SENIOR SUBORDINATED BRIDGE LOAN AGREEMENT dated as of October 12, 2007 and Amended and Restated as of March 12, 2008 among

Exhibit 10.7

 

SENIOR SUBORDINATED BRIDGE LOAN AGREEMENT

dated as of

October 12, 2007

and

Amended and Restated as of March 12, 2008

among

VH MERGERSUB, INC.

(TO BE MERGED WITH AND INTO

CDW CORPORATION),

as Borrower,

VH HOLDINGS, INC.,

as Holdings,

The Subsidiary Guarantors Party Hereto,

JPMORGAN CHASE BANK, N.A.

as Administrative Agent,

and

The Other Lenders Party Hereto,

 

J.P. MORGAN SECURITIES INC.,

as Joint Lead Arranger and Joint Bookrunner,

LEHMAN BROTHERS INC.,

as Joint Lead Arranger, Joint Bookrunner and Co-Syndication Agent,

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Bookrunner and Co-Syndication Agent,

DEUTSCHE BANK SECURITIES INC.,

as Joint Bookrunner and Co-Syndication Agent

 

TABLE OF CONTENTS

 

 

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This SENIOR SUBORDINATED BRIDGE LOAN AGREEMENT (“ Agreement ”) is entered into as of March 12, 2008, among CDW Corporation, an Illinois corporation (“ CDW ”, the “ Company ” or the “ Borrower ”), VH HOLDINGS, INC., a Delaware corporation (“ Holdings ”), the SUBSIDIARY GUARANTORS party hereto (collectively, the “ Subsidiary Guarantors ” and, individually, a “ Subsidiary Guarantor ”), the LENDERS party hereto (collectively the “ Lenders ” and, individually, a “ Lender ”), and JPMORGAN CHASE BANK, N.A., as Administrative Agent.

PRELIMINARY STATEMENTS

The Borrower is party to the Senior Subordinated Bridge Loan Agreement dated as of October 12, 2007 (the “ Existing Bridge Facility ”) with VH MergerSub, Inc., an Illinois corporation (“ Merger Sub ”) (which on the Closing Date was merged with and into) the Company, Holdings, the Subsidiary Guarantors, the Lenders party thereto, and the Administrative Agent.

The parties to the Existing Bridge Facility have agreed to amend the Existing Bridge Facility in certain respects and to restate the Existing Bridge Facility as so amended as provided herein (as amended and restated, the “ Bridge Facility ”).

Accordingly, the parties hereto agree that on the Amendment Closing Date (as defined below) the Existing Bridge Facility will be prepaid in an amount not to exceed $190,000,000 and the Existing Bridge Facility shall be amended and restate to read as follows:

ARTICLE I

Definitions

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

“ Acquired Debt ” means, with respect to any specified Person:

(a) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, or to provide all or any portion of the funds or credit support utilized in connection with, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(b) Indebtedness secured by an existing Lien encumbering any asset acquired by such specified Person.

“ Additional Cap ” means $5,500,000 per annum, the per annum interest rate equivalent of which amount (determined reasonably by the Qualifying Bookrunners based upon the principal amount of the Loans, “Senior Loans” and/or “PIK Election

Loans” each under and as defined in the Senior Bridge Facility, as the case may be, at the time of designation) may be designated by the Qualifying Bookrunners to be used as part of the Total Cap, the “Senior Loans Total Cap” and/or the “PIK Election Loans Total Cap” each under and as defined in the Senior Bridge Facility.

“ Administrative Agent ” means JPMCB, in its capacity as administrative agent under the Bridge Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 9.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

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

“ Affiliate ” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the Person specified; provided , however , that no Lender (nor any of its Affiliates) shall be deemed to be an Affiliate of the Borrower or any of its subsidiaries by virtue of its capacity as a Lender hereunder.

“ Affiliate Transaction ” has the meaning provided in Section 6.05.

“ Agent-Related Persons ” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

“ Agents ” means, collectively, the Administrative Agent and the Supplemental Administrative Agents (if any).

“ Aggregate Commitments ” means the Commitments of all the Lenders.

“ Amendment Closing Date ” means the date on which the conditions precedent set forth in Section 4.02 shall have been satisfied.

“ Applicable Margin ” means (a) with respect to any Initial Loan that is a Eurocurrency Rate Loan, (i) 500 basis points for the Interest Period beginning on the Closing Date, (ii) 500 basis points for the second Interest Period applicable thereto, (iii) 550 basis points for the third Interest Period applicable thereto and (iv) 600 basis points for the fourth Interest Period applicable thereto and (b) with respect to any Initial Loan that is a Base Rate Loan, for any period, the Applicable Margin then applicable to Eurocurrency Rate Loans less 100 basis points.

“ Approved Fund ” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.

 

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“ Arrangers ” means each of J.P. Morgan Securities Inc. and Lehman Brothers Inc., in its capacity as Joint Lead Arranger under this Agreement.

“ Asset Sale ” means (1) the sale, conveyance, transfer, lease (as lessor) or other voluntary disposition (whether in a single transaction or a series of related transactions) of property or assets (including by way of a Sale and Lease-Back Transaction) of the Borrower (other than the sale of Equity Interests of the Borrower) or any of its Restricted Subsidiaries (each referred to in this definition as a “ disposition ”) or (2) the issuance or sale of Equity Interests of any Restricted Subsidiary (whether in a single transaction or a series of related transactions), in each case, other than:

(a) a disposition of Cash Equivalents or Investment Grade Securities or obsolete, damaged or worn out property or equipment in the ordinary course of business or inventory (or other assets) held for sale in the ordinary course of business and dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries or the disposition of inventory in the ordinary course of business;

(b) the disposition of all or substantially all of the assets of the Borrower in a manner permitted pursuant to Section 6.08 hereof or any disposition that constitutes a Change of Control;

(c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, pursuant to Section 6.01 hereof or the granting of a Lien permitted by Section 6.06 hereof;

(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Borrower or a Restricted Subsidiary) in any transaction or series of transactions with an aggregate fair market value of less than $25,000,000;

(e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Borrower or by the Borrower or a Restricted Subsidiary to another Restricted Subsidiary;

(f) the sale, lease, assignment, sublease, license or sublicense of any real, intangible or personal property in the ordinary course of business;

(g) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

(h) foreclosures on assets or transfers by reason of eminent domain;

(i) disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business or in bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;

 

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(j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility;

(k) the issuance by a Restricted Subsidiary of Disqualified Stock or Preferred Stock that is permitted pursuant to Section 6.03 hereof;

(l) any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale and Lease-Back Transactions and Receivables Facility financings permitted under this Agreement;

(m) transfers of property subject to casualty or condemnation proceedings (including in lieu thereof) upon the receipt of the net cash proceeds therefor;

(n) the abandonment of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Borrower or a Restricted Subsidiary are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole;

(o) voluntary terminations of Hedging Obligations;

(p) any Permitted Asset Swap; and

(q) Sale and Lease-Back Transactions involving (i) real property owned on the Closing Date, (ii) property acquired not more than 180 days prior to such Sale and Lease-Back Transaction for cash in an amount at least equal to the cost of such property and (iii) other property for cash consideration if the sale is treated as an Asset Sale.

“ Asset Sale Offer ” has the meaning provided in Section 6.04.

“ Assignee ” has the meaning provided in Section 9.07(b).

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.07), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

“ Attorney Costs ” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.

“ Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“ Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus  ¹ / 2 of 1% and (b) the rate of interest per annum in effect for such day as announced from time to time by the Administrative Agent as its “prime rate” at its principal office in New York, New York. Any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the announcement of such change.

 

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“ Base Rate Loan ” means a Loan that bears interest at a rate based on the Base Rate.

“ Blockage Notice ” has the meaning provided in Section 11.03.

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

“ Board of Directors ” means:

(1) with respect to a corporation, the board of directors of the corporation;

(2) with respect to a partnership, the board of directors of the general partner of the partnership; and

(3) with respect to any other Person, the board or committee of such Person serving a similar function.

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Borrower or any Restricted Subsidiary to have been duly adopted by the Board of Directors, unless the context specifically requires that such resolution be adopted by a majority of the disinterested directors, in which case by a majority of such directors, and to be in full force and effect on the date of such certification and delivered to the Administrative Agent.

“ Borrower Materials ” has the meaning assigned to such term in Section 5.01.

“ Borrowing ” means the incurrence of the Initial Loans.

“ Borrowing Request ” has the meaning provided in Section 2.02(a).

“ Bridge Facility ” has the meaning provided in the preliminary statements to this Agreement.

“ Bridge Loan Documents ” means this Agreement, the promissory notes, if any, executed and delivered pursuant to Section 2.05(e), the Fee Letter, all guarantees of the Loans and all other agreements, instruments, documents and certificates executed and delivered to, or in favor of, the Administrative Agent or any of the Lenders in connection with this Agreement or the transactions contemplated hereby, in each case including any annexes, exhibits, appendices or schedules thereto, but excluding the Exchange Notes and the Exchange Note Indenture and any guarantees of the Exchange Notes or other documents related to the Exchange Note Indenture, including the Registration Rights Agreement.

 

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“ Business Day ” means each day which is not a Legal Holiday; provided that if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

“ Cap Designation Letter ” means a letter delivered to the Administrative Agent with a copy to the Borrower by the Qualifying Bookrunners designating all or any portion of the Unused Additional Cap to be used as part of the Total Cap.

“ Capital Stock ” means:

(a) in the case of a corporation, capital stock;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock;

(c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“ Capitalized Lease Obligation ” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP (except for temporary treatment of construction-related expenditures under EITF 97-10, “The Effect of Lessee Involvement in Asset Construction,” which will ultimately be treated as operating leases upon a Sale and Lease-Back Transaction).

“ Cash Contribution Amount ” means the aggregate amount of cash contributions made to the capital of the Borrower or any other Guarantor described in the definition of “Contribution Indebtedness.”

“ Cash Equivalents ” means:

(1) U.S. dollars;

(2) (a) Sterling, Canadian Dollars, Euro, or any national currency of any participating member state of the economic and monetary union contemplated by the Treaty on European Union or (b) in the case of the Borrower or a Restricted Subsidiary, such local currencies held by them from time to time in the ordinary course of business;

 

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(3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

(4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with (i) any lender under Senior Credit Facilities or an Affiliate thereof or (ii) any commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. Dollar Equivalent as of the date of determination) in the case of non-U.S. banks;

(5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;

(6) commercial paper rated P-1 by Moody’s or A-1 by S&P and in each case maturing within 24 months after the date of creation thereof;

(7) marketable short-term money market and similar securities having a rating of P-1 or A-1 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof;

(8) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;

(9) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

(10) [intentionally reserved];

(11) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated A- (or the equivalent thereof) or better by S&P or A3 (or the equivalent thereof) or better by Moody’s:

(12) shares of investment companies that are registered under the Investment Company Act of 1940 and substantially all the investments of which are one or more of the types of securities described in clauses (1) through (11) above; and

(13) in the case of any Foreign Subsidiary, investments of comparable tenure and credit quality to those described in the foregoing clauses (1) through

 

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(12) above or other high quality short term investments, in each case, customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes.

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.

“ Cash Interest ” has the meaning provided in Section 2.06(c).

“ Cash Pooling Arrangements ” means a deposit account arrangement among a single depository institution, the Borrower and one or more Foreign Subsidiaries involving the pooling of cash deposits in and overdrafts in respect of one or more deposit accounts (each located outside of the United States and any States and territories thereof) with such institution by the Borrower and such Foreign Subsidiaries for cash management purposes.

A “ Change of Control ” shall be deemed to have occurred if:

(a) the Permitted Investors cease to have the power, directly or indirectly, to vote or direct the voting of Equity Interests of the Borrower representing a majority of the ordinary voting power for the election of directors (or equivalent governing body) of the Borrower; provided that the occurrence of the foregoing event shall not be deemed a Change of Control if,

(i) any time prior to the consummation of a Qualified Public Offering, and for any reason whatsoever, (A) the Permitted Investors otherwise have the right, directly or indirectly, to designate (and do so designate) a majority of the board of directors of the Borrower or (B) the Permitted Investors own, directly or indirectly, of record and beneficially an amount of Equity Interests of the Borrower having ordinary voting power that is equal to or more than 50% of the amount of Equity Interests of the Borrower having ordinary voting power owned, directly or indirectly, by the Permitted Investors of record and beneficially as of the Closing Date (determined by taking into account any stock splits, stock dividends or other events subsequent to the Closing Date that changed the amount of Equity Interests, but not the percentage of Equity Interests, held by the Permitted Investors) and such ownership by the Permitted Investors represents the largest single block of Equity Interests of the Borrower having ordinary voting power held by any person or related group for purposes of Section 13(d) of the Securities Exchange Act of 1934, or

(ii) at any time after the consummation of a Qualified Public Offering, and for any reason whatsoever, (A) no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 as in effect on the date hereof, but excluding any employee benefit plan of such

 

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Person and its subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), excluding the Permitted Investors, shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the greater of (x) 35% of outstanding Equity Interests of the Borrower having ordinary voting power and (y) the percentage of the then outstanding Equity Interests of the Borrower having ordinary voting power owned, directly or indirectly, beneficially and of record by the Permitted Investors, and (B) during each period of 12 consecutive months, a majority of the board of directors of the Borrower shall consist of the Continuing Directors; or

(b) any change in control (or similar event, however denominated) with respect to the Borrower or any Restricted Subsidiary shall occur under and as defined in each of the Senior Secured Revolving Credit Agreement, the Senior Secured Term Loan Agreement or the Senior Bridge Loan Agreement to the extent the Indebtedness thereunder constitutes Material Indebtedness of the Borrower or any Restricted Subsidiary; or

(c) at any time prior to the consummation of a Qualified Public Offering, Holdings shall directly or indirectly own, beneficially and of record, less than 100% of the issued and outstanding Equity Interests of the Borrower.

“ Change of Control Offer ” has the meaning provided in Section 6.09(b).

“ Change of Control Payment Date ” has the meaning provided in Section 6.09(b).

“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01, which date was October 12, 2007.

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules and regulations related thereto.

“ Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make an Initial Loan hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Loan to be made by such Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.07. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01 , or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments is $940,000,000.

“ Common Stock ” of any Person means Capital Stock in such Person that does not rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to Capital Stock of any other class in such Person.

 

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“ Compensation Period ” has the meaning provided in Section 2.11(d)(ii).

“ consolidated ” with respect to any Person refers to such Person consolidated with its Restricted Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such Person.

“ Consolidated Depreciation and Amortization Expense ” means, with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, and other non-cash charges (excluding any non-cash item that represents an accrual or reserve for a cash expenditure for a future period) of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

“ Consolidated Interest Expense ” means, with respect to any Person for any period, without duplication, the sum of:

(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest expense (but excluding any non-cash interest expense attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, (f) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (g) costs of surety bonds in connection with financing activities, and excluding (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other financing fees and (z) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility; plus

(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

(3) interest income of such Person and its Restricted Subsidiaries for such period.

For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

“ Consolidated Net Income ” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided , however , that (without duplication),

 

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(1) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses (including relating to the Transactions, including, but not limited to, up to $20,000,000 in retention bonuses to be paid in 2008 to employees of the Borrower for continued employment through 2007 and the payment of up to $53,000,000 to participants in the Krasny Plan within 60 days of the Closing Date), severance, integration costs, relocation costs, transition costs, other restructuring costs, litigation settlement or losses and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded; provided that, solely for the purpose of determining the amounts available for Restricted Payments under Section 6.01(d)(3), such losses, costs, charges or other expenses shall be excluded only to the extent they are non-cash and will not require cash settlement in the future (it being understood that the payment of up to $53,000,000 referenced above shall be considered “non-cash” for this purpose),

(2) the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

(3) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,

(4) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of gains or losses (less all accrued fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,

(5) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided , that Consolidated Net Income of such Person shall be (A) increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to such Person or a Subsidiary thereof that is the Borrower or a Restricted Subsidiary in respect of such period (subject in the case of dividends paid or distributions made to a Restricted Subsidiary (other than a Guarantor) to the limitations contained in clause (6) below) and (B) decreased by the amount of any equity of the Borrower in a net loss of any such Person for such period to the extent the Borrower has funded such net loss in cash with respect to such period,

(6) solely for the purpose of determining the amount available for Restricted Payments under clause (3) of the first paragraph of Section 6.01 hereof, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded if the declaration or payment of dividends or similar

 

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distributions by that Restricted Subsidiary of its Net Income is not wholly permitted at the date of determination without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived, provided , that Consolidated Net Income of the Borrower will be, subject to the exclusion contained in clause (3) above, increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiary thereof (subject to the provisions of this clause (6)) in respect of such period, to the extent not already included therein,

(7) effects of purchase accounting adjustments (including the effects of such adjustments pushed down to such Person and such Subsidiaries) in component amounts required or permitted by GAAP, resulting from the application of purchase accounting in relation to the Transactions or any consummated acquisition or the amortization or write-up, write-down or write-off of any amounts thereof, net of taxes, shall be excluded,

(8) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments, in each case to the extent permitted hereunder, shall be excluded,

(9) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) impairment charge or asset write-off, write-up or write-down (other than write-offs or write-downs of inventory or receivables), in each case, pursuant to GAAP and the amortization of assets or liabilities, including intangibles arising (including goodwill and organizational costs) pursuant to GAAP shall be excluded,

(10) any pro forma after-tax effect (using a reasonable estimate based on applicable tax rates) of non-cash compensation or other expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights or as a result of the Krasny Plan shall be excluded,

(11) (i) in connection with the operation of the Krasny Plan, (i) tax withholding payments made in cash to the IRS in connection with in-kind withholding for payments to participants in Equity Interests of any indirect or direct parent of the Company shall be excluded; provided that the maximum add-back to Consolidated Net Income shall be no greater than $1,000,000 in any four quarter period; and (ii) payments made in cash to the Circle of Service Foundation, Inc. in an amount not in excess of the amount of the net tax benefit to the Company as a result of the implementation and continuing operation of the Krasny Plan shall be excluded, and

 

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(12) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with the Transactions and any acquisition, Investment, disposition, dividend or similar Restricted Payments, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing or recapitalization transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded.

Notwithstanding the foregoing, for the purpose of Section 6.01 hereof only, there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Borrower and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments made by the Borrower and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments made by the Borrower and any Restricted Subsidiary, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted under clause (3)(d) of the first paragraph of Section 6.01 hereof.

“ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing or having the economic effect of guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,

(1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,

(2) to advance or supply funds

(a) for the purchase or payment of any such primary obligation, or

(b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor,

(3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof, or

(4) as an account party with respect to any letter of credit, letter of guaranty or bankers’ acceptance.

 

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“ Continuing Directors ” means the directors of the Borrower on the Closing Date, as elected or appointed after giving effect to the Merger and the other transactions contemplated hereby, and each other director, if, in each case, such other director’s nomination for election to the board of directors of the Borrower is approved by a majority of the then Continuing Directors, such other director is appointed, approved or recommended by a majority of the then Continuing Directors or such other director receives the vote of the Permitted Investors or is designated or appointed by the Permitted Investors in his or her election by the stockholders of the Borrower.

“ Contribution Indebtedness ” means Indebtedness of the Borrower or any Guarantor in an aggregate principal amount not greater than one times the aggregate amount of cash contributions (other than Excluded Contributions) made to the capital of the Borrower or such Guarantor after the Closing Date; provided that:

(1) if the aggregate principal amount of such Contribution Indebtedness is greater than one times such cash contribution amount to the capital of the Borrower or such Guarantor, as applicable, the amount of such excess shall be (a) Subordinated Indebtedness (other than Secured Indebtedness) and (b) Indebtedness with a Stated Maturity equal to or later than the Stated Maturity of the Exchange Notes, and

(2) such cash contribution amount is not applied to make Restricted Payments.

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

“ Conversion Date ” means October 10, 2008.

“ Conversion Spread ” means, with respect to any Extended Loan, 50 basis points during the Interest Period beginning on the Conversion Date, which amount shall increase by an additional 50 basis points at the beginning of each subsequent three-month period.

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Loans required to be funded by it hereunder within one Business Day of

 

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the date required to be funded by it hereunder, unless the subject of a good faith dispute (or a good faith dispute that is subsequently cured), (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute (or a good faith dispute that is subsequently cured), or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

“ Designated Non-cash Consideration ” means the fair market value of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.

“ Designated Preferred Stock ” means Preferred Stock of the Borrower or any direct or indirect parent company of the Borrower (other than Disqualified Stock of the Borrower), that is issued for cash (other than to Holdings or any of its Subsidiaries or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3)(b) of the first paragraph of Section 6.01 hereof.

“ Designated Senior Indebtedness ” means:

(a) any Indebtedness outstanding under the Senior Secured Revolving Credit Facility, Senior Secured Term Loan Facility and Hedging Obligations;

(b) any Indebtedness outstanding under the Senior Exchange Note Indenture and Senior Bridge Loan Agreement; and

(c) any other Senior Indebtedness permitted under this Agreement that, at the date of determination, has an aggregate principal amount outstanding of at least $50,000,000 and is specifically designated by the Borrower in the instrument evidencing or governing such Senior Indebtedness as “Designated Senior Indebtedness” for purposes of this Agreement.

“ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any security into which it is convertible or for which it is putable or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable (other than as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than as a result of a change of control or asset sale), in whole or in part, in each case prior to the earlier of the Maturity Date or the date the Loans are repaid in full; provided , however , that if such Capital Stock is issued to any plan for the benefit of employees of the Borrower or any of its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

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“ Dollar ” and “ $ ” mean lawful money of the United States.

“ Domestic Subsidiaries ” means, with respect to any Person, any subsidiary of such Person other than a Foreign Subsidiary.

“ EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period

(1) increased (without duplication) by:

(a) provision for taxes based on income or profits or capital (or any alternative tax in lieu thereof), including, without limitation, foreign, state, franchise and similar taxes and foreign withholding taxes of such Person and such subsidiaries paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income, including payments made pursuant to any tax sharing agreements or arrangements among the Borrower, its Restricted Subsidiaries and any direct or indirect parent company of the Borrower (so long as such tax sharing payments are attributable to the operations of the Borrower and its Restricted Subsidiaries); plus

(b) Fixed Charges of such Person and such subsidiaries for such period to the extent the same was deducted (and not added back) in calculating such Consolidated Net Income; plus

(c) Consolidated Depreciation and Amortization Expense of such Person and such subsidiaries for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus

(d) any fees, costs, commissions, expenses or other charges (other than Depreciation or Amortization Expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness permitted to be incurred under this Agreement (including a refinancing thereof) (whether or not successful), including (i) any expensing of bridge, commitment or other financing fees, (ii) such fees, costs, commissions, expenses or other charges related to the offering of the Exchange Notes, the Senior Exchange Notes, the Bridge Facility, the Senior Bridge Facility, the Senior Secured Revolving Credit Facility and the Senior Secured Term Loan Facility, (iii) any such fees, costs (including call premium), commissions, expenses or other charges related to any amendment or other modification of the Exchange Notes, the Senior Exchange Notes, the Bridge Facility, the Senior Bridge Facility, the Senior Secured Revolving Credit Facility and the Senior Secured Term Loan Facility and (iv) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

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(e) any other non-cash charges, expenses or losses including any write-offs or write-downs and any non-cash expense relating to the vesting of warrants, reducing Consolidated Net Income for such period ( provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA in such future period to the extent paid, and excluding amortization of a prepaid cash item that was paid in a prior period); plus

(f) the amount of management, monitoring, consulting, transaction and advisory fees and related expenses paid in such period to the Sponsor pursuant to the Sponsor Management Agreement (as in effect on the Closing Date) deducted (and not added back) in computing Consolidated Net Income; plus

(g) the amount of loss on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility deducted (and not added back) in computing Consolidated Net Income; plus

(h) costs or expense deducted (and not added back) in computing Consolidated Net Income by such Person or any such subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of an issuance of Equity Interest of the Borrower (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation of the amount available for Restricted Payments under clause (3) of the first paragraph of Section 6.01 hereof; plus

(i) the amount of net cost savings and acquisition synergies projected by the Borrower in good faith to be realized during such period (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period) as a result of specified actions taken or initiated in connection with the Transactions or any acquisition or disposition by the Borrower or any Restricted Subsidiary, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of EBITDA from such actions; provided that (i) such cost savings are reasonably identifiable and factually supportable, (ii) such actions are taken within 18 months after the Closing Date or the date of such acquisition or disposition and (iii) the aggregate amount of costs savings added pursuant to this clause (i) shall not exceed the greater of (x) $50,000,000 and (y) 10% of the Borrower’s EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date; plus

 

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(j) any net after-tax non-recurring, extraordinary or unusual gains or losses (less all fees and expenses relating thereto) or expenses; plus

(k) to the extent covered by insurance and actually reimbursed or otherwise paid, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed or otherwise paid by the insurer and only to the extent that such amount is (i) not denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed or otherwise paid within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed or otherwise paid within such 365 days), expenses with respect to liability or casualty events and expenses or losses relating to business interruption; plus

(l) expenses to the extent covered by contractual indemnification or refunding provisions in favor of the Borrower or a Restricted Subsidiary and actually paid or refunded, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be paid or refunded by the indemnifying party or other obligor and only to the extent that such amount is (i) not denied by the applicable indemnifying party or obligor in writing within 90 days and (ii) in fact reimbursed within 180 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 180 days); plus

(m) any non-cash increase in expenses (A) resulting from the revaluation of inventory (including any impact of changes to inventory valuation policy methods) or (B) due to purchase accounting associated with the Transactions or any future acquisitions;

(2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person and such subsidiaries for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period; and

(3) increased or decreased by (without duplication):

(a) any net gain or loss resulting in such period from Hedging Obligations and the application of Statement of Financial Accounting Standards No. 133 and International Accounting Standards No. 39 and their respective related pronouncements and interpretations; plus or minus, as applicable,

(b) any net gain or loss included in calculating Consolidated Net Income resulting in such period from currency translation gains or losses related to currency remeasurements of indebtedness (including any net loss or gain resulting from hedge agreements for currency exchange risk).

 

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“ Eligible Assignee ” means any assignee permitted by and consented to in accordance with Section 9.07.

“ Environmental Laws ” means all applicable federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, directives and orders (including consent orders), having the force and effect of law, in each case, relating to protection of the environment or natural resources, or to human health and safety as it relates to protection from environmental hazards.

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

“ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

“ Equity Investment ” means the contribution by the Equity Investors, to fund a portion of the Merger, of an amount in cash to CDW Holdings LLC, and in turn to Holdings, in exchange for Equity Interests (which cash will be contributed to Merger Sub in exchange for Equity Interests in Merger Sub), which together with the amount of any rollover equity issued to existing shareholders of CDW, shall be no less than 25.0% of the pro forma total consolidated capitalization of Holdings.

“ Equity Investors ” means the Sponsor and the Management Stockholders.

“ Equity Offering ” means any public or private sale of Common Stock or Preferred Stock of the Borrower or any of its direct or indirect parent companies (excluding Disqualified Stock of such entity), other than (1) public offerings with respect to Common Stock of the Borrower or of any of its direct or indirect parent companies registered on Form S-4 or Form S-8, (2) any such public or private sale that constitutes an Excluded Contribution or (3) an issuance to any Subsidiary of the Borrower.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that is under common control with any Loan Party under Section 414 of the Code or Section 4001 of ERISA.

 

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“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, but excluding any event for which the 30-day notice period is waived, with respect to a Pension Plan, (b) any “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, or the failure to satisfy any statutory funding requirement that results in a Lien, with respect to a Pension Plan, (c) the incurrence by any Loan Party or an ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or the withdrawal or partial withdrawal of any Loan Party or an ERISA Affiliate from any Pension Plan or Multiemployer Plan, (d) the filing or a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice of intent to terminate any Pension Plan or Multiemployer Plan or to appoint a trustee to administer any Pension Plan, (e) the adoption of any amendment to a Pension Plan that would require the provision of security pursuant to the Code, ERISA or other applicable law, (f) the receipt by any Loan Party or any ERISA Affiliate of any notice concerning statutory liability arising from the withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, (g) the occurrence of a “prohibited transaction” (within the meaning of Section 4975 of the Code) with respect to which the Borrower or any Restricted Subsidiary is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which the Borrower or any Restricted Subsidiary could reasonably be expected to have any liability, (h) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of any Pension Plan or Multiemployer Plan or the appointment of a trustee to administer any Pension Plan or (i) any other extraordinary event or condition with respect to a Pension Plan or Multiemployer Plan which could reasonably be expected to result in a Lien or any acceleration of any statutory requirement to fund all or a substantial portion of the unfunded accrued benefit liabilities of such plan.

“ Eurocurrency Rate ” means, for any Interest Period with respect to any Eurocurrency Rate Loan:

(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Dow Jones Market screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London Interbank Market for deposits of amounts in the relevant currency for delivery on the first day of such Interest Period, or

(b) if the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall not be available, the rate per

 

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annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London Interbank Market for deposits of amounts in the relevant currency for delivery on the first day of such Interest Period, or

(c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan with a term equivalent to such Interest Period would be offered by a London Affiliate of the Administrative Agent to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period or, if different, the date on which quotations would customarily be provided by leading banks in the London Interbank Market for deposits of amounts in the relevant currency for delivery on the first day of such Interest Period.

“ Eurocurrency Rate Loan ” means a Loan that bears interest at a rate based on the Eurocurrency Rate.

“ Event of Default ” has the meaning provided in Article VII.

“ Excess Proceeds ” has the meaning provided in Section 6.04.

“ Exchange ” has the meaning provided in Section 2.03(b)(i).

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

“ Exchange Date ” has the meaning provided in Section 2.03(b)(ii).

“ Exchange Note ” means (a) the Notes (as defined in the Exchange Note Indenture) (including any Increasing Rate Exchange Notes and Fixed Rate Exchange Notes (unless the context otherwise requires)) issued under the Exchange Note Indenture in exchange for one or more Loans, one or more other Exchange Notes or in respect of interest with respect to one or more Exchange Notes, substantially in the form attached as an exhibit to the Exchange Note Indenture and (b) if and when issued as provided in the Registration Rights Agreement or otherwise registered under the Securities Act (as defined herein) and issued, the Borrower’s senior subordinated exchange notes due 2017 issued in the Registered Exchange Offer (as defined in the Registration Rights Agreement) in exchange for any Exchange Notes or otherwise registered under the Securities Act.

 

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“ Exchange Note Indenture ” means the Senior Subordinated Exchange Note Indenture in the form of Exhibit B hereto to be entered into pursuant to Section 5.08(a) among the Borrower, Holdings, the Subsidiary Guarantors and the trustee thereunder relating to the issuance of the Exchange Notes.

“ Exchange Request ” has the meaning provided in Section 2.03(b)(iii).

“ Excluded Contribution ” means net cash proceeds, marketable securities or Qualified Proceeds, in each case received by the Borrower and its Restricted Subsidiaries from:

(1) contributions to its common equity capital; and

(2) the sale (other than to a Subsidiary or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower or any Subsidiary) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock),

in each case designated as Excluded Contributions pursuant to an Officer’s Certificate on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (3)(c) of the first paragraph of Section 6.01 hereof.

“ Existing Debt ” means Indebtedness outstanding under that certain unsecured line of credit of CDW with The Northern Trust Company, as evidenced by that certain Line of Credit Demand Note dated July 25, 2001 of CDW in favor of The Northern Trust Company.

“ Existing Inventory Financing Agreements ” means the following agreements, in each case, as amended, supplemented, refinanced, refunded or otherwise modified and in effect from time to time: (i) the Inventory Financing Agreement, dated as of the Closing Date, by and among GE Commercial Distribution Finance Corporation, CDW Logistics, Inc., an Illinois corporation, Berbee Information Networks Corporation, a Wisconsin corporation, CDW Government, Inc., an Illinois corporation, and CDW Direct, LLC, an Illinois limited liability company and (ii) the Agreement for Inventory Financing, dated as of the Closing Date, by and among IBM Credit LLC, a Delaware limited liability company, CDW Logistics, Inc., an Illinois corporation, and Berbee Information Networks Corporation, a Wisconsin corporation.

“ Extended Loan Interest Rate ” has the meaning provided in Section 2.06(a)(ii).

“ Extended Loans ” means Loans that remain outstanding on and after the Conversion Date.

“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published

 

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by the Federal Reserve Bank on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of  ¹ / 100 of 1%) of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“ Fee Letter ” means the Amended and Restated Fee Letter dated June 27, 2007, between Holdings, Merger Sub, Lehman Brothers Commercial Bank, Lehman Commercial Paper Inc., Lehman Brothers Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities Inc., Morgan Stanley Senior Funding, Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch and Deutsche Bank Securities Inc.

“ Financial Officer ” of any Person means the chief executive officer, the president, chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller of such Person.

“ Fixed Charge Coverage Ratio ” means, with respect to any Person for any period consisting of such Person and its Restricted Subsidiaries’ most recently ended four fiscal quarters for which internal financial statements are available, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Borrower or any Restricted Subsidiary incurs, assumes, guarantees or repays any Indebtedness or issues or redeems Disqualified Stock or Preferred Stock, in each case subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “ Calculation Date ”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or repayment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period and as if the Borrower or Restricted Subsidiary had not earned the interest income actually earned during such period in respect of such cash used to repay, repurchase, defease or otherwise discharge such Indebtedness.

If Investments, acquisitions, dispositions, mergers or consolidations have been made by the Borrower or any Restricted Subsidiary during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Calculation Date, then the Fixed Charge Coverage Ratio shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers or consolidations (and the change in any associated Fixed Charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period.

If since the beginning of such period any Person (that subsequently became a Restricted Subsidiary or was merged with or into the Borrower or any Restricted Subsidiary since the beginning of such period) shall have made any

 

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Investment, acquisition, disposition, merger or consolidation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger or consolidation had occurred at the beginning of the applicable four-quarter period.

For purposes of this definition, whenever pro forma effect is to be given to an Investment, acquisition, disposition, merger or consolidation (including, without limitation, the Transactions) and the amount of income or earnings relating thereto, the pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Borrower and shall comply with the requirements of Rule 11-02 of Regulation S-X promulgated by the SEC, except that such pro forma calculations may include operating expense reductions for such period resulting from the transaction which is being given pro forma effect that (A) have been realized or (B) for which the steps necessary for realization have been taken (or are taken concurrently with such transaction) or (C) for which the steps necessary for realization are reasonably expected to be taken within the 18-month period following such transaction and, in each case, including, but not limited to, (a) reduction in personnel expenses, (b) reduction of costs related to administrative functions, (c) reduction of costs related to leased or owned properties and (d) reductions from the consolidation of operations and streamlining of corporate overhead, provided that in each case such adjustments are set forth in an Officer’s Certificate signed by the Borrower’s chief financial officer and another Officer which states (i) the amount of such adjustment or adjustments, (ii) in the case of items (B) or (C) above, that such adjustment or adjustments are based on the reasonable good faith beliefs of the Officers executing such Officer’s Certificate at the time of such execution and (iii) that any related incurrence of Indebtedness is permitted pursuant to this Agreement. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if the related hedge has a remaining term in excess of twelve months).

Interest on a Capitalized Lease Obligation shall be deemed to accrue at the interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Borrower may designate.

“ Fixed Charges ” means, with respect to any Person for any period, the sum of, without duplication, (1) Consolidated Interest Expense (excluding amortization/accretion of original issue discount (including any original issue discount

 

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created by fair value adjustments to Indebtedness in existence as of the Closing Date as a result of purchase accounting)) of such Person for such period and (2) all cash dividends paid during such period (excluding items eliminated in consolidation) on any series of Preferred Stock or Disqualified Stock of such Person and its Subsidiaries.

“ Fixed Rate Exchange Note ” has the meaning provided in Section 2.03(b)(ii) hereto.

“ Foreign Lender ” has the meaning specified in Section 9.15(a)(i).

“ Foreign Plan ” means any pension plan, fund or other similar program (other than a government-sponsored plan) that (a) primarily covers employees of any Loan Party and/or any of its Restricted Subsidiaries who are employed outside of the United States and (b) is subject to any statutory funding requirement as to which the failure to satisfy results in a Lien or other statutory requirement permitting any governmental authority to accelerate the obligation of the Borrower or any Restricted Subsidiary to fund all or a substantial portion of the unfunded, accrued benefit liabilities of such plan.

“ Foreign Subsidiary ” means, with respect to any Person, (a) any subsidiary of such Person that is organized and existing under the laws of any jurisdiction outside the United States of America or (b) any subsidiary of such Person that has no material assets other than the Capital Stock of one or more subsidiaries described in clause (a) and other assets relating to an ownership interest in any such Capital Stock or subsidiaries.

“ Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

“ GAAP ” means United States generally accepted accounting principles.

“ Governmental Authority ” means the government of the United States of America or any other nation, any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“ Granting Lender ” has the meaning provided in Section 9.07(h).

“ guarantee ” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.

“ Guarantee ” means any guarantee of the Guaranteed Obligations by a Guarantor in accordance with the provisions of this Agreement. When used as a verb, “Guarantee” shall have a corresponding meaning.

 

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“ Guaranteed Obligations ” has the meaning provided in Section 10.01(a).

“ Guarantor ” means any Person that incurs a Guarantee of the Guaranteed Obligations; provided that upon the release and discharge of such Person from its Guarantee in accordance with this Agreement, such Person shall cease to be a Guarantor. On the Closing Date, the Guarantors will be Holdings and each Domestic Subsidiary of the Borrower that is a Restricted Subsidiary and a guarantor under the Senior Credit Facilities.

“ Hazardous Materials ” means any material, substance or waste classified, characterized or regulated as “hazardous,” “toxic,” “pollutant” or “contaminant” under any Environmental Laws.

“ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under:

(1) currency exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange, interest rate or commodity collar agreements; and

(2) other agreements or arrangements designed to manage, hedge or protect such Person with respect to fluctuations in currency exchange, interest rates or commodity, raw materials, utilities and energy prices.

“ Holdings ” has the meaning provided in the introductory paragraph to this Agreement.

“ Increasing Rate Exchange Note ” has the meaning assigned to such term in the Exchange Note Indenture.

“ Indebtedness ” means, with respect to any Person,

(1) any indebtedness (including principal and premium) of such Person, whether or not contingent:

(a) in respect of borrowed money,

(b) evidenced by bonds, notes, debentures or similar instruments,

(c) evidenced by letters of credit (or, without duplication, reimbursement agreements in respect thereof),

(d) Capitalized Lease Obligations,

(e) representing the deferred and unpaid balance of the purchase price of any property (other than Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor in each case accrued in the ordinary course of business, (ii) liabilities accrued in the ordinary course of business and (iii) earn-outs

 

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and other contingent payments in respect of acquisitions except to the extent that the liability on account of any such earn-outs or contingent payment becomes fixed, or

(f) representing any interest rate Hedging Obligations,

if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP,

(2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, the Indebtedness of another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business),

(3) Disqualified Stock of such Person, and

(4) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset (other than a Lien on Capital Stock of an Unrestricted Subsidiary) owned by such Person (whether or not such Indebtedness is assumed by such Person);

provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (i) Contingent Obligations incurred in the ordinary course of business, (ii) items that would appear as a liability on a balance sheet prepared in accordance with GAAP as a result of the application of EITF 97-10, “The Effect of Lessee Involvement in Asset Construction,” and (iii) obligations with respect to Receivables Facilities. The amount of Indebtedness of any person under clause (1)(d) above shall be deemed to equal the lesser of (x) the aggregate unpaid amount of such Indebtedness secured by such Lien and (y) the fair market value of the property encumbered thereby as determined by such person in good faith.

“ Indemnified Liabilities ” has the meaning provided in Section 9.05.

“ Indemnitees ” has the meaning provided in Section 9.05.

“ Independent Financial Advisor ” means an accounting, appraisal or investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Board of Directors of the Borrower, qualified to perform the task for which it has been engaged.

“ Information ” has the meaning provided in Section 9.08.

“ Initial Lenders ” means Lehman Commercial Paper Inc., Morgan Stanley Senior Funding, Inc., JPMorgan Chase Bank, N.A. and Deutsche Bank AG Cayman Islands Branch.

 

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“ Initial Loans ” has the meaning provided in Section 2.01(a).

“ Initial Promissory Note ” has the meaning provided in Section 2.03(b)(iii).

“ Interest Payment Date ” means (a) prior to and on the Conversion Date, (i) with respect to any Base Rate Loan, the last day of each March, June, September and December and (ii) with respect to any Eurocurrency Rate Loan, the last day of the Interest Period applicable to such Loan and, with respect to any Loan, the Conversion Date and (b) following the Conversion Date, with respect to any Loan, the last day of the Interest Period applicable to such Loan.

“ Interest Period ” means (a) prior to the Conversion Date, the period commencing on the Closing Date and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is three months thereafter, and each successive three-month period commencing on the last day of the preceding interest period and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is three months thereafter, and (b) on and after the Conversion Date, the period commencing on the Conversion Date (in the case of the first such Interest Period) or the last day of the immediately preceding Interest Period (in the case of each subsequent Interest Period) and ending on the earliest of (i) the next succeeding April 15 or October 15 and (ii) the Maturity Date; provided , however , that if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.

“ Investment Banks ” has the meaning provided in Section 5.10.

“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.

“ Investment Grade Securities ” means:

(1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);

(2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries;

(3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and

 

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(4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.

“ Investments ” means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees or other obligations), advances or capital contributions (including by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others, but excluding accounts receivable, trade credit, advances to customers, commission, travel, entertainment, relocation, payroll and similar advances to officers, directors and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. If the Borrower or any Subsidiary of the Borrower sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Borrower such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Borrower, the Borrower shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as provided in the third paragraph of Section 6.01 hereof.

For purposes of the definition of “Unrestricted Subsidiary” and Section 6.01 hereof, (i) “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided , however , that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the Borrower and (iii) any transfer of Capital Stock that results in an entity which became a Restricted Subsidiary after the Closing Date ceasing to be a Restricted Subsidiary shall be deemed to be an Investment in an amount equal to the fair market value (as determined by the Board of Directors of the Borrower in good faith as of the date of initial acquisition) of the Capital Stock of such entity owned by the Borrower and its Restricted Subsidiaries immediately after such transfer.

“ IRS ” means the United States Internal Revenue Service.

“ JPMCB ” means JPMorgan Chase Bank, N.A.

 

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“ Krasny Plan ” means the MPK Coworker Incentive Plan II, as in effect on the Closing Date.

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.

“ Legal Holiday ” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.

“ Lender ” has the meaning provided in the introductory paragraph to this Agreement and their respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender”.

“ Lending Office ” means, as to any Lender, the office of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office as a Lender may from time to time notify the Borrower and the Administrative Agent.

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in such asset and any filing of or agreement to give any financing statement under the Uniform Commercial Code or equivalent statutes) of any jurisdiction with respect to such asset; provided that in no event shall an operating lease or occupancy agreement be deemed to constitute a Lien.

“ Limited Non-Guarantor Debt Exceptions ” has the meaning provided in Section 6.03.

“ Loan Obligations ” means advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Subsidiaries arising under any Bridge Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any of its Subsidiaries of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Loan Obligations of the Loan Parties and the Guarantors under the Bridge Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Bridge Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees (including, without limitation, the fees referenced in

 

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Section 2.06), Attorney Costs, indemnities and other amounts payable by any Loan Party or any of its Subsidiaries under any Bridge Loan Document and (b) the obligation of any Loan Party or any of its Subsidiaries to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary.

“ Loan Parties ” means the Borrower and the Guarantors (and each individually, a “ Loan Party ”).

“ Loans ” means the loans made by the Lenders to the Borrower pursuant to Section 2.01(a), including the Initial Loans and the Extended Loans.

“ Mandatory Principal Redemption ” has the meaning provided in Section 2.05(d).

“ Mandatory Principal Redemption Amount ” has the meaning provided in Section 2.05(d).

“ Margin Stock ” has the meaning assigned to such term in Regulation U.

“ Material Adverse Effect ” means (a) on or prior to the Closing Date, a Target Material Adverse Effect and (b) after the Closing Date a material adverse effect (i) on the business, operations, assets, financial condition or results of operations of the Borrower and its Restricted Subsidiaries, taken as a whole or (ii) on any material rights and remedies of the Administrative Agent and the Lenders under any Bridge Loan Document, taken as a whole.

“ Material Domestic Subsidiary ” means, at any date of determination, each of the Borrower’s Domestic Subsidiaries (a) whose total assets at the last day of the most recent Test Period were equal to or greater than 5% of the Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose gross revenues for such Test Period were equal to or greater than 5% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that “Material Domestic Subsidiary” shall also include any of the Borrower’s Subsidiaries selected by the Borrower which is required to ensure that all Material Domestic Subsidiaries have in the aggregate (i) total assets at the last day of the most recent Test Period that were equal to or greater than 95% of the total assets of the Borrower and the Restricted Subsidiaries that are Domestic Subsidiaries at such date and (ii) gross revenues for such Test Period that were equal to or greater than 95% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries that are Domestic Subsidiaries for such period, in each case determined in accordance with GAAP.

“ Material Foreign Subsidiary ” means, at any date of determination, each of the Borrower’s Foreign Subsidiaries (a) whose total assets at the last day of the most recent Test Period were equal to or greater than 5% of the Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose gross revenues for such Test

 

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Period were equal to or greater than 5% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that “Material Foreign Subsidiary” shall also include any of the Borrower’s Subsidiaries selected by the Borrower which is required to ensure that all Material Foreign Subsidiaries have in the aggregate (i) total assets at the last day of the most recent Test Period that were equal to or greater than 95% of the total assets of the Borrower and the Restricted Subsidiaries that are Foreign Subsidiaries at such date and (ii) gross revenues for such Test Period that were equal to or greater than 95% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries that are Foreign Subsidiaries for such period, in each case determined in accordance with GAAP.

“ Material Indebtedness ” means Indebtedness (other than the Loans), or Hedging Obligations, of any one or more of the Borrower and its Restricted Subsidiaries in an aggregate principal amount greater than or equal to $100,000,000. For purposes of determining “Material Indebtedness”, the “principal amount” of the obligations of the Borrower or any Restricted Subsidiary in respect of any Hedging Obligation at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if the relevant hedging agreement were terminated at such time.

“ Material Subsidiary ” means any Material Domestic Subsidiary or any Material Foreign Subsidiary.

“ Maturity Date ” means October 12, 2017.

“ Maximum Rate ” has the meaning provided in Section 9.10.

“ Merger ” has the meaning specified in the preliminary statements to this Agreement.

“ Merger Agreement ” means that certain Agreement and Plan of Merger dated as of May 29, 2007 among Holdings, Merger Sub and CDW.

“ Merger Sub ” has the meaning assigned to such term in the preliminary statements to this Agreement.

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA under which the Borrower, any Restricted Subsidiary or any of their respective ERISA Affiliates has any obligation or liability (contingent or otherwise).

“ Net Proceeds ” means:

(a) with respect to any Asset Sale, Prepayment Asset Sale or Property Loss Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds subsequently received (as and when received) in respect of deferred

 

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payments or noncash consideration initially received, net of any costs relating to the disposition thereof), net of (i) out-of-pocket expenses incurred (including reasonable and customary broker’s fees or commissions, investment banking, consultant, legal, accounting or similar fees, survey costs, title insurance premiums, and related search and recording charges, transfer, deed, recording and similar taxes incurred by the Borrower and its Restricted Subsidiaries in connection therewith), and the Borrower’s good faith estimate of taxes paid or payable (including payments under any tax sharing agreement or arrangement), in connection with such Asset Sale (including, in the case of any such Asset Sale in respect of property of any Foreign Subsidiary, taxes payable upon the repatriation of any such proceeds), (ii) amounts provided as a reserve, in accordance with GAAP, against any (x) liabilities under any indemnification obligations or purchase price adjustment associated with such Asset Sale and (y) other liabilities associated with the asset disposed of and retained by the Borrower or any of its Restricted Subsidiaries after such disposition, including pension and other post-employment benefit liabilities and liabilities related to environmental matters ( provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness or other obligation which is secured by a Lien on the asset sold, (iv) in the case of any such Asset Sale by a non-Wholly Owned Restricted Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (iv)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly Owned Restricted Subsidiary as a result thereof and (v) amounts required to be applied to the repayment of principal, premium, if any, and interest under the Senior Credit Facilities as a result of such transaction and any deduction of appropriate amounts to be provided by the Borrower or any of its Subsidiaries; and

(b) with respect to any issuance, sale or incurrence of Capital Stock or Indebtedness, the cash proceeds of such issuance, sale or incurrence net of (i) attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale or incurrence, (ii) taxes paid or payable as a result thereof and (iii) amounts required to be applied to the repayment of principal, premium, if any, and interest under the Senior Credit Facilities as a result of such transaction and any deduction of appropriate amounts to be provided by the Borrower or any of its Subsidiaries.

“ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends or accretion of any Preferred Stock.

“ Non-Consenting Lender ” has the meaning provided in Section 2.13(c).

“ Non-Payment Default ” has the meaning provided in Section 11.03.

 

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“ Obligations ” means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements, and other amounts payable pursuant to the documentation governing such Indebtedness.

“ Offering Document ” has the meaning provided in Section 5.10(b).

“ Officer’s Certificate ” means a certificate signed on behalf of the Borrower by a Responsible Officer of the Borrower.

“ Opinion of Counsel ” means a written opinion from legal counsel who is reasonably acceptable to the Administrative Agent. The counsel may be an employee of or counsel to the Borrower or the relevant Loan Party.

“ Other Closing Date Representations ” shall mean those representations and warranties made by CDW in the Merger Agreement that (a) are material to the interests of the Lenders and (b) a breach of any of which would permit Holdings and/or Merger Sub to terminate their respective obligations under the Merger Agreement.

“ Other Taxes ” has the meaning provided in Section 2.10(b).

“ Parent ” means a Person formed for the purpose of owning all of the Equity Interests, directly or indirectly, of Holdings.

“ Participant ” has the meaning provided in Section 9.07(e).

“ Participation ” has the meaning provided in Section 9.07(e).

“ Payment Blockage Period ” has the meaning provided in Section 11.03.

“ Payment Default ” has the meaning provided in Section 11.03.

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

“ Pension Event ” means (a) the whole or partial withdrawal of a Loan Party or any Restricted Subsidiary from a Foreign Plan during a Foreign Plan year, (b) the filing or a notice of interest to terminate in whole or in part a Foreign Plan or the treatment of a Foreign Plan amendment as a termination or partial termination, (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer a Foreign Plan, (d) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of a trustee to administer, any Foreign Plan, (e) the failure to satisfy any statutory funding requirement, (f) the adoption of any amendment to a Foreign Plan that would require the provision of security pursuant to applicable law or (g) any other extraordinary event or condition with respect to a Foreign Plan which, with respect to each of the foregoing clauses, could reasonably be expected to result in a Lien or any acceleration of any statutory requirement to fund all or a substantial portion of the unfunded accrued benefit liabilities of such plan.

 

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“ Pension Plan ” means any employee pension benefit plan as defined in Section 3(2) of ERISA (other than a Multiemployer Plan or Foreign Plan) that is subject to Title IV of ERISA and/or Section 412 of the Code or Section 302 of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has any obligation or liability (contingent or otherwise).

“ Permitted Asset Swap ” means, to the extent allowable under Section 1031 of the Code, the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets (excluding any boot thereon) between the Borrower or any of its Restricted Subsidiaries and another Person.

“ Permitted Business ” means the business and any services, activities or businesses incidental, or directly related or similar to, or complementary to any line of business engaged in by the Borrower and its Subsidiaries as of the Closing Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

“ Permitted Debt ” has the meaning provided in Section 6.03.

“ Permitted Investments ” means:

(1) any Investment by the Borrower in any Restricted Subsidiary or by a Restricted Subsidiary in the Borrower or another Restricted Subsidiary;

(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;

(3) any Investment by the Borrower or any Restricted Subsidiary in a Person that is engaged in a Permitted Business if as a result of such Investment (A) such Person becomes a Restricted Subsidiary or (B) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

(4) any Investment in securities or other assets not constituting cash or Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 6.04 hereof or any other disposition of assets not constituting an Asset Sale;

(5) any Investment existing on the Closing Date or made pursuant to binding commitments in effect on the Closing Date or an Investment consisting of

 

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any extension, modification, replacement, renewal of any Investment existing on the Closing Date; provided that the amount of any such Investment may be increased (x) as required by the terms of such Investment as in existence on the Closing Date or (y) as otherwise permitted under this Agreement;

(6) loans and advances to, or guarantees of Indebtedness of, directors, employees, officers and consultants not in excess of $15,000,000 outstanding at any one time, in the aggregate;

(7) any Investment acquired by the Borrower or any Restricted Subsidiary (A) in exchange for any other Investment or accounts receivable held by the Borrower or Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or (B) as a result of a foreclosure by the Borrower or Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

(8) Hedging Obligations permitted under clause (9) of the definition of “Permitted Debt”;

(9) loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business;

(10) any Investment by the Borrower or a Restricted Subsidiary having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (10) that are at that time outstanding not to exceed the greater of: (x) $150,000,000; and (y) 2.0% of Total Assets of the Borrower; provided that if such Investment is in Capital Stock of a Person that subsequently becomes a Restricted Subsidiary, such Investment shall thereafter be deemed permitted under clause (1) above and shall not be included as having been made pursuant to this clause (10);

(11) Investments the payment for which consists of Equity Interests of the Borrower or any of its direct or indirect parent companies (exclusive of Disqualified Stock); provided that such Equity Interests will not increase the amount available for Restricted Payments under clause (3)(b) of the first paragraph of Section 6.01 hereof;

(12) guarantees (including Guarantees) of Indebtedness permitted under Section 6.03 hereof and performance guarantees consistent with past practice, and the creation of liens on the assets of the Borrower or any of its Restricted Subsidiaries in compliance with Section 6.06 hereof;

(13) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons;

 

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(14) Investments relating to a Receivables Subsidiary that, in the reasonable good faith determination of the Borrower, are necessary or advisable to effect a Receivables Facility;

(15) Investments consisting of earnest money deposits required in connection with a purchase agreement or other acquisition;

(16) any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of the second paragraph of Section 6.05 hereof, except transactions permitted by clauses (2), (6), (10), (12) or (13);

(17) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;

(18) Investments in the ordinary course of business consisting of endorsements for collection or deposit;

(19) additional Investments in joint ventures in an aggregate amount not to exceed $25,000,000 at any time outstanding;

(20) loans and advances relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise permitted under Section 6.05 hereof;

(21) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;

(22) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Borrower or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as the Borrower or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;

(23) deposits made by the Borrower and Foreign Subsidiaries in Cash Pooling Arrangements; and

(24) extensions of trade credit in the ordinary course of business.

“ Permitted Investors ” means (a) the Sponsor, (b) any Person who is an officer or otherwise a member of management of the Parent or any of its subsidiaries on or after the Closing Date; (c) any Related Entity of any of the foregoing Persons and (d) any “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that in the case of such “group” and without giving effect to the existence of such “group” or any other “group,” such Persons specified in clauses (a), (b) or (c) above (subject, in the case of officers, to the foregoing limitation), collectively, have beneficial

 

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ownership, directly or indirectly, of more than 50% of the total voting power of the voting stock of the Parent or any of its direct or indirect parent entities held by such “group,” and provided further , that, in no event shall the Sponsor own a lesser percentage of voting stock than any other person or group referred to in clauses (b), (c) or (d).

“ Permitted Liens ” means the following types of Liens:

(1) deposits of cash or government bonds made in the ordinary course of business to secure surety or appeal bonds to which such Person is a party;

(2) Liens in favor of issuers of stay, customs, performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptance issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business or consistent with past practice;

(3) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided , however , that such Liens are not created or incurred in connection with, or in contemplation of, or to provide all or any portion of the funds or credit support utilized in connection with, such other Person becoming such a Subsidiary; provided further , however , that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary;

(4) Liens on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Borrower or any of its Restricted Subsidiaries; provided , however , that such Liens are not created or incurred in connection with, or in contemplation of, or to provide all or any portion of the funds or credit support utilized for, such acquisition; provided further , however , that such Liens may not extend to any other property owned by the Borrower or any Restricted Subsidiary;

(5) Liens securing Hedging Obligations so long as the related Indebtedness is permitted to be incurred under this Agreement and is secured by a Lien on the same property securing such Hedging Obligation;

(6) Liens existing on the Closing Date and described in all material respects on Schedule 1.01 hereto;

(7) Liens in favor of the Borrower or any Restricted Subsidiary;

(8) Liens to secure any Indebtedness that is incurred to refinance any Indebtedness that has been secured by a Lien existing on the Closing Date or referred to in clauses (3), (4) and (l9)(B) of this definition; provided , however , that such Liens (x) are no less favorable to the Lenders taken as a whole, and are not more favorable to the lien holders with respect to such Liens than the Liens in

 

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respect of the Indebtedness being refinanced, and (y) do not extend to or cover any property or assets of the Borrower or any of its Restricted Subsidiaries not securing the Indebtedness so refinanced;

(9) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility incurred pursuant to clause (17) of the definition of “Permitted Debt”;

(10) Liens for taxes, assessments or other governmental charges or levies not yet overdue or the nonpayment of which in the aggregate would not reasonably be expected to result in a material adverse effect, or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted or for property taxes on property that the Borrower or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;

(11) judgment liens in respect of judgments that do not constitute an Event of Default;

(12) pledges, deposits or security under workmen’s compensation, unemployment insurance and other social security laws or regulations, or deposits to secure the performance of tenders, contracts (other than for the payment of Indebtedness) or leases, or deposits to secure public or statutory obligations, or deposits as security for contested taxes or import or customs duties or for the payment of rent, or deposits or other security securing liabilities to insurance carriers under insurance or self-insurance arrangements or earnest money deposits required in connection with a purchase agreement or other acquisition, in each case incurred in the ordinary course of business or consistent with past practice;

(13) landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by applicable law, (i) arising in the ordinary course of business and securing obligations that are not overdue by more than sixty (60) days, (ii) (A) that are being contested in good faith by appropriate proceedings, (B) the Borrower or a Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation or (iii) the existence of which would not reasonably be expected to result in a material adverse effect;

(14) minor survey exceptions, encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of business or to the ownership of properties that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business;

 

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(15) leases, licenses, subleases, sublicenses or operating agreements (including, without limitation, licenses and sublicenses of intellectual property) granted to others in the ordinary course of business that do not interfere in any material respect with the business of the Borrower or any of its material Restricted Subsidiaries or which do not by their own terms secure any Indebtedness;

(16) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Borrower or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;

(17) banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution;

(18) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases or consignments entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;

(19) (A) other Liens securing Indebtedness for borrowed money or other obligations with respect to property or assets with an aggregate fair market value (valued at the time of creation thereof) with a principal amount not exceeding $75,000,000 at any time and (B) Liens securing Indebtedness incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property of such Person; provided , however , that (x) the Lien may not extend to any other property (except for accessions to such property) owned by such Person or any of its Restricted Subsidiaries at the time the Lien is incurred, (y) such Liens attach concurrently with or within 270 days after the acquisition, repair, replacement, construction or improvement (as applicable) of the property subject to such Liens and (z) with respect to Capitalized Lease Obligations, such Liens do not at any time extend to or cover any assets (except for accessions to such assets) other than the assets subject to such Capitalized Lease Obligations; provided that individual financings of property provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;

(20) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business, and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

(21) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 

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(22) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(23) Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;

(24) Liens with respect to the assets of a Restricted Subsidiary that is not a Guarantor securing Indebtedness of such Restricted Subsidiary incurred in accordance with Section 6.03 hereof;

(25) Liens to secure Indebtedness incurred pursuant to clauses (11), (20) and (24) of the definition of “Permitted Debt”;

(26) Liens arising by operation of law under Article 2 of the Uniform Commercial Code in favor of a reclaiming seller of goods or buyer of goods;

(27) security given to a public or private utility or any governmental authority as required in the ordinary course of business;

(28) landlords’ and lessors’ Liens in respect of rent not in default for more than sixty days or the existence of which, individually or in the aggregate, would not reasonably be expected to result in a material adverse effect;

(29) Liens in favor of customs and revenues authorities imposed by applicable law arising in the ordinary course of business in connection with the importation of goods and securing obligations (i) with respect to customs duties in the ordinary course of business, (ii) that are not overdue by more than sixty (60) days, (iii) (A) that are being contested in good faith by appropriate proceedings, (B) the Borrower or Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (C) such contest effectively suspends collection of the contested obligation and enforcement of any Lien securing such obligation, or (iv) the existence of which would not reasonably be expected to result in a material adverse effect;

(30) Liens on securities which are the subject of repurchase agreements incurred in the ordinary course of business;

(31) Liens on the Capital Stock of Unrestricted Subsidiaries;

(32) Liens on inventory or equipment of the Borrower or any of its Restricted Subsidiaries granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s clients or customers at which such inventory or equipment is located;

 

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(33) pledges or deposits made in the ordinary course of business to secure liability to insurance carriers and Liens on insurance policies and the proceeds thereof (whether accrued or not), rights or claims against an insurer or other similar asset securing insurance premium financings permitted under clause (21) of the definition of “Permitted Debt”;

(34) Liens on cash deposits of the Borrower and Foreign Subsidiaries subject to a Cash Pooling Arrangement or otherwise over bank accounts of the Borrower and Foreign Subsidiaries maintained as part of the Cash Pooling Arrangement, in each case securing liabilities for overdrafts of the Borrower and Foreign Subsidiaries participating in such Cash Pooling Arrangements;

(35) any encumbrance or retention (including put and call agreements and rights of first refusal) with respect to the Equity Interests of any joint venture or similar arrangement pursuant to the joint venture or similar agreement with respect to such joint venture or similar arrangement;

(36) Liens on property subject to Sale and Lease-Back Transactions permitted hereunder and general intangibles related thereto;

(37) Liens consisting of customary contractual restrictions on cash and Cash Equivalents; and

(38) (A) Liens securing the Exchange Notes and the Guarantees (including any Exchange Notes issued in exchange therefor pursuant to the Registration Rights Agreement and secured by a Lien (in each case in accordance with the terms of the Indenture) and the related guarantees) and (B) Liens securing Senior Indebtedness.

“ Person ” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

“ Platform ” has the meaning provided in Section 5.01.

“ PORTAL ” has the meaning provided in Section 5.08(b).

“ Preferred Stock ” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.

“ Prepayment Asset Sale ” shall mean any Asset Sale, to the extent that (a) the aggregate Net Proceeds of all such Asset Sales, together with all Property Loss Events, without giving effect to the dollar thresholds in the definition thereof, during any fiscal year exceed $25,000,000 and (b) the aggregate Net Proceeds of all such Asset

 

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Sales, together with all Property Loss Events, without giving effect to the dollar thresholds in the definition thereof, during any five fiscal year period exceed $50,000,000.

“ Pro Forma Balance Sheet ” has the meaning provided in Section 4.01(g).

“ Pro Rata Share ” means, with respect to each Lender at any time a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitments of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments at such time; provided that if such Commitments have been terminated, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.

“ Projections ” has the meaning provided in Section 5.10(b).

“ Property Loss Event ” shall mean any event that gives rise to the receipt by the Borrower or any of its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property; provided , however , for purposes of determining whether a prepayment under Section 2.04(b)(iii) would be required, a Property Loss Event shall be deemed to have occurred only to the extent that the aggregate Net Proceeds (a) of all such events, together with all Asset Sales that constitute Prepayment Asset Sales without giving effect to the dollar thresholds in the definition thereof, during any fiscal year exceed $25,000,000 and (b) of all such events, together with all Asset Sales that constitute Prepayment Asset Sales without giving effect to the dollar thresholds in the definition thereof, during any five-fiscal year period exceed $50,000,000.

“ Public Lender ” has the meaning assigned to such term in Section 5.01.

“ Qualified Proceeds ” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Permitted Business; provided that the fair market value of any such assets or Capital Stock shall be determined by the Board of Directors of the Borrower in good faith.

“ Qualified Public Offering ” means the issuance by the Borrower or any direct or indirect parent of the Borrower of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act.

“ Qualifying Bookrunner ” means each of (a) J.P. Morgan Securities Inc., (b) Lehman Brothers Inc., (c) Morgan Stanley Senior Funding, Inc. and (d) Deutsche Bank Securities Inc., so long as at the time of determination it, together with its Affiliates, owns at least 10% of each of (i) the aggregate principal amount of the outstanding Loans and (ii) the aggregate principal amount of the outstanding “Loans” under and as defined in the Senior Bridge Facility.

 

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“ Rating Agencies ” means (a) S&P and Moody’s or (b) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2) under the Exchange Act, as the case may be, selected by the Borrower, which will be substituted for S&P or Moody’s or both, as the case may be.

“ Receivables Facility ” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any of its Restricted Subsidiaries sells their accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.

“ Receivables Fees ” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.

“ Receivables Subsidiary ” means any subsidiary formed for the purpose of, and that solely engages only in, one or more Receivables Facilities and other activities reasonably related thereto.

“ Refinancing Indebtedness ” has the meaning provided in Section 6.03(13).

“ Refunding Capital Stock ” has the meaning provided in clause (2) of the second paragraph of Section 6.01 hereof.

“ Register ” has the meaning provided in Section 9.07(d).

“ Registration Rights Agreement ” means the Senior Subordinated Registration Rights Agreement substantially in the form of Exhibit E attached hereto.

“ Regulation T ” shall mean Regulation T of the Board and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” shall mean Regulation U of the Board and all official rulings and interpretations thereunder or thereof.

“ Regulation X ” shall mean Regulation X of the Board and all official rulings and interpretations thereunder or thereof.

 

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“ Related Business Assets ” means assets (other than cash or Cash Equivalents) used or useful in a Permitted Business, provided that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

“ Related Entity ” means (a) with respect to Madison Dearborn Partners, LLC and Providence Equity Partners, (i) any investment fund controlled by or under common control with Madison Dearborn Partners, LLC or Providence Equity Partners, any officer, director or person performing an equivalent function of the foregoing persons, or any entity controlled by any of the foregoing Persons and (ii) any spouse or lineal descendant (including by adoption and stepchildren) of the officers and directors referred to in clause (a)(i); and (b) with respect to any officer of the Borrower or its subsidiaries, (i) any spouse or lineal descendant (including by adoption and stepchildren) of the officer and (ii) any trust, corporation or partnership or other entity, in each case to the extent not an operating company, of which an 80% or more controlling interest is held by the beneficiaries, stockholders, partners or owners who are the officer, any of the persons described in clause (b)(i) above or any combination of these identified relationships.

“ Representative ” means any trustee, agent or other representative for an issue of Senior Indebtedness of the Borrower.

“ Required Lenders ” means, as of any date of determination, Lenders having Commitments and Loans representing more than 50% of the sum of all Commitments and Loans outstanding at such time.

“ Responsible Officer ” of any Person means any Financial Officer or any executive vice president, senior vice president, vice president, secretary or assistant secretary of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement and, as to any document delivered on the Closing Date, any secretary or assistant secretary of such Person.

“ Restricted Investment ” means an Investment other than a Permitted Investment.

“ Restricted Payment ” has the meaning provided in Section 6.01.

“ Restricted Subsidiary ” means, at any time, any direct or indirect Subsidiary of the Borrower (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided , however , that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of Restricted Subsidiary.

 

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“ Retired Capital Stock ” has the meaning provided in clause (2) of the second paragraph of Section 6.01 hereof.

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

“ Sale and Lease-Back Transaction ” means any arrangement with any Person providing for the leasing by the Borrower or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person in contemplation of such leasing

“ Same Day Funds ” means immediately available funds.

“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Section 5.01 Financials ” means the financial statements delivered, or required to be delivered, pursuant to Sections 5.01(a) and (b).

“ Secured Indebtedness ” means any Indebtedness secured by a Lien permitted to be incurred by this Agreement.

“ Securities ” has the meaning provided in Section 5.10(a).

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

“ Securities Demand ” has the meaning provided in Section 5.10.

“ Senior Bridge Facility ” means the senior unsecured increasing rate term loan facility made available to the Borrower pursuant to the Senior Bridge Loan Agreement.

“ Senior Bridge Loan Agreement ” means the new senior unsecured increasing rate term loan agreement entered into as of the Closing Date by and among the Borrower; Holdings; the Subsidiary Guarantors party thereto; JPMorgan Chase Bank, N.A., as administrative agent; and the lenders from time to time party thereto, including any guarantees, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals or restatements thereof.

“ Senior Credit Facilities ” means the Senior Secured Revolving Credit Facility and the Senior Secured Term Loan Facility to be entered into as of the Closing Date by and among the Borrower and the lenders and agents party thereto in their capacities as such thereunder, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities

 

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with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof ( provided that such increase in borrowings is permitted under Section 6.03 hereof).

“ Senior Exchange Note Guarantee ” means any guarantee of the obligations of the Borrower under the Senior Exchange Note Indenture and the Senior Exchange Notes by any Person in accordance with the provisions of the Senior Exchange Note Indenture.

“ Senior Exchange Note Indenture ” means the Indenture to be entered into between the Borrower, the Guarantors and the trustee thereunder, pursuant to which the Senior Exchange Notes and the Senior PIK Election Exchange Notes may be issued, as amended or supplemented from time to time.

“ Senior Exchange Note Registration Rights Agreement ” means the Registration Rights Agreement to be entered into in the form of Exhibit F to the Senior Exchange Note Indenture.

“ Senior Exchange Notes ” means up to $890,000,000 aggregate principal amount of the Senior Exchange Notes due 2015 of the Borrower.

“ Senior Indebtedness ” means all Indebtedness of the Borrower or any Restricted Subsidiary, including interest thereon (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Borrower or any Restricted Subsidiary at the rate specified in the documentation with respect thereto whether or not a claim for post-filing interest is allowed in such proceeding) and other amounts (including fees, expenses, reimbursement obligations under letters of credit and indemnities) owing in respect thereof, whether outstanding on the Closing Date or thereafter incurred, unless the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such obligations are subordinated in right of payment to any other Indebtedness of the Borrower or such Restricted Subsidiary, as applicable; provided, however, that Senior Indebtedness shall not include, as applicable:

(1) any obligation of the Borrower to any Subsidiary of the Borrower or of any Subsidiary of the Borrower to the Borrower or any other Subsidiary of the Borrower ,

(2) any liability for Federal, state, local or other taxes owed or owing by the Borrower or such Restricted Subsidiary,

(3) any accounts payable or other liability to trade creditors arising in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities),

 

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(4) any Indebtedness or obligation of the Borrower or any Restricted Subsidiary that by its terms is subordinate or junior in any respect to any other Indebtedness or obligation of the Company or such Restricted Subsidiary, as applicable, including any Senior Subordinated Pari Passu Indebtedness,

(5) any obligations with respect to any Capital Stock, or

(6) any Indebtedness incurred in violation of this Agreement but, as to any such Indebtedness incurred under the Senior Secured Revolving Credit Facility, the Senior Secured Term Loan Facility, the Senior Bridge Loan Agreement or the Senior Exchange Note Indenture, no such violation shall be deemed to exist for purposes of this clause (6) if the holders of such Indebtedness or their Representative shall have received an Officer’s Certificate to the effect that the incurrence of such Indebtedness does not (or, in the case of a revolving credit facility thereunder, the incurrence of the entire committed amount thereof at the date on which the initial borrowing thereunder is made would not) violate this Agreement.

If any Senior Indebtedness is disallowed, avoided or subordinated pursuant to the provisions of Section 548 of Title 11 of the United States Code or any applicable state fraudulent conveyance law, such Senior Indebtedness nevertheless will constitute Senior Indebtedness.

“ Senior PIK Election Exchange Notes ” means up to $300,000,000 plus the amount of any increase in principal amount of loans under the Senior Bridge Loan Agreement resulting from the payment of paid-in-kind interest, aggregate principal amount of the Senior PIK Election Exchange Notes due 2015 of the Borrower.

“ Senior Secured Revolving Credit Agreement ” means the new senior secured asset backed revolving credit agreement entered into as of the Closing Date by and among the Borrower, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent; J.P. Morgan Securities Inc., as joint lead arranger and joint bookrunner; Lehman Brothers Inc., as joint lead arranger, joint bookrunner and co-syndication agent; Morgan Stanley Senior Funding, Inc., as joint bookrunner and co-syndication agent; Deutsche Bank Securities Inc., as joint bookrunner and co-syndication agent; and the lenders from time to time party thereto, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals or restatements thereof.

“ Senior Secured Revolving Credit Facility ” means the senior secured asset backed revolving credit facility made available to the Borrower pursuant to the Senior Secured Revolving Credit Agreement.

“ Senior Secured Term Loan Agreement ” means the new senior secured term loan agreement entered into as of the Closing Date by and among the Borrower; Lehman Commercial Paper Inc., as administrative agent and collateral agent; Lehman

 

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Brothers Inc., as joint lead arranger and joint bookrunner; J.P. Morgan Securities Inc., as joint lead arranger and joint bookrunner; Morgan Stanley Senior Funding, Inc., as joint bookrunner and co-syndication agent; Deutsche Bank Securities Inc., as joint bookrunner and co-syndication agent; JPMorgan Chase Bank, N.A., as co-syndication agent; and the lenders from time to time party thereto, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals or restatements thereof.

“ Senior Secured Term Loan Facility ” means the senior secured term loan facility made available to the Borrower pursuant to the Senior Secured Term Loan Agreement.

“ Senior Subordinated Indebtedness ” means, with respect to a Person, the Loans (in the case of the Borrower), a Guarantee (in the case of a Guarantor) and any other Indebtedness of such Person that specifically provides that such Indebtedness is to rank pari passu with the Loans or such Guarantee, as the case may be, in right of payment and is not subordinated by its terms in right of payment to any Indebtedness or other obligation of such Person that is not Senior Indebtedness of such Person.

“ Senior Subordinated Pari Passu Indebtedness ” means:

(1) with respect to the Borrower, the Loans and any Indebtedness that ranks pari passu in right of payment to the Loans; and

(2) with respect to any Guarantor, its Guarantee and any Indebtedness that ranks pari passu in right of payment to such Guarantor’s Guarantee.

“ Significant Subsidiary ” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Closing Date.

“ Similar Business ” means any business and any services, activities or businesses incidental, or directly related or similar to, or complementary to any line of business engaged in by CDW and its subsidiaries on the Closing Date or any business activity that is a reasonable extension, development or expansion thereof or ancillary thereto.

“ Solvent ” means, with respect to any Person, (a) on a going concern basis the consolidated fair value of the assets of such Person and its subsidiaries, at a fair valuation, will exceed their consolidated debts and liabilities, subordinated, contingent or otherwise; (b) the consolidated present fair saleable value of the property of such Person and its subsidiaries will be greater than the amount that will be required to pay the probable liability of their consolidated debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person and its subsidiaries will be able to pay their consolidated debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) such Person and its subsidiaries, taken as a whole, will not have unreasonably small capital with which to conduct the business in which they are

 

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engaged. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“ SPC ” has the meaning provided in Section 9.07(h).

“ Specified Default ” has the meaning provided in Section 2.04(b)(iii).

“ Sponsor ” means Madison Dearborn Partners, LLC and Providence Equity Partners and each of their respective Affiliates but not including, however, any operating portfolio companies of any of the foregoing.

“ Sponsor Management Agreement ” means the management agreement between certain management companies associated with the Sponsor and the Borrower and any direct or indirect parent company.

“ Standard Receivables Undertakings ” means representations, warranties, covenants and indemnities entered into by the Borrower or any Subsidiary of the Borrower which the Borrower has determined in good faith to be customary in a Receivables Facility, including, without limitation, those relating to the servicing of the assets of a Receivables Subsidiary.

“ Stated Maturity ” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.

“ Subordinated Indebtedness ” means (a) with respect to the Borrower, any Indebtedness of the Borrower which is by its terms subordinated in right of payment to the Loans and (b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to its Guarantee.

“ Subsidiary ” means, with respect to any specified Person:

(a) any corporation, association, or other business entity, of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

(b) any partnership, joint venture, limited liability company or similar entity of which

(i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and

 

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(ii) such Person or any Wholly Owned Restricted Subsidiary of such Person is a controlling general partner or otherwise controls such entity.

“ Subsidiary Guarantor ” means, collectively, the Domestic Subsidiaries of the Borrower that are Guarantors.

“ Successor Company ” has the meaning provided in Section 6.08(i)(A)(b).

“ Supplemental Administrative Agent ” has the meaning provided in Section 8.12(a) and “ Supplemental Administrative Agents ” shall have the corresponding meaning.

“ Syndication Agents ” means each of Lehman Brothers Inc., Morgan Stanley Senior Funding, Inc. and Deutsche Bank Securities Inc., in its capacity as Co-Syndication Agent under this Agreement.

“ Target Material Adverse Effect ” means, when used in connection with CDW or Holdings, as the case may be, any change, effect or circumstance, either individually or in the aggregate, that is materially adverse to the business, properties, assets, financial condition or results of operations of CDW and its subsidiaries taken as a whole, or Holdings and its subsidiaries taken as a whole, as the case may be; provided , however, that to the extent any change, effect or circumstance is caused by or results from any of the following, it shall not be taken into account in determining whether there has been a “Material Adverse Effect” with respect to CDW or Holdings, as the case may be: (i) the entry into or the announcement of the execution of the Merger Agreement (including losses or threatened losses of the relationships of CDW or any of its subsidiaries with customers, vendors or suppliers or the loss or departure of officers or other coworkers of CDW or any of its subsidiaries), actions contemplated by the Merger Agreement or the performance of obligations under the Merger Agreement, including the termination of the Company Financing Agreements (as defined in the Merger Agreement) as provided under Section 8.3(c) of the Merger Agreement, (ii) the identity of Holdings or any of its Affiliates as the acquiror of CDW, (iii) changes affecting the United States economy or financial or securities markets as a whole or changes that are the result of factors generally affecting the industries in which CDW and its subsidiaries conduct their business, to the extent such changes do not materially disproportionately impact CDW and its subsidiaries, taken as a whole, relative to other companies in the industries in which CDW and its subsidiaries conduct their business, (iv) the failure, in and of itself (as opposed to the facts underlying such failure), to meet any internal or public projections, forecasts or estimates of revenues or earnings for any period ending

 

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on or after the date hereof, (v) any change, in and of itself (as opposed to the facts underlying such change), in the market price or trading volume of the equity securities of CDW on or after the date hereof, (vi) the suspension of trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market, (vii) any change in any applicable law, rule or regulation of GAAP or interpretation thereof after the date hereof, (viii) the availability or cost of financing to Holdings or Merger Sub, (ix) the commencement, occurrence or continuation of any war, armed hostilities or acts of terrorism involving or affecting the United States of America or any part thereof and (x) any litigation arising from or relating to allegations of a breach of fiduciary duty relating to the Merger Agreement or the transactions contemplated by the Merger Agreement.

“ Taxes ” has the meaning provided in Section 2.10(a).

“ Test Period ” in effect at any time means the most recent period of four consecutive fiscal quarters of the Borrower ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each quarter or fiscal year in such period have been or are required to be delivered pursuant to Section 5.01(a) or (b); provided that, prior to the first date that financial statements have been or are required to be delivered pursuant to Section 5.01(a) or (b), the Test Period in effect shall be the period of four consecutive fiscal quarters of the Borrower and its Subsidiaries ended March 31, 2007. A Test Period may be designated by reference to the last day thereof (i.e., the “March 31, 2007 Test Period” refers to the period of four consecutive fiscal quarters of the Borrower ended March 31, 2007), and a Test Period shall be deemed to end on the last day thereof.

“ Total Assets ” means the total assets of the Borrower and its Restricted Subsidiaries, on a consolidated basis prepared in accordance with GAAP, shown on the most recent balance sheet of the Borrower and its Restricted Subsidiaries as may be expressly stated.

“ Total Cap ” has the meaning provided in Section 2.06(a)(iii).

“ Total Net Tangible Assets ” means total assets of the Borrower and its Restricted Subsidiaries, less all goodwill, trade names, trademarks, patents and any other like intangibles, all on a consolidated basis prepared in accordance with GAAP, shown on the most recent balance sheet of the Borrower and its Restricted Subsidiaries.

“ Transaction Expenses ” means any fees or expenses incurred or paid by Holdings, the Borrower, or any Restricted Subsidiary in connection with the transactions described in clauses (a) through (g) of the definition of the term “Transactions”, the Sponsor Management Agreement, this Agreement, the other Bridge Loan Documents, the Exchange Note Indenture, the Exchange Notes and the transactions contemplated hereby and thereby.

“ Transactions ” means, collectively, (a) the Merger and the Krasny Plan, (b) the Equity Investment, (c) the funding of the Senior Secured Term Loan Facility and

 

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the Senior Bridge Facility on the Closing Date, (d) the repayment of certain existing indebtedness of the Borrower, (e) the funding of the Loans on the Closing Date, (f) the execution and delivery of the Senior Secured Revolving Credit Agreement and the borrowings of loans and the issuance of letters of credit thereunder, (g) the consummation of any other transactions in connection with the foregoing and (h) the payment of the Transaction Expenses.

“ Trustee ” has the meaning provided in Section 5.08(a).

“ United States ” and “ U.S. ” mean the United States of America.

“ Unrestricted Subsidiary ” means (i) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary (as designated by the Board of Directors of the Borrower, as provided below) and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the Borrower may designate any Subsidiary of the Borrower (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Borrower or any Subsidiary of the Borrower (other than any Unrestricted Subsidiary of the Subsidiary to be so designated); provided that (a) any Unrestricted Subsidiary must be an entity of which shares of the Capital Stock or other equity interests (including partnership interests) entitled to cast at least a majority of the votes that may be cast by all shares or equity interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (b) such designation complies with Section 6.01 hereof and (c) each of (I) the Subsidiary to be so designated and (II) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary (other than the Capital Stock of such Subsidiary to be so designated). The Board of Directors of the Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, no Event of Default shall have occurred and be continuing and any Indebtedness assumed or otherwise incurred in connection with such designation shall have been permitted to have been incurred by the Borrower pursuant to Section 6.03 hereof. Any such designation by the Board of Directors of the Borrower shall be notified by the Borrower to the Administrative Agent by promptly delivering to the Administrative Agent a copy of the Board Resolution giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.

“ Unused Additional Cap ” means, at any time, the portion, if any, of the Additional Cap that has not theretofore been designated to be used as part of the Total Cap or the “Senior Loans Total Cap” or the “PIK Election Loans Total Cap” each under and as defined in the Senior Bridge Facility.

“ USA PATRIOT Act ” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.

 

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“ U.S. Dollar Equivalent ” means, with respect to any monetary amount in a currency other than U.S. dollars, at any time for determination thereof, the amount of U.S. dollars obtained by converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as published in The Wall Street Journal in the “Exchange Rates” column under the heading “Currency Trading” on the date two Business Days prior to such determination.

Except as described in Section 6.03 hereof, whenever it is necessary to determine whether the Borrower has complied with any covenant in this Agreement or a Default has occurred and an amount is expressed in a currency other than U.S. dollars, such amount will be treated as the U.S. Dollar Equivalent determined as of the date such amount is initially determined in such currency.

“ U.S. Lender ” has the meaning provided in Section 9.15(b).

“ Weighted Average Life to Maturity ” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:

(a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(b) the then outstanding principal amount of such Indebtedness.

“ Wholly Owned Restricted Subsidiary ” is any Wholly Owned Subsidiary that is a Restricted Subsidiary.

“ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares and shares issued to foreign nationals under applicable law) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.

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

SECTION 1.02. Other Interpretive Provisions . With reference to this Agreement and each other Bridge Loan Document, unless otherwise specified herein or in such other Bridge Loan Document:

(a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

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(b) (i) The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import when used in any Bridge Loan Document shall refer to such Bridge Loan Document as a whole and not to any particular provision thereof.

(ii) Article, Section, Exhibit and Schedule references are to the Bridge Loan Document in which such reference appears.

(iii) The term “including” is by way of example and not limitation.

(iv) The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

(c) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

(d) Section headings herein and in the other Bridge Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Bridge Loan Document.

(e) The term “date hereof” and words of similar impact mean October 12, 2007.

SECTION 1.03. Accounting Terms . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein.

SECTION 1.04. Rounding . Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

SECTION 1.05. References to Agreements, Laws, Etc . Unless otherwise expressly provided herein, (a) references to documents, agreements (including the Bridge Loan Documents, the Exchange Note Indenture and the Exchange Notes) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Bridge Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

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SECTION 1.06. Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

SECTION 1.07. Timing of Payment or Performance . When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

ARTICLE II

The Commitments and Loans

SECTION 2.01. Loans . (a) Subject to the terms and conditions set forth herein, each Lender severally agrees to make to the Borrower on the Closing Date a single loan denominated in Dollars (the “ Initial Loan ”) in a principal amount not to exceed such Lender’s Commitment.

(b) Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Subject to Section 2.07, Loans will be Eurocurrency Rate Loans.

(c) The Commitments shall automatically terminate on the making of the Initial Loans on the Closing Date.

SECTION 2.02. Procedure for Borrowing . (a) The Initial Loans shall be made on the Closing Date upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Such notice must be received by the Administrative Agent not later than 12:00 noon (New York, New York time) three Business Days prior to the Closing Date or such later time as may be acceptable to the Administrative Agent. Telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written notice (a “ Borrowing Request ”), appropriately completed and signed by a Responsible Officer of the Borrower, specifying (i) the requested date of the Borrowing (which shall be a Business Day), (ii) the principal amount of Initial Loans to be borrowed, and (iii) the number and location of the account to which funds are to be disbursed.

(b) Following receipt of a Borrowing Request for Loans, the Administrative Agent shall promptly notify each Lender holding Commitments of the amount of such Lender’s Initial Loan to be made as part of the requested Borrowing. Each Lender shall make the amount of its Initial Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. (New York, New York time) on the Closing Date. Upon satisfaction of the applicable

 

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conditions set forth in Section 4.01, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

(c) The Initial Loans made on the Closing Date shall initially bear interest at the Base Rate and shall convert into Eurocurrency Rate Loans on the third Business Day following delivery by the Borrower to the Administrative Agent of an irrevocable notice of such conversion (which notice shall specify the length of the Interest Period therefore). The Administrative Agent shall promptly notify the Borrower and the Lenders of the Loans of the interest rate applicable to any Interest Period for the Loans upon determination of such interest rate. The determination of the interest rate by the Administrative Agent shall be conclusive in the absence of manifest error.

(d) The failure of any Lender to make the Initial Loan to be made by it shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the Closing Date, but no Lender shall be responsible for the failure of any other Lender to make the Initial Loan to be made by such other Lender on the Closing Date.

(e) Unless the Administrative Agent shall have received notice from a Lender prior to the Closing Date that such Lender will not make available to the Administrative Agent an amount equal to such Lender’s Commitment, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent in accordance with paragraph (b) above, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and the Borrower severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent at (i) in the case of the Borrower, the interest rate applicable at the time to Initial Loans hereunder and (ii) in the case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 2.02(e) shall be conclusive in the absence of manifest error. If such Lender’s portion of the Initial Loans is not made available to the Administrative Agent by such Lender within three Business Days after the Closing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon accruing from the date on which the Administrative Agent made the funds available to the Borrower at the rate per annum applicable to Base Rate Loans, on demand, from the Borrower. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount (exclusive of interest thereon) shall constitute such Lender’s Loan as part of the Borrowing for purposes of this Agreement, and the Borrower’s obligation to repay the Administrative Agent such corresponding amount

 

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pursuant to this Section 2.02(e) shall cease. If the Borrower shall pay such amount to the Administrative Agent, then such amount (exclusive of any interest thereon) shall constitute a reduction of such Borrowing.

SECTION 2.03. Extended Loans; Exchange Notes . (a) Subject to the terms and conditions set forth herein, the Initial Loans may remain outstanding as such to, but excluding, the Conversion Date, whereupon the outstanding Initial Loans shall automatically be converted, without the need for any action by any party hereto, to Extended Loans.

(b) (i) Each Lender will have the option at any time on or after the Conversion Date to receive Exchange Notes in exchange for the Extended Loans (or a portion thereof) of such Lender then outstanding pursuant to Section 5.08 (each such event being referred to herein as an “ Exchange ”); provided that the Borrower shall not be required to issue Exchange Notes until it shall have received Exchange Requests to issue not less than $100,000,000 aggregate principal amount of Exchange Notes; provided further that each Exchange Note shall be in respect of an Extended Loan with an aggregate principal amount of $100,000 or an integral multiple of $50,000 in excess thereof (or the entire remaining amount of any Lender’s Extended Loan). Prior to the first issuance of Exchange Notes, the Administrative Agent shall maintain a record of all Exchange Requests until such Exchange Requests, in the aggregate, request the issuance of Exchange Notes in an aggregate principal amount of $100,000,000 and shall thereafter promptly notify the Borrower, the Trustee and any Lenders who have delivered Exchange Requests that such requests then equal or exceed such $100,000,000 amount. Upon such notification, any Lenders who have delivered Exchange Requests shall notify the Administrative Agent and the Borrower of the Exchange Date selected by such Lender, which Exchange Date will not be fewer than three Business Days after notice of the selected Exchange Date is delivered to the Borrower.

(ii) The principal amount of the Exchange Notes will equal 100.0% of the aggregate principal amount of the Extended Loans (or the portions thereof) for which they are exchanged and will bear interest at a rate per annum equal to the Extended Loan Interest Rate (subject to, as applicable, the Total Cap); provided that any Lender (other than as provided in the next succeeding proviso) that elects to receive Exchange Notes in exchange for Extended Loans or Increasing Rate Exchange Notes may elect to have the interest rate fixed at the rate per annum in effect on the date of such exchange (the resulting Exchange Note, a “ Fixed Rate Exchange Note ”). The Exchange Notes will rank pari passu with the Extended Loans and will have the terms set forth in the Exchange Note Indenture. If a Default shall have occurred and be continuing on any date an Exchange occurs (an “ Exchange Date ”), any notices given or cure periods commenced while any Loan was outstanding shall be deemed given or commenced (as of the actual dates thereof) for all purposes with respect to the Exchange Notes (with the same effect as if the Exchange Notes had been outstanding as of the actual dates thereof).

 

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(iii) In order to effect an Exchange, a Lender shall provide the Administrative Agent and the Borrower written or telecopy notice (an “ Exchange Request ”) at least ten Business Days prior to an Exchange Date (which shall be a Business Day) selected by such Lender for an Exchange in compliance with clauses (i) and (ii) above, together with such other information as may be reasonably requested by the Administrative Agent. Each Exchange Request shall specify (A) the Lender’s legal name; (B) the Exchange Date selected by such Lender; (C) the principal amount of the Extended Loans to be exchanged for Exchange Notes pursuant to the applicable notice; and (D) if the Lender is electing to have the interest rate fixed pursuant to clause (ii) with respect to all or any portion of the Exchange Notes, the principal amount of the Exchange Notes to be represented by a Fixed Rate Exchange Note. Upon receipt of an Exchange Request, the Administrative Agent shall send, on the date that is no later than five days prior to the Exchange Date specified in such Exchange Request, written or telecopy notice of such proposed Exchange to the depositary, with a copy to the Borrower, that shall specify the information contained in such Exchange Request. Promptly upon receipt of an Exchange Note and subject to the immediately following proviso, the Lender receiving such Exchange Note shall return to the Administrative Agent (for prompt delivery to the Borrower) any promissory note delivered to such Lender pursuant to Section 2.05(e) hereof (the “ Initial Promissory Note ”) in respect of the Loans for which such Exchange Note was issued; provided , however , that if any Loans represented by such promissory note are to remain outstanding after the Exchange, such Lender shall not be obligated to return the Initial Promissory Note until such Lender has received the Exchange Note and a promissory note representing the Loans that remain outstanding.

SECTION 2.04. Prepayments . (a)  Optional . The Borrower may, upon prior written notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Loans, in whole or in part, without premium or penalty; provided that such notice must be received by the Administrative Agent not later than 12:00 noon (New York, New York time) one Business Day prior to any date of prepayment. Each such notice shall specify the date and amount of such prepayment. The Administrative Agent will promptly notify each Lender of its receipt of each such notice and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given, the Borrower shall make such prepayment, and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Loan shall be accompanied by all accrued interest thereon, together with, in the case of a Eurocurrency Rate Loan, any additional amounts required pursuant to Section 2.09. Each prepayment of the Loans pursuant to this Section 2.04(a) shall be paid to the Lenders in accordance with their respective Pro Rata Shares; provided that on or after the Conversion Date, any optional prepayment pursuant to this clause (a) shall be applied pro rata among the Loans and any Exchange Notes that are then callable at par.

(b) Mandatory . If, prior to the Conversion Date:

(i) the Borrower or any of its Subsidiaries shall (1) incur any Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or

 

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refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted under Section 6.03(1)(w), (1)(x), (2), (13) or (14) (as it relates to Section 6.03(2) and (14) only) or any Indebtedness, Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance costs and fees in connection therewith or (2) issue any debt securities (including any Securities issued pursuant to a Securities Demand), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than three Business Days) after the receipt thereof toward the prepayment of the Initial Loans;

(ii) the Borrower, Holdings or any of the Borrower’s Restricted Subsidiaries shall issue any public equity securities (other than (1) to the Equity Investors, (2) in connection with an acquisition permitted by the terms of this Agreement and (3) to employees pursuant to employee benefit plans in effect on the Closing Date), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; or

(iii) the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds in respect of any Prepayment Asset Sale or Property Loss Event, then an amount equal to 100% of the Net Proceeds thereof, (subject to the restrictions set forth herein) shall be applied promptly (but not in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; provided that if (A) prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intent to reinvest such Net Proceeds in assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries (including any Related Business Assets) and (B) no Event of Default shall have occurred and be continuing at the time of such proposed reinvestment, and no Event of Default under clause (a)  or (f)  of Section 7.01 (each, a “ Specified Default ”) shall have occurred and shall be continuing at the time of proposed reinvestment (unless, in the case of such Specified Default, such reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing), then the Borrower shall not be required to prepay Initial Loans hereunder in respect of such Net Proceeds to the extent that such Net Proceeds are so reinvested within 365 days after the date of receipt of such Net Proceeds (or, within such 365 day period, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Proceeds, and such Net Proceeds are so reinvested within 180 days after such binding commitment is so entered into); provided , however , that if any Net Proceeds are not reinvested or applied as a repayment on or prior to the last day of the applicable application period, such Net Proceeds shall be applied within five Business Days to the prepayment of the Initial Loans as set forth above (without regard to the immediately preceding proviso); or

 

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(c) If the Borrower shall optionally redeem any Exchange Notes pursuant to the terms of the Exchange Note Indenture, then the Borrower shall prepay Loans on a pro rata basis with the Exchange Notes so redeemed.

(d) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment hereunder at least three Business Days before the date of such prepayment. Each such notice shall specify the prepayment date and provide a reasonably detailed calculation of the amount of such prepayment. If such notice is given, the Borrower shall make such prepayment, and the payment amount specified in such notice shall be due and payable, on the date specified therein. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof and of the amount of such Lender’s Pro Rata Share of such prepayment. All prepayments under this Section 2.04 shall be accompanied by all accrued interest thereon, together with, in the case of any such prepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Loan pursuant to Section 2.09.

SECTION 2.05. Repayment of Loans; Evidence of Debt . (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Extended Loan on the Maturity Date (or such earlier date on which such Loans are required to be repaid in accordance with the provisions of this Agreement). The Borrower hereby further agrees to pay interest on the unpaid principal amount of eac