverse effect on (a) the business, assets, liabilities,operations, results of operations or financial condition of the Company and the Subsidiaries, taken as awhole, or (b) the material rights of or remedies available to the Lenders under the Loan Documents, takenas a whole.“Material Indebtedness” means Indebtedness (other than under the Loan Documents or anyFloorplan Facility), or obligations in respect of one or more Hedging Agreements, of any one or more ofthe Company and the Subsidiaries in an aggregate outstanding principal amount of $200,000,000 or more.For purposes of determining Material Indebtedness, the “principal amount” of the obligations of theCompany or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximumaggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary wouldbe required to pay if such Hedging Agreement were terminated at such time.“Material Subsidiary” means any Subsidiary that would constitute a “significant subsidiary”under Rule 1-02(w) of Regulation S-X under the Securities Act, as amended.“Maturity Date” means the fifth anniversary of the Effective Date.“Maximum Rate” has the meaning set forth in Section 9.13.“MNPI” means material information concerning the Company, any Subsidiary or any ControlledAffiliate of any of the foregoing, or any of their securities, that has not been disseminated in a mannermaking it available to investors generally, within the meaning of Regulation FD under the Securities Actand the Exchange Act. For purposes of this definition, “material information” means informationconcerning the Company, the Subsidiaries or any Controlled Affiliate of any of the foregoing, or any oftheir securities, that could reasonably be expected to be material for purposes of the United States federaland state securities laws.“Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agencybusiness thereof.“Multicurrency LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amountof all outstanding Letters of Credit denominated in an Alternative Currency at such time, plus (b) theaggregate amount of all Multicurrency LC Disbursements that have not yet been reimbursed by or onbehalf of a Borrower at such time. The Multicurrency LC Exposure of any Lender at any time shall be itsMulticurrency Pro Rata Percentage of the total Multicurrency LC Exposure at such time.“Multicurrency LC Disbursement” means a payment made by an Issuing Bank pursuant to aLetter of Credit denominated in Agreed Currencies.“Multicurrency Pro Rata Percentage” means, with respect to any Multicurrency TrancheRevolving Lender, with respect to Multicurrency Tranche Revolving Loans, Multicurrency LC Exposureor Multicurrency Swingline Exposure, a percentage equal to a fraction the numerator of which is suchLender’s Multicurrency Tranche Revolving Commitment under the Multicurrency Tranche and thedenominator of which is the aggregate Multicurrency Tranche Revolving Commitments of all Lendersunder the Multicurrency Tranche (if the Multicurrency Tranche Revolving Commitments have terminated-34-
or expired, the Multicurrency Pro Rata Percentages shall be determined based upon such Lender’s shareof the aggregate Multicurrency Revolving Exposure at that time).“Multicurrency Swingline Exposure” means, at any time, the sum of the aggregate of alloutstanding Swingline Loans denominated in eurosEuros or Sterling. The Multicurrency SwinglineExposure of any Lender at any time shall be its Multicurrency Pro Rata Percentage of the aggregateMulticurrency Swingline Exposure.“Multicurrency Tranche” means the Tranche under the Revolving Facility pursuant to whichMulticurrency Tranche Revolving Loans, Letters of Credit or Swingline Loans are made under theMulticurrency Tranche Revolving Commitments.“Multicurrency Tranche Revolving Commitment” means, with respect to each MulticurrencyTranche Revolving Lender, the commitment, if any, of such Multicurrency Tranche Revolving Lender tomake Loans to the Borrowers, to acquire participations in certain Letters of Credit to the Borrowers andcertain Swingline Loans to the Borrowers hereunder and to pay Floorplan Loan Payment Obligations withrespect to the US Borrower hereunder, expressed as an amount representing the maximum possibleaggregate amount of such Multicurrency Tranche Revolving Lender’s Revolving Exposure to theBorrowers hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.06or (b) reduced or increased from time to time pursuant to assignments by or to such MulticurrencyTranche Revolving Lender pursuant to Section 9.04. The initial amount of each Multicurrency TrancheRevolving Lender’s Multicurrency Tranche Revolving Commitment is set forth on Schedule 2.01, or inthe Assignment and Acceptance pursuant to which such Multicurrency Tranche Revolving Lender shallhave assumed its Multicurrency Tranche Revolving Commitment, as applicable. The initial aggregateamount of the Multicurrency Tranche Revolving Lenders’ Multicurrency Tranche RevolvingCommitments on the Effective Date is $1,507,000,000. For the avoidance of doubt, in no event shall theAggregate Revolving Exposure at any time outstanding to the UK Borrower exceed the UK Sublimit.Any expiration or termination in full of the Revolving Commitments shall be deemed an automaticexpiration or termination in full of the Multicurrency Tranche Revolving Commitments.“Multicurrency Tranche Revolving Lender” means each Person listed on Schedule 2.01 that has aMulticurrency Tranche Revolving Commitment at such time and any other Person that shall have becomea party hereto pursuant to an Assignment and Assumption with respect to Multicurrency TrancheRevolving Commitments, other than any such Person that shall have ceased to be a party hereto pursuantto an Assignment and Assumption.“Multicurrency Tranche Revolving Loan” has the meaning assigned to such term in Section2.01(b).“Multicurrency Tranche Swingline Loan” means a Swingline Loan denominated in Euros orSterling and made to the UK Borrower.“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.“Non-Accepting Lender” has the meaning specified in Section 2.18(a).“Non-Guarantor Indebtedness” means any Indebtedness of a Subsidiary that is not a Guarantor;provided that Indebtedness of the UK Borrower solely as it relates to the Obligations under thisAgreement shall not be included as “Non-Guarantor Indebtedness”.-35-
“Non-Guarantor Preferred Stock” has the meaning set forth under Section 6.01.“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shallbe substantially in the form of Exhibit G or such other form as may be approved by the AdministrativeAgent (including any form on an electronic platform or electronic transmission system as shall beapproved by the Administrative Agent), appropriately completed and signed by a Responsible Officer ofthe Company.“NYFRB” means the Federal Reserve Bank of New York.“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effecton such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not aBusiness Day, for the immediately preceding Business Day); provided that if none of such rates arepublished for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal fundstransaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal fundsbroker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as sodetermined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or anysuccessor source.“Obligations” means (a) the due and punctual payment by the Borrowers of the principal of andpremium, if any, and interest (including interest accruing, at the rate specified herein, during the pendencyof any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed orallowable in such proceeding) on all Loans, all Floorplan Loan Exposure and all LC Exposure when andas due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and(b) the due and punctual payment or performance by the Company of all other monetary obligationsunder this Agreement, any other Loan Document or Letter of Credit, including fees, costs, expenses andindemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetaryobligations accruing, at the rate specified herein or therein, or incurred during the pendency of anybankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed orallowable in such proceeding).“OFAC” means the United States Treasury Department Office of Foreign Assets Control.“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of apresent or former connection between such Recipient and the jurisdiction (or political subdivisionsthereof) imposing such Tax (other than connections arising from such Recipient having executed,delivered, become a party to, performed its obligations under, received payments under, received orperfected a security interest under, engaged in any other transaction pursuant to or enforced any LoanDocument.“Other Taxes” means all present or future stamp, court or documentary, intangible, recording,filing or similar Taxes that arise from any payment made under, from the execution, delivery,performance, enforcement or registration of, from the receipt or perfection of a security interest under, orotherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxesimposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federalfunds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices ofdepository institutions, as such composite rate shall be determined by the NYFRB as set forth on the-36-
NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRBas an overnight bank funding rate.“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, theNYFRB Rate, (b) with respect to any amount denominated in Euros, Daily Simple ESTR, (c) with respectto any amount denominated in Sterling, Daily Simple RFR and (d) with respect to any amountdenominated in any other Alternative Currency, an overnight rate determined by the AdministrativeAgent or the Issuing Banks, as the case may be, in accordance with banking industry rules on interbankcompensation.“Participant Register” has the meaning set forth in Section 9.04(c)(ii).“Participants” has the meaning set forth in Section 9.04(c)(i).“Participating Member State” means any member state of the European Union that has the euro asits lawful currency in accordance with legislation of the European Union relating to Economic andMonetary Union.“Payment” has the meaning set forth in Article VIII.“Payment Notice” has the meaning set forth in Article VIII.“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA andany successor entity performing similar functions.“Permitted Amendment” has the meaning specified in Section 2.18(c).“Permitted Inventory Financing Liens” means Liens securing obligations under an InventoryFinancing Agreement.“Permitted Liens” means:(a) Liens imposed by law for Taxes that are not required to be paid in accordancewith Section 5.04;(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and otherlike Liens imposed by law (other than any Lien imposed pursuant to Section 430(k) of the Codeor Section 303(k) or 4068 of ERISA or a violation of Section 436 of the Code), arising in theordinary course of business and securing obligations that are not overdue by more than 90 days orare being contested in good faith by appropriate proceedings;(c) Liens made (i) in the ordinary course of business in compliance with workers’compensation, unemployment insurance and other social security laws (other than any Lienimposed pursuant to Section 430(k) of the Code or Section 303(k) or 4068 of ERISA or aviolation of Section 436 of the Code) and (ii) in respect of letters of credit, bank guarantees orsimilar instruments issued for the account of the Company or any Subsidiary in the ordinarycourse of business supporting obligations of the type set forth in clause (i) above;(d) Liens made (i) to secure the performance of bids, trade contracts (other than forpayment of Indebtedness), leases (other than Capital Lease Obligations), statutory obligations(other than any Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) or 4068-37-
of ERISA or a violation of Section 436 of the Code), surety and appeal bonds, performance bondsand other obligations of a like nature, in each case in the ordinary course of business and (ii) inrespect of letters of credit, bank guarantees or similar instruments issued for the account of theCompany or any Subsidiary in the ordinary course of business supporting obligations of the typeset forth in clause (i) above;(e) judgment liens in respect of judgments that do not constitute an Event of Defaultunder clause (k) of Section 7.01;(f) easements, zoning restrictions, rights-of-way and similar encumbrances on realproperty imposed by law or arising in the ordinary course of business that do not secure anymonetary obligations and do not materially detract from the value of the affected property orinterfere with the ordinary conduct of business of the Company and the Subsidiaries, taken as awhole; (g) banker’s liens, rights of setoff or similar rights and remedies as to depositaccounts or other funds maintained with depository institutions and securities accounts and otherfinancial assets maintained with securities intermediaries; provided that such deposit accounts orfunds and securities accounts or other financial assets are not established or deposited for thepurpose of providing collateral for any Indebtedness and are not subject to restrictions on accessby the Company or any Subsidiary in excess of those required by applicable banking regulations;(h) Liens arising by virtue of Uniform Commercial Code financing statement filings(or similar filings under applicable law) regarding operating leases entered into by the Companyand the Subsidiaries in the ordinary course of business;(i) Liens representing any interest or title of a licensor, lessor or sublicensor orsublessor, or a licensee, lessee or sublicensee or sublessee, in the property (including anyintellectual property) subject to any lease (other than Capital Lease Obligations), license orsublicense or concession agreement in the ordinary course of business;(j) Liens in favor of customs and revenue authorities arising as a matter of law tosecure payment of customs duties in connection with the importation of goods;(k) Liens on specific items of inventory or other goods and proceeds thereof of anyPerson securing such Person’s obligations in respect of bankers’ acceptances or letters of creditissued or created for the account of such Person to facilitate the purchase, shipment or storage ofsuch inventory or other goods in the ordinary course of business;(l) deposits of cash with the owner or lessor of premises leased and operated by theCompany or any Subsidiary to secure the performance of its obligations under the lease for suchpremises, in each case in the ordinary course of business;(m) Liens on cash and cash equivalents deposited with a trustee or a similar Person todefease or to satisfy and discharge any Indebtedness, provided that such defeasance orsatisfaction and discharge is permitted hereunder;(n) Liens that are contractual rights of set-off, including (i) relating to theestablishment of depository relations with banks not given in connection with the issuance ofIndebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any of itsSubsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary-38-
course of business of the Company and its Subsidiaries or (iii) relating to purchase orders andother agreements entered into with customers of the Company or any of its Subsidiaries in theordinary course of business;(o) Liens on cash deposits of the US Borrower and Foreign Subsidiaries subject to aCash Pooling Arrangement or otherwise over bank accounts of the US Borrower and ForeignSubsidiaries maintained as part of the Cash Pooling Arrangement, in each case securing liabilitiesfor overdrafts of the US Borrower and Foreign Subsidiaries participating in such Cash PoolingArrangements;(p) Liens arising out of consignment or similar arrangements for the sale of goodsentered into by the Company or any Subsidiary in the ordinary course of business;(q) pledges or deposits made in the ordinary course of business to secure liability toinsurance carriers and Liens on insurance policies and the proceeds thereof (whether accrued ornot), rights or claims against an insurer or other similar asset securing insurance premiumfinancings; and(r) Liens on property subject to Sale/Leaseback Transactions permitted hereunderand general intangibles related thereto;provided that the term “Permitted Liens” shall not include any Lien securing Indebtedness, other thanLiens referred to clauses (c), (d), (e), (k) or (m) above securing letters of credit, bank guarantees or similarinstruments.“Person” means any natural person, corporation, limited liability company, trust, joint venture,association, company, partnership, Governmental Authority or other entity.“Plan” means any “employee pension benefit plan,” as defined in Section 3(2) of ERISA (otherthan a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA or Section 412 of theCode or Section 302 of ERISA, and in respect of which the Company or any of its ERISA Affiliates is(or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer”as defined in Section 3(5) of ERISA.“Platform” has the meaning set forth in Section 9.01(d).“Pre-Adjustment Successor Rate” has the meaning specified in Section 2.11(c).“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends orupon liquidation, dissolution, or winding up.“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “PrimeRate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interestrate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (SelectedInterest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar ratequoted therein (as determined by the Administrative Agent) or any similar release by the Federal ReserveBoard (as determined by the Administrative Agent). Each change in the Prime Rate shall be effectivefrom and including the date such change is publicly announced or quoted as being effective.-39-
“Private Side Lender Representatives” means, with respect to any Lender, representatives of suchLender that are not Public Side Lender Representatives.“Pro Rata Percentage” means, with respect to any Lender, with respect to Loans, LC Exposure,Swingline Exposure or Floorplan Loans, a percentage equal to a fraction the numerator of which is suchLender’s Revolving Commitment and the denominator of which is the aggregate RevolvingCommitments of all Lenders (if the Revolving Commitments have terminated or expired, the Pro RataPercentages shall be determined based upon such Lender’s share of the aggregate Revolving Exposure atthat time).“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor,as any such exemption may be amended from time to time.“Public Side Lender Representatives” means, with respect to any Lender, representatives of suchLender that do not wish to receive MNPI.“Qualified Acquisition” means any Acquisition or other investment that involves cashconsideration (it being understood, for the avoidance of doubt, that proceeds from an equity offering shallnot constitute cash consideration) of at least $750.0 million and causes the pro forma Leverage Ratio to begreater than the Leverage Ratio immediately prior to giving effect to such Acquisition or otherinvestment.“Qualifying Lender” means, in relation to a payment by or in respect of a UK Borrower under aLoan Document, a Lender which is beneficially entitled (in the case of a Treaty Lender, within themeaning of the relevant UK Treaty) to interest payable to that Lender in respect of an advance under aLoan Document and is:(a) a Lender:(i) which is a bank (as defined for the purpose of section 879 of the ITA) making anadvance under a Loan Document and is within the charge to United Kingdomcorporation tax as respects any payments of interest made in respect of thatadvance or would be within such charge as respects such payments apart fromsection 18A of the CTA; or(ii) in respect of an advance made under a Loan Document by a person that was abank (as defined for the purpose of section 879 of the ITA) at the time that thatadvance was made and is within the charge to United Kingdom corporation taxas respects any payments of interest made in respect of that advance; or(b) a Lender which is:(i) a company resident in the United Kingdom for United Kingdom tax purposes;(ii) a partnership each member of which is:(A) a company so resident in the United Kingdom; or(B) a company not so resident in the United Kingdom which carries on atrade in the United Kingdom through a permanent establishment andwhich brings into account in computing its chargeable profits (within the-40-
meaning of Section 19 of the CTA) the whole of any share of interestpayable in respect of that advance that falls to it by reason of Part 17 ofthe CTA; or(iii) a company not so resident in the United Kingdom which carries on a trade in theUnited Kingdom through a permanent establishment and which brings intoaccount interest payable in respect of that advance in computing the chargeableprofits (within the meaning of Section 19 of the CTA) of that company; or(c) a Treaty Lender.“Rating Agencies” means S&P, Moody’s and Fitch.“Receivables Facility” means any of one or more receivables financing facilities as amended,supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations ofwhich are non-recourse (except for customary representations, warranties, covenants and indemnitiesmade in connection with such facilities) to the US Borrower or any of its Subsidiaries (other than aReceivables Subsidiary) pursuant to which any Subsidiary sells its accounts receivable to either (A) aPerson that is not a Subsidiary or (B) a Receivables Subsidiary that in turn sells its accounts receivable toa Person that is not a Subsidiary.“Receivables Fees” means distributions or payments made directly or by means of discounts withrespect to any accounts receivable or participation interest therein issued or sold in connection with, andother fees paid to a Person that is not a Subsidiary in connection with, any Receivables Facility.“Receivables Subsidiary” means any subsidiary formed for the purpose of, and that solelyengages only in one or more Receivables Facilities and other activities reasonably related thereto.“Recipient” means the Administrative Agent or any Lender as applicable.“Reference Time” with respect to any setting of the then-current Benchmark means (1) if suchBenchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. GovernmentSecurities Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate,11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if the RFR for suchBenchmark is SONIA, then four Business Days prior to such setting, (4) if the RFR for such Benchmarkis Daily Simple SOFR, then four U.S. Government Securities Business Days prior to such setting, or (5) ifsuch Benchmark is none of the Term SOFR Rate, Daily Simple SOFR, the EURIBOR Rate, SONIA orDaily Simple ESTR, the time determined by the Administrative Agent in its reasonable discretion.“Register” has the meaning set forth in Section 9.04(b)(iv).“Related Indemnitee Parties” means, with respect to any specified Person, (a) any controllingPerson or controlled Affiliate of such Person, (b) the respective directors, officers or employees of suchPerson or any of its controlling Persons or controlled Affiliates, and (c) the respective agents of suchPerson or any of its controlling Persons or controlled Affiliates, in the case of this clause (c), acting at theinstructions of such Person, controlling person or such controlled Affiliate.-41-
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and thedirectors, officers, partners, members, trustees, employees, agents, administrators, managers,representatives and advisors of such Person and of such Person’s Affiliates.“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit,disposal, discharge, dispersal, leaching or migration into or through the environment or within or uponany building, structure, facility or fixture.“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect ofLoans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, the CME Term SOFRAdministrator, as applicable, or a committee officially endorsed or convened by the Federal ReserveBoard and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a BenchmarkReplacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officiallyendorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect toa Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or acommittee officially endorsed or convened by the European Central Bank or, in each case, any successorthereto, and (iv) with respect to a Benchmark Replacement in respect of Loans denominated in any othercurrency, (a) the central bank for the currency in which such Benchmark Replacement is denominated orany central bank or other supervisor which is responsible for supervising either (1) such BenchmarkReplacement or (2) the administrator of such Benchmark Replacement or (b) any working group orcommittee officially endorsed or convened by (1) the central bank for the currency in which suchBenchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible forsupervising either (A) such Benchmark Replacement or (B) the administrator of such BenchmarkReplacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Boardor any part thereof.“Relevant Rate” means (i) with respect to any Term Benchmark Borrowing denominated inEuros, the Adjusted EURIBOR Rate, (ii) with respect to any EurocurrencyTerm Benchmark Borrowingdenominated in Dollars, the Adjusted LIBOTerm SOFR Rate or, (iii) with respect to any RFR Borrowingdenominated in Dollars, the applicable Adjusted Daily Simple RFR or (iv) with respect to any RFRBorrowing denominated in Sterling, the applicable Adjusted Daily Simple RFR, as applicable.“Relevant Screen Rate” means (i) with respect to any Term Benchmark Borrowing denominatedin Dollars, the Term SOFR Reference Rate, or (ii) with respect to any Term Benchmark Borrowingdenominated in Euros, the EURIBOR Screen Rate or (iii) with respect to any Eurocurrency Borrowingdenominated in Dollars, the LIBO Screen Rate, as applicable.“Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) havingRevolving Exposures and unused Revolving Commitments representing more than 50% of the sum of theAggregate Revolving Exposure and the aggregate amount of the unused Revolving Commitments at suchtime. “Required Multicurrency Lenders” means, at any time, Multicurrency Tranche RevolvingLenders (other than Defaulting Lenders) having Multicurrency Tranche Revolving Exposures and unusedMulticurrency Tranche Revolving Commitments representing more than 50% of the sum of the aggregateMulticurrency Tranche Revolving Exposure and the aggregate amount of the unused MulticurrencyTranche Revolving Commitments at such time.“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK FinancialInstitution, a UK Resolution Authority. -42-
“Responsible Officer” means, with respect to any Person, the Financial Officer or any executivevice president, senior vice president, vice president, secretary or assistant secretary of such Person andany other officer or similar official thereof responsible for the administration of the obligations of suchPerson in respect of this Agreement and, as to any document delivered on the Effective Date, anysecretary or assistant secretary of such Person.“Restricted Cash” means Cash and Cash Equivalents held by the US Borrower and itsSubsidiaries that are contractually restricted from being distributed to the US Borrower or that areclassified as “restricted cash” on the consolidated balance sheet of the US Borrower prepared inaccordance with GAAP.“Revaluation Date” means (a) with respect to any Loan denominated in any Alternative Currency,each of the following: (i) the date of the Borrowing of such Loan and (ii) each date of a conversion into orcontinuation of such Loan pursuant to the terms of this Agreement; (b) with respect to any Letter ofCredit denominated in an Alternative Currency, each of the following: (i) the date on which such Letter ofCredit is issued, (ii) the first Business Day of each calendar quarter and (iii) the date of any amendment ofsuch Letter of Credit that has the effect of increasing the face amount thereof; and (c) any additional dateas the Administrative Agent may reasonably determine at any time when an Event of Default exists.“Revolving Availability Period” means the period from and including the Effective Date to butexcluding the earlier of the Maturity Date and the date of termination of the Revolving Commitments.“Revolving Commitment” means, with respect to each Lender, its Dollar Tranche RevolvingCommitment and its Multicurrency Tranche Revolving Commitment. The Revolving Commitments shallinclude all Revolving Commitment Increases. The initial aggregate amount of the Lenders’ RevolvingCommitments is $1,600,000,000. For the avoidance of doubt, usage under the Dollar Tranche RevolvingCommitments and the Multicurrency Tranche Revolving Commitments shall be deemed to reduceavailability under the Revolving Commitments on a dollar for dollar basis.“Revolving Commitment Fee” has the meaning set forth in Section 2.09(a).“Revolving Commitment Increase” has the meaning assigned to such term in Section 2.21(a).“Revolving Commitment Increase Closing Date” has the meaning assigned to such term inSection 2.21(b).“Revolving Exposure” means, with respect to any Lender at any time, the aggregate outstandingprincipal amount of such Lender’s Loans, its LC Exposure, its Swingline Exposure and its FloorplanLoan Exposure.“Revolving Facility” means the revolving credit, swingline, letter of credit and floorplanfacilities, in each case contemplated by Article II and the incremental facilities, if any, contemplated bySection 2.21.“RFR” means, for any RFR Loan denominated in (a) Sterling, SONIA, (b) eurosEuros, ESTR and(c) Dollars, Daily Simple SOFR.“RFR Administrator” means the SONIA Administrator, ESTR Administrator or the SOFRAdministrator. -43-
“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) aSaturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London,(b) eurosEuros, any day that is a TARGET Day, except for a (i) Saturday or (ii) a Sunday, and (c) 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 Rating Services, a Standard & Poor’s Financial Services LLCbusiness, or any successor to its rating agency business.“Sale/Leaseback Transaction” means an arrangement relating to property owned by the Companyor any Subsidiary whereby the Company or such Subsidiary sells or transfers such property to any Personand the Company or any Subsidiary leases such property from such Person or its Affiliates.“Sanctioned Country” means, at any time, a country, region or territory that is itself or whosegovernment is the subject or target of any Sanctions (at the date of this Agreement, Crimea, Cuba, Iran,North Korea and Syria).“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list ofdesignated Persons maintained by OFAC or the U.S. Department of State or by the United NationsSecurity Council, the European Union, any European Union member state, HerHis Majesty’s Treasury ofthe United Kingdom, or any other relevant sanctions authority, (b) any Person operating, organized orresident in a Sanctioned Country, (c) any Person owned or controlled by any Person or Persons describedin the preceding clauses (a) and (b), or (d) any Person otherwise the subject of any Sanctions.“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered orenforced from time to time by (a) the U.S. government, including those administered by OFAC or theU.S. Department of State, or (b) the United Nations Security Council, the European Union, any EuropeanUnion member state or HerHis Majesty’s Treasury of the United Kingdom, or any other relevantsanctions authority.“SEC” means the United States Securities and Exchange Commission.“Securities Act” means the United States Securities Act of 1933.“Similar Business” means any business and any services, activities or businesses directly relatedor similar to, or incidental, corollary, synergistic or complementary to any line of business engaged in bythe Company and its subsidiaries on the Effective Date or any business activity that is a reasonableextension, development or expansion thereof or ancillary thereto.“Senior Notes” means the $575 million aggregate principal amount of 5.50% senior notes dueDecember 1, 2024, the $600 million aggregate principal amount of 4.125% senior notes due May 1, 2025,the $600 million aggregate principal amount of 4.25% senior notes due April 1, 2028, the $700 millionaggregate principal amount of 3.25% senior notes due February 15, 2029, the $1,000 million 2.670%senior notes due 2026, the $500 million 3.276% senior notes due 2028 and the $1,000 million 3.569%senior notes due 2031, in each case, issued by the US Borrower and CDW Finance Corporation.-44-
“Senior Unsecured Rating” means, with respect to any Rating Agency as of any date ofdetermination, (a) the rating by such Rating Agency of the senior unsecured long-term indebtedness ofthe Company or (b) if, and only if, such Rating Agency shall not have in effect the rating referred to inclause (a), the Company’s “corporate credit” (however denominated) rating assigned by such RatingAgency.“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFRAdministrator.“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnightfinancing rate).“SOFR Administrator’s Website” means the NYFRB’s website, currently athttp://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified assuch by the SOFR Administrator from time to time.“SOFR Determination Date” has the meaning specified in the definition of “Daily SimpleSOFR”.“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.“SONIA” means, with respect to any Business Day, a rate per annum equal to the SterlingOvernight Index Average for such Business Day published by the SONIA Administrator on the SONIAAdministrator’s Website on the immediately succeeding Business Day.“SONIA Administrator” means the Bank of England (or any successor administrator of theSterling Overnight Index Average).“SONIA Administrator’s Website” means the Bank of England’s website, currently athttp://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Averageidentified as such by the SONIA Administrator from time to time.“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is thenumber one and the denominator of which is the number one minus the aggregate of the maximumreserve percentages (including any marginal, special, emergency or supplemental reserves), expressed asa decimal, established by the Board of Governors for eurocurrency funding (currently referred to as“Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve percentages shallinclude those imposed pursuant to such Regulation D. Eurocurrency LoansTerm Benchmark Loans forwhich the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per the relateddefinition of such Benchmark) shall be deemed to constitute eurocurrency funding and to be subject tosuch reserve requirements without benefit of or credit for proration, exemptions or offsets that may beavailable from time to time to any Lender under such Regulation D or any comparable regulation. TheStatutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change inany reserve percentage.“Sterling” means the lawful currency of the United Kingdom.“subsidiary” means, with respect to any Person (the “parent”) at any date, (a) any Person theaccounts of which would be consolidated with those of the parent in the parent’s consolidated financialstatements if such financial statements were prepared in accordance with GAAP as of such date and (b)any other Person (i) of which Equity Interests representing more than 50% of the equity value or more-45-
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the generalpartnership interests are, as of such date, owned, controlled or held, or (ii) that is, as of such date,otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one ormore subsidiaries of the parent.“Subsidiary” means any subsidiary of the Company.“Subsidiary Guarantor” has the meaning set forth in Section 5.10(a).“Subsidiary Guaranty” and “Subsidiary Guaranties” has the meaning set forth in Section 5.10(a).“Swingline Exposure” means, at any time, the sum of the Global Dollar Swingline Exposure andthe Multicurrency Swingline Exposure.“Swingline Lender” means JPMorgan, in its capacity as lender of Swingline Loans hereunder.“Swingline Loan” means a Loan made pursuant to Section 2.19.“Syndication Agents” mean JPMorgan Chase Bank, N.A., Bank of America, N.A., MorganStanley Senior Funding, Inc. and Wells Fargo Bank, N.A., each in its capacity as syndication agent forthe Revolving Facility.“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings(including backup withholding), value added taxes, or any other goods and services, use or sales taxes,assessments, fees or other charges imposed by any Governmental Authority, including any interest,additions to tax and penalties applicable thereto.“TARGET2” means the Trans-European Automated Real-time Gross Settlement ExpressTransfer payment system which utilizes a single shared platform and which was launched on November19, 2007.“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to beoperative, such other payment system, if any, determined by the Administrative Agent to be a suitablereplacement) is open for the settlement of payments in Euro.“Target Entities” means Granite Parent, Inc. and its subsidiaries to be acquired pursuant to thatcertain Purchase and Sale Agreement, dated as of October 15, 2021, by and among the Company andSirius Computer Solutions Holdco, LP, a Delaware limited partnership.“Tax Confirmation” means a confirmation by a Lender that a person beneficially entitled tointerest 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;(b) a partnership each member of which is (x) a company resident in the UnitedKingdom for United Kingdom tax purposes, or (y) a company not so residentwhich carries on a trade in the United Kingdom through a permanentestablishment 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 suchinterest that is attributable to it because of Part 17 of the CTA; or-46-
(c) a company not resident in the United Kingdom for United Kingdom taxpurposes which carries on a trade in the United Kingdom through a permanentestablishment and which brings into account such interest in computing thechargeable profits (within the meaning of Section 19 of the CTA) of thatcompany.“Tax Deduction” means, with respect to any payment under a Loan Document in respect of aLoan to the UK Borrower, a deduction or withholding for or on account of United Kingdom withholdingTax. “Term Benchmark” when used in reference to any Loan or Borrowing, refers to whether suchLoan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference tothe Adjusted EURIBOR Rate or the Adjusted Term SOFR Rate.“Term Loan Credit Agreement” mean the Credit Agreement, dated as of December 1, 2021,among the US Borrower, the guarantors party thereto, the lenders party thereto, JPMorgan, asadministrative agent, and the other parties party thereto, as amended, restated, supplemented, or otherwisemodified.“Term Loan Facility” means the “Term Loan Facility” under (and as defined in) the Term LoanCredit Agreement.“Term Loans” has the means assigned to the term “Loans” in the Term Loan Credit Agreementand any modification, replacement, refinancing, refunding, renewal, or extension thereof.“Term SOFR Determination Day” has the meaning assigned to it under the definition of TermSOFR Reference Rate.“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated inDollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate atapproximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to thecommencement of such tenor comparable to the applicable Interest Period, as such rate is published bythe CME Term SOFR Administrator.“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFRDetermination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and forany tenor comparable to the applicable Interest Period, the rate per annum determinedpublished by theCME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking termrate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the“Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFRAdministrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred,then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFRReference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate aspublished in respect of the first preceding U.S. Government Securities Business Day for which such TermSOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such firstpreceding U.S. Government Securities Business Day is not more than five (5) U.S. Government SecuritiesBusiness Days prior to such Term SOFR Determination Day.“Termination Date” means the date upon which all Revolving Commitments have terminated, noFloorplan Open Approvals, Floorplan Loan Payment Obligations or Letters of Credit are outstanding (orif Floorplan Loan Payment Obligations or Letters of Credit remain outstanding, as to which the-47-
Administrative Agent has been furnished a cash deposit or a back up standby letter of credit in accordancewith the terms of this Agreement), and the Loans, Floorplan Loan Exposure and LC Exposure, togetherwith all interest, fees and other non-contingent Obligations, have been paid in full in cash.“Total Assets” shall mean total assets of the US Borrower and its Subsidiaries on a consolidatedbasis prepared in accordance with GAAP, shown on the most recent balance sheet of the US Borrowerand its Subsidiaries as may be expressly stated.“Tranche” means the Dollar Tranche and the Multicurrency Tranche.“Transactions” means (a) the execution, delivery and performance by the Company of the LoanDocuments, the borrowing of the Loans and the use of proceeds thereof, (b) the Effective DateRefinancing, (c) the consummation of the acquisition of all of the issued and outstanding Equity Interestsin Granite Parent, Inc., a Delaware corporation, pursuant to that certain Purchase Agreement, dated as ofOctober 15, 2021 (as may be amended, amended and restated, supplemented or otherwise modified fromtime to time), by and between the Company and Sirius Computer Solutions Holdco LP, a Delawarelimited partnership, (d) the issuance of the $1,000 million 2.670% senior notes due 2026, the $500 million3.276% senior notes due 2028 and the $1,000 million 3.569% senior notes due 2031 and (e) the paymentof fees and expenses in connection with the foregoing.“Treaty Lender” means, in relation to a payment of interest by or in respect of a UK Borrowerunder a Loan Document, a Lender which:(a) is treated as a resident of a UK Treaty State for the purposes of the relevant UK Treatyand is entitled to the benefit of such UK Treaty;(b) does not carry on a business in the United Kingdom through a permanent establishmentwith which that Lender’s participation in the Loans is effectively connected; and(c) fulfils) all other conditions which must be fulfilled in order to benefit from full exemptionunder the relevant UK Treaty and UK domestic law from Tax imposed by the UnitedKingdom on interest payable to that Lender in respect of an advance under a LoanDocument, including the completion of any necessary procedural formalities.“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of intereston such Loan, or on the Loans comprising such Borrowing, is determined by reference to the AdjustedLIBO Rate, the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate, the Adjusted Daily SimpleRFR, the Daily Simple ESTR or the Alternate Base Rate.“UK Borrower” has the meaning assigned to such term in the Preamble.“UK Commitment Termination Date” has the meaning assigned to such term in Section 2.06(c).“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under thePRA Rulebook (as amended from time to time) promulgated by the United Kingdom PrudentialRegulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended fromtime to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certaincredit institutions and investment firms, and certain affiliates of such credit institutions or investmentfirms. -48-
“UK Non Bank Lender” means a Lender which gives a Tax Confirmation in the documentationwhich it executes on becoming a Lender.“UK Resolution Authority” means the Bank of England or any other public administrativeauthority having responsibility for the resolution of any UK Financial Institution.“UK Sublimit” means, initially, $250,000,000, which amount may be increased by up to$50,000,000 in connection with a Revolving Commitment Increase in accordance with Section 2.21. Forthe avoidance of doubt (i) the UK Sublimit is a sub-facility of the Multicurrency Tranche, (ii) the UKSublimit (including any increase in the UK Sublimit) will not increase the aggregate amount of theMulticurrency Tranche Revolving Commitments or the Revolving Commitments and (iii) usage of theUK Sublimit shall be deemed to reduce availability under the Multicurrency Tranche RevolvingCommitments on a dollar-for-dollar basis. Furthermore, the Aggregate Revolving Exposure to the USBorrower under the Multicurrency Tranche in excess of the US Borrower Multicurrency Threshold shallbe deemed to reduce the UK Sublimit on a dollar-for-dollar basis for so long as such AggregateRevolving Exposure to the US Borrower under the Multicurrency Tranche exceeds the US BorrowerMulticurrency Threshold.“UK Treaty State” means a jurisdiction having a double taxation agreement (a “UK Treaty”) withthe UK which makes provision for full exemption from tax imposed in the UK on interest.“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excludingthe related Benchmark Replacement Adjustment.“US Borrower” has the meaning assigned to such term in the Preamble.“US Borrower Threshold” means the aggregate amount of all Multicurrency Tranche RevolvingCommitments minus the UK Sublimit (without giving effect to the last sentence of the definition of “UKSublimit”).“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) aSunday or (iii) a day on which the Securities Industry and Financial Markets Association recommendsthat the fixed income departments of its members be closed for the entire day for purposes of trading inUnited States government securities.“USA PATRIOT Act” means the Uniting and Strengthening America by Providing AppropriateTools Required to Intercept and Obstruct Terrorism Act of 2001.“VAT” means:(a) any value added tax imposed pursuant to the United Kingdom Value Added Tax Act1994;(b) any tax imposed in compliance with the Council Directive of 28 November 2006 on thecommon system of value added tax (EC Directive 2006/112) (as amended) and anynational legislation implementing that Directive or any predecessor to it or supplementalto that Directive; and(c) any other tax of a similar nature, whether imposed in the United Kingdom or in a memberstate of the European Union in substitution for, or levied in addition to, such tax referred-49-
to in paragraphs (a) or (b) above, or imposed elsewhere.“Voting Shares” means, with respect to any Person, outstanding shares of capital stock or otherEquity Interests of any class of such Person entitled to vote in the election of directors, or otherwise toparticipate in the direction of the management and policies, of such Person, excluding shares or otherEquity Interests entitled so to vote or participate only upon the happening of some contingency.“Wells Fargo CDF” has the meaning assigned to such term in the preamble.“Wells Fargo Inventory Financing Agreement” means that certain Inventory FinancingAgreement, dated as of October 12, 2007, by and among Wells Fargo CDF (as successor to GECommercial Distribution Finance Corporation), CDW Logistics, Inc., an Illinois corporation, CDWTechnologies, Inc., a Wisconsin corporation, CDW Direct, LLC, an Illinois limited liability company, andCDW Government LLC, an Illinois limited liability company, as the same may be amended, amended andrestated, restated, supplemented or otherwise modified from time to time.“WFCF” has the meaning assigned to such term in the preamble.“wholly owned”, when used in reference to a subsidiary of any Person, means that all the EquityInterests in such subsidiary (other than directors’ qualifying shares and other nominal amounts of EquityInterests that are required to be held by other Persons under applicable law) are owned, beneficially andof record, by such Person, another wholly owned subsidiary of such Person or any combination thereof.“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete orpartial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of TitleIV of ERISA.“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority,the write-down and conversion powers of such EEA Resolution Authority from time to time under theBail-In Legislation for the applicable EEA Member Country, which write-down and conversion powersare described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, anypowers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify orchange the form of a liability of any UK Financial Institution or any contract or instrument under whichthat liability arises, to convert all or part of that liability into shares, securities or obligations of thatperson or any other person, to provide that any such contract or instrument is to have effect as if a righthad been exercised under it or to suspend any obligation in respect of that liability or any of the powersunder 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 and Borrowings may be classified and referred to by Class (e.g., a “Global Dollar Loan”, a “DollarTranche Revolving Loan” or a “Multicurrency Tranche Revolving Loan”) or by Type (e.g., a“Eurocurrency Loan”, “ABR Loan”, “Term Benchmark Loan” or “RFR Loan” or “EurocurrencyBorrowing”, “ABR Borrowing”, “Term Benchmark Borrowing” or “RFR Borrowing”) or by Class andType. SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to thesingular and plural forms of the terms defined. Whenever the context may require, any pronoun shallinclude the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and“including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall beconstrued to have the same meaning and effect as the word “shall”. The words “asset” and “property”shall be construed to have the same meaning and effect and to refer to any and all real and personal,-50-
tangible and intangible assets and properties. The word “law” shall be construed as referring to allstatutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunderhaving the force of law or with which affected Persons customarily comply), and all judgments, orders,writs and decrees, of all Governmental Authorities. All references to “in the ordinary course of business”of the US Borrower or any Subsidiary thereof means (i) in the ordinary course of business of, or infurtherance of an objective that is in the ordinary course of business of the US Borrower or suchSubsidiary, as applicable, (ii) customary and usual in the industry or industries of the US Borrower and itsSubsidiaries in the United States or any other jurisdiction in which the US Borrower or any Subsidiarydoes business, as applicable, or (iii) generally consistent with the past or current practice of the USBorrower or such Subsidiary, as applicable, or any similarly situated businesses of the United States orany other jurisdiction in which the US Borrower or any Subsidiary does business, as applicable. Withrespect to any Default or Event of Default, the words “exists”, “is continuing” or similar expressions withrespect thereto shall mean that the Default or Event of Default has occurred and has not yet been cured orwaived. Except as otherwise provided herein and unless the context requires otherwise, (a) any definitionof or reference to any agreement, instrument or other document (including this Agreement and the otherLoan Documents) shall be construed as referring to such agreement, instrument or other document asfrom time to time amended, restated, supplemented or otherwise modified (subject to any restrictions onsuch amendments, restatements, supplements or modifications set forth herein), (b) any definition of orreference to any statute, rule or regulation shall be construed as referring thereto as from time to timeamended, supplemented or otherwise modified, and all references to any statute shall be construed asreferring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder, (c)any reference herein to any Person shall be construed to include such Person’s successors and assigns(subject to any restrictions on assignment set forth herein) and, in the case of any GovernmentalAuthority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d)the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer tothis Agreement in its entirety and not to any particular provision hereof and (e) all references herein toArticles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, andExhibits and Schedules to, this Agreement.SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations.(a) Except as otherwise expressly provided herein, all terms of an accounting or financialnature used herein shall be construed in accordance with GAAP as in effect from time to time; providedthat (i) if the Company, by notice to the Administrative Agent, shall request an amendment to anyprovision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in theapplication thereof on the operation of such provision (or if the Administrative Agent or the RequiredLenders, by notice to the Company, shall request an amendment to any provision hereof for suchpurpose), regardless of whether any such notice is given before or after such change in GAAP or in theapplication thereof, then such provision shall be interpreted on the basis of GAAP as in effect and appliedimmediately before such change shall have become effective until such notice shall have been withdrawnor such provision amended in accordance herewith and (ii) notwithstanding any other provision containedherein, all terms of an accounting or financial nature used herein shall be construed (other than forpurposes of Sections 3.04, 5.01(a) and 5.01(b)), and all computations of amounts and ratios referred toherein shall be made, (A) without giving effect to (x) any election under Financial Accounting StandardsBoard Accounting Standards Codification 825 (or any other Accounting Standards Codification having asimilar result or effect) (and related interpretations) to value any Indebtedness at “fair value”, as definedtherein, or (y) any other accounting principle that results in any Indebtedness being reflected on a balancesheet at an amount less than the stated principal amount thereof, (B) without giving effect to anytreatment of Indebtedness in respect of convertible debt instruments under Accounting StandardsCodification 470-20 (or any other Accounting Standards Codification having a similar result or effect)(and related interpretations) to value any such Indebtedness in a reduced or bifurcated manner as-51-
described therein, and such Indebtedness shall at all times be valued at the full stated principal amountthereof, and (C) without giving effect to any change in accounting for leases resulting from theimplementation of Financial Accounting Standards Board ASU No. 2016-02, Leases (Topic 842), to theextent any lease (or similar arrangement conveying the right to use) would be required to be treated as acapital lease where such lease (or similar arrangement) would not have been required to be so treatedunder GAAP as in effect on December 31, 2016.(b) All pro forma computations required to be made hereunder giving effect to anytransaction shall be calculated after giving pro forma effect thereto (and, in the case of any pro formacomputations made hereunder to determine whether such transaction is permitted to be consummatedhereunder, to any other such transaction consummated since the first day of the period covered by anycomponent of such pro forma computation and on or prior to the date of such computation) as if suchtransaction had occurred on the first day of the period of four consecutive fiscal quarters ending with themost recent fiscal quarter for which financial statements shall have been delivered pursuant to Section5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscalquarter included in the financial statements referred to in Section 3.04(a)), and, to the extent applicable, tothe historical earnings and cash flows associated with the assets acquired or disposed of and any relatedincurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under theSecurities Act. If any Indebtedness bears a floating rate of interest and is being given pro forma effect,the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determinationhad been the applicable rate for the entire period (taking into account any Hedging Agreement applicableto such Indebtedness if such Hedging Agreement has a remaining term in excess of 12 months).(c) Whenever the Company elects to give pro forma effect in accordance with Section1.04(b) above for the implementation of any restructuring, operational initiative, business optimization,operational or technology change or improvement, the pro forma calculations shall be made in good faithby a financial officer of the Company and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, operating expense reductions, operating initiatives, other operating improvements andsynergies projected by the Company in good faith to be realizable as a result of specified actions taken,committed to be taken or expected to be taken in the good faith determination of the Company (calculatedon a pro forma basis as though such cost savings, operating expense reductions, operating initiatives,other operating improvements and synergies had been realized in full on the first day of such period andas if such cost savings, operating expense reductions, operating initiatives, other operating improvementsand synergies were realized in full during the entirety of such period and “run-rate” means the fullrecurring benefit for a period that is associated with any action taken, committed to be taken or withrespect to which substantial steps have been taken or are expected to be taken (including any savingsexpected to result from the elimination of a public target’s compliance costs with public companyrequirements), whether prior to or following the Effective Date, net of the amount of actual benefitsrealized during such period from such actions, and any such adjustments (herein, the “Pro FormaAdjustments”) shall be included in the initial pro forma calculations of such financial ratios or tests andduring any subsequent four quarter period in which the effects thereof are expected to be realizable)relating to such transactions or actions; provided that (a) such amounts are reasonably identifiable andfactually supportable, (b) such actions are taken, committed to be taken or expected to be taken (in thegood faith determination of the Company) no later than eighteen (18) months after the consummation orcommencement, as applicable, of any change that is expected to result in such cost savings or synergies,(c) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back incomputing Consolidated EBITDA (or any other components thereof), whether through a pro formaadjustment or otherwise, with respect to such period and (d) the aggregate amount of such Pro FormaAdjustments (together with all amounts added back under clauses (a)(viii) and (a)(ix) of the definition ofConsolidated EBITDA) shall not exceed the greater of (x) $175,000,000 and (y) 10% of EBITDA of theUS Borrower for the period of four consecutive fiscal quarters most recently ended prior to the-52-
determination date (calculated after giving effect to any adjustments pursuant to this Section 1.04(c) andclauses (a)(viii) and (a)(ix) of the definition of Consolidated EBITDA).SECTION 1.05. Currency Translation.(a) All references in the Loan Documents to Loans, Letters of Credit, Obligations, covenantbaskets and other amounts shall be denominated in dollarsDollars unless expressly provided otherwise.Compliance with all such dollarDollar denominated amounts shall be based on the Dollar Equivalent ofany amounts denominated or reported under a Loan Document in a currency other than dollarsDollars andshall be determined by the Administrative Agent on any Revaluation Date. Notwithstanding anythingherein to the contrary, if any Obligation is funded and expressly denominated in a currency other thandollarsDollars, the Borrowers shall repay such Obligation (including any interest thereon) in such othercurrency. All fees payable under Section 2.09 shall be payable in dollarsDollars. Notwithstandinganything to the contrary in this Agreement, with respect to the amount of any Indebtedness, Lien, oraffiliate transaction, no Default or Event of Default shall be deemed to have occurred solely as a result ofany dollar basket being exceeded due to a change in the rate of currency exchange occurring after thetime of any such specified transaction so long as such specified transaction was permitted at the timeincurred, made, acquired, committed, entered or declared. No Default or Event of Default shall arise as aresult of any limitation or threshold set forth in dollarsDollars in Section 7.01(f), (g) or (k) beingexceeded solely as a result of changes in currency exchange rates from those rates applicable on the lastday of the fiscal quarter immediately preceding the fiscal quarter in which such determination occurs or inrespect of which such determination is being made.(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation orprepayment of a Term Benchmark Loan or a RFR Loan or the issuance, amendment or extension of aLetter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, butsuch Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shallbe the Dollar Equivalent of such amount (rounded to the nearest unit of such Alternative Currency, with0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, asthe case may be.SECTION 1.06. Rounding. The calculation of any financial ratios under this Agreement shallbe calculated by dividing the appropriate component by the other component, carrying the result to oneplace more than the number of places by which such ratio is expressed herein and rounding the result upor down to the nearest number (with a rounding-down if there is no nearest number).SECTION 1.07. Interest Rates. The interest rate on a Loan denominated in dollarsDollars oran Alternative Currency may be derived from an interest rate benchmark that may be discontinued or is,or may in the future become, the subject of regulatory reform. Upon the occurrence of a BenchmarkTransition Event, Section 2.11(b) provides a mechanism for determining an alternative rate of interest.The Administrative Agent does not warrant or accept any responsibility for, and shall not have anyliability with respect to, the administration, submission, performance or any other matter related to anyinterest rate used in this Agreement, or with respect to any alternative or successor rate thereto, orreplacement rate thereof, including without limitation, whether the composition or characteristics of anysuch alternative, successor or replacement reference rate will be similar to, or produce the same value oreconomic equivalence of, the existing interest rate being replaced or have the same volume or liquidity asdid any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent andits affiliates and/or other related entities may engage in transactions that affect the calculation of anyinterest rate used in this Agreement or any alternative, successor or alternative rate (including anyBenchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse tothe Borrower. The Administrative Agent may select information sources or services in its reasonable-53-
discretion to ascertain any interest rate used in this Agreement, any component thereof, or ratesreferenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall haveno liability to the Borrowers, any Lender or any other person or entity for damages of any kind, includingdirect 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 anysuch rate (or component thereof) provided by any such information source or service.SECTION 1.08. Divisions. For all purposes under the Loan Documents, in connection withany division or plan of division under Delaware law (or any comparable event under a differentjurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right,obligation or liability of a different Person, then it shall be deemed to have been transferred from theoriginal Person to the subsequent Person, and (b) if any new Person comes into existence, such newPerson shall be deemed to have been organized and acquired on the first date of its existence by theholders of its Equity Interests at such time.SECTION 1.09. Times of Day. Unless otherwise specified, all references herein to times ofday shall be references to Eastern time (daylight or standard, as applicable).SECTION 1.10. Timing of Payment and Performance. When the payment of any obligation orthe performance of any covenant, duty or obligation is stated to be due or performance required on a daywhich is not a Business Day, the date of such payment or performance shall extend to the immediatelysucceeding Business Day and such extension of time shall be reflected in computing interest or fees, asthe case may be.SECTION 1.11. Letter of Credit Amounts. Unless otherwise specified herein, the amount of aLetter of Credit at any time shall be deemed to be the amount of such Letter of Credit available to bedrawn at such time; provided that with respect to any Letter of Credit that, by its terms or the terms of anyLetter of Credit Agreement related thereto, provides for one or more automatic increases in the availableamount thereof, the amount of such Letter of Credit shall be deemed to be the maximum amount of suchLetter of Credit after giving effect to all such increases, whether or not such maximum amount isavailable to be drawn at such time.SECTION 1.12. Leases. Notwithstanding anything herein to the contrary, all leases ofequipment (whether operating or Capital Lease Obligations) entered into by the US Borrower and itsSubsidiaries in connection with Bundled Solutions shall be disregarded with respect to any calculationinvolving leases to the extent such leases are assigned to a Bundled Solutions customer or are otherwisesupported by back-to-back leases of such equipment to a Bundled Solutions customer, in each case in theordinary course of business. ARTICLE IIThe CreditsSECTION 2.01. Commitments.(a) Subject to the terms and conditions set forth herein, each Dollar Tranche RevolvingLender agrees to make Loans in dollarsDollars to the US Borrower (each such loan, a “Dollar TrancheRevolving Loan”) from time to time during the Revolving Availability Period in an aggregate principalamount that will not result in (i) such Dollar Tranche Revolving Lender’s Revolving Exposure exceedingsuch Dollar Tranche Revolving Lender’s Dollar Tranche Revolving Commitment or (ii) the AggregateRevolving Exposure exceeding the Aggregate Revolving Commitment. Within the foregoing limits and-54-
subject to the terms and conditions set forth herein, the US Borrower may borrow, prepay and reborrowDollar Tranche Revolving Loans without premium or penalty (but subject to Section 2.13, if applicable).(b) Subject to the terms and conditions set forth herein, each Multicurrency TrancheRevolving Lender agrees to make Loans in any Agreed Currency to the Borrowers (each such loan, a“Multicurrency Tranche Revolving Loan”) from time to time during the Revolving Availability Period inan aggregate principal amount that will not result in (i) such Multicurrency Tranche Revolving Lender’sRevolving Exposure exceeding such Multicurrency Tranche Revolving Lender’s Multicurrency TrancheRevolving Commitment, (ii) the Aggregate Revolving Exposure exceeding the Aggregate RevolvingCommitment or (iii) the Aggregate Revolving Exposure to the UK Borrower exceeding the UK Sublimit,if applicable. Within the foregoing limits and subject to the terms and conditions set forth herein, theBorrowers may borrow, prepay and reborrow Multicurrency Tranche Revolving Loans without premiumor penalty (but subject to Section 2.13, if applicable).(c) Solely at the Company’s option, and to the extent that any Dollar Tranche RevolvingLender becomes able to lend under the Multicurrency Tranche, such Dollar Tranche Revolving Lendermay elect to have its Dollar Tranche Revolving Commitment converted to a Multicurrency TrancheRevolving Commitment upon no less than thirty (30) days’ prior written notice to the AdministrativeAgent and the Borrowers, which written notice shall contain a certification that such Dollar TrancheRevolving Lenders is able to lend to the Borrowers in the Agreed Currencies under the MulticurrencyTranche. The Administrative Agent and the Borrowers shall determine the effective date of anyreallocation (the “Reallocation Effective Date”) and the Administrative Agent is hereby authorized torevise Schedule 2.01 to reflect such reallocation. The Administrative Agent shall promptly notify theBorrowers and the Lenders of any reallocation and the Reallocation Effective Date. In addition, inconnection with any reallocation, the Borrowers shall, after taking into account such reallocation, prepayany Loans and cash collateralize any Letters of Credit outstanding on the Reallocation Effective Date tothe extent necessary to keep the outstanding Loans and Letters of Credit ratable following suchreallocation; provided that in the event that the Reallocation Effective Date is a day other than the last dayof each applicable Interest Period, the applicable Lenders have waived any additional amounts otherwiserequired to be paid by the Borrowers under Sections 2.12, 2.13 or 2.14.SECTION 2.02. Loans and Borrowings.(a) Each Dollar Tranche Revolving Loan and each Multicurrency Tranche Revolving Loan,in each case, to the U.S.US Borrower (other than a Swingline Loan) denominated in dollarsDollars (eachsuch Loan, a “Global Dollar Loan”) shall be made as part of a Global Dollar Loan Borrowing consistingof Global Dollar Loans made by the Dollar Tranche Revolving Lenders and the Multicurrency TrancheRevolving Lenders ratably based upon their Global Applicable Percentage. The failure of any Lender tomake Global Dollar Loan required to be made by it shall not relieve any other Lender of its obligationshereunder; provided that the Revolving Commitments of the Lenders are several and no Lender shall beresponsible for any other Lender’s failure to make Loans as required. Any Swingline Loan shall be madein accordance with the procedures set forth in Section 2.19.(b) Each Multicurrency Tranche Revolving Loan (other than a Swingline Loan and a GlobalDollar Loan) shall be made as part of a Borrowing consisting of Multicurrency Tranche Revolving Loansof the same Type made by the Lenders ratably in accordance with their respective Multicurrency TrancheRevolving Commitments. The failure of any Multicurrency Tranche Revolving Lender to make anyMulticurrency Tranche Revolving Loan required to be made by it shall not relieve any otherMulticurrency Tranche Lender of its obligations hereunder; provided that the Multicurrency TrancheRevolving Commitments of the Multicurrency Tranche Revolving Lenders are several and noMulticurrency Tranche Revolving Lender shall be responsible for any other Multicurrency Tranche-55-
Revolving Lender’s failure to make Multicurrency Tranche Revolving Loans as required. Any SwinglineLoan under the Multicurrency Tranche shall be made in accordance with the procedures set forth inSection 2.19.(c) Subject to Sections 2.11 and 2.12, each Borrowing (other than Swingline Loans) shall becomprised (i) in the case of Borrowings in dollarsDollars, entirely of ABR Loans or EurocurrencyTermBenchmark Loans and (ii) in the case of Borrowings in Euros, entirely of Term Benchmark Loans and(iii) in the case of Borrowings in Sterling, entirely of RFR Loans, in each case, as the applicable Borrowermay request in accordance herewith. Each Swingline Loan to the US Borrower shall be an ABR Loan,each Swingline Loan denominated in eurosEuros to the UK Borrower shall be a RFR Loan and eachSwingline Loan denominated in Sterling to the UK Borrower shall be a RFR Loan. Each Lender at itsoption may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender tomake such Loan; provided that any exercise of such option shall not affect the obligation of the USBorrower or UK Borrower, as applicable, to repay such Loan in accordance with the terms of thisAgreement.(d) At the commencement of each Interest Period for any Eurocurrency Borrowing or anyTerm Benchmark Borrowing, such Borrowing shall be in an aggregate amount that is an integral multipleof $1,000,000 and not less than $1,000,000; provided that a Eurocurrency Borrowing or a TermBenchmark Borrowing that results from a continuation of an outstanding Eurocurrency Borrowing orTerm Benchmark Borrowing, as applicable, may be in an aggregate amount that is equal to suchoutstanding Borrowing. At the time that each ABR Borrowing and/or RFR Borrowing is made, suchBorrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than$1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entireunused balance of the Aggregate Revolving Commitment. Borrowings of more than one Type and Classmay be outstanding at the same time; provided that there shall not at any time be more than a total offifteen (15), or eighteen (18) after the date of any increase in accordance with Section 2.21 (or suchgreater number as may be agreed to by the Administrative Agent), Eurocurrency Borrowings, TermBenchmark Borrowings and RFR Borrowings outstanding.(e) Notwithstanding any other provision of this Agreement, the Borrowers shall not beentitled to request, or to elect to convert to or continue, any Eurocurrency Borrowing if the Interest Periodrequested with respect thereto would end after the Maturity Date.SECTION 2.03. Requests for Borrowings. To request a Borrowing, the applicable Borrowershall notify the Administrative Agent of such request by telephone or in writing (a) in the case of aEurocurrencyTerm Benchmark Borrowing denominated in dollarsDollars, not later than 12:30 p.m., NewYork City time, three U.S. Government Securities Business Days before the date of the proposedBorrowing, (b) in the case of a Term Benchmark Borrowing denominated in Euros, not later than 12:30p.m., New York City time, three Business Days before the date of the proposed Borrowing, (c) in the caseof an RFR Borrowing denominated in Sterling, not later than 12:30 p.m., New York City time, five RFRBusiness Days before the date of the proposed Borrowing or (d) in the case of an ABR Borrowing, notlater than 12:30 p.m., New York City time, on the day of the proposed Borrowing; provided that any suchnotice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated bySection 2.20(e) may be given not later than 12:30 p.m. on the date of the proposed Borrowing. Each suchtelephonic and written Borrowing Request shall be irrevocable and shall be made (or, if telephonic,confirmed promptly) by hand delivery or facsimile to the Administrative Agent of an executed writtenBorrowing Request. Each such telephonic and written Borrowing Request shall specify the followinginformation in compliance with Section 2.02: -56-
(i) Whether the requested Borrowing is to be a Global Dollar Loan Borrowing or aMulticurrency Tranche Revolving Loan Borrowing;(ii) the applicable Borrower, the aggregate amount and Agreed Currency of suchBorrowing;(iii) the date of such Borrowing, which shall be a Business Day;(iv) whether such Borrowing is to be made under the Dollar Tranche and/or theMulticurrency Tranche;(v) whether such Borrowing is to be an ABR Borrowing, a Eurocurrency Borrowing,a Term Benchmark Borrowing or an RFR Borrowing;(vi) in the case of a Eurocurrency Borrowing or a Term Benchmark Borrowing, theinitial Interest Period to be applicable thereto, which shall be a period contemplated by thedefinition of the term “Interest Period”; and(vii) the location and number of the account of the applicable Borrower to whichfunds are to be disbursed.If no election as to the tranche of Loans is specified, and the requested Loans are requested byany Borrower in Euros or Sterling, then the requested Borrower shall be deemed to be made under theMulticurrency Tranche. If no election as to the currency of a Borrowing is specified, then the requestedBorrowing shall be made in dollarsDollars. If no election as to the Type of Borrowing is specified, thenthe requested Borrowing shall be an ABR Borrowing made in dollarsDollars. If no Interest Period isspecified with respect to any requested Eurocurrency Borrowing or a Term Benchmark Borrowing, thenthe Company shall be deemed to have selected an Interest Period of one month’s duration. Promptlyfollowing receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shalladvise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part ofthe requested Borrowing.Notwithstanding the foregoing, in no event shall the Borrower be permitted to request an RFRLoan denominated in Dollars (it being understood and agreed that, with respect to any RFR Borrowingdenominated in Dollars, Adjusted Daily Simple RFR shall only apply to the extent provided in Sections2.11(a) and 2.11(f)).SECTION 2.04. Funding of Borrowings.(a) Each Lender shall make each Loan to be made by it hereunder on the proposed datethereof by wire transfer of immediately available funds by 1:00 p.m., New York City time (or 1:00 p.m.,London time with respect to Loans denominated in an Agreed Currency (other than dollarsDollars)) (or,in the case of ABR Loans, such later time as shall be two hours after the delivery by the applicableBorrower of a Borrowing Request therefor in accordance with Section 2.03), in each case, to the accountof the Administrative Agent most recently designated by it for such purpose by notice to the Lenders;provided that Swingline Loans shall be made as provided in Section 2.19. The Administrative Agent willmake such Loans available to the applicable Borrower by promptly remitting the amounts so received, inlike funds, to an account of the applicable Borrower; provided that ABR Loans made to finance thereimbursement of an LC Disbursement as provided in Section 2.20(e) shall be remitted by theAdministrative Agent to the Applicable Issuing Bank.-57-
(b) Unless the Administrative Agent shall have received notice from a Lender prior to theproposed date of any Borrowing that such Lender will not make available to the Administrative Agentsuch Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has madesuch share available on such date in accordance with paragraph (a) of this Section and may, in reliance onsuch assumption, make available to the applicable Borrower a corresponding amount. In such event, if aLender has not in fact made its share of the applicable Borrowing available to the Administrative Agent,then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agentforthwith on written demand such corresponding amount with interest thereon, for each day from andincluding the date such amount is made available to the applicable Borrower to but excluding the date ofpayment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, thegreater of the applicable Overnight Rate and a rate determined by the Administrative Agent in accordancewith banking industry rules on interbank compensation or (ii) in the case of a payment to be made by theapplicable Borrower, the interest rate applicable to ABR Loans or, in the case of Alternative Currencies,in accordance with such market practice, in each case, as applicable. If the Borrowers and such Lendershall pay such interest to the Administrative Agent for the same or an overlapping period, theAdministrative Agent shall promptly remit to the applicable Borrower the amount of such interest paid bythe applicable Borrower for such period. If such Lender pays such amount to the Administrative Agent,then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by theapplicable Borrower shall be without prejudice to any claim the applicable Borrower may have against aLender that shall have failed to make such payment to the Administrative Agent.SECTION 2.05. Interest Elections.(a) Each Borrowing initially shall be of the Type and Agreed Currency and, in the case of aEurocurrency Borrowing or a Term Benchmark Borrowing, shall have an initial Interest Period asspecified in the applicable Borrowing Request or as otherwise provided in Section 2.03. Thereafter, theapplicable Borrower may elect to convert such Borrowing to a Borrowing of a different Type or tocontinue such Borrowing and, in the case of a Eurocurrency Borrowing or a Term Benchmark Borrowing,may elect Interest Periods therefor, all as provided in this Section. The applicable Borrower may electdifferent options with respect to different portions of the affected Borrowing, in which case each suchportion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, andthe Loans comprising each such portion shall be considered a separate Borrowing. Except as provided inSection 2.01(c), no Dollar Tranche Revolving Loan may be converted into or continued as aMulticurrency Tranche Revolving Loans, and no Multicurrency Tranche Revolving Loan may beconverted into or continued as a Dollar Tranche Revolving Loan.(b) To make an election pursuant to this Section, the applicable Borrower shall notify theAdministrative Agent of such election by telephone or in writing by the time that a Borrowing Requestwould be required under Section 2.03 if the applicable Borrower were requesting a Borrowing of theType resulting from such election to be made on the effective date of such election. Each such telephonicand written Interest Election Request shall be irrevocable and shall be made (or, if telephonic, confirmedpromptly) by hand delivery or facsimile to the Administrative Agent of an executed written InterestElection Request. Each telephonic and written Interest Election Request shall specify the followinginformation in compliance with Section 2.02:(i) the applicable Borrower, the Agreed Currency and the Borrowing to which suchInterest Election Request applies and, if different options are being elected with respect todifferent portions thereof, the portions thereof to be allocated to each resulting Borrowing (inwhich case the information to be specified pursuant to clauses (iii) and (iv) below shall bespecified for each resulting Borrowing); -58-
(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 is to be an ABR Borrowing, a EurocurrencyBorrowing, a Term Benchmark Borrowing or an RFR Borrowing; and(iv) if the resulting Borrowing is to be a Eurocurrency Borrowing or a TermBenchmark Borrowing, the Interest Period to be applicable thereto after giving effect to suchelection, which shall be a period contemplated by the definition of the term “Interest Period.”If any such Interest Election Request requests a Eurocurrency Borrowing or a Term BenchmarkBorrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed to haveselected an Interest Period of one month’s duration.(c) Promptly following receipt of an Interest Election Request in accordance with thisSection, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’sportion of each resulting Borrowing.(d) If the applicable Borrower fails to deliver a timely Interest Election Request with respectto a EurocurrencyTerm Benchmark Borrowing in dollarsDollars prior to the end of the Interest Periodapplicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such InterestPeriod such Borrowing shall be deemed to have been continued as a EurocurrencyTerm BenchmarkBorrowing for an additional Interest Period of one month. If the applicable Borrower fails to deliver atimely and complete Interest Election Request with respect to a Term Benchmark Borrowing in Eurosprior to the end of the Interest Period therefor, then, unless such Term Benchmark Borrowing is repaid asprovided herein, the applicable Borrower shall be deemed to have selected that such Term BenchmarkBorrowing shall automatically be continued as a Term Benchmark Borrowing in Euros with an InterestPeriod of one month at the end of such Interest Period. Notwithstanding any contrary provision hereof, ifan Event of Default under clause (h) or (i) of Section 7.01 has occurred and is continuing with respect tothe applicable Borrower, or if any other Event of Default has occurred and is continuing and theAdministrative Agent, at the request of (x) in the case of a Borrowing denominated in dollarsDollars, theRequired Lenders and (y) in the case of a Borrowing denominated in an Alternative Currency, a Majorityin Interest of the applicable Class has notified the applicable Borrower of the election to give effect to thissentence on account of such other Event of Default, then, in each such case, so long as such Event ofDefault is continuing, (i) no outstanding Borrowing may be converted to or continued as aEurocurrencyTerm Benchmark Borrowing or an RFR Borrowing and (ii) unless repaid, (x) (A) eachEurocurrencyTerm Benchmark Borrowing denominated in dollarsDollars shall be converted to an ABRBorrowing at the end of the Interest Period applicable thereto and (B) each RFR Borrowing denominatedin Dollars shall be converted to an ABR Borrowing on the following Interest Payment Date applicablethereto and (y) each Term Benchmark Borrowing and each RFR Borrowing, in each case denominated inan Alternative Currency shall bear interest at the Central Bank Rate for the applicable Agreed Currencyplus the CBR Spread; provided that, if the Administrative Agent determines (which determination shallbe conclusive and binding absent manifest error) that the Central Bank Rate for the applicable AgreedCurrency cannot be determined, any outstanding affected Term Benchmark Loans denominated in anyAgreed Currency shall either be (A) converted to an ABR Borrowing denominated in Dollars (in anamount equal to the Dollar Equivalent of such Alternative Currency) at the end of the Interest Period, asapplicable, therefor or (B) prepaid at the end of the applicable Interest Period, as applicable, in full;provided that if no election is made by the applicable Borrower by the earlier of (x) the date that is threeBusiness Days after receipt by the applicable Borrower of such notice and (y) the last day of the current-59-
Interest Period for the applicable Term Benchmark Loan, the applicable Borrower shall be deemed tohave elected clause (A) above.SECTION 2.06. Termination and Reduction of Revolving Commitments.(a) Unless previously terminated, the Revolving Commitments shall automatically terminateon the Maturity Date.(b) The Company may at any time terminate, or from time to time permanently reduce, theRevolving Commitments; provided that (i) each reduction of the Revolving Commitments shall be in anamount that is an integral multiple of $1,000,000 and not less than $5,000,000, (ii) the Company shall notterminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment ofthe Loans in accordance with Section 2.08, the Aggregate Revolving Exposure would exceed theAggregate Revolving Commitment, (iii) the other Revolving Exposure limitations set forth in Sections2.01 and 2.02 shall be satisfied after giving effect to any such reduction and (iv) with respect to a partialreduction, the amount of Aggregate Revolving Commitments shall not be less than $250,000,000.(c) The UK Borrower may from time to time terminate, or from time to time permanentlyreduce, the UK Sublimit under the Multicurrency Tranche Revolving Commitments; provided that (i)each reduction of the UK Sublimit under the Multicurrency Tranche Revolving Commitments shall be inan amount that is an integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the UKBorrower shall not reduce the UK Sublimit under the Multicurrency Tranche Revolving Commitments ifafter giving effect to any concurrent prepayment of the Loans in accordance with Section 2.08, (I) theAggregate Revolving Exposure to the UK Borrower would exceed the UK Sublimit, (II) the AggregateRevolving Exposure under the Multicurrency Tranche would exceed the aggregate MulticurrencyTranche Revolving Commitments or (III) the Aggregate Revolving Exposure would exceed theAggregate Revolving Commitment. The date on which the Multicurrency Tranche RevolvingCommitments are terminated in full in accordance with this Section 2.06(c), the “UK CommitmentTermination Date”).(d) The applicable Borrower shall notify the Administrative Agent of any election toterminate or reduce the Revolving Commitments and/or the UK Sublimit under paragraphs (b) and/or (c)of this Section at least three Business Days prior to the effective date of such termination or reduction,specifying the effective date thereof. Promptly following receipt of any such notice, the AdministrativeAgent shall advise the Lenders of the contents thereof. Each notice delivered by the applicable Borrowerpursuant to this Section shall be irrevocable; provided that a notice of termination or reduction of theRevolving Commitments and/or the UK Sublimit under paragraphs (b) and/or (c) of this Section maystate that such notice is conditioned upon the occurrence of one or more events specified therein, in whichcase such notice may be revoked by the applicable Borrower (by notice to the Administrative Agent) onor prior to the specified effective date if such condition is not satisfied. Any termination or reduction ofthe Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall bemade ratably among the Lenders in accordance with their respective Revolving Commitments.SECTION 2.07. Repayment of Loans; Evidence of Debt.(a) The US Borrower hereby unconditionally promises to pay to the Administrative Agentfor the account of each Lender the then unpaid principal amount of each Loan of such Lender made toany Borrower on the Maturity Date. The UK Borrower hereby unconditionally promises to pay to theAdministrative Agent for the account of each Lender the then unpaid principal amount of each Loan ofsuch Lender made to the UK Borrower on the Maturity Date. The US Borrower and the UK Borrower, asapplicable, hereby unconditionally promise to pay (severally and not jointly) to the Administrative Agent-60-
for the account of the Swingline Lenders the then unpaid principal amount of each Swingline Loan madeto such Borrower on the earlier of the Maturity Date and the fifth Business Day after such SwinglineLoan is made; provided that on each date that a Revolving Borrowing is made, the Borrower shall repayall Swingline Loans then outstanding and the proceeds of any such Borrowing shall be applied by theAdministrative Agent to repay any Swingline Loans outstanding. For the avoidance of doubt, and subjectto the proviso to Section 5.10(a), the UK Borrower shall not be liable for (and will not guarantee or bedeemed to guarantee) any Loan made to (or other Obligations of) the US Borrower.(b) The records maintained by the Administrative Agent and the Lenders shall (in the case ofthe Lenders, to the extent they are not inconsistent with the records maintained by the AdministrativeAgent pursuant to Section 9.04(b)(iv)) be prima facie evidence of the existence and amounts of theobligations of the Borrowers in respect of the Loans, interest and fees due or accrued hereunder; providedthat the failure of the Administrative Agent or any Lender to maintain such records or any error thereinshall not in any manner affect the obligation of the Borrowers to pay any amounts due hereunder inaccordance with the terms of this Agreement.(c) Any Lender may request that Loans made by it be evidenced by a promissory note. Insuch event, the applicable Borrower shall prepare, execute and deliver to such Lender a promissory notepayable to such Lender and its registered assigns and in a form approved by the Administrative Agent.Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (includingafter assignment pursuant to Section 9.04) be represented by one or more promissory notes in such formpayable to the payee named therein and its registered assigns.SECTION 2.08. Prepayment of Loans.(a) The Borrowers shall have the right at any time and from time to time to prepay anyBorrowing in whole or in part, without premium or penalty, subject to the requirements of this Section.(b) The Company shall notify the Administrative Agent by delivery of a Notice of LoanPrepayment of any optional prepayment hereunder (i) in the case of prepayment of a EurocurrencyTermBenchmark Borrowing denominated in dollarsDollars, not later than 12:30 p.m., New York City time,three U.S. Government Securities Business Days before the date of prepayment, (ii) in the case ofprepayment of an RFR Borrowing denominated in Dollars, not later than 12:30 p.m., New York Citytime, three U.S. Government Securities Business Days before the date of prepayment, (iii) in the case ofprepayment of a Term Benchmark Revolving Borrowing denominated in Euros, not later than 12:30 p.m.,New York City time, three Business Days before the date of prepayment, (iiiiv) in the case of prepaymentof an RFR Revolving Borrowing denominated in Sterling, not later than 12:30 p.m., New York City time,five RFR Business Days before the date of prepayment, and (ivv) in the case of prepayment of an ABRBorrowing, not later than 12:30 p.m., New York City time, one Business Day before the date ofprepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the AgreedCurrency and the Borrowing or Borrowings to be prepaid and the principal amount of each suchBorrowing or portion thereof to be prepaid; provided that a Notice of Loan Prepayment may state thatsuch notice is conditioned upon the occurrence of one or more events specified therein, in which casesuch notice may be revoked by the applicable Borrower (by notice to the Administrative Agent) on orprior to the specified effective date if such condition is not satisfied. Promptly following receipt of anysuch notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partialprepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance ofa Borrowing of the same Type as provided in Section 2.02. Each prepayment of a Borrowing shall beapplied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied byaccrued interest to the extent required by Section 2.10.-61-
(c) In the event and on such occasion that the total Aggregate Revolving Exposure exceedsthe Aggregate Revolving Commitments or any other Revolving Exposure limitations set forth in Sections2.01 and 2.02 are not satisfied, the US Borrower shall promptly prepay the Loans, Floorplan LoanExposure, LC Exposure and/or Swingline Loans in an aggregate amount equal to such excess. In theevent and on such occasion that the Aggregate Revolving Exposure to the UK Borrower exceeds the UKSublimit, the UK Borrower shall prepay the Multicurrency Tranche Loans, LC Exposure and/orSwingline Loans made to such UK Borrower in an aggregate amount equal to such excess. Allprepayments required by this Section 2.08(c) shall be applied to reduce the outstanding principal balanceof the Loans, including Swingline Loans (without a permanent reduction of the any Commitment) and tocash collateralize outstanding LC Exposure and Floorplan Loan Exposure.SECTION 2.09. Fees.(a) The US Borrower agrees to pay to the Administrative Agent for the account of eachLender a commitment fee (the “Revolving Commitment Fee”), which shall accrue at the Applicable Rateon the daily amount of the Available Revolving Commitment of such Lender during the period from andincluding the Effective Date to but excluding the date on which such Revolving Commitment terminates.Accrued Revolving Commitment Fees in respect of the Revolving Commitments shall be payable inarrears on the fifteenth day following the last Business Day of March, June, September and December ofeach year and on the date on which the Revolving Commitments terminate, commencing on the first suchdate to occur after the Effective Date. All Revolving Commitment Fees shall be computed on the basis ofa year of 360 days and shall be payable for the actual number of days elapsed (including the first day butexcluding the last day).(b) The US Borrower agrees to pay to the Administrative Agent, for its own account, feespayable in the amounts and at the times separately agreed upon between the Company and theAdministrative Agent, including pursuant to the Agent Fee Letter.(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds,to (i) in the case of the Revolving Commitment Fees, the Administrative Agent for distribution to theLenders entitled thereto and (ii) in the case of any fees payable to the Administrative Agent for its ownaccount, to the Administrative Agent. Fees paid shall not be refundable under any circumstances.(d) The Company agree to pay (i) to the Administrative Agent for the account of each Lendera participation fee with respect to its participations in Letters of Credit at a per annum rate equal to theApplicable Rate applicable to EurocurrencyTerm Benchmark Loans, on the average daily amount of suchLender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements)during the period from and including the Effective Date to but excluding the later of the date on whichsuch Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have anyLC Exposure, and (ii) to each Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% perannum on the average daily amount of the LC Exposure (excluding any portion thereof attributable tounreimbursed LC Disbursements) during the period from and including the Effective Date to butexcluding the later of the date of termination of the Revolving Commitments and the date on which thereceases to be any LC Exposure, as well as such Issuing Bank’s standard fees with respect to the issuance,amendment, cancellation, negotiation, transfer, renewal or extension of any Letter of Credit or processingof drawings thereunder. Participation fees and fronting fees accrued through and including the last day ofeach March, June, September and December of each year shall be payable in arrears on the fifteenth dayfollowing the last Business Day of March, June, September and December of each year, commencing onthe first such date to occur after the Effective Date; provided that all such fees shall be payable on the dateon which the Revolving Commitments terminate and any such fees accruing after the date on which theCommitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant-62-
to this paragraph shall be payable within 30 days after written demand. All participation fees and frontingfees shall be computed on the basis of a year of 360 days and shall be payable for the actual number ofdays elapsed.(e) Subject to receipt from the Floorplan Funding Agent, the Administrative Agent agrees topay to each Lender, for its own account, for each period set forth below, a fee (the “Floorplan LoanExposure Fee”) in an amount equal to (i) the Applicable Floorplan Loan Exposure Fee Percentage perannum multiplied by (ii) the product of (A) a fraction, the numerator of which is the average dailyamount of the Revolving Commitment (or, if the Revolving Commitments have terminated, the aggregateRevolving Exposure to the Borrowers) of such Lender during such period and the denominator of whichis average daily amount of aggregate Revolving Commitments (or, if the Revolving Commitments haveterminated, the aggregate Revolving Exposure to the Borrowers) of all Lenders during such periodmultiplied by (B) the average daily amount of the Floorplan Loan Exposure (but excluding that portionattributable to unreimbursed Floorplan Loan Payments) for such period. After receipt of thecorresponding fee from the Floorplan Funding Agent, the Administrative Agent shall pay the FloorplanLoan Exposure Fee to each Lender in arrears on (i) the first Business Day of each calendar quarter for thepreceding calendar quarter (or portion thereof), commencing on the first such date to occur following theEffective Date and continuing until the date upon which the Floorplan Loan Exposure (other thanunreimbursed Floorplan Loan Payments) is permanently reduced to $0 upon or following the TerminationDate, and (ii) on the date the Floorplan Loan Exposure (other than unreimbursed Floorplan LoanPayments) is permanently reduced to $0 upon or following the Termination Date.SECTION 2.10. Interest.(a) The Loans comprising each ABR Borrowing (including each Swingline Loan to the USBorrower) shall bear interest at the Alternate Base Rate plus the Applicable Rate.(b) The Loans comprising each EurocurrencyTerm Benchmark Borrowing denominated inDollars shall bear interest at the Adjusted LIBOTerm SOFR Rate for the Interest Period in effect for suchBorrowing plus the Applicable Rate,(c) The Loans comprising each Term Benchmark Borrowing denominated in Euros shallbear interest at the Adjusted EURIBOR Rate for the Interest Period in effect for such Borrowing plus theApplicable Rate.(d) Each RFR Loan (other than a Swingline Loan) shall bear interest at a rate per annumequal to the applicable Adjusted Daily Simple RFR plus the Applicable Rate.(e) The Swingline Loans to the UK Borrower shall bear interest (i) in the case of SwinglineLoan denominated in eurosEuros, at the Adjusted Daily Simple RFR or (ii) in the case of a SwinglineLoan denominated in Sterling, at Adjusted Daily Simple RFR, in each case, plus the Applicable Rate.(f) Notwithstanding the foregoing, if an Event of Default under Section 7.01(a) or (b) shallhave occurred and be continuing, whether at stated maturity, upon acceleration or otherwise, then, uponthe written request of the Required Lenders until the related defaulted amount shall have been paid in full,to the extent permitted by law, 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% per annum plus therate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) inthe case of overdue interest, overdue fees or any other amounts on any Loan with respect to any-63-
Revolving Commitment, 2.00% per annum plus the rate applicable to ABR Loans, as provided inparagraph (a) of this Section.(g) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Datefor such Loan and upon the termination of the Revolving Commitments; provided that (i) interest accruedpursuant to paragraph (f) of this Section shall be payable on written demand of the Required Lenders, (ii)in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan priorto the end of the Revolving Availability Period), accrued interest on the principal amount repaid orprepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of anyconversion of a Eurocurrency Loan or a Term Benchmark Loan prior to the end of the current InterestPeriod therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.Any accrued and unpaid interest on any Loan shall be due and payable on the date such Loan is repaid.(h) Interest computed by reference to the LIBOTerm SOFR Rate, Daily Simple SOFR or theEURIBOR Rate with respect to dollarsDollars and Euros hereunder shall be computed on the basis of ayear of 360 days. Interest computed by reference to the Daily Simple RFR with respect to Sterling or theAlternate Base Rate only at times when the Alternate Base Rate is based on the Prime Rate shall becomputed on the basis of a year of 365 days (or, in the case of Alternate Base Rate, 366 days in a leapyear). In each case interest shall be payable for the actual number of days elapsed (including the first daybut excluding the last day). All interest hereunder on any Loan shall be computed on a daily basis basedupon the outstanding principal amount of such Loan as of the applicable date of determination. TheAnydetermination of the applicable Alternate Base Rate, Adjusted LIBOTerm SOFR Rate, LIBOTerm SOFRRate, Adjusted EURIBOR Rate, EURIBOR Rate, Adjusted Daily Simple RFR, Daily Simple RFR orDaily Simple ESTR shall be determined by the Administrative Agent, and such determination shall beconclusive absent manifest error.SECTION 2.11. Inability to Determine Rates.(a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.11, if:(i) the Administrative Agent determines (which determination shall be conclusiveabsent manifest error) (A) prior to the commencement of any Interest Period for a TermBenchmark Borrowing, that adequate and reasonable means do not exist for ascertaining theAdjusted LIBO Rate, the LIBO Rate, the Adjusted Term SOFR Rate, the Term SOFR Rate, theAdjusted EURIBOR Rate or the EURIBOR Rate (including because the Relevant Screen Rate isnot available or published on a current basis), for the applicable Agreed Currency and suchInterest Period or (B) at any time, that adequate and reasonable means do not exist forascertaining the applicable Adjusted Daily Simple RFR, Daily Simple RFR, RFR, Daily SimpleESTR or ESTR for the applicable Agreed Currency; or(ii) the Administrative Agent is advised by the Required Lenders that (A) prior to thecommencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted LIBORate, the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate for the applicable AgreedCurrency and such Interest Period will not adequately and fairly reflect the cost to such Lenders(or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing forthe applicable Agreed Currency and such Interest Period or (B) at any time, the applicableAdjusted Daily Simple RFR, RFR, Daily Simple ESTR or ESTR for the applicable AgreedCurrency will not adequately and fairly reflect the cost to such Lenders (or Lender) of making ormaintaining their Loans (or its Loan) included in such Borrowing for the applicable AgreedCurrency; -64-
then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone,telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agentnotifies the Company and the Lenders that the circumstances giving rise to such notice no longer existwith respect to the relevant Benchmark and (y) the Company delivers a new Interest Election Request inaccordance with the terms of Section 2.05 or a new Borrowing Request in accordance with the terms ofSection 2.03, (A) for Loans denominated in dollarsDollars, (1) any Interest Election Request that requeststhe conversion of any Borrowing to, or continuation of any Borrowing as, a EurocurrencyTermBenchmark Borrowing and any Borrowing Request that requests a EurocurrencyTerm BenchmarkBorrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, asapplicable, for (x) a Term Benchmark Borrowing denominated in dollars so long as the Term Benchmarkfor dollar Borrowings is not also the subject of Section 2.11(a)(i) or (ii) above, (y) if the Term Benchmarkfor dollar Borrowings is also the subject of Section 2.14(a)(i) or (ii), an RFR Borrowing denominated indollarsDollars so long as the Adjusted Daily Simple RFR for dollarDollar Borrowings is not also thesubject of Section 2.11(a)(i) or (ii) above or (zy) an ABR Borrowing if the Adjusted Daily Simple RFRfor dollarDollar Borrowings also is the subject of Section 2.142.11(a)(i) or (ii) above, an ABR Borrowingand (2) any Borrowing Request that requests a EurocurrencyTerm Benchmark Borrowing shall instead bedeemed to be a Borrowing Request, as applicable, for a Term Benchmark Borrowing, an RFR Borrowingor an ABR Borrowing, as applicable, and (B) for Loans denominated in an Alternative Currency, anyInterest Election Request that requests the conversion of any Borrowing to, or continuation of anyBorrowing as, a Term Benchmark Borrowing or an RFR Borrowing and any Borrowing Request thatrequests a Term Benchmark Borrowing or an RFR Borrowing, in each case, for the relevant Benchmark,shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type ofBorrowings, then all other Types of Borrowings shall be permitted.Furthermore, if any Eurocurrency Loan, Term Benchmark Loan or RFR Loan in any Agreed Currency isoutstanding on the date of the Company’s receipt of the notice from the Administrative Agent referred toin this Section 2.11(a) with respect to a Relevant Rate applicable to such Eurocurrency Loan, TermBenchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Company and theLenders that the circumstances giving rise to such notice no longer exist with respect to the relevantBenchmark and (y) the Company delivers a new Interest Election Request in accordance with the terms ofSection 2.05 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loansdenominated in dollarsDollars, (1) any EurocurrencyTerm Benchmark Loan shall on the last day of theInterest Period applicable to such Loan (or the next succeeding Business Day if such day is not a BusinessDay), be converted by the Administrative Agent to, and shall constitute, (x) a Term BenchmarkBorrowing denominated in dollars so long as the Term Benchmark for dollar Borrowings is not also thesubject of Section 2.11(a)(i) or (ii) above, (y) if the Term Benchmark for dollar Borrowings is also thesubject of Section 2.14(a)(i) or (ii), an RFR Borrowing denominated in dollarsDollars so long as theAdjusted Daily Simple RFR for dollarDollar Borrowings is not also the subject of Section 2.11(a)(i) or(ii) above or (zy) if the Adjusted Daily Simple RFR for dollarDollar Borrowings also is the subject ofSection 2.142.11(a)(i) or (ii) above, an ABR Loan, on such day and (B) for Loans denominated in anAlternative Currency, (1) any Term Benchmark Loan shall, on the last day of the Interest Periodapplicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) bearinterest at the Central Bank Rate for the applicable Alternative Currency plus the CBR Spread; providedthat, if the Administrative Agent determines (which determination shall be conclusive and binding absentmanifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined,any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at theCompany’s election prior to such day: (A) be prepaid by the Company on such day or (B) solely for thepurpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term BenchmarkLoan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loandenominated in dollarsDollars and shall accrue interest at the same interest rate applicable to TermBenchmark Loans denominated in dollarsDollars at such time and (2) any RFR Loan shall bear interest at-65-
the Central Bank Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if theAdministrative Agent determines (which determination shall be conclusive and binding absent manifesterror) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, anyoutstanding affected RFR Loans denominated in any Alternative Currency, at the Company’s election,shall either (A) be converted into ABR Loans denominated in dollarsDollars (in an amount equal to theDollar Equivalent of such Alternative Currency) immediately or (B) be prepaid in full immediately.(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if aBenchmark Transition Event and its related Benchmark Replacement Date have occurred prior to theReference Time in respect of any setting of the then-current Benchmark, then (x) if a BenchmarkReplacement is determined in accordance with clause (1) or (2) of the definition of “BenchmarkReplacement” with respect to dollarsDollars for such Benchmark Replacement Date, such BenchmarkReplacement will replace such Benchmark for all purposes hereunder and under any Loan Document inrespect of such Benchmark setting and subsequent Benchmark settings without any amendment to, orfurther action or consent of any other party to, this Agreement or any other Loan Document and (y) if aBenchmark Replacement is determined in accordance with clause (3) or (4) of the definition of“Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date,such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under anyLoan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on thefifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenderswithout any amendment to, or further action or consent of any other party to, this Agreement or any otherLoan Document so long as the Administrative Agent has not received, by such time, written notice ofobjection to such Benchmark Replacement from Lenders comprising the Required Lenders.(c) Notwithstanding anything to the contrary herein or in any other Loan Document, theAdministrative Agent (in consultation with the Company) will have the right to make BenchmarkReplacement Conforming Changes from time to time and, notwithstanding anything to the contraryherein or in any other Loan Document, any amendments implementing such Benchmark ReplacementConforming Changes will become effective without any further action or consent of any other party tothis Agreement or any other Loan Document.(d) The Administrative Agent will promptly notify the Company and the Lenders of (i) anyoccurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement,(iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal orreinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement orconclusion of any Benchmark Unavailability Period. Any determination, decision or election that may bemade by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrenceor non-occurrence of an event, circumstance or date and any decision to take or refrain from taking anyaction or any selection, will be conclusive and binding absent manifest error and may be made in its ortheir sole discretion and without consent from any other party to this Agreement or any other LoanDocument, except, in each case, as expressly required pursuant to this Section 2.11.(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at anytime (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the LIBO Rate, Term SOFR Rate or EURIBOR Rate) andeither (A) any tenor for such Benchmark is not displayed on a screen or other information service thatpublishes such rate from time to time as selected by the Administrative Agent in its reasonable discretionor (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statementor publication of information announcing that any tenor for such Benchmark is or will be no longerrepresentative, then the Administrative Agent may modify the definition of “Interest Period” for any-66-
Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) ifa tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen orinformation 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 aBenchmark 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.(f) Upon the Company’s receipt of notice of the commencement of a BenchmarkUnavailability Period, the Company may revoke any request for (i) a Eurocurrency Borrowing, TermBenchmark Borrowing or RFR Borrowing (if any, after the effectiveness of a Benchmark Replacement)of, conversion to or continuation of Eurocurrency Loans or Term Benchmark Loans to be made,converted or continued or (ii) an RFR Borrowing or conversion to RFR Loans, during any BenchmarkUnavailability Period and, failing that, either (x) the Company will be deemed to have converted anyrequest for (1) a EurocurrencyTerm Benchmark Borrowing or RFR Borrowing, as applicable,denominated in dollarsDollars into a request for a Borrowing of or conversion to (A) a Term BenchmarkBorrowing denominated in dollars so long as the Term Benchmark for dollar Borrowings is not also thesubject of a Benchmark Transition Event, (B) if the Term Benchmark for dollar Borrowings is also thesubject of a Benchmark Transition Event, an RFR Borrowing denominated in dollarsDollars so long asthe Adjusted Daily Simple RFR for dollarDollar Borrowings is not the subject of a Benchmark TransitionEvent or (CB) an ABR Borrowing if the Adjusted Daily Simple RFR for dollarDollar Borrowings is thesubject of a Benchmark Transition Event or (y) any Term Benchmark Borrowing or RFR Borrowingdenominated in an Alternative Currency shall be ineffective. During any Benchmark UnavailabilityPeriod or at any time that a tenor for the then-current Benchmark is not an Available Tenor, thecomponent of ABR based upon the then-current Benchmark or such tenor for such Benchmark, asapplicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan, TermBenchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Company’sreceipt of notice of the commencement of a Benchmark Unavailability Period with respect to a RelevantRate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a BenchmarkReplacement for such Agreed Currency is implemented pursuant to this Section 2.11, (A) for Loansdenominated in dollarsDollars any EurocurrencyTerm Benchmark Loan shall on the last day of theInterest Period applicable to such Loan (or the next succeeding Business Day if such day is not a BusinessDay), be converted by the Administrative Agent to, and shall constitute, (x) a Term BenchmarkBorrowing denominated in dollars so long as the Term Benchmark for dollar Borrowings is not also thesubject of a Benchmark Transition Event, (y) if the Term Benchmark for dollar Borrowings is also thesubject of Benchmark Transition Event, an RFR Borrowing denominated in dollarsDollars so long as theAdjusted Daily Simple RFR for dollarDollar Borrowings is not the subject of a Benchmark TransitionEvent or (zy) an ABR Loan if the Adjusted Daily Simple RFR for dollarDollar Borrowings is the subjectof a Benchmark Transition Event, on such day and (B) for Loans denominated in an AlternativeCurrency, (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to suchLoan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the CentralBank Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if theAdministrative Agent determines (which determination shall be conclusive and binding absent manifesterror) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, anyoutstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at theCompany’s election prior to such day: (A) be prepaid by the Company on such day or (B) solely for thepurpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term BenchmarkLoan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loandenominated in dollarsDollars and shall accrue interest at the same interest rate applicable to TermBenchmark Loans denominated in dollarsDollars at such time and (2) any RFR Loan shall bear interest atthe Central Bank Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if theAdministrative Agent determines (which determination shall be conclusive and binding absent manifest-67-
error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, anyoutstanding affected RFR Loans denominated in any Alternative Currency, at the Company’s election,shall either (A) be converted into ABR Loans denominated in dollarsDollars (in an amount equal to theDollar Equivalent of such Alternative Currency) immediately or (B) be prepaid in full immediately.Notwithstanding anything herein or in any other Loan Document to the contrary, in determining analternative rate of interest, the Administrative Agent will use commercially reasonable efforts, to theextent the Administrative Agent is permitted to select an alternate benchmark rate or spread adjustment,to implement any proposal reasonably requested by the Borrowers and not adverse to the Lenders that isintended to prevent the use of an alternative rate of interest pursuant to this Section 2.11 from resulting ina deemed exchange of any Indebtedness hereunder under Section 1001 of the Code.SECTION 2.12. Increased Costs; Illegality.(a) If any Change in Law shall:(i) impose, modify or deem applicable any reserve, special deposit, compulsoryloan, insurance charge or similar requirement against assets of, deposits with or for the accountof, or credit extended or participated in by, any Lender or Issuing Bank (except any such reserverequirement reflected in the Adjusted LIBO Rate, the Adjusted Term SOFR Rate or the AdjustedEURIBOR Rate, as applicable);(ii) impose on any Lender or Issuing Bank or the internationalapplicable offshoreinterbank market for the applicable Agreed Currency any other condition, cost or expense (otherthan Taxes) affecting this Agreement or the Loans made by such Lender, Floorplan LoanPayment Obligation or any Letter of Credit or participation therein; or(iii) subject any Recipient to any Taxes (other than Indemnified Taxes or ExcludedTaxes) with respect to its loans, letters of credit, commitments or other obligations, or itsdeposits, reserves, other liabilities or capital attributable thereto;and the result of any of the foregoing shall be to increase the cost to such Lender or such Issuing Bank orother Recipient of making, converting to, continuing or maintaining any Loan or Floorplan Loan PaymentObligations or of maintaining its obligation to make any Loan or Floorplan Loan Payment Obligations orincrease the cost to any Lender of issuing or maintaining any Letter of Credit or purchasing ormaintaining a participation therein, or to reduce the amount of any sum received or receivable by suchLender or such Issuing Bank or other Recipient hereunder (whether of principal, interest or any otheramount) then, from time to time within 10 days following request of such Lender or such Issuing Bank orother Recipient (accompanied by a certificate in accordance with paragraph (c) of this Section), theBorrowers will pay to such Lender, such Issuing Bank or other Recipient, as the case may be, suchadditional amount or amounts as will compensate such Lender, such Issuing Bank or other Recipient forsuch additional costs or expenses incurred or reduction suffered; provided that such Lender, such Issuingbank or other Recipient shall only be entitled to seek such additional amounts if such Person is generallyseeking the payment of similar additional amounts from similarly situated borrowers in comparable creditfacilities to the extent it is entitled to do so.(b) If any Lender or any Issuing Bank determines that any Change in Law affecting suchLender or Issuing bank or any lending office of such Lender or Issuing Bank or such Lender’s or IssuingBank’s holding company, if any, regarding capital or liquidity requirements has had or would have theeffect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of suchLender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the RevolvingCommitments of such Lender or the Loans made, Floorplan Loan Payment Obligations paid or-68-
participations in Loans purchased by such Lender pursuant hereto or the Letters of Credit issued by suchIssuing Bank pursuant hereto by such Lender to a level below that which such Lender or Issuing Bank orsuch Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law(taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s orIssuing Bank’s holding company with respect to capital adequacy and liquidity), then, from time to timewithin 10 days following request of such Lender or such Issuing Bank (accompanied by a certificate inaccordance with paragraph (c) of this Section), the Borrowers will pay to such Lender or Issuing Banksuch additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s orIssuing Bank’s holding company for any such reduction suffered; provided that such Lender or IssuingBank shall only be entitled to seek such additional amounts if such Person is generally seeking thepayment of similar additional amounts from similarly situated borrowers in comparable credit facilities tothe extent it is entitled to do so.(c) A certificate of a Lender or an Issuing Bank setting forth the basis for and, in reasonabledetail (to the extent practicable), computation of the amount or amounts necessary to compensate suchLender or Issuing Bank or their respective holding company, as the case may be, as specified in paragraph(a) or (b) of this Section shall be delivered to the Borrowers and shall be conclusive absent manifest error.The Borrowers shall pay such Lender or Issuing Bank the amount shown as due on any such certificatewithin 30 days after receipt thereof.(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensationpursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demandsuch compensation; provided that the Borrowers shall not be required to compensate a Lender or IssuingBank pursuant to this Section for any increased costs or expenses incurred or reductions suffered morethan 180 days prior to the date that such Lender or Issuing Bank notifies the Borrowers of the Change inLaw giving rise to such increased costs or expenses or reductions and of such Lender’s or Issuing Bank’sintention to claim compensation therefor; provided further that if the Change in Law giving rise to suchincreased costs, expenses or reductions is retroactive, then the 180-day period referred to above shall beextended to include the period of retroactive effect thereof. The protection of this Section shall beavailable to each Lender and the respective Issuing Bank regardless of any possible contention of theinvalidity or inapplicability of the Change in Law that shall have occurred or been imposed; provided thatif, after the payment of any amounts by the Borrowers under this Section, any Change in Law in respectof which a payment was made is thereafter determined to be invalid or inapplicable to the relevant Lenderor Issuing Bank, then such Lender or Issuing Bank shall, within 30 days after such determination, repayany amounts paid to it by the Borrowers hereunder in respect of such Change in Law.(e) If any Lender determines that any Change in Law has made it unlawful, or that anyGovernmental Authority has asserted that it is unlawful, for such Lender or the applicable lending officeof such Lender to make, maintain or fund any EurocurrencyTerm Benchmark Loan or to charge interestwith respect to any Loan, or to determine or charge interest rates, based upon the LIBOTerm SOFR Rate,or any Governmental Authority has imposed material restrictions on the authority of such Lender topurchase or sell, or to take deposits of, dollars in the LondonDollars in the applicable offshore interbankmarket, then, upon notice thereof by such Lender to the Borrowers and the Administrative Agent, (i) anyobligation of such Lender to make, maintain or fund any EurocurrencyTerm Benchmark Loan, or tocontinue any EurocurrencyTerm Benchmark Loan or convert any ABR Loan into a EurocurrencyTermBenchmark Loan, or to charge interest with respect to any Loan, or to determine or charge interest rates,based upon the LIBOTerm SOFR Rate, in each case, shall be suspended, and (ii) if such notice asserts theillegality of such Lender making or maintaining ABR Loans the interest rate on which is determined byreference to the Adjusted LIBOTerm SOFR Rate component of the Alternate Base Rate, the interest rateon which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by theAdministrative Agent without reference to the Adjusted LIBOTerm SOFR Rate component of the-69-
Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowersthat the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A)the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent) prepay or,if applicable, convert all EurocurrencyTerm Benchmark Loans of such Lender to ABR Loans (the interestrate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by theAdministrative Agent without reference to the Adjusted LIBOTerm SOFR Rate component of theAlternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfullycontinue to maintain such EurocurrencyTerm Benchmark Loans to such day, or immediately, if suchLender may not lawfully continue to maintain such EurocurrencyTerm Benchmark Loans and (B) if suchnotice asserts the illegality of such Lender determining or charging interest rates based upon theLIBOTerm SOFR Rate, the Administrative Agent shall during the period of such suspension compute theAlternate Base Rate applicable to such Lender without reference to the Adjusted LIBOTerm SOFR Ratecomponent thereof until the Administrative Agent is advised in writing by such Lender that it is no longerillegal for such Lender to determine or charge interest rates based upon the LIBOTerm SOFR Rate. Uponany such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount soprepaid or converted.SECTION 2.13. Break Funding PaymentsLosses.(a) InWith respect to Loans that are not RFR Loans, in the event of (i) the payment of anyprincipal of any Eurocurrency Loan or any Term Benchmark Loan other than on the last day of anInterest Period applicable thereto (including as a result of an Event of Default or an optional or mandatoryprepayment of Loans), (ii) the conversion of any Eurocurrency Loan or any Term Benchmark Loan otherthan on the last day of the Interest Period applicable thereto, (iii) the failure to borrow, convert or,continue any Eurocurrency Loan oror prepay any Term Benchmark Loan on the date specified in anynotice delivered pursuant hereto (whether or not such notice may be revoked in accordance with the termshereof), (iv) the failure to prepay any Eurocurrency Loan or any Term Benchmark Loan on a datespecified therefor in any notice of prepayment given by the Borrowers (whether or not such notice may berevoked in accordance with the terms hereof) or (v) the assignment of any Eurocurrency Loan or anyTerm Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of arequest by the Borrowers pursuant to Section 2.16, then, in any such event, the Borrowers shallcompensate each Lender for the loss, cost and expense attributable to such event (but not lost profits)within 15 days following written request of such Lender (accompanied by a certificate described below inthis Section). Such loss, cost or expense to any Lender shall be deemed to include an amount determinedby such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on theprincipal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would havebeen applicable to such Loan (but not including the Applicable Rate applicable thereto), for the periodfrom the date of such event to the last day of the then current Interest Period therefor (or, in the case of afailure to borrow, convert or continue, for the period that would have been the Interest Period for suchLoan), over (ii) the amount of interest that would accrue on such principal amount for such period at theinterest rate such Lender would bid if it were to bid, at the commencement of such period, for dollardeposits of a comparable amount and period from other banks in the international interbank market. Acertificate of any Lender delivered to the Borrowers and setting forth the basis for and, in reasonabledetail (to the extent practicable), computation of any amount or amounts that such Lender is entitled toreceive pursuant to this Section shall be conclusive absent manifest error. The Borrowers shall pay suchLender the amount shown as due on any such certificate within 15 days after receipt thereof.(b) With respect to RFR Loans, in the event of (i) the payment of any principal of any RFRLoan other than on the Interest Payment Date applicable thereto (including as a result of an Event ofDefault or an optional or mandatory prepayment of Loans), (ii) the failure to borrow or prepay any RFRLoan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may-70-
be revoked under Section 2.11(bf) and is revoked in accordance therewith), (iii) the assignment of anyRFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by theBorrower pursuant to Section 2.16 or (iv) the failure by the Borrowers to make any payment of any Loanor drawing under any Letter of Credit (or interest due thereof) denominated in an Alternative Currency onits scheduled due date or any payment thereof in a different currency, then, in any such event, theBorrowers shall compensate each Lender for the loss, cost and expense attributable to such event. Acertificate of any Lender setting forth the basis for and, in reasonable detail, computation of any amountor amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to theBorrower and shall be conclusive absent manifest error. The Borrowers shall pay such Lender theamount shown as due on any such certificate within 15 days after receipt thereof.SECTION 2.14. Taxes.(a) Payments Free of Taxes. All payments by or on account of any obligation of theBorrowers or any Guarantor under any Loan Document shall be made without deduction or withholdingfor any Taxes, except as required by applicable law. If any applicable law (as determined in the goodfaith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax inrespect of any such payment by any applicable withholding agent, then the applicable withholding agentshall be entitled to make such deduction or withholding and shall timely pay the full amount deducted orwithheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is anIndemnified Tax, then the sum payable by the Borrowers or such Guarantor, as applicable, shall beincreased as necessary so that after all such deductions or withholdings have been made (including suchdeductions and withholdings applicable to additional sums payable under this Section 2.14) the applicableLender (or, in the case of a payment received by the Administrative Agent for its own account, theAdministrative Agent) receives an amount equal to the sum it would have received had no such deductionor withholding been made.(b) Payment of Other Taxes. Without limitation or duplication of Section 2.14(a), theBorrowers and the Guarantors shall timely pay to the relevant Governmental Authority in accordancewith applicable law, or at the option of the Administrative Agent, timely reimburse the AdministrativeAgent for the payment of, any Other Taxes except to the extent that such Other Taxes are imposed by theUnited Kingdom with respect to a Loan to the UK Borrower and become payable upon a voluntaryregistration made by any Recipient if such registration is not required by any applicable law or is notnecessary to evidence, prove, maintain, enforce, compel or otherwise assert the rights of such Recipient orobligations of any party.(c) Evidence of Payment. As soon as practicable after any payment of Taxes by theBorrowers or a Guarantor to a Governmental Authority pursuant to this Section, the Borrowers or suchGuarantor, as applicable, shall deliver to the Administrative Agent the original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copy of the return reportingsuch payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.(d) Indemnification by the Borrowers and the Guarantors. Without limitation or duplicationof Section 2.14(a) or (b) above, the US Borrower, the Guarantors and, solely with respect to obligationsrelated to Loans to the UK Borrower, the UK Borrower, shall jointly and severally indemnify eachRecipient, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes(including Indemnified Taxes imposed or asserted on or attributable to amounts payable under thisSection 2.14) payable or paid by such Recipient or required to be withheld or deducted from a payment tosuch Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto,whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevantGovernmental Authority; provided that if, after the payment of any amounts by any Borrower under this-71-
Section 2.14(d) any such Indemnified Taxes in respect of which a payment was made are thereafterdetermined to have been incorrectly or illegally imposed, then the relevant Recipient shall usecommercially reasonable efforts to cooperate with such Borrower to obtain a refund of such Taxes (whichshall be repaid to such Borrower in accordance with Section 2.14(g)) so long as such efforts would not, inthe sole determination of such Recipient, result in any additional out-of-pocket costs or expenses notreimbursed by such Borrower or be otherwise materially disadvantageous to such Recipient; provided,further, that no Borrower shall be required to indemnify the Administrative Agent or any Lender pursuantto this Section 2.14(d) for any amounts to the extent such Recipient fails to notify the applicableBorrower of the relevant possible indemnification claim within six months after such Recipient receiveswritten notice from the applicable Governmental Authority of the specific Tax assessment given rise tosuch indemnification claim. A certificate as to the amount of such payment or liability delivered to theapplicable Borrower by a Lender (with a copy to the Administrative Agent), or by the AdministrativeAgent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.(e) [Reserved].(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction ofwithholding Tax with respect to any payments made under any Loan Document shall deliver to theBorrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers orthe Administrative Agent, such properly completed and executed documentation reasonably requested bythe Borrowers or the Administrative Agent as will permit such payments to be made without withholdingor at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers orthe Administrative Agent, shall deliver such other documentation prescribed by applicable law orreasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers and theAdministrative Agent to determine whether or not such Lender is subject to backup withholding orinformation reporting requirements. Each Lender, upon becoming a party as a Lender that makes a Loanto a UK Borrower, shall, with respect to such Loan, indicate which of the following categories it falls inrespect of a UK Borrower: (i) not a Qualifying Lender, (ii) a Qualifying Lender (other than a TreatyLender), or (c) a Treaty Lender. If a Lender fails to indicate its status in accordance with this Section2.14(f), then it shall be treated for the purposes of this Agreement (including by each Borrower andGuarantor) as if it is not a Qualifying Lender, until such time as it notifies the Administrative Agentwhich category applies (and the Administrative Agent, upon receipt of such notification, shall inform theBorrowers and Guarantors).(ii) Without limiting the generality of the foregoing, with respect to any Loans orLetters of Credit extended to the US Borrower,(A) any Lender that is a U.S. Person shall deliver to the US Borrower and theAdministrative Agent on or prior to the date on which such Lender becomes a Lender underthis Agreement (and from time to time thereafter upon the reasonable request of the USBorrower or the Administrative Agent), two properly completed and executed copies of IRSForm 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 eligible to do so,deliver to the US Borrower and the Administrative Agent on or prior to the date on whichsuch Foreign Lender becomes a Lender under this Agreement (and from time to timethereafter upon the reasonable request of the US Borrower or the Administrative Agent), twoof whichever of the following is applicable:(1) in the case of a Foreign Lender claiming the benefits of an income taxtreaty to which the United States is a party, a properly completed and executed-72-
copies of IRS Form W-8BEN-E or IRS Form W-8BEN, as applicable, establishingan exemption from, or reduction of, U.S. federal withholding Tax pursuant to suchtax treaty;(2) in the case of a Foreign Lender claiming that its extension of credit willgenerate U.S. effectively connected income, properly completed and executedcopies of IRS Form W-8ECI;(3) in the case of a Foreign Lender claiming the benefits of the exemptionfor portfolio interest under Section 881(c) of the Code, (x) a certificatesubstantially in the form of Exhibit I-1 to the effect that such Foreign Lender is nota “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percentshareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of theCode, or a “controlled foreign corporation” described in Section 881(c)(3)(C) ofthe Code (a “U.S. Tax Compliance Certificate”) and no payments under any LoanDocument are effectively connected with such Lender’s conduct of a U.S. trade orbusiness and (y) properly completed and executed originals of IRS Form W-8BEN-E or IRS Form W-8BEN; or(4) to the extent a Foreign Lender is not the beneficial owner (for example,where such Foreign Lender is a partnership or a participating Lender), a properlycompleted and executed copies of IRS Form W-8IMY, accompanied by properlycompleted and executed copies of IRS Form W-8ECI, IRS Form W-8BEN-E, IRSForm W-8BEN, a U.S. Tax Compliance Certificate substantially in the form ofExhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documentsfrom each beneficial owner, as applicable; provided that if the Foreign Lender is apartnership (and not a participating Lender) and one or more direct or indirectpartners of such Foreign Lender are claiming the portfolio interest exemption, suchForeign Lender may provide a U.S. Tax Compliance Certificate substantially in theform of Exhibit I-4 on behalf of such direct and indirect partner(s); and(5) any Foreign Lender shall, to the extent it is legally eligible to do so,deliver to the US Borrower and the Administrative Agent on or prior to the date onwhich such Foreign Lender becomes a Lender under this Agreement (and fromtime to time thereafter upon the reasonable request of the US Borrower or theAdministrative Agent), executed copies of any other documentation prescribed byapplicable law as a basis for claiming exemption from or a reduction in U.S. federalwithholding Tax, duly completed, together with such supplementarydocumentation as may be prescribed by applicable law to permit the US Borroweror the Administrative Agent to determine the withholding or deduction required tobe made.(iii) If a payment made to a Lender or the Administrative Agent under any LoanDocument would be subject to Taxes imposed by FATCA if such Lender or the AdministrativeAgent were to fail to comply with the applicable reporting requirements of FATCA (includingthose contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or theAdministrative Agent shall deliver to the Borrowers and the Administrative Agent at the time ortimes prescribed by law and at such time or times reasonably requested by the Borrowers or theAdministrative Agent such documentation prescribed by applicable law (including as prescribedby Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonablyrequested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers-73-
and the Administrative Agent to comply with their obligations under FATCA, and to determinewhether such Lender has complied with such Lender’s obligations under FATCA or to determinethe amount, if any, to deduct and withhold from such payment. Solely for purposes of thisSection 2.14(f)(iii), “FATCA” shall include any amendments made to FATCA after the date ofthis Agreement.Each Lender agrees that if any documentation it previously delivered expires or becomes obsoleteor inaccurate in any respect, it shall promptly update such documentation and deliver such documentationto the Borrowers and the Administrative Agent or promptly notify the Borrowers and the AdministrativeAgent in writing of its legal ineligibility to do so.Notwithstanding any other provisions of this Section 2.14 (f), a Lender shall not be required todeliver any documentation that such Lender is not legally eligible to deliver.On or before the date the Administrative Agent (or any successor thereto) becomes a party to thisAgreement, the Administrative Agent shall provide to US Borrower, two properly completed andexecuted copies of the documentation prescribed in clause (i) or (ii) below, as applicable (together withall required attachments thereto): (i) IRS Form W-9 or any successor thereto, or (ii) (A) IRS Form W-8ECI or any successor thereto, with respect to amounts received for its own account and (B) with respectto payments received on account of any Lender, IRS Form W-8IMY evidencing its agreement with theUS Borrower to be treated as a “United States person” within the meaning of Section 7701(a)(30) of theCode. At any time thereafter, the Administrative Agent shall provide updated documentation previouslyprovided (or a successor form thereto) when any documentation previously delivered has expired orbecome obsolete or invalid or otherwise upon the reasonable request of the US Borrower.Notwithstanding any other provisions of this Section 2.14(f), the Administrative Agent shall not berequired to deliver any documentation that the Administrative Agent is not legally eligible to deliver as aresult of a Change in Law after the date of this Agreement.(g) Additional United Kingdom Withholding Tax MattersThis section 2.20(g) applies solely in respect of a Loan to a UK Borrower.(i) Subject to (ii) below, each Treaty Lender and UK Borrower which makes apayment to such Treaty Lender shall cooperate in promptly completing any procedural formalitiesnecessary for such UK Borrower to obtain authorization to make such payment without a TaxDeduction and maintain that authorization where an authorization expires or otherwise ceases tohave effect.(ii) (A) A Treaty Lender on the Effective Date that (x) holds a passport under theHMRC DT Treaty Passport scheme and (y) wishes such scheme to apply to this Agreement, shallprovide its scheme reference number and its jurisdiction of tax residence to UK Borrower and theAdministrative Agent; and(B) a Treaty Lender which becomes a Lender hereunder after the day on whichthis Agreement closes that (x) holds a passport under the HMRC DT Treaty Passport schemeand (y) wishes such scheme to apply to this Agreement, shall provide its scheme referencenumber and its jurisdiction of tax residence to UK Borrower and the Administrative Agent inthe documentation which it executes upon becoming a Party as a Lender, and(C) Upon satisfying either clause (A) or (B) above, such Lender shall havesatisfied its obligation under paragraph (g)(i) above.-74-
(iii) If a Lender has confirmed its scheme reference number and its jurisdiction of taxresidence in accordance with paragraph (g)(ii) above, the UK Borrower shall make a BorrowerDTTP Filing with respect to such Lender, provided that, if:(A) the UK Borrower making a payment to such Lender has not made aBorrower DTTP Filing in respect of such Lender; or(B) the UK Borrower making a payment to such Lender has made a BorrowerDTTP Filing in respect of such Lender but:(1) such Borrower DTTP Filing has been rejected by HMRevenue & Customs; or(2) that Lender’s passport or scheme reference number hasexpired; or(3) HM Revenue & Customs has not given such UKBorrower authority to make payments to such Lender without a TaxDeduction within 30 days of the date of such Borrower DTTP Filing;and in each case, UK Borrower has notified that Lender in writing of either (1) or (2)above, then such Lender and UK Borrower shall co-operate in completing any additionalprocedural formalities necessary for UK Borrower to obtain authorization to make thatpayment without a Tax Deduction.(iv) If a Lender has not confirmed its scheme reference number and jurisdiction of taxresidence in accordance with paragraph (g)(ii) above, UK Borrower shall not make a BorrowerDTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect ofthat Lender’s Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.(v) [Reserved].(vi) UK Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy ofsuch Borrower DTTP Filing to the Administrative Agent for delivery to the relevant Lender.(vii) If:(A) a Tax Deduction should have been made in respect of a payment madeby or on account of a UK Borrower to a Lender, or the Administrative Agent under aLoan Document;(B) either: (1) the relevant UK Borrower (or the Administrative Agent,if it is the applicable withholding agent) was unaware, and could notreasonably be expected to have been aware, that the Tax Deduction wasrequired and as a result did not make the Tax Deduction or made a TaxDeduction at a reduced rate;-75-
(2) in reliance on the notifications and confirmationprovided pursuant to Section 2.14(f) the relevant UK Borrower did notmake such Tax Deduction or made a Tax Deduction at a reduced rate; or(3) any Recipient has not complied with its obligationsunder Section 2.14 above and as a result the relevant UK Borrower didnot make the Tax Deduction or made a Tax Deduction at a reduced rate;and(C) the applicable UK Borrower would not have been required to make anincreased payment under paragraph 2.14(a) above in respect of that Tax Deduction,then the Lender that received the payment in respect of which the Tax Deduction shouldhave been made or made at a higher rate undertakes to promptly, upon the request bythat UK Borrower, reimburse that UK Borrower for the amount of the Tax Deductionthat should have been made (and any penalty, interest and expenses payable or incurredin connection with any failure to pay or any delay in paying any of the same).(viii) If a Lender is not, or ceases to be, a Qualifying Lender with respect to the UK, itshall promptly upon becoming so aware notify the Administrative Agent. If the AdministrativeAgent receives such notification from a Lender it shall promptly notify the Borrowers andGuarantor. Without prejudice to the foregoing, each Lender shall promptly, upon the reasonablewritten request of the Administrative Agent, provide to the Administrative Agent:(A) a written confirmation that it is or, as the case may be, is not, aQualifying Lender with respect to the UK; and(B) such documents and other evidence as the Administrative Agent mayreasonably require to support any confirmation given pursuant to sub-paragraph (A)above, and until such time as a Lender has complied with any request pursuant tothis paragraph (iii), the Administrative Agent and each Borrower orGuarantor shall be entitled to treat such Lender as not being a QualifyingLender with respect to the UK.(h) VAT.(i) All amounts expressed to be payable under a Loan Document or any fee letterrelated thereto by any party to a Recipient which (in whole or in part) constitute the considerationfor any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable onthat supply, and accordingly, subject to paragraph (ii) below, if VAT is or becomes chargeable onany supply made by any Recipient to any party under a Loan Document and such Recipient isrequired to account to the relevant tax authority for the VAT, that party must pay to such Recipient(in addition to and at the same time as paying any other consideration for such supply) an amountequal to the amount of the VAT (and such Recipient must promptly provide an appropriate VATinvoice to that party) or if such party is required to directly account for such VAT under the reversecharge procedure provided for by article 44 of the Council Directive 2006/112/EC or section 7A ofthe United Kingdom Value Added Tax Act 1994, in each case as amended, or any relevant VATprovisions of the jurisdiction in which such party receives such supply, then such party shallaccount for the VAT at the appropriate rate (and the relevant Recipient must promptly provide an-76-
appropriate VAT invoice to such party stating that the amount is charged in respect of a supply thatis subject to VAT but that the reverse charge procedure applies).(ii) If VAT is or becomes chargeable on any supply made by any Recipient (the“Supplier”) to any other Recipient (as used in this section, the “Supply Recipient”) under a LoanDocument, and any Party other than the Supply Recipient (the “Relevant Party”) is required by theterms of any Loan Document to pay an amount equal to the consideration for that supply to theSupplier (rather than being required to reimburse or indemnify the Supply Recipient in respect ofthat consideration):(A) (where the Supplier is the person required to account to the relevant taxauthority for the VAT) the Relevant Party must also pay to the Supplier (at the same timeas paying that amount) an additional amount equal to the amount of the VAT. TheSupply Recipient must (where this paragraph (A) applies) promptly pay to the RelevantParty an amount equal to any credit or repayment the Supply Recipient receives from therelevant tax authority which the Supply Recipient reasonably determines relates to theVAT chargeable on that supply; and(B) (where the Supply Recipient is the person required to account to therelevant tax authority for the VAT) the Relevant Party must promptly, following demandfrom the Supply Recipient, pay to the Supply Recipient an amount equal to the VATchargeable on that supply but only to the extent that the Supply Recipient reasonablydetermines that it is not entitled to credit or repayment from the relevant tax authority inrespect of that VAT.(iii) Where a Loan Document requires any Party to reimburse or indemnify a Recipientfor any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Recipientfor any VAT incurred in respect of the costs or expenses, save to the extent that such Recipientreasonably determines that neither it nor any group of which it is a member for VAT purposes isentitled to credit or receive repayment in respect of such VAT from the relevant tax authority.(iv) Any reference in this clause Section 2.14(h) to any Party shall, at any time whensuch 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 istreated a making the supply or (as appropriate) receiving the supply under the grouping rules (asprovided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by the relevantmember state of the European Union or any other similar provision in any jurisdiction which is not amember state of the European Union) (including, for the avoidance of doubt the representativemember of such group at such time (the term “representative member” to have the same meaning asin the Value Added Tax Act 1994)) so that a reference to a party shall be construed as a reference tothat Party or the relevant group or unity (or fiscal unity) of which that party is a member for VATpurposes at the relevant time or the relevant member (or head) of that group or unity (or fiscal unity)at the relevant time (as the case may be).In relation to any supply made by a Recipient to any party under a Loan Document, if reasonablyrequested by such Recipient, that Party must promptly provide such Recipient with details of that party’sVAT registration and such other information as is reasonably requested in connection with suchRecipient’s VAT reporting requirements in relation to such supply.-77-
(i) Treatment of Certain Refunds. If any Lender determines, in its sole discretion exercisedin good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant tothis Section 2.14 (including by the payment of additional amounts pursuant to this Section 2.14), it shallpay to the indemnifying party an amount equal to such refund (but only to the extent of indemnitypayments made under this Section 2.14 with respect to the Taxes giving rise to such refund), net of allout-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than anyinterest paid by the relevant Governmental Authority with respect to such refund). Such indemnifyingparty, upon the request of such indemnified party, shall repay to such indemnified party the amount paidover pursuant to this Section 2.14(g) (plus any penalties, interest or other charges imposed by the relevantGovernmental Authority) in the event that such indemnified party is required to repay such refund to suchGovernmental Authority. Notwithstanding anything to the contrary in this Section 2.14(g), in no eventwill the indemnified party be required to pay any amount to an indemnifying party pursuant to thisSection 2.14(g) the payment of which would place the indemnified party in a less favorable net after-Taxposition than the indemnified party would have been in if the Tax subject to indemnification and givingrise to such refund had not been deducted, withheld or otherwise imposed and the indemnificationpayments or additional amounts with respect to such Tax had never been paid. This Section 2.14(g) shallnot be construed to require any indemnified party to make available its Tax returns (or any otherinformation relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.(j) The agreements in this Section 2.14 shall survive the resignation and/or replacement ofthe Administrative Agent, any assignment of rights by, or the replacement of, a Lender, theconsummation of the transactions contemplated hereby, the repayment of the Loans and the expiration ortermination of the Revolving Commitments, the expiration of any Letter of Credit or the termination ofthis Agreement or any provision hereof.(k) For purposes of this Section, the term “applicable law” includes FATCA and the term“Lender” shall include any Issuing Bank and any Swingline Lender.SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.(a) The Borrowers shall make each payment or prepayment required to be made by ithereunder or under any other Loan Document prior to the time required hereunder or under such otherLoan Document for such payment (or, if no such time is expressly required, prior to 3:00 p.m., New YorkCity time (or 3:00 p.m., London time in the case of the UK Borrower)), on the date when due or the datefixed for any prepayment hereunder, in immediately available funds, without any defense, setoff,recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion ofthe Administrative Agent, be deemed to have been received on the next succeeding Business Day forpurposes of calculating interest thereon. All such payments shall be made to such account as may bespecified by the Administrative Agent, except payments to be made directly to an Issuing Bank orSwingline Lender as expressly provided herein and except that payments pursuant to Sections 2.12, 2.13,2.14 and 9.03 shall be made directly to the Persons entitled thereto and payments pursuant to other LoanDocuments shall be made to the Persons specified therein. The Administrative Agent shall distribute anysuch payment received by it for the account of any other Person to the appropriate recipient promptlyfollowing receipt thereof. If any payment under any Loan Document shall be due on a day that is not aBusiness Day, the date for payment shall be extended to the next succeeding Business Day and, in thecase of any payment accruing interest, interest thereon shall be payable for the period of such extension.All payments under each Loan Document shall be made in the applicable Agreed Currency in which theBorrowing was made or Letter of Credit issued and otherwise in dollarsDollars.(b) If at any time insufficient funds are received by and available to the Administrative Agentto pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied-78-
towards payment of the amounts then due hereunder ratably among the parties entitled thereto, inaccordance with the amounts then due to such parties.(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtainpayment in respect of any principal of or interest on any of any Loan, Floorplan Loan Payments or LCDisbursement resulting in such Lender receiving payment of a greater proportion of the aggregate amountof any Loan, Floorplan Loan Payment or LC Disbursement and accrued interest thereon than theproportion received by any other Lender, then the Lender receiving such greater proportion shall notifythe Administrative Agent of such fact and shall purchase (for cash at face value) participations in theLoans, Floorplan Loan Exposure and LC Exposure of other Lenders to the extent necessary so that theamount of all such payments shall be shared by the Lenders ratably in accordance with the aggregateamounts of principal of and accrued interest on their Loans, Floorplan Loan Exposure or LC Exposure;provided that (i) if any such participations are purchased and all or any portion of the payment giving risethereto is recovered, such participations shall be rescinded and the purchase price restored to the extent ofsuch recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply toany payment made by the Borrowers pursuant to and in accordance with the express terms of thisAgreement (for the avoidance of doubt, as in effect from time to time) or any payment obtained by aLender as consideration for the assignment of or sale of a participation in any of its Loans, FloorplanLoan Exposure or LC Exposure to any Person that is an Eligible Assignee (as such term is defined hereinfrom time to time). The Borrowers consent to the foregoing and agree, to the extent it may effectively doso under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangementsmay exercise against the Borrower rights of setoff and counterclaim with respect to such participation asfully as if such Lender were a direct creditor of the Borrowers in the amount of such participation.(d) Unless the Administrative Agent shall have received notice from the Borrowers prior tothe date on which any payment is due to the Administrative Agent for the account of the Lenders that theBorrowers will not make such payment, the Administrative Agent may assume that the Borrowers havemade such payment on such date in accordance herewith and may, in reliance upon such assumption,distribute to the Lenders the amount due. In such event, if the Borrowers have not in fact made suchpayment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith ondemand the amount so distributed to such Lender with interest thereon, for each day from and includingthe date such amount is distributed to it to but excluding the date of payment to the Administrative Agent,at the greater of the applicable Overnight Rate and a rate determined by the Administrative Agent inaccordance with banking industry rules on interbank compensation.(e) If any Lender shall fail to make any payment required to be made by it hereunder to orfor the account of the Administrative Agent, then the Administrative Agent may, in its discretion(notwithstanding any contrary provision hereof), apply any amounts thereafter received by theAdministrative Agent for the account of such Lender to satisfy such Lender’s obligations in respect ofsuch payment until all such unsatisfied obligations have been discharged.SECTION 2.16. Mitigation Obligations; Replacement of Lenders.(a) If any Lender or Issuing Bank requests compensation under Section 2.12, or if theCompany is required to pay any Indemnified Taxes or additional amounts to any Lender or Issuing Bankor to any Governmental Authority for the account of any Lender or Issuing Bank pursuant to Section2.14, then such Lender or Issuing Bank shall (at the request of the Borrowers) use commerciallyreasonable efforts to designate a different lending office for funding or booking its Loans hereunder or toassign and delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if,in the judgment of such Lender or Issuing Bank, such designation or assignment and delegation (i) wouldeliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the future-79-
and (ii) would not subject such Lender or Issuing Bank, as applicable, to any unreimbursed cost orexpense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to payall reasonable costs and expenses incurred by any Lender in connection with any such designation orassignment and delegation within 10 days following request of such Lender or Issuing Bank(accompanied by reasonable (to the extent practicable) back-up documentation relating thereto).(b) If (i) any Lender requests compensation under Section 2.12, (ii) any Lender delivers anotice under Section 2.12(e), (iii) the Borrowers are required to pay any Indemnified Taxes or additionalamounts to any Lender or Issuing Bank or any Governmental Authority for the account of any Lender orIssuing Bank pursuant to Section 2.14, (iv) any Lender or Issuing Bank has become a Defaulting Lender,(v) any Lender or Issuing Bank has failed to consent to a proposed amendment, waiver, discharge ortermination that under Section 9.02 requires the consent of all the Lenders or Issuing Banks (or all or themajority of the affected Lenders or Issuing Banks or all of the Lenders or Issuing Banks of the affectedClass) and with respect to which the Required Lenders (or, in circumstances where Section 9.02 does notrequire the consent of the Required Lenders, a Majority in Interest of the Lenders of the affected Class)shall have granted their consent or (vi) in connection with the replacement of any non-Accepting Lender,then the US Borrower may, at its sole expense and effort, upon notice to such Lender or Issuing Bank, asapplicable, and the Administrative Agent, either (i) require such Lender or Issuing Bank, as applicable, toassign and delegate, without recourse (in accordance with and subject to the restrictions contained inSection 9.04), it being understood that the processing and recordation fee referred to in such Section shallbe paid by the US Borrower or the assignee (and the assignor Lender or Issuing Bank, as applicable, shallnot be responsible therefor), all its interests, rights (other than its existing rights to payments pursuant toSection 2.12 or 2.14) and obligations under this Agreement and the other Loan Documents (or, in the caseof any such assignment and delegation resulting from a failure to provide a consent, all its interests, rightsand obligations under this Agreement and the other Loan Documents as a Lender of a particular Class) toan Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lenderaccepts such assignment and delegation) or (ii) so long as no Event of Default shall have occurred and becontinuing, terminate the Revolving Commitment of such Lender or Issuing Bank, as the case may be,and (1) in the case of a Lender (other than an Issuing Bank), repay all Obligations of the applicableBorrower owing (and the amount of all accrued interest and fees in respect thereof) to such Lenderrelating to the Loans and Revolving Exposure participations held by such Lender as of such terminationdate and (2) in the case of an Issuing Bank, repay all obligations of the applicable Borrower owing tosuch Issuing Bank relating to the Loans, Letters of Credit and Revolving Exposure participations held bysuch Issuing Bank as of such termination date and cancel, cash collateralize or backstop on termssatisfactory to such Issuing Bank any Letters of Credit issued by it; provided that (A) such Lender orIssuing Bank, as applicable, shall have received payment of an amount equal to the outstanding principalof its Loans, Floorplan Loan Payments and funded participations in LC Disbursements and SwinglineLoans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (if applicable,in each case only to the extent such amounts relate to its interest as a Lender of a particular Class) fromthe assignee (in the case of such principal and accrued interest and fees) or the Borrowers (in the case ofall other amounts), (B) in the case of any such assignment and delegation resulting from a claim forcompensation under Section 2.12 or payments required to be made pursuant to Section 2.14, suchassignment will result in a reduction in such compensation or payments, (C) such assignment does notconflict with applicable law and (D) in the case of any such assignment and delegation resulting from thefailure to provide a consent, the assignee shall have given such consent and, as a result of such assignmentand delegation and any contemporaneous assignments and delegations and consents, the applicableamendment, waiver, discharge or termination can be effected. A Lender or Issuing Bank shall not berequired to make any such assignment and delegation if, prior thereto, as a result of a waiver or consentby such Lender or Issuing Bank or otherwise, the circumstances entitling the Borrower to require suchassignment and delegation have ceased to apply. Each party hereto agrees that an assignment anddelegation required pursuant to this paragraph may be effected pursuant to an Assignment and-80-
Assumption executed by the Borrowers, the Administrative Agent and the assignee and that the Lender orIssuing Bank required to make such assignment and delegation need not be a party thereto.SECTION 2.17. Defaulting Lenders. Notwithstanding any provision of this Agreement to thecontrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for solong as such Lender is a Defaulting Lender:(a) the Revolving Commitment Fees shall cease to accrue on the unused amount ofthe Revolving Commitment of such Defaulting Lender;(b) the Revolving Commitment and the Revolving Exposure of such DefaultingLender shall not be included in determining whether the Required Lenders or any other requisiteLenders have taken or may take any action hereunder or under any other Loan Document(including any consent to any amendment, waiver or other modification pursuant to Section9.02); provided that any amendment, waiver or other modification requiring the consent of allLenders or all Lenders adversely affected thereby shall, except as otherwise provided in Section9.02, require the consent of such Defaulting Lender in accordance with the terms hereof;(c) if any Swingline Exposure, Floorplan Loan Exposure or LC Exposure exists atthe time a Lender becomes a Defaulting Lender then:(i) all or any part of the Swingline Exposure, Floorplan Loan Exposure and LCExposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders inaccordance with their respective Global Applicable Percentages, Multicurrency Pro RataPercentages and Pro Rata Percentages, as applicable, (x) but only to the extent the sum of all non-Defaulting Lenders’ Revolving Exposure plus such Defaulting Lender’s Swingline Exposure,Floorplan Loan Exposure and LC Exposure does not exceed the total of all non-DefaultingLenders’ Commitments and (y) only to the extent that no Event of Default shall have occurredand be continuing as of the date the applicable Lender became a Defaulting Lender;(ii) if the reallocation described in clause (i) above cannot, or can only partially, beeffected, the applicable Borrower shall within three Business Days following notice by theAdministrative Agent (x) first, prepay such Swingline Exposure, and (y) second, cashcollateralize, for the benefit of the Issuing Banks and the Floorplan Funding Agent, suchBorrower’s obligations corresponding to such Defaulting Lender’s LC Exposure and/or FloorplanLoan Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) inaccordance with the procedures set forth in Section 2.20(j) and Section 2.22(h), respectively, forso long as such LC Exposure and/or Floorplan Loan Exposure is outstanding;(iii) if any Borrower cash collateralizes any portion of such Defaulting Lender’s LCExposure or Floorplan Loan Exposure pursuant to clause (ii) above, such Borrower or theAdministrative Agent, as applicable, shall not be required to pay any fees to such DefaultingLender pursuant to Section 2.09(d) with respect to such Defaulting Lender’s LC Exposure andpursuant to Section 2.09(e) with respect to such Defaulting Lender’s Floorplan Loan Exposureduring the period such Defaulting Lender’s LC Exposure and/or Floorplan Loan Exposure, asapplicable, is cash collateralized;(iv) if the LC Exposure or Floorplan Loan Exposure of the non-Defaulting Lenders isreallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Sections2.09(a), 2.09(d) and/or 2.09(e), as applicable, shall be adjusted in accordance with such non--81-
Defaulting Lenders’ Global Applicable Percentages, Multicurrency Pro Rata Percentages and ProRata Percentages, as applicable; and(v) if all or any portion of such Defaulting Lender’s LC Exposure and/or FloorplanLoan Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above,then, without prejudice to any rights or remedies of any Issuing Bank or any Lender hereunder,all letter of credit fees payable under Section 2.09(d) with respect to such Defaulting Lender’s LCExposure shall be payable to the Issuing Banks entitled to reimbursement until such LC Exposureis reallocated and/or cash collateralized, and no Floorplan Loan Exposure Fees payable underSection 2.09(e) with respect to such Defaulting Lender shall be payable by the AdministrativeAgent until such Defaulting Lender’s Floorplan Loan Exposure is reallocated and/or cashcollateralized;(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be requiredto fund any Swingline Loan, the Issuing Banks shall not be required to issue or increase any Letter ofCredit and the Floorplan Funding Agent shall not be required to issue any Floorplan Approval (and theFloorplan Funding Agent may cancel any Floorplan Open Approvals), unless the Swingline Lender, theApplicable Issuing Bank or the Floorplan Funding Agent, as the case may be, is satisfied that the relatedexposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateralwill be provided by the applicable Borrower in accordance with Section 2.17(c), and participatinginterests in any such newly made Swingline Loan, newly issued or increased Letter of Credit or newlyissued Floorplan Approval shall be allocated among non-Defaulting Lenders in a manner consistent withSection 2.17(c)(i) (and such Defaulting Lender shall not participate therein); and(e) so long as such Lender is a Defaulting Lender, any amount payable to such DefaultingLender hereunder (whether on account of principal, interest, fees or otherwise and including any amountthat would otherwise be payable to such Defaulting Lender pursuant to Section 2.15) shall, in lieu ofbeing distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregatedaccount (for the avoidance of doubt, it is noted that any amounts retained pursuant to this Section 2.17(e)shall for all other purposes be treated as having been paid to such Defaulting Lender) and, subject to anyapplicable requirements of law and the proviso at the end of this Section 2.17(e), be applied at such timeor times as may be determined by the Administrative Agent (i) first, to the payment of any amountsowing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, pro rata, to thepayment of any amounts owing by such Defaulting Lender to any Issuing Bank, Swingline Lender orFloorplan Funding Agent hereunder, (iii) third, if the Administrative Agent so determines or is reasonablyrequested by an Issuing Bank, the Swingline Lender or the Floorplan Funding Agent, held in suchaccount as cash collateral for future funding obligations of the Defaulting Lender in respect of anyexisting or future participating interest in any Swingline Loan, Letter of Credit or Floorplan Loan, (iv)fourth, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund itsportion thereof as required by this Agreement, as determined by the Administrative Agent, (v) fifth, if theAdministrative Agent or the Company (with the consent of the Administrative Agent) so determines, heldin such account as cash collateral for future funding obligations of the Defaulting Lender in respect of anyLoans under this Agreement, (vi) sixth, to the payment of any amounts owing to the Lenders, an IssuingBank, the Swingline Lender or the Floorplan Funding Agent as a result of any judgment of a court ofcompetent jurisdiction obtained by any Lender, such Issuing Bank, the Swingline Lender or the FloorplanFunding Agent against such Defaulting Lender as a result of such Defaulting Lender’s breach of itsobligations under this Agreement, (vii) seventh, so long as no Event of Default has occurred and iscontinuing, to the payment of any amounts owing to the applicable Borrower as a result of any judgmentof a court of competent jurisdiction obtained by the applicable Borrower against such Defaulting Lenderas a result of such Defaulting Lender’s breach of its obligations under this Agreement, and (viii) eighth, tosuch Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that (I) if-82-
(x) such payment is a payment of the principal amount of any Loans of any Class or reimbursementobligations in respect of LC Disbursements or Floorplan Loan Payments which such Defaulting Lenderhas not fully funded its participation obligations and (y) made at a time when the conditions set forth inSection 4.02 are satisfied, such payment shall be applied solely to prepay the Loans of the applicableClass of, and reimbursement obligations owed to, all non-Defaulting Lenders of such Class pro rata priorto being applied to the prepayment of any Loans of such Class, or reimbursement obligations owed to,any Defaulting Lender of such Class and (II) payments by Administrative Agent on behalf of Lenders toFloorplan Agent pursuant to Section 2.22(d)(i) shall be for the account of Floorplan Agent and, even if aLender on whose behalf such payments would be made is a Defaulting Lender, in no event shall suchpayments be deemed distributions of amounts payable to a Defaulting Lender under this Section 2.17(e).If each of the Administrative Agent, the Company, the Issuing Banks, the Swingline Lender andthe Floorplan Funding Agent agrees that a Defaulting Lender has adequately remedied all matters thatcaused such Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure and FloorplanLoan Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitmentsand on the date of such readjustment such Lender shall purchase at par such of the Loans of the otherLenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary inorder for such Lender to hold such Loans in accordance with its Global Applicable Percentages,Multicurrency Pro Rata Percentages and Pro Rata Percentages, as applicable.The Company may terminate the unused amount of the Revolving Commitment of any Lenderthat is a Defaulting Lender upon not less than two Business Days’ prior notice to the AdministrativeAgent (which shall promptly notify the Lenders thereof); provided that (i) no Event of Default shall haveoccurred and be continuing and (ii) such termination shall not be deemed to be a waiver or release of anyclaim the Company, the Administrative Agent, any Issuing Bank or any Lender may have against suchDefaulting Lender.The rights and remedies against, and with respect to, a Defaulting Lender under this Section arein addition to, and cumulative and not in limitation of, all other rights and remedies that theAdministrative Agent, any Lender or the Borrower may at any time have against, or with respect to, suchDefaulting Lender.SECTION 2.18. Certain Permitted Amendments.(a) The US Borrower may, by written notice to the Administrative Agent from time to timebeginning after the Effective Date, but not more than five times during the term of this Agreement (andwith no more than one such offer outstanding at any one time), make one or more offers (each, a “LoanModification Offer”) to all the Lenders to make one or more Permitted Amendments pursuant toprocedures reasonably specified by the Administrative Agent and reasonably acceptable to the USBorrower. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendmentand (ii) the date on which such Permitted Amendment is requested to become effective. Notwithstandinganything to the contrary in Section 9.02, each Permitted Amendment shall only require the consent of theUS Borrower, the Administrative Agent and those Lenders that accept the applicable Loan ModificationOffer (such Lenders, the “Accepting Lenders”), and each Permitted Amendment shall become effectiveonly with respect to the Loans (or Class of Loans) of the Accepting Lenders. In connection with anyLoan Modification Offer, the US Borrower may, at its sole option, with respect to one or more of theLenders that are not Accepting Lenders (each, a “Non-Accepting Lender”) replace such Non-AcceptingLender pursuant to Section 2.16(b). Upon the effectiveness of any Permitted Amendment and anyassignment of any Non-Accepting Lender’s Revolving Commitments pursuant to Section 2.16(b), subjectto the payment of applicable amounts pursuant to Section 2.13 in connection therewith, the US Borrowershall be deemed to have made such borrowings and repayments of the Loans (or Class of Loans), and the-83-
Lenders shall make such adjustments of outstanding Loans (or Class of Loans) between and among them,as shall be necessary to effect the reallocation of the Revolving Commitments (or Class) such that, aftergiving effect thereto, (x) the Loans (or Class of Loans) denominated in dollarsDollars shall be held by theLenders (including the Eligible Assignees as the new Lenders) ratably in accordance with their GlobalApplicable Percentages and (y) the Loans (or Class of Loans) denominated in an Alternative Currencyshall be held by the Lenders (including the Eligible Assignees as the new Lenders) ratably in accordancewith their Multicurrency Pro Rata Percentages.(b) The US Borrower and each Accepting Lender shall execute and deliver to theAdministrative Agent a Loan Modification Agreement and such other documentation as theAdministrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendmentsand the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as tothe effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that,upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended tothe extent (but only to the extent) necessary to reflect the existence and terms of the PermittedAmendment evidenced thereby and only with respect to the Loans and Revolving Commitments (orClass) of the Accepting Lenders, including any amendments necessary to treat the applicable Loansand/or Revolving Commitments (or Class) of the Accepting Lenders as a new “Class” or “Tranche” ofloans and/or commitments hereunder. Notwithstanding the foregoing, no Permitted Amendment shallbecome effective unless the Administrative Agent, to the extent reasonably requested by theAdministrative Agent, shall have received legal opinions, board resolutions, officer’s and secretary’scertificates and other documentation consistent with those delivered on the Effective Date under thisAgreement.(c) “Permitted Amendments” means any or all of the following: (i) an extension of theMaturity Date applicable solely to the Loans and/or Revolving Commitments (or Class) of the AcceptingLenders, (ii) an increase in the interest rate with respect to the Loans and/or Revolving Commitments (orClass) of the Accepting Lenders, (iii) the inclusion of additional fees to be payable to the AcceptingLenders in connection with the Permitted Amendment (including any commitment fees and upfront fees),(iv) such amendments to this Agreement and the other Loan Documents as shall be appropriate, necessaryor advisable, in the reasonable judgment of the Administrative Agent and the Company, to provide therights and benefits of this Agreement and other Loan Documents to each new “Class” or “Tranche” ofloans and/or commitments resulting therefrom; provided that extensions of Borrowings shall be made prorata across “Classes” or “Tranches” of loans and/or commitments and payments of principal and intereston Loans (including Loans (or Class of Loans) of Accepting Lenders) shall continue to be shared pro ratain accordance with Section 2.15, except that notwithstanding Section 2.15 the Loans and RevolvingCommitments of the Non-Accepting Lenders may be repaid and terminated on their applicable MaturityDate, and may be so repaid or terminated without any pro rata reduction of the commitments andrepayment of Loans (or Class of Loans) of Accepting Lenders with a different Maturity Date and (v) suchother amendments to this Agreement and the other Loan Documents as shall be appropriate, necessary oradvisable, in the reasonable judgment of the Administrative Agent and the Company, to give effect to theforegoing Permitted Amendments.(d) This Section 2.18 shall supersede any provision in Section 9.02 to the contrary.Notwithstanding any reallocation into extending and non-extending “Classes” or “Tranches” inconnection with a Permitted Amendment, all Loans to the US Borrower under this Agreement shall rankpari -passu in right of payment.SECTION 2.19. Swingline Loans. -84-
(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to makeSwingline Loans from time to time in dollarsDollars to the US Borrower or in Euros or Sterling to the UKBorrower during the Revolving Availability Period, in an aggregate principal amount at any timeoutstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loansexceeding $50,000,000 to all Borrowers, (ii) the total Aggregate Revolving Exposure exceeding theAggregate Revolving Commitment, (iii) the total Revolving Exposure under the Multicurrency Trancheexceeding the total Multicurrency Tranche Revolving Commitments, (iv) the total Revolving Exposure tothe UK Borrower exceeding the UK Sublimit, (v) the aggregate principal amount of outstandingSwingline Loans (to the extent that the other Lenders shall not have funded their participations) andRevolving Exposure of the Swingline Lender (solely in its capacity as a Lender) exceeding the RevolvingCommitment of the Swingline Lender, or (vi) any other limitation set forth in Section 2.01 or 2.02 notbeing satisfied after giving effect to such Swingline Loan; provided that the Swingline Lender shall not berequired to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoinglimits and subject to the terms and conditions set forth herein, any Borrower may borrow, prepay andreborrow Swingline Loans without premium or penalty. To request a Swingline Loan, the US Borrowershall notify the Administrative Agent of such request by telephone (confirmed by facsimile), not laterthan 2:00 p.m., New York City time. (or 12:00 p.m. (noon), London time in the case of Swingline Loansto the UK Borrower), on the day of a proposed Swingline Loan. Each such notice shall be irrevocableand shall specify the requested date (which shall be a Business Day), the applicable Borrower, amountand Agreed Currency of the requested Swingline Loan. The Administrative Agent will promptly advisethe Swingline Lender of any such notice received from the US Borrower. The Swingline Lender shallmake each Swingline Loan available to the applicable Borrower by means of remitting the amounts to anaccount of the Company (or, in the case of a Swingline Loan made to finance the reimbursement of an LCDisbursement as provided in Section 2.20(e), by remittance to the Applicable Issuing Bank).(b) The Swingline Lender may by written notice given to the Administrative Agent not laterthan 12:00 p.m. (noon), New York City time (or 12:00 p.m. (noon), London time in the case of SwinglineLoans to the UK Borrower), on any Business Day require (x) in the case of Swingline Loans denominatedin dollarsDollars, the Lenders to acquire participations on such Business Day in all or a portion of suchSwingline Loans denominated in dollarsDollars outstanding, and (y) in the case of Swingline Loansdenominated in Euros or Sterling made to the UK Borrower, the Multicurrency Tranche RevolvingLenders to acquire participations on such Business Day in all or a portion of such Swingline Loansdenominated in Euros or Sterling outstanding. Such notice shall specify the aggregate amount ofSwingline Loans in which the applicable Lenders will participate. Promptly upon receipt of such notice,the Administrative Agent will give notice thereof to each Dollar Tranche Revolving Lender and/or eachMulticurrency Tranche Revolving Lender, as applicable, specifying in such notice such Lender’s GlobalApplicable Percentage of such Global Dollar Swingline Loan or Loans or such Lender’s MulticurrencyPro Rata Percentage of such Multicurrency Tranche Swingline Loan or Loans, as applicable. EachLender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay tothe Administrative Agent, for the account of the Swingline Lender, such Lender’s Global ApplicablePercentage of such Global Dollar Swingline Loan or Loans in dollars.Dollars. Each MulticurrencyTranche Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice asprovided above, to pay to the Administrative Agent, for the account of the Swingline Lender, suchMulticurrency Tranche Revolving Lender’s Multicurrency Pro Rata Percentage of such MulticurrencyTranche Swingline Loan or Loans in Euros or Sterling, as applicable. Each Lender acknowledges andagrees that its obligation to acquire participations in Global Dollar Swingline Loans pursuant to thisparagraph and each Multicurrency Tranche Revolving Lender acknowledges and agrees that its obligationto acquire participations in Multicurrency Tranche Swingline Loans pursuant to this paragraph, in eachcase, is absolute and unconditional and shall not be affected by any circumstance whatsoever, includingthe 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-85-
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer ofimmediately available funds, in the same manner as provided in Sections 2.04(a) and (b) with respect toLoans made by such Lender (and Sections 2.04(a) and (b) shall apply, mutatis mutandis, to the paymentobligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender theamounts so received by it from the Lenders. The Administrative Agent shall notify the US Borrower ofany participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments inrespect of such Swingline Loan shall be made to the Administrative Agent and not to the SwinglineLender. Any amounts received by the Swingline Lender from a Borrower (or other party on behalf of aBorrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a saleof participations therein shall be promptly remitted to the Administrative Agent; any such amountsreceived by the Administrative Agent shall be promptly remitted by the Administrative Agent to theLenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, astheir interests may appear; provided that any such payment so remitted shall be repaid to the SwinglineLender or to the Administrative Agent, as applicable, if and to the extent such payment is required to berefunded to a Borrower for any reason. The purchase of participations in a Swingline Loan pursuant tothis paragraph shall not relieve the Borrowers of any default in the payment thereof.(c) The Administrative Agent, on behalf of the Swingline Lender, shall request settlement (a“Settlement”) with the Lenders on at least a weekly basis or on any date that the Administrative Agentelects, by notifying the Lenders of such requested Settlement by facsimile, telephone, or e-mail no laterthan (x) in the case of Global Dollar Swingline Loans, 1:00 p.m., New York City time, and (y) in the caseof Swingline Loans denominated in eurosEuros or Sterling, 1:00 p.m., London time, in each case, on thedate of such requested Settlement (the “Settlement Date”). Each Lender (other than the SwinglineLender, in the case of the Global Dollar Swingline Loans) and each Multicurrency Tranche RevolvingLender (other than the Swingline Lender, in the case of the Multicurrency Tranche Swingline Loans)shall transfer the amount of such Lender’s Global Applicable Percentage or Multicurrency Pro RataPercentage, as applicable, of the outstanding principal amount of the applicable Loan in the applicableAgreed Currency with respect to which Settlement is requested to the Administrative Agent, to suchaccount of the Administrative Agent as the Administrative Agent may designate, not later than (x) in thecase of Global Dollar Swingline Loans, 3:00 p.m., New York City time, and (y) in the case of SwinglineLoans denominated in eurosEuros or Sterling, 3:00 p.m., London time, in each case, on such SettlementDate. Settlements may occur during the existence of a Default and whether or not the applicableconditions precedent set forth in Section 4.02 have then been satisfied. Such amounts transferred to theAdministrative Agent shall be applied against the amounts of the Swingline Lender’s Swingline Loansand, together with the Swingline Lender’s Global Applicable Percentage or Multicurrency Pro RataPercentage, as applicable, of such Swingline Loan, shall constitute Loans of such Lenders, respectively.If any such amount is not transferred to the Administrative Agent by any Lender on such Settlement Date,the Swingline Lender shall be entitled to recover such amount on demand from such Lender together withinterest thereon as specified in Section 2.04(b).SECTION 2.20. Letters of Credit.(a) General. Subject to the terms and conditions set forth herein, the Borrowers may requestthe issuance of Letters of Credit in dollarsDollars with respect to the US Borrower or in Euros or Sterlingwith respect to the UK Borrower, in each case, for its own account or for the account of a Borrower andany of the Subsidiary Guarantors, with each Letter of Credit being in a form reasonably acceptable to theAdministrative Agent and the Applicable Issuing Bank, at any time and from time to time during theRevolving Availability Period. In the event of any inconsistency between the terms and conditions of thisAgreement and the terms and conditions of any form of letter of credit application or other agreementsubmitted by a Borrower to, or entered into by a Borrower with, an Issuing Bank relating to any Letter ofCredit, the terms and conditions of this Agreement shall control. It is hereby acknowledged and agreed-86-
that and each of the letters of credit described on Schedule 2.20 (the “Existing Letters of Credit”) shallconstitute a “Letter of Credit” for all purposes of this Agreement and shall be deemed issued under thisAgreement on the Effective Date.(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request theissuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit),the US Borrower shall hand deliver or facsimile (or transmit by electronic communication, ifarrangements for doing so have been approved by the Applicable Issuing Bank) to the Applicable IssuingBank and the Administrative Agent (prior to 12:30 p.m. (or 12:30 p.m. London time with respect to theUK Borrower) at least three Business Days prior to the requested date of issuance, amendment, renewalor extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit tobe amended, renewed or extended, and specifying 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 complywith paragraph (c) of this Section), the amount and Agreed Currency of such Letter of Credit, to whichBorrower’s account the Letter of Credit will apply, the name and address of the beneficiary thereof andsuch other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. Ifrequested by the Applicable Issuing Bank, the US Borrower also shall submit a letter of credit applicationon the Applicable Issuing Bank’s standard form in connection with any request for a Letter of Credit. ALetter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment,renewal or extension of each Letter of Credit the applicable Borrower shall be deemed to represent andwarrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposureshall not exceed $125,000,000, (ii) the Aggregate Revolving Exposure shall not exceed the AggregateRevolving Commitments, (iii) the Issuing Bank Issued Amount with respect to the Applicable IssuingBank shall not exceed the Issuing Bank Individual Sublimit of the Applicable Issuing Bank, (iv) the totalRevolving Exposure of the UK Borrower shall not exceed the UK Sublimit, (v) the LC Exposure of theUK Borrower shall not exceed $25,000,000, (vi) the aggregate Revolving Exposure under theMulticurrency Tranche shall not exceed the Multicurrency Commitments and (vi) all other RevolvingExposure limitations set forth in Sections 2.01 and 2.02 would be satisfied.An Issuing Bank shall not be under any obligation to issue any Letter of Credit if:(i) any order, judgment or decree of any Governmental Authority orarbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing suchLetter of Credit, or any law applicable to such Issuing Bank shall prohibit, or require that suchIssuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit inparticular or shall impose upon such Issuing Bank with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which such Issuing Bank is not otherwisecompensated hereunder) not in effect on the Effective Date, or shall impose upon such IssuingBank any unreimbursed loss, cost or expense that was not applicable on the Effective Date andthat such Issuing Bank in good faith deems material to it; or(ii) the issuance of such Letter of Credit would violate one or more policiesof such Issuing Bank applicable to letters of credit generally.(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business onthe earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case ofany renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is fiveBusiness Days prior to the Maturity Date. -87-
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter ofCredit increasing the amount thereof) and without any further action on the part of the Applicable IssuingBank or the Lenders, the Applicable Issuing Bank hereby grants to each Lender in the case of a Letter ofCredit denominated in dollarsDollars and to each Multicurrency Tranche Revolving Lender in the case ofa Letter of Credit denominated in Euros or Sterling, and each Lender in the case of a Letter of Creditdenominated in dollarsDollars and each Multicurrency Tranche Revolving Lender in the case of a Letterof Credit denominated in Euros or Sterling hereby acquires from the Applicable Issuing Bank, aparticipation in such applicable Letter of Credit equal to such Lender’s Global Applicable Percentage orMulticurrency Pro Rata Percentage, as applicable, of the aggregate amount available to be drawn undersuch applicable Letter of Credit. In consideration and in furtherance of the foregoing, (i) each Lenderhereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of theApplicable Issuing Bank, such Lender’s Global Applicable Percentage of each Global Dollar LCDisbursement denominated in dollarsDollars made by the Applicable Issuing Bank and not reimbursed bythe applicable Borrower on the date due as provided in paragraph (e) of this Section, or of anyreimbursement payment required to be refunded to such Borrower for any reason in each case indollarsDollars and (ii) each Multicurrency Tranche Revolving Lender hereby absolutely andunconditionally agrees to pay to the Administrative Agent, for the account of the Applicable IssuingBank, such Multicurrency Tranche Revolving Lender’s Multicurrency Pro Rata Percentage of eachMulticurrency LC Disbursement denominated in Euros or Sterling made by the Applicable Issuing Bankand not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of thisSection, or of any reimbursement payment required to be refunded to such Borrower for any reason ineach case in the applicable Agreed Currency. Each Lender acknowledges and agrees that its obligation toacquire participations pursuant to this paragraph in respect of Letters of Credit is absolute andunconditional 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 reductionor termination of the Commitments, and that each such payment shall be made without any offset,abatement, withholding or reduction whatsoever.(e) Reimbursement. If the Applicable Issuing Bank shall make any LC Disbursement inrespect of such Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement in theapplicable Agreed Currency by paying to the Administrative Agent an amount equal to such LCDisbursement not later than noon (or noon London time with respect to the UK Borrower) on the date thatis one Business Day immediately following the day that such LC Disbursement is made; provided that theapplicable Borrower may, subject to the conditions to borrowing set forth herein, request in accordancewith Section 2.03 or 2.19 that such payment be financed with a Revolving Borrowing or Swingline Loanin an equivalent amount and, to the extent so financed, such Borrower’s obligation to make such paymentshall be discharged and replaced by the resulting Revolving Borrowing or Swingline Loan. If theapplicable Borrower fails to make such payment when due, the Administrative Agent shall notify eachLender of the applicable Global Dollar LC Disbursement and each Multicurrency Tranche RevolvingLender of the applicable Multicurrency LC Disbursement denominated in Euros or Sterling, the paymentthen due from such Borrower in respect thereof and such Lender’s Global Applicable Percentage orMulticurrency Pro Rata Percentage, as applicable, thereof. Promptly following receipt of such notice,each applicable Lender shall pay to the Administrative Agent such Global Applicable Percentage orMulticurrency Pro Rata Percentage, as applicable, of the payment in the applicable Agreed Currency, thendue from such Borrower, in the same manner as provided in Sections 2.04(a) and 2.04(b) with respect toLoans made by such Lender (and Sections 2.04(a) and 2.04(b) shall apply, mutatis mutandis, to thepayment obligations of the Lenders), and the Administrative Agent shall promptly pay to the ApplicableIssuing Bank the amounts so received by it from the applicable Lenders. Promptly following receipt bythe Administrative Agent of any payment from a Borrower pursuant to this paragraph, the AdministrativeAgent shall distribute such payment to the Applicable Issuing Bank or, to the extent that Lenders havemade payments pursuant to this paragraph to reimburse the Applicable Issuing Bank, then to such-88-
applicable Lenders and the Applicable Issuing Bank as their interests may appear. Any payment made bya Lender pursuant to this paragraph to reimburse the Applicable Issuing Bank for any LC Disbursement(other than the funding of Loans or a Swingline Loan as contemplated above) shall not constitute a Loanand shall not relieve the Borrowers of their obligation to reimburse such LC Disbursement.(f) Obligations Absolute. Each Borrower’s obligation to reimburse LC Disbursements asprovided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall beperformed strictly in accordance with the terms of this Agreement under any and all circumstanceswhatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letterof Credit Agreement or this Agreement, or any term or provision therein, (ii) any draft or other documentpresented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or anystatement therein being untrue or inaccurate in any respect, (iii) payment by the Applicable Issuing Bankunder a Letter of Credit against presentation of a draft or other document that does not comply with theterms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similarto any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitabledischarge of, or provide a right of setoff against, any Borrower’s obligations hereunder. Neither theAdministrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have anyliability or responsibility by reason of or in connection with the issuance or transfer of any Letter ofCredit or any payment or failure to make any payment thereunder (irrespective of any of thecircumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay intransmission or delivery of any draft, notice or other communication under or relating to any Letter ofCredit (including any document required to make a drawing thereunder), any error in interpretation oftechnical terms, any error in translation or any consequence arising from causes beyond the control ofsuch Letter of Credit’s Applicable Issuing Bank; provided that the foregoing shall not be construed toexcuse an Issuing Bank from liability to any Borrower to the extent of any direct damages (as opposed tospecial, indirect, consequential or punitive damages, claims in respect of which are hereby waived by theBorrowers to the extent permitted by applicable law) suffered by any Borrower that are caused by suchIssuing Bank’s gross negligence or willful misconduct (as finally determined by a court of competentjurisdiction). In furtherance of the foregoing and without limiting the generality thereof, the parties agreethat, with respect to documents presented which appear on their face to be in substantial compliance withthe terms of a Letter of Credit, the Applicable Issuing Bank may, in its sole discretion, either accept andmake payment upon such documents without responsibility for further investigation, regardless of anynotice or information to the contrary, or refuse to accept and make payment upon such documents if suchdocuments are not in strict compliance with the terms of such Letter of Credit.(g) Disbursement Procedures. The Applicable Issuing Bank shall, promptly following itsreceipt thereof, examine all documents purporting to represent a demand for payment under a Letter ofCredit. The Applicable Issuing Bank shall promptly notify the Administrative Agent and the USBorrower by telephone (confirmed by facsimile) of such demand for payment and whether the ApplicableIssuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give ordelay in giving such notice shall not relieve each Borrower of its obligation to reimburse the ApplicableIssuing Bank and the Lenders with respect to any such LC Disbursement.(h) Interim Interest. If the Applicable Issuing Bank shall make any LC Disbursement, then,unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LCDisbursement is made, the unpaid amount thereof shall bear interest, for each day from and including thedate such LC Disbursement is made to but excluding the date that such Borrower reimburses such LCDisbursement, at the rate per annum then applicable to (x) ABR Loans in the case of an LC Disbursementmade in dollarsDollars with respect to a Letter of Credit for the account of the US Borrower, (y) TermBenchmark Loans in the case of an LC Disbursement made in Euros with respect to a Letter of Credit forthe account of the UK Borrower or (z) RFR Loans in the case of an LC Disbursement made in Sterling-89-
with respect to a Letter of Credit for the account of the UK Borrower; provided that, if any Borrower failsto reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section2.10(f) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the ApplicableIssuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant toparagraph (e) of this Section to reimburse the Applicable Issuing Bank shall be for the account of suchLender to the extent of such payment.(i) Replacement of an Issuing Bank and Additional Issuing Banks.(i) Any Issuing Bank may be replaced at any time by written agreement among theUS Borrower, the Administrative Agent, the replaced Issuing Bank and the successor IssuingBank. The Administrative Agent shall notify the Lenders of any such replacement of an IssuingBank. At the time any such replacement shall become effective, the Borrowers shall pay allunpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.08(b).From and after the effective date of any such replacement, (i) the successor Issuing Bank shallhave all the rights and obligations of an Issuing Bank under this Agreement with respect toLetters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shallbe deemed to refer to such successor or to any previous Issuing Bank, or to such successor and allprevious Issuing Banks, as the context shall require. After the replacement of an Issuing Bankhereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all therights and obligations of an Issuing Bank under this Agreement with respect to Letters of Creditissued by it prior to such replacement, but shall not be required to issue additional Letters ofCredit. (ii) The US Borrower may, at any time and from time to time with the consent of theAdministrative Agent (which consent shall not be unreasonably withheld, denied, conditioned ordelayed) and such Lender, designate one or more additional Lenders (not to exceed five suchLenders at any time plus two additional Lenders in respect of the Multicurrency TrancheRevolving Commitment) to act as an issuing bank under the terms of this Agreement. AnyLender designated as an issuing bank pursuant to this paragraph (i)(ii) shall be deemed to be an“Issuing Bank” (in addition to being a Lender) in respect of Letters of Credit issued or to beissued by such Lender, and, with respect to such Letters of Credit, such term shall thereafterapply to the other Issuing Bank and such Lender.(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on theBusiness Day that the US Borrower receives notice from the Required Lenders (or, if the maturity of theLoans has been accelerated, the Administrative Agent) demanding the deposit of cash collateral pursuantto this paragraph, each Borrower shall deposit in an account with the Administrative Agent, in the nameof the Administrative Agent and for the benefit of the Lenders (the “LC Collateral Account”), an amountin cash equal to 103% of the LC Exposure of such Borrower as of such date plus accrued and unpaidinterest thereon; provided that the obligation to deposit such cash collateral shall become effectiveimmediately, and such deposit shall become immediately due and payable, without demand or othernotice of any kind, upon the occurrence of any Event of Default with respect to a Borrower described inSection 7.01(h) or (i). Such deposit shall be held by the Administrative Agent as collateral for thepayment and performance of the Obligations. In addition, and without limiting the foregoing orparagraph (c) of this Section, if any LC Exposure remain outstanding after the expiration date specified inSection 2.01, the Borrower shall immediately deposit into the Collateral Account an amount in cash equalto 103% of such LC Exposure as of such date plus any accrued and unpaid interest thereon. TheAdministrative Agent shall have exclusive dominion and control, including the exclusive right ofwithdrawal, over such account and the Borrowers hereby grant the Administrative Agent a securityinterest in the LC Collateral Account to secure the Obligations of such Borrower. Other than any interest-90-
earned on the investment of such deposits, which investments shall be made at the option and solediscretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits shall notbear interest. Interest or profits, if any, on such investments shall accumulate in each such account.Moneys in each such account shall be applied by the Administrative Agent to reimburse the IssuingBanks for LC Disbursements on account of such Borrower for which it has not been reimbursed and, tothe extent not so applied, shall be held for the satisfaction of the reimbursement obligations of theapplicable Borrower for the LC Exposure at such time or, if the maturity of the Loans has beenaccelerated, be applied to satisfy other Obligations. If any Borrower is required to provide an amount ofcash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extentnot applied as aforesaid) shall be returned to such Borrower within three Business Days after all suchEvents of Defaults have been cured or waived.SECTION 2.21. Revolving Commitment Increase.(a) The Borrowers may at any time or from time to time after the Effective Date, by notice tothe Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each ofthe Lenders), request one or more increases in the amount of the Dollar Tranche Revolving Commitmentsand/or the Multicurrency Tranche Revolving Commitments (and, solely with respect to an increase in theamount of Multicurrency Tranche Revolving Commitments and subject to the definition of “CommitmentIncrease Cap”, a related increase to the UK Sublimit) (each such increase, a “Revolving CommitmentIncrease”); provided that both at the time of any such request and upon the effectiveness of anyIncremental Amendment referred to below, no Event of Default shall exist. Each Revolving CommitmentIncrease shall be in an aggregate principal amount that is not less than $25,000,000 (or such lower amountthat either (A) represents all remaining availability under the limit set forth in the next sentence or (B) isacceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregateamount of the Revolving Commitment Increases shall not exceed $500,000,000 (it being understood thatthe aggregate amount of all related increases to the UK Sublimit shall not exceed $50,000,000) (the“Commitment Increase Cap”). Each notice from the US Borrower pursuant to this Section 2.21 shall setforth the requested amount and proposed terms of the relevant Revolving Commitment Increase.Revolving Commitment Increases may be made by any existing Lender or by any other bank or otherfinancial institution (any such other bank or other financial institution being called an “AdditionalLender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, notto be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s Revolving CommitmentIncrease, if such consent would be required under Section 9.04(b) for an assignment of Loans to suchLender or Additional Lender. Each Arranger agrees, upon the request of the US Borrower and pursuantto mutually satisfactory engagement and compensation arrangements, to use its commercially reasonableefforts to obtain any Additional Lenders to make any such requested Revolving Commitment Increase;provided that each Arranger’s agreement to use such efforts does not constitute a commitment to provideany such requested Revolving Commitment Increase.(b) Commitments in respect of Revolving Commitment Increase shall become RevolvingCommitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to thisAgreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lenderagreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and theAdministrative Agent. The Incremental Amendment may, without the consent of any other Lenders,effect such amendments to this Agreement and the other Loan Documents as may be necessary orappropriate, in the reasonable opinion of the Administrative Agent and the US Borrower, to effect theprovisions of this Section 2.21. The effectiveness of any Incremental Amendment shall be subject to thesatisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of theconditions set forth in Section 4.02 (it being understood that all references to “the date of suchBorrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such-91-
Incremental Amendment). The Borrowers may use the proceeds of Loans provided pursuant to anyRevolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall beobligated to provide any Revolving Commitment Increase unless it so agrees in its sole discretion. AnyLender that fails to respond to a request to increase its Commitment shall be deemed to have declinedsuch request.(c) The Loans and Revolving Commitments established pursuant to this paragraph shallconstitute Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by,this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equallyand ratably from the Guarantees provided under Article X.(d) After giving effect to any Revolving Commitment Increase, it may be the case that theoutstanding Loans are not held pro rata in accordance with the new Revolving Commitments. In order toremedy the foregoing, on the effective date of the applicable Revolving Commitment Increase, theLenders (including, without limitation, any Additional Lenders) shall make advances among themselvesso that after giving effect thereto the Loans will be held by the Lenders (including, without limitation, anyAdditional Lenders), pro rata in accordance with the Global Applicable Percentages or Multicurrency ProRata Percentages, as applicable, hereunder (after giving effect to the applicable Revolving CommitmentIncrease).(e) This Section 2.21 shall supersede any provision herein to the contrary.SECTION 2.22. Floorplan Loans.(a) General. Subject to the terms and conditions set forth herein, the US Borrower mayrequest that the Floorplan Funding Agent issue Floorplan Approvals to finance the purchase by the USBorrower and certain of the Subsidiary Guarantors of Inventory from Floorplan Approved Vendors, atany time and from time to time during the Revolving Availability Period; provided, however, that theFloorplan Funding Agent may assume that the Revolving Availability Period has not been terminateduntil it receives written notice of such termination from the Administrative Agent. A Floorplan Approvalshall be issued only if (and upon issuance of each Floorplan Approval, the US Borrower shall be deemedto represent and warrant that (it being understood and agreed that the Floorplan Funding Agent shall notbe deemed to have made any representation or warranty with respect to)), after giving effect to suchissuance, the sum of the aggregate Floorplan Open Approvals plus the Aggregate Revolving Exposureshall not exceed the Aggregate Revolving Commitments. From and after the date on which the FloorplanFunding Agent has actual knowledge of any Default, and so long as such Default is continuing, (i) nofurther Floorplan Approvals will be issued if the Floorplan Funding Agent so chooses in its solediscretion to no longer issue Floorplan Approvals or if the Administrative Agent or the Required Lendersdirect in writing the Floorplan Funding Agent to no longer issue Floorplan Approvals and (ii) theFloorplan Funding Agent may elect in its discretion to cancel all Floorplan Open Approvals (other thanFloorplan Open Approvals that are not cancellable). In the event of any conflict between the terms andconditions of this Agreement and the terms and conditions of the Floorplan Inventory FinancingAgreement, the terms and conditions of this Agreement shall control.(b) Issuance of Floorplan Approvals; Funding of Floorplan Loans. Upon the FloorplanFunding Agent’s receipt from a Floorplan Approved Vendor of an invoice with respect to Inventoryfinanced under a Floorplan Approval (a “Floorplan Approved Invoice”), the US Borrower shall bedeemed (automatically and without any further action on the part of the US Borrower) to have requested aFloorplan Loan from the Floorplan Funding Agent in an amount equal to the face amount of suchFloorplan Approved Invoice, which Floorplan Loan shall be deemed to be fully funded as of the date ofsuch Floorplan Approved Invoice. The unpaid principal balance of each Floorplan Loan shall be payable-92-
in full on the earlier of (i) such date that such Floorplan Approved Invoice is due pursuant to the terms ofthe floorplan program then made available to the US Borrower by the applicable Floorplan ApprovedVendor and (ii) the Maturity Date (the earlier of such dates, a “Floorplan Due Date”). The proceeds ofeach Floorplan Loan will be retained by the Floorplan Funding Agent and the Floorplan Funding Agentwill be directly responsible for paying the related Floorplan Approved Invoice (it being understood thatthe terms of such payment will be negotiated between the Floorplan Funding Agent and the applicableFloorplan Approved Vendor). Prior to the Floorplan Due Date with respect to any Floorplan Loan, theUS Borrower may prepay such Floorplan Loan in full on terms and conditions agreed upon by theFloorplan Funding Agent.(c) Floorplan Loan Payment Obligations. On the date of a Floorplan Approved Invoice to befunded with the proceeds of a Floorplan Loan and without any further action on the part of the FloorplanFunding Agent, the US Borrower or the Lenders, each Lender hereby acquires and shall have anunconditional and absolute obligation to repay to the Floorplan Funding Agent, without setoff orcounterclaim, a portion of such Floorplan Loan on the Floorplan Due Date thereof in an amount equal tosuch Lender’s Global Applicable Percentage of such Floorplan Loan (each such obligation, a “FloorplanLoan Payment Obligation” and each payment made by a Lender in respect thereof, a “Floorplan LoanPayment”), regardless of the occurrence and continuance of a Default or a reduction or termination of theRevolving Commitments or any other event or condition whatsoever, but only so long as (a) theFloorplan Funding Agent has reported the amount of such Floorplan Loan to the Administrative Agent inaccordance with Section 2.22(g), (b) on the Business Day on which the Administrative Agent receivessuch report under clause (a) above, the Floorplan Loan Exposure with respect to such Floorplan Loan(together with the Floorplan Loan Exposure with respect to all other Floorplan Loans reported by theFloorplan Funding Agent to the Administrative Agent on such day) would not exceed the differencebetween the Aggregate Revolving Commitment and the Aggregate Revolving Exposure, as reported bythe Administrative Agent to the Floorplan Funding Agent on such Business Day in accordance withSection 2.22(g). On the date of a Floorplan Approved Invoice to be funded with the proceeds of aFloorplan Loan and without any further action on the part of the Floorplan Funding Agent, the USBorrower or the Lenders, the US Borrower hereby becomes and shall be obligated to reimburse theLenders for all Floorplan Loan Payments without setoff or counterclaim, which obligation shall beabsolute and unconditional irrespective of any defense (other than payment of reimbursement obligationin full) based on or arising out of any defense of the US Borrower or any other Subsidiary or theunenforceability of such reimbursement obligation from any cause, or the cessation from any cause of theliability of the US Borrower or any other Subsidiary, other than the occurrence of the Termination Date,each of which defenses the US Borrower hereby waives to the fullest extent permitted by applicable law.The Administrative Agent and each Lender acknowledge and agree that neither the Lenders’ FloorplanLoan Payment Obligations nor any Floorplan Loan Payment shall give the Administrative Agent or anyLender any right or claim against any Floorplan Approved Vendors.(d) Payments; Reimbursement. On the Floorplan Due Date of each Floorplan Loan, the USBorrower shall reimburse the Lenders for the aggregate amount of all Floorplan Loan Payments payableby the Lenders on such date (each such amount, a “Floorplan Required Payment”) by paying suchFloorplan Required Payment to the Administrative Agent, for the account of the Lenders, not later thannoon on such date, which Floorplan Required Payment shall be paid by the US Borrower or, to the extentnot paid by the US Borrower by noon on such date and, absent receipt by the Administrative Agent ofwritten notice from the US Borrower that it is contesting the calculation of such Floorplan RequiredPayment at least one Business Day prior to the applicable Floorplan Due Date and subject to theconditions to borrowing set forth herein, be financed with a Loan or Swingline Loan in an equivalentamount (each of which the US Borrower shall be deemed to have requested pursuant to Section 2.03 orSection 2.19(a)) and, to the extent so financed, the US Borrower’s obligation to make such FloorplanRequired Payment shall be discharged and replaced by the resulting Loan or Swingline Loan. On the-93-
Floorplan Due Date of each Floorplan Loan, (i) in the event the US Borrower shall have paid a FloorplanRequired Payment to the Administrative Agent by the time required on the applicable Floorplan Due Dateunder the first sentence of this subsection (d), the Administrative Agent, on behalf of the Lenders, shallpay to the Floorplan Funding Agent, without setoff or counterclaim, the aggregate Floorplan LoanPayments due in respect of such Floorplan Loan, and upon the funding thereof in immediately availablefunds to the Floorplan Funding Agent, the Lenders’ obligations to the Floorplan Funding Agent in respectof such Floorplan Loan shall be deemed fully and finally discharged, or (ii) in the event the US Borrowershall not have paid a Floorplan Required Payment to the Administrative Agent by the time required on theapplicable Floorplan Due Date under the first sentence of this subsection (d), the Administrative Agentshall notify each Lender of its Floorplan Loan Payment then due, and each Lender shall beunconditionally and irrevocably obligated to pay such amount, without setoff or counterclaim, by wiretransfer of immediately available funds by 2:00 p.m. on such day to the account of the AdministrativeAgent most recently designated for such purpose by notice to the Lenders, and the Administrative Agentwill pay such amounts, without setoff or counterclaim, to the Floorplan Funding Agent, and upon thefunding thereof in immediately available funds to the Floorplan Funding Agent, the Lenders’ obligationsto the Floorplan Funding Agent in respect of such Floorplan Loan shall be deemed fully and finallydischarged.(e) Obligations Absolute. The US Borrower’s obligation to reimburse Floorplan LoanPayments as provided in paragraph (d) 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 allcircumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any FloorplanApproved Invoice or this Agreement, or any term or provision therein or herein, or (ii) any other event orcircumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitabledischarge of, or provide a right of setoff against, the US Borrower’s obligations hereunder. Neither theAdministrative Agent, the Lenders nor the Floorplan Funding Agent, nor any of their Related Parties,shall have any liability or responsibility by reason of or in connection with the issuance of any FloorplanApproved Invoice or any payment or failure to make any payment thereunder (irrespective of any of thecircumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay intransmission or delivery of any notice or other communication under or relating to any FloorplanApproved Invoice, any error in interpretation of technical terms or any consequence arising from causesbeyond the control of the Floorplan Funding Agent. The Lenders’ obligations to make Floorplan LoanPayments as provided in paragraph (d) 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 allcircumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any FloorplanApproved Invoice or this Agreement, or any term or provision therein or herein, or (ii) any other event orcircumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitabledischarge of, or provide a right of setoff against, the Lenders’ obligations hereunder.(f) Interest on Floorplan Loan Payments. Unless the US Borrower shall reimburse theLenders in full for any Floorplan Loan Payments on the date such Floorplan Loan Payments are made(including with the proceeds of Loans and Swingline Loans deemed made in accordance with subsection(d) of this Section 2.22), the unpaid amount thereof shall bear interest, for each day from and includingthe date such Floorplan Loan Payments are made to but excluding the date the US Borrower reimbursessuch Floorplan Loan Payments, at the rate per annum then applicable to ABR Loans; provided thatSection 2.10(d) shall apply. Such interest shall be due and payable in arrears on the last day of eachcalendar month or earlier upon demand by Administrative Agent.(g) Reporting. Prior to 12:00 noon on each Business Day, the Floorplan Funding Agent shallelectronically deliver to the Administrative Agent and the US Borrower a report setting forth (i) theaggregate principal amount of Floorplan Loans funded by the Floorplan Funding Agent as of the close of-94-
business on the immediately preceding Business Day and not previously reported to the AdministrativeAgent and the US Borrower pursuant to this clause, (ii) the aggregate principal amount of FloorplanLoans outstanding as of the close of business on the immediately preceding Business Day, (iii) theaggregate amount of Floorplan Open Approvals as of the close of business on the immediately precedingBusiness Day and (iv) the aggregate principal amount of Floorplan Loans maturing on each of the nextsucceeding five (5) days. Prior to 4:00 p.m. on each Business Day, the Administrative Agent shallelectronically deliver to the Floorplan Funding Agent (i) its calculation of the difference between theAggregate Revolving Commitment and the Aggregate Revolving Exposure as of such date (and aftergiving effect to all Borrowings made, Floorplan Required Payments made, Loans repaid and Letters ofCredit issued, amended or cancelled, on such date) and (ii) the aggregate amount of any past-dueFloorplan Required Payments as of such date.(h) Cash Collateralization. If any Event of Default shall occur and be continuing, on theBusiness Day that the US Borrower receives notice from the Required Lenders (or, if the maturity of theLoans has been accelerated, the Administrative Agent) demanding the deposit of cash collateral pursuantto this paragraph, each US Borrower shall deposit in an account with the Administrative Agent, in thename of the Administrative Agent and for the benefit of the Lenders (the “Floorplan Collateral Account”),an amount in cash equal to 103% of the Floorplan Loan Exposure as of such date plus accrued and unpaidinterest thereon; provided that the obligation to deposit such cash collateral shall become effectiveimmediately, and such deposit shall become immediately due and payable, without demand or othernotice of any kind, upon the occurrence of any Event of Default with respect to a US Borrower describedin clause (g) or (h) of Article VII. Such deposit shall be held by the Administrative Agent as collateral forthe payment and performance of the Obligations. The Administrative Agent shall have exclusivedominion and control, including the exclusive right of withdrawal, over such account and the USBorrower hereby grants the Administrative Agent a security interest in the Floorplan Collateral Account.Other than any interest earned on the investment of such deposits, which investments shall be made at theoption and sole discretion of the Administrative Agent and at the US Borrower’s risk and expense, suchdeposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in suchaccount. Moneys in such account shall be first applied by the Administrative Agent to reimburse theFloorplan Funding Agent for Floorplan Loan Payments which it has not yet received and then toreimburse the Lenders for Floorplan Loan Payments for which the Lenders have not been reimbursed and,to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the USBorrower for Floorplan Loan Exposure at such time or, if the maturity of the Loans has been accelerated,be applied to satisfy other Obligations. If the US Borrower is required to provide an amount of cashcollateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent notapplied as aforesaid) shall be returned to the US Borrower within three Business Days after all suchDefaults have been cured or waived.(i) Credits. All credits issued by vendors with respect to Floorplan Approved Invoices(“Floorplan Vendor Credits”) shall be for the sole account of the Lenders and shall be paid by theFloorplan Funding Agent to such Person(s) as directed in writing from time to time by the AdministrativeAgent to the Floorplan Funding Agent. On the Effective Date, and thereafter until the Floorplan FundingAgent is advised otherwise in writing by the Administrative Agent during the continuance of an Event ofDefault, all Floorplan Vendor Credits shall be paid by the Floorplan Funding Agent to the US Borroweror the Subsidiary Guarantor in whose name the Floorplan Vendor Credit was issued promptly followingreceipt thereof by the Floorplan Funding Agent.(j) Notwithstanding anything in this Agreement to the contrary, if at any time (a) there areno outstanding Floorplan Approvals or Floorplan Loans, (b) all Floorplan Loan Payments and FloorplanRequired Payments have been paid in full (c) the Floorplan Inventory Financing Agreement has beenterminated, and (d) the Floorplan Funding Agent has ceased issuing any further Floorplan Approvals-95-
then, upon written notice by the US Borrower to the Administrative Agent and the Floorplan FundingAgent, all obligations (including, without limitation, under Section 2.09(e)), voting and consent rights of,and information and documentation delivery obligations to, the Floorplan Funding Agent shall terminateand be of no further force and effect.(k) It is hereby acknowledged and agreed that, (i) (A) effective as of the Effective Date, theExisting Floorplan Loans (as defined below) described in clause (ii) of such definition below shallcontinue as Floorplan Loans for all purposes of this Agreement and shall be deemed to be made under thisAgreement as of the Effective Date and (B) effective as of the date the Subsidiaries described in clause (i)of the definition of Existing Floorplans Loans below become Subsidiary Guarantors and party to theFloorplan Inventory Financing Agreement, the Existing Floorplan Loans (as defined below) described insuch clause (i) below shall continue as Floorplan Loans for all purposes of this Agreement and shall bedeemed to be made under this Agreement as of such date and (ii) all approvals to finance Inventory forany of the Borrowers or their respective Subsidiaries by Floorplan Funding Agent or any of its Affiliates(the “Existing Floorplan Approvals”), whether under the Existing Revolving Credit Agreement orotherwise, shall as of such respective date continue as Floorplan Approvals hereunder (and anyobligations of Borrowers or their respective Subsidiaries in respect thereof shall constitute FloorplanApprovals hereunder to the same extent as though such Existing Floorplan Approvals had been FloorplanApprovals hereunder at all times).As used herein, “Existing Floorplan Loans” means (i) with respect to Sirius Federal, LLC andSirius Computer Solutions, Inc., certain floorplan loans made in respect of financed Inventory byFloorplan Funding Agent or its Affiliates and (ii) with respect to the Borrowers and their Subsidiaries(excluding Sirius Federal, LLC and Sirius Computer Solutions, Inc.), certain Floorplan Loans (as definedin the Existing Revolving Credit Agreement). ARTICLE IIIRepresentations and WarrantiesThe Company, the UK Borrower and each Guarantor represents and warrants (provided that forthe UK Borrower, such representations and warranties are limited solely to itself and it makes norepresentations or warranties with respect to the US Borrower, any Guarantor or any other Subsidiary) (itbeing understood that, for purposes of the representations and warranties made in the Loan Documents onthe Effective Date, such representations and warranties shall be construed as though the Transactionshave been consummated) to the Administrative Agent, each Issuing Bank, the Floorplan Funding Agentand each of the Lenders, on the Effective Date and on each other date on which representations andwarranties are required to be, or are deemed to be, made under the Loan Documents, that:SECTION 3.01. Organization; Powers. The Company, Holdings, each Guarantor and eachother Material Subsidiary is duly organized, validly existing and (to the extent the concept is applicable insuch jurisdiction) in good standing under the laws of the jurisdiction of its organization, has all power andauthority and all material Governmental Approvals required for the ownership and operation of itsmaterial properties and the conduct of its material business as now conducted and, except where thefailure to do so, individually or in the aggregate, would not reasonably be expected to result in a MaterialAdverse Effect, is qualified to do business, and is in good standing, in every jurisdiction where suchqualification is required.SECTION 3.02. Authorization; Enforceability. The Transactions to be entered into by eachBorrower and each Guarantor are within such Borrower’s and Guarantor’s corporate or otherorganizational powers and have been duly authorized by all necessary corporate or other organizational-96-
and, if required, stockholder or other equityholder action of each Borrower and each Guarantor. ThisAgreement has been duly executed and delivered by each Borrower and each Guarantor and constitutes,and each other Loan Document, when executed and delivered by each Borrower and each Guarantor, willconstitute, a legal, valid and binding obligation of such Borrower or such Guarantor, as applicable,enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency,reorganization, moratorium, winding-up or other laws affecting creditors’ rights generally and to generalprinciples of equity, regardless of whether considered in a proceeding in equity or at law, and in the caseof the UK Borrower, subject to the Legal Reservations.SECTION 3.03. Governmental Approvals; Absence of Conflicts. The Transactions (a)do not require any consent or approval of, registration or filing with or any other action by anyGovernmental Authority, except such as have been obtained or made and are in full force andeffect and except to the extent failure to obtain any such consent, approval, registration, filing orother action would not reasonably be expected to result in a Material Adverse Effect, (b) will notviolate any applicable law, including any order of any Governmental Authority, except to theextent any such violations, individually or in the aggregate, would not reasonably be expected toresult in a Material Adverse Effect, (c) do not require consent or approval, except such as havebeen obtained and are in full force and effect, under, and will not violate, the certificate orformation or limited liability company agreement of each Borrower, (d) will not violate or result(alone or with notice or lapse of time or both) in a default under any indenture or other agreementor instrument in respect of Material Indebtedness binding upon the Company, Holdings or anySubsidiary or any of their assets, or give rise to a right thereunder to require any payment,repurchase or redemption to be made by the Company, Holdings or any Subsidiary, or give rise toa right of, or result in, any termination, cancellation, acceleration or right of renegotiation of anyobligation thereunder, in each case except to the extent that the foregoing, individually or in theaggregate, would not reasonably be expected to result in a Material Adverse Effect and (e) exceptfor Permitted Liens or other Liens permitted under Section 6.02, will not result in the creation orimposition of any Lien on any asset of the Company, Holdings or any Subsidiary, and, in eachcase, in the case of the UK Borrower, subject to the Legal Reservations.SECTION 3.04. Financial Condition; No Material Adverse Change.(a) The Company has heretofore furnished to the Lenders its audited consolidated balancesheet and related consolidated statements of operations, shareholders’ equity and cash flows as of and forthe fiscal year ended December 31, 2020, and (b) as of and for the fiscal quarter and the portion of thefiscal year ended September 30, 2021. Such financial statements present fairly, in all material respects,the financial position, results of operations and cash flows of the Company and its consolidatedSubsidiaries as of such dates and for such periods in accordance in all material respects with GAAP,subject to normal year-end audit adjustments and the absence of footnotes in the case of the statementsreferred to in clause (b) above.(b) Since December 31, 2020, there has been no event or condition that has resulted, orwould reasonably be expected to result, in a material adverse change in the business, assets, liabilities,operations or financial condition of the Company and the Subsidiaries, taken as a whole.SECTION 3.05. Properties.(a) The Company and each Subsidiary has good title to, or valid leasehold interests in, orrights to use, all its property material to its business, subject to Liens permitted by Section 6.02 andexcept (i) for defects in title that, individually or in the aggregate, do not materially detract from the valueof the affected property or materially interfere with the ordinary conduct of business of the Company or-97-
any Subsidiary or (ii) for any failure to do so that, individually or in the aggregate, would not reasonablybe expected to result in a Material Adverse Effect.(b) The Company and each Subsidiary owns, or is licensed to use, all patents, trademarks,copyrights, licenses, technology, software, domain names and other intellectual property that is necessaryfor the conduct of its business as currently conducted, without conflict with the rights of any other Person,except to the extent that such failure to own or license, or any such conflict, individually or in theaggregate, would not reasonably be expected to result in a Material Adverse Effect. No patents,trademarks, copyrights, licenses, technology, software, domain names or other intellectual property usedby the Company or any Subsidiary in the operation of its business infringes upon, misappropriates orotherwise violates the rights of any other Person, except for any such infringements, misappropriations orother violations that, individually or in the aggregate, would not reasonably be expected to result in aMaterial Adverse Effect. No claim or litigation regarding any patents, trademarks, copyrights, licenses,technology, software, domain names or other intellectual property owned or used by the Company or anySubsidiary is pending or, to the knowledge of the Company or any Subsidiary, threatened in writingagainst the Company or any Subsidiary that, individually or in the aggregate, has a reasonable likelihoodof an adverse determination and such adverse determination would reasonably be expected to result in aMaterial Adverse Effect.SECTION 3.06. Litigation and Environmental Matters.(a) Except as set forth in Schedule 3.06, there are no actions, suits or proceedings by orbefore any Governmental Authority or arbitrator pending against or, to the knowledge of the Company orany Subsidiary, threatened in writing against the Company or any Subsidiary that (i) has a reasonablelikelihood of an adverse determination and such adverse determination would reasonably be expected,individually or in the aggregate, to result in a Material Adverse Effect or (ii) involve any of the LoanDocuments.(b) Except with respect to any matters that, individually or in the aggregate, would notreasonably be expected to result in a Material Adverse Effect: neither the Company nor any Subsidiary (i)has failed to comply with any Environmental Law or to obtain, maintain or comply with anyGovernmental Approval required under any Environmental Law, (ii) is subject to any EnvironmentalLiability, (iii) has received written notice of any claim with respect to any Environmental Liability or (iv)knows of any fact, incident, event or condition that could reasonably be expected to form the basis for anyEnvironmental Liability.SECTION 3.07. Compliance with Laws.(a) The Company and each Subsidiary is in compliance with all laws, including all orders ofGovernmental Authorities, applicable to it or its property, except where the failure to comply,individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.(b) The Company has implemented and maintains in effect policies and procedures designedto ensure compliance by the Company and the Subsidiaries (subject to Section 5.08) and their respectivedirectors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and theCompany and the Subsidiaries and their respective officers and directors and, to the knowledge of theCompany, Holdings or any Subsidiary, their respective employees and agents are in compliance withAnti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Company,Holdings, any Subsidiary or their respective directors or officers or, to the knowledge of the Company,Holdings or any Subsidiary, any of their respective employees, or (b) to the knowledge of the Company,Holdings or any Subsidiary, any agent of the Company, Holdings or any Subsidiary that will act in any-98-
capacity in connection with or benefit from any credit facility established hereby, is a Sanctioned Person.The Transactions do not violate any Anti-Corruption Law, the USA PATRIOT Act or applicableSanctions.SECTION 3.08. Investment Company Status. None of Holdings, the Company or anySubsidiary Guarantor is an “investment company” as defined in, or subject to regulation under, theInvestment Company Act of 1940.SECTION 3.09. Taxes. The Company and each Subsidiary have timely filed or caused to befiled all Tax returns and reports required to have been filed and have paid or caused to be paid all Taxesrequired to have been paid by them, except where (a) (i) the validity or amount thereof is being contestedin good faith by appropriate proceedings, (ii) the Company or such Subsidiary, as applicable, has set asideon its books reserves with respect thereto to the extent required by GAAP and (iii) such contesteffectively suspends collection of the contested obligation and the enforcement of any Lien securing suchobligation or (b) the failure to do so would not, individually or in the aggregate, reasonably be expectedto result in a Material Adverse Effect.SECTION 3.10. ERISA. No ERISA Events have occurred or are reasonably expected tooccur that would, in the aggregate, reasonably be expected to result in a Material Adverse Effect. TheCompany and each ERISA Affiliate has fulfilled its obligations under the minimum funding standards ofERISA and the Code with respect to each Plan and is in compliance with the presently applicableprovisions of ERISA and the Code with respect to each Plan, in each case, except as would not,individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except aswould not reasonably be expected to result in a Material Adverse Effect, neither the Company nor anyERISA Affiliate has (a) sought a waiver of the minimum funding standard under Section 412 of the Codein respect of any Plan, (b) failed to make any contribution or payment to any Plan or Multiemployer Plan,or made any amendment to any Plan that has resulted or could result in the imposition of a Lien or theposting of a bond or other security under ERISA or the Code, or (c) incurred any liability under Title IVof ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA that are not pastdue. The Company does not and will not hold “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA).SECTION 3.11. Solvency. On the Effective Date, immediately after giving effect to theconsummation of the Transactions to occur on such date, including the making of any Loans and theapplication of the proceeds thereof, (i) the fair value of the assets of the Company and the Subsidiaries ona consolidated basis, at a fair valuation on a going concern basis, will exceed the debts and liabilities,direct, subordinated, contingent or otherwise, of the Company and the Subsidiaries on a consolidatedbasis; (ii) the present fair saleable value of the property of the Company and the Subsidiaries on aconsolidated and going concern basis will be greater than the amount that will be required to pay theprobable liability of the Company and the Subsidiaries on a consolidated basis on their debts and otherliabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities becomeabsolute and matured in the ordinary course of business; (iii) the Company and the Subsidiaries on aconsolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent orotherwise, as such debts and liabilities become absolute and matured in the ordinary course of business;and (iv) the Company and the Subsidiaries on a consolidated basis will not have unreasonably smallcapital with which to conduct the businesses in which they are engaged as such businesses are nowconducted. -99-
SECTION 3.12. Disclosure. Each of the written reports, financial statements, certificates andother written information (other than financial projections, budgets, estimates, other forward-lookinginformation, and information of a general economic or industry-specific nature) furnished by or on behalfof the Company, Holdings or any Subsidiary to the Administrative Agent, any Arranger or any Lender inconnection with the negotiation of this Agreement or any other Loan Document is and will be, whenfurnished and taken as a whole, complete and correct in all material respects and does not and will not,when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state amaterial fact necessary to make the statements contained therein not materially misleading in light of thecircumstances under which such statements are made (in each case after giving effect to all supplementsand updates provided thereto prior to the Effective Date). The financial projections that have beenfurnished by or on behalf of the Company, Holdings or any Subsidiary to the Administrative Agent, anyArranger or any Lender in connection with the negotiation of this Agreement or any other LoanDocument have been prepared in good faith based upon assumptions that are believed by the Company tobe reasonable at the time such financial projections are furnished to the Administrative Agent, anyArranger or any Lender, it being understood and agreed that financial projections are as to future eventsand are not to be viewed as facts, are subject to significant uncertainties and contingencies, many ofwhich are out of the Company’s, or its Subsidiaries’ control, that no assurance can be given that anyparticular projections will be realized, that the financial projections is not a guarantee of financialperformance and that actual results during the period or periods covered by such projections may differsignificantly from the projected results and such differences may be material.SECTION 3.13. Federal Reserve Regulations. Neither the Company, Holdings nor anySubsidiary is engaged or will engage, principally or as one of its important activities, in the business ofpurchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors), orextending credit for the purpose of purchasing or carrying margin stock. No part of the proceeds of theLoans or any Letter of Credit will be used to purchase or carry margin stock, to extend credit for others topurchase or carry margin stock or for any purpose that entails, and no other action will be taken by theCompany, Holdings and the Subsidiaries that would result in, a violation of Regulations T, U and X ofthe Board of Governors.SECTION 3.14. Use of Proceeds. The Company will use the proceeds of the Loans to (i)finance the Effective Date Refinancing, (ii) pay fees and expenses incurred in connection with theEffective Date Refinancing, the Transactions and the Term Loan Credit Agreement and (iii) for workingcapital in the ordinary course of business and for general corporate purposes of the Company, Holdingsand the Subsidiaries.SECTION 3.15. Ranking of Obligations. The obligations of the Company under the LoanDocuments rank at least equally with all of the unsubordinated unsecured Indebtedness of the Company,and ahead of all subordinated Indebtedness, if any, of the Company.SECTION 3.16. Labor Matters. Except as set forth in Schedule 3.16 and except in theaggregate to the extent the same has not had and could not be reasonably expected to have a MaterialAdverse Effect, (a) there are no strikes, lockouts, slowdowns or other labor disputes against any LoanParty or any Subsidiary pending or, to the knowledge of the Loan Parties, threatened in writing, and(b) the hours worked by and payments made to employees of the Loan Parties and the Subsidiaries havenot been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local orforeign law dealing with such matters.SECTION 3.17. Subsidiaries. Schedule 3.17 sets forth as of the Effective Date a list of allSubsidiaries of the US Borrower, the jurisdiction of their formation or organization, as the case may be,-100-
and the percentage ownership interest of such Subsidiary’s parent company therein, and such Scheduleshall denote which subsidiaries as of the Effective Date are not Subsidiary Guarantors.ARTICLE IVConditionsSECTION 4.01. Effective Date. The effectiveness of this Agreement and the obligations ofthe Lenders to make Loans and each Issuing Bank to issue Letters of Credit hereunder shall not becomeeffective until the date on which each of the following conditions shall be satisfied (or waived):(a) The Administrative Agent shall have received a counterpart of this Agreementexecuted by each party hereto (which, subject to Section 9.06(b), may include any ElectronicSignatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces animage of an actual executed signature page).(b) The Administrative Agent shall have received written opinions (addressed to theAdministrative Agent, the Issuing Banks and the Lenders and dated the Effective Date) ofKirkland & Ellis LLP, special counsel to the Borrowers and the Guarantors, Foley & LardnerLLP, Wisconsin counsel to the applicable Guarantors, Fluet & Associates, PLLC d/b/a FH+H,Virginia counsel to the applicable Guarantors, and Cahill Gordon & Reindel (UK) LLP, in eachcase, in form and substance customary for financings of this type.(c) The Administrative Agent shall have received a certificate of each Borrower(excluding the UK Borrower) and each Guarantor, dated the Effective Date and executed by thesecretary, an assistant secretary or a director of each Borrower (excluding the UK Borrower) andeach Guarantor, as applicable, attaching (i) a copy of each organizational document of eachBorrower (excluding the UK Borrower) and each Guarantor which shall, to the extent applicable,be certified as of the Effective Date or a recent date prior thereto by the appropriateGovernmental Authority, (ii) signature and incumbency certificates of the officers or directors, asapplicable, of each Borrower (excluding the UK Borrower) and each Guarantor, as applicableexecuting each Loan Document, (iii) resolutions of the board of directors or shareholders, asapplicable, of each Borrower (excluding the UK Borrower) and each Guarantor, as applicableapproving and authorizing the execution, delivery and performance of the Loan Documents,certified as of the Effective Date by such secretary, assistant secretary or director as being in fullforce and effect without modification or amendment, and (iv) a good standing certificate (whererelevant) from the Secretary of State or similar Governmental Authority of the jurisdiction oforganization or formation, if applicable, for each Borrower and each Guarantor, dated theEffective Date or a recent date prior thereto, in each case, in form and substance customary forfinancings of this type.(d) The Administrative Agent shall have received from the UK Borrower:(i) a copy of the constitutional documents of the UK Borrower;(ii) if required by law or by the constitutional documents or customary in the relevantjurisdiction, a copy of a resolution of the board of directors or managers or equivalent body of theUK Borrower; -101-
(A) approving the terms of, and the transactions contemplated by, the LoanDocuments to which it is a party and resolving that it execute the Loan Documents to which it is aparty; (B) authorizing a specified person or persons, to execute the Loan Documents towhich it is a party on its behalf; and(C) authorizing a specified person or persons, on its behalf, to sign and/or dispatch alldocuments and notices to be signed and/or dispatched by it under or in connection with the LoanDocuments to which it is a party;(iii) specimen signatures for the person(s) authorized in the resolutions referred to inparagraph (ii) above (to the extent such person will execute a Loan Document); and(iv) a certificate from the UK Borrower certifying that each copy document relatingto it specified in paragraphs (i) to (ii) above is correct, complete and (to the extent executed) infull force and effect and has not been amended or superseded prior to the date of this Agreement;(e) The Administrative Agent shall have received a certificate, dated the EffectiveDate and signed by a Responsible Officer of the Company, certifying that, as of the EffectiveDate and after giving effect to the Transactions that are to occur on such date, (i) therepresentations and warranties of the Borrowers and the Guarantors set forth in the LoanDocuments are true and correct (A) in the case of the representations and warranties qualified asto materiality, in all respects and (B) otherwise, in all material respects and (ii) no Default orEvent of Default has occurred and is continuing.(f) The Administrative Agent shall have received a certificate substantially in theform of Exhibit E from the Company, dated the Effective Date and signed by a ResponsibleOfficer of the Company.(g) All reasonable out-of-pocket costs, expenses (including reasonable anddocumented legal fees and expenses of one outside counsel) and fees contemplated by the LoanDocuments, or otherwise agreed by the Company with the Arrangers, to be reimbursable orpayable by or on behalf of the Company to the Arrangers (or their Affiliates), the AdministrativeAgent or the Lenders shall have been paid on or prior to the Effective Date, in each case, to theextent required to be paid on or prior to the Effective Date and, in the case of such costs andexpenses, invoiced at least three (3) Business Days prior to the Effective Date.(h) The Lenders shall have received at least three (3) Business Days prior to theEffective Date, to the extent reasonably requested by the Administrative Agent or any Lender atleast ten Business Days prior to the Effective Date, all documentation and other informationrequired by regulatory authorities under applicable “know your customer” and anti-moneylaundering rules and regulations, including, without limitation, the USA PATRIOT Act and theBeneficial Ownership Regulation, including, to each Lender that so requests, a BeneficialOwnership Certification to the extent a Borrower qualifies as a “legal entity” customer under theBeneficial Ownership Regulation.(i) The Effective Date Refinancing shall have occurred substantially concurrentlywith the Transactions. -102-
For purposes of determining compliance with the conditions specified in this Section 4.01, theAdministrative Agent, each Issuing Bank and each Lender as of the Effective Date shall, upon theexecution and delivery by the Administrative Agent, each such Issuing Bank and each such Lender oftheir respective signature pages to this Agreement, be deemed to have consented to, approved or acceptedor to be satisfied with, each document or other matter required hereunder to be consented to or approvedby or acceptable or satisfactory to the Administrative Agent, each such Issuing Bank and each suchLender.The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and suchnotice shall be conclusive and binding.SECTION 4.02. Each Revolving Credit Event. The obligation of each Lender to make a Loanand of each Issuing Bank to issue Letters of Credit on the occasion of each Borrowing (other than anyconversion or continuation of any outstanding Loans) or issuance of Letters of Credit is subject to receiptof the Borrowing Request therefor in accordance herewith and to the satisfaction of the followingconditions: (a) The representations and warranties of the Borrowers and the Guarantors set forthin the Loan Documents (other than, after the Effective Date, the representations set forth inSections 3.04(b) and 3.06(a)) shall be true and correct (i) in the case of the representations andwarranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, ineach case on and as of the date of such Borrowing, except in the case of any such representationor warranty that expressly relates to a prior date, in which case such representation or warrantyshall be so true and correct (i) in the case of the representations and warranties qualified as tomateriality, in all respects and (ii) otherwise, in all material respects, in each case, on and as ofsuch prior date.(b) At the time of and immediately after giving effect to such Borrowing, no Defaultor Event of Default shall have occurred and be continuing.On the date of any Borrowing (other than any conversion or continuation of any outstanding Loans andany amendment to any Letter of Credit that increases or extends such Letter of Credit), the Company shallbe deemed to have represented and warranted that the conditions specified in paragraphs (a) and (b) ofthis Section have been satisfied. ARTICLE VAffirmative CovenantsThe Borrowers and the Subsidiary Guarantors covenant and agree (provided that for the UKBorrower, such covenants and agreements are limited solely to itself and it makes no covenant oragreement with respect to the US Borrower or any other Subsidiary) with each Lender, each Issuing Bankand the Floorplan Funding Agent that, until the Termination Date:SECTION 5.01. Financial Statements and Other Information. The Company will furnish tothe Administrative Agent, on behalf of each Lender and the Floorplan Funding Agent:(a) within 90 days after the end of each fiscal year of the Company, commencingwith the fiscal year ending December 31, 2021, its audited consolidated balance sheet and relatedconsolidated statements of operations, shareholders’ equity and cash flows as of the end of andfor such fiscal year, setting forth in each case in comparative form the figures for the prior fiscal-103-
year, all audited by and accompanied by the opinion of Ernst & Young LLP or anotherindependent registered public accounting firm of recognized national standing (without a “goingconcern” or like qualification or exception (other than any qualification or exception with respectto or resulting from (i) an upcoming scheduled final maturity of any Loans, Term Loans, SeniorNotes or other Indebtedness occurring within one year from the time such opinion is delivered or(ii) any prospective or actual default or event of default under the financial covenant hereunder ora financial covenant in any other Indebtedness) and without any qualification, exception oremphasis as to the scope of such audit) to the effect that such consolidated financial statementspresent fairly, in all material respects, the financial position, results of operations and cash flowsof the Company and its consolidated Subsidiaries on a consolidated basis as of the end of and forsuch year in accordance in all material respects with GAAP;(b) within 45 days after the end of each of the first three fiscal quarters of each fiscalyear of the Company, its consolidated balance sheet as of the end of such fiscal quarter, therelated consolidated statements of operations for such fiscal quarter and the then elapsed portionof the fiscal year and the related statements of cash flows for the then elapsed portion of the fiscalyear, in each case setting forth in comparative form the figures for the corresponding period orperiods of (or, in the case of the balance sheet, as of the end of) the prior fiscal year, all certifiedby a Financial Officer of the Company as presenting fairly, in all material respects, the financialposition, results of operations and cash flows of the Company and its consolidated Subsidiarieson a consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscalyear in accordance with in all material respects GAAP, subject to normal year-end auditadjustments and the absence of certain footnotes;(c) concurrently with each delivery of financial statements under clause (a) or (b)above, a completed Compliance Certificate signed by a Financial Officer of the Company, (i)certifying as to whether a Default has occurred and is continuing on such date and, if a Defaulthas occurred and is continuing on such date, specifying the details thereof and any action taken orproposed to be taken with respect thereto and (ii) setting forth reasonably detailed calculationsdemonstrating compliance with Section 6.06;(d) promptly after the same become publicly available, copies of all periodic andother reports, proxy statements and other materials filed by the Company, Holdings or anySubsidiary with the SEC or with any national securities exchange;(e) promptly after any request therefor, such other information regarding theoperations, business affairs, assets, liabilities and financial condition of the Company or anySubsidiary (subject to the limitations described in the last sentence of Section 5.07), orcompliance with the terms of any Loan Documents, as the Administrative Agent or any Lender(through the Administrative Agent) may reasonably request in writing; and(f) promptly following any request therefor, provide information and documentationreasonably requested by the Administrative Agent or any Lender for purposes of compliance withapplicable “know your customer” and anti-money-laundering rules and regulations, including,without limitation, the USA PATRIOT Act and the Beneficial Ownership Regulation.Notwithstanding anything to the contrary in this Section 5.01, none of the Borrowers, Holdings nor anySubsidiary will be required to disclose or permit the inspection or discussion of, any document,information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietaryinformation, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their-104-
respective representatives or contractors) is prohibited by law or any binding agreement or (iii) that issubject to attorney client or similar privilege or constitutes attorney work product.Information required to be delivered pursuant to clause (a), (b) or (d) of this Section shall be deemed tohave been delivered to the Lenders if such information, or one or more annual or quarterly reportscontaining such information, shall have been posted by the Administrative Agent on an IntraLinks orsimilar site to which the Lenders have been granted access or shall be available on the website of the SECat http://www.sec.gov or on the website of the US Borrower. Information required to be deliveredpursuant to this Section to the Administrative Agent may also be delivered by electronic communicationspursuant to procedures approved by the Administrative Agent.SECTION 5.02. Notices of Material Events. Promptly after any Responsible Officer of theBorrowers or any Subsidiary Guarantor obtains actual knowledge thereof, the Company will furnish tothe Administrative Agent and the Floorplan Funding Agent written notice of the following:(a) the occurrence of, or receipt by either Borrower or any Subsidiary Guarantor ofany written notice claiming the occurrence of, any Default;(b) the filing or commencement of any action, suit or proceeding by or before anyarbitrator or Governmental Authority against the Company, Holdings or any Subsidiary, or anyadverse development in any such pending action, suit or proceeding not previously disclosed inwriting by the Company to the Administrative Agent and the Lenders, that in each case has areasonable likelihood of an adverse determination and such determination would reasonably beexpected to result in a Material Adverse Effect or that in any manner questions the validity of anyLoan Document;(c) the occurrence of any ERISA Event that, alone or together with any other ERISAEvents that have occurred would reasonably be expected to result in a Material Adverse Effect; or(d) any other development that has resulted, or would reasonably be expected toresult, in a Material Adverse Effect.Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer ofthe Company setting forth the details of the event or development requiring such notice and any actiontaken or proposed to be taken with respect thereto.SECTION 5.03. Existence; Conduct of Business. The Borrowers and each SubsidiaryGuarantor will, and will cause each Subsidiary to, do or cause to be done all things necessary to preserve,renew and keep in full force and effect (a) its legal existence and (b) the rights, licenses, permits,privileges and franchises material to the conduct of the business of the Company, Holdings and itsSubsidiaries taken as a whole, except, in the case of this clause (b), where the failure to do so,individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;provided that the foregoing shall not prohibit any transaction permitted under Article VI.SECTION 5.04. Payment of Taxes. The Borrowers and each Subsidiary Guarantor will, andwill cause each Subsidiary to, pay its Taxes before the same shall become delinquent or in default bymore than forty-five (45) days, except where (a) (i) the validity or amount thereof is being contested ingood faith by appropriate proceedings, (ii) the Company or such Subsidiary has set aside on its booksreserves with respect thereto to the extent required by GAAP and (iii) such contest effectively suspendscollection of the contested obligation and the enforcement of any Lien securing such obligation or (b) the-105-
failure to make payment would not, individually or in the aggregate, reasonably be expected to result in aMaterial Adverse Effect.SECTION 5.05. Maintenance of Properties and Rights. The Borrowers and each SubsidiaryGuarantor will, and will cause each Subsidiary to, keep and maintain all property material to the conductof its business in good working order and condition, ordinary wear and tear and casualty andcondemnation excepted, and will take all actions reasonably necessary to maintain and protect all patents,trademarks, copyrights, licenses, technology, software, domain names and other intellectual propertyrights necessary to the conduct of its business as currently conducted and proposed to be conducted,except in each case (i) for the abandonment of intellectual property rights in the ordinary course ofbusiness, which in the reasonable and good faith determination of the Company are not material to theconduct of the business of the Company, Holdings and the Subsidiaries, taken as a whole, (ii) the lapse orexpiration of registered intellectual property rights at the end of the applicable statutory term, and (iii)where the failure to maintain or take any such actions, individually or in the aggregate, would notreasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall notprohibit any transaction permitted under Article VI.SECTION 5.06. Insurance. The Borrowers and each Subsidiary Guarantor will, and willcause each Subsidiary to, maintain, with insurance companies that the Company believes (in the goodfaith judgment of the management of the Company) are financially sound and reputable (includingcaptive insurance subsidiaries), insurance in such amounts (with no greater risk retention) and againstsuch risks as is customarily maintained by companies of established repute engaged in the same or similarbusinesses operating in the same or similar locations.SECTION 5.07. Books and Records; Inspection and Audit Rights. The Borrowers and eachSubsidiary Guarantor will, and will cause each Subsidiary to, keep proper books of record and account inwhich full, true and correct entries in accordance, in all material respects, with GAAP and applicable laware made of all material dealings and transactions in relation to its business and activities. The Borrowersand each Subsidiary Guarantor will, and will cause each Subsidiary to, permit the Administrative Agent(acting on its own behalf or on behalf of any of the Lenders), and any agent designated by theAdministrative Agent, upon reasonable prior notice, (a) to visit and reasonably inspect its properties, (b)to examine and make extracts from its books and records and (c) to discuss its operations, businessaffairs, assets, liabilities and financial condition with its officers and independent accountants, all at suchreasonable times during normal business hours and as often as reasonably requested; provided that theAdministrative Agent collectively may not exercise such rights more often than once during any calendaryear and unless an Event of Default exists, the costs and expenses of such a visitation or inspection shallbe the responsibility of the inspecting party or parties; provided, further, that when an Event of Defaultexists, the Administrative Agent (or any of their agents) may do any of the foregoing (at the reasonableexpense of the Company) at any time during normal business hours and upon reasonable advance notice.The Administrative Agent shall give the Company the opportunity to participate in any discussions withthe Company’s independent accountants. Notwithstanding anything to the contrary in this Section,neither the Company, Holdings nor any Subsidiary shall be required to disclose, permit the inspection,examination or making copies or abstracts of, or discussion of, any document, information or other matterthat (i) constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect ofwhich disclosure to the Administrative Agent (or its agents) is prohibited by applicable law or anybinding confidentiality agreement between the Company, Holdings or any Subsidiary and a Person that isnot the Company or any Subsidiary not entered into in contemplation of preventing such disclosure,inspection, examination or discussion or (iii) is subject to attorney-client or similar privilege or constitutesattorney work-product. -106-
SECTION 5.08. Compliance with Laws. The Borrowers and each Subsidiary Guarantor will,and will cause each Subsidiary to, comply with all laws, including all Environmental Laws and ERISA,and all orders of any Governmental Authority, applicable to it, its operations or its property, except wherethe failure to do so, individually or in the aggregate, would not reasonably be expected to result in aMaterial Adverse Effect. The Borrowers and each Subsidiary Guarantor will maintain in effect andenforce policies and procedures reasonably designed to promote compliance by the Borrowers, Holdings,the Subsidiaries and their respective directors, officers, employees and agents (in each case, in theirrespective capacities as such) with Anti-Corruption Laws and Sanctions (it being understood and agreedthat, with respect to the Target Entities, (x) the Target Entities will, within 90 days of the Effective Date,adopt and maintain such policies and procedures of the Company and (y) prior to the adoption of suchpolicies and procedures of the Company, the Target Entities will maintain in effect and enforce theirexisting Code of Conduct and Employee Handbook).SECTION 5.09. Use of Proceeds.(a) The proceeds of the Loans will be used (a) on the Effective Date to (i) finance theEffective Date Refinancing, (ii) finance in part the other Transactions, (iii) pay fees and expenses incurredin connection with the Effective Date Refinancing and the Transactions and (b) on and after the EffectiveDate used for working capital in the ordinary course of business and general corporate purposes of theCompany, Holdings and the Subsidiaries.(b) The Borrowers will not request any Borrowing, Floorplan Loan or Letter of Credit, andthe Borrowers will not use, and will procure that Holdings and the Subsidiaries and its or their respectivedirectors, officers, employees and agents will not use the proceeds of any Borrowing, Floorplan Loan orLetter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment orgiving 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 anySanctioned Person, or in any Sanctioned Country, (iii) in any manner that would result in the violation ofany Sanctions applicable to any party hereto, or (iv) to purchase or carry margin stock or to extend creditto others for the purpose of purchasing or carrying margin stock or for any other purpose that would resultin a violation of Regulations T, U and X of the Board of Governors.SECTION 5.10. Guaranty.(a) The payment and performance of the Obligations of the Borrowers shall beunconditionally guaranteed by (x) solely with respect to the Obligations of the UK Borrower, the USBorrower, (y) Holdings (the “Holdings Guaranty”) and (z) each Subsidiary (other than a ForeignSubsidiary or an Excluded Subsidiary), in each case, pursuant to Article X hereof or pursuant to one ormore supplements hereto or other guaranty agreements in form and substance reasonably acceptable tothe Administrative Agent, as the same may be amended, modified or supplemented from time to time(individually a “Subsidiary Guaranty” and collectively the “Subsidiary Guaranties”; each Subsidiaryparty to this Agreement and each additional Subsidiary, upon the execution and delivery of the applicableSubsidiary Guaranty, a “Subsidiary Guarantor” and collectively the “Subsidiary Guarantors” and,together with Holdings and, solely with respect to the Obligations of the UK Borrower, the US Borrower,the “Guarantors”); provided that, for the avoidance of doubt, the UK Borrower shall not be, nor shall it bedeemed to be by operation of any provisions herein or in any other Loan Document, a Guarantor or aSubsidiary Guarantor, unless and until the Company elects, in its sole discretion, to cause the UKBorrower to become a Subsidiary Guarantor (on terms to be mutually reasonably agreed).(b) In the event that (x) any Subsidiary (other than a Foreign Subsidiary or an ExcludedSubsidiary) is acquired or created or ceases to be an Excluded Subsidiary after the Effective Date or (y)-107-
the Company (in its sole discretion) otherwise elects to designate a Subsidiary as a Guarantor after theEffective Date, the Company shall cause such Person to execute and deliver to the Administrative Agent,(i) within 60 days after acquisition, creation or cessation in the case of clause (x) and (ii) at the time ofdesignation in the case of clause (y), an Additional Guarantor Supplement substantially in the formattached as Exhibit F or such other form reasonably acceptable to the Administrative Agent, and theCompany shall also deliver to the Administrative Agent, or cause such Person to deliver to theAdministrative Agent, at the Company’s cost and expense, such other instruments, documents, certificatesand opinions of the type delivered on the Effective Date pursuant to Section 4.01(b), 4.01(c) and 4.01(d),to the extent reasonably required by the Administrative Agent in connection therewith.(c) Upon delivery of written notice to the Administrative Agent by a Responsible Officer ofthe Company certifying that, as to a particular Guarantor, (i) such Guarantor is electing (in its solediscretion) to be released from its Guarantee hereunder and (ii) the conditions set forth in clause (a) thatwould require such Guarantor to remain a Guarantor do not apply or, after giving effect to anysubstantially concurrent transactions, including any repayment of Indebtedness or release of a guaranty,will not apply, or such Guarantor is, or after giving effect to any substantially concurrent transactions willbe, an Excluded Subsidiary, such Guarantor shall be automatically released from its obligations(including its Subsidiary Guaranty) hereunder without further required action by any Person. TheAdministrative Agent, at the Company’s expense, shall execute and deliver to the applicable Guarantorany documents or instruments as such Guarantor may reasonably request to evidence the release of suchSubsidiary Guaranty.(d) For the avoidance of doubt, in the event any Guarantor is released from its Guaranteepursuant to clause (c) above, the requirements of Section 5.10(a) shall no longer apply going forward withrespect to such former Guarantor (and Section 5.10(a) shall not cause any springing Guarantee withrespect to such released Guarantor after such release occurs).SECTION 5.11. Business of the Company and its Subsidiaries. The Borrowers and theSubsidiary Guarantors will not and will cause the Subsidiaries to not engage in any line of businessmaterial to the Company and its Subsidiaries taken as a whole other than (a) those lines of businessconducted by the Company or any Subsidiary on the Effective Date or (b) any Similar Business.SECTION 5.12. Centre of Main Interests. With respect to the UK Borrower only, the UKBorrower will not cause or allow the location of its centre of main interests (as that term is used in Article3(1) of the Recast Insolvency Regulation) to change without the prior written consent of theAdministrative Agent.SECTION 5.13. Transactions with Affiliates. The Borrowers and the Subsidiary Guarantorswill not, and will cause its Subsidiaries to not, engage in transactions by or among the US Borrower andthe Subsidiary Guarantors, sell or transfer any property or assets to, or purchase or acquire any propertyor assets from, or otherwise engage in any other transactions with, any of its Affiliates, involvingaggregate payments or consideration in excess of $25,000,000 in any fiscal year unless:(a) such transaction is on terms that are not materially less favorable to the US Borrower orthe relevant Subsidiary than those that would have been obtained in a comparable transaction by the USBorrower or such Subsidiary with an unrelated Person on an arm’s-length basis; and(b) the US Borrower delivers to the Administrative Agent with respect to any suchtransaction or series of related transactions involving aggregate payments or consideration in excess of$50,000,000, a resolution adopted by the majority of the board of directors of the US Borrower approving-108-
such transaction and set forth in an Officer’s Certificate certifying that such transaction complies withclause (a) above.(c) The foregoing provisions will not apply to the following:(i) transactions among the Company, Holdings and its Subsidiaries or any entity thatbecomes a Subsidiary as a result of such transaction;(ii) [Intentionally Reserved];(iii) the Transactions and the payment of the Transaction Expenses;(iv) issuances by the US Borrower and its Subsidiaries of Equity Interests not prohibitedunder this Agreement;(v) reasonable and customary fees payable to any directors of the US Borrower and itsSubsidiaries (or any direct or indirect parent of the US Borrower) and reimbursement of reasonableout-of-pocket costs of the directors of the US Borrower and its subsidiaries (or any direct or indirectparent of the US Borrower) in the ordinary course of business, in the case of any direct or indirectparent to the extent reasonably attributable to the ownership or operations of the US Borrower andits Subsidiaries);(vi) expense reimbursement and employment, severance and compensationarrangements entered into by the US Borrower and its Subsidiaries with their officers, employeesand consultants in the ordinary course of business, including, without limitation, the payment of staybonuses and incentive compensation and/or such officer’s, employee’s or consultant’s equityinvestment in certain Subsidiaries;(vii) payments by the US Borrower and its Subsidiaries to each other pursuant to taxsharing agreements or arrangements among Holdings and its subsidiaries on customary terms(including, without limitation, transfer pricing initiatives);(viii) the payment of reasonable and customary indemnities to directors, officers andemployees of the US Borrower and its Subsidiaries (or any direct or indirect parent of the USBorrower) in the ordinary course of business, in the case of any direct or indirect parent to the extentattributable to the operations of the US Borrower and its Subsidiaries;(ix) transactions pursuant to permitted agreements in existence on the Effective Dateand disclosed to the Lenders prior to the Effective Date and any amendment thereto to the extentsuch an amendment is not adverse to the interests of the Lenders in any material respect;(x) [reserved];(xi) [reserved];(xii) loans and other transactions among the US Borrower and its Subsidiaries (and anydirect and indirect parent company of the US Borrower) to the extent permitted under this Article V;(xiii) the existence of, or the performance by the US Borrower or any of its Subsidiariesof its obligations under the terms of, any stockholders agreement, principal investors agreement(including any registration rights agreement or purchase agreement related thereto) to which it is a-109-
party as of the Effective Date and any similar agreements entered into thereafter; provided,however, that the existence of, or the performance by the US Borrower or any of its Subsidiaries ofobligations under any future amendment to any such existing agreement or under any similaragreement entered into after the Effective Date shall only be permitted by this clause (xiii) to theextent that the terms of any such amendment or new agreement are not otherwise disadvantageousto the Lenders when taken as a whole;(xiv) transactions with customers, clients, suppliers, or purchasers or sellers of goods orservices, in each case in the ordinary course of business which are fair to the US Borrower and itsSubsidiaries, in the reasonable determination of the board of directors of the US Borrower or thesenior management thereof, or are on terms at least as favorable as might reasonably have beenobtained at such time from an unaffiliated party;(xv) sales of accounts receivable, or participations therein, by any Subsidiary that is nota Subsidiary Guarantor in connection with any Receivables Facility;(xvi) payments or loans (or cancellation of loans) to employees or consultants of the USBorrower, any of its direct or indirect parent companies or any of its Subsidiaries which, for anysuch payments or loans in excess of $1,000,000, are approved by a majority of the board of directorsof the US Borrower in good faith; and(xvii) transactions among Foreign Subsidiaries for tax planning and tax efficiencypurposes.SECTION 5.14. Post-Closing Obligations. Take all necessary actions to satisfy the itemsdescribed on Schedule 5.14 within the applicable period of time specified therein (or such longer periodas the Administrative Agent may agree in its reasonable discretion).ARTICLE VINegative CovenantsEach of the Company, the UK Borrower and the Subsidiary Guarantors covenants and agrees(provided that for the UK Borrower, such covenants and agreements are limited solely to itself and itmakes no covenant or agreement with respect to the US Borrower or any other Subsidiary) with eachLender, each Issuing Bank and the Floorplan Funding Agent that, until the Termination Date:SECTION 6.01. Limitation on Non-Guarantor Subsidiary Indebtedness and Issuance of Non-Guarantor Preferred Stock.(a) The Borrowers and the Guarantors will not permit any Subsidiary that is not a Guarantorto create, incur, assume, guarantee or permit to exist, with respect to (collectively, “incur”) any Non-Guarantor Indebtedness (including Acquired Debt). Notwithstanding the foregoing, this Section 6.01 shallnot apply to Indebtedness of the UK Borrower solely as it relates to the Obligations under thisAgreement. (b) The foregoing restriction shall not apply to the following items:-110-
(i) Indebtedness existing on the Effective Date that either is set forth on Schedule6.01 or has a committed or principal amount of not greater than $25,000,000 individually or$50,000,000 in the aggregate;(ii) any Indebtedness of a Person existing at the time such Person is merged into orconsolidated with or otherwise acquired by the Company or any Subsidiary or at the time of asale, lease or other disposition of the properties and assets of such Person (or a division or line ofbusiness thereof) as an entirety or substantially as an entirety to any Subsidiary and is assumed bysuch Subsidiary; provided that such Indebtedness was not incurred in contemplation thereof;(iii) any Indebtedness of a Person existing at the time such Person becomes aSubsidiary; provided that such Indebtedness was not incurred in contemplation thereof;(iv) Indebtedness incurred by any Subsidiary in respect of letters of credit, bankguarantees and similar instruments issued in the ordinary course of business, including withoutlimitation (A) in respect of workers’ compensation claims, health, disability or other employeebenefits or property, casualty or liability insurance or self-insurance or other Indebtedness withrespect to reimbursement type obligations regarding workers’ compensation claims, (B) in thenature of security deposit (or similar deposit or security) given to a lessor under an operatinglease of real property under which such Person is a lessee, (C) in respect of other operatingpurposes, including customer or vendor obligations or (D) in respect of bids, trade contracts,leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of alike nature and other obligations that do not constitute Indebtedness; provided, however, thatupon the drawing of such letters of credit, bank guarantees, similar instruments or the incurrenceof such Indebtedness, such obligations are reimbursed within 60 days following such drawing orincurrence;(v) Indebtedness arising from agreements of a Subsidiary providing forindemnification, adjustment of purchase price, earn-outs or similar obligations, in each case, inconnection with any joint ventures or minority investments or incurred or assumed in connectionwith the disposition or acquisition of a portion or all of any business line or division, assets or aSubsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or anyportion of such business, assets or a Subsidiary for the purpose of financing such acquisition;(vi) Indebtedness of a Subsidiary owed to and held by the Company, or any otherSubsidiary; provided, however, that any subsequent issuance or transfer of any Equity Interests orany other event that results in any such Subsidiary ceasing to be a Subsidiary or any subsequenttransfer of any such Indebtedness (except to the Company or a Subsidiary or any pledge of suchIndebtedness constituting a Lien permitted pursuant to Section 6.02 hereof) shall be deemed, ineach case, to constitute the incurrence of such Indebtedness not permitted by this clause (vi);(vii) [reserved];(viii) Hedging Obligations and/or Cash Management Obligations of any Subsidiary(excluding Hedging Obligations entered into for speculative purposes);(ix) obligations in respect of customs, stay, bid, appeal, performance and suretybonds, appeal bonds and other similar types of bonds and performance and completion guaranteesand other obligations of a like nature provided by any Subsidiary or obligations in respect of-111-
letters of credit related thereto, in each case in the ordinary course of business or consistent withpast practice;(x) (x) any guarantee by a Subsidiary or any co-issuance by a Subsidiary that is afinance corporation formed for the sole purpose of acting as a co-issuer of debt securities andwhich does not have any material assets, in each case, of Indebtedness or other obligations of anySubsidiary so long as the incurrence of such Indebtedness or other obligations incurred by suchSubsidiary or for which such Subsidiary is acting as a co-issuer, as applicable, is not prohibitedunder the terms of this Agreement and (y) any guarantee by a Subsidiary or any co-issuance by aSubsidiary that is a finance corporation formed for the sole purpose of acting as a co-issuer ofdebt securities and which does not have any material assets, in each case, of Indebtedness or otherobligations of the Company so long as the incurrence of such Indebtedness or other obligations isnot prohibited under the terms of this Agreement;(xi) any extension, renewal, replacement, refinancing or refunding of anyIndebtedness referred to in clauses (i), (ii) and (iii); provided that the principal amount of theIndebtedness incurred to so extend, renew, replace, refinance or refund shall not exceed (w) theprincipal amount of Indebtedness being extended, renewed, replaced, refinanced or refunded plus(x) any premium or fee (including tender premiums) or other amount paid, and fees and expensesincurred, in connection with such extension, renewal, replacement, refinancing or refunding, plus(y) an amount equal to any existing unutilized commitment relating to such extended, renewed,replaced, refinanced or refunded Indebtedness, solely to the extent such unutilized commitment ispermitted to be drawn immediately prior to the incurrence of such extended, renewed, replaced,refinanced or refunded Indebtedness, and (z) other amounts permitted to be incurred inaccordance with any other clause in this Section 6.01(b) (solely to the extent increases pursuant tothis clause (z) reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant tosuch other clause);(xii) Cash Management Obligations and Indebtedness in respect of netting services,overdraft facilities, employee credit card programs, Cash Pooling Arrangements or similararrangements in connection with cash management and deposit accounts;(xiii) Indebtedness representing deferred compensation to employees of the Companyor any Subsidiary incurred in the ordinary course of business;(xiv) Indebtedness arising from the honoring by a bank or financial institution of acheck, draft or similar instrument drawn against insufficient funds in the ordinary course ofbusiness; provided that such Indebtedness is extinguished within five Business Days of itsincurrence;(xv) Indebtedness owing to any insurance company in connection with the financingof insurance premiums permitted by such insurance company in the ordinary course of business;(xvi) [reserved];(xvii) [reserved];(xviii) Indebtedness issued to future, current or former officers, directors, employeesand consultants of such Subsidiary or any direct or indirect parent thereof, their respective estates,heirs, family members, spouses or former spouses, in each case to finance the purchase or-112-
redemption of Equity Interests of the Company, a Subsidiary or any of their respective direct orindirect parent companies;(xix) Indebtedness of any Foreign Subsidiary or of any foreign Persons that areacquired by the Company or any Subsidiary or merged into a Subsidiary that is a ForeignSubsidiary in accordance with the terms of this Agreement; provided that the aggregate amountoutstanding of any such Indebtedness shall not at any time exceed $200,000,000;(xx) Indebtedness (i) incurred to finance or refinance the acquisition, construction orimprovement of any fixed or capital assets, including Capital Lease Obligations, provided thatsuch Indebtedness is incurred prior to or within 270 days after such acquisition or the completionof such construction or improvement and the principal amount of such Indebtedness does notexceed the cost of acquiring, constructing or improving such fixed or capital assets, or (ii)assumed in connection with the acquisition of any fixed or capital assets, and, in each case, anyrenewals, replacements, extensions or refinancings thereof; provided that the principal amount ofsuch Indebtedness is not increased at the time of such renewal, replacement, extension orrefinancing thereof except by (x) an amount equal to any premium or other amount paid, and feesand expenses incurred, in connection with such renewal, extension, replacement or refinancing,plus (y) an amount equal to any existing unutilized commitment relating to such extended,renewed, replaced or refinanced Indebtedness, solely to the extent such unutilized commitment ispermitted to be drawn immediately prior to the incurrence of extended, renewed, replaced orrefinanced Indebtedness, plus (z) other amounts permitted to be incurred in accordance with anyother clause in this Section 6.01(b) (solely to the extent increases pursuant to this clause (z)reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant to such otherclause); provided, further, that the aggregate principal amount of Indebtedness incurred pursuantto this clause (xx) does not exceed the greater of $90,000,000 and 1% of Total Assets; and(xxi) other Non-Guarantor Indebtedness; provided that at the time of and after givingpro forma effect to the incurrence of any such Non-Guarantor, the sum, without duplication, of (i)the aggregate principal amount of Non-Guarantor Indebtedness incurred pursuant to this clause(xxi), (ii) the aggregate principal amount of the outstanding Indebtedness secured by Lienspermitted by Section 6.02(k) and (iii) the Attributable Debt in respect of all outstandingSale/Leaseback Transactions permitted by Section 6.03, does not exceed the greater of$1,200,000,000 and 10% of Total Assets.For purposes of determining compliance with any dollar-denominated restriction on theincurrence of Indebtedness, the Dollar Equivalent principal amount of Indebtedness denominated in aforeign currency shall be calculated based on the relevant currency exchange rate in effect on the datesuch Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolvingcredit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated ina foreign currency, and such refinancing would cause the applicable dollar-denominated restriction to beexceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing,such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principalamount of such refinancing Indebtedness does not exceed the principal amount of such Indebtednessbeing refinanced.For purposes of determining compliance with this Section 6.01, if any item of Indebtedness meetsthe criteria of more than one of the categories of Indebtedness described in clauses (i) through (xxi)above, the Company shall, in its sole discretion, classify such item of Indebtedness (or any portionthereof) and may include the amount and type of such Indebtedness in one or more of the above clauses,-113-
and the Company may later reclassify such item of Indebtedness (or any portion thereof) and include it inanother of such clauses in which it could have been included at the time it was incurred.SECTION 6.02. Liens. The Borrowers and the Subsidiary Guarantors will not, and will notpermit any Subsidiary to, create, incur, assume or permit to exist any Lien on any asset now owned orhereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rightsin respect of any thereof, except:(a) Permitted Liens;(b) any Lien on any asset of the Company or any Subsidiary existing on theEffective Date and that either is set forth on Schedule 6.02 or encumbers property or assets with afair market value, and securing obligations having a committed or principal amount, in each case,of not greater than $25,000,000 individually or $50,000,000 in the aggregate; provided that (i)such Lien shall not apply to any other asset of the Company or any Subsidiary (other thanimprovements, proceeds or accessions thereto and the proceeds thereof) and (ii) such Lien shallsecure only those obligations that it secures on the Effective Date and extensions, replacements,renewals and refinancings thereof that do not increase the outstanding principal amount thereofexcept by an amount equal to (x) any premium or other amount paid, and fees and expensesincurred, in connection with such extension, renewal or refinancing, plus (y) an amount equal toany existing unutilized commitment relating to such extended, renewed, replaced, refinanced orrefunded Indebtedness, solely to the extent such unutilized commitment is permitted to be drawnimmediately prior to the incurrence of such extended, renewed, replaced, refinanced or refundedIndebtedness, and (z) other amounts permitted to be incurred in accordance with any other clausein this Section 6.02 (solely to the extent increases pursuant to this clause (b) reduce capacity, on adollar-for-dollar basis, available to be incurred pursuant to such other clause); provided, further,that individual financings otherwise permitted to be secured hereunder provided by any Person(or its Affiliates) may be cross-collateralized to other such financings provided by such Person(or its Affiliates);(c) Liens on fixed or capital assets acquired, constructed or improved by theCompany or any Subsidiary securing Indebtedness, including Capital Lease Obligations, or otherobligations incurred to finance such acquisition, construction or improvement and extensions,replacements, renewals and refinancings thereof that do not increase the outstanding principalamount thereof except by (x) an amount equal to any premium or other amount paid, and fees andexpenses incurred, in connection with such extension, replacement, renewal or refinancing, plus(y) an amount equal to any unutilized commitment relating to such extended, renewed, replaced,or refinanced Indebtedness or obligations, solely to the extent such unutilized commitment ispermitted to be drawn immediately prior to the incurrence of such extended, renewed, replaced,or refinanced Indebtedness or obligations and (z) other amounts permitted to be incurred inaccordance with any other clause in this Section 6.02 (solely to the extent increases pursuant tothis clause (z) reduce capacity, on a dollar-for-dollar basis, available to be incurred pursuant tosuch other clause); provided that (i) such Liens and the Indebtedness secured thereby are incurredprior to or within 270 days after such acquisition or the completion of such construction orimprovement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring,constructing or improving such fixed or capital assets and (iii) such Liens shall not apply to anyother assets of the Company or any Subsidiary (other than improvements, proceeds or accessionsthereto and the proceeds thereof), provided further that individual financings of equipment orother fixed or capital assets otherwise permitted to be secured hereunder provided by any Person-114-
(or its Affiliates) may be cross-collateralized to other such financings provided by such Person(or its Affiliates);(d) any Lien on any asset acquired by the Company or any Subsidiary after theEffective Date existing at the time of the acquisition thereof or existing on any asset of anyPerson that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged,amalgamated or consolidated with or into the Company or a Subsidiary in a transaction permittedhereunder) after the Effective Date and prior to the time such Person becomes a Subsidiary (or isso merged, amalgamated or consolidated), provided that (i) such Lien is not created incontemplation of or in connection with such acquisition or such Person becoming a Subsidiary(or such merger, amalgamation or consolidation), as the case may be, (ii) such Lien shall notapply to any other assets of the Company or any Subsidiary (other than improvements, proceedsor accessions thereto and the proceeds thereof) and (iii) such Lien shall secure only thoseobligations that it secures on the date of such acquisition or the date such Person becomes aSubsidiary (or is so merged, amalgamated or consolidated), as the case may be, and extensions,replacements, renewals and refinancings thereof that do not increase the outstanding principalamount thereof except by (x) an amount equal to any premium or other amount paid, and fees andexpenses incurred, in connection with such extension, renewal or refinancing plus (y) an amountequal to any existing unutilized commitment relating to such extended, renewed or refinancedobligations, solely to the extent such unutilized commitment is permitted to be drawnimmediately prior to the incurrence of such extended, renewed or refinanced obligations, and (z)other amounts permitted to be incurred in accordance with any other clause in this Section 6.02(solely to the extent increases pursuant to this clause (z) reduce capacity, on a dollar-for-dollarbasis, available to be incurred pursuant to such other clause); provided further that individualfinancings otherwise permitted to be secured hereunder provided by any Person (or its Affiliates)may be cross-collateralized to other such financings provided by such Person (or its Affiliates;(e) in connection with the sale or transfer of any Equity Interests or other assets in atransaction permitted under Section 6.04, customary rights and restrictions contained inagreements relating to such sale or transfer pending the completion thereof;(f) in the case of (i) any Subsidiary that is not a wholly owned Subsidiary or (ii) theEquity Interests in any Person that is not a Subsidiary, any encumbrance or restriction, includingany put and call arrangements, related to Equity Interests in such Subsidiary or such other Personset forth in the organizational documents of such Subsidiary or such other Person or any relatedjoint venture, shareholders’ or similar agreement;(g) Liens solely on any cash earnest money deposits, escrow arrangements or similararrangements made by the Company or any Subsidiary in connection with any letter of intent orpurchase agreement for an Acquisition or other transaction permitted hereunder;(h) Liens deemed to exist in connection with Sale/Leaseback Transactions set forthon Schedule 6.03 or permitted by Section 6.03(a);(i) (i) deposits made in the ordinary course of business to secure obligations toinsurance carriers providing casualty, liability or other insurance to the Company and theSubsidiaries and (ii) Liens on insurance policies and the proceeds thereof securing the financingof the premiums with respect thereto; -115-
(j) Liens on the net cash proceeds of any Acquisition Indebtedness held in escrowby a third party escrow agent prior to the release thereof from escrow;(k) other Liens, provided that at the time of and after giving pro forma effect to theincurrence of any such Lien (or any Indebtedness secured thereby and the application of theproceeds thereof), the sum, without duplication, of (i) the aggregate principal amount of Non-Guarantor Indebtedness incurred pursuant to Section 6.01(b)(xxi), (ii) the aggregate principalamount of the outstanding Indebtedness secured by Liens permitted by this clause (k) and (iii) theAttributable Debt in respect of all outstanding Sale/Leaseback Transactions permitted by Section6.03, does not exceed the greater of $1,200,000,000 and 10% of Total Assets;(l) Liens on cash securing amounts not to exceed the greater of $250,000,000 and2% of Total Assetscollected by the Company or any Subsidiary solely to the extent belonging toand owed toowned by leasing partners, finance companies or third parties, in each case, inconnection with Bundled Solutions or consumercustomer transaction financingfinancings in theordinary course of business; provided that, in the case of any such Liens securing Indebtedness ofthe Company or any Subsidiary, such Indebtedness shall not exceed the greater of $250,000,000and 2% of Total Assets;(m) Liens on inventory or equipment of the Company or any of its Subsidiariesgranted in the ordinary course of business to the Company’s or such Subsidiary’s vendors,clients, customers, landlords or bailees;(n) Permitted Inventory Financing Liens and Liens securing any obligations underany customer financing arrangements incurred in the ordinary course of business; provided that,at the time of and after giving effect to the incurrence of any such Lien, the sum, withoutduplication, of (i) the aggregate principal amount of the obligations secured by Liens permittedby this clause (n) and (ii) the aggregate principal amount of the outstanding Indebtedness securedby Liens permitted by clause (o) below, does not exceed $1,500,000,000;(o) Liens on accounts receivable and related assets incurred in connection with aReceivables Facility; provided that, at the time of and after giving pro forma effect to theincurrence of any such Lien, the sum, without duplication, of (i) the aggregate principal amountof the obligations secured by Liens permitted by clause (n) above and (ii) the aggregate principalamount of the outstanding Indebtedness secured by Liens permitted by this clause (o), does notexceed $1,500,000,000; and(p) Liens securing Hedging Obligations so long as, in the case of HedgingObligations related to interest, the related Indebtedness is secured by a Lien on the same propertysecuring such Hedging Obligations.For purposes of determining compliance with this Section 6.02, if any Lien (or any portionthereof) meets the criteria of more than one of the categories of Liens described in clauses (a) through (p)above and/or one or more of the clauses contained in the definition of “Permitted Liens”, the Companyshall, in its sole discretion, classify such Lien (or such portion thereof) and may include such Lien (orsuch portion thereof) in one or more of such clauses, and the Company may later reclassify such Lien (orany portion thereof) and include it in another of such clauses in which it could have been included at thetime it was incurred (but, except as set forth below with respect to clause (k), not into any clause underwhich it could not have been included at the time it was incurred) or, solely in the case of clause (k)above, at the time of such reclassification. -116-
SECTION 6.03. Sale/Leaseback Transactions. Each of the Borrowers and the SubsidiaryGuarantors will not, and will not permit any Subsidiary to, enter into any Sale/Leaseback Transaction,except Sale/Leaseback Transactions set forth on Schedule 6.03 and the following:(a) any Sale/Leaseback Transaction entered into to finance the acquisition orconstruction of any fixed or capital assets by the Company or any Subsidiary, provided that suchSale/Leaseback Transaction is entered into prior to or within 270 days after such acquisition orthe completion of such construction and the Attributable Debt in respect thereof does not exceedthe cost of acquiring or constructing such fixed or capital assets; and(b) other Sale/Leaseback Transactions;provided that at the time of and after giving pro forma effect to any such Sale/LeasebackTransaction, the sum, without duplication, of (i) the Attributable Debt in respect of alloutstanding Sale/Leaseback Transactions permitted under this Section 6.03, (ii) the aggregateprincipal amount of Non-Guarantor Indebtedness incurred pursuant to Section 6.01(b)(xxi) and(iii) the aggregate principal amount of the outstanding Indebtedness secured by Liens permittedby Section 6.02(k), does not exceed the greater of $1,200,000,000 and 10% of Total Assets.SECTION 6.04. Fundamental Changes.(a) Each Borrower and each Subsidiary Guarantor will not, and will not permit anySubsidiary to, amalgamate with, merge into or consolidate with any other Person, or permit any otherPerson to amalgamate with, merge into or consolidate with it, or liquidate or dissolve, except that if at thetime thereof and immediately after giving effect thereto no Event of Default shall have occurred and becontinuing and, in the case of clause (D) below, the Company shall be in compliance on a pro forma basiswith the covenant set forth in Section 6.06, (A) any Person may amalgamate, merge or consolidate withthe US Borrower in a transaction in which such Borrower is the surviving entity, (B) the Borrowers mayamalgamate, merge or consolidate with any Person in a transaction in which such Person is the survivingentity, provided that (1) such Person is a corporation or limited liability company organized under thelaws of the United States or any state thereof, (2) prior to or substantially concurrently with theconsummation of such amalgamation, merger or consolidation, (x) such Person shall execute and deliverto the Administrative Agent an assumption agreement (the “Assumption Agreement”), in form andsubstance reasonably satisfactory to the Administrative Agent, pursuant to which such Person shallassume all of the obligations of the applicable Borrower under this Agreement and the other LoanDocuments, and (y) such Person shall deliver to the Administrative Agent such documents, certificatesand opinions as the Administrative Agent may reasonably request relating to such Person, suchamalgamation, merger or consolidation or the Assumption Agreement, and (3) the Lenders shall havereceived, at least five Business Days prior to the date of the consummation of such amalgamation, mergeror consolidation, (x) all documentation and other information regarding such Person required by bankregulatory authorities under applicable “know your customer” and anti-money laundering rules andregulations, including, without limitation, the USA PATRIOT Act, that has been reasonably requested bythe Administrative Agent or any Lender and (y) to the extent such Person qualifies as a “legal entitycustomer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation tosuch Person, it being agreed that upon the execution and delivery to the Administrative Agent of theAssumption Agreement and the satisfaction of the other conditions set forth in this clause (B), suchPerson shall become a party to this Agreement, shall succeed to and assume all the rights and obligationsof the Company under this Agreement and the other Loan Documents (including all obligations in respectof outstanding Loans) and shall thenceforth, for all purposes of this Agreement and the other LoanDocuments, be the “US Borrower” or “UK Borrower”, as applicable, (C) any Person (other than theBorrowers) may amalgamate, merge or consolidate with any Subsidiary in a transaction in which the-117-
surviving entity is a Subsidiary, (D) any Subsidiary (other than the UK Borrower) may amalgamate with,merge into or consolidate with any Person (other than the US Borrower) in a transaction not prohibitedunder paragraph (b) of this Section in which, after giving effect to such transaction, the surviving entity isnot a Subsidiary and (E) any Subsidiary may liquidate or dissolve if the Company determines in goodfaith that such liquidation or dissolution is in the best interests of the Company and its Subsidiaries takenas a whole and is not materially disadvantageous to the Lenders.(b) The Borrowers and the Subsidiary Guarantors will not, and will not permit itsSubsidiaries to, sell, transfer, lease or otherwise dispose of, directly or through any amalgamation, mergeror consolidation and whether in one transaction or in a series of transactions, assets (including EquityInterests in Subsidiaries) representing all or substantially all of the assets of the Company and itsSubsidiaries (whether now owned or hereafter acquired), taken as a whole.SECTION 6.05. Restrictive Agreements. The Borrowers and the Subsidiary Guarantors willnot, and will not permit any Subsidiary to enter into, incur or permit to exist any agreement or otherarrangement with any Person (other than any such agreements or arrangements between or among theCompany and the Subsidiaries) that prohibits, restricts or imposes any condition upon the ability of anySubsidiary to pay dividends or other distributions with respect to its Equity Interests or to make or repayloans or advances to the Company or any Subsidiary, in each case, except to the extent the Company hasreasonably determined that such agreement or arrangement will not materially impair the Borrowers’ability to make payments under this Agreement when due; provided that the foregoing shall not apply to(a) prohibitions, restrictions or conditions imposed by law or by the Loan Documents, (b) prohibitions,restrictions or conditions contained in, or existing by reason of, any agreement or instrument set forth onSchedule 6.05 (but shall apply to any amendment or modification expanding the scope of any suchprohibition, restriction or condition), (c) in the case of any Subsidiary that is not a wholly ownedSubsidiary, prohibitions, restrictions and conditions imposed by its organizational documents or anyrelated joint venture, shareholders’ or similar agreement; provided that such prohibitions, restrictions andconditions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, (d) customaryprohibitions, restrictions and conditions contained in agreements relating to the sale of a Subsidiary thatare applicable solely pending such sale; provided that such prohibitions, restrictions and conditions applyonly to the Subsidiary that is to be sold, (e) prohibitions, restrictions and conditions imposed byagreements relating to Indebtedness of any Subsidiary in existence at the time such Subsidiary became aSubsidiary and not created in contemplation thereof or in connection therewith (but shall apply to anyamendment or modification expanding the scope of any such restriction or condition); provided that suchprohibitions, restrictions and conditions apply only to such Subsidiary, and (f) prohibitions, restrictionsand conditions imposed by agreements relating to any Indebtedness of the Company or any Subsidiarypermitted hereunder to the extent, in the good faith judgment of the Company, such prohibitions,restrictions and conditions, at the time such Indebtedness is incurred, are on customary market terms forIndebtedness of such type.SECTION 6.06. Leverage Ratio. The Company will not permit the Leverage Ratio on the lastday of any fiscal quarter of the Company to exceed, (i) initially, 4.50 to 1.00 and (ii) from and after thefiscal quarter ending on or about March 31, 2023, 4.00 to 1.00; provided that, in the event the Companyconsummates a Qualified Acquisition after the fiscal quarter ending on or about December 31, 2022, theCompany may elect (a “Qualified Acquisition Election”) upon notice to the Administrative Agent (whichQualified Election may be made (x) at any time on or prior to the date that the next ComplianceCertificate is delivered pursuant to Section 5.01(c) following the consummation of such QualifiedAcquisition or (y) in such Compliance Certificate) that the Leverage Ratio level set forth above be (and,subject to this proviso, the Leverage Ratio level set forth above shall be) (1) 4.50 to 1.00 for the next fourconsecutive fiscal quarters (including the fiscal quarter in which the Qualified Acquisition wasconsummated) and (2) thereafter, the Leverage Ratio shall be 4.00 to 1.00; provided, further, that (A) the-118-
Company may not make a Qualified Acquisition Election unless the Company has maintained a LeverageRatio of less than or equal to 4.00 to 1.00 for the two consecutive fiscal quarters immediately precedingthe consummation of the applicable Qualified Acquisition and (B) the Company shall not be permitted tomake a Qualified Acquisition Election more than two times during the term of the Revolving Facility.ARTICLE VIIEvents of DefaultSECTION 7.01. Events of Default; Remedies. If any of the following events (“Events ofDefault”) shall occur:(a) default shall be made in the payment of any principal of any Loan or anyreimbursement obligation in respect of any Floorplan Loan Payment or LC Disbursement whenand as the same shall become due and payable, whether at the due date thereof or at a date fixedfor prepayment thereof or by acceleration thereof or otherwise;(b) default shall be made in the payment of any interest on any Loan, Floorplan LoanPayment or LC Disbursement or any fee or any other amount (other than an amount referred to inclause (a) of this Section) payable under this Agreement or any other Loan Document, when andas the same shall become due and payable, and such failure shall continue unremedied for aperiod of five Business Days;(c) any representation, warranty or statement made or deemed made in any LoanDocument or any amendment or modification thereof or waiver thereunder shall prove to havebeen incorrect in any material respect when made or deemed made and, solely to the extent suchrepresentation, warranty or statement is capable of being corrected or cured, shall remainincorrect for 30 days after the earlier of (x) the Company’s knowledge of such default and (y)receipt by the Company of written notice thereof from the Administrative Agent;(d) any Borrower or any Guarantor shall fail to observe or perform any covenant,condition or agreement contained in Section 5.02(a), 5.03 (with respect to the existence of aBorrower) or 5.09 or in Article VI;(e) any Borrower or any Guarantor shall fail to observe or perform any covenant,condition or agreement contained in any Loan Document (other than those specified in clause (a),(b) or (d) of this Section), and such failure shall continue unremedied for a period of 30 days afterwritten notice thereof from the Administrative Agent or any Lender to the Borrowers (with acopy to the Administrative Agent in the case of any such notice from a Lender);(f) any Borrower, any Guarantor or any Subsidiary shall fail to make any payment(whether of principal, interest or otherwise) in respect of any Material Indebtedness, when and asthe same shall become due and payable after giving effect to any applicable grace period andnotices; (g) any event or condition occurs that results in any Material Indebtedness becomingdue or being terminated or required to be prepaid, repurchased, redeemed or defeased prior to itsscheduled maturity, or that enables or permits the holder or holders of any Material Indebtednessor any trustee or agent on its or their behalf, or, in the case of any Hedging Agreement, theapplicable counterparty, to cause (after delivery of any notice if required and after giving effect toany waiver, amendment, cure or grace period) such Material Indebtedness to become due, or to-119-
require the prepayment, repurchase, redemption or defeasance thereof, or, in the case of aHedging Agreement, to terminate any related hedging transaction, in each case prior to itsscheduled maturity or termination; provided that this clause (g) shall not apply to (i) any securedIndebtedness that becomes due as a result of the voluntary sale or transfer of, or any casualty withrespect to, assets securing such Indebtedness, (ii) any prepayment, repurchase, redemption ordefeasance of any Acquisition Indebtedness if the related Acquisition is not consummated, (iii)any Indebtedness that becomes due as a result of a voluntary prepayment, repurchase, redemptionor defeasance thereof, or any refinancing thereof, permitted under this Agreement, (iv) in the caseof any Hedging Agreement, termination events or equivalent events pursuant to the terms of suchHedging Agreement not arising as a result of a default by the Company or any Subsidiarythereunder, (v) any Indebtedness if (x) the sole remedy of the holder thereof in the event of thenon-payment of such Indebtedness or the non-payment or non-performance of obligations relatedthereto or (y) sole option is to elect, in each case, to convert such Indebtedness into EquityInterests and cash in lieu of fractional shares (other than Disqualified Stock or, in the case of aSubsidiary, Disqualified Stock or Preferred Stock), (vi) in the case of Indebtedness which theholder thereof may elect to convert into Equity Interests (other than Disqualified Stock or, in thecase of a Subsidiary, Disqualified Stock or Preferred Stock), such Indebtedness from and after thedate, if any, on which such conversion has been effected and (vii) any breach or default that is (I)remedied by the Borrowers or the applicable Subsidiary or (II) waived (including in the form ofamendment) by the required holders of the applicable item of Indebtedness, in either case, prior toany termination of the Commitments or the acceleration of Loans pursuant to this Section7.01(g);(h) an involuntary proceeding shall be commenced or an involuntary petition shall befiled seeking (i) liquidation, reorganization, moratorium, winding-up or other relief in respect ofany Borrower, Holdings or any Material Subsidiary or its debts, or of a substantial part of itsassets, under any United States (Federal or state) or foreign bankruptcy, insolvency, receivership,winding-up or similar law now or hereafter in effect or (ii) the appointment of a receiver,liquidator, trustee, custodian, sequestrator, conservator or similar official (including, in the caseof the UK Borrower, an administrative receiver and administrator) for any Borrower, Holdings orany Material Subsidiary or for a substantial part of its assets, and, in any such case, suchproceeding or petition shall continue undismissed for 60 days or an order or decree approving orordering any of the foregoing shall be entered;(i) any Borrower, Holdings or any Material Subsidiary shall (i) voluntarilycommence any proceeding or file any petition seeking liquidation, reorganization, winding-up orother relief under any United States (Federal or state) or foreign bankruptcy, insolvency,receivership, winding-up or similar law now or hereafter in effect (other than, in the case of anySubsidiary, a voluntary liquidation or dissolution permitted by Section 6.04(a)(ii)(E)), (ii) consentto the institution of, or fail to contest in a timely and appropriate manner, any proceeding orpetition described in sub-clause (i) above, (iii) apply for or consent to the appointment of areceiver, liquidator, trustee, custodian, sequestrator, conservator, administrator or similar officialfor any Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file ananswer admitting the material allegations of a petition filed against it in any such proceeding or(v) make a general assignment for the benefit of creditors, or the Board of Directors (or similargoverning body) of any Borrower or any Material Subsidiary (or any committee thereof) shalladopt any resolution or otherwise authorize any action to approve any of the actions referred toabove in this clause (i) or clause (h) of this Section;-120-
(j) any Borrower, Holdings or any Material Subsidiary shall become unable, admitin writing its inability or fail generally to pay its debts as they become due;(k) one or more final judgments for the payment of money in an aggregate amount inexcess of $200,000,000 (to the extent not covered by insurance as to which an insurancecompany has not denied coverage or by an indemnification agreement, with another creditworthy(as reasonably determined by the Borrower) indemnitor, as to which the indemnifying party hasnot denied liability) shall be rendered against the Company, Holdings, any Material Subsidiary orany combination thereof and the same shall remain undischarged for a period of 30 consecutivedays during which execution shall not be effectively stayed, or any action shall be legally takenby a judgment creditor to attach or levy upon any assets of the Company, Holdings or anyMaterial Subsidiary to enforce any such judgment;(l) one or more ERISA Events shall have occurred that, individually or in theaggregate, would reasonably be expected to result in a Material Adverse Effect;(m) a Change in Control shall occur; or(n) any Subsidiary Guaranty, the Holdings Guaranty or any material provision of anyLoan Document, at any time after its execution and delivery and for any reason other than aspermitted hereunder or thereunder or satisfaction in full of all the Obligations (other thancontingent obligations that survive the termination of this Agreement), ceases to be in full forceand effect other than in accordance with the terms hereof; or any Borrower or any Guarantorcontests in writing the validity or enforceability of any Subsidiary Guaranty or HoldingsGuaranty or any material provision of any Loan Document; or any Borrower or any Guarantordenies in writing that it has any or further liability or obligation under any Subsidiary Guaranty orthe Holdings Guaranty or any material provision of any Loan Document, or in writing purports torevoke, terminate or rescind any Subsidiary Guaranty or the Holdings Guaranty for any reasonother than as expressly permitted hereunder or thereunder;then, and in every such event (other than an event with respect to any Borrower described in clause (h) or(i) of this Section), and at any time thereafter during the continuance of such event, the AdministrativeAgent, at the request of the Required Lenders, shall by notice to the Company, take any or all of thefollowing actions, at the same or different times: (A) terminate the Revolving Commitments andthereupon the Revolving Commitments shall terminate immediately, and (B) declare the Loans thenoutstanding to be due and payable in whole (or in part (but ratably as among the Classes of Loans and/orCommitments and the Loans and/or Commitments of each Class at the time outstanding), in which caseany principal not so declared to be due and payable may thereafter be declared to be due and payable),and thereupon the principal of the Loans so declared to be due and payable, together with accrued interestthereon and all fees and other obligations of the Borrowers hereunder, shall become due and payableimmediately, in each case without presentment, demand, protest or other notice of any kind, all of whichare hereby waived by the Borrowers; and in the case of any event with respect to any Borrower describedin clause (h) or (i) of this Section, the Revolving Commitments shall automatically terminate, theprincipal of the Loans then outstanding, together with accrued interest thereon and all fees and otherobligations of the Borrowers hereunder, shall immediately and automatically become due and payable, ineach case without presentment, demand, protest or other notice of any kind, all of which are herebywaived by the Borrowers. -121-
ARTICLE VIIIThe Administrative AgentEach of the Lenders and Issuing Banks hereby irrevocably appoints the entity named as theAdministrative Agent in the heading of this Agreement and its successors to serve in the applicablecapacity under the Loan Documents, and authorizes the Administrative Agent to take such actions and toexercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents,together with such actions and powers as are reasonably incidental thereto.The Person serving as the Administrative Agent hereunder shall have the same rights and powersin its capacity as a Lender or Issuing Bank as any other Lender or Issuing Bank and may exercise thesame as though it were not the Administrative Agent, and such Person and its Affiliates may acceptdeposits from, lend money to, own securities of, act as the financial advisor or in any other advisorycapacity for and generally engage in any kind of business with the Company or any Subsidiary or otherAffiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty toaccount therefor to the Lenders or Issuing Banks.The Administrative Agent and the Arrangers, as applicable, shall not have any duties orobligations except those expressly set forth in the Loan Documents, and their duties hereunder shall beadministrative in nature. Without limiting the generality of the foregoing, the Administrative Agent andthe Arrangers, as applicable: (a) shall not be subject to any fiduciary or other implied duties, regardlessof whether a Default has occurred and is continuing (and it is understood and agreed that the use of theterm “agent” herein or in any other Loan Documents (or any other similar term) with reference to theAdministrative Agent is not intended to connote any fiduciary or other implied (or express) obligationsarising under agency doctrine of any applicable law, and that such term is used as a matter of marketcustom and is intended to create or reflect only an administrative relationship between contractingparties), (b) shall not have any duty to take any discretionary action or to exercise any discretionarypower, except discretionary rights and powers expressly contemplated by the Loan Documents that theAdministrative Agent are required to exercise as directed in writing by the Required Lenders (or suchother number or percentage of the Lenders, Issuing Banks or Swingline Lenders as shall be necessary, oras the Administrative Agent shall believe in good faith to be necessary, under the circumstances asprovided in the Loan Documents), provided that the Administrative Agent shall not be required to takeany action that, in its opinion, could expose the Administrative Agent to liability or be contrary to anyLoan Document or applicable law, (c) shall not have any duty or responsibility to disclose, and shall notbe liable for the failure to disclose, to any Lender, Issuing Bank, Swingline Lender or any credit or otherinformation concerning the business, prospects, operations, property, financial and other condition orcreditworthiness of the Company or any of its Affiliates, that is communicated to, obtained or in thepossession of, the Administrative Agent, the Arrangers or any of their Related Parties in any capacity,except for notices, reports and other documents expressly required to be furnished to the Lenders, IssuingBanks, Floorplan Agent or Swingline Lenders by the Administrative Agent herein, (d) shall not be liablefor any action taken or not taken by it with the consent or at the request of the Required Lenders (or suchother number or percentage of the Lenders, Issuing Banks or Swingline Lenders as shall be necessary, oras the Administrative Agent shall believe in good faith to be necessary, under the circumstances asprovided in the Loan Documents) or 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 finaland nonappealable judgment), (e) shall be deemed not to have knowledge of any Default unless and untilwritten notice thereof (stating that it is a “notice of default”) is given to the Administrative Agent by theCompany or any Lender, Issuing Bank, Floorplan Agent or Swingline Lenders, and shall not beresponsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representationmade in or in connection with any Loan Document, (ii) the contents of any certificate, report or other-122-
document delivered thereunder or in connection therewith, (iii) the performance or observance of any ofthe covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrenceof any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any LoanDocument or any other agreement, instrument or document (including, for the avoidance of doubt, inconnection with the Administrative Agent’s or each Arranger’s reliance on any Electronic Signaturetransmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actualexecuted signature page), or (v) the satisfaction of any condition set forth in Article IV or elsewhere inany Loan Document, other than to confirm receipt of items expressly required to be delivered to theAdministrative Agent or satisfaction of any condition that expressly refers to the matters described thereinbeing acceptable or satisfactory to the Administrative Agent.The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying,upon any notice, request, certificate, consent, statement, instrument, document or other writing (includingany electronic message, Internet or intranet website posting or other distribution) believed by it in goodfaith to be genuine and to have been signed, sent or otherwise authenticated by the proper Person(whether or not such Person in fact meets the requirements set forth in the Loan Documents for being thesignatory, sender or authenticator thereof). The Administrative Agent also shall be entitled to rely, andshall not incur any liability for relying, upon any statement made to it orally or by telephone and believedby it in good faith to be made by the proper Person (whether or not such Person in fact meets therequirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof),and may act upon any such statement prior to receipt of written confirmation thereof. In determiningcompliance with any condition hereunder to the making of a Loan or issuance of any Letter of Credit thatby its terms must be fulfilled to the satisfaction of a Lender or Issuing Bank, as applicable, theAdministrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank, asapplicable, unless the Administrative Agent shall have received notice to the contrary from such Lenderor Issuing Bank, as applicable, prior to the making of such Loan or issuance of such Letter of Credit, asapplicable. The Administrative Agent may consult with legal counsel (who may be counsel for theCompany), independent accountants and other experts selected by it with reasonable care, and shall not beliable for any action taken or not taken by it in accordance with the advice of any such counsel,accountants or experts. Notwithstanding anything herein to the contrary, the Administrative Agent shallnot have any liability arising from, or be responsible for any loss, cost or expense suffered on account of,(i) any errors or omissions in the records maintained by the Administrative Agent as contemplated bySection 9.04(b)(iv) or (ii) any determination by the Administrative Agent that any Lender is a DefaultingLender, or the effective date of such status, it being further understood and agreed that the AdministrativeAgent shall not have any obligation to determine whether any Lender is a Defaulting Lender.The Administrative Agent may perform any of and all its duties and exercise its rights and powershereunder or under any other Loan Document by or through any one or more sub-agents appointed by theAdministrative Agent (other than a Disqualified Institution). The Administrative Agent and any suchsub-agent may perform any of and all their duties and exercise their rights and powers through theirrespective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agentand to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to theirrespective activities in connection with the syndication of the credit facilities provided for herein as wellas activities as the Administrative Agent. The Administrative Agent shall not be responsible for thenegligence or misconduct of any of its sub-agents except to the extent that a court of competentjurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted withgross negligence, bad faith or willful misconduct in the selection of such sub-agents.Subject to the terms of this paragraph, the Administrative Agent may resign at any time from itscapacity as such. In connection with such resignation, the Administrative Agent shall give notice of itsintent to resign to the Lenders, Issuing Banks, Floorplan Agent and the Company. Upon receipt of any-123-
such notice of resignation, the Required Lenders shall have the right, subject to the consent of theCompany (not to be unreasonably withheld, conditioned or delayed) so long as no Event of Default underclause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing, to appoint a successor(other than a Disqualified Institution). If no successor shall have been so appointed by the RequiredLenders and shall have accepted such appointment within 30 days after the retiring Administrative Agentgives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders,appoint, subject to the Company’s prior written consent, a successor Administrative Agent, which shall bea bank with an office in New York, New York, or an Affiliate of any such bank. If the Person serving asthe Administrative Agent is a Defaulting Lender, the Required Lenders or the Company may, to theextent permitted by applicable law, by notice in writing to the Company and such Person remove suchPerson as the Administrative Agent and, subject to the consent of the Company (not to be unreasonablywithheld, conditioned or delayed) so long as no Event of Default under clause (a), (b), (h) or (i) of Section7.01 shall have occurred and be continuing, appoint a successor. Upon the acceptance of its appointmentas the Administrative Agent hereunder by a successor, such successor shall succeed to and become vestedwith all the rights, powers, privileges and duties of the retiring or removed Administrative Agent, and theretiring or removed Administrative Agent shall be discharged from its duties and obligations hereunderand under the other Loan Documents. The fees payable by the Company to a successor AdministrativeAgent shall be the same as those payable to its predecessor unless otherwise agreed by the Company andsuch successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shallhave been so appointed and shall have accepted such appointment within 30 days after the retiringAdministrative Agent gives notice of its intent to resign, the retiring Administrative Agent may givenotice of the effectiveness of its resignation to the Lenders and the Company, whereupon, on the date ofeffectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall bedischarged from its duties and obligations hereunder and under the other Loan Documents, and (b) theRequired Lenders shall succeed to and become vested with all the rights, powers, privileges and duties ofthe retiring Administrative Agent, provided that (i) all payments required to be made hereunder or underany other Loan Document to the retiring Administrative Agent for the account of any Person other thanthe retiring Administrative Agent shall be made directly to such Person and (ii) all notices and othercommunications required or contemplated to be given or made to the retiring Administrative Agent shallalso directly be given or made to each Lender. Following the effectiveness of the Administrative Agent’sresignation or removal from its capacity as such, the provisions of this Article and Section 9.03, as well asany exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document,shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agentsand their respective Related Parties in respect of any actions taken or omitted to be taken by any of themwhile it was acting as the Administrative Agent.Each Lender and Issuing Bank expressly acknowledges that none of the Administrative Agent norany Arranger has made any representation or warranty to it, and that no act by the Administrative Agentor any Arranger hereafter taken, including any consent to, and acceptance of any assignment or review ofthe affairs of the Company or any Affiliate thereof, shall be deemed to constitute any representation orwarranty by the Administrative Agent or the Arrangers to any Lender or Issuing Bank as to any matter,including whether the Administrative Agent or the Arrangers have disclosed material information in their(or their Related Parties’) possession. Each Lender and Issuing Bank represents to the AdministrativeAgent and the Arrangers that it has, independently and without reliance upon the Administrative Agent,the Arrangers, any other Lender or Issuing Bank or any of their Related Parties and based on suchdocuments and information as it has deemed appropriate, made its own credit analysis of, appraisal of,and investigation into, the business, prospects, operations, property, financial and other condition andcreditworthiness of the Borrowers and their Subsidiaries, and all applicable bank or other regulatory lawsrelating to the transactions contemplated hereby, and made its own decision to enter into this Agreementand to extend credit to the Company hereunder. Each Lender and Issuing Bank also acknowledges that itwill, independently and without reliance upon the Administrative Agent, the Arrangers, any other Lender-124-
or Issuing Bank or any of their Related Parties and based on such documents and information as it shallfrom time to time deem appropriate, continue to make its own credit analysis, appraisals and decisions intaking or not taking action under or based upon this Agreement, any other Loan Document or any relatedagreement or any document furnished hereunder or thereunder, and to make such investigations as itdeems necessary to inform itself as to the business, prospects, operations, property, financial and othercondition and creditworthiness of the Borrowers.In case of the pendency of any proceeding with respect to either Borrower under any UnitedStates (Federal or state) or foreign bankruptcy, insolvency, receivership, winding-up or similar law nowor hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shallthen be due and payable as herein expressed or by declaration or otherwise and irrespective of whetherthe Administrative Agent shall have made any demand on the Borrowers) shall be entitled andempowered (but not obligated) by intervention in such proceeding or otherwise:(a) to file and prove a claim for the whole amount of the principal and interest owingand unpaid in respect of the Loans and all other Obligations that are owing and unpaid by suchBorrower and to file such other documents as may be necessary or advisable in order to have theclaims of the Lenders and the Administrative Agent (including any claim under Sections 2.12,2.13, 2.14 and 9.03) allowed in such judicial proceeding; and(b) to collect and receive any monies or other property payable or deliverable on anysuch claims and to distribute the same;and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any suchproceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and,in the event that the Administrative Agent shall consent to the making of such payments directly to theLenders, to pay to the Administrative Agent any amount due to it, in its capacity as the AdministrativeAgent, under the Loan Documents (including under Section 9.03).Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issuedby it and the documents associated therewith, and each Issuing Bank shall have all of the benefits andimmunities (i) provided to the Administrative Agent in this Article VIII with respect to any acts taken oromissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed tobe issued by it and the applications and agreements for letters of credit pertaining to such Letters of Creditas fully as if the term “Agent” as used in this Article VIII included such Issuing Bank with respect to suchacts or omissions and (ii) as additionally provided herein with respect to such Issuing Bank.Each Lender (x) represents and warrants, as of the date such Person became a Lender partyhereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date suchPerson ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers andtheir respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Company, thatat least one of the following is and will be true: (i) such Lender is not using “plan assets” (within themeaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plansin connection with the Loans or the Revolving Commitments, (ii) the transaction exemption set forth inone or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined byindependent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactionsinvolving insurance company general accounts), PTE 90-1 (a class exemption for certain transactionsinvolving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certaintransactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certaintransactions determined by in-house asset managers), is applicable, and the conditions of such exemptionhave been satisfied, with respect to such Lender’s entrance into, participation in, administration of and-125-
performance of the Loans, the Revolving Commitments and this Agreement, (iii) (A) such Lender is aninvestment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI ofPTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf ofsuch Lender to enter into, participate in, administer and perform the Loans, the Revolving Commitmentsand this Agreement, (C) the entrance into, participation in, administration of and performance of theLoans, the Revolving 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 ofsubsection (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 Revolving Commitments and thisAgreement or (iv) such other representation, warranty and covenant as may be agreed in writing betweenthe Administrative Agent, in its sole discretion, and such Lender.In addition, unless clause (i) of the immediately preceding paragraph is true with respect to aLender or such Lender has provided another representation, warranty and covenant as provided in clause(iv) of the immediately preceding paragraph, such Lender further (a) represents and warrants, as of thedate such Person became a Lender party hereto, to and (b) covenants, from the date such Person became aLender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of theAdministrative Agent, the Arrangers and their Affiliates, and not, for the avoidance of doubt, to or for thebenefit of the Company, that: none of the Administrative Agent, the Arrangers or any of their Affiliatesis a fiduciary with respect to the assets of such Lender (including in connection with the reservation orexercise of any rights by the Administrative Agent under this Agreement, any Loan Document or anydocuments related hereto or thereto).The Administrative Agent and the Arrangers hereby inform the Lenders and the Issuing Banksthat each such Person is not undertaking to provide impartial investment advice, or to give advice in afiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has afinancial interest in the Transactions in that such Person or an Affiliate thereof (a) may receive interest orother payments with respect to the Loans, the Letters of Credit, the Revolving Commitments and thisAgreement, (b) may recognize a gain if it extended the Loans, the Letters of Credit or the RevolvingCommitments for an amount less than the amount being paid for an interest in the Loans, the Letters ofCredit or the Revolving Commitments by such Lender or (c) may receive fees or other payments inconnection with the Transactions, the Loan Documents or otherwise, including structuring fees,commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agencyfees, administrative agent fees, utilization fees, minimum usage fees, fronting fees, deal-away or alternatetransaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakageor other early termination fees or fees similar to the foregoing.To the extent required by any applicable Law, the Administrative Agent may withhold from anypayment to any Lender an amount equivalent to any applicable withholding Tax. If the U.S. InternalRevenue Service or any other Governmental Authority asserts a claim that the Administrative Agent didnot properly withhold Tax from amounts paid to or for the account of any Lender for any reason,including because the appropriate form was not delivered or was not properly executed or because suchLender failed to notify the Administrative Agent of a change in circumstance which rendered theexemption from, or reduction of, withholding Tax ineffective, or if the Administrative Agent reasonablydetermines that a payment was made to a Lender pursuant to this Agreement without deduction ofapplicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agentfully, within 10 days after written demand therefor, for all amounts paid, directly or indirectly, by theAdministrative Agent as Tax or otherwise, together with all expenses (including legal expenses, allocatedinternal costs and out-of-pocket expenses) incurred, whether or not such Tax was correctly or legallyimposed or asserted. A certificate as to the amount of such payment or liability delivered to any Lenderby the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes-126-
the Administrative Agent to set off and apply any amounts at any time owing to such Lender under thisAgreement or any other Loan Document or from any other sources against any amounts due theAdministrative Agent under this paragraph. The agreements in this paragraph shall survive theresignation and/or replacement of the Administrative Agent, any assignment of rights by, or thereplacement of, a Lender, the consummation of the transactions contemplated hereby, the repayment ofthe Loans and the expiration or termination of the Revolving Commitments, the expiration of any Letterof Credit or the termination of this Agreement or any provision hereof. For the avoidance of doubt, theterm “Lender”, for purposes of this paragraph, shall include any Issuing Bank and any Swingline Lender.Notwithstanding anything herein to the contrary, the Arrangers shall not have any duties orobligations under this Agreement or any other Loan Document (except in their capacities, as applicable,as an Administrative Agent or a Lender), but all such Persons shall have the benefit of the indemnitiesand exculpatory provisions provided for hereunder or thereunder.The Lenders and the Issuing Banks irrevocably authorize and direct the release of any Guarantorfrom its obligations under its Subsidiary Guaranty automatically as set forth in Section 5.10(c) andauthorize and direct the Administrative Agent to, at the Company’s expense, execute and deliver to theapplicable Guarantor any documents or instruments as such Guarantor may reasonably request toevidence the release of such Subsidiary Guaranty.Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forththe terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercialloans and in providing other facilities set forth herein as may be applicable to such Lender or IssuingBank, in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring orholding any other type of financial instrument (and each Lender and each Issuing Bank agrees not toassert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon theAdministrative Agent, the Arrangers, any Syndication Agent, any Documentation Agent or any otherLender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on suchdocuments and information as it has deemed appropriate, made its own credit analysis and decision toenter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it issophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provideother facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, orthe Person exercising discretion in making its decision to make, acquire and/or hold such commercialloans or to provide such other facilities, is experienced in making, acquiring or holding such commercialloans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that itwill, independently and without reliance upon the Administrative Agent, the Arrangers, any SyndicationAgent, any Documentation Agent or any other Lender or Issuing Bank, or any of the Related Parties ofany 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 Borrower andits Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in takingor not taking action under or based upon this Agreement, any other Loan Document or any relatedagreement or any document furnished hereunder or thereunder.Each Lender, by delivering its signature page to this Agreement on the Effective Date, ordelivering its signature page to an Assignment and Assumption or any other Loan Document pursuant towhich it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, andconsented to and approved, each Loan Document and each other document required to be delivered to, orbe approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date.Each Lender and Issuing Bank hereby agrees that (x) if the Administrative Agent notifies suchLender and Issuing Bank that the Administrative Agent has determined in its reasonable discretion that-127-
any funds received by such Lender or Issuing Bank from the Administrative Agent or any of its Affiliates(whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually andcollectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Bank (whether or notknown to such Lender or Issuing Bank), and demands the return of such Payment (or a portion thereof),such Lender or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, returnto the Administrative Agent the amount of any such Payment (or portion thereof) as to which such ademand was made in same day funds, together with interest thereon in respect of each day from andincluding the date such Payment (or portion thereof) was received by such Lender or Issuing Bank to thedate such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a ratedetermined by the Administrative Agent in accordance with banking industry rules on interbankcompensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lenderor Issuing Bank 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 counterclaimby the Administrative Agent for the return of any Payments received, including without limitation anydefense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent toany Lender or Issuing Bank under this Article VIII shall be conclusive, absent manifest error.Each Lender and Issuing Bank hereby further agrees that if it receives a Payment from theAdministrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different datefrom, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) withrespect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a PaymentNotice, it shall be on notice, in each such case, that an error has been made with respect to such Payment.Each Lender and Issuing Bank 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 or Issuing Bank shall promptly notify theAdministrative Agent of such occurrence and, upon demand from the Administrative Agent, it shallpromptly, but in no event later than one Business Day thereafter, return to the Administrative Agent theamount 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 portionthereof) was received by such Lender or Issuing Bank to the date such amount is repaid to theAdministrative Agent at the greater of the NYFRB Rate and a rate determined by the AdministrativeAgent in accordance with banking industry rules on interbank compensation from time to time in effect.The Borrowers and each other Loan Party hereby agree that (x) in the event an erroneousPayment (or portion thereof) are not recovered from any Lender or Issuing Bank that has received suchPayment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rightsof such Lender or Issuing Bank with respect to such amount and (y) an erroneous Payment shall not pay,prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrowers or any other LoanParty. The three immediately preceding paragraphs shall not be interpreted to increase (or accelerate thedue date for), or have the effect of increasing (or accelerating the due date for), the Obligations of theBorrowers relative to the amount (and/or timing for payment) of the Obligations that would have beenpayable had such Payment not been made by the Administrative Agent; provided, further, that, for theavoidance of doubt, the three immediately preceding paragraphs shall not apply to the extent any suchPayment is, and solely with respect to the amount of such Payment that is, comprised of funds receivedby the Administrative Agent from the Borrowers for the purpose of making such Payment.Each party’s obligations under this Article VIII shall survive the resignation or replacement of theAdministrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender or an-128-
Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of allObligations under any Loan Document. ARTICLE IXMiscellaneousSECTION 9.01. Notices.(a) Except in the case of notices and other communications expressly permitted to be givenby telephone and subject to paragraph (b) of this Section, all notices and other communications providedfor herein shall be in writing and shall be delivered by hand or overnight courier service, mailed bycertified or registered mail or sent by fax, as follows:(i) if to any Borrower, the Administrative Agent, Swingline Lender or the FloorplanFunding Agent to the address (or fax number) or electronic mail address specified for such Personon Schedule 9.01; and(ii) if to any Lender or Issuing Bank, to it at its address (or fax number) set forth inits Administrative Questionnaire.Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shallbe deemed to have been given when received; notices sent by fax shall be deemed to have been givenwhen sent (but if not given during normal business hours for the recipient, shall be deemed to have beengiven at the opening of business on the next business day for the recipient); and notices delivered throughelectronic communications to the extent provided in paragraph (b) of this Section shall be effective asprovided in such paragraph.(b) Notices and other communications to the Lenders hereunder may be delivered orfurnished by electronic communications (including email and Internet and intranet websites) pursuant toprocedures approved by the Administrative Agent; provided that the foregoing shall not apply to noticesunder Article II to any Lender if such Lender has notified the Administrative Agent that it is incapable ofreceiving notices under such Article by electronic communication. Any notices or other communicationsto the Administrative Agent or the Company may be delivered or furnished by electronic communicationspursuant to procedures approved in advance by the recipient thereof; provided that approval of suchprocedures may be limited or rescinded by such Person by written notice to each other such Person.Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intendedrecipient (such as by the “return receipt requested” function, as available, return e-mail or other writtenacknowledgment); provided that if such notice or other communication is not sent during the normalbusiness hours of the recipient, such notice or communication shall be deemed to have been sent at theopening of business on the next business day for the recipient; and (ii) notices or communications postedto an Internet or intranet website shall be deemed received upon the deemed receipt by the intendedrecipient at its e-mail address as described in the foregoing clause (i) of notification that such notice orcommunication is available and identifying the website address therefor.(c) Any party hereto may change its address, fax number or email address for notices andother communications hereunder by notice to the other parties hereto.-129-
(d) The Administrative Agent may, but shall not be obligated to, make any Communicationby posting such Communication on Debt Domain, IntraLinks, SyndTrak or a similar electronictransmission system (the “Platform”). The Platform is provided “as is” and “as available.” None of theAdministrative Agent nor any of its Related Parties warrants, or shall be deemed to warrant, the adequacyof the Platform, and the Administrative Agent expressly disclaims liability for errors or omissions in theCommunications. No warranty of any kind, express, implied or statutory, including any warranty ofmerchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom fromviruses or other code defects, is made, or shall be deemed to be made, by the Administrative Agent or anyof its Related Parties in connection with the Communications or the Platform. In no event shall theAdministrative Agent, any of its Related Parties, the Company, any Lender, the Floorplan Funding Agentor Issuing Bank have any liability to any other Person party hereto or any other Person for damages ofany kind, including direct or indirect, special, incidental or consequential damages, losses or expenses(whether in tort, contract or otherwise), arising out of the Company’s or the Administrative Agent’stransmission of Communications through the Platform.SECTION 9.02. Waivers; Amendments.(a) No failure or delay by the Administrative Agent, the Floorplan Funding Agent, anyLender or any Issuing Bank in exercising any right or power hereunder or under any other LoanDocument shall operate as a waiver thereof, nor shall any single or partial exercise of any such right orpower, or any abandonment or discontinuance of steps to enforce such a right or power, preclude anyother or further exercise thereof or the exercise of any other right or power. The rights and remedies ofthe Administrative Agent, the Floorplan Funding Agent, the Issuing Banks and the Lenders hereunder andunder the other Loan Documents are cumulative and are not exclusive of any rights or remedies that theywould otherwise have. No waiver of any provision of any Loan Document or consent to any departure bythe Company 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 forthe specific purpose for which given.(b) Subject to Section 2.11(b), (c) and (d), Section 2.22 and Section 9.02(c) below and exceptfor those actions expressly permitted to be taken by the Administrative Agent, the Floorplan FundingAgent, none of this Agreement, any other Loan Document or any provision hereof or thereof may bewaived, amended or modified except, in the case of this Agreement, pursuant to an agreement oragreements in writing entered into by the Borrowers, the Administrative Agent and the Required Lendersand, in the case of any other Loan Document, pursuant to an agreement or agreements in writing enteredinto by the Administrative Agent and the Borrowers, in each case with the consent of the RequiredLenders; provided that no such agreement shall (i) increase the Revolving Commitment of any Lenderwithout the written consent of such Lender (but not the Required Lenders) (it being understood that thewaiver of any condition precedent, the wavier of any obligation of the Borrowers to pay interest at thedefault rate or the waiver of any Default, Event of Default, mandatory prepayment of the Loans ormandatory reduction of any Revolving Commitments shall not constitute such an extension or increase),(ii) reduce the principal amount of any Loan or any date for reimbursement of an LC Disbursement, orreduce the rate of interest thereon or reduce any fees payable hereunder, without the written consent ofeach Lender directly and adversely affected thereby (but not the Required Lenders) (it being understoodthat the waiver of any condition precedent, the wavier of any obligation of the Borrowers to pay interestat the default rate or the waiver of any Default, Event of Default, mandatory prepayment of the Loans ormandatory reduction of any Revolving Commitments shall not constitute such an extension or increase),(iii) postpone the scheduled maturity date of any Loan, or any date for the payment of any interest or feespayable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone thescheduled date of expiration of any Revolving Commitment, without the written consent of each Lenderdirectly and adversely affected thereby (but not the Required Lenders) (subject to an extension of the-130-
Maturity Date in accordance with Section 2.18) (it being understood that the waiver of any conditionprecedent, the wavier of any obligation of the Borrowers to pay interest at the default rate or the waiver ofany Default, Event of Default, mandatory prepayment of the Loans or mandatory reduction of anyRevolving Commitments shall not constitute such an extension or increase), (iv) change Section 2.08,2.15(b) or 2.15(c) in a manner that would alter the pro rata sharing of payments required thereby withoutthe written consent of each Lender directly and adversely affected thereby (but not the Required Lenders),(v) change any of the provisions of this paragraph or reduce the percentage set forth in (x) the definitionof the term “Required Lenders” or (y) any other provision of any Loan Document specifying the numberor percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rightsthereunder or make any determination or grant any consent thereunder, without the written consent ofeach Lender (or each Lender of such Class, as the case may be) directly and adversely affected thereby(but not the Required Lenders), provided that, with the consent of the Required Lenders, the provisions ofthis paragraph and the definition of the term “Required Lenders” may be amended to include references toany new class of loans created under this Agreement (or to lenders extending such loans), (vi) release allor substantially all of the Guarantors from their obligations under the Loan Documents without thewritten consent of each Lender directly and adversely affected thereby (but not the Required Lenders)(except as otherwise provided for in Section 5.01(c) or otherwise in the Loan Documents) or (vii) withoutthe prior written consent of the Floorplan Funding Agent and Required Lenders, (A) amend or modifyany provision of Section 2.22, (B) [reserved] or (C) amend or modify any of the following defined terms:“Floorplan Approval”, “Floorplan Approved Invoice”, “Floorplan Approved Vendor”, “FloorplanCollateral Account”, “Floorplan Due Date”, “Floorplan Facility”, “Floorplan Funding Agent”, “FloorplanLoan”, “Floorplan Loan Exposure”, “Floorplan Loan Payment”, “Floorplan Loan Payment Obligations”,“Floorplan Open Approval”, “Floorplan Required Payment”, or “Floorplan Vendor Credits”; providedfurther that no such agreement shall amend, modify, extend or otherwise affect the rights or obligations ofthe Administrative Agent, the Floorplan Funding Agent, any Issuing Bank or the Swingline Lender in anadverse manner in any material respect without the written consent of the Administrative Agent, theFloorplan Funding Agent, such Issuing Bank or the Swing Line Lender, as the case may be.(c) Notwithstanding anything to the contrary in paragraph (b) of this Section:(i) (A)any provision of this Agreement or any other Loan Document may beamended by an agreement in writing entered into by the Company and the Administrative Agentto cure any ambiguity, mistake, omission, defect or inconsistency so long as, in each case, theLenders shall have received at least five Business Days’ prior written notice thereof and theAdministrative Agent shall not have received, within five Business Days of the date of suchnotice to the Lenders, a written notice from the Required Lenders stating that the RequiredLenders object to such amendment and (B) the Administrative Agent and the Borrowers shall bepermitted to enter into any new agreement or instrument, to be consistent with this Agreementand the other Loan Documents or as required by local law to give effect to any guaranty, so thatthe guaranty complies with applicable Law, and in each case, such amendments, documents andagreements shall become effective without any further action or consent of any other party to anyLoan Document;(ii) no consent with respect to any amendment, waiver or other modification of thisAgreement or any other Loan Document shall be required of any Defaulting Lender, except withrespect to any amendment, waiver or other modification referred to in clause (i), (ii), (iii) or (iv)of the first proviso of paragraph (b) of this Section and then only in the event such DefaultingLender shall be directly and adversely affected by such amendment, waiver or other modification;(iii) if, in connection with any proposed amendment, waiver or consent requiring theconsent of “each Lender”, “each Lender affected thereby”, or such similar phrase, the consent of-131-
the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (anysuch Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as aLender party to this Agreement; provided that, concurrently with such replacement, theBorrowers shall pay to such Non-Consenting Lender in same day funds on the day of suchreplacement (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 and (2)an amount, if any, equal to the payment which would have been due to such Lender on the day ofsuch replacement under Section 2.13 (if any) had the Loans of such Non-Consenting Lender beenprepaid on such date rather than sold to the replacement Lender. Each Lender and Issuing Bankhereby grants to the Administrative Agent an irrevocable power of attorney (which power ofattorney is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor,any Assignment and Acceptance necessary to effectuate any assignment of such Lender’sinterests hereunder in respect of the circumstances contemplated by this Section 9.02(c)(iii);(iv) this Agreement and the other Loan Documents may be amended in the mannerprovided in Sections 2.11, 2.18 and 2.21; and(v) an amendment to this Agreement contemplated by the last sentence of thedefinition of the term “Applicable Rate” may be made pursuant to an agreement or agreements inwriting entered into by the Company, the Administrative Agent and the Required Lenders.(d) The Administrative Agent may, but shall have no obligation to, with the concurrence ofany Lender, execute amendments, waivers or other modifications on behalf of such Lender. Anyamendment, waiver or other modification effected in accordance with this Section shall be binding uponeach Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.(e) Notwithstanding the foregoing, this Agreement may be amended (or amended andrestated) with the written consent of the Required Lenders, the Administrative Agent and the Company (i)to add one or more additional credit facilities to this Agreement, to permit the extensions of credit fromtime to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably inthe benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest andfees in respect thereof and to include appropriately the Lenders holding such credit facilities in anydetermination of the Required Lenders and (ii) to change, modify or alter Section 2.15 or any otherprovision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary toeffectuate any of the amendments (or amendments and restatements) enumerated in clause (e)(i) above.SECTION 9.03. Expenses; Indemnity; Damage Waiver.(a) The Company shall pay (i) all reasonable and documented out-of-pocket expensesincurred by the Administrative Agent, the Arrangers and their Affiliates (but limited to, in the case oflegal fees, the reasonable and documented fees, charges and disbursements of a single external U.S.counsel, a single special local counsel in England and Wales, a single tax local counsel in England andWales and, if reasonably necessary, a single local counsel in each other relevant material jurisdiction(which may be a single local counsel acting in multiple jurisdictions), in each case, for the AdministrativeAgent, the Arrangers and their Affiliates taken as a whole, in connection with the structuring,arrangement and syndication of the credit facilities provided for herein, including the preparation,execution and delivery of this Agreement, the other Loan Documents or any amendments, modificationsor waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby orthereby shall be consummated), and (ii) all reasonable and documented out-of-pocket expenses incurredby the Administrative Agent, the Arrangers, the Lenders and the Issuing Banks (but limited to, in the case-132-
of legal fees, to the fees, charges and disbursements of one external counsel in connection with theenforcement or protection of its rights in connection with the Loan Documents, including its rights underthis Section, or in connection with the Loans made hereunder, including during the continuance of anEvent of Default all such reasonable out-of-pocket expenses incurred during any workout, restructuring ornegotiations in respect of such Loans (but limited to a single U.S. counsel, if reasonably necessary, asingle local counsel in England and Wales and, if reasonably necessary, a single local counsel in eachother relevant material jurisdiction (which may be a single local counsel acting in multiple jurisdictions),in each case, for the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders, taken as awhole and, in the case of an actual or perceived conflict of interest, where the party affected by suchconflict informs the Company of such conflict and thereafter retains its own counsel, of another externalfirm of U.S. counsel, if reasonably necessary, another firm of England and Wales counsel and, ifreasonably necessary, one local counsel in each other relevant material jurisdiction (which may include asingle local counsel acting in multiple jurisdictions) for all such affected Persons taken as a whole).(b) The Company shall indemnify the Administrative Agent (and any sub-agent thereof), theArrangers, the Syndication Agents, the Documentation Agents, the Floorplan Funding Agent, theSwingline Lender, each Lender, each Issuing Bank and each Related Party of any of the foregoing (eachsuch Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and allLiabilities and related reasonable and documented out-of-pocket expenses, including the fees, charges anddisbursements of any counsel for any Indemnitee (but limited to a single U.S. counsel, if reasonablynecessary, a single local counsel in England and Wales and, if reasonably necessary, a single localcounsel in each other relevant material jurisdiction (which may be a single local counsel acting inmultiple jurisdictions), in each case, for the Indemnitees, taken as a whole and, in the case of an actual orperceived conflict of interest, where the Indemnitee affected by such conflict informs the Company ofsuch conflict and thereafter retains its own counsel, of another firm of U.S. counsel, if reasonablynecessary, another firm of England and Wales counsel, and, if reasonably necessary, one local counsel ineach other relevant material jurisdiction (which may include a single local counsel acting in multiplejurisdictions) for each group of similarly affected Indemnitees (taken as a whole)), incurred by or assertedagainst any Indemnitee arising out of, in connection with, or as a result of (i) the structuring, arrangementand syndication of the credit facilities provided for herein, the preparation, execution, delivery andadministration of this Agreement, the other Loan Documents, the performance by the parties to thisAgreement or the other Loan Documents of their obligations thereunder or the consummation of theTransactions, (ii) any Loan or the use of the proceeds therefrom or proposed use of proceeds, (iii) anyactual or alleged presence or Release of Hazardous Materials on or from any property currently orformerly owned or operated by the Company or any Subsidiary (or Person that was formerly aSubsidiary) of any of them, or any other Environmental Liability related in any way to the Company orany Subsidiary (or Person that was formerly a Subsidiary) of any of them, or (iv) any actual orprospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether basedon contract, tort or any other theory and whether initiated against or by any party to this Agreement orany other Loan Document, any Affiliate of any of the foregoing or any third party (and regardless ofwhether any Indemnitee is a party thereto); provided that such indemnity shall not, as to any Indemnitee,be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses (A)are determined by a court of competent jurisdiction by final and nonappealable judgment to have resultedfrom (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its RelatedIndemnitee Parties or (2) a material breach of the obligations of such Indemnitee or any of its RelatedIndemnitee Parties under this Agreement or any other Loan Document or (B) arise from any disputeamong the Indemnitees or any of their Related Indemnitee Parties, other than any claim, litigation,investigation or proceeding against the Administrative Agent, the Arrangers, Syndication Agents orDocumentation Agents or any other titled person in its capacity or in fulfilling its role as such and otherthan any claim, litigation, investigation or proceeding arising out of any act or omission on the part of theCompany or any of its Affiliates. Each Indemnitee shall be obligated to refund and return promptly any-133-
and all amounts actually paid by the Company to such Indemnitee under this paragraph for any Liabilitiesor expenses to the extent such Indemnitee is subsequently determined, by a court of competentjurisdiction by final and nonappealable judgment, to not be entitled to payment of such amounts inaccordance with the terms of this paragraph. This paragraph shall not apply with respect to Taxes otherthan any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.(c) To the extent that the Company fails to pay any amount required under paragraph (a) or(b) of this Section to the Administrative Agent (or any sub-agent thereof) or any Related Party of any ofthe foregoing (and without limiting its obligation to do so), each Lender severally agrees to pay to theAdministrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’spro rata share (determined as of the time that the applicable unreimbursed expense or indemnity paymentis sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,damage, liability or related expense, as the case may be, was incurred by or asserted against theAdministrative Agent (or such sub-agent) in its capacity as such, or against any Related Party of any ofthe foregoing acting for the Administrative Agent (or any such sub-agent). For purposes of this Section, aLender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount ofthe Loans and unused Revolving Commitments at the time outstanding or in effect (or most recentlyoutstanding or in effect, if none of the foregoing shall be outstanding or in effect at such time).(d) To the fullest extent permitted by applicable law, the parties hereto shall not assert, orpermit any of their respective Affiliates or Related Parties to assert, and the parties hereto hereby waives,any claim against the other parties hereto and each Related Party of any of the foregoing (each suchPerson being called a “Related Person”) (i) for any damages arising from the use by others of informationor other materials obtained through telecommunications, electronic or other information transmissionsystems (including the Internet) other than for direct, actual damages resulting from the gross negligence,bad faith, material breach or willful misconduct of such Related Person as determined by a final, non-appealable judgment of a court of competent jurisdiction, or (ii) on any theory of liability, for special,indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, inconnection with, or as a result of this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.(e) To the fullest extent permitted by applicable law, the Administrative Agent, theArrangers and the Lenders shall not assert, or permit any of their respective Affiliates or Related Partiesto assert, and each of them hereby waives, any claim against the Company, on any theory of liability, forspecial, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising outof, in connection with, or as a result of this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof;provided, that nothing in this paragraph (e) shall limit the Company’s indemnity and reimbursementobligations set forth in this Section or separately agreed.(f) In addition, the indemnity set forth herein shall not, as to any Indemnitee, be availablewith respect to any settlements effected without the Company’s prior written consent (which consent shallnot be unreasonably withheld or delayed), but if settled with the Company’s consent, the Company agreesto indemnify and hold harmless each Indemnitee in the manner set forth above (for the avoidance ofdoubt, it being understood that if there is a final judgment in any such proceeding, the indemnity set forthabove shall apply (subject to the exceptions thereto set forth above)). Each Indemnitee shall take allreasonable steps to mitigate any losses, claims, damages, liabilities and expenses in connection with thematters covered in this Section 9.03. -134-
(g) All amounts due under this Section shall be payable promptly after written demandtherefor.SECTION 9.04. Successors and Assigns.(a) The provisions of this Agreement shall be binding upon and inure to the benefit of theparties hereto and their respective successors and assigns permitted hereby, except that (i) other than asexpressly provided in Section 6.04(a)(ii)(B), the Borrowers may not assign or otherwise transfer any of itsrights or obligations hereunder without the prior written consent of the Administrative Agent, eachIssuing Bank and each Lender (and any attempted assignment or transfer by the a Borrower without suchconsent shall be null and void) and (ii) no Lender or Issuing Bank may assign or otherwise transfer itsrights or obligations hereunder except in accordance with this Section. Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, theirrespective successors and assigns permitted hereby, sub-agents of the Administrative Agent, Participants(to the extent provided in paragraph (c) of this Section), the Arrangers and, to the extent expresslycontemplated hereby, the Related Parties of the foregoing) any legal or equitable right, remedy or claimunder or by reason of this Agreement.(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assignto one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement(including all or a portion of its Revolving Commitments and the Loans at the time owing to it) with theprior written consent (such consent not to be unreasonably withheld, delayed or conditioned) of:(A) the Company; provided that no consent of the Company shall be required (x) foran assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (y) if an Event ofDefault under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing;provided further, in each case, that the Company shall be deemed to have consented to anyassignment unless it shall object thereto by written notice to the Administrative Agent within 10Business Days after having received notice thereof; and(B) the Administrative Agent; provided that no consent of the Administrative Agentshall be required for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund.(ii) Assignments shall be subject to the following additional conditions:(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or anApproved Fund or an assignment of the entire remaining amount of the assigning Lender’sRevolving Commitment or Loans, the amount of the Revolving Commitment or Loans of theassigning Lender subject to each such assignment (determined as of the date the Assignment andAssumption with respect to such assignment is delivered to the Administrative Agent) shall notbe less than $2,000,000 unless each of the Company and the Administrative Agent otherwiseconsents; provided that (1) no such consent of the Company shall be required if an Event ofDefault under clause (a), (b), (h) or (i) of Section 7.01 shall have occurred and be continuing and(2) the Company shall be deemed to have consented to any assignment unless it shall objectthereto by written notice to the Administrative Agent within 10 Business Days after havingreceived notice thereof;(B) each partial assignment shall be made as an assignment of a proportionate part ofall the assigning Lender’s rights and obligations under this Agreement;-135-
(C) the parties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Assumption (or an agreement incorporating by reference a form ofAssignment and Assumption posted on the Platform), together with a processing and recordationfee of $3,500, provided that only one such processing and recordation fee shall be payable in theevent of simultaneous assignments from any Lender or its Approved Funds to one or more otherApproved Funds of such Lender; and(D) the assignee, if it shall not already be a Lender, shall deliver to theAdministrative Agent an Administrative Questionnaire in which the assignee designates one ormore credit contacts to whom all syndicate-level information (which may contain MNPI) will bemade available and who may receive such information in accordance with the assignee’scompliance procedures and applicable law, including United States (Federal or State) and foreignsecurities laws.(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section,from and after the effective date specified in each Assignment and Assumption (or an agreementincorporating by reference a form of Assignment and Assumption posted on the Platform) the assigneethereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment andAssumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lenderthereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be releasedfrom its obligations under this Agreement (and, in the case of an Assignment and Assumption coveringall of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be aparty hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14, 9.03 and 9.17);provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by aDefaulting Lender will constitute a waiver or release of any claim of any party hereunder arising fromsuch Lender having been a Defaulting Lender. Any assignment or transfer by a Lender of rights orobligations under this Agreement that does not comply with this Section shall be treated for purposes ofthis Agreement as a sale by such Lender of a participation in such rights and obligations in accordancewith Section 9.04(c).(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of theCompany, shall maintain at one of its offices a copy of each Assignment and Assumption with respect tothe Revolving Facility delivered to it and records of the names and addresses of the Lenders, and theRevolving Commitments of, and principal amount (and related interest) of the Loans owing to, eachLender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shallbe conclusive absent manifest error, and the Company, the Administrative Agent and the Lenders shalltreat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lenderhereunder for all purposes of this Agreement, notwithstanding any notice to the contrary. The Registershall be available for inspection by the Company, the Administrative Agent and, as to entries pertainingto it, any Lender, at any reasonable time and from time to time upon reasonable prior notice.(v) Upon receipt by the Administrative Agent of an Assignment and Assumption (or anagreement incorporating by reference a form of Assignment and Assumption posted on the Platform)executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire(unless the assignee shall already be a Lender hereunder) and the processing and recordation fee referredto in this Section, the Administrative Agent shall accept such Assignment and Assumption and record theinformation contained therein in the Register; provided that the Administrative Agent shall not berequired to accept such Assignment and Assumption or so record the information contained therein if theAdministrative Agent reasonably believes that such Assignment and Assumption lacks any writtenconsent required by this Section or is otherwise not in proper form, it being acknowledged that theAdministrative Agent shall have no duty or obligation (and shall incur no liability) with respect to-136-
obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or anydefect in) such Assignment and Assumption, any such duty and obligation being solely with the assigningLender and the assignee. No assignment shall be effective for purposes of this Agreement unless it hasbeen recorded in the Register as provided in this paragraph, and following such recording, unlessotherwise determined by the Administrative Agent (such determination to be made in the sole discretionof the Administrative Agent, which determination may be conditioned on the consent of the assigningLender and the assignee), shall be effective notwithstanding any defect in the Assignment andAssumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of anAssignment and Assumption, shall be deemed to have represented to the Administrative Agent that allwritten consents required by this Section with respect thereto (other than the consent of theAdministrative Agent) have been obtained and that such Assignment and Assumption is otherwise dulycompleted and in proper form, and each assignee, by its execution and delivery of an Assignment andAssumption, shall be deemed to have represented to the assigning Lender and the Administrative Agentthat such assignee is an Eligible Assignee.(c) (i) Any Lender may, without the consent of the Company, the Floorplan Funding Agent,the Swingline Lender, any Issuing Bank or the Administrative Agent, sell participations to one or moreEligible Assignees (“Participants”) in all or a portion of such Lender’s rights and/or obligations under thisAgreement (including all or a portion of its Revolving Commitments and Loans); provided that (A) suchLender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligations and (C) the Company, theAdministrative Agent, the Floorplan Funding Agent, the Swingline Lender, any Issuing Bank and theother Lenders shall continue to deal solely and directly with such Lender in connection with suchLender’s rights and/or obligations under this Agreement. Any agreement or instrument pursuant to whicha Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce thisAgreement and to approve any amendment, modification or waiver of any provision of this Agreement orany other Loan Document; provided that such agreement or instrument may provide that such Lender willnot, without the consent of the Participant, agree to any amendment, modification or waiver described inthe first proviso to Section 9.02(b) that affects such Participant or requires the approval of all the Lenders.The Company agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14(subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (itbeing understood that the documentation required under Section 2.14(f) shall be delivered solely to theparticipating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignmentpursuant to paragraph (b) of this Section; provided that such Participant (x) agrees to be subject to theprovisions of Sections 2.15 and 2.16 as if it were an assignee under paragraph (b) of this Section and (y)shall not be entitled to receive any greater payment under Section 2.12 or 2.14 with respect to anyparticipation than its participating Lender would have been entitled to receive, except to the extent suchentitlement to receive a greater payment results from a Change in Law that occurs after the Participantacquired the applicable participation. Each Lender that sells a participation agrees, at the Company’srequest and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisionsof Section 2.16(b) with respect to any Participant. To the extent permitted by law, each Participant alsoshall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participantshall be subject to Section 2.15(c) as though it were a Lender.(ii) Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain records of the name and address of each Participant and theprincipal amounts (and related interest) of each Participant’s interest in the Loans or other obligationsunder this Agreement or any other Loan Document (the “Participant Register”); provided that no Lendershall have any obligation to disclose all or any portion of the Participant Register (including the identityof any Participant or any information relating to a Participant’s interest in any Revolving Commitments,Loans or other rights and/or obligations under this Agreement or any other Loan Document) to any-137-
Person except to the extent that such disclosure is necessary to establish that any such RevolvingCommitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the UnitedStates Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifesterror, and such Lender shall treat each Person whose name is recorded in the Participant Register as theowner of such participation for all purposes of this Agreement, notwithstanding any notice to thecontrary. For the avoidance of doubt, the Administrative Agent (in its capacity as the AdministrativeAgent) shall not have any responsibility for maintaining a Participant Register.(d) Any Lender may at any time pledge or grant a security interest in all or any portion of itsrights under this Agreement to secure obligations of such Lender, including any pledge or grant to secureobligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any suchpledge or grant of a security interest; provided that no such pledge or grant of a security interest shallrelease a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for suchLender as a party hereto.(e) Disqualified Institutions.(i) Notwithstanding anything to the contrary herein, no assignment or participation shall bemade to any Person that was a Disqualified Institution as of the date (the “Trade Date”) on which theassigning Lender entered into a binding agreement to sell and assign or grant a participation in all or aportion of its rights and obligations under this Agreement to such Person (unless the Company hasconsented to such assignment or participation in writing in its sole and absolute discretion, in which casesuch Person will not be considered a Disqualified Institution for the purpose of such assignment orparticipation). For the avoidance of doubt, with respect to any assignee or participant that becomes aDisqualified Institution after the applicable Trade Date (including as a result of the delivery of a writtensupplement to the list of “Disqualified Institutions” referred to in the definition of “DisqualifiedInstitution”), (x) such assignee or participant shall not retroactively be disqualified from becoming aLender or participant and (y) the execution by the Company of an Assignment and Acceptance withrespect to such assignee will not by itself result in such assignee no longer being considered aDisqualified Institution. Any assignment or participation in violation of this clause (e)(i) shall not bevoid, but the other provisions of this clause (e) shall apply.(ii) If any assignment or participation is made to any Disqualified Institution without theCompany’s prior written consent in violation of clause (i) above, or if any Person becomes a DisqualifiedInstitution after the applicable Trade Date, the Company may, at its sole expense and effort, upon noticeto the applicable Disqualified Institution and the Administrative Agent, require such DisqualifiedInstitution to assign, without recourse (in accordance with and subject to the restrictions contained in thisSection 9.04), all of its interest, rights and obligations under this Agreement to one or more Persons (otherthan a Disqualified Institution) at the lesser of (x) the principal amount thereof and (y) the amount thatsuch Disqualified Institution paid to acquire such interests, rights and obligations in each case plusaccrued interest, accrued fees and all other amounts (other than principal amounts) payable to ithereunder.(iii) Notwithstanding anything to the contrary contained in this Agreement, DisqualifiedInstitutions (A) will not have the right to (x) receive information, reports or other materials provided toLenders by the Borrowers, the Administrative Agent or any other Lender, (y) attend or participate inmeetings attended by the Lenders (or any of them) and the Administrative Agent, or (z) access anyelectronic site established for the Lenders or confidential communications from counsel to or financialadvisors of the Administrative Agent or the Lenders, (B) for purposes of any consent to any amendment,waiver or modification of, or any action under, and for the purpose of any direction to the AdministrativeAgent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or-138-
any other Loan Document, each Disqualified Institution will be deemed to have consented in the sameproportion as the Lenders that are not Disqualified Institutions consented to such matter, and (C) forpurposes of voting on any plan of reorganization or plan of liquidation pursuant to the Bankruptcy Codeor any Debtor Relief Laws (a “Bankruptcy Plan”), each Disqualified Institution party hereto herebyagrees (1) not to vote on such Bankruptcy Plan, (2) if such Disqualified Institution does vote on suchBankruptcy Plan notwithstanding the restriction in the foregoing clause (1), such vote will be deemed notto be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or anysimilar provision in any other Debtor Relief Laws), and such vote shall not be counted in determiningwhether the applicable class has accepted or rejected such Bankruptcy Plan in accordance with Section1126(c) of the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws) and (3) not tocontest any request by any party for a determination by the Bankruptcy Court (or other applicable court ofcompetent jurisdiction) effectuating the foregoing clause (2).(iv) The Administrative Agent shall have the right, and the Borrowers hereby expresslyauthorize the Administrative Agent to (A) post the list of Disqualified Institutions provided by theCompany and any updates thereto from time to time (collectively, the “DQ List”) on an ApprovedElectronic Platform, including that portion of such Approved Electronic Platform that is designated for“public side” Lenders and/or (B) provide the DQ List to each Lender or potential Lender requesting thesame. (v) The Administrative Agent shall not be responsible or have any liability for, or have anyduty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating toDisqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shallnot (x) be obligated to ascertain, monitor or inquire as to whether any other Lender or participant orprospective Lender or participant is a Disqualified Institution or (y) have any liability with respect to orarising out of any assignment or participation of Loans, or disclosure of confidential information, by anyother Person to any Disqualified Institution.SECTION 9.05. Survival. All covenants, agreements, representations and warranties made bythe Borrowers and the Guarantors in the Loan Documents and in the certificates or other instrumentsdelivered in connection with or pursuant to this Agreement or any other Loan Document shall beconsidered to have been relied upon by the other parties hereto or thereto and shall survive the executionand delivery of the Loan Documents and the making of any Loans and the issuance of Letters of Credit byeach Issuing Bank, regardless of any investigation made by any such other party or on its behalf andnotwithstanding that any of the Administrative Agent, the Arrangers, the Syndication Agents, theDocumentation Agents, the Lenders, the Swingline Lender, the Issuing Banks or any Related Party of anyof the foregoing may have had notice or knowledge of any Default or incorrect representation or warrantyat the time any Loan Document was executed and delivered or any credit was extended hereunder, andshall continue in full force and effect as long as the principal of or any interest accrued on any Loan orany fee or any other amount payable under this Agreement is outstanding and unpaid (other thancontingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as towhich no claim has been made) and so long as any of the Revolving Commitments have not expired orterminated. The provisions of Sections 2.12, 2.13, 2.14, 2.15(d), 2.15(e), 9.03 and 9.17 and Article VIIIshall survive and remain in full force and effect regardless of the resignation and/or replacement of theAdministrative Agent, any assignment of rights by, or the replacement of, a Lender, the consummation ofthe transactions contemplated hereby, the repayment of the Loans and the expiration or termination of theRevolving Commitments, the expiration of any Letter of Credit or the termination of this Agreement orany provision hereof. -139-
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution.(a) This Agreement may be executed in counterparts (and by different parties hereto ondifferent counterparts), each of which shall constitute an original, but all of which when taken togethershall constitute a single contract. This Agreement and the other Loan Documents constitute the entirecontract among the parties relating to the subject matter hereof and supersede any and all previousagreements and understandings, oral or written, relating to the subject matter hereof. Except as providedin Section 4.01, this Agreement shall become effective when it shall have been executed by theAdministrative Agent and the Administrative Agent shall have received counterparts hereof that, whentaken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding uponand 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) anyother 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 thetransactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an ElectronicSignature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image ofan actual executed signature page shall be effective as delivery of a manually executed counterpart of thisAgreement, such other Loan Document or such Ancillary Document, as applicable. The words“execution”, “signed”, “signature”, “delivery”, and words of like import in or relating to this Agreement,any other Loan Document and/or any Ancillary Document shall be deemed to include ElectronicSignatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy,emailed pdf. or any other electronic means that reproduces an image of an actual executed signaturepage), each of which shall be of the same legal effect, validity or enforceability as a manually executedsignature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be;provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in anyform or format without its prior written consent and pursuant to procedures approved by it; provided,further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept anyElectronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on suchElectronic Signature purportedly given by or on behalf of any Borrower or any other Loan Party withoutfurther verification thereof and without any obligation to review the appearance or form of any suchElectronic signature and (ii) upon the request of the Administrative Agent or any Lender, any ElectronicSignature shall be promptly followed by a manually executed counterpart. Without limiting thegenerality of the foregoing, 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 theLoan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic meansthat reproduces an image of an actual executed signature page and/or any electronic images of thisAgreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect,validity and enforceability as any paper original, (B) the Administrative Agent and each of the Lendersmay, at its option, create one or more copies of this Agreement, any other Loan Document and/or anyAncillary Document in the form of an imaged electronic record in any format, which shall be deemedcreated in the ordinary course of such Person’s business, and destroy the original paper document (and allsuch electronic records shall be considered an original for all purposes and shall have the same legaleffect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contestthe legal effect, validity or enforceability of this Agreement, any other Loan Document and/or anyAncillary Document based solely on the lack of paper original copies of this Agreement, such other LoanDocument and/or such Ancillary Document, respectively, including with respect to any signature pagesthereto and (D) waives any claim against any Lender-Related Person for any Liabilities arising solelyfrom the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or-140-
transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of anactual executed signature page, including any Liabilities arising as a result of the failure of any Borrowerand/or any Loan Party to use any available security measures in connection with the execution, deliveryor transmission of any Electronic Signature, except to the extent that such claim or Liabilities aredetermined by a court of competent jurisdiction by final and nonappealable judgment to have resultedfrom the gross negligence, bad faith or willful misconduct of the Administrative Agent and/or suchLender. SECTION 9.07. Severability. Any provision of this Agreement held to be invalid, illegal orunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of suchinvalidity, illegality or unenforceability without affecting the validity, legality and enforceability of theremaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shallnot invalidate such provision in any other jurisdiction.SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and becontinuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time,to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general orspecial, time or demand, provisional or final, in whatever currency) or other amounts at any time held andother obligations (in whatever currency) at any time owing by such Lender or by such Affiliate to or forthe credit or the account of the Company against any of and all the obligations then due of the Companynow or hereafter existing under this Agreement held by such Lender, irrespective of whether or not suchLender shall have made any demand under this Agreement and although such obligations of the Companyare owed to a branch, office or Affiliate of such Lender different from the branch, office or Affiliateholding such deposit or obligated on such indebtedness; provided that, in the event that any DefaultingLender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately tothe Administrative Agent for further application in accordance with the provisions of Section 2.17 and,pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemedheld in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lendershall provide promptly to the Administrative Agent a statement describing in reasonable detail theObligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights ofeach Lender and each Affiliate of any Lender under this Section are in addition to other rights andremedies (including other rights of setoff) that such Lender or Affiliate may have. Each Lender agrees tonotify the Company and the Administrative Agent promptly after any such setoff and application;provided that the failure to give notice shall not affect the validity of such setoff and application.SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.(a) This Agreement shall be governed by, and construed in accordance with, the law of theState of New York.(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and itsproperty, to the jurisdiction of the United States District Court of the Southern District of New Yorksitting in New York County (or if such court lacks subject matter jurisdiction, the Supreme Court of theState of New York sitting in New York County), and any appellate court from any thereof, in any suit,action or proceeding arising out of or relating to this Agreement or any other Loan Document, or forrecognition or enforcement of any judgment, and the Company hereby irrevocably and unconditionallyagrees that all claims arising out of or relating to this Agreement or any other Loan Document brought byit or any of its Affiliates shall be brought, and shall be heard and determined, exclusively in such UnitedStates District Court or, if that court does not have subject matter jurisdiction, such Supreme Court. Eachparty hereto agrees that a final judgment in any such suit, action or proceeding shall be conclusive andmay be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.-141-
Nothing in this Agreement shall affect any right that the Administrative Agent or any Lender mayotherwise have to bring any suit, action or proceeding relating to this Agreement or any other LoanDocument against the Company or any of its properties in the courts of any jurisdiction.(c) Each party to this Agreement hereby irrevocably and unconditionally waives, to thefullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue ofany suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document inany court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocablywaives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance ofsuch suit, action or proceeding in any such court.(d) Each party to this Agreement irrevocably consents to service of process in the mannerprovided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will affectthe right of any party to this Agreement to serve process in any other manner permitted by law.(e) [reserved].(f) In the event the Borrowers or any of their respective assets has or hereafter acquires, inany jurisdiction in which judicial proceedings may at any time be commenced with respect to thisAgreement or any other Loan Document, any immunity from jurisdiction, legal proceedings, attachment(whether before or after judgment), execution, judgment or setoff, the Borrowers hereby irrevocablyagrees not to claim and hereby irrevocably and unconditionally waives such immunity.SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBYIRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLYOR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOANDOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHERBASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTYHAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULDNOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCEDTO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERSAND CERTIFICATIONS IN THIS SECTION.SECTION 9.11. Headings. Article and Section headings and the Table of Contents usedherein are for convenience of reference only, are not part of this Agreement and shall not affect theconstruction of, or be taken into consideration in interpreting, this Agreement.SECTION 9.12. Confidentiality. Each of the Administrative Agent, the Arrangers, theIssuing Banks, the Floorplan Funding Agent, the Swingline Lender and the Lenders agrees to maintainthe confidentiality of, and not disclose, the Information (as defined below), except that Information maybe disclosed (a) to its Related Parties, including accountants, legal counsel and other agents and advisors,it being understood that the Persons to whom such disclosure is made either are informed of theconfidential nature of such Information and instructed to keep such Information confidential or aresubject to customary confidentiality obligations of employment or professional practice, provided that thedisclosing Person shall be responsible for such Person’s compliance with keeping the Informationconfidential in accordance with this Section, (b) to the extent required or requested by any GovernmentalAuthority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners) (in which case such-142-
Person agrees to inform the Company promptly thereof prior to such disclosure to the extent practicableand not prohibited by applicable law (except with respect to any audit or examination conducted by bankaccountants or any Governmental Authority exercising examination or regulatory authority)), (c) to theextent required by applicable law or by any subpoena or similar legal process (in which case such Personagrees to inform the Company promptly thereof prior to such disclosure to the extent practicable and notprohibited by applicable law), (d) to any other party to this Agreement, (e) in connection with the exerciseof any remedies under this Agreement or any other Loan Document or any suit, action or proceedingrelating to this Agreement or any other Loan Document, the enforcement of rights hereunder orthereunder or any Transactions, (f) subject to an agreement containing confidentiality undertakingssubstantially similar to those of this Section (which shall be deemed to include those required to be madein order to obtain access to information posted on IntraLinks, SyndTrak or any other Platform), to (i) anyassignee of or Participant in (or its Related Parties), or any prospective assignee of or Participant in (or itsRelated Parties), any of its rights or obligations under this Agreement, (ii) any actual or prospectivecounterparty (or its Related Parties) to any swap or derivative transaction relating to the Company or anySubsidiary and their respective obligations or (iii) any actual or prospective credit insurance brokers orproviders for any credit insurance products relating to the Borrower’s obligations under this Agreement orthe other Loan Documents, (g) on a confidential basis to (i) any rating agency in connection with ratingthe Company or its Subsidiaries or the credit facilities provided for herein or (ii) the CUSIP ServiceBureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers withrespect to the credit facilities provided for herein, (h) with the prior written consent of the Company, (i) tomarket data collectors, similar service providers to the lending industry and service providers to theAdministrative Agent and the Lenders in connection with the administration and management of thisAgreement or any other Loan Documents; provided that such information is limited to the informationabout this Agreement and the other Loan Documents, (j) to the extent such Information (i) becomespublicly available other than as a result of a breach of this Section or other obligations owed to theBorrowers and their Subsidiaries, (ii) becomes available to the Administrative Agent, any Lender or anyAffiliate of any of the foregoing on a nonconfidential basis from a source other than the Company or anySubsidiary that is not known by the Administrative Agent, Lender or Affiliate to be prohibited fromdisclosing such Information to such Person by a legal, contractual, or fiduciary obligation owed to theCompany or any of its Subsidiaries or (iii) is independently developed by the Administrative Agent, anyLender or any Affiliate of the foregoing, or (k) to any credit insurance provider relating to the Companyand its Obligations. For purposes of this Section, “Information” means all information received from theCompany or any Subsidiary relating to the Company or any Subsidiary or its businesses, other than anysuch information that is available to the Administrative Agent, any Lender or any Affiliate of any of theforegoing on a nonconfidential basis prior to disclosure by the Company or any Subsidiary. It is agreedthat, notwithstanding the restrictions of any prior confidentiality agreement binding on the AdministrativeAgent or the Arrangers, such Persons may disclose Information as provided in this Section.SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the contrary, ifat any time the interest rate applicable to any Loan, together with all fees, charges and other amounts thatare treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed themaximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received orreserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payablein respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited tothe Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable inrespect of such Loan but were not payable as a result of the operation of this Section shall be cumulatedand the interest and Charges payable to such Lender in respect of other Loans or periods shall beincreased (but not above the Maximum Rate therefor) until such cumulated amount, together with interestthereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by suchLender. -143-
SECTION 9.14. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Borrowers and the Guarantors that pursuant tothe requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation it is required toobtain, verify and record information that identifies the Borrowers and the Guarantors, which informationincludes the name and address of the Borrowers and the Guarantors and other information that will allowsuch Lender or the Administrative Agent, as applicable, to identify the Borrowers and the Guarantors inaccordance with the USA PATRIOT Act and the Beneficial Ownership Regulation.SECTION 9.15. No Fiduciary Relationship. The Company, on behalf of itself and theSubsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and anycommunications in connection therewith, the Company, the Subsidiaries and their Affiliates, on the onehand, and the Administrative Agent, the Lenders and their Affiliates, on the other hand, will have abusiness relationship that does not create, by implication or otherwise, any fiduciary duty on the part ofthe Administrative Agent, the Lenders or their Affiliates, and no such duty will be deemed to have arisenin connection with any such transactions or communications. The Administrative Agent, the Arrangers,the Lenders and their Affiliates may be engaged, for their own accounts or the accounts of customers, in abroad range of transactions that involve interests that differ from those of the Company and its Affiliates,and none of the Administrative Agent, the Arrangers, the Lenders or their Affiliates has any obligation todisclose any of such interests to the Company or any of its Affiliates. To the fullest extent permitted bylaw, the Company hereby waives and releases any claims that it or any of its Affiliates may have againstthe Administrative Agent, the Arrangers, the Lenders or their Affiliates with respect to any breach oralleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplatedhereby. SECTION 9.16. Non-Public Information.(a) Each Lender acknowledges that all information, including requests for waivers andamendments, furnished by the Company or the Administrative Agent pursuant to or in connection with, orin the course of administering, this Agreement will be syndicate-level information, which may containMNPI. Each Lender represents to the Company and the Administrative Agent that (i) it has developedcompliance procedures regarding the use of MNPI and that it will handle MNPI in accordance with suchprocedures and applicable law, including Federal, state and foreign securities laws, and (ii) it hasidentified in its Administrative Questionnaire a credit contact who may receive information that maycontain MNPI in accordance with its compliance procedures and applicable law, including United States(Federal or state) and foreign securities laws.(b) The Company and each Lender acknowledges that, if information furnished by or onbehalf of the Company pursuant to or in connection with this Agreement is being distributed by theAdministrative Agent through the Platform, (i) the Administrative Agent may post any information thatthe Company has indicated as containing MNPI solely on that portion of the Platform designated forPrivate Side Lender Representatives and (ii) if the Company has not indicated whether any informationfurnished by it pursuant to or in connection with this Agreement contains MNPI, the AdministrativeAgent reserves the right to post such information solely on that portion of the Platform designated forPrivate Side Lender Representatives. The Company agrees to clearly designate all information providedto the Administrative Agent by or on behalf of the Company that is suitable to be made available toPublic Side Lender Representatives, and the Administrative Agent shall be entitled to rely on any suchdesignation by the Company without liability or responsibility for the independent verification thereof.(c) If the Company does not file this Agreement with the SEC, then the Company herebyauthorizes the Administrative Agent to distribute the execution version of this Agreement and the LoanDocuments to all Lenders, including their Public Side Lender Representatives. The Company-144-
acknowledges its understanding that Lenders, including their Public Side Lender Representatives, may betrading in securities of the Company and its Affiliates while in possession of the Loan Documents.(d) The Company represents and warrants that none of the information contained in the LoanDocuments constitutes or contains MNPI. To the extent that any of the executed Loan Documents at anytime constitutes MNPI, the Company agrees that it will promptly make such information publiclyavailable by press release or public filing with the SEC.SECTION 9.17. Judgment Currency.(a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sumowing hereunder in dollarsDollars into another currency, each party hereto agrees, to the fullest extentthat it may effectively do so, that the rate of exchange used shall be that at which in accordance withnormal banking procedures in the relevant jurisdiction dollarsDollars could be purchased with such othercurrency on the Business Day immediately preceding the day on which final judgment is given.(b) The obligations of each party hereto in respect of any sum due to any other party heretoor any holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding anyjudgment in a currency (the “Judgment Currency”) other than dollarsDollars, be discharged only to theextent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to beso due in the Judgment Currency, the Applicable Creditor may in accordance with normal bankingprocedures in the relevant jurisdiction purchase dollarsDollars with the Judgment Currency; if the amountof dollarsDollars so purchased is less than the sum originally due to the Applicable Creditor indollarsDollars, such party agrees, as a separate obligation and notwithstanding any such judgment, toindemnify the Applicable Creditor against such deficiency. The obligations of the parties contained inthis Section shall survive the termination of this Agreement and the payment of all other amounts owinghereunder.SECTION 9.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions.Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangementor understanding among any such parties, each party hereto acknowledges that any liability of anyAffected Financial Institution arising under any Loan Document may be subject to the Write-Down andConversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledgesand agrees to be bound by:(a) the application of any Write-Down and Conversion Powers by the applicableResolution Authority to any such liabilities arising hereunder which may be payable to it by anyparty hereto that is an Affected Financial Institution; and(b) the effects of any Bail-In Action on any such liability, including, if applicable:(i) a reduction in full or in part or cancellation of any such liability;(ii) a conversion of all, or a portion of, such liability into shares or otherinstruments of ownership in such Affected Financial Institution, its parent entity, or abridge institution that may be issued to it or otherwise conferred on it, and that suchshares or other instruments of ownership will be accepted by it in lieu of any rights withrespect to any such liability under this Agreement or any other Loan Document; or-145-
(iii) the variation of the terms of such liability in connection with the exerciseof the Write-Down and Conversion Powers of the applicable Resolution Authority.ARTICLE XGuaranteesSECTION 10.01. The Guarantees. To induce the Lenders to provide the Loans, the FloorplanLoan Payments and Letters of Credit described herein and in consideration of benefits expected to accrueto the Borrowers by reason of the Revolving Commitments and the Loans and Letters of Credit and forother good and valuable consideration, receipt of which is hereby acknowledged, each Guarantor partyhereto (including any Subsidiary executing an Additional Guarantor Supplement in substantially the formattached hereto as Exhibit F (an “Additional Guarantor Supplement”) or such other form reasonablyacceptable to the Administrative Agent and the Company) hereby unconditionally and irrevocablyguarantees jointly and severally to the Administrative Agent, for the ratable benefit of the AdministrativeAgent, the Lenders and the Issuing Banks, the due and punctual payment of all present and futureObligations of the Borrowers, in each case as and when the same shall become due and payable, whetherat stated maturity, by acceleration, or otherwise, according to the terms hereof or any other applicableLoan Document (including all interest, costs, fees, and charges after the entry of an order for relief againstthe Borrowers or such other obligor in a case under the United States Bankruptcy Code or any similarproceeding, whether or not such interest, costs, fees and charges would be an allowed claim against theBorrowers or any such obligor in any such proceeding). In case of failure by any Borrower punctually topay any Obligations guaranteed hereby, each Guarantor of the such Borrower’s Obligations under thisSection 10.01 hereby unconditionally agrees to make such payment or to cause such payment to be madepunctually as and when the same shall become due and payable, whether at stated maturity, byacceleration, or otherwise, and as if such payment were made by the Borrowers.SECTION 10.02. Guarantee Unconditional. The obligations of each Guarantor under thisArticle X shall be unconditional and absolute and, without limiting the generality of the foregoing, shallnot be released, discharged, or otherwise affected by:(a) any extension, renewal, settlement, compromise, waiver, or release in respect ofany obligation of any Borrower or other obligor or of any other guarantor under this Agreementor any other Loan Document or by operation of law or otherwise;(b) any modification or amendment of or supplement to this Agreement or any otherLoan Document;(c) any change in the corporate existence, structure, or ownership of, or anyinsolvency, bankruptcy, reorganization, or other similar proceeding affecting, any Borrower orother obligor, any other guarantor, or any of their respective assets, or any resulting release ordischarge of any obligation of any Borrower or other obligor or of any other guarantor containedin any Loan Document;(d) the existence of any claim, set-off, or other rights which a Borrower or otherobligor or any other guarantor may have at any time against the Administrative Agent, anyLender or any other Person, whether or not arising in connection herewith;-146-
(e) any failure to assert, or any assertion of, any claim or demand or any exercise of,or failure to exercise, any rights or remedies against a Borrower or other obligor, any otherguarantor, or any other Person or property such Person;(f) any application of any sums by whomsoever paid or howsoever realized to anyobligation of a Borrower or other obligor, regardless of what obligations of a Borrower or otherobligor remain unpaid;(g) any invalidity or unenforceability relating to or against a Borrower or otherobligor or any other guarantor for any reason of this Agreement or of any other Loan Documentor any provision of applicable law or regulation purporting to prohibit the payment by a Borroweror other obligor or any other guarantor of the principal of or interest on any Loan or any otheramount payable under the Loan Documents; or(h) any other act or omission to act or delay of any kind by the AdministrativeAgent, any Lender or any other Person or any other circumstance whatsoever (other than paymentor performance of the Obligations) that might, but for the provisions of this paragraph, constitutea legal or equitable discharge of the obligations of any Guarantor under this Article X.Each Subsidiary Guaranty and the Holdings Guaranty hereunder shall be a guaranty of paymentand not of collection.SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in CertainCircumstances. Except as set forth in Section 5.10 or the fifteenth paragraph of Article VIII, eachGuarantor’s obligations under this Article X shall remain in full force and effect until the TerminationDate. If at any time any payment of the principal of or interest on any Loan or any other amount payableby a Borrower or other obligor or any Guarantor under the Loan Documents is rescinded or must beotherwise restored or returned upon the insolvency, bankruptcy, or reorganization of a Borrower or otherobligor or of any Guarantor, or otherwise, each Guarantor’s obligations under this Article X with respectto such payment shall be reinstated at such time as though such payment had become due but had notbeen made at such time.SECTION 10.04. Subrogation. Each Guarantor agrees it will not exercise any rights which itmay acquire by way of subrogation by any payment made hereunder, or otherwise, until the TerminationDate. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time priorto the Termination Date, such amount shall be held in trust for the benefit of the Administrative Agentand the Lenders and shall forthwith be paid to the Administrative Agent for the benefit of the Lenders orbe credited and applied upon the Obligations, whether matured or unmatured, in accordance with theterms of this Agreement.SECTION 10.05. Waivers. Each Guarantor irrevocably waives (to the extent permitted byapplicable law) acceptance hereof, presentment, demand, protest, and any notice not provided for herein,as well as any requirement that at any time any action be taken by the Administrative Agent, any Lenderor any other Person against the Borrowers or other obligor, another guarantor, or any other Person.SECTION 10.06. Limit on Liability. The obligations of each Guarantor under this Article Xshall be limited to an aggregate amount equal to the largest amount that would not render such SubsidiaryGuaranty subject to avoidance under Section 548 of the United States Bankruptcy Code or anycomparable provisions of applicable law. -147-
SECTION 10.07. Stay of Acceleration. If acceleration of the time for payment of any amountpayable by any Borrower or other obligor under this Agreement or any other Loan Document is stayedupon the insolvency, bankruptcy or reorganization of any Borrower or such obligor, all such amountsotherwise subject to acceleration under the terms of this Agreement or the other Loan Documents shallnonetheless be payable by the Guarantors hereunder forthwith on demand by the Administrative Agentmade at the request of the Required Lenders.SECTION 10.08. Benefit to Guarantors. The Borrowers and the Guarantors are engaged inrelated businesses and integrated to such an extent that the financial strength and flexibility of theBorrowers has a direct impact on the success of each Guarantor. Each Guarantor will derive substantialdirect and indirect benefit from the extensions of credit hereunder.SECTION 10.09. Guarantor Covenants. Each Guarantor shall take such action as theCompany is required by this Agreement to cause such Guarantor to take, and shall refrain from takingsuch action as the Company is required by this Agreement to prohibit such Guarantor from taking.[Signature Pages Intentionally Omitted]-148-
