Exhibit 10.2.4

Execution Version

AMENDMENT NO. 4 TO THE ABL CREDIT AGREEMENT

AMENDMENT NO. 4 TO THE ABL CREDIT AGREEMENT, dated as of September 20, 2024 (this “Amendment”), among IMOLA ACQUISITION CORPORATION, a Delaware corporation (“Holdings”), INGRAM MICRO INC., a Delaware corporation (the “Lead Borrower”), each of the other Credit Parties party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), each of the Lenders party hereto, each of the Issuing Banks party hereto, JPMORGAN CHASE BANK, N.A., as the Swingline Lender (in such capacity, the “Swingline Lender”), each of INGRAM MICRO GLOBAL SERVICES B.V., INGRAM MICRO EUROPE B.V. and INGRAM MICRO GLOBAL HOLDINGS, C.V. (collectively the “Non-Credit Party Pledgors”) (solely with respect to Section 7 hereof) and each of the Replacement Lenders (as defined below) (in their capacity as such) (solely with respect to Section 2 hereof);

WHEREAS, reference is hereby made to the ABL Credit Agreement, dated as of July 2, 2021 (as amended by Amendment No. 1 to the ABL Credit Agreement, dated as of August 12, 2021 (“Amendment No. 1”), Amendment No. 2 to the ABL Credit Agreement, dated as of May 30, 2023 (“Amendment No. 2”), Amendment No. 3 to the ABL Credit Agreement, dated as of June 17, 2024 (“Amendment No. 3”), and as further amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof prior to the date hereof, the “Credit Agreement”; the Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”), among Holdings, the Lead Borrower, the other Borrowers from time to time party thereto, the Administrative Agent, the Collateral Agent and each Lender from time to time party thereto;

WHEREAS, pursuant to Sections 2.19 and 13.12(b) of the Credit Agreement, Lenders who do not consent to amendments requiring greater than a Required Revolving Lender vote can be compelled by the Lead Borrower to assign its Revolving Commitments and outstanding Revolving Loans to one or more Eligible Transferees if the Required Revolving Lenders have otherwise agreed to such amendments;

WHEREAS, immediately prior to the Amendment No. 4 Effective Date (as defined below), certain Replacement Lenders party hereto, pursuant to Sections 2.19 and 13.12(b) of the Credit Agreement, shall acquire all of the Revolving Commitments (the “Replaced Lender Commitments”) and any outstanding Revolving Loans (the “Replaced Lender Loans”) of the Replaced Lender (as defined below) under the Credit Agreement at such time and, following the satisfaction of the requirements set forth in Section 2 hereof, (x) the Replacement Lenders shall each become a Revolving Lender under the Credit Agreement, in each case, with respect to the Replaced Lender Commitments and any Replaced Lender Loans, and (y) each Replaced Lender shall cease to constitute a Lender under the Credit Agreement;

WHEREAS, pursuant to Section 13.12 of the Credit Agreement and except as otherwise expressly set forth therein, the Credit Agreement or any other Credit Document may be amended in a writing signed by the Credit Parties party thereto, the Administrative Agent and the Required Revolving Lenders (or, with respect to certain amendments, each Lender and each Issuing Bank);

WHEREAS, the Credit Parties party hereto, the Administrative Agent, each of the Lenders (immediately after giving effect to the Pre-Amendment Replacements (as defined below)) and each of the Issuing Banks have indicated their willingness, pursuant to Section 13.12 of the Credit Agreement, to (x) extend the Revolving Maturity Date under the Credit Agreement and (y) amend certain other terms of the Credit Agreement, in each case as set forth in Section 3 of this Amendment;

WHEREAS, this Amendment will become effective on the Amendment No. 4 Effective Date on the terms and subject to the conditions set forth herein; and

WHEREAS, JPMorgan Chase Bank, N.A. (or any of its affiliates as so designated by it to act in such capacity), BofA Securities, Inc., PNC Capital Markets LLC, Wells Fargo Bank, National Association, BNP Paribas Securities Corp., ING Capital LLC, BMO Capital Markets Corp., TD Bank, N.A., MUFG Bank, Ltd., Fifth Third Bank, National Association, U.S. Bank National Association, HSBC Securities (USA), Inc., Mizuho Bank, Ltd., RBC Capital Markets, LLC, The Bank of Nova Scotia, Morgan Stanley Senior Funding, Inc., Goldman Sachs Bank USA, Citibank, N.A., Barclays Bank PLC, Deutsche Bank Securities Inc., Societe Generale and Stifel Nicolaus and Company have been appointed and will act as the joint arrangers and bookrunners for this Amendment (in such capacity, the “Arrangers”).

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, after this Amendment becomes effective, refer to the Credit Agreement as amended hereby. This Amendment is a “Credit Document” as defined under the Credit Agreement.

Section 2. Replacement of Certain Existing Lenders.

(a) Immediately prior to giving effect to this Amendment on the Amendment No. 4 Effective Date, the Lead Borrower shall, pursuant to Section 2.19 and Section 13.12(b) of the Credit Agreement, replace UBS AG, Stamford Branch (the “Replaced Lender”), an existing Revolving Lender under the Credit Agreement that has declined to consent to the amendments set forth in this Amendment, with the Revolving Lenders party hereto (in such capacity, the “Replacement Lenders” and each a “Replacement Lender”) (the “Pre-Amendment Replacements”); provided that at the time of such Pre-Amendment Replacements:

(i) each of the Replacement Lenders, the Administrative Agent and the Swingline Lender shall execute this Amendment (and hereby agrees by its execution hereof, that (v) the Swingline Lender consents to each assignment of Revolving Commitments with respect to the U.S. Subfacility, (w) each Replacement Lender does not constitute a Defaulting Lender, (x) each Replacement Lender constitutes an Eligible Transferee under the Credit Agreement and is reasonably acceptable to the Administrative Agent, (y) as of the date hereof, each Replacement Lender complies with each of the applicable representations and warranties and the other provisions set forth in the Standard Terms and Conditions for Assignment and Assumption as set forth on Exhibit K of the Credit Agreement, and (z) the provisions of this Section 2, together with such other provisions of this Amendment that expressly refer to this Section 2, shall constitute the form of Assignment and Assumption relating to such Pre-Amendment Replacements as required under Sections 2.19 and 13.04 of the Credit Agreement, and such form is, solely for the purpose of the Pre-Amendment Replacements, acceptable to the Administrative Agent and the Lead Borrower); and

(ii) the Lead Borrower (or the Administrative Agent, on its behalf) shall pay to (x) the Revolving Lenders (including the Replaced Lender and the Replacement Lenders) an amount equal to (1) all accrued, but theretofore unpaid, interest on all outstanding Revolving Loans under the Credit Agreement, and (2) all accrued, but theretofore unpaid, Fees with respect to such Revolving Loans owed to the Revolving Lenders pursuant to Section 4.01 of the Credit Agreement, and (y) each Replaced Lender the principal amount of its pro rata share of all of the Replaced Lender Loans outstanding (if any) under the Credit Agreement immediately prior to the Amendment No. 4 Effective Date that are held by such Replaced Lender.

 

 

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(b) Following the consummation of the requirements in clauses (a)(i) and (a)(ii) above:

(i) the Administrative Agent is deemed to have executed Section 2 of this Amendment, such Section 2 constituting the Assignment and Assumption relating to the Pre-Amendment Replacements, on behalf of each Replaced Lender;

(ii) each (x) Replacement Lender shall be a Revolving Lender under, and be a party to, the Credit Agreement (without limiting any such Replacement Lender’s existing obligations thereunder) and shall have the rights and obligations of a Revolving Lender under the Credit Agreement, and (y) Replaced Lender shall cease to constitute a Revolving Lender under the Credit Agreement and be released from its obligations under the Credit Agreement, except with respect to indemnification provisions under the Credit Agreement (including, without limitation, Sections 2.16, 2.17, 5.05, 12.07 and 13.01 of the Credit Agreement), which shall survive as to such Replaced Lender with respect to actions or occurrences prior to it ceasing to be a Revolving Lender under the Credit Agreement; and

(iii) after giving effect to all of the Pre-Amendment Replacements, (x) the Replaced Lender Commitments and any Replaced Lender Loans shall be assigned and assumed by the Replacement Lenders in an aggregate amount equal its pro rata portion of the applicable Replaced Lender Commitments, and (y) each of the Revolving Lenders under the Credit Agreement shall have the applicable Revolving Commitments under the Credit Agreement as set forth opposite such Lender’s name on Schedule 1 attached hereto (and such Schedule 1 shall, for the avoidance of doubt, (i) reflect each Replacement Lender’s portion of the Replaced Lender Commitments, and (ii) supersede any prior, contemporaneous or subsequent oral agreements between any Replaced Lender and Replacement Lender as to the Pre-Amendment Replacements).

Section 3. Amendments to the Credit Agreement. Immediately after giving effect to the Pre-Amendment Replacements and effective as of the Amendment No. 4 Effective Date, the Credit Parties, the Administrative Agent, each of the Lenders (immediately after giving effect to the Pre-Amendment Replacements), each of the Issuing Banks and the Swingline Lender hereby agree to each of the following amendments:

(a) The Credit Agreement (excluding all schedules and exhibits thereto) is, effective as of the Amendment No. 4 Effective Date, 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 of the Amended Credit Agreement attached as Exhibit A hereto. As used in the Amended Credit Agreement, the terms “Agreement”, “this Agreement”, “herein”, “hereinafter”, “hereto”, “hereof”, and words of similar import shall, unless the context otherwise requires, mean, from and after the replacement of the terms of the Credit Agreement by the terms of the Amended Credit Agreement, the Amended Credit Agreement.

(b) Schedule 2.01 to the Credit Agreement is hereby replaced in its entirety with Schedule 1 attached hereto (and, in each case, for the avoidance of doubt, all other exhibits and schedules to the Credit Agreement shall remain in full force and effect).

Section 4. Representations and Warranties; No Default. By its execution of this Amendment, each Credit Party party hereto hereby represents and warrants, as of the date hereof, that:

 

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(a) Each Credit Party that is party hereto has the corporate, partnership, limited liability company or other applicable business entity power and authority, as the case may be, to execute, deliver and perform the terms and provisions of this Amendment (and by extension the Amended Credit Agreement) and has taken all necessary corporate, partnership, limited liability company or other applicable business entity action, as the case may be, to authorize the execution, delivery and performance by it of this Amendment by each Credit Party that is a party hereto. Each Credit Party that is a party hereto has duly executed and delivered this Amendment, and this Amendment constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and Legal Reservations;

(b) Neither the execution, delivery or performance by any Credit Party party hereto of this Amendment, nor compliance by it with the terms and provisions hereof, (i) will contravene any provision of any Requirement of Law, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the Security Documents) upon any of the property or assets of any Credit Party party hereto pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which any Credit Party party hereto is a party or by which it or any of its property or assets is bound or to which it may be subject (in the case of the preceding clauses (i) and (ii), other than in the case of any contravention, breach, default and/or conflict, in each case, that would not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect) or (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of any Credit Party party hereto;

(c) Except to the extent the failure to obtain or make the same would not reasonably be expected to have a Material Adverse Effect, no applicable order, consent, approval, license, authorization or validation of, or filing, recording or registration with (except for (x) those that have otherwise been obtained or made on or prior to the Amendment No. 4 Effective Date and which remain in full force and effect on the Amendment No. 4 Effective Date and (y) filings which are necessary to perfect the security interests created under the Security Documents), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained or made by, or on behalf of, any Credit Party party hereto to authorize, or is required to be obtained or made by, or on behalf of, any Credit Party party hereto in connection with, the execution, delivery and performance of this Amendment; and

(d) At the time of and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.

Section 5. Effectiveness. This Amendment shall become effective as of the date hereof and immediately after giving effect to the Pre-Amendment Replacements (the “Amendment No. 4 Effective Date”), subject to the satisfaction (or waiver by the Lenders) of the following conditions:

(a) Counterparts of this Amendment shall have been executed and delivered (by electronic transmission or otherwise) to the Administrative Agent by Holdings, the Lead Borrower, the other Credit Parties, each of the Non-Credit Party Pledgors (solely with respect to Section 7 hereof), the Administrative Agent, each of the Revolving Lenders (immediately after giving effect to the Pre-Amendment Replacements), each of the Issuing Banks and the Swingline Lender, and, solely with respect to Section 2 hereof, the Replacement Lenders (in their capacity as such);

(b) The Administrative Agent shall have received customary secretary’s certificates or director’s certificates for each Credit Party (together with applicable attachments), in each case, in form and substance reasonably satisfactory to the Administrative Agent;

 

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(c) the Administrative Agent shall have received good standing certificates (or equivalent evidence) (to the extent such concept exists in the applicable jurisdiction) and bring-down letters or facsimiles, if any (and to the extent such concept exists in the applicable jurisdiction), for the Credit Parties from their respective jurisdictions of organization;

(d) The Administrative Agent shall have received from (i) Willkie Farr & Gallagher LLP, special New York counsel to the U.S. Credit Parties, and (ii) local counsel listed on Schedule 2 hereto, opinions addressed to the Administrative Agent and each of the Lenders and dated the Amendment No. 4 Effective Date, in each case, in form and substance reasonably satisfactory to the Administrative Agent;

(e) Each of the representations and warranties made by any Credit Party party hereto as set forth in Section 4 of this Amendment, Section 8 of the Credit Agreement or in any other Credit Document are true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the Amendment No. 4 Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such date (without duplication of any materiality standard set in any such representation or warranty);

(f) No Default or Event of Default has occurred and is continuing;

(g) On the Amendment No. 4 Effective Date, the Lead Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Lead Borrower certifying as to the satisfaction of the conditions in clauses (e) and (f) of this Section 5;

(h) The Administrative Agent shall have received on or prior to the Amendment No. 4 Effective Date, (i) for the account of each Revolving Lender or Replacement Lender party hereto, as applicable, a non-refundable cash fee equal to (1) in the case of a Revolving Lender that consents to the Amendment and is (or that has an affiliate that is) a “Revolving Lender” under and as defined in the Credit Agreement immediately prior to the Amendment No. 4 Effective Date, the sum of (A) 0.15% of the aggregate principal amount of the Revolving Commitments provided by such Revolving Lender on the Amendment No. 4 Effective Date pursuant to the Amended Credit Agreement up to the amount of such Revolving Lender’s existing Revolving Commitments under the Credit Agreement immediately prior to the Effective Date and (B) 0.25% of the aggregate principal amount of the Revolving Commitments provided by such Revolving Lender on the Amendment No. 4 Effective Date pursuant to the Amended Credit Agreement in excess of such Revolving Lender’s existing Revolving Commitments under the Credit Agreement immediately prior to the Amendment No. 4 Effective Date and (2) in the case of each Replacement Lender that is not a “Revolving Lender” under and as defined in the Credit Agreement immediately prior to the Amendment No. 4 Effective Date, 0.25% of the aggregate principal amount of the Revolving Commitments provided by such Replacement Lender on the Amendment No. 4 Effective Date pursuant to the Amended Credit Agreement, (ii) for the account of each Revolving Lender under the Credit Agreement immediately prior to the Amendment No. 4 Effective Date, all accrued fees required to be paid under the Credit Agreement to, and not including, the Amendment No. 4 Effective Date and (iii) for the account of the Administrative Agent and the Arrangers, all fees required to be paid and reasonable out-of-pocket expenses of the Administrative Agent and the Arrangers (limited, in the case of legal expenses, to the reasonable out-of-pocket fees and disbursements of one primary counsel to the Administrative Agent and, if reasonably necessary, one local counsel in any relevant jurisdiction (which may include a single firm of counsel acting in multiple jurisdictions)) in connection with the preparation, execution and delivery of this Amendment and the other Credit Documents entered into in connection herewith, in each case, to the extent invoiced at least two (2) Business Days prior to the date hereof;

 

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(i) The Administrative Agent shall have received, in form and substance reasonably satisfactory to it, the results of customary bring-down Accounting and Corporate Regulatory Authority, Hong Kong Companies Registry, Official Receiver’s Office, composite litigation and cause book searches, UCC, PPSA, Personal Property Securities Register under the New Zealand PPSA, tax and judgment lien searches with respect to the applicable Credit Parties;

(j) The financing statements registered on the New Zealand PPSR in relation to the Security Documents governed by the laws of New Zealand shall be renewed and extended; and

(k) (i) Each Revolving Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent reasonably requested by such Person in writing at least ten (10) days prior to the Amendment No. 4 Effective Date, and (ii) to the extent any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), any Revolving Lender that has requested, in a written notice to the Lead Borrower at least ten (10) days prior to the Amendment No. 4 Effective Date, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation (a “Beneficial Ownership Certification”) shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Revolving Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).

(l) The Administrative Agent shall have received the documents set forth on Schedule 3 hereto duly executed and delivered by the relevant parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

Section 6. Fees Generally. All fees payable hereunder, including, without limitation, the fees payable to the Revolving Lenders, shall be in all respects fully earned, due and payable on the Amendment No. 4 Effective Date and non-refundable and non-creditable thereafter.

Section 7. Acknowledgments and Confirmations; Liens Unimpaired.

(a) Each Credit Party and each Non-Credit Party Pledgor party hereto hereby expressly acknowledges and consents, as applicable, to the terms of this Amendment (and, for the avoidance of doubt, ratifies the terms of Amendment No. 1, Amendment No. 2 and Amendment No. 3) and reaffirms, as of the date hereof, (i) the covenants and agreements contained in each Credit Document (and each joinder to such Credit Documents) to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby, (ii) subject to any limitations set forth in the Guaranty Agreement, its guarantee of the Obligations, and (iii) its prior grant of Liens on the Collateral to secure the Obligations owed or otherwise guaranteed by it pursuant to the Security Documents with all such Liens continuing in full force and effect after giving effect to this Amendment. Without limiting the generality of the foregoing, each Credit Party confirms that the Obligations secured under each Security Document shall extend to the Obligations under the Credit Agreement as amended by this Amendment.

(b) Without limiting the foregoing, each of the Credit Parties and the Non-Credit Party Pledgors party hereto consents to the amendments of the Credit Agreement effected by this Amendment and confirms, as applicable, that (i) its obligations as a Guarantor under the Guaranty Agreement to which it is a party are not discharged or otherwise affected by those amendments or the other provisions of this Amendment (and for the avoidance of doubt Amendment No. 1, Amendment No. 2 and Amendment No. 3) and shall accordingly, subject to any limitations set forth in the Guaranty Agreement, continue in full force and effect, (ii) its obligations under, and the Liens granted by it in and pursuant to, the Security

 

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Documents to which it is a party are not discharged or otherwise affected by those amendments or the other provisions of this Amendment (and for the avoidance of doubt Amendment No. 1, Amendment No. 2 and Amendment No. 3) and shall accordingly remain in full force and effect, (iii) the Obligations so guaranteed and secured shall, after the Amendment No. 4 Effective Date and subject to any limitations set forth in the Guaranty Agreement, extend to the Obligations under the Credit Documents (including under the Credit Agreement as amended pursuant to this Amendment).

(c) After giving effect to this Amendment, each of the Credit Parties and the Non-Credit Party Pledgors party hereto acknowledged and agrees that neither the modification of the Credit Agreement effected pursuant to this Amendment nor the execution, delivery, performance or effectiveness of this Amendment:

(i) impairs the validity, effectiveness or priority of the Liens granted pursuant to any Credit Document, and such Liens continue unimpaired and undischarged with the same priority applicable to such Liens immediately prior to giving effect to this Amendment to secure repayment of all Obligations, whether heretofore or hereafter incurred; or

(ii) requires that any new filings or registrations required under any Credit Document (including filings or registrations which are necessary to perfect or maintain, or required under applicable law with respect to, the security interests created under the Security Documents) to be made (in each case within any statutory time limit under applicable law) or other action required to be taken under any Credit Document be taken to perfect or to maintain the perfection of such Liens, except for (A) filings and registrations in connection with the documents set forth in Schedule 3 hereto and (B) such filings and other actions as have otherwise been made or taken on or prior to the Amendment No. 4 Effective Date and which remain in full force and effect on the Amendment No. 4 Effective Date.

Section 8. Amendment, Modification and Waiver. After the effectiveness hereof, this Amendment may not be amended, modified or waived except in accordance with Section 13.12 of the Amended Credit Agreement.

Section 9. Entire Agreement. This Amendment, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof. Except as expressly set forth herein, this Amendment (a) shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Credit Agreement or any other Credit Document and (b) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of either such agreement or any other Credit Document or be construed as a novation or rescission thereof, or serve to effect a novation or rescission of the obligations outstanding under the Credit Agreement or instruments guaranteeing or securing the same, which shall remain and continue in full force and effect and (c) is intended to result in the mere variation of the Credit Agreement or any other Credit Document, and not the creation of a new agreement.

Section 10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 13.08 OF THE CREDIT AGREEMENT IS HEREBY INCORPORATED MUTATIS MUTANDIS AND SHALL APPLY HERETO.

 

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Section 11. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 12. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery by facsimile or other electronic means of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment. The words “executed,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment or any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, 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, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. For purposes of this paragraph, “Electronic Signature” means an electronic symbol or process attached to a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Section 13. Miscellaneous Provisions. The provisions of Sections 13.01, 13.08, 13.09, 13.11, 13.13, 13.21 and 13.22 of the Amended Credit Agreement shall apply with like effect as to this Amendment.

Section 14. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

[Signature Page to Amendment No. 4 to the ABL Credit Agreement]

 

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INGRAM MICRO ASIA PTE. LTD.
As a Singapore Credit Party
By:		/s/ Luis Manuel Lanca Lourenco
		Name: Luis Manuel Lanca Lourenco
		Title: Director

 

[Signature Page to Amendment No. 4 to the ABL Credit Agreement]

INGRAM MICRO ASIA PACIFIC PTE. LTD.
As a Singapore Credit Party
By:		/s/ Luis Manuel Lanca Lourenco
		Name: Luis Manuel Lanca Lourenco
		Title: Director

 

[Signature Page to Amendment No. 4 to the ABL Credit Agreement]

INGRAM MICRO ASIA MARKETPLACE PTE. LTD.
As a Singapore Credit Party
By:		/s/ Luis Manuel Lanca Lourenco
		Name: Luis Manuel Lanca Lourenco
		Title: Director

 

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Director

 

 

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SCHEDULE 1

TO AMENDMENT

SCHEDULE 2.01

Commitments

Term Loan Commitments

 

Term Lender		Initial Term Loan Commitment
JPMorgan Chase Bank, N.A.		$	100,000,000
Bank of America, N.A.		$	100,000,000
PNC Bank, National Association		$	35,000,000
Wells Fargo Bank, National Association		$	31,800,000
BNP Paribas		$	25,000,000
Citibank, N.A.		$	25,000,000
ING Capital LLC		$	18,000,000
Morgan Stanley Bank, N.A.		$	62,200,000
Bank of Montreal		$	15,000,000
MUFG Bank, Ltd.		$	15,000,000
The Bank of Nova Scotia		$	7,500,000
Barclays Bank PLC		$	7,500,000
Credit Suisse AG, Cayman Islands Branch		$	7,500,000
Deutsche Bank AG New York Branch		$	7,500,000
HSBC Bank USA, National Association		$	7,500,000
Mizuho Bank, Ltd.		$	7,500,000
Royal Bank of Canada		$	7,500,000
Comerica Bank		$	4,500,000
Fifth Third Bank, National Association		$	4,500,000
TD Bank, N.A.		$	4,500,000
U.S. Bank National Association		$	4,500,000
Stifel Bank & Trust		$	1,500,000
Societe Generale		$	1,000,000
Total		$	500,000,000

 

Schedule 1-1

Revolving Commitments

 

Lender		U.S. Revolving Commitment				Canadian Revolving Commitment				APAC Revolving Commitment				UK Revolving Commitment				Treaty Passport Scheme reference number and jurisdiction of tax residence (if applicable)
JPMorgan Chase Bank, N.A.		$	327,857,142.86			$	0			$	72,857,142.86			$	36,428,571.43			13/M/0268710/DTTP – USA
JPMorgan Chase Bank, N.A., Toronto Branch		$	0			$	72,857,142.86			$	0			$	0			N/A
Bank of America, N.A.		$	327,857,142.86			$	0			$	72,857,142.86			$	36,428,571.43			N/A
Bank of America, N.A. (acting through its Canada Branch)		$	0			$	72,857,142.86			$	0			$	0			N/A
PNC Bank, National Association		$	231,428,571.43			$	51,428,571.43			$	51,428,571.43			$	25,714,285.71			13/P/63904/DTTP – USA
Wells Fargo Bank, National Association		$	204,428,571.43			$	0			$	45,428,571.43			$	22,714,285.71			13/W/61173/DTTP – USA
Wells Fargo Capital Finance Corporation Canada		$	0			$	45,428,571.43			$	0			$	0			N/A
BNP Paribas		$	170,357,142.86			$	37,857,142.86			$	37,857,142.86			$	18,928,571.43			5/B/255139/DTTP – France
ING Capital LLC		$	122,142,857.14			$	27,142,857.14			$	27,142,857.14			$	13,571,428.57			13/I/273576/DTTP – USA
Bank of Montreal		$	106,071,428.57			$	23,571,428.57			$	23,571,428.57			$	11,785,714.29			N/A
TD Bank, N.A.		$	86,785,714.29			$	0			$	19,285,714.29			$	9,642,857.14			13/T/358618/DTTP – USA
The Toronto-Dominion Bank		$	0			$	19,285,714.29			$	0			$	0			3/T/80000/DTTP – USA
MUFG Bank, Ltd.		$	70,714,285.71			$	15,714,285.71			$	15,714,285.71			$	7,857,142.86			13/U/216367/DTTP – USA

 

Schedule 1-2

Lender		U.S. Revolving Commitment				Canadian Revolving Commitment				APAC Revolving Commitment				UK Revolving Commitment				Treaty Passport Scheme reference number and jurisdiction of tax residence (if applicable)
Fifth Third Bank, National Association		$	64,285,714.29			$	14,285,714.29			$	14,285,714.29			$	7,142,857.14			N/A
U.S. Bank National Association		$	64,285,714.29			$	0			$	14,285,714.29			$	7,142,857.14			13/U/62184/DTTP – USA
U.S. Bank National Association, acting through its Canada Branch		$	0			$	14,285,714.29			$	0			$	0			N/A
The Bank of Nova Scotia		$	54,642,857.14			$	12,142,857.14			$	12,142,857.14			$	6,071,428.57			3/T/366714/DTTP – Canada
HSBC Bank USA, National Association		$	54,642,857.14			$	12,142,857.14			$	12,142,857.14			$	6,071,428.57			13/H/ 314375/DTTP – USA
Mizuho Bank, Ltd.		$	51,428,571.43			$	11,428,571.43			$	11,428,571.43			$	5,714,285.71
Royal Bank of Canada		$	48,214,285.71			$	10,714,285.71			$	10,714,285.71			$	5,357,142.86			3/R/70780/DTTP – Canada
Morgan Stanley Bank, N.A.		$	48,214,285.71			$	0			$	0			$	0			13/M/ 307216/DTTP – USA
Morgan Stanley Senior Funding, Inc.		$	0			$	10,714,285.71			$	10,714,285.71			$	5,357,142.86			13/M/ 227953/DTTP – USA
Goldman Sachs Bank USA		$	48,214,285.71			$	10,714,285.71			$	0			$	5,357,142.86			N/A
Goldman Sachs Lending Partners LLC		$	0			$	0			$	10,714,285.71			$	0			N/A
Citibank, N.A.		$	46,928,571.43			$	10,428,571.43			$	10,428,571.43			$	5,214,285.71			13/C/62301/DTTP – USA
Barclays Bank PLC		$	38,571,428.57			$	8,571,428.57			$	8,571,428.57			$	4,285,714.29			N/A
Deutsche Bank AG New York Branch		$	22,500,000.00			$	0			$	5,000,000.00			$	2,500,000.00			N/A

 

Schedule 1-3

Lender		U.S. Revolving Commitment				Canadian Revolving Commitment				APAC Revolving Commitment				UK Revolving Commitment				Treaty Passport Scheme reference number and jurisdiction of tax residence (if applicable)
Deutsche Bank AG Canada Branch		$	0			$	5,000,000.00			$	0			$	0			N/A
Societe Generale		$	12,857,142.86			$	2,857,142.86			$	2,857,142.86			$	1,428,571.43			N/A
Stifel Bank & Trust		$	9,642,857.14			$	2,142,857.14			$	2,142,857.14			$	1,071,428.57			N/A
Comerica Bank		$	35,357,142.86			$	7,857,142.86			$	7,857,142.86			$	3,928,571.43			13/C/65903/DTTP – USA
Crédit Agricole Corporate and Investment Bank		$	2,571,428.57			$	571,428.57			$	571,428.57			$	285,714.29			N/A
Total		$	2,250,000,000			$	500,000,000			$	500,000,000			$	250,000,000

LC Commitments

 

Issuing Bank		LC Commitments
JPMorgan Chase Bank, N.A.		$	67,131,647.78
Bank of America, N.A.		$	67,131,647.78
PNC Bank, National Association		$	41,848,299.91
Wells Fargo Bank, National Association		$	36,965,998.26
BNP Paribas		$	30,804,998.55
ING Capital LLC		$	22,086,602.73
Bank of Montreal		$	19,180,470.79
MUFG Bank, Ltd.		$	12,786,980.53
Fifth Third Bank, National Association		$	11,624,527.75
U.S. Bank National Association		$	11,624,527.75
The Bank of Nova Scotia		$	9,880,848.59
HSBC Bank USA, National Association		$	9,880,848.59
Mizuho Bank, Ltd.		$	9,299,622.20
Royal Bank of Canada		$	8,718,395.82
Morgan Stanley Bank, N.A.		$	8,718,395.82
Goldman Sachs Bank USA		$	8,718,395.82
Citibank, N.A.		$	8,485,905.26
Barclays Bank PLC		$	6,974,716.65

 

Schedule 1-4

Deutsche Bank AG New York Branch		$	4,068,584.71
Societe Generale		$	2,324,905.55
Stifel Bank & Trust		$	1,743,679.16
Total		$	400,000,000

 

Schedule 1-5

SCHEDULE 2

TO AMENDMENT

Jurisdictions of Local Counsel Opinions

 

1.	UK law opinion (capacity) of Mayer Brown International, LLP, English counsel to the Administrative Agent

 

2.	California, Missouri and Pennsylvania law opinion of Gordon Rees Scully Mansukhani, LLP, special California, Missouri and Pennsylvania counsel to the Credit Parties

 

3.	Indiana opinion of Taft Stettinius & Hollister LLP, special Indiana counsel to the Credit Parties

 

4.	Maryland and Tennessee opinion of Nelson Mullins Riley & Scarborough LLP, special Maryland and Tennessee counsel to the Credit Parties

 

5.	Ontario and British Columbia law opinion of Stikeman Elliott LLP, special Ontario and British Columbia counsel to the Credit Parties

 

6.	Australian law opinion (capacity) of King & Wood Mallesons, Australian counsel to the Administrative Agent

 

7.	Hong Kong law opinion (capacity and validity) of Mayer Brown PK Wong & Nair Pte. Ltd., Hong Kong counsel to the Administrative Agent

 

8.	Singapore law opinion (capacity) of Bird & Bird, Singapore counsel to the Singapore Credit Parties

 

9.	Singapore law opinion (validity) of Mayer Brown PK Wong & Nair Pte. Ltd., Singapore opinion counsel to the Administrative Agent

 

10.	New Zealand law opinion (capacity) of Bell Gully, New Zealand counsel to the Administrative Agent

 

11.	Dutch law opinion (capacity) of Baker & McKenzie Amsterdam N.V., Dutch counsel to the Non-Credit Party Pledgors.

 

Schedule 2-1

SCHEDULE 3

TO AMENDMENT

PART A – HONG KONG CREDIT PARTIES

 

1.	Hong Kong law governed confirmatory debenture to be entered into between the Hong Kong Credit Parties and the Collateral Agent

 

2.	Hong Kong law governed confirmatory shares charge to be entered into between Ingram Micro Asia Pte. Ltd. and the Collateral Agent over all the shares in Ingram Micro Hong Kong (Holding) Limited

 

3.	Hong Kong law governed confirmatory shares charge to be entered into between Ingram Micro Europe B.V. and the Collateral Agent over all the shares in Ingram Micro International Trading Limited

 

4.

To the extent applicable and required by the confirmatory debenture referred to in item 1 above to be delivered by the Amendment No. 4 Effective Date, the Hong Kong notice(s) of assignment of each Assigned Document (as defined in the confirmatory debenture referred to in item 1 above) to be delivered by the applicable Hong Kong Credit Parties

 

5.

To the extent applicable and required by the confirmatory debenture referred to in item 1 above to be delivered by the Amendment No. 4 Effective Date, the Hong Kong deposit notice(s) to be delivered by the applicable Hong Kong Credit Parties with respect to Collection Accounts and Eligible Cash Accounts (as defined in the confirmatory debenture referred to in item 1 above) of the Hong Kong Credit Parties.

 

6.

To the extent applicable and required by the confirmatory debenture referred to in item 1 above to be delivered by the Amendment No. 4 Effective Date, the Hong Kong notice(s) of charge of Accounts (as defined in the confirmatory debenture referred to in item 1 above) to be delivered by the applicable Hong Kong Credit Parties

 

7.

To the extent not already delivered pursuant to the Hong Kong Security Documents signed but undated resignation letter of each director of Ingram Micro (China) Limited, Ingram Micro Hong Kong (Holding) Limited and Ingram Micro International Trading Limited delivered to the Collateral Agent (or its nominee)

 

8.

Signed in blank but undated board resolutions of Ingram Micro (China) Limited, Ingram Micro Hong Kong (Holding) Limited and Ingram Micro International Trading Limited in the form attached in the relevant schedules to the confirmatory debenture referred to in item 1 above (in the case of Ingram Micro (China) Limited), the applicable confirmatory shares charge referred to in item 2 above (in the case of Ingram Micro Hong Kong (Holding) Limited) and the applicable confirmatory shares charge referred to in item 3 above (in the case of Ingram Micro International Trading Limited)

 

9.	Signed and dated letters of authority of each director of Ingram Micro (China) Limited, Ingram Micro Hong Kong (Holding) Limited and Ingram Micro International Trading Limited delivered to the Collateral Agent (or its nominee)

 

10.	Signed in blank but undated contract note and instrument of transfer for the shares in Ingram Micro International Trading Limited in the forms attached in the relevant schedules to the confirmatory shares charge referred to in item 3 above.

PART B - SINGAPORE CREDIT PARTIES

 

Schedule 3-1

11.	Singapore law governed confirmatory debenture to be entered into between the Singapore Credit Parties and the Collateral Agent

 

12.	Singapore law governed confirmatory shares charge to be entered into between Ingram Micro Americas Inc. and the Collateral Agent over the shares in Ingram Micro Asia Pacific Pte. Ltd.

 

13.	Singapore law governed confirmatory shares charge to be entered into between Ingram Micro Global Services B.V. and the Collateral Agent over the shares in Ingram Micro Asia Marketplace Pte. Ltd.

 

14.

To the extent applicable and required by the confirmatory debenture referred to in item 10 above to be delivered by the Amendment No.4 Effective Date, the Singapore notice(s) of assignment of Assigned Document (as defined in the confirmatory debenture referred to in item 10 above) to be delivered by the applicable Singapore Credit Parties

 

15.

To the extent applicable and required by the confirmatory debenture referred to in item 10 above to be delivered by the Amendment No.4 Effective Date, the Singapore notice(s) of charge of assignment of Insurance (as defined in the confirmatory debenture referred to in item 10 above) to be delivered by the applicable Singapore Credit Parties

 

16.

To the extent applicable and required by the confirmatory debenture referred to in item 10 above to be delivered by the Amendment No.4 Effective Date, the Singapore notice(s) of charge of Collection Accounts and Eligible Cash Accounts (as defined in the confirmatory debenture referred to in item 10 above) to be delivered by the applicable Singapore Credit Parties

 

17.

To the extent applicable and required by the confirmatory debenture referred to in item 10 above to be delivered by the Amendment No.4 Effective Date, the Singapore notice(s) of security over Accounts (as defined in the confirmatory debenture referred to in item 10 above) to be delivered by the applicable Singapore Credit Parties

 

18.	Signed but undated instruments of transfer for the shares in Ingram Micro Asia Pacific Pte. Ltd., Mobile Support Services Pte. Ltd. and Ingram Micro Asia Marketplace Pte. Ltd. delivered to the Collateral Agent (or its nominee)

 

19.

Signed in blank but undated board resolutions of Ingram Micro Asia Pacific Pte. Ltd. and Ingram Micro Asia Marketplace Pte. Ltd. in the form attached in the relevant schedules to the applicable confirmatory shares charge referred to in item 12 above (in the case of Ingram Micro Asia Pacific Pte. Ltd.) and the applicable confirmatory shares charge referred to in item 13 above (in the case of Ingram Micro Asia Marketplace Pte. Ltd.)

 

Schedule 3-2

EXHIBIT A

TO AMENDMENT

[Amended Credit Agreement]

EXHIBIT A

ABL CREDIT AGREEMENT

among

IMOLA ACQUISITION CORPORATION,

as HOLDINGS,

IMOLA MERGER CORPORATION,

as INITIAL BORROWER

(prior to the consummation of the Closing Date Mergers),

INGRAM MICRO INC.,

as LEAD BORROWER

(following the consummation of the Closing Date Mergers),

The parties listed as Borrowers on the signature pages hereto,

as BORROWERS

VARIOUS LENDERS AND ISSUING BANKS

and

JPMORGAN CHASE BANK, N.A.,

as ADMINISTRATIVE AGENT, COLLATERAL AGENT and SWINGLINE LENDER

 

 

Dated as of July 2, 2021,

as amended by Amendment No. 1, dated as of August 12, 2021,

as amended by Amendment No. 2, dated as of May 30, 2023,

and as further amended by Amendment No. 3, dated as of June 17, 2024, and

as further amended by Amendment No. 4, dated as of September 20, 2024

 

 

JPMORGAN CHASE BANK, N.A.,

BOFA SECURITIES, INC.,

MORGAN STANLEY SENIOR FUNDING, INC.,

BNP PARIBAS SECURITIES CORP.,

CITIBANK, N.A.,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

BMO CAPITAL MARKETS CORP.,

MUFG UNION BANK, N.ALTD.,

PNC CAPITAL MARKETS LLC,

DEUTSCHE BANK SECURITIES INC.,

BARCLAYS BANK PLC,

CREDIT SUISSE LOAN FUNDING LLC,

HSBC SECURITIES (USA), INC.,

MIZUHO BANK, LTD.,

RBC CAPITAL MARKETS, LLC,

THE BANK OF NOVA SCOTIA,

ING CAPITAL LLC,

SOCIETE GENERALE and,

STIFEL NICOLAUS AND COMPANY, and

GOLDMAN SACHS BANK USA

as JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS

TABLE OF CONTENTS

 

				Page
SECTION 1.		DEFINITIONS AND ACCOUNTING TERMS			1
1.01		Defined Terms			1
1.02		Terms Generally and Certain Interpretive Provisions			100
1.03		Limited Condition Transactions			101
1.04		Classification and Reclassification			102
1.05		Currency Equivalents Generally; Exchange Rates			102
1.06		Additional Alternative Currencies			103
1.07		Divisions			103
1.08		Treatment of Subsidiaries Prior to Joinder			103
1.09		Interest Rates; Benchmark Notification			104
1.10		Classification of Loans and Borrowings			103104
1.11		Interpretation (Canada)			104
1.12		Interpretation (Australia) and Banking Code of Practice (Australia)			105
1.13		Interpretation (New Zealand)			105
SECTION 2.		AMOUNT AND TERMS OF CREDIT			105
2.01		The Commitments and Loans			105
2.02		Minimum Amount of Each Borrowing			108
2.03		Notice of Borrowings			108
2.04		Disbursement of Funds; Evidence of Debt; Repayment of Revolving Loans; Pro Rata Treatment; Sharing of Set-offs			111
2.05		Notes			113
2.06		Interest Elections			113
2.07		Pro Rata Term Borrowings			115
2.08		Interest			115
2.09		[Reserved]			117
2.10		[Reserved]			117
2.11		[Reserved]			117
2.12		Defaulting Lenders			117
2.13		Swingline Loans			118
2.14		Letters of Credit			119
2.15		Settlement Amongst Lenders			125
2.16		Increased Costs, Illegality, etc.			125
2.17		Compensation			126
2.18		Change of Lending Office			127
2.19		Replacement of Lenders			127
2.20		Extended Term Loans and Extended Revolving Commitments			128
2.21		Incremental Commitments			130
2.22		Alternate Rate of Interest			134
2.23		[Reserved]			137
2.24		Refinancing Term Loans			137
2.25		Reverse Dutch Auction Repurchases			138
2.26		Open Market Purchases			140
2.27		Sponsor and Affiliate Term Loan Purchases			140
2.28		Lead Borrower and Applicable Administrative Borrower			141
2.29		Overadvances			142
2.30		Protective Advances			142
2.31		Reallocation of Commitments			143

 

-ii-

SECTION 3.		[RESERVED]			143
SECTION 4.		FEES; REDUCTIONS OF COMMITMENT			144
4.01		Fees			144
4.02		Mandatory Reduction of Term Loan Commitments			144
4.03		Termination and Reduction of Revolving Commitments			145
SECTION 5.		PREPAYMENTS; PAYMENTS; TAXES			145
5.01		Voluntary Prepayments			145
5.02		Mandatory Repayments			146
5.03		Notice of Prepayment of Revolving Loans			152
5.04		Method and Place of Payment			152
5.05		Net Payments			153
5.06		Australian Tax Matters.			159
SECTION 6(A)		CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE CLOSING DATE			159
Section 6(A).01		ABL Credit Agreement			159
Section 6(A).02		CF Term Loan Credit Agreement and Indenture			159
Section 6(A).03		Opinions of Counsel			159
Section 6(A).04		Corporate Documents; Proceedings, etc.			159
Section 6(A).05		Acquisition			160
Section 6(A).06		Equity Contribution			160
Section 6(A).07		Intercreditor Agreement			160
Section 6(A).08		Refinancing			160
Section 6(A).09		Security Agreements			160
Section 6(A).10		Guaranty Agreement			161
Section 6(A).11		Financial Statements; Pro Forma Balance Sheets; Projections			161
Section 6(A).12		Solvency Certificate			162
Section 6(A).13		Fees, etc.			162
Section 6(A).14		Representations and Warranties			162
Section 6(A).15		Patriot Act			162
Section 6(A).16		Notice of Borrowing			162
Section 6(A).17		Officer’s Certificate			162
Section 6(A).18		Material Adverse Effect			162
Section 6(A).19		Borrowing Base Certificate			162
SECTION 6(B).		CONDITIONS PRECEDENT TO BORROWINGS UNDER APAC SUBFACILITY			163
Section 6(B).01		Corporate Documents.			163
Section 6(B).02		Security Documents			163
Section 6(B).03		Opinions of Counsel			163
Section 6(B).04		ABL Credit Agreement and Guaranty Agreement			163
Section 6(B).05		Borrowing Base Certificate			163
Section 6(B).06		Releases			163
Section 6(B).07		Financial Assistance Whitewash			163
Section 6(B).08		“Know Your Customer”			163
SECTION 6(C).		CONDITIONS PRECEDENT TO BORROWINGS UNDER UK SUBFACILITY			164
Section 6(C).01		Corporate Documents.			164
Section 6(C).02		Security Documents			164
Section 6(C).03		Opinions of Counsel			164

 

-iii-

Section 6(C).04		ABL Credit Agreement Guaranty Agreement			164
Section 6(C).05		Borrowing Base Certificate			164
Section 6(C).06		“Know Your Customer”			164
SECTION 7.		CONDITIONS PRECEDENT TO ALL CREDIT EVENTS AFTER THE CLOSING DATE			164
7.01		Notice of Borrowing			165
7.02		Availability			165
7.03		No Default			165
7.04		Representations and Warranties			165
7.05		Know Your Customer			165
SECTION 8.		REPRESENTATIONS, WARRANTIES AND AGREEMENTS			165
8.01		Organizational Status			165
8.02		Power and Authority; Enforceability			166
8.03		No Violation			166
8.04		Approvals			166
8.05		Financial Statements; Financial Condition; Projections			166
8.06		Litigation			167
8.07		True and Complete Disclosure			167
8.08		Use of Proceeds; Margin Regulations			167
8.09		Tax Returns and Payments			168
8.10		ERISA			168
8.11		The Security Documents			170
8.12		Properties			171
8.13		Capitalization			171
8.14		Subsidiaries			171
8.15		Compliance with Statutes, Sanctions; Patriot Act; Anti-Corruption Laws			172
8.16		Investment Company Act			172
8.17		[Reserved]			172
8.18		Environmental Matters			172
8.19		Labor Relations			173
8.20		Intellectual Property			173
8.21		Affected Financial Institutions			173
8.22		Borrowing Base Certificate			173
8.23		Centre of Main Interests and Establishments			173
8.24		Common Enterprise			173
SECTION 9.		AFFIRMATIVE COVENANTS			173
9.01		Information Covenants			174
9.02		Books, Records and Inspections; Conference Calls			178
9.03		Maintenance of Property; Insurance			179
9.04		Existence; Franchises			179
9.05		Compliance with Statutes, etc.			180
9.06		Compliance with Environmental Laws			180
9.07		Pension and Benefit Plans			180
9.08		End of Fiscal Years; Fiscal Quarters			181
9.09		[Reserved]			181
9.10		Payment of Taxes			181
9.11		Use of Proceeds			181
9.12		Additional Security; Further Assurances; etc.			182
9.13		Post-Closing Actions			184
9.14		Permitted Acquisitions			184

 

-iv-

9.15		Credit Ratings			184
9.16		Designation of Subsidiaries			185
9.17		Collateral Monitoring and Reporting			185
9.18		Centre of Main Interests			190
9.19		Financial Assistance			190
9.20		People with Significant Control Regime			191
9.21		Australian PPSA Undertaking and New Zealand PPSA Undertaking			191
9.22		Australian Tax Consolidation			191
9.23		Australian GST Group			192
SECTION 10.		NEGATIVE COVENANTS			192
10.01		Liens			192
10.02		Consolidation, Merger, or Sale of Assets, etc.			197
10.03		Dividends			201
10.04		Indebtedness			204
10.05		Advances, Investments and Loans			209
10.06		Transactions with Affiliates			213
10.07		Limitations on Payments, Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.			215
10.08		Limitation on Certain Restrictions on Subsidiaries			216
10.09		Business			217
10.10		Negative Pledges			218
10.11		Financial Covenant			219
10.12		ARPA Covenants			219
SECTION 11.		EVENTS OF DEFAULT			220
11.01		Payments			220
11.02		Representations, etc.			220
11.03		Covenants			221
11.04		Default Under Other Agreements			221
11.05		Bankruptcy, etc.			221
11.06		ERISA; Foreign Pension Plans			223
11.07		Security Documents			223
11.08		Guarantees; Other Credit Documents			223
11.09		Judgments			223
11.10		Change of Control			224
11.11		Application of Funds			224
SECTION 12.		THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT			225
12.01		Appointment and Authorization			225
12.02		Delegation of Duties			226
12.03		Exculpatory Provisions			226
12.04		Reliance by Administrative Agent and Collateral Agent			227
12.05		No Other Duties, Etc.			227
12.06		Non-reliance on Administrative Agent, Collateral Agent and Other Lenders			227
12.07		Indemnification by the Lenders			228
12.08		Rights as a Lender			228
12.09		Administrative Agent May File Proofs of Claim; Credit Bidding			228
12.10		Resignation of the Agents			229
12.11		Collateral Matters and Guaranty Matters			230
12.12		Bank Product Providers			231
12.13		Withholding Taxes			232
12.14		Certain ERISA Matters			232

 

-v-

12.15		Collateral Agent as Trustee			233
12.16		Acknowledgments of Lenders			233
12.17		Quebec Liens (Hypothecs)			234
12.18		German and Austrian Security Provisions; Parallel Debts			234
12.19		Dutch Parallel Debt			236
12.20		Spanish particularities in relation to the Collateral Agent			237
12.21		Swiss Security Provisions			239
12.22		Belgian Particularities in Relation to the Collateral Agent			239
12.23		French Particularities in Relation to the Collateral Agent			240
SECTION 13.		MISCELLANEOUS			240
13.01		Payment of Expenses, etc.			240
13.02		Right of Setoff			242
13.03		Notices			242
13.04		Benefit of Agreement; Assignments; Participations, etc.			243
13.05		No Waiver; Remedies Cumulative			249
13.06		Payments Pro Rata			249
13.07		Calculations; Computations			250
13.08		GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL			251
13.09		Counterparts; Integration; Effectiveness			251
13.10		Interest Rate Limitations			252
13.11		Headings Descriptive			252
13.12		Amendment or Waiver; etc.			252
13.13		Survival			257
13.14		[Reserved]			257
13.15		Confidentiality			257
13.16		Patriot Act Notice; Canadian AML			258
13.17		Waiver of Sovereign Immunity			259
13.18		[Reserved]			259
13.19		INTERCREDITOR AGREEMENTS			259
13.20		Absence of Fiduciary Relationship			260
13.21		Judgment Currency			260
13.22		Electronic Execution of Documents			261
13.23		Entire Agreement			261
13.24		Appointment of Collateral Agent as Security Trustee			261
13.25		[Reserved]			266
13.26		Acknowledgement and Consent to Bail-In of Affected Financial Institutions			266
13.27		Acknowledgement Regarding Any Supported QFCs			267
13.28		Spanish Particularities Related to Enforcement			267

 

-vi-

SCHEDULE 1.01(B)		Unrestricted Subsidiaries
SCHEDULE 2.01		Commitments
SCHEDULE 2.02		Designated Accounts
SCHEDULE 2.25(a)		Reverse Dutch Auction Procedures
SCHEDULE 6.03		Jurisdictions of Local Counsel Opinions
SCHEDULE 6.09		Foreign Security Documents
SCHEDULE 8.14		Subsidiaries
SCHEDULE 8.19		Labor Matters
SCHEDULE 9.13		Post-Closing Actions
SCHEDULE 10.01(iii)		Existing Liens
SCHEDULE 10.04		Existing Indebtedness
SCHEDULE 10.05(iii)		Existing Investments
SCHEDULE 10.06(viii)		Affiliate Transactions
SCHEDULE 13.03		Notice Information
EXHIBIT A-1		Form of Notice of Borrowing
EXHIBIT A-2		Form of Notice of Swingline Borrowing
EXHIBIT A-3		Form of Notice of Conversion/Continuation
EXHIBIT B-1		Form of Revolving Note
EXHIBIT B-2		Form of Swingline Note
EXHIBIT B-3		Form of Term Note
EXHIBIT C-1		Form of U.S. Tax Compliance Certificate for Foreign Lenders that Are Not Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT C-2		Form of U.S. Tax Compliance Certificate for Foreign Participants that Are Not Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT C-3		Form of U.S. Tax Compliance Certificate for Foreign Participants that Are Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT C-4		Form of U.S. Tax Compliance Certificate for Foreign Lenders that Are Partnerships for U.S. Federal Income Tax Purposes
EXHIBIT D		Form of Notice of Loan Prepayment
EXHIBIT E		Form of Officers’ Certificate
EXHIBIT F		Form of Notice of Secured Bank Product Provider
EXHIBIT G		[Reserved]
EXHIBIT H		Form of Guaranty Agreement
EXHIBIT I		Form of Solvency Certificate
EXHIBIT J		Form of Compliance Certificate
EXHIBIT K		Form of Assignment and Assumption
EXHIBIT L		Form of ABL Intercreditor Agreement
EXHIBIT M		[Reserved]
EXHIBIT N		Form of Intercompany Subordination Agreement

 

-vii-

THIS ABL CREDIT AGREEMENT, dated as of July 2, 2021, as amended by Amendment No. 1, dated as of August 12, 2021, as amended by Amendment No. 2, dated as of May 30, 2023, and as further amended by Amendment No. 3, dated as of June 17, 2024, and as further amended by Amendment No. 4, dated as of September 20, 2024, among IMOLA ACQUISITION CORPORATION, a Delaware corporation (“Holdings”), IMOLA MERGER CORPORATION, a Delaware corporation (the “Initial Borrower”), following the consummation of the Closing Date Mergers, INGRAM MICRO INC., a Delaware corporation (“Imola” and, together with the Initial Borrower, the “Lead Borrower”), each of the other Borrowers (as hereinafter defined) party hereto, the Lenders and Issuing Banks party hereto from time to time and JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as the Administrative Agent, the Collateral Agent and Swingline Lender. All capitalized terms used herein and defined in Section 1 are used herein as therein defined.

W I T N E S S E T H:

WHEREAS, pursuant to the Acquisition Agreement, Holdings will acquire (the “Acquisition”), directly or indirectly, all of the outstanding equity interests of GCL Investment Management Inc., a Delaware corporation (the “Target”), through the merger of the Initial Borrower with and into the Target (the “Target Merger”), with the Target continuing as the surviving corporation as a direct, wholly-owned subsidiary of Holdings.

WHEREAS, (a) immediately following the Target Merger, Holdings will cause the merger of the Target with and into GCL Investment Holdings Inc., a Delaware corporation (“GCL Holdings”) (“Merger 2”), with GCL Holdings continuing as the surviving corporation as a direct, wholly-owned subsidiary of Holdings and (b) immediately following Merger 2, Holdings will cause the merger of GCL Holdings with and into the Lead Borrower (“Merger 3” and, together with the Target Merger and Merger 2, the “Closing Date Mergers”), with the Lead Borrower as the surviving corporation as a direct, wholly-owned subsidiary of Holdings.

WHEREAS, the Borrowers have requested that (a) the Lenders extend credit in the form of making available Revolving Commitments and, from time to time, Revolving Loans (if any) under such Revolving Commitments, in an aggregate principal amount at any time outstanding not to exceed $3,500,000,000 (or such higher amount as permitted hereunder), consisting of (1) a U.S. Subfacility in an aggregate principal amount at any time outstanding not to exceed $2,250,000,000, (2) a UK Subfacility in an aggregate principal amount at any time outstanding not to exceed $250,000,000, (3) a Canadian Subfacility in an aggregate principal amount at any time outstanding not to exceed $500,000,000 and (4) an APAC Subfacility in an aggregate principal amount at any time outstanding not to exceed $500,000,000, in each case as may be reallocated pursuant to the terms of this Agreement, (b) the Issuing Banks make available LC Commitments to issue Letters of Credit and, from time to time, issue Letters of Credit (if any) under such LC Commitments, in an aggregate stated amount at any time outstanding not to exceed $400,000,000, (c) the Swingline Lender extend credit in the form of making available its Swingline Commitment and, from time to time, Swingline Loans (if any) under such Swingline Commitment, in aggregate principal amount at any time outstanding not to exceed $400,000,000 and (d) the Lenders make Initial Term Loans under this Agreement, substantially simultaneously with the Acquisition, in an aggregate principal amount of $500,000,000. The Borrowers will use the proceeds of the Initial Term Loans to, among other things, fund a portion of the consideration for the Transaction.

WHEREAS, the Lenders and Issuing Banks have indicated their willingness to make available such Revolving Commitments, Revolving Loans, LC Commitments, Letters of Credit, Swingline Commitments, Swingline Loans and Initial Term Loans to the Borrowers and their Restricted Subsidiaries, in each case on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Section 1. Definitions and Accounting Terms.

1.01 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

“ABL Collateral” shall have the meaning provided in the ABL Intercreditor Agreement.

 

1

“ABL Intercreditor Agreement” shall mean that certain ABL Intercreditor Agreement in the form of Exhibit L, dated as of the Closing Date, by and among the Collateral Agent, the CF Term Agent and the Secured Notes Agent, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof.

“Account Debtor” shall mean any Person who may become obligated to another Person under, with respect to, or on account of, an Account.

“Accounts” shall mean all “accounts,” as such term is defined in the UCC as in effect on the Closing Date in the State of New York, in which any applicable Person now or hereafter has rights and shall include all rights to payment for goods sold or leased, or for services rendered and for purposes of any Acquired Account any “Account Receivable” as defined in the ARPA (or any equivalent term as defined in the ARPA, as the case may be) (including as may be modified by the Schedules thereto).

“Accounting Change” shall have the meaning provided in Section 13.07(b).

“Acquired Account” shall mean any Accounts arising out of a sale or lease made or services rendered by any of the ARPA Sellers and sold or otherwise transferred to the ARPA Purchaser pursuant to the terms of the ARPA.

“Acquired Entity or Business” shall mean either (x) the assets constituting a business, division, product line, manufacturing facility or distribution facility of any Person not already a Subsidiary of the Lead Borrower, which assets shall, as a result of the respective acquisition, become assets of the Lead Borrower or a Restricted Subsidiary of the Lead Borrower (or assets of a Person who shall be merged or amalgamated with and into the Lead Borrower or a Restricted Subsidiary of the Lead Borrower) or (y) a majority of the Equity Interests of any Person, which Person shall, as a result of the respective acquisition, become a Restricted Subsidiary of the Lead Borrower (or shall be merged or amalgamated with and into the Lead Borrower or a Restricted Subsidiary of the Lead Borrower).

“Acquisition” shall have the meaning provided in the recitals hereto.

“Acquisition Agreement” shall mean that certain Agreement and Plan of Merger (including the schedules, exhibits and disclosure letters thereto), dated as of December 9, 2020, by and among Seller, Seller Parent, the Target, Imola, Holdings and the Initial Borrower.

“Acquisition Agreement Representations” shall mean such of the representations made by the Seller with respect to the Target in the Acquisition Agreement as are material to the interests of the Agents and their Affiliates that are Lenders on the Closing Date, but only to the extent that the Lead Borrower or its Affiliates have the right (taking into account any applicable cure periods) to terminate their obligations (or refuse to consummate the Acquisition) under the Acquisition Agreement or not to close thereunder as a result of the failure of such representations and warranties to be true and correct, in each case, without liability to the Lead Borrower or its Affiliates.

“Additional Intercreditor Agreement” shall mean each of the Additional Junior Lien Intercreditor Agreement and the Additional Pari Passu Intercreditor Agreement.

“Additional Junior Lien Intercreditor Agreement” shall mean an intercreditor agreement among the Collateral Agent and one or more Junior Representatives for holders of Permitted Junior Debt (or Permitted Refinancing Indebtedness in respect thereof) providing that, inter alia, the Liens on the Collateral in favor of the Collateral Agent (for the benefit of the Secured Creditors) shall be senior to such Liens in favor of the Junior Representatives (for the benefit of the holders of Permitted Junior Debt (or Permitted Refinancing Indebtedness in respect thereof)), as such intercreditor agreement may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof. Any Additional Junior Lien Intercreditor Agreement shall be in a form customary at such time for transactions of the type contemplated thereby and reasonably satisfactory to the Administrative Agent and the Lead Borrower (it being understood that the terms of the ABL Intercreditor Agreement are reasonably satisfactory).

 

2

“Additional Pari Passu Intercreditor Agreement” shall mean an intercreditor agreement among the Collateral Agent and one or more Pari Passu Representatives for holders of Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in each case, Permitted Refinancing Indebtedness in respect thereof) providing that, inter alia, the Liens on the Collateral in favor of the Collateral Agent (for the benefit of the Secured Creditors) shall be pari passu with such Liens in favor of the Pari Passu Representatives (for the benefit of the holders of Permitted Pari Passu Notes or Permitted Pari Passu Loans (or, in each case, Permitted Refinancing Indebtedness in respect thereof)), as such intercreditor agreement may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof. Any Additional Pari Passu Intercreditor Agreement shall be in a form customary at such time for transactions of the type contemplated thereby and otherwise reasonably satisfactory to the Administrative Agent and the Lead Borrower (it being understood that the terms of the Pari Passu Lien Intercreditor Agreement (as defined in the CF Term Loan Credit Agreement) are reasonably satisfactory).

“Additional Security Documents” shall have the meaning provided in Section 9.12(a).

“Adjusted Availability” shall mean, as of any applicable date, the sum of (i) Global Availability on such date plus (ii) Specified Excess Availability on such date.

“Adjusted EURIBOR Rate” shall mean, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

“Adjusted Term CORRA Rate” shall mean, for purposes of any calculation, the rate per annum equal to (a) Term CORRA for such calculation plus (b) 0.29547% for a one month Interest Period or 0.32138% for a three month Interest Period; provided that if Adjusted Term CORRA Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

“Adjusted Term SOFR Rate” shall mean, with respect to any Term Benchmark Borrowing denominated in Dollars for any Interest Period, an interest rate per annum equal to the Term SOFR Rate for such Interest Period; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.

“Adjustment Date” shall mean the last day of each March, June, September and December.

“Administrative Agent” shall mean JPMorgan, in its capacity as Administrative Agent for the Lenders hereunder, and shall include its branch offices and affiliates in any applicable jurisdiction that it from time to time designates for the purposes or performing any of its obligations hereunder in such capacity and any successor to the Administrative Agent appointed pursuant to Section 12.10.

“Administrative Questionnaire” shall mean an administrative questionnaire in the form supplied by the Administrative Agent.

“Advisory Agreement” shall mean that certain Corporate Advisory Services Agreement, dated on or about the Closing Date, by and between Imola Holding Corporation and the Sponsor, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time.

“Affected Financial Institution” shall mean (i) any EEA Financial Institution or (ii) any UK Financial Institution.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that neither the Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of the Lead Borrower or any Subsidiary thereof as a result of this Agreement, the extensions of credit hereunder or its actions in connection therewith.

 

3

“Agency Fee Letter” shall mean that certain Project Imola Administrative Agent Fee Letter, dated as of December 9, 2020, by and between Holdings and JPMorgan, as amended, restated, supplemented or otherwise modified from time to time.

“Agent Parties” shall have the meaning provided in Section 13.03(d).

“Agents” shall mean the Administrative Agent, the Collateral Agent, any sub-agent or co-agent of either of the foregoing pursuant to the Credit Documents and the Lead Arrangers.

“Aggregate Borrowing Base” shall mean the sum of all of the Borrowing Bases (other than clauses (d) through (f) of the definitions of “APAC Borrowing Base”, “Canadian Borrowing Base”, “UK Borrowing Base” and “U.S. Borrowing Base”); provided that the Borrowing Bases for all of the Foreign Subfacilities, on a combined basis, shall be limited to the lesser of (A) the sum of the computations of such Borrowing Bases in accordance with the definitions thereof, and (B) 50% of the Aggregate Borrowing Base (calculated after giving effect to such cap) (the determination of which such Foreign Subfacility Borrowing Bases to be limited to the extent necessary to comply with this clause (B) being made by the Lead Borrower in consultation with the Administrative Agent).

The Aggregate Borrowing Base or any component thereof at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 6(A).19 or Section 9.17(a), as applicable.

The Administrative Agent shall (i) promptly notify the Lead Borrower in writing (including via e-mail) whenever it determines that a Borrowing Base as of any specified date set forth on a Borrowing Base Certificate differs from such Borrowing Base as determined by the Administrative Agent for such date, (ii) discuss the basis for any such deviation and any changes proposed by the Lead Borrower, including the reasons for any impositions of or changes in Reserves (in the Administrative Agent’s Permitted Discretion and subject to the definition thereof) or eligibility criteria, with the Lead Borrower, (iii) consider, in the exercise of its Permitted Discretion, any additional factual information provided by the Lead Borrower relating to the determination of such Borrowing Base and (iv) promptly notify the Lead Borrower of its decision with respect to any changes proposed by the Lead Borrower. Pending a decision by the Administrative Agent to make any requested change, the initial determination of such Borrowing Base by the Administrative Agent shall continue to constitute such Borrowing Base.

“Aggregate Revolving Commitments” shall mean, at any time, the aggregate amount of the APAC Revolving Commitments, the Canadian Revolving Commitments, the UK Revolving Commitments and the U.S. Revolving Commitments of all Lenders.

“Aggregate Revolving Exposure” shall mean, at any time, the sum of (a) the aggregate Outstanding Amount of all Revolving Loans plus (b) the LC Exposure, each determined at such time.

“Agreed Currencies” shall mean Dollars and each Alternative Currency.

“Agreement” shall mean this ABL Credit Agreement, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time.

“Alternative Currency” shall mean Canadian Dollars, Euros, Pounds Sterling and Australian Dollars, together with each other currency (other than Dollars) that is approved in accordance with Section 1.06.

“Amendment No. 1” shall mean that certain Amendment No. 1 to ABL Credit Agreement, dated as of August 12, 2021, among Holdings, the Lead Borrower, the other Borrowers, and the Administrative Agent.

 

4

“Amendment No. 2” shall mean that certain Amendment No. 2 to ABL Credit Agreement, dated as of the Amendment No. 2 Effective Date, among Holdings, Lead Borrower, the other Borrowers, the Lenders and the Administrative Agent.

“Amendment No. 2 Effective Date” shall mean May 30, 2023.

“Amendment No. 3” shall mean that certain Amendment No. 3 to ABL Credit Agreement, dated as of June 17, 2024, between the Lead Borrower and the Administrative Agent.

“Amendment No. 4” shall mean that certain Amendment No. 4 to ABL Credit Agreement, dated as of the Amendment No. 4 Effective Date, among Holdings, Lead Borrower, the other Borrowers, the Lenders party thereto and the Administrative Agent.

“Amendment No. 4 Effective Date” shall mean September 20, 2024.

“Amendment No. 4 Lead Arrangers” shall mean the “Arrangers” as defined in Amendment No. 4.

“Ancillary Document” has the meaning assigned to it in Section 13.22.

“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Lead Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, the United Kingdom’s Bribery Act 2010 and the Corruption of Foreign Public Officials Act (Canada) and any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, each as amended.

“APAC Borrowing Base” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:

(a) the book value of Eligible Accounts of the APAC Credit Parties multiplied by the advance rate of 85% (provided that such rate shall be 90% with respect Eligible Accounts that are Investment Grade Accounts); plus

(b) the lesser of (i) of the book value of Eligible Inventory of the Australian Credit Parties multiplied by the advance rate of 75% and (ii) the NOLV Percentage of Eligible Inventory of the Australian Credit Parties multiplied by the advance rate of 85%; plus

(c) 100% of Eligible Cash of the APAC Credit Parties; provided that for purposes of calculating the APAC Borrowing Base, the Eligible Cash under this clause (c) shall not be greater than $400,000,000; plus

(d) the positive amount, if any, by which the U.S. Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the U.S. Borrowing Base; plus

(e) the positive amount, if any, by which the Canadian Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the Canadian Borrowing Base; plus

(f) the positive amount, if any, by which the UK Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the UK Borrowing Base; minus

(g) any Reserves established from time to time by the Administrative Agent in accordance herewith.

“APAC Credit Parties” shall mean the Australian Credit Parties, the Hong Kong Credit Parties, the New Zealand Credit Parties and the Singapore Credit Parties.

 

5

“APAC Fixed/Non-Circulating Security” has the meaning given to the term in Section 9.17(e).

“APAC Lead Borrower” shall mean the Australian Lead Borrower.

“APAC Line Cap” shall mean as of any date the lesser of (a) the APAC Revolving Commitments as of such date and (b) the then applicable APAC Borrowing Base.

“APAC Liquidity Event” shall mean the occurrence of a date when either (a) the APAC Revolving Exposure under the APAC Subfacility exceeds 50% of the lesser of (i) the aggregate of the APAC Revolving Commitments and (ii) the APAC Borrowing Base or (b) Adjusted Availability is less than greater of (i) 20% of the Line Cap and (ii) $600,000,000, in either case, for five consecutive Business Days, until such date as (1) such APAC Revolving Exposure is not in excess of 50% of the lesser of (x) the aggregate of the APAC Revolving Commitments and (y) the APAC Borrowing Base for 30 consecutive calendar days and (2) Adjusted Availability is not less than the greater of (x) 20% of the Line Cap and (y) $600,000,000 for 30 consecutive calendar days.

“APAC Liquidity Notice” shall mean a written notice delivered by the Administrative Agent at any time during an APAC Liquidity Period to any bank or other depository at which any Deposit Account (other than any Excluded Account) is maintained by any APAC Credit Party directing such bank or other depository (a) to transfer to the Administrative Agent on a daily basis, (b) to cease following directions or instructions given to such bank or other depository by such APAC Credit Party regarding the disbursement of funds from such Deposit Account (other than any Excluded Account), and (c) to follow all directions and instructions given to such bank or other depository by the Administrative Agent in each case, pursuant to the terms of any Deposit Account Control Agreement in place.

“APAC Liquidity Period” shall mean any period throughout which (a) an APAC Liquidity Event has occurred and is continuing or (b) a Specified Event of Default has occurred and is continuing.

“APAC Priority Payables Reserve” shall mean the Australian Priority Payables Reserve, the Hong Kong Priority Payables Reserve, the New Zealand Priority Payables Reserve and the Singapore Priority Payables Reserve.

“APAC Protective Advance” shall have the meaning provided in Section 2.30.

“APAC Revolving Borrowing” shall mean a Borrowing comprised of APAC Revolving Loans.

“APAC Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make APAC Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 (as restated pursuant to Amendment No. 4) under the caption “APAC Revolving Commitment,” or in the Assignment and Assumption pursuant to which such Lender assumed its APAC Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 4.03 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.04. The aggregate amount of the Lenders’ APAC Revolving Commitments on the ClosingAmendment No. 4 Effective Date is $500,000,000.

“APAC Revolving Exposure” shall mean, with respect to any Revolving Lender at any time, the aggregate principal amount at such time of all outstanding APAC Revolving Loans of such Revolving Lender.

“APAC Revolving Loans” shall mean advances made pursuant to Section 2 hereof under the APAC Subfacility.

“APAC Subfacility” shall mean the APAC Revolving Commitments of the Revolving Lenders and the Revolving Loans pursuant to those Commitments in accordance with the terms hereof.

“APAC Subfacility Effective Date” has the meaning set forth in Section 6(B).

“Applicable Administrative Borrower” shall mean (i) with respect to each Subfacility, the Lead Borrower, (ii) (a) with respect to the UK Subfacility, the UK Lead Borrower, (b) with respect to the Canadian Subfacility, the Canadian Lead Borrower, (c) with respect to the APAC Subfacility, the APAC Lead Borrower and/or (d) with respect to any or all Subfacilities, each other Borrower as the Lead Borrower and the Administrative Agent (in its reasonable discretion) may agree to from time to time.

 

6

“Applicable Asset Sale/Recovery Event Prepayment Percentage” shall mean, at any time, 100%.

“Applicable Increased Term Loan Spread” shall mean, with respect to any then outstanding Initial Term Loans at the time of the incurrence of any new Tranche of syndicated Incremental Term Loans pursuant to Section 2.21 or syndicated Permitted Pari Passu Loans pursuant to Section 10.04(xxvii), in each case, on or prior to the date that is twenty-four months after the Closing Date, which new Tranche or such syndicated Permitted Pari Passu Loans is or are subject to an Effective Yield that is greater than the Effective Yield applicable to such Initial Term Loans by more than 0.50%, the margin per annum (expressed as a percentage) mutually determined by the Administrative Agent and the Lead Borrower in good faith (and notified by the Administrative Agent to the Lenders) as the margin per annum required to cause the Effective Yield applicable to such then existing Initial Term Loans to equal (i) the Effective Yield applicable to such new Tranche of syndicated Incremental Term Loans or such syndicated Permitted Pari Passu Loans, as applicable, minus (ii) 0.50%. Each mutual determination of the “Applicable Increased Term Loan Spread” by the Administrative Agent and the Lead Borrower shall be conclusive and binding on all Lenders absent manifest error.

“Applicable Margin” shall mean a percentage per annum equal to, (a) in the case of any Type of Revolving Loan, the per annum margin set forth below, as determined by the Average Global Revolving Availability as of the most recent Adjustment Date, expressed as a percentage of the Revolving Line Cap:

 

Level		Average Global Revolving Availability (percentage of Revolving Line Cap)		Base Rate Loans and Canadian Prime Rate Loans				Term SOFR Rate Loans, BBSY Loans, Term CORRA Rate Loans, RFR Loans and EURIBOR Rate Loans
I		> 66%			0.25	%			1.25	%
II		> 33% but < 66%			0.50	%			1.50	%
III		< 33%			0.75	%			1.75	%

(b) in the case of Initial Term Loans maintained as Base Rate Term Loans, 2.50%; and

(c) in the case of Initial Term Loans maintained as Term SOFR Rate Term Loans, 3.50%.

Until the first Adjustment Date occurring after completion of the first full fiscal quarter of the Lead Borrower after the Closing Date, the Applicable Margin with respect to Revolving Loans shall be determined as if Level II were applicable. Thereafter, the Applicable Margin with respect to Revolving Loans shall be subject to increase or decrease on each Adjustment Date based on Average Global Revolving Availability (expressed as a percentage of the Revolving Line Cap) during the immediately preceding fiscal quarter. If Lead Borrower fails to deliver any Borrowing Base Certificate on or before the date required for delivery thereof, then, at the option of the Required Revolving Lenders upon written notice from the Administrative Agent to Lead Borrower, the Applicable Margin with respect to Revolving Loans shall be determined as if Level III were applicable, from the first day of the calendar month following the date such Borrowing Base Certificate was required to be delivered until the date of delivery of such Borrowing Base Certificate.

The Applicable Margins for any Tranche of Incremental Term Loans shall be (i) in the case of Incremental Term Loans added to an existing Tranche, the same as the Applicable Margins for such existing Tranche, and (ii) otherwise, as specified in the applicable Incremental Amendment; provided that on and after the date of such incurrence of any Tranche of syndicated Incremental Term Loans or syndicated Permitted Pari Passu Loans which gives rise to a determination of a new Applicable Increased Term Loan Spread, the Applicable Margins for the Initial Term Loans shall be the higher of (x) the Applicable Increased Term Loan Spread for such Type of Initial Term Loans and (y) the Applicable Margin for such Type of Initial Term Loans as otherwise determined above in the absence of the foregoing clause (x). The Applicable Margins for any Tranche of Refinancing Term Loans shall be as specified in the applicable Refinancing Term Loan Amendment. The Applicable Margins for any Tranche of Extended Term Loans shall be as specified in the applicable Extension Amendment.

 

7

“Applicable Time” shall mean, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable Issuing Bank (in such Person’s reasonable discretion), as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment and, in the case of borrowing requests and payments by Borrowers, notified in writing to the Lead Borrower. Each Lender shall make each Revolving Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account designated by the Administrative Agent (i) in the case of Loans to a U.S. Borrower, with payments to be received by the Administrative Agent in Dollars, no later than 3:00 p.m. New York City time, (ii) in the case of Loans to a UK Borrower, with payments to be received by the Administrative Agent in Euros, Pounds Sterling or Dollars (as applicable), no later than 1:00 p.m., London time, (iii) in the case of Loans to a Canadian Borrower, with payments to be received by the Administrative Agent in Dollars or Canadian Dollars (as applicable) no later than 2:00 p.m., Toronto time, and (iv) in the case of Loans to an Australian Borrower, with payments to be received by the Administrative Agent in Dollars or Australian Dollars (as applicable), no later than 1:00 p.m., Sydney time.

“Approved Commercial Bank” shall mean a commercial bank with a consolidated combined capital and surplus of at least $5,000,000,000.

“Approved Fund” shall mean any Person (other than a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person)) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) an existing Lender, (b) an Affiliate of an existing Lender or (c) an entity or an Affiliate of an entity that administers or manages an existing Lender.

“ARPA” shall mean the Account Receivables Purchase Agreement among the ARPA Purchaser, each of the ARPA Sellers from time to time party thereto and each other Person from time to time party thereto, which may be entered into on or after the UK Subfacility Effective Date, in any form as may be agreed between the Lead Borrower and the Administrative Agent (acting reasonably), as the same may be amended, restated, supplemented or otherwise modified from time to time, including in connection with the joinder of additional ARPA Sellers in accordance with the terms thereof. For avoidance of doubt, there shall be no obligation for the ARPA Purchaser or any other Credit Party or contemplated ARPA Seller to enter into the ARPA.

“ARPA Jurisdictions Security Documents” shall mean each of (i) the Austrian Receivables Pledge Agreement, (ii) the Belgian Receivables Pledge Agreement, (iii) the French Receivables Pledge Agreement, (iv) the German Security Documents, (v) the Dutch Receivables Pledge Agreement, (vi) the Spanish Security Documents, (vii) the Swedish Receivables Pledge Agreement and (viii) the Swiss Receivables Assignment Agreement, in each case, to the extent entered into.

“ARPA Purchaser” shall mean INGRAM MICRO FINANCING LTD, in its capacity as the “Purchaser” under the ARPA (or any similar term used in the ARPA for the Person that may purchase Acquired Accounts from time to time pursuant to the ARPA), together with its successors and permitted assigns in such capacity.

“ARPA Seller” shall mean any Person that is a party to the ARPA as a “Seller” (or any similar term as used therein for a Person that may sell Acquired Accounts to the ARPA Purchaser from time to time).

“ARPA Sweep” has the meaning provided to it in Section 9.17(e).

“Asset Sale” shall mean any sale, transfer or other disposition of all or any part of the property or assets by the Lead Borrower or any of its Restricted Subsidiaries, or entry into any Sale-Leaseback Transaction by the Lead Borrower or any of its Restricted Subsidiaries, in each case, pursuant to Sections 10.02(ii), (x) or (xii)(b).

“Assignment and Assumption” shall mean an Assignment and Assumption substantially in the form of Exhibit K (appropriately completed) or such other form as shall be acceptable to the Administrative Agent and the Lead Borrower (such approval by the Lead Borrower not to be unreasonably withheld, delayed or conditioned).

 

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“Associate” shall have the meaning provided in section 128F(9) of the Australian Tax Act.

“Auction” shall have the meaning provided in Section 2.25(a).

“Auction Manager” shall have the meaning provided in Section 2.25(a).

“Audited Target Financial Statements” shall have the meaning provided in Section 6(A).11.

“Australia” shall mean the Commonwealth of Australia (and includes, where the context requires, any State or Territory of Australia).

“Australian Borrowers” shall mean (i) the Australian Lead Borrower and (ii) each Australian Subsidiary Borrower (if any).

“Australian Collateral” shall mean all property (whether real, personal or otherwise) with respect to which any security interests have been granted (or purported to be granted) pursuant to any Australian Security Documents.

“Australian Credit Parties” shall mean each Australian Borrower and each Australian Guarantor.

“Australian Dollars” or “AU$” shall mean the lawful currency of Australia.

“Australian GST Act” shall mean the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (Australia).

“Australian GST Group” shall mean a GST Group as defined in the Australian GST Act.

“Australian Guarantor” shall mean each Australian Subsidiary that is on the Closing Date, or which becomes, a party to the Guaranty Agreement in accordance with the requirements of this Agreement or the provisions of such Guaranty Agreement.

“Australian Lead Borrower” shall mean Ingram Micro Pty Ltd. (ACN 112 487 966).

“Australian Lender” shall mean the Lenders making Loans to an Australian Borrower.

“Australian PPS Security Interest” shall mean a “security interest” as defined in the Australian PPSA other than an interest of the kind referred to in Section 12(3) of the Australian PPSA where the transaction concerned does not, in substance, secure payment or performance of an obligation.

“Australian PPSA” shall mean the Personal Property Securities Act 2009 (Cth) (Australia).

“Australian Pension Plan” shall mean a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Australian Credit Party in respect of its Australian employees and officers or former employees and officers.

“Australian Priority Payables Reserve” shall mean, on any date of determination and only with respect to an Australian Credit Party, reserves established by the Administrative Agent in its Permitted Discretion for amounts secured which rank or are capable of ranking senior or pari passu in priority to the Liens on Australian Collateral granted to the Collateral Agent under the Security Documents, including without limitation and without duplication, in the Permitted Discretion of the Administrative Agent, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth) (Australia)), any preferential claims as set out in the Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth) (Australia) (but excluding Pay As You Go withholding tax on

 

9

salary and wages) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan.

“Australian Reference Banks” shall mean Australia and New Zealand Banking Group Limited, Commonwealth Bank of Australia, National Australia Bank Limited and Westpac Banking Corporation, or such other persons as the Administrative Agent and the Lead Borrower may agree to in writing from time to time.

“Australian Security Documents” shall mean the Initial Australian Security Agreements, each Deposit Account Control Agreement entered into pursuant to Section 9.17(e) and, after the execution and delivery thereof, each Additional Security Document, in each case, governed by the laws of Australia (or any state or territory thereof), together with any other applicable security documents governed by the laws of Australia (or any state or territory thereof).

“Australian Subsidiary” shall mean any Subsidiary of the Lead Borrower that is incorporated, formed or otherwise organized under the laws of Australia.

“Australian Subsidiary Borrower” shall mean each Australian Subsidiary of the Lead Borrower that is on the Closing Date, or which becomes, a party to this Agreement as a Borrower in accordance with the requirements of this Agreement.

“Australian Tax Act” shall mean the Income Tax Assessment Act 1936 (Cth) (Australia) or the Income Tax Assessment Act 1997 (Cth) (Australia) as applicable.

“Australian Tax Consolidated Group” shall mean a consolidated group as defined in subsection 995-1(1) or a MEC group as defined in subsection 995-1(1) of the Australian Tax Act, the members of which are one or more Credit Parties.

“Australian Withholding Tax” shall mean any Taxes required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Australian Tax Act.

“Austrian Collateral” shall mean all Acquired Accounts and other property with respect to which any security interests have been granted (or purported to be granted) by the ARPA Purchaser pursuant to the Austrian Receivables Pledge Agreement.

“Austrian Receivables Pledge Agreement” shall mean the Austrian law governed receivables pledge agreement, between the ARPA Purchaser as pledgor and the Collateral Agent as pledgee, which may be entered into on or after the UK Subfacility Effective Date, creating security under Austrian law over certain Austrian law governed Accounts purchased by the ARPA Purchaser pursuant to the ARPA.

“Availability Conditions” shall be deemed satisfied only if:

 

(a)

with respect to the U.S. Subfacility, each Lender’s U.S. Revolving Exposure does not exceed such Lender’s U.S. Revolving Commitment;

 

(b)

with respect to the UK Subfacility, each Lender’s UK Revolving Exposure does not exceed such Lender’s UK Revolving Commitment;

 

(c)

with respect to the Canadian Subfacility, each Lender’s Canadian Revolving Exposure does not exceed such Lender’s Canadian Revolving Commitment;

 

(d)

with respect to the APAC Subfacility, each Lender’s APAC Revolving Exposure does not exceed such Lender’s APAC Revolving Commitment;

 

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(e)

with respect to the U.S. Subfacility, the sum of (i) the aggregate U.S. Revolving Exposure plus (ii) the aggregate principal amount of outstanding Term Loans plus (iii) the aggregate APAC Revolving Exposure in respect of APAC Revolving Loans made to the Australian Borrowers does not exceed the U.S. Line Cap then in effect (it being understood that for this purpose, the U.S. Borrowing Base shall deduct any APAC Revolving Exposures borrowed in reliance on clause (d) of the definition of “APAC Borrowing Base” plus (iv) the aggregate, any Canadian Revolving Exposure in respect of Canadian Revolving Loans made to the Canadian BorrowersExposures borrowed in reliance on clause (d) of the definition of “Canadian Borrowing Base”plus (v) the aggregateand any UK Revolving Exposure in respect of UK Revolving Loans made to the UK BorrowersExposures borrowed in reliance on clause (d) of the definition of “UK Borrowing Base” does not exceed the U.S. Line Cap);

 

(f)

with respect to the UK Subfacility, the sum of (i) the aggregate UK Revolving Exposure plus (ii) the aggregate APAC Revolving Exposure in respect of APAC Revolving Loans made to the Australian Borrowers does not exceed the UK Line Cap then in effect (it being understood that for this purpose, the UK Borrowing Base shall deduct any APAC Revolving Exposures borrowed in reliance on clause (f) of the definition of “APAC Borrowing Base” plus (iii) the aggregate Canadian Revolving Exposure in respect of Canadian Revolving Loans made to the Canadian Borrowers in reliance on clause (f) of the definition of “Canadian Borrowing Base” plus (iv) the aggregate U.S. Revolving Exposure in respect of U.S. Revolving Loans made and Letters of Credit issued to the U.S. Borrowers, any U.S. Revolving Exposures borrowed in reliance on clause (f) of the definition of “U.S. Borrowing Base”does not exceed the UK Line Capand any Canadian Revolving Exposures borrowed in reliance on clause (f) of the definition of Canadian Borrowing Base”;

 

(g)

with respect to the Canadian Subfacility, the sum of (i) the aggregate Canadian Revolving Exposure plus (ii) the aggregate APAC Revolving Exposure in respect of APAC Revolving Loans made to the Australian Borrowers does not exceed the Canadian Line Cap then in effect (it being understood that for this purpose, the Canadian Borrowing Base shall deduct any APAC Revolving Exposures borrowed in reliance on clause (e) of the definition of “APAC Borrowing Base” plus (iii) the aggregate UK Revolving Exposure in respect of UK Revolving Loans made to the UK Borrowers in reliance on clause (e) of the definition of “UK Borrowing Base”plus (iv) the aggregate U.S. Revolving Exposure in respect of U.S. Revolving Loans made and Letters of Credit issued to the U.S. Borrowers, any U.S. Revolving Exposures borrowed in reliance on clause (e) of the definition of “U.S. Borrowing Base”does not exceed the Canadian Line Capand any UK Revolving Exposures borrowed in reliance on clause (e) of the definition of “UK Borrowing Base”);

 

(h)

with respect to the APAC Subfacility, the sum of (i) the aggregate APAC Revolving Exposure plus (ii) the aggregate UK Revolving Exposure in respect of UK Revolving Loans made to the Australian Borrowers in reliance on clause (f) of the definition of “UK Borrowing Base”plus (iii) the aggregate does not exceed the APAC Line Cap then in effect (it being understood that for this purpose, the APAC Borrowing Base shall deduct any Canadian Revolving Exposure in respect of Canadian Revolving Loans made to the Canadian BorrowersExposures borrowed in reliance on clause (e) of the definition of “Canadian Borrowing Base” plus (iv) the aggregate, any U.S. Revolving Exposure in respect of U.S. Revolving Loans made and Letters of Credit issued to the U.S. BorrowersExposures borrowed in reliance on clause (d) of the definition of “U.S. Borrowing Base”does not exceed the APAC Line Capand any UK Revolving Exposures borrowed in reliance on clause (f) of the definition of “UK Borrowing Base”); and

 

11

(i)

with respect to each Subfacility, the sum of (x) the Aggregate Revolving Exposure of all Revolving Lenders and (y) the aggregate principal amount of outstanding Term Loans does not exceed the Line Cap;

provided, that, for purposes of determining subclauses (iii) through (v) of clause (e) and subclauses (ii) through (iv) of clauses (fe) through (h) of this definition, the Lead Borrower or other Applicable Administrative Borrower may deem any Revolving Loans to have been made, and any Letters of Credit to have been issued, under any component of the referenced Borrowing Base, to the extent there is sufficient capacity for such Revolving Loans or Letters of Credit to have been made or issued under such component of the referenced Borrowing Base, determined based on the most recent Borrowing Base Certificate delivered to the Administrative Agent.

“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.22(e).

“Average Global Revolving Availability” shall mean at any Adjustment Date, the average daily Global Revolving Availability for the fiscal quarter immediately preceding such Adjustment Date.

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

“Bail-In Legislation” shall mean, (i) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (ii) 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 Product” shall mean any of the following products, services or facilities extended to any Borrower or any of its Restricted Subsidiaries: (a) Cash Management Services; (b) products under Swap Contracts; (c) commercial credit card, purchase card and merchant card services; (d) trade letters of credit (but not to include Letters of Credit issued under this Agreement); (e) foreign bilateral working capital loan agreements; (f) supply chain financing; (g) revolving lines of credit, bills of exchange, draft discounting arrangements, bank guarantees and similar arrangements; and (h) other banking products or services as may be requested by any Borrower or any of its Restricted Subsidiaries.

“Bank Product Debt” shall mean Indebtedness and other obligations of a Borrower or any of its Restricted Subsidiaries relating to Bank Products.

“Bank Product Reserve” shall mean the aggregate amount of reserves established by the Administrative Agent from time to time in its Permitted Discretion in respect of Secured Bank Product Obligations (which shall at all times include a reserve for the maximum amount of all Noticed Hedges outstanding at that time but which shall not include any reserves for Bank Products of the type set forth in clauses (d), (e) and (g) of the definition thereof).

“Banking Code of Practice (Australia)” shall mean the Banking Code of Practice published by the Australian Banking Association.

“Bankruptcy Code” shall have the meaning provided in Section 11.05.

“Bankruptcy Proceedings” shall have the meaning provided in Section 13.04(g).

 

12

“Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ¹⁄₂ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceeding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.22 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.22(b)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.

“Base Rate Loan” shall mean each Loan which bears interest at a rate based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“BBSY” shall mean, with respect to any Interest Period:

(a) the average bid reference rate administered by ASX Benchmarks Pty Limited (ACN 616 075 417) (or any other Person that takes over the administration of such rate) for Australian dollar bills of exchange with a tenor equal in length to such Interest Period as displayed on page BBSY of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at or about 11:00 a.m. (Sydney, Australia time) on the first day of such Interest Period; or

(b) solely if the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the rate described in clause (a) above for such Interest Period at such time or the Administrative Agent is advised by the Required Lenders that the rate described in clause (a) above for such Interest Period at such time will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period at such time, the sum of:

(i) the Australian Bank Bill Swap Reference Rate administered by ASX Benchmarks Pty Limited (or any other person that takes over the administration of such rate) for the relevant Interest Period displayed on page BBSW of the Reuters screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at or about 10:30 a.m. (Sydney, Australia time) on the first day of such Interest Period; and

(ii) 0.05% per annum.

If BBSY shall be less than 0%, BBSY shall be deemed to be 0% for purposes of this Agreement.

“BBSY Loan” shall mean each Revolving Loan denominated in Australian Dollars which bears interest at a rate based on BBSY.

“Belgian Collateral” shall mean all Acquired Accounts and other property with respect to which any security interests have been granted (or purported to be granted) by the ARPA Purchaser pursuant to the Belgian Receivables Pledge Agreement.

 

13

“Belgian Receivables Pledge Agreement” shall mean the Belgian law governed receivables pledge agreement, between the ARPA Purchaser as pledgor and the Collateral Agent as pledgee, which may entered into on or after the UK Subfacility Effective Date, creating security under Belgian law over certain Belgian law governed Accounts purchased by the ARPA Purchaser pursuant to the ARPA.

“Benchmark” shall mean initially, with respect to (i) any RFR Loan, the RFR Rate or (ii) any Term Benchmark Loan, the Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.22(b).

“Benchmark Replacement” shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative Currency, “Benchmark Replacement” shall mean the alternative set forth in (2) below:

(1) in the case of any Loan denominated in Dollars, the Daily Simple RFR;

(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Lead Borrower as the replacement for the then-current Benchmark for such Agreed Currency for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment.

If the Benchmark Replacement as determined pursuant to the above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.

“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark for any Agreed Currency with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Lead Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.

“Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement for any Agreed Currency and/or any Term Benchmark Loan denominated in Dollars, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Canadian Prime Rate,” the definition of “Business Day,” the definition of “RFR Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

 

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“Benchmark Replacement Date” shall mean, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” shall mean, with respect to any Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” shall mean, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.22 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.22.

 

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“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.

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

“BHC Act Affiliate” shall have the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

“Blocking Regulation” shall mean in respect of any Credit Party incorporated, organized or otherwise formed in the European Union (or any member state thereof), Council Regulation (EC) 2271/96, and in respect of any Credit Party incorporated in the United Kingdom, Council Regulation (EC) 2271/96 as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018.

“Borrower Materials” shall have the meaning provided in Section 9.01.

“Borrowers” shall mean the U.S. Borrowers, the UK Borrowers, the Canadian Borrowers and the Australian Borrowers.

“Borrowing” shall mean a borrowing of the same Type, Class and in the same currency, of Revolving Loans by the Borrowers, or a borrowing of the same Type of Term Loan pursuant to a single Tranche by the Lead Borrower from all the Lenders having Commitments with respect to such Tranche on a given date (or, in each case, resulting from a conversion or conversions on such date), having, in the case of Term SOFR Rate Loans, EURIBOR Rate Loans, Term CORRA Rate Loans and BBSY Loans, the same Interest Period; provided that any Incremental Term Loans incurred pursuant to Section 2.01(b) shall be considered part of the related Borrowing of the then outstanding Tranche of Term Loans (if any) to which such Incremental Term Loans are added pursuant to, and in accordance with the requirements of, Section 2.21(c).

“Borrowing Base” shall mean any of the APAC Borrowing Base, the Canadian Borrowing Base, the UK Borrowing Base or the U.S. Borrowing Base.

“Borrowing Base Certificate” shall mean a certificate of a Responsible Officer of the Lead Borrower in form and substance reasonably satisfactory to the Administrative Agent.

“Business Day” shall mean any day except Saturday, Sunday and any day which shall be in New York City or the state where the Administrative Agent’s office is located a legal holiday or a day on which banking institutions are authorized or required by law or other governmental action to close; provided, that, with respect to the following circumstances, no day shall be a Business Day unless it a day that satisfies the foregoing definition and the following requirements, as applicable: (i) if such day relates to (x) any Loans denominated in Euros or (y) payment or purchase of Euros, any day which is a TARGET Day, (ii) if such day relates to RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings in Pounds Sterling, any such day that is an RFR Business Day, (iii) if such day relates to (x) any Loans denominated in Australian Dollars, or (y) payment or purchase of Australian Dollars, any day on which banks are open for general business in London and Sydney, (iv) if such day relates to (x) any Loans denominated in Canadian Dollars or (y) payment or purchase of Canadian Dollars, any day except Saturday, Sunday and any day which shall be in Toronto, Ontario a legal holiday or a day in which banking institutions are authorized or required by law or other government action to close in Toronto, and (v) with respect to all notices and determinations in connection with, and payments of principal and interest on, Term SOFR Rate Loans determined by reference to the Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business Day.

 

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“Canadian Borrowers” shall mean (i) the Canadian Lead Borrower and (ii) each Canadian Subsidiary Borrower (if any).

“Canadian Borrowing Base” shall mean, at any time of calculation, an amount equal to the sum of, without duplication:

(a) the book value of Eligible Accounts of the Canadian Credit Parties multiplied by the advance rate of 85% (provided that such rate shall be 90% with respect Eligible Accounts that are Investment Grade Accounts); plus

(b) the lesser of (i) of the book value of Eligible Inventory of the Canadian Credit Parties multiplied by the advance rate of 75% and (ii) the NOLV Percentage of Eligible Inventory of the Canadian Credit Parties multiplied by the advance rate of 85%; plus

(c) 100% of Eligible Cash of the Canadian Credit Parties; plus

(d) the positive amount, if any, by which the U.S. Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the U.S. Borrowing Base; plus

(e) the positive amount, if any, by which the APAC Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the APAC Borrowing Base; plus

(f) the positive amount, if any, by which the UK Borrowing Base exceeds the Aggregate Revolving Exposure of all Lenders in reliance on the UK Borrowing Base; minus

(g) any Reserves established from time to time by the Administrative Agent in accordance herewith.

“Canadian Collateral” shall mean all personal property with respect to which any security interests or hypothecs have been granted (or purported to be granted) pursuant to any Canadian Security Documents.

“Canadian Credit Party” shall mean each Canadian Borrower and each Canadian Guarantor.

“Canadian Dollars” and “C$” shall mean the lawful currency of Canada.

“Canadian Defined Benefit Pension Plan” shall mean any Canadian Pension Plan which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada).

“Canadian Dominion Account” shall mean a special concentration account established by Canadian Credit Parties in Canada, at JPMorgan or another bank reasonably acceptable to the Administrative Agent, over which the Administrative Agent has exclusive control for withdrawal purposes pursuant to the terms and provisions of this Agreement and the other Credit Documents.

“Canadian Guarantor” shall mean each Canadian Subsidiary that is on the Closing Date, or which becomes, a party to the Guaranty Agreement in accordance the requirements of this Agreement or the provisions of such Guaranty Agreement.

“Canadian Lead Borrower” shall mean Ingram Micro LP, an Ontario limited partnership.

“Canadian Line Cap” shall mean as of any date the lesser of (a) the Canadian Revolving Commitments as of such date and (b) the then applicable Canadian Borrowing Base.

 

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“Canadian Pension Event” shall mean the occurrence of any of the following: (a) the board of directors of any Credit Party passes a resolution to terminate or wind up in whole or in part any Canadian Defined Benefit Pension Plan, or any Credit Party otherwise initiates any action or filing to voluntarily terminate or wind up in whole or in part any Canadian Defined Benefit Pension Plan, (b) the institution of proceedings by a Governmental Authority to terminate in whole or in part any Canadian Defined Benefit Pension Plan, including notice being given by a Governmental Authority that it intends to order a wind up in whole or in part of a Canadian Defined Benefit Pension Plan, (c) there is a cessation of required contributions to the fund of a Canadian Pension Plan, (d) the receipt by a Credit Party of correspondence from any Governmental Authority relating to the likely wind up or termination (in whole or in part) of any Canadian Defined Benefit Pension Plan, (e) the wind up or termination (in whole or in part) of any Canadian Defined Benefit Pension Plan, (f) the appointment by a Governmental Authority of a replacement administrator or trustee to wind up or terminate (in whole or in part) any Canadian Defined Benefit Pension Plan, (g) the withdrawal of any Credit Party from a Canadian Defined Benefit Pension Plan that is considered to be a “multi-employer pension plan” or similar plan under applicable federal or provincial pension standards legislation in Canada where any additional contributions by such Credit Party, as applicable, are triggered by such withdrawal, or (h) any statutory deemed trust or Lien, other than a Permitted Lien, arises in respect of a Canadian Pension Plan.

“Canadian Pension Plan” shall mean a pension plan required to be registered under Canadian federal or provincial law that is maintained or contributed to by any Credit Party for their employees or former employees, or that any Credit Party has any liability or contingent liability, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.

“Canadian Prime Rate” shall mean, on any day, the rate determined by the Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agent in its reasonable discretion) and (ii) Adjusted Term CORRA Rate for a one month Interest Period as published two (2) Business Days prior to such day (or if such day is not a Business Day, the immediately preceding Business Day), plus 1.00% per annum; provided, that if any the above rates shall be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index or the Adjusted Term CORRA Rate shall be effective from and including the effective date of such change in the PRIMCAN Index or Adjusted Term CORRA Rate, respectively.

“Canadian Prime Rate Loan” shall mean each Revolving Loan which bears interest at a rate based on the Canadian Prime Rate. All Canadian Prime Rate Loans shall be denominated in Canadian Dollars and only available under the Canadian Subfacility.

“Canadian Priority Payables Reserve” shall mean, on any date of determination and only with respect to a Canadian Credit Party, reserves established by the Administrative Agent in its Permitted Discretion for amounts secured by any Liens, choate or inchoate, ranking or capable of ranking in priority senior to or pari passu with the Collateral Agent’s Liens on Canadian Collateral, including, without duplication, in the Permitted Discretion of the Administrative Agent, (i) amounts deemed to be held in trust, or held in trust, pursuant to applicable law, (ii) any such amounts due or which may become due for wages, salaries, commissions or compensation, including vacation pay (including amounts protected by section 81.3 of the Bankruptcy and Insolvency Act (Canada), (iii) any such amounts for workers’ compensation, employment insurance, employee source deductions, employee income tax, sales tax, goods and services tax, value added tax, harmonized sales tax or similar taxes and all contributions under the Canada Pension Plan or the Quebec Pension Plan, (iv) any amounts due and not contributed to a Canadian Pension Plan, including with respect to any wind-up or solvency deficiency, and (v) similar statutory or other claims, that in each case referred to in paragraphs (i) through (iv) above are secured by Liens, choate or inchoate, ranking or capable of ranking in priority senior to or pari passu with the Collateral Agent’s Liens on Canadian Collateral.

“Canadian Protective Advance” shall have the meaning provided in Section 2.30.

“Canadian Revolving Borrowing” shall mean a Borrowing comprised of Canadian Revolving Loans.

 

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“Canadian Revolving Commitment” shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Canadian Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on Schedule 2.01 (as restated pursuant to Amendment No. 4) under the caption “Canadian Revolving Commitment,” or in the Assignment and Assumption pursuant to which such Lender assumed its Canadian Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 4.03 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 13.04. The aggregate amount of the Lenders’ Canadian Revolving Commitments on the ClosingAmendment No. 4 Effective Date is $500,000,000.

“Canadian Revolving Exposure” shall mean, with respect to any Revolving Lender at any time, the aggregate principal amount at such time of all outstanding Canadian Revolving Loans of such Revolving Lender.

“Canadian Revolving Loans” shall mean advances made pursuant to Section 2 hereof under the Canadian Subfacility.

“Canadian Security Documents” shall mean the Initial Canadian Security Agreement, each Deposit Account Control Agreement entered into pursuant to Section 9.17(d) and, after the execution and delivery thereof, each Additional Security Document, in each case, governed by the laws of Canada (or any province or territory thereof), together with any other applicable security documents (including deeds of hypothec) governed by the laws of Canada (or any province or territory thereof).

“Canadian Subfacility” shall mean the Canadian Revolving Commitments of the Revolving Lenders and the Revolving Loans pursuant to those Commitments in accordance with the terms hereof.

“Canadian Subsidiary” shall mean any Subsidiary of the Lead Borrower that is incorporated, formed or otherwise organized under the laws of Canada or any province or territory thereof.

“Canadian Subsidiary Borrower” shall mean each Canadian Subsidiary of the Lead Borrower that is on the Closing Date, or which becomes, a party to this Agreement as a Borrower in accordance with the requirements of this Agreement.

“Canadian Sweep” shall have the meaning provided in Section 9.17(d).

“Capital Expenditures” shall mean, with respect to any Person, all expenditures by such Person which are required to be capitalized in accordance with U.S. GAAP and, without duplication, the amount of Capitalized Lease Obligations incurred by such Person; provided that Capital Expenditures shall not include (i) the purchase price paid in connection with a Permitted Acquisition, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for such existing equipment being traded in at such time, (iii) expenditures made in leasehold improvements, to the extent reimbursed by the landlord, (iv) expenditures to the extent that they are actually paid for by any Person other than a Credit Party or any of its Restricted Subsidiaries and for which no Credit Party or any of its Restricted Subsidiaries has provided or is required to provide or incur, directly or indirectly, any consideration or monetary obligation to such third party or any other Person (whether before, during or after such period), (v) property, plant and equipment taken in settlement of accounts and (vi) expenditures made to restore, replace or rebuild property subject to any damage, loss, destruction or condemnation, to the extent such expenditures are made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any damage, loss destruction or condemnation.

“Capitalized Lease Obligations” shall mean, with respect to any Person, all rental obligations of such Person which, under U.S. GAAP, are required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with U.S. GAAP.

“Cash Collateralize” shall mean (a) to pledge and deposit with or deliver to the Administrative Agent for deposit into the LC Collateral Account, for the benefit of the Administrative Agent, the Issuing Banks or the Swingline Lender (as applicable) and the Revolving Lenders, cash as collateral for, or (b) to provide other credit support (including in the form of backstop letters of credit), in form and containing terms (including, to the extent not specifically set forth in this Agreement, the amount thereof) reasonably satisfactory to the Administrative Agent or the Issuing Banks, as applicable, for, in either case, the LC Exposure, Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect thereof (as the context may require).

 

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“Cash Collateral” shall have a meaning correlative to “Cash Collateralize” and shall include the proceeds of such cash collateral and such other credit support.

“Cash Equity Financing” shall have the meaning provided in Section 6(A).06.

“Cash Equivalents” shall mean:

(i) Dollars, Canadian Dollars, Pounds Sterling, Euros, Australian Dollars, Hong Kong Dollars, Singapore Dollars and, except with respect to Eligible Cash, the national currency of any participating member state of the European Union, or, in the case of any Foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

(ii) readily marketable direct obligations of any member of the European Economic Area, Switzerland, Japan, the United Kingdom or any political subdivision, agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of such country, and, at the time of acquisition thereof, having a credit rating of at least Aa3 (or the equivalent grade) by Moody’s, AA- (or the equivalent grade) by S&P or AA- (or the equivalent grade) by Fitch;

(iii) marketable general obligations issued by (a) any state of the United States or any political subdivision thereof or any instrumentality thereof that are guaranteed by the full faith and credit of such state or (b) Canada or any political subdivision, agency or instrumentality thereof that are guaranteed by the full faith and credit of Canada or any province or territory thereof, and, in each case, at the time of acquisition thereof, having a credit rating of at least Aa3 (or the equivalent grade) by Moody’s, AA- (or the equivalent grade) by S&P or AA- (or the equivalent grade) by Fitch;

(iv) securities or any other evidence of Indebtedness or readily marketable direct obligations issued or directly and fully guaranteed or insured by (a) the United States government or any agency or instrumentality of the United States government, the United Kingdom government or any agency or instrumentality thereof, or any member of the European Union or any agency or instrumentality thereof (provided that the full faith and credit of the United States, the United Kingdom or such member, as the case may be, is pledged in support of those securities) or (b) Canada or any agency or instrumentality thereof (provided that the full faith and credit of Canada is pledged in support of those securities), and, in each case, having maturities of not more than 24 months from the date of acquisition;

(v) certificates of deposit and eurodollar time deposits with maturities of twenty-four months or less from the date of acquisition, bankers’ acceptances with maturities not exceeding twenty-four months and overnight bank deposits, in each case, with any Lender party to this Agreement or any commercial bank or trust company having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A-2” (or equivalent grade) by Moody’s, “A” (or the equivalent grade) by S&P or “A” (or the equivalent grade) by Fitch;

(vi) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (iv) and (v) above entered into with any financial institution meeting the qualifications specified in clause (v) above;

(vii) commercial paper having one of the two highest ratings obtainable from Moody’s, S&P or Fitch and, in each case, maturing within 24 months after the date of acquisition;

(viii) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (i) through (vii) of this definition; and

 

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(ix) Indebtedness or preferred stock issued by a Person having a credit rating of at least A-2 (or the equivalent grade) by Moody’s, A (or the equivalent grade) by S&P or A (or the equivalent grade) by Fitch, maturing within 24 months after the date of acquisition.

“Cash Management Services” shall mean any services provided from time to time to any Borrower or any of its Restricted Subsidiaries in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer, controlled disbursement, overdraft, depository, information reporting, lockbox and stop payment services.

“Central Bank Rate” shall mean, (A) the greater of (i) for any Loan denominated in (a) Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time or (b) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (ii) 0.00%; plus (B) the applicable Central Bank Rate Adjustment.

“Central Bank Rate Adjustment” shall mean for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the EURIBOR Rate for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period, (b) Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of SONIA for the five most recent RFR Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest SONIA applicable during such period of five RFR Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last RFR Business Day in such period or (c) any other Alternative Currency determined after the Closing Date, a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in the applicable Agreed Currency for a maturity of one month (or, in the event the EURIBOR Screen Rate for deposits in the applicable Agreed Currency is not available for such maturity of one month, shall be based on the EURIBOR Interpolated Rate as of such time); provided that if such rate shall be less than 0.00%, such rate shall be deemed to be 0.00%.

“CFC” shall mean a Subsidiary of the Lead Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“CF Term Agent” shall mean JPMorgan, in its capacity as administrative agent and collateral agent under the CF Term Documents.

“CF Term Credit Documents” shall have the meaning ascribed to the term “Credit Documents” in the CF Term Loan Credit Agreement.

“CF Term Documents” shall mean the CF Term Loan Credit Agreement and any other Credit Documents (as defined in the CF Term Loan Credit Agreement).

“CF Term Fixed Incremental Amount” shall mean the amounts set forth in clauses (a) and (b) of the definition of “Incremental Amount” in the CF Term Loan Credit Agreement.

 

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“CF Term Incremental Equivalent Debt” shall mean Indebtedness incurred pursuant to Section 10.04(xxvii) of the CF Term Loan Credit Agreement.

“CF Term Loan Credit Agreement” shall mean (i) the Term Loan Credit Agreement entered into as of the Closing Date as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof and thereof) by and among the Lead Borrower, Holdings, the lenders party thereto in their capacities as lenders thereunder, the CF Term Agent and the other agents and parties party thereto from time to time, and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to extend (subject to the limitations set forth herein and in the ABL Intercreditor Agreement) or refinance in whole or in part the Indebtedness and other obligations outstanding under (x) the credit agreement referred to in clause (i) or (y) any subsequent CF Term Loan Credit Agreement, unless such agreement or instrument expressly provides that it is not intended to be and is not a CF Term Loan Credit Agreement hereunder. Any reference to the CF Term Loan Credit Agreement hereunder shall be deemed a reference to any CF Term Loan Credit Agreement then in existence.

“CF Term Loans” shall have the meaning ascribed to the term “Term Loans” in the CF Term Loan Credit Agreement.

“CF Term Refinancing Debt” shall have the meaning ascribed to the term “Refinancing Term Loans” in the CF Term Loan Credit Agreement.

“Change in Law” shall mean the occurrence after the Closing Date or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement, of (a) the adoption of or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 2.16, by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after such applicable date; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III (including CRD IV), shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” shall be deemed to occur if:

(a) any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, but excluding any employee benefit plan of such person or “group” and its subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than one or more Permitted Holders, shall have acquired beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) of Equity Interests of the Lead Borrower representing more than 50% of the aggregate ordinary voting power for the election of members of the board of directors of the Lead Borrower (determined on a fully diluted basis), unless the Permitted Holders otherwise have the right (pursuant to contract, proxy, ownership of Equity Interests or otherwise), directly or indirectly, to designate, nominate or appoint more than 50% of the members of the board of directors of the Lead Borrower;

(b) a “change of control” (or similar event) shall occur under (i) the CF Term Loan Credit Agreement, (ii) the Secured Notes Indenture or (iii) the definitive agreements pursuant to which any Refinancing Notes/Loans or Indebtedness permitted under Section 10.04(xxvii) or (xxix) was issued or incurred, in each case of this subclause (iii) with an aggregate outstanding principal amount in respect of such series of Refinancing Notes/Loans or other Indebtedness in excess of the Threshold Amount;

 

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(c) other than in connection with or after an Initial Public Offering, Holdings shall cease to own, directly or indirectly, (i) 100% of the Equity Interests of the Lead Borrower (other than in connection with or after an Initial Public Offering) or (ii) 100% of the Equity Interests (other than directors’ qualifying shares in de minimis amounts and Equity Interests of Foreign Subsidiaries issued to foreign nationals in de minimis amounts that are required by Requirements of Law) of the Canadian Lead Borrower, the APAC Lead Borrower or the UK Lead Borrower (except to the extent (x) any such Credit Party has been designated as an Unrestricted Subsidiary pursuant to Section 9.16, (y) any such Credit Party has been transferred, merged, amalgamated, consolidated, dissolved or liquidated into another entity pursuant to Section 10.02, or (z) all outstanding Loans and Commitments of the Subfacility with respect to which such Credit Party’s assets are included in the Borrowing Base have been repaid and terminated in full); or

(d) so long as Acquired Accounts are included in the Aggregate Borrowing Base, the Lead Borrower shall fail to beneficially own, directly or indirectly, 100% of the issued and outstanding Equity Interests of the ARPA Purchaser.

Notwithstanding anything to the contrary in this definition or any provision of Section 13d-3 of the Exchange Act, no person or “group” shall be deemed to beneficially own Equity Interests to be acquired by such person or “group” pursuant to a stock or asset purchase agreement, merger or amalgamation agreement, option agreement, warrant agreement or similar agreement (or voting agreement related thereto) until the consummation of the acquisition of the Equity Interests in connection with the transactions contemplated by such agreement.

“Charges” has the meaning assigned to it in Section 13.10.

“Chattel Paper” shall mean all “chattel paper,” as such term is defined in Article 9 of the UCC as in effect on the Closing Date in the State of New York.

“Claim” shall have the meaning provided in Section 13.04(g).

“Class” (a) when used with respect to Lenders, refers to whether such Lender has a Revolving Loan, Protective Advance or Commitment with respect to the U.S. Subfacility, the UK Subfacility, the Canadian Subfacility or the APAC Subfacility or a Term Loan or Term Loan Commitment, (b) when used with respect to Commitments, refers to whether such Commitments are U.S. Revolving Commitments, UK Revolving Commitments, Canadian Revolving Commitments, APAC Revolving Commitments or Term Loan Commitments, and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Loans under the U.S. Subfacility, Revolving Loans under the UK Subfacility, Revolving Loans under the Canadian Subfacility, Revolving Loans under the APAC Subfacility, Protective Advances under the U.S. Subfacility, Protective Advances under the UK Subfacility, Protective Advances under the Canadian Subfacility, Protective Advances under the APAC Subfacility or Term Loans.

“Closing Date” shall mean July 2, 2021.

“Closing Date Cash Purchase” shall mean the portion of the Closing Date Cash Payment (as defined in the Acquisition Agreement) equal to the GCL Closing Cash (as defined in the Acquisition Agreement) in an amount not to exceed $400,000,000.

“Closing Date Material Adverse Effect” shall have the meaning ascribed to the term “Material Adverse Effect” in the Acquisition Agreement; provided that for the purposes of Section 6(A).14(b), the reference in such definition of Material Adverse Effect to “Acquired Companies” and to “Operating Companies” shall instead mean a reference to “Lead Borrower and its Subsidiaries”.

“Closing Date Mergers” shall have the meaning provided in the recitals hereto.

“CME Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).

“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time.

 

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“Collateral” shall mean, collectively, the U.S. Collateral and the Foreign Collateral; provided that in no event shall the term “Collateral” include any interests in Real Property or Excluded Collateral.

“Collateral Agent” shall mean JPMorgan, in its capacity as collateral agent for the Secured Creditors pursuant to this Agreement and the Security Documents and, where the context requires, includes JPMorgan in its capacity as security trustee as set forth herein or in any applicable Security Documents, and shall include its branch offices and affiliates in any applicable jurisdiction that it from time to time designates for the purposes of performing any of its obligations hereunder in such capacity and any successor to the Collateral Agent appointed pursuant to Section 12.10.

“Collection Account” has the meaning given to that term in Section 9.17(e)(i).

“Collections” has the meaning given to that term in Section 9.17(e)(i).

“Commitment” shall mean any of the commitments of any Lender, whether a Revolving Commitment, LC Commitment, Swingline Commitment, Extended Revolving Commitment, Initial Term Loan Commitment, Refinancing Term Loan Commitment or an Incremental Term Loan Commitment of such Lender.

“Commitment Letter” shall mean that certain commitment letter, dated as of December 9, 2020, by and among the Lead Borrower, JPMorgan, Bank of America, N.A., BofA Securities, Inc. and Morgan Stanley Senior Funding, Inc., as amended, supplemented or otherwise modified by the joinders thereto entered into among the Lead Borrower, JPMorgan, Bank of America, N.A., BofA Securities, Inc., Morgan Stanley Senior Funding, Inc. and the other Commitment Parties.

“Commitment Parties” shall have the meaning provided to such term in the Commitment Letter.

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

“Compliance Certificate” shall mean a certificate of a Responsible Officer of the Lead Borrower substantially in the form of Exhibit J hereto, or otherwise in form and substance reasonably satisfactory to the Administrative Agent.

“Consolidated Depreciation and Amortization Expense” shall mean, with respect to any Person, for any period, the total amount of depreciation and amortization expense, including (i) amortization of deferred financing fees and debt issuance costs, commissions, fees and expenses, (ii) amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits and (iii) amortization of intangibles (including, without limitation, amortization of turnaround costs, goodwill and organizational costs) (excluding any such adjustment to the extent that it represents an accrual of or reserve for cash expenditures in any future period except to the extent such adjustment is subsequently reversed), in each case of such Person and its Restricted Subsidiaries for such period on a consolidated basis in accordance with U.S. GAAP.

“Consolidated EBITDA” shall mean, with respect to any Person for any period, Consolidated Net Income of such Person for such period; plus (without duplication):

(i) provision for taxes based on income, profits, revenue or capital (including state, foreign income taxes, franchise taxes, excise, value added and similar taxes), franchise taxes, foreign withholding taxes (in each case, including any future taxes or levies that replace or are intended to be in lieu of taxes and any penalties and interest related to taxes or arising from tax examinations) of such Person and its Restricted Subsidiaries for such period, and including an amount equal to the tax distributions actually made to the holders of the Equity Interests of such Person or any direct or indirect parent of such Person in respect of such period in accordance with Section 10.03(vi) as though such amounts had been paid as income taxes directly by such Person, in each case, to the extent such provision for taxes was deducted in computing such Consolidated Net Income; plus

 

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(ii) the Consolidated Depreciation and Amortization Expense of such Person and its Restricted Subsidiaries for such period, to the extent such expenses were deducted in computing such Consolidated Net Income; plus

(iii) the Consolidated Interest Charges of such Person and its Restricted Subsidiaries for such period, to the extent such Consolidated Interest Charges were deducted in computing such Consolidated Net Income; plus

(iv) any other non-cash losses, charges and expenses of such Person and its Restricted Subsidiaries (including write-offs and write-downs) for such period, to the extent such non-cash losses, charges or expenses were included in computing such Consolidated Net Income; provided that if any such non-cash charge represents an accrual or reserve for anticipated cash charges in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period; plus

(v) any losses from foreign currency transactions and foreign translations (including losses related to currency remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such period, to the extent such losses were taken into account in computing such Consolidated Net Income; plus

(vi) (a) the Specified Permitted Adjustments and (b) any other cost savings, operating expense reductions, operating improvements and synergies permitted to be added back to this definition pursuant to the definition of “Pro Forma Cost Savings” (including, without limitation, expenses attributable to the implementation of such cost savings initiatives and costs and expenses incurred after the Closing Date related to employment of terminated employees incurred by such Person during such period to the extent such costs and expenses were deducted in computing Consolidated Net Income) and in the case of this clause (b), subject to the Cost Savings Cap; plus

(vii) losses in respect of pension and post-employment benefits of such Person, as a result of the application of ASC 715, Compensation-Retirement Benefits, to the extent that such losses were deducted in computing such Consolidated Net Income; plus

(viii) the amount of fees, indemnities and expenses incurred or reimbursed by such Person pursuant to (a) the Advisory Agreement as in effect on the Closing Date during such period or pursuant to any amendment, modification or supplement thereto or replacement thereof, so long as the Advisory Agreement, as so amended, modified, supplemented or replaced, taken as a whole, is otherwise permitted hereunder and (b) Section 10.06(xii) hereunder; plus

(ix) any proceeds from business interruption insurance received by such Person during such period, to the extent the associated losses arising out of the event that resulted in the payment of such business interruption insurance proceeds were included in computing Consolidated Net Income; plus

(x) any fees and expenses related to a Qualified Securitization Transaction or any Receivables Facility to the extent such fees and expenses are included in computing Consolidated Net Income; plus

(xi) any contingent or deferred payments (including, without limitation, earn-out payments, noncompete payments and consulting payments) incurred in connection with the Acquisition, Permitted Acquisitions or any other acquisitions or Investments (including those consummated prior to the Closing Date), to the extent paid or accrued during such period; plus

(xii) the amount of loss or discount on sales of receivables and related assets to a Securitization Entity in connection with a Qualified Securitization Transaction or otherwise in connection with a Receivables Facility to the extent included in computing Consolidated Net Income; plus

 

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(xiii) the amount of any interest expense consisting of Subsidiary income attributable to minority equity interests of third parties in any Restricted Subsidiary of such Person that is not a Wholly-Owned Restricted Subsidiary of such Person; plus

(xiv) with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (i), (ii) and (iii) above relating to such joint venture corresponding to such Person’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) solely to the extent Consolidated Net Income of such joint venture was reduced thereby; minus

(xv) the amount of any gain in respect of pension and post-employment benefits as a result of the application of ASC 715, to the extent that such gains were taken into account in computing such Consolidated Net Income; minus

(xvi) any gains from foreign currency transactions and foreign translations (including gains related to currency remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such period, to the extent such gains were taken into account in computing such Consolidated Net Income; minus

(xvii) non-cash gains increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business and other than reversals of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period,

provided, that the Lead Borrower may, in its sole discretion, elect to not make any adjustment for any item pursuant to the foregoing clauses (i) through (xvii) above if any such item individually is less than $6,000,000 in any fiscal quarter.

“Consolidated Fixed Charge Coverage Ratio” shall mean, with respect to any Test Period, the ratio of (a) Consolidated EBITDA of the Lead Borrower and its Restricted Subsidiaries for such Test Period, minus (x) Capital Expenditures of the Lead Borrower and its Restricted Subsidiaries paid in cash (excluding the proceeds of any Indebtedness (other than Indebtedness hereunder)) for such Test Period, (y) the amount of cash payments made during such Test Period (net of cash refunds received during such period up to the amount of such cash payments) by the Lead Borrower and its Restricted Subsidiaries in respect of federal, state, local and foreign income taxes during such Test Period and (z) Dividends permitted by Section 10.03(xiii) or (xv) paid in cash for such Test Period to (b) Consolidated Fixed Charges for such Test Period, in each case, calculated on a Pro Forma Basis.

“Consolidated Fixed Charges” shall mean, with respect to any period, for the Lead Borrower and its Restricted Subsidiaries on a consolidated basis, (i) the sum, without duplication, of

(a) Consolidated Interest Charges for such period to the extent paid in cash (or accrued and payable on a current basis in cash) and (b) the aggregate amount of scheduled amortization payments of principal made during such period in respect of long-term Consolidated Indebtedness less (ii) the consolidated interest income of the Lead Borrower and its Restricted Subsidiaries for such period, whether received or accrued, to the extent such income was included in determining Consolidated Net Income. Notwithstanding the foregoing, for purposes of calculating Consolidated Fixed Charges for any period that includes a fiscal quarter (or portion thereof) prior to the Closing Date, Consolidated Fixed Charges shall be calculated from the period from the Closing Date to the date of determination divided by the number of days in such period and multiplied by 365. For purposes of this definition, interest on Capitalized Lease Obligations will be deemed to accrue at the interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligations in accordance with U.S. GAAP.

“Consolidated Indebtedness” shall mean, at any time, the sum of (without duplication) (i) all Capitalized Lease Obligations of the Lead Borrower and its Restricted Subsidiaries, (ii) all Indebtedness of the Lead Borrower and its Restricted Subsidiaries of the type described in clause (i)(A) of the definition of “Indebtedness” and (iii) all Contingent Obligations of the Lead Borrower and its Restricted Subsidiaries in respect of Indebtedness of any third Person of the type referred to in the preceding clauses (i) and (ii), in each case, determined on a consolidated basis in accordance with U.S. GAAP and calculated on a Pro Forma Basis; provided that Consolidated Indebtedness shall not

 

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include Indebtedness in respect of any Refinancing Notes/Loans or Permitted Notes that have been defeased or satisfied and discharged in accordance with the applicable indenture or with respect to which the required deposit has been made in connection with a call for repurchase or redemption to occur within the time period set forth in the applicable indenture, in each case to the extent such transactions are permitted by Section 10.07. For the avoidance of doubt, it is understood that obligations under any Receivables Facility and any Qualified Securitization Transaction do not constitute Consolidated Indebtedness.

“Consolidated Interest Charges” shall mean, with respect to any period, for the Lead Borrower and its Restricted Subsidiaries on a consolidated basis, all cash interest, premium payments, debt discount, charges and related fees and expenses, net of interest income, of the Lead Borrower and its Restricted Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with U.S. GAAP (including commissions, discounts, yield and other fees (including related interest expenses) related to any Qualified Securitization Transaction or any Receivables Facility), excluding (a) up-front or financing fees, transaction costs, commissions, expenses, premiums or charges, (b) costs associated with obtaining, or breakage costs in respect of swap or hedging agreements, (c) amortization of deferred financing costs and (d) all cash dividends, whether paid or accrued, on any series of preferred stock or any series of Disqualified Stock of such Person or any of its Restricted Subsidiaries, excluding items eliminated in consolidation, in each case, determined on a consolidated basis in accordance with U.S. GAAP. Notwithstanding the foregoing, for purposes of calculating Consolidated Interest Charges for any period that includes a fiscal quarter (or portion thereof) prior to the Closing Date (other than as a component of Consolidated EBITDA), Consolidated Interest Charges shall be calculated from the period from the Closing Date to the date of determination divided by the number of days in such period and multiplied by 365.

“Consolidated Net Income” shall mean, with respect to any specified Person for any period, the aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with U.S. GAAP; provided that:

(i) any after-tax effect of all extraordinary (as determined in accordance with U.S. GAAP prior to giving effect to Accounting Standards Update No. 2015-01, Income Statement—Extraordinary and Unusual Items (Subtopic 225-20), Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items), nonrecurring or unusual gains or losses or income or expenses or charges (including related to the Transaction) or any restructuring charges or reserves, including, without limitation, any expenses related to any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternate uses, retention, severance, system establishment cost, contract termination costs, costs to consolidate facilities and relocate employees, advisor fees and other out of pocket costs and non-cash charges to assess and execute operational improvement plans and restructuring programs, will be excluded;

(ii) any expenses, costs or charges incurred, or any amortization thereof for such period, in connection with any equity issuance, Investment, acquisition, disposition, recapitalization or incurrence or repayment of, or amendment or waiver of the operative documents with respect to, Indebtedness permitted under this Agreement, including a refinancing thereof (in each case whether or not successful) (including any such costs and charges incurred in connection with the Transaction), and all gains and losses realized in connection with any business disposition or any disposition of assets outside the ordinary course of business or the disposition of securities or the early extinguishment of Indebtedness or derivative instruments, together with any related provision for taxes on any such gain, loss, income or expense will be excluded;

(iii) the net income (or loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be excluded; provided that the income of such Person will be included to the extent of the amount of dividends or similar distributions paid in cash (or converted to cash) to the specified Person or a Restricted Subsidiary of the Person;

(iv) the net income (or loss) of any Person and its Restricted Subsidiaries will be calculated without deducting the income attributed to, or adding the losses attributed to, the minority equity interests of third parties in any non-Wholly-Owned Restricted Subsidiary except to the extent of the dividends paid in cash (or convertible into cash) during such period on the shares of Equity Interests of such Restricted Subsidiary held by such third parties;

 

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