FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
STRICTLY CONFIDENTIAL
Execution Version
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of June 3, 2020 (this “Amendment”), is entered into by and among PVH Corp., a Delaware corporation (the “U.S. Borrower”), PVH ASIA LIMITED, with the registration number 1376775, a company incorporated under the laws of Hong Kong (the “Hong Kong Borrower”), PVH B.V., with the registration number 27278835, a Dutch private limited liability company with its corporate seat in Amsterdam, The Netherlands (the “European Borrower” and, together with the U.S. Borrower and the Hong Kong Borrower, the “Borrowers”), each Lender party hereto and Barclays Bank PLC (“Barclays”), as administrative agent (in such capacity, the “Administrative Agent”) under the Existing Credit Agreement.
RECITALS
WHEREAS, the Borrowers have entered into that certain Credit and Guaranty Agreement, dated as of April 29, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time immediately prior to the date hereof, the “Existing Credit Agreement”), with the Lenders from time to time party thereto, the Administrative Agent and the other parties referred to therein;
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be amended as set forth in Exhibit A hereto (the “Amended Credit Agreement”; except as otherwise provided herein, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms therein);
WHEREAS, each Lender that executes and delivers a signature page to this Amendment hereby agrees to the terms and conditions of this Amendment (each such Lender that has executed and delivered a signature page to this Amendment on or prior to 3:00 p.m. New York City time on June 2, 2020 (each such Lender, a “Consenting Lender”); and
WHEREAS, the Lenders party hereto constitute at least the Required Lenders under the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1 Amendment to Existing Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 2 of this Amendment, on the Effective Date:
(a) The Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the change pages of the Existing Credit Agreement attached as Exhibit A hereto;
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(b) Exhibit C to the Existing Credit Agreement shall be amended and restated into the form of schedules attached hereto as Exhibit B;
(c) Any Schedule or Exhibit to the Existing Credit Agreement not amended pursuant to clause (b) above shall remain in full force and effect.
SECTION 2 Conditions to Effectiveness. This Amendment shall become effective on and as of the first Business Day when the following conditions have been satisfied (the “Effective Date”):
(a) The Administrative Agent shall have received counterparts (or written evidence satisfactory to the Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart) of (1) this Amendment duly executed by (i) each Loan Party, (ii) the Administrative Agent and (iii) the Lenders constituting at least the Required Lenders under the Existing Credit Agreement.
(b) The U.S. Borrower shall have paid all fees, compensation and reasonable expenses (including, without limitation, legal fees and expenses) of the Arrangers, the Administrative Agent and the Lenders due and payable on or prior to the Effective Date. The U.S. Borrower shall have paid to the Administrative Agent, for the account of each Consenting Lender, a consent fee (“Consent Fee”) equal to 0.125% of the outstanding principal amounts of such Lender’s Term Loans and/or Revolving Commitments on the Effective Date. Payment of each Consent Fee will be made in immediately available funds in the currency of such Term Loan or Revolving Commitment and will not be subject to counterclaim or set-off for, or be otherwise affected by, any claim or dispute relating to any other matter.
(c) No event shall have occurred and be continuing or would result directly from the effectiveness of this Amendment and the consummation of the transactions contemplated hereby that would constitute a Default or an Event of Default.
(d) The representations and warranties contained in the Amended Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, to the extent any such representation or warranty is already qualified by materiality or Material Adverse Effect, such representation or warranty shall be true and correct in all respects.
(e) The Administrative Agent shall have received a certificate from a Responsible Officer of the U.S. Borrower stating the compliance with the conditions set forth in clauses (c) and (d) above of this Section 2.
SECTION 3 Effect on Loan Documents. Except as specifically amended herein, all other Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Except as specifically set forth herein, the execution, delivery and effectiveness of
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this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Loan Documents. The Borrowers and the other Loan Parties acknowledge and agree that, on and after the Effective Date, this Amendment and each of the other Loan Documents to be executed and delivered by a Loan Party in connection herewith shall constitute a Loan Document for all purposes of the Amended Credit Agreement. On and after the Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement shall mean and be a reference to the Existing Credit Agreement as amended by this Amendment, and this Amendment and the Amended Credit Agreement shall be read together and construed as a single instrument. Nothing herein shall be deemed to entitle the Borrowers to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances. For the avoidance of doubt, this Amendment does not constitute a novation or termination by any Loan Party of the Indebtedness and Obligations under the Existing Credit Agreement.
SECTION 4 Expenses. The Borrowers agree to pay all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with this Amendment and any other documents prepared in connection herewith, in each case to the extent required by Section 10.02 of the Amended Credit Agreement. The Borrowers hereby confirm that the indemnification provisions set forth in Section 10.03 of the Amended Credit Agreement shall apply to this Amendment and such losses, claims, damages, liabilities, costs and expenses (as more fully set forth therein as applicable) which may arise herefrom or in connection herewith.
SECTION 5 Amendments; Severability.
(a) This Amendment may not be amended nor may any provision hereof be waived except pursuant to a writing signed by each party hereto.
(b) In case any provision in or obligation hereunder shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby (it being understood that the invalidity, illegality or unenforceability of a particular provision in a particular jurisdiction shall not in and of itself affect the validity, legality or enforceability of such provision in any other jurisdiction).
SECTION 6 GOVERNING LAW; WAIVER OF JURY TRIAL; JURISDICTION. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW
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YORK. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER THIS AMENDMENT. The provisions of Section 10.15 and Section 10.16 of the Amended Credit Agreement are incorporated herein by reference.
SECTION 7 Headings. The Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose, modify or amend the terms or conditions hereof, be used in connection with the interpretation of any term or condition hereof or be given any substantive effect.
SECTION 8 Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Amendment by facsimile or other electronic transmission (including portable document format (“.pdf”) or similar format) shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by Administrative Agent pursuant to procedures approved by it (it being understood and agreed that documents signed manually but delivered in “.pdf” or “.tif” format (or other similar formats specified by the Administrative Agent) shall not constitute electronic signatures).
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[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
PVH CORP., as U.S. Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
PVH ASIA LIMITED, as Hong Kong Borrower
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Director
PVH B.V., as European Borrower
By: /s/ Martijn Xxxxxx
Name: Martijn Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxx Xxxxx Xxxxxxxx
Name: Xxxxxx Xxx Xxxxx Xxxxxxxx
Title: Managing Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
BARCLAYS BANK PLC,
as Administrative Agent, Lender and Issuing Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
CITIBANK, N.A.,
as a Lender
By: /s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
JPMORGAN CHASE BANK, N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Signature Page to
PVH Corp. First Amendment to Credit Agreement
MUFG Bank, Ltd.,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
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U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Xxxxx Fargo Bank, National Association,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Truist Bank,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Citizens Bank, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
STANDARD CHARTERED BANK,
as a Lender
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Associate Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
HSBC Bank USA, N.A,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Managing Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
THE BANK OF NOVA SCOTIA.,
as a Lender
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
TD BANK, N.A.,
as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Sumitomo Mitsui Banking Corporation,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
BANK OF CHINA, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Executive Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
BNP Paribas,
as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Managing Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
COMMERZBANK AG, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
DBS Bank Ltd.,
as a Lender
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Fifth Third Bank, NA,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: VP
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Santander Bank, N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
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ABN AMRO BANK N.V.,
as a Lender
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Executive Director
For Lenders that require a second signature line:
By: /s/ M. Schmmaher
Name: M. Schmmaher
Title: Executive Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Industrial and Commercial Bank of China Limited, New York Branch,
as a Lender
By: /s/ Jing Qu
Name: Jing Qu
Title: Vice President
For Lenders that require a second signature line:
By: /s/ Gang Duan
Name: Gang Duan
Title: Executive Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
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Intesa Sanpaolo SpA,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Global Relationship Manager
For Lenders that require a second signature line:
By: /s/ Xxxxxxxxxx Xxxxx
Name: Xxxxxxxxxx Xxxxx
Title: Head of Corporate Desk, Intesa
Sanpaolo – New York
Signature Page to
PVH Corp. First Amendment to Credit Agreement
United Overseas Bank Limited, New York Agency,
as a Lender
By: /s/ Xxxxxxxx Xx Xxxxxx
Name: Xxxxxxxx Xx Xxxxxx
Title: Managing Director
For Lenders that require a second signature line:
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: First Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Associate Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
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Capital One, National Association,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
The First Bank of Highland Park,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
Signature Page to
PVH Corp. First Amendment to Credit Agreement
The Bank of East Asia, Limited, New York Branch,
as a Lender
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: SVP
By: /s/ Kitty Sin
Name: Kitty Sin
Title: SVP
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Crédit Industriel et Commercial, New York Branch,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
MEGA INTERNATIONAL COMMERCIAL BANK,
CO., LTD., Silicon Valley Branch, as a Lender
By: /s/ Szu Xxx Xxxxx
Name: Szu Xxx Xxxxx
Title: VP & General Manager
Signature Page to
PVH Corp. First Amendment to Credit Agreement
Bank of Taiwan,
acting through its Los Angeles Branch as a Lender,
By: /s/ Ti-Xxxx Xxxx
Name: Ti-Xxxx Xxxx
Title: Vice President and General Manager
Signature Page to
PVH Corp. First Amendment to Credit Agreement
TAIWAN BUSINESS BANK,
as a Lender
By: /s/ Shenn-Xxx Xxxx
Name: Shenn-Xxx Xxxx
Title: General Manager
Signature Page to
PVH Corp. First Amendment to Credit Agreement
American Savings Bank, F.S.B.,
as a Lender
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
BANNER BANK,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
CTBC Bank Co., Ltd. New York Branch,
as a Lender
By: /s/ Mingdao Li
Name: Mingdao Li
Title: SVP & General Manager
Signature Page to
PVH Corp. First Amendment to Credit Agreement
SUNFLOWER BANK, N.A.,
as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
Signature Page to
PVH Corp. First Amendment to Credit Agreement
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STRICTLY CONFIDENTIAL
Execution Version
STRICLTY CONFIDENTIAL
EXECUTION VERSION
EXHIBIT A
___________________________________________________________________
CREDIT AND GUARANTY AGREEMENT
dated as of April 29, 20191
among
PVH CORP., as U.S. Borrower,
PVH ASIA LIMITED, as Hong Kong Borrower,
PVH B.V., as European Borrower,
CERTAIN SUBSIDIARIES OF PVH CORP.,as Guarantors,
VARIOUS LENDERS,
BARCLAYS BANK PLC,as Administrative Agent,
CITIBANK, N.A. and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,as Syndication Agents
and
JPMORGAN CHASE BANK, N.A., ROYAL BANK OF CANADA, MUFG BANK, LTD., U.S. BANK NATIONAL ASSOCIATION and XXXXX FARGO BANK, NATIONAL ASSOCIATIONas Documentation Agents
___________________________________________
BARCLAYS BANK PLC, CITIBANK, N.A., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, JPMORGAN CHASE BANK, N.A. and RBC CAPITAL MARKETS, LLC,as Joint Lead Arrangers,
and
BARCLAYS BANK PLC, CITIBANK, N.A., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, JPMORGAN CHASE BANK, N.A. and RBC CAPITAL
MARKETS, LLC,as Joint Lead Bookrunner
________________________________________________________
11 As amended to reflect the First Amendment dated as of June 3, 2020
Credit Facilities
_________________________________________________________________
TABLE OF CONTENTS | ||||||||||||||
Page | ||||||||||||||
Article I. DEFINITIONS AND INTERPRETATION | 1 | |||||||||||||
Section 1.01 | Definitions | 1 | ||||||||||||
Section 1.02 | Accounting Terms | 5053 | ||||||||||||
Section 1.03 | Interpretation, Etc. | 5154 | ||||||||||||
Section 1.04 | Exchange Rates; Currency Equivalents; Basket Calculations | 5154 | ||||||||||||
Section 1.05 | Dutch Terms | 5355 | ||||||||||||
Section 1.06 | Additional Other Foreign Currencies, Approved Issuing Currencies | 5356 | ||||||||||||
Article II. LOANS AND LETTERS OF CREDIT | 5457 | |||||||||||||
Section 2.01 | Tranche A Term Loans | 5457 | ||||||||||||
Section 2.02 | Revolving Loans | 5558 | ||||||||||||
Section 2.03 | Swing Line Loans | 5861 | ||||||||||||
Section 2.04 | Issuance of Letters of Credit and Purchase of Participations Therein | 6265 | ||||||||||||
Section 2.05 | Pro Rata Shares; Availability of Funds; Affiliates | 7174 | ||||||||||||
Section 2.06 | Use of Proceeds | 7275 | ||||||||||||
Section 2.07 | Evidence of Debt; Register; Notes | 7275 | ||||||||||||
Section 2.08 | Interest on Loans | 7276 | ||||||||||||
Section 2.09 | Conversion/Continuation | 7579 | ||||||||||||
Section 2.10 | Default Interest | 7679 | ||||||||||||
Section 2.11 | Fees | 7680 | ||||||||||||
Section 2.12 | Scheduled Payments | 7982 | ||||||||||||
Section 2.13 | Voluntary Prepayments/Commitment Reductions | 8084 | ||||||||||||
Section 2.14 | Mandatory Prepayments/Commitment Reductions | 8285 | ||||||||||||
Section 2.15 | Application of Prepayments/Reductions | 8286 | ||||||||||||
Section 2.16 | General Provisions Regarding Payments | 8386 | ||||||||||||
Section 2.17 | Ratable Sharing | 8588 | ||||||||||||
Section 2.18 | Making or Maintaining Eurocurrency Rate Loans | 8589 | ||||||||||||
Section 2.19 | Increased Costs; Capital Adequacy | 8790 | ||||||||||||
Section 2.20 | Taxes; Withholding, Etc. | 8992 | ||||||||||||
Section 2.21 | Obligation to Mitigate | 9295 | ||||||||||||
Section 2.22 | Defaulting Lenders | 9296 | ||||||||||||
Section 2.23 | Removal or Replacement of a Lender | 9497 | ||||||||||||
Section 2.24 | Incremental Facilities | 9598 | ||||||||||||
Section 2.25 | Appointment of Borrower Representative | 97101 | ||||||||||||
Section 2.26 | Extension of Maturity Date | 97101 | ||||||||||||
Section 2.27 | Existing ABN Letters of Credit | 99103 | ||||||||||||
Article III. CONDITIONS PRECEDENT | 99103 | |||||||||||||
Section 3.01 | Closing Date | 99103 |
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Section 3.02 | Conditions to Each Credit Extension | 101105 | ||||||||||||
Article IV. REPRESENTATIONS AND WARRANTIES | 102106 | |||||||||||||
Section 4.01 | Organization; Requisite Power and Authority; Qualification | 102106 | ||||||||||||
Section 4.02 | [Reserved] | 103106 | ||||||||||||
Section 4.03 | Due Authorization | 103106 | ||||||||||||
Section 4.04 | No Conflicts | 103106 | ||||||||||||
Section 4.05 | Governmental Consents | 103107 | ||||||||||||
Section 4.06 | Binding Obligation | 103107 | ||||||||||||
Section 4.07 | Historical Financial Statements | 103107 | ||||||||||||
Section 4.08 | [Reserved]. | 104107 | ||||||||||||
Section 4.09 | No Material Adverse Change | 104107 | ||||||||||||
Section 4.10 | Adverse Proceedings, Etc. | 104107 | ||||||||||||
Section 4.11 | Payment of Taxes | 104107 | ||||||||||||
Section 4.12 | Properties | 104108 | ||||||||||||
Section 4.13 | Environmental Matters | 104108 | ||||||||||||
Section 4.14 | No Defaults | 104108 | ||||||||||||
Section 4.15 | Governmental Regulation | 105108 | ||||||||||||
Section 4.16 | Margin Stock | 105108 | ||||||||||||
Section 4.17 | Employee Benefit Plans | 105108 | ||||||||||||
Section 4.18 | Solvency | 105109 | ||||||||||||
Section 4.19 | Compliance with Statutes, Etc | 105109 | ||||||||||||
Section 4.20 | Disclosure | 105109 | ||||||||||||
Section 4.21 | Centre of Main Interests and Establishments | 105109 | ||||||||||||
Section 4.22 | FCPA and Sanctions | 106109 | ||||||||||||
Article V. AFFIRMATIVE COVENANTS | 106110 | |||||||||||||
Section 5.01 | Compliance with Laws, Etc | 106110 | ||||||||||||
Section 5.02 | Payment of Taxes, Etc. | 106110 | ||||||||||||
Section 5.03 | Maintenance of Insurance | 106110 | ||||||||||||
Section 5.04 | Preservation of Existence, Etc. | 106110 | ||||||||||||
Section 5.05 | Visitation Rights | 107110 | ||||||||||||
Section 5.06 | Keeping of Books | 107111 | ||||||||||||
Section 5.07 | Maintenance of Properties, Etc | 107111 | ||||||||||||
Section 5.08 | Reporting Requirements | 107111 | ||||||||||||
Section 5.09 | Transactions with Affiliates | 108112 | ||||||||||||
Section 5.10 | Subsidiaries | 108112 | ||||||||||||
Section 5.11 | AML Laws; FCPA and Sanctions | 109113 | ||||||||||||
Section 5.12 | Further Assurances | 109113 | ||||||||||||
Section 5.13 | Springing Guaranty and Lien | 109113 | ||||||||||||
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Article VI. | 114 | |||||||||||||
NEGATIVE COVENANTS | 110114 | |||||||||||||
Section 6.01 | Liens | 110114 | ||||||||||||
Section 6.02 | Mergers, Etc. | 111115 | ||||||||||||
Section 6.03 | Indebtedness | 112116 | ||||||||||||
Section 6.04 | Financial Covenants | 113118 | ||||||||||||
Section 6.05 | Restricted Payments. | 119 | ||||||||||||
Article VII. GUARANTY | 113120 | |||||||||||||
Section 7.01 | Guaranty of the Obligations | 113120 | ||||||||||||
Section 7.02 | Limitation on Liability; Contribution by Guarantors | 114120 | ||||||||||||
Section 7.03 | Payment by Guarantors | 115121 | ||||||||||||
Section 7.04 | Liability of Guarantors Absolute | 115122 | ||||||||||||
Section 7.05 | Waivers by Guarantors | 117124 | ||||||||||||
Section 7.06 | Guarantors’ Rights of Subrogation, Contribution, Etc. | 118124 | ||||||||||||
Section 7.07 | Continuing Guaranty | 119125 | ||||||||||||
Section 7.08 | Authority of Guarantors or the Borrowers | 119125 | ||||||||||||
Section 7.09 | Financial Condition of the Borrowers | 119125 | ||||||||||||
Section 7.10 | Bankruptcy, Etc. | 119126 | ||||||||||||
Section 7.11 | Discharge of Guaranty | 120126 | ||||||||||||
Article VIII. EVENTS OF DEFAULT | 121127 | |||||||||||||
Section 8.01 | Events of Default | 121127 | ||||||||||||
Article IX. AGENTS | 123130 | |||||||||||||
Section 9.01 | Appointment of Agents | 123130 | ||||||||||||
Section 9.02 | Powers and Duties | 124130 | ||||||||||||
Section 9.03 | General Immunity | 124131 | ||||||||||||
Section 9.04 | Agents Entitled to Act as Lender | 126133 | ||||||||||||
Section 9.05 | Lenders’ Representations, Warranties and Acknowledgment | 127133 | ||||||||||||
Section 9.06 | Right to Indemnity | 127134 | ||||||||||||
Section 9.07 | Successor Agents, Issuing Banks and Swing Line Lender | 128134 | ||||||||||||
Section 9.08 | Security Documents and Guaranty | 129136 | ||||||||||||
Section 9.09 | Withholding Taxes | 131138 | ||||||||||||
Section 9.10 | Administrative Agent May File Proofs of Claim | 132138 | ||||||||||||
Section 9.11 | Administrative Agent’s “Know Your Customer” Requirements | 132139 | ||||||||||||
Section 9.12 | Certain ERISA Matters | 132139 | ||||||||||||
Article X. MISCELLANEOUS | 134140 | |||||||||||||
Section 10.01 | Notices | 134140 | ||||||||||||
Section 10.02 | Expenses | 135142 | ||||||||||||
Section 10.03 | Indemnity | 136143 |
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Section 10.04 | Set Off | 137144 | ||||||||||||
Section 10.05 | Amendments and Waivers | 138144 | ||||||||||||
Section 10.06 | Successors and Assigns; Participations | 141148 | ||||||||||||
Section 10.07 | Independence of Covenants, Etc. | 145152 | ||||||||||||
Section 10.08 | Survival of Representations, Warranties and Agreements | 146152 | ||||||||||||
Section 10.09 | No Waiver; Remedies Cumulative | 146153 | ||||||||||||
Section 10.10 | Marshalling; Payments Set Aside | 146153 | ||||||||||||
Section 10.11 | Severability | 146153 | ||||||||||||
Section 10.12 | Obligations Several; Independent Nature of Lenders’ Rights | 147153 | ||||||||||||
Section 10.13 | Table of Contents and Headings | 147154 | ||||||||||||
Section 10.14 | APPLICABLE LAW | 147154 | ||||||||||||
Section 10.15 | CONSENT TO JURISDICTION | 147154 | ||||||||||||
Section 10.16 | WAIVER OF JURY TRIAL | 148155 | ||||||||||||
Section 10.17 | Confidentiality | 148155 | ||||||||||||
Section 10.18 | Usury Savings Clause | 149156 | ||||||||||||
Section 10.19 | Counterparts | 150157 | ||||||||||||
Section 10.20 | Effectiveness; Entire Agreement; No Third Party Beneficiaries | 150157 | ||||||||||||
Section 10.21 | PATRIOT Act; Beneficial Ownership | 150157 | ||||||||||||
Section 10.22 | “Know Your Customer” Checks | 150157 | ||||||||||||
Section 10.23 | Electronic Execution | 151158 | ||||||||||||
Section 10.24 | No Fiduciary Duty | 151158 | ||||||||||||
Section 10.25 | Judgment Currency | 152158 | ||||||||||||
Section 10.26 | Acknowledgment and Consent to Bail-In of EEAAffected Financial Institutions | 152159 | ||||||||||||
Section 10.27 | Acknowledgement Regarding Any Supported QFCs. | 159 |
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SCHEDULES: | 1.01(g) | Material Companies | ||||||||||||
2.01(a) | Tranche A Term Loan Commitments | |||||||||||||
2.02 | Revolving Commitments | |||||||||||||
2.04(a) | Existing Letters of Credit | |||||||||||||
2.04(b) | Issuing Bank Letter of Credit Sublimits | |||||||||||||
6.01(d) | Existing Liens | |||||||||||||
6.03(b) | Existing Subsidiary Debt | |||||||||||||
10.01(a) | Notice Addresses | |||||||||||||
EXHIBITS: | A-1 | Borrowing Notice | ||||||||||||
A-2 | Conversion/Continuation Notice | |||||||||||||
A-3 | Issuance Notice | |||||||||||||
B-1 | Tranche A Term Loan Note | |||||||||||||
B-2 | Revolving Loan Note | |||||||||||||
B-3 | Swing Line Note | |||||||||||||
B-4 | Incremental Term Loan Note | |||||||||||||
C | Compliance Certificate | |||||||||||||
D | Certificate re Non Bank Status | |||||||||||||
E 1 | Closing Date Certificate | |||||||||||||
E 2 | Solvency Certificate | |||||||||||||
F | Counterpart Agreement | |||||||||||||
G | Joinder Agreement | |||||||||||||
H | Extension Request |
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CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of April 29, 2019, is entered into by and among PVH CORP., a Delaware corporation (together with its permitted successors and assigns, the “U.S. Borrower”), PVH ASIA LIMITED, with the registration number 1376775, a company incorporated under the laws of Hong Kong (together with its permitted successors and assigns, the “Hong Kong Borrower”), PVH B.V., with the registration number 27278835, a Dutch private limited liability company with its corporate seat in Amsterdam, The Netherlands (together with its permitted successors and assigns, the “European Borrower” and, together with the U.S. Borrower and the Hong Kong Borrower, the “Borrowers”), CERTAIN SUBSIDIARIES OF THE U.S. BORROWER, as Guarantors, the Lenders party hereto from time to time, and BARCLAYS BANK PLC (“Barclays”), as Administrative Agent (together with its permitted successors and assigns in such capacity, the “Administrative Agent”), with XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement, “MLPFS”) and CITIBANK, N.A. (“Citi”), as Syndication Agents (together with their permitted successors and assigns in such capacity, the “Syndication Agents”), JPMORGAN CHASE BANK, N.A. (“JPMorgan”), ROYAL BANK OF CANADA (“Royal Bank”), MUFG BANK, LTD., U.S. BANK NATIONAL ASSOCIATION and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agents.
RECITALS:
WHEREAS, the Borrowers have requested that the Lenders and the Issuing Banks (as defined below) extend credit to the Borrowers from time to time on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“Acquisition Consideration” means the purchase consideration for any Subject Acquisition and all other payments by any Group Member in exchange for, or as part of, or in connection with, any Subject Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Subject Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, “earn-outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent
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upon the revenues, income, cash flow or profits (or the like) of any Person or business (it being understood that the amount of any deferred payment, including consideration paid in the form of or pursuant to an “earn-out” or other contingent payment, shall be calculated as the present value of expected future payments in respect thereof, as of the date of consummation of the applicable Subject Acquisition in accordance with GAAP).
“Acquisition Debt” means any Indebtedness of the U.S. Borrower or any of its Subsidiaries that has been issued for the purpose of financing, in whole or in part, a Qualifying Acquisition and any related transactions or series of related transactions (including for the purpose of refinancing or replacing all or a portion of any pre-existing Indebtedness of the U.S. Borrower, any of its Subsidiaries or the Person(s) or assets to be acquired); provided that (a) the release of the proceeds thereof to the U.S. Borrower and its Subsidiaries is contingent upon the consummation of such Qualifying Acquisition and, pending such release, such proceeds are held in escrow (and, if the definitive agreement (or, in the case of a tender offer or similar transaction, the definitive offer document) for such acquisition is terminated prior to the consummation of such Qualifying Acquisition or if such Qualifying Acquisition is otherwise not consummated by the date specified in the definitive documentation relating to such Indebtedness, such proceeds shall be promptly applied to satisfy and discharge all obligations of the U.S. Borrower and its Subsidiaries in respect of such Indebtedness) or (b) such Indebtedness contains a “special mandatory redemption” provision (or other similar provision) or otherwise permits such Indebtedness to be redeemed or prepaid if such Qualifying Acquisition is not consummated by the date specified in the definitive documentation relating to such Indebtedness (and if the definitive agreement (or, in the case of a tender offer or similar transaction, the definitive offer document) for such Qualifying Acquisition is terminated in accordance with its terms prior to the consummation of such Qualifying Acquisition or such Qualifying Acquisition is otherwise not consummated by the date specified in the definitive documentation relating to such Indebtedness, such Indebtedness is so redeemed or prepaid within 90 days of such termination or such specified date, as the case may be).
“Acquisition Period” means the period from and after the consummation of a Qualifying Acquisition to and including the last day of the fourth full Fiscal Quarter following the Fiscal Quarter in which such Qualifying Acquisition was consummated.
“Administrative Agent” has the meaning specified in the preamble hereto.
“Adverse Proceeding” means any action, suit or proceeding at law or in equity or, to the knowledge of any Authorized Officer of any Borrower, any hearing (whether administrative, judicial or otherwise), investigation before or by any Governmental Authority or arbitration (whether or not purportedly on behalf of any Group Member) against or affecting any Group Member or any property of any Group Member.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” has the meaning set forth in Section 2.18(b).
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition,
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“control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise; provided, that no Agent or Lender shall be deemed to be an Affiliate of any Loan Party.
“Agent” means each of the Administrative Agent, the Syndication Agents, the Documentation Agents and, if applicable, any Collateral Agent.
“Agent Affiliates” has the meaning set forth in Section 10.01(b)(iii).
“Aggregate Amounts Due” has the meaning set forth in Section 2.17.
“Aggregate Payments” has the meaning set forth in Section 7.02(b).
“Agreement” means this Credit and Guaranty Agreement, dated as of April 29, 2019, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Agreement Currency” has the meaning set forth in Section 10.25.
“Alternate Currency LIBO Rate” has the meaning set forth in the definition of “Eurocurrency Rate”.
“AML Laws” means all laws, rules, and regulations of the United States applicable to the Borrowers or the Borrowers’ Subsidiaries from time to time concerning or relating to anti-money laundering.
“Ancillary Commitment” means, in relation to the Ancillary Lender and the Existing ABN Letters of Credit, the Euro Equivalent of the maximum amount of Approved Currency or other currency freely exchangeable into Euro and agreed to by the Ancillary Lender from time to time and notified to the Administrative Agent in writing, which amount shall not exceed the Ancillary Lender’s European Revolving Commitment.
“Ancillary Facility” means the Ancillary Facility (as defined in the Existing Credit Agreement as in effect immediately prior to the Closing Date) between the Ancillary Lender and the European Borrower which was made available by the Ancillary Lender under the Existing Credit Agreement.
“Ancillary Lender” means ABN AMRO Bank N.V. or one or more of its Affiliates.
“Applicable Margin” means (i) with respect to Base Rate Loans and Canadian Prime Rate Loans, (a) from the Closing Date until the date of delivery of the Compliance Certificate and the financial statements for the Fiscal Quarter during which the Closing Date occurs, 0.375% per annum and (b) thereafter, a percentage, per annum, determined by reference to the more favorable to the applicable Borrower of the Net Leverage Ratio in effect from time to time as set forth below and the Public Debt Rating in effect from time to time as set forth below, in each case subject to the Pricing Level Adjustment, (ii) with respect to Eurocurrency Rate Loans, (a) from the Closing Date until the date of delivery of the Compliance Certificate and the financial statements for the Fiscal
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Quarter during which the Closing Date occurs, 1.375% per annum and (b) thereafter, a percentage, per annum, determined by reference to the more favorable to the applicable Borrower of the Net Leverage Ratio in effect from time to time as set forth below and the Public Debt Rating in effect from time to time as set forth below, in each case subject to the Pricing Level Adjustment; provided that, commencing on the First Amendment Effective Date and thereafter until the termination of the Covenant Relief Period (including the date of such termination), the Applicable Margin for any Loan shall mean percentage, per annum, as set forth in the grid below plus 0.25%:
Pricing Level | Net Leverage Ratio | Public Debt Ratings | Applicable Margin for Eurocurrency Rate Loans | Applicable Margin for Base Rate Loans and Canadian Prime Rate Loans | ||||||||||
I | ≤ 1.00:1.00 | BBB+ / Baa1 | 1.125% | 0.125% | ||||||||||
II | ≤ 2.00:1.00 > 1.00:1.00 | BBB / Baa2 | 1.250% | 0.250% | ||||||||||
III | ≤ 3.00:1.00 > 2.00:1.00 | BBB- / Baa3 | 1.375% | 0.375% | ||||||||||
IV | ≤ 4.00:1.00 > 3.00:1.00 | BB+ / Ba1 | 1.500% | 0.500% | ||||||||||
V | > 4.00:1.00 | BB / Ba2 | 1.750% | 0.750% |
Changes in the Applicable Margin shall be effective on and after the date on which, as applicable, the Administrative Agent has received the applicable financial statements and a Compliance Certificate pursuant to Section 5.08(a) or (b) calculating the Net Leverage Ratio and/or the date on which the U.S. Borrower has delivered notice to the Administrative Agent of any publicly-announced change in the Public Debt Rating by S&P or Xxxxx’x. Promptly following receipt of the applicable information under Section 5.08(a) or (b), the Administrative Agent shall give each Lender electronic or telefacsimile notice of the Applicable Margin for the applicable Loans in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 5.08(a) or (b) is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any Loan, as applicable, for any period (an “Applicable Period”) than the Applicable Margin for such Loans, applied for such Applicable Period, then (i) the Borrower Representative shall immediately deliver to the Administrative Agent a correct certificate required by Section 5.08(a) or (b) for such Applicable Period, (ii) the Applicable Margin for such Loans, as applicable, shall be recalculated with the Net Leverage Ratio and Public Debt Ratings at the corrected level and (iii) each applicable Borrower shall immediately
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pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Loans, as applicable, for such Applicable Period. Nothing in this definition shall limit the right of the Administrative Agent or any Lender under Section 2.10 or Article VIII and the provisions of this definition shall survive the termination of this Agreement.
“Applicable Period” has the meaning set forth in the definition of “Applicable Margin”.
“Applicable Reserve Requirement” means, at any time, for any Eurocurrency Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under regulations issued from time to time by the Board of Governors or other applicable banking regulator. The rate of interest on Eurocurrency Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“Applicable Revolving Commitment Fee Percentage” means (a) from the Closing Date until the date of delivery of the Compliance Certificate and the financial statements for the Fiscal Quarter during which the Closing Date occurs, 0.20% per annum, and (b) thereafter, a percentage, per annum, determined by reference to the more favorable to the applicable Borrower of the Net Leverage Ratio in effect from time to time as set forth below and the Public Debt Rating in effect from time to time as set forth below, subject to the Pricing Level Adjustment:
Pricing Level | Net Leverage Ratio | Public Debt Ratings | Commitment Fee | ||||||||
I | ≤ 1.00:1.00 | BBB+ / Baa1 | 0.125% | ||||||||
II | ≤ 2.00:1.00 > 1.00:1.00 | BBB / Baa2 | 0.150% | ||||||||
III | ≤ 3.00:1.00 > 2.00:1.00 | BBB- / Baa3 | 0.200% | ||||||||
IV | ≤ 4.00:1.00 > 3.00:1.00 | BB+ / Ba1 | 0.250% | ||||||||
V | > 4.00:1.00 | BB / Ba2 | 0.300% |
Changes in the Applicable Revolving Commitment Fee Percentage shall be effective on and after the date on which, as applicable, the Administrative Agent has received the applicable financial statements and a Compliance Certificate pursuant to Section 5.08(a) or (b) calculating the Net Leverage Ratio and/or the date on which the U.S. Borrower has delivered notice to the Administrative Agent of any publicly-announced change in the Public Debt Rating by S&P or Xxxxx’x. Promptly following receipt of the applicable information under Section 5.08(a) or (b), the Administrative Agent shall give each Lender electronic or telefacsimile notice of the Applicable Revolving Commitment Fee Percentage in effect from such date. In the event that any financial statement or certificate delivered pursuant to Section 5.08(a) or (b) is shown to be
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inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Revolving Commitment Fee Percentage for any Applicable Period than the Applicable Revolving Commitment Fee Percentage applied for such Applicable Period, then (i) the Borrower Representative shall immediately deliver to the Administrative Agent a correct certificate required by Section 5.08(a) or (b) for such Applicable Period, (ii) the Applicable Revolving Commitment Fee Percentage shall be recalculated with the Net Leverage Ratio and Public Debt Ratings at the corrected level and (iii) each applicable Borrower shall immediately pay to the Administrative Agent the accrued additional fees owing as a result of such increased Applicable Revolving Commitment Fee Percentage for such Applicable Period. Nothing in this definition shall limit the right of the Administrative Agent or any Lender under Section 2.10 or Article VIII and the provisions of this definition shall survive the termination of this Agreement.
“Approved Currency” means each of Dollars, Euros, Canadian Dollars, Hong Kong Dollars or any Other Foreign Currency.
“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to Agents or to Lenders by means of electronic communications pursuant to Section 10.01(b).
“Approved Issuing Currency” has the meaning set forth in Section 1.06.
“Arrangers” means Barclays, Citibank, N.A., MLPFS, RBCCM and JPMorgan each in its capacity as a joint lead arranger.
“Assignment Agreement” means an assignment agreement in the form agreed to by the Administrative Agent and the Lenders on the Closing Date, with such amendments or modifications solely to reflect market practice as may be approved in writing by the Administrative Agent.
“Assignment Effective Date” has the meaning set forth in Section 10.06(b).
“Australian Dollars” means the lawful currency of Australia.
“Authorized Officer” means, as applied to any Person, the chairman of the board (if an officer), principal executive officer, president or any corporate vice president (or the equivalent thereof), Financial Officer, principal accounting officer or any director of such Person. Unless otherwise specified, an Authorized Officer shall refer to an Authorized Officer of the Borrower Representative.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United
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Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Guarantee” means a direct guarantee issued for the account of any Foreign Subsidiary pursuant to this Agreement by an Issuing Bank, in form acceptable to such Issuing Bank, ensuring that a liability of such Subsidiary acceptable to such Issuing Bank and owing to a third party will be met.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Barclays” has the meaning specified in the preamble hereto.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (x) the rate last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent) (the “Prime Rate”), (y) the Federal Funds Effective Rate plus ½ of 1.0% and (z) the one-month reserve Eurocurrency Rate plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate shall be effective on the effective day of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, respectively.
“Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board of Directors” means, with respect to any Person, the board of directors, the board of managers or similar governing body of such Person, or if such Person is owned and/or managed by a single entity, the board of directors or similar governing body of such entity.
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“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“Bookrunners” means each of Barclays, Citi, MLPFS, JPMorgan and RBCCM, each in its capacity as a joint lead bookrunner.
“Borrower Representative” means the U.S. Borrower in its capacity as representative of the other Borrowers as set forth in Section 2.25.
“Borrowers” means the Persons identified as the “Borrowers” in the preamble hereto.
“Borrowing Notice” means a notice substantially in the form of Exhibit A-1.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Principal Office with respect to the Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars 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;
(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer which utilizes a single shared platform and which was launched on 19 November 2007 (TARGET 2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro;
(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Hong Kong Dollars, any fundings, disbursements, settlements and payments in Hong Kong Dollars in respect of any such Eurocurrency Rate Loan, or any other dealing in Hong Kong Dollars 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 Hong Kong Dollars are conducted by and between banks in the Hong Kong interbank market;
(d) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars, Euro or Hong Kong Dollars, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency;
(e) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Euro or Hong Kong Dollars in respect of a Eurocurrency Rate Loan
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denominated in a currency other than Dollars, Euro or Hong Kong Dollars, or any other dealings in any currency other than Dollars, Euro or Hong Kong Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency;
(f) if such day relates to any interest rate settings, funding, disbursement, settlements and payments in Canadian Dollars, means any day other than a Saturday, Sunday or other day on which commercial banks in Toronto, Ontario are authorized or required by law to close; and
(g) if such day relates to any interest rate settings, funding, disbursement, settlements and payments in Hong Kong Dollars, means any day other than a Saturday, Sunday or other day on which commercial banks in Hong Kong are authorized or required by law to close.
“Canadian Dollars” and “CAD $” means the lawful money of Canada.
“Canadian Issuing Bank” means an Issuing Bank that has agreed to issue Canadian Letters of Credit.
“Canadian Letter of Credit” means any commercial or standby letter of credit issued or to be issued by an Issuing Bank for the account of the U.S. Borrower or any of its Subsidiaries pursuant to Section 2.04(a)(iii) of this Agreement, and any letter of credit issued and outstanding as of the Closing Date and designated by the Borrower Representative as a “Canadian Letter of Credit” pursuant to a written notice delivered to the Administrative Agent on or prior to the Closing Date; provided that the issuer thereof is a Revolving Lender hereunder. Each such letter of credit so designated shall be deemed to constitute a Canadian Letter of Credit and a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents.
“Canadian Letter of Credit Sublimit” means (a) the lesser of (i) CAD $10,000,000 and (ii) the aggregate unused amount of the Canadian Revolving Commitments then in effect and (b) as to any Issuing Bank (i) listed on Schedule 2.04(b), an amount equal to the amount set forth opposite such Issuing Bank’s name under the column “Canadian Letter of Credit Sublimit” on Schedule 2.04(b) (provided that such Issuing Bank may, in its sole discretion, agree to issue Canadian Letters of Credit in excess of such amount) and (ii) not listed on Schedule 2.04(b), an amount agreed by such Issuing Bank in its sole discretion.
“Canadian Letter of Credit Usage” means, as at any date of determination, the sum of (i) the Foreign Currency Equivalent of the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all Canadian Letters of Credit then outstanding, and (ii) the Foreign Currency Equivalent of the aggregate amount of all drawings under Canadian Letters of Credit honored by the Issuing Bank and not theretofore reimbursed by or on behalf of the U.S. Borrower.
“Canadian Prime Rate” means, at any time, the greater of (i) the rate of interest per annum which Royal Bank establishes at its main office in Toronto, Ontario as the reference rate of interest in order to determine interest rates for loans in Canadian Dollars to its Canadian borrowers, adjusted
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automatically with each quoted or published change in such rate, all without the necessity of any notice to the U.S. Borrower or any other Person and (ii) the average of the rates per annum for Canadian Dollar bankers’ acceptances having a term of one month that appears on the display referred to as “CDOR Page” of Reuters Monitor Money Rate Services as of 10:00 a.m. (Toronto time) on the date of determination, as reported by the Administrative Agent (and if such screen is not available, any successor or similar service as may be selected by the Administrative Agent); provided, however, that the Canadian Prime Rate shall not be less than 0.00% per annum.
“Canadian Prime Rate Loans” means Loans for which the applicable rate of interest is based upon the Canadian Prime Rate.
“Canadian Refunded Swing Line Loans” has the meaning set forth in Section 2.03(b)(iv).
“Canadian Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Canadian Revolving Loan and to acquire participations in Canadian Letters of Credit and Swing Line Loans hereunder and “Canadian Revolving Commitments” means such Commitments of all Lenders in the aggregate. The amount of each Lender’s Canadian Revolving Commitment, if any, is set forth on Schedule 2.02 or in the applicable Assignment Agreement or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Canadian Revolving Commitments as of the Closing Date is CAD $70,000,000.
“Canadian Revolving Commitment Period” means the period from and including the Closing Date to but excluding the Canadian Revolving Commitment Termination Date.
“Canadian Revolving Commitment Termination Date” means the earliest to occur of (i) the fifth anniversary of the Closing Date, which date is April 29, 2024, (ii) the date such Canadian Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b) or 2.14 and (iii) the date of the termination of such Canadian Revolving Commitments pursuant to Section 8.01; provided, that if any of the Canadian Revolving Commitments are extended pursuant to Section 2.26, the Canadian Revolving Commitment Termination Date relating to such extended Canadian Revolving Commitments will be extended pursuant to Section 2.26.
“Canadian Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of such Lender’s Canadian Revolving Commitments, that Lender’s Canadian Revolving Commitment; and (ii) after the termination of such Lender’s Canadian Revolving Commitments, the sum of (a) the Foreign Currency Equivalent of the aggregate outstanding principal amount of the Canadian Revolving Loans of that Lender, (b) in the case of an Issuing Bank, the Foreign Currency Equivalent of the aggregate Canadian Letter of Credit Usage in respect of all Canadian Letters of Credit issued by such Issuing Bank (net of any participations by Lenders in such Canadian Letters of Credit), (c) the Foreign Currency Equivalent of the aggregate amount of all participations by that Lender in any outstanding Canadian Letters of Credit or any unreimbursed drawing under any Canadian Letter of Credit, (d) in the case of the Canadian Swing Line Lender, the aggregate outstanding principal amount of all Canadian Swing Line Loans (net of any participations therein by other Lenders) and (e) the aggregate amount of all participations therein by that Lender in any outstanding Canadian Swing Line Loans.
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“Canadian Revolving Loan” means Loans made by a Lender in respect of its Canadian Revolving Commitment to the U.S. Borrower pursuant to Section 2.02(c) and/or Section 2.24.
“Canadian Swing Line Lender” means Royal Bank of Canada in its capacity as the Canadian Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.
“Canadian Swing Line Loan” means a Loan made by the Canadian Swing Line Lender to the U.S. Borrower pursuant to Section 2.03(a)(iii).
“Canadian Swing Line Sublimit” means the lesser of (i) CAD $25,000,000 and (ii) the aggregate unused amount of Canadian Revolving Commitments then in effect.
“Cash Collateralize” means either (a) the delivery of cash to the Collateral Agent as security for the payment of Obligations in respect of Letters of Credit in an amount equal to 102.0% of the aggregate face amount of such outstanding Letters of Credit or (b) the delivery to the applicable Issuing Bank of a customary back-to-back letter of credit in an amount equal to 102.0% of the aggregate face amount of the outstanding Letters of Credit issued by such Issuing Bank. “Cash Collateralization” has a correlative meaning.
“Cash Management Agreement” means any agreement or arrangement to provide treasury, depository, overdraft, credit or debit card, purchase card, electronic funds transfer (including automated clearinghouse transfer services) and other cash management services entered into with a Lender Counterparty.
“CDOR Rate” has the meaning set forth in the definition of “Eurocurrency Rate”.
“Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit D.
“Change of Control” means (i) the U.S. Borrower ceases to own, directly or indirectly, 100% of the Equity Interests of the European Borrower or Hong Kong Borrower, (ii) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any Employee Benefit Plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) (a) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 35.0% of the then-outstanding shares of capital stock or equivalent interests of the U.S. Borrower the holders of which are ordinarily, in the absence of contingencies, entitled to vote for members of the Board of Directors or equivalent governing body of the U.S. Borrower on a fully diluted basis, even though the right to so vote has been suspended by the happening of such a contingency (the “Voting Stock”) or (b) obtains the power (whether or not exercised) to elect a majority of the members of the Board of Directors of the U.S. Borrower or (iii) the majority of the seats (other than vacant seats) on the Board of Directors of the U.S. Borrower cease to be occupied by Continuing Directors. Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control under clause (ii) above, if (x) the U.S. Borrower becomes a direct or indirect Wholly-Owned Subsidiary of another Person (a “Parent Entity”) and (y)(1) the direct or indirect holders of the Voting Stock of such Parent Entity immediately following that transaction are substantially the same as the holders of the Voting Stock of the U.S. Borrower outstanding immediately prior to such transaction or (2) immediately
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after giving effect to such transaction no “person” or “group” (other than a Person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 35.0% of the Voting Stock of such Parent Entity.
“Citi” has the meaning specified in the preamble hereto.
“CKI Trust” means the trust established pursuant to the Delaware Business Trust Act, as amended, and the CKI Trust Agreement.
“CKI Trust Agreement” means the Trust Agreement, dated as of March 14, 1994, between CKI and Wilmington Trust Company, relating to the CKI Trust, and the other agreements related thereto.
“Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a) Lenders having Tranche A Term Loan Exposure, (b) Lenders having U.S. Revolving Exposure (including the U.S. Swing Line Lender), (c) Lenders having European Revolving Exposure (including the European Swing Line Lender), (d) Lenders having Canadian Revolving Exposure (including the Canadian Swing Line Lender), (e) Lenders having Hong Kong Revolving Exposure and (f) Lenders having Incremental Term Loan Exposure of each applicable Series, and (ii) with respect to Loans, each of the following classes of Loans: (a) Tranche A Dollar Term Loans, (b) U.S. Revolving Loans (including U.S. Swing Line Loans), (c) Tranche A Euro Term Loans (d) European Revolving Loans (including European Swing Line Loans), (e) Canadian Revolving Loans (including Canadian Swing Line Loans), (f) Hong Kong Revolving Loans and (g) each Series of Incremental Term Loans.
“Closing Date” means the first date all the conditions precedent in Section 3.01 are satisfied (or waived in accordance with Section 10.05), which date is April 29, 2019.
“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit E-1.
“Collateral” has the meaning set forth in the Pledge and Security Agreement.
“Collateral Agent” has the meaning set forth in Section 9.01 and shall include any permitted successors and assigns.
“Commitment” means any Revolving Commitment or Term Loan Commitment.
“Commodity Agreement” means any and all commodity swap agreements, cap agreements, collar agreements, floor agreements, exchange agreements, forward contracts, option contracts or other similar agreement or arrangement, each of which is for the purpose of hedging the commodity exposure associated with the operations of the Group and not for speculative purposes.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
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“Consenting Lender” has the meaning set forth in Section 2.26(c).
“Consolidated Cash Interest Expense” means, for any period, total interest expense payable in cash in such period (including that portion attributable to Finance Leases in accordance with GAAP) of the Group on a consolidated basis with respect to all outstanding Indebtedness of the Group (net of cash interest income), excluding, however, any one time financing fees (to the extent included in such Person’s consolidated interest expense for such period).
“Consolidated EBITDA” means, for any period, for the U.S. Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus
(a) the following (without duplication) to the extent deducted in calculating such Consolidated Net Income for such period: (i) consolidated interest expense for such period; (ii) provisions for taxes based on income, profits or capital; (iii) depreciation and amortization expense for such period; (iv) all non-cash expenses, losses or charges for such period (other than any such non-cash expenses, losses or charges that represent an accrual or reserve for future cash expenses, losses or charges), including, without limitation, non-cash stock based compensation expenses for such period and non-cash expenses, losses or charges for such period in connection with (A) goodwill and intangibles impairment losses under ASC 350, (B) unrealized losses resulting from xxxx-to-market accounting in respect of Hedge Agreements and Treasury Transactions, (C) unrealized losses on equity investments and (D) the pension or postretirement plans of the U.S. Borrower and its Subsidiaries; (v) in connection with any Qualifying Acquisition, all non-recurring restructuring costs, facilities relocation costs, acquisition integration costs and fees, including cash severance payments, and non-recurring fees and expenses, in each case incurred during such period in connection with such Qualifying Acquisition and within twelve (12) months of the completion of such Qualifying Acquisition; provided that the amount added back to Consolidated Net Income pursuant to this clause (v) in respect of any such costs, fees, payments and expenses incurred to be paid in cash in connection with all such Qualifying Acquisitions shall not exceed 15% of Consolidated EBITDA (calculated before giving effect to this clause (v) in the aggregate for any period of four Fiscal Quarters of the U.S. Borrower); and (vi) any non-recurring expenses, charges or losses; minus
(b) the following (without duplication) to the extent included in calculating such Consolidated Net Income: (i) any non-recurring gains (less all fees and expenses related thereto); and (ii) all non-cash income or gains for such period including, without limitation, gains in connection with (A) unrealized gains resulting from xxxx-to-market accounting in respect of Hedge Agreements and Treasury Transactions, (B) unrealized gains on equity investments and (C) unrealized gains in connection with the pension or postretirement plans of the U.S. Borrower and its Subsidiaries.
In addition, in the event that the U.S. Borrower or any of its Subsidiaries, during the relevant period, consummated an acquisition or disposition of property involving the payment or receipt of consideration by the U.S. Borrower or any of its Subsidiaries in excess of $200,000,000, Consolidated EBITDA will be determined giving pro forma effect to such acquisition or disposition as if such acquisition or disposition and any related incurrence or repayment of
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Indebtedness had occurred on the first day of the relevant period, but shall not take into account any cost savings projected to be realized as a result of such acquisition or disposition.
Notwithstanding anything to the contrary in this definition of “Consolidated EBITDA”, unless the Covenant Relief Period is terminated in accordance with clause (ii) of the definition thereof, (i) Consolidated EBITDA for the four Fiscal Quarter period ending on the last day of the U.S. Borrower’s second Fiscal Quarter in its 2021 Fiscal Year shall be deemed to be the Consolidated EBITDA for the Fiscal Quarter then ending multiplied by 4, (ii) Consolidated EBITDA for the four Fiscal Quarter period ending on the last day of the U.S. Borrower’s third Fiscal Quarter in its 2021 Fiscal Year shall be deemed to be the Consolidated EBITDA for the two Fiscal Quarters then ending multiplied by 2 and (iii) Consolidated EBITDA for the four Fiscal Quarter period ending on the last day of the U.S. Borrower’s 2021 Fiscal Year shall be deemed to be the Consolidated EBITDA for the three Fiscal Quarters then ending multiplied by 4/3.
“Consolidated Net Income” means, for any period, the net income (or loss) of the Group on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP.
“Consolidated Net Worth” means, as of any date of determination, the consolidated stockholders’ equity of the U.S. Borrower and its Subsidiaries (including all redeemable common stock) calculated on a consolidated basis in accordance with GAAP
“Consolidated Total Assets” means, as of any date of determination, the total assets of the Group, determined in accordance with GAAP, as set forth on the consolidated balance sheet of the U.S. Borrower as of such date (which calculation shall give pro forma effect to any acquisition or disposition by any Group Member, in each case involving the payment or receipt by any Group Member of consideration (whether in the form of cash or non-cash consideration) in excess of $100,000,000 that has occurred since the date of such consolidated balance sheet, as if such acquisition or disposition had occurred on the last day of the fiscal period covered by such balance sheet).
“Consolidated Total Net Debt” means, as at any date of determination, (a) the aggregate stated balance sheet amount of all Indebtedness of the Group (or, if higher, the par value or stated face amount of all such Indebtedness (other than zero-coupon Indebtedness)), determined on a consolidated basis in accordance with GAAP, exclusive of any Contingent Liability in respect of any letter of credit, plus (b) to the extent not included in clause (a), any Indebtedness relating to securitization of receivables generated by the Group (whether or not such Indebtedness is on the balance sheet of the Group), minus (c) Unrestricted Cash of the Group as of such date, in an aggregate amount not to exceed $350,000,000.
“Contingent Liability” means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness of any other Person (other than by endorsements of instruments in the course of collection). The amount of any Person’s obligation under any Contingent Liability shall (subject to any limitation with respect
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thereto) be deemed to be the outstanding principal amount of the debt, obligation or other liability guaranteed thereby.
“Continuing Directors” means individuals who on the Closing Date constituted the Board of Directors of the U.S. Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the stockholders of the U.S. Borrower was approved by a vote of a majority of the directors of the U.S. Borrower then still in office who were either directors on the Closing Date or whose election or nomination for election was previously so approved).
“Contractual Obligation” means, as applied to any Person, any provision of any security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contributing Guarantors” has the meaning set forth in Section 7.02(b).
“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.
“Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit F delivered by a Loan Party pursuant to Section 5.10.
“Covenant Relief Period” means the period commencing on the First Amendment Effective Date and ending on the earlier of (i) the date on which the Administrative Agent receives from the Borrower Representative the Compliance Certificate in respect of the U.S. Borrower’s second Fiscal Quarter in its 2021 Fiscal Year and (ii) the date that the Administrative Agent receives a Covenant Relief Period Termination Notice from the Borrower Representative.
“Covenant Relief Period Termination Notice” means a certificate of an Authorized Officer of the Borrower Representative that is delivered to the Administrative Agent at the end of a Fiscal Quarter or a Fiscal Year with the delivery of applicable financial statements and the Compliance Certificate as per Section 5.08 (x) stating that the Borrower Representative irrevocably elects to terminate the Covenant Relief Period effective as of the date on which the Administrative Agent receives such Covenant Relief Period Termination Notice, and (y) certifying that the Borrower Representative is in compliance with the financial covenants in Section 6.04(a) and Section 6.04(b) (in each case, without the carve out applicable for Covenant Relief Period) as of the most recent four-Fiscal-Quarter period, and setting forth in reasonable detail the computations necessary to determine such compliance.
“Covenant Transaction” has the meaning set forth in Section 1.04(c).
“Credit Date” means the date of a Credit Extension.
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“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk of the Group and not for speculative purposes.
“Current Anniversary Date” has the meaning set forth in Section 2.26(a).
“Debtor Relief Law” means the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, examinership, reorganization or similar debtor relief laws of the United States or other Relevant Jurisdiction from time to time in effect and affecting the rights of creditors generally.
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Default Rate” has the meaning set forth in Section 2.10.
“Defaulting Lender” means any Lender that has (a) failed to fund any portion of its Revolving Commitment within three Business Days of the date required to be funded by it hereunder, unless, in the case of this clause (a), such Lender notifies the Administrative Agent in writing prior to the applicable required funding date that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) notified the Borrower Representative, the Administrative Agent or any Lender in writing, or has otherwise indicated through a public statement, that it does not intend to comply with its funding obligations hereunder and generally under agreements in which it commits to extend credit, (c) failed, within three Business Days after receipt of a written request from the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Revolving Commitments, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, (e) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian, administrator, examiner, liquidator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (f) become the subject of a Bail-In Action; provided that a Lender shall not qualify as a Defaulting Lender solely as a result of the acquisition or maintenance of an ownership interest in such Lender or its parent company, or of the exercise of control over such Lender or any Person controlling such Lender, by a Governmental Authority or instrumentality thereof; provided that if the Borrower Representative, the Administrative Agent, the applicable Swing Line Lender and the applicable Issuing Bank agree in writing in their sole discretion that a Defaulting Lender
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should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateralization of Letters of Credit and/or Swing Line Loans), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the obligations of the Swing Line Lender and/or the Issuing Bank and the funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares (without giving effect to Section 2.22), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
“Defaulting Revolving Lender” has the meaning set forth in Section 2.22.
“Determination Date” has the meaning set forth in Section 2.26(b).
“Documentation Agents” means JPMorgan, Royal Bank of Canada, MUFG Bank, Ltd., U.S. Bank National Association and Xxxxx Fargo Bank, National Association, together with their permitted successors and assigns in such capacity.
“Dollar Equivalent” means, with respect to an amount denominated in Dollars, such amount, and with respect to an amount denominated in any other Approved Currency, the equivalent in Dollars of such amount determined at the Exchange Rate on the applicable Valuation Date.
“Dollars” or “$” mean the lawful money of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means any Person other than a natural Person that is (i) a Lender, an Affiliate of any Lender or a Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), or (ii) a commercial bank, insurance company, investment or
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mutual fund, European Credit Management Limited (ECM) programs or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course of business; provided, that neither any Loan Party nor any Affiliate thereof, nor any Defaulting Lender, shall be an Eligible Assignee.
“Eligible Lenders” has the meaning set forth in Section 2.26(d).
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to by, or required to be contributed by, the Group or any of their respective ERISA Affiliates or with respect to which the Group or any of their respective ERISA Affiliates has or would reasonably be expected to have liability, contingent or otherwise, under ERISA.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order, decree or directive (conditional or otherwise) by any Governmental Authority or any other Person, arising (i) pursuant to any Environmental Law, (ii) in connection with any actual or alleged violation of, or liability pursuant to, any Environmental Law, (iii) in connection with any Hazardous Material, including the presence or Release of, or exposure to, any Hazardous Materials and any abatement, removal, remedial, corrective or other response action related to Hazardous Materials or (iv) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“Environmental Laws” means any and all current or future foreign or domestic, federal, state or local laws (including any common law), statutes, ordinances, orders, rules, regulations, judgments or any other requirements of Governmental Authorities relating to or imposing liability or standards of conduct with respect to (i) environmental matters, (ii) the generation, use, storage, transportation or disposal of, or exposure to, Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to any Group Member or any Facility.
“Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder and any successor thereto.
“ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (i) above or any trade or
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business described in clause (ii) above is a member. Any former ERISA Affiliate of any Group Member shall continue to be considered an ERISA Affiliate of such Group Member within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Group Member and with respect to liabilities arising after such period for which such Group Member could be liable under the Internal Revenue Code or ERISA.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by a regulation in effect as of the date hereof); (ii) the failure to meet the minimum funding standard of Section 412 or 430 of the Internal Revenue Code or Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make by its due date a required installment under Section 430(j) of the Internal Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) a determination by the Pension Plan’s actuary that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Internal Revenue Code or Section 303 of ERISA); (iv) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (v) a determination under and in accordance with said sections that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Internal Revenue Code or Section 305 of ERISA; (vi) the withdrawal by any Group Member or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to any Group Member or any of its Affiliates pursuant to Section 4063 or 4064 of ERISA; (vii) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which is reasonably likely to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (viii) the imposition of liability on any Group Member or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (ix) the withdrawal of any Group Member or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, or the receipt by any Group Member or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (x) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or Section 303(k) of ERISA or a violation of Section 436 of the Internal Revenue Code with respect to any Pension Plan; (xi) the occurrence of any Foreign Plan Event or (xii) any other event or condition with respect to an Employee Benefit Plan with respect to which any Group Member is likely to incur liability other than in the ordinary course.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBO Rate” has the meaning set forth in the definition of “Eurocurrency Rate”.
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“Euro” or “€” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states, being in part legislative measures to implement the European and Monetary Union as contemplated in the Treaty on European Union.
“Euro Overnight Index Average Rate” means, for any day, with respect to any Swing Line Loan denominated in Euros, a rate per annum (rounded upwards, if necessary to the next 1/100 of 1%) equal to the overnight rate for Euro deposits as calculated by the European Central Bank and published the day following the transaction at 12:00 noon (CET/Paris 13 time) by the Federation of Banks of the European Union, plus the Applicable Margin used to determine interest on Eurocurrency Revolving Loans. The Euro Overnight Index Average Rate shall be determined for each day by the Administrative Agent and such determination shall be conclusive absent manifest error; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.
“Euro Overnight Index Average Rate Loan” means a Swing Line Loan denominated in Euros which bears interest at the Euro Overnight Index Average Rate.
“Euro Equivalent” means, with respect to an amount denominated in Euros, such amount, and with respect to an amount denominated in any Approved Currency (other than Euros) or Approved Issuing Currency, the equivalent in Euros of such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Euro Equivalent for purposes of determining the aggregate available European Revolving Commitments on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which the European Borrower requests the extension of credit for such Credit Date pursuant to the provisions of this Agreement.
“Eurocurrency Rate” means, for any Interest Period: (a) as to any Eurocurrency Rate Loan denominated in Dollars, the rate per annum obtained by dividing (i) (A) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “U.S. LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (B) in the event the rate referenced in the preceding clause (A) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the U.S. LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period, by (ii) an amount equal to one minus the Applicable Reserve Requirement; provided that if U.S. LIBO Rates are quoted under either of the preceding clauses (A) or (B), but there is no such quotation for the Interest Period elected, the U.S. LIBO Rate shall be equal to the Interpolated Rate, (b) as to any Eurocurrency Rate Loan denominated in Euros, (i) the rate per annum determined by the Administrative Agent to be the
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offered rate which appears on the page of the Reuters Screen which displays the European interbank offered rate administered by the Banking Federation of the European Union (such page currently being the EURIBOR01 page) (the “EURIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (Brussels, Belgium time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the EURIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if EURIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the EURIBO Rate shall be equal to the Interpolated Rate, (c) as to any Eurocurrency Rate Loan denominated in Canadian Dollars, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the Canadian Dollar Offered Rate (such page currently being the CDOR page) (the “CDOR Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Canadian Dollars, determined as of approximately 11:00 a.m. (Toronto time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the CDOR Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Canadian Dollars, determined as of approximately 11:00 a.m. (Toronto time) two Business Days prior to the commencement of such Interest Period; provided that if CDOR Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the CDOR Rate shall be equal to the Interpolated Rate, (d) as to any Eurocurrency Rate Loan denominated in Hong Kong Dollars, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the Hong Kong interbank offered rate administered by the Hong Kong Association of Banks (such page currently being the HKABHIBOR page) (the “HIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Hong Kong Dollars, determined as of approximately 11:00 a.m. (New York City time), two Business Days prior to the commencement of such Interest Period or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the HIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Hong Kong Dollars, determined as of approximately 11:00 a.m. (New York City time) two Business Days prior to the commencement of such Interest Period; provided that if HIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the HIBO Rate shall be equal to the Interpolated Rate and (e) as to any Eurocurrency Rate Loan denominated in an Other Foreign Currency, (i) the rate per annum determined by the Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays the London
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interbank offered rate administered by ICE Benchmark Administration Limited (the “Alternate Currency LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in such Other Foreign Currency, as applicable, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, or (ii) in the event the rate referenced in the preceding clause (i) does not appear on such page or service or if such page or service shall cease to be available, the rate determined by the Administrative Agent to be the offered rate on such other page or other service which displays the Alternate Currency LIBO Rate for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in such Other Foreign Currency, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that if Alternate Currency LIBO Rates are quoted under either of the preceding clauses (i) or (ii), but there is no such quotation for the Interest Period elected, the Alternate Currency LIBO Rate shall be equal to the Interpolated Rate. Notwithstanding the foregoing, in no event shall the Eurocurrency Rate be less than 0.00% per annum. For purposes of determining the one-month reserve Eurocurrency Rate for Dollars for purposes of a Base Rate Loan on any date, such rate shall be the rate determined in accordance with clause (a) above, determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day.
“Eurocurrency Rate Loan” means a Loan bearing interest at a rate determined by reference to the Eurocurrency Rate.
“European Borrower” has the meaning specified in the preamble hereto.
“European Issuing Bank” means an Issuing Bank that has agreed to issue European Letters of Credit.
“European Letter of Credit” means any Bank Guarantee or any commercial or standby letter of credit issued or to be issued by an Issuing Bank for the account of any Foreign Subsidiary pursuant to Section 2.04(a)(ii) of this Agreement, and any Bank Guarantee or any commercial or standby letter of credit, other than an Existing ABN Letter of Credit, issued and outstanding as of the Closing Date and designated by the Borrower Representative as a “European Letter of Credit” pursuant to a written notice delivered to the Administrative Agent on or prior to the Closing Date; provided that the issuer thereof is a Revolving Lender hereunder. Each such letter of credit so designated shall be deemed to constitute a European Letter of Credit and a Letter of Credit issued hereunder on the Closing Date for all purposes under this Agreement and the other Loan Documents.
“European Letter of Credit Sublimit” means (a) the lesser of (i) €50,000,000 and (ii) the aggregate unused amount of the European Revolving Commitments then in effect and (b) as to any Issuing Bank (i) listed on Schedule 2.04(b), an amount equal to the amount set forth opposite such Issuing Bank’s name under the column “European Letter of Credit Sublimit” on Schedule 2.04(b) (provided that such Issuing Bank may, in its sole discretion, agree to issue European Letters of Credit in excess of such amount) and (ii) not listed on Schedule 2.04(b), an amount agreed by such Issuing Bank in its sole discretion.
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“European Letter of Credit Usage” means, as at any date of determination, the sum of (i) the Euro Equivalent of the maximum aggregate amount which is, or at any time thereafter may become, available for drawing under all European Letters of Credit then outstanding, and (ii) the Euro Equivalent of the aggregate amount of all drawings under European Letters of Credit honored by an Issuing Bank and not theretofore reimbursed by or on behalf of the European Borrower.
“European Refunded Swing Line Loans” has the meaning set forth in Section 2.03(b)(iv).
“European Revolving Commitment” means the commitment of a Lender to make or otherwise fund any European Revolving Loan and to acquire participations in European Letters of Credit hereunder, in the case of the Ancillary Lender, as reduced by the amount of the Ancillary Commitment, and European Swing Line Loans hereunder and “European Revolving Commitments” means such Commitments of all Lenders in the aggregate. The amount of each Lender’s European Revolving Commitment, if any, is set forth on Schedule 2.02 or in the applicable Assignment Agreement or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the European Revolving Commitments as of the Closing Date is €200,000,000.
“European Revolving Commitment Period” means the period from and including the Closing Date to but excluding the European Revolving Commitment Termination Date.
“European Revolving Commitment Termination Date” means the earliest to occur of (i) the fifth anniversary of the Closing Date, which date is April 29, 2024, (ii) the date such European Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b) or 2.14 and (iii) the date of the termination of such European Revolving Commitments pursuant to Section 8.01; provided, that if any of the European Revolving Commitments are extended pursuant to Section 2.26, the European Revolving Commitment Termination Date relating to such extended European Revolving Commitments will be extended pursuant to Section 2.26.
“European Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of such Lender’s European Revolving Commitments, that Lender’s European Revolving Commitment; and (ii) after the termination of such Lender’s European Revolving Commitments, the sum of (a) the Euro Equivalent of the aggregate outstanding principal amount of the European Revolving Loans of that Lender, (b) in the case of an Issuing Bank, the Euro Equivalent of the aggregate European Letter of Credit Usage in respect of all European Letters of Credit issued by such Issuing Bank (net of any participations by Lenders in such European Letters of Credit), (c) the Euro Equivalent of the aggregate amount of all participations by that Lender in any outstanding European Letters of Credit or any unreimbursed drawing under any European Letter of Credit, (d) in the case of the European Swing Line Lender, the aggregate outstanding principal amount of all European Swing Line Loans (net of any participations therein by other Lenders) and (e) the aggregate amount of all participations therein by that Lender in any outstanding European Swing Line Loans.
“European Revolving Loan” means Loans made by a Lender in respect of its European Revolving Commitment to the European Borrower pursuant to Section 2.02(b) and/or Section 2.24.
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“European Swing Line Lender” means Barclays in its capacity as the European Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.
“European Swing Line Loan” means a Loan made by the European Swing Line Lender to the European Borrower pursuant to Section 2.03(a)(ii).
“European Swing Line Sublimit” means the lesser of (i) €50,000,000 and (ii) the aggregate unused amount of European Revolving Commitments then in effect.
“Event of Default” means any of the conditions or events set forth in Section 8.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Exchange Rate” means the rate at which any currency (the “Original Currency”) may be exchanged into Dollars, Euros or another currency (the “Exchanged Currency”), as set forth on such date on the relevant Reuters screen at or about 11:00 a.m. (London, England time) on such date. In the event that such rate does not appear on the Reuters screen, the “Exchange Rate” with respect to such Original Currency into such Exchanged Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent (or the Issuing Bank, if applicable) and the Borrower Representative or, in the absence of such agreement, such “Exchange Rate” shall instead be the Administrative Agent’s (or the Issuing Bank’s, if applicable) spot rate of exchange in the interbank market where its foreign currency exchange operations in respect of such Original Currency are then being conducted, at or about 11:00 a.m. (local time), on such date for the purchase of the Exchanged Currency, with such Original Currency for delivery two Business Days later; provided, that, if at the time of any such determination, no such spot rate can reasonably be quoted, the Administrative Agent (or the Issuing Bank, if applicable) may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.
“Excluded Swap Obligation” means, with respect to any Guarantor, (x) as it relates to all or a portion of the Guaranty of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such
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Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
“Excluded Taxes” means (i) any Tax imposed on the overall net income of a Person (or franchise tax or minimum tax imposed in lieu thereof) by the jurisdiction in which that Person is organized or in which that Person’s principal office (and/or, in the case of a Lender, its applicable lending office) is located or with which that Person has a present or former connection (other than any connection arising solely from the acquisition and holding of any Loan and/or Commitment (including entering into or being a party to this Agreement), the receipt of payments relating thereto, and/or the exercise of rights and remedies under this Agreement or any other Loan Document); (ii) with respect to any Lender to a U.S. Loan (other than a Lender that becomes a Lender pursuant to Section 2.23), any Tax imposed pursuant to the laws of the United States of America or any political subdivision thereof or therein that would apply if any payment were made under any of the Loan Documents to such Lender on the day such Lender becomes a Lender (or designates a new lending office), except to the extent such Lender’s assignor (or such Lender, when it designates a new lending office) was entitled to receive additional amounts pursuant to Section 2.20; (iii) with respect to any Lender, any withholding Tax that is imposed on any payment to such Lender on the day that such Lender becomes a Lender (or designates a new lending office) by any jurisdiction (other than the United States of America or any political subdivision thereof, which shall be governed by clause (ii) hereof), excluding any such withholding Tax imposed on any payment to such Lender as a result of a Person acquiring, or otherwise expressly assuming the obligations of the European Borrower or the Hong Kong Borrower pursuant to Section 6.02(ii) and such Person being a Person organized and existing under the laws of a jurisdiction other than the Netherlands (in the case of the European Borrower) or Hong Kong (in the case of the Hong Kong Borrower), except to the extent such Lender’s assignor (or such Lender, when it designates a new lending office) was entitled to receive additional amounts pursuant to Section 2.20; (iv) any Tax that is attributable to a Lender’s failure to comply with Section 2.20(c) or (v) any U.S. federal withholding Tax imposed by reason of a Lender’s failure to comply with the requirements of Sections 1471 through 1474 of the Code (as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with)), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code or any legislation or other official guidance or official requirements adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (“FATCA”).
“Existing ABN Letter of Credit” means any Bank Guarantee or any commercial or standby letter of credit issued and outstanding as of the Closing Date by ABN AMRO Bank N.V. or one or more of its Affiliates.
“Existing Credit Agreement” means the Amended and Restated Credit and Guaranty Agreement, dated as of March 21, 2014 (as amended to reflect the Second Amendment dated as of May 19, 2016 and as further amended, supplemented, or otherwise modified prior to the date hereof), among the U.S. Borrower, the European Borrower, certain subsidiaries of the U.S. Borrower, the lenders named therein and Barclays Bank PLC as administrative agent and collateral agent.
“Existing Subsidiary Debt” has the meaning set forth in Section 6.03(b).
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“Extension Agreement” has the meaning set forth in Section 2.26(a).
“Extension Approval” has the meaning set forth in Section 2.26(c).
“Extension Request” has the meaning set forth in Section 2.26(a).
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by any Group Member or any of its predecessors or Affiliates.
“Fair Share” has the meaning set forth in Section 7.02(b).
“Fair Share Contribution Amount” has the meaning set forth in Section 7.02(b).
“FATCA” has the meaning set forth in the definition of “Excluded Taxes”.
“FDIC” means the Federal Deposit Insurance Corporation and any successor thereto.
“Federal Funds Effective 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 on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that (i) if such day is not a Business Day, the Federal Funds Effective 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 (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to the Administrative Agent, in its capacity as a Lender, on such day on such transactions as determined by the Administrative Agent.
“Finance Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a finance lease on the balance sheet of that Person.
“Financial Officer” means the principal financial officer of the U.S. Borrower.
“First Amendment” means the First Amendment, dated as of the First Amendment Effective Date, to this Agreement.
“First Amendment Effective Date” means the “Effective Date”, as defined in the First Amendment, which date is June 3, 2020.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of the Group ending on the Sunday closest to February 1 of each calendar year (or, if the fiscal year-end is changed to some other date, such other date).
“Fitch” means Fitch, Inc.
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“Foreign Currency Equivalent” means, with respect to an amount denominated in Canadian Dollars, Hong Kong Dollars or any Other Foreign Currency, such amount, and with respect to an amount denominated in Dollars or Euros, the equivalent in Canadian Dollars, Hong Kong Dollars or such Other Foreign Currency of such amount determined at the Exchange Rate on the applicable Valuation Date. In making the determination of the Foreign Currency Equivalent for purposes of determining the aggregate available Canadian Revolving Commitments on any Credit Date, the Administrative Agent shall use the Exchange Rate in effect at the date on which the U.S. Borrower requests the extension of credit for such Credit Date pursuant to the provisions of this Agreement.
“Foreign Plan” means any Employee Benefit Plan (whether or not subject to ERISA), program, policy, arrangement or agreement maintained or contributed to by the European Borrower or any of their respective Subsidiaries or any other Loan Party with respect to employees employed outside the United States.
“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice from a Governmental Authority relating to the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan, or alleging the insolvency of any such Foreign Plan, in each case which is reasonably likely to result, directly or indirectly, in material liability to a Loan Party, (d) the incurrence of any material liability by any Loan Party or any their respective Subsidiaries under applicable law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction that is prohibited under any applicable law and that would reasonably be expected to result in the incurrence of any liability by any Loan Party or any of their respective Subsidiaries, or the imposition on any Loan Party or any of their respective Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable law.
“Foreign Subsidiary” means (i) any Subsidiary that is not organized under the laws of the United States, any State thereof or the District of Columbia and (ii) any Subsidiary of a Subsidiary described in clause (i).
“Funding Guarantor” has the meaning set forth in Section 7.02(b).
“GAAP” means, subject to the limitations on the application thereof set forth in Xxxxxxx 0.00, Xxxxxx Xxxxxx generally accepted accounting principles in effect as of the date of determination thereof consistently applied.
“Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case
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whether associated with a state of the United States, the United States, or a foreign entity or government.
“Governmental Authorization” means any permit, license, authorization, certification, registration, approval, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Group” means, collectively, the U.S. Borrower and its Subsidiaries; provided that, as used in Section 5.08(a) and (b) with respect to the financial statements required to be delivered thereunder, it shall mean the U.S. Borrower and its consolidated Subsidiaries in accordance with GAAP.
“Group Member” means any of the U.S. Borrower or any of its Subsidiaries.
“Group Member Adjusted EBITDA” means, for any period for any Group Member, the amount of Consolidated EBITDA attributable to such Group Member for such period, calculated on an unconsolidated basis and by excluding all intercompany items (provided that, for the purpose of the determination of a Material Company solely as such term is used in Section 8.01(e), Group Member Adjusted EBITDA shall be calculated on a consolidated basis for such Group Member and its Subsidiaries).
“Group Member Assets” means, for any Group Member, as of any date of determination, the total assets of such Group Member, determined in accordance with GAAP, calculated on an unconsolidated basis and by excluding all intercompany items (provided that, for the purpose of the determination of a Material Company solely as such term is used in Section 8.01(e), Group Member Assets shall be calculated on a consolidated basis for such Group Member and its Subsidiaries).
“Guarantee Release Date” means theif a Springing Lien Trigger Event has occurred, the subsequent date on which the Public Debt Rating achieves (and the U.S. Borrower has delivered notice of such to the Administrative Agent): (i)(a) a rating of BBB- (or the equivalent) or higher by S&P and (b) a rating of Baa3 (or the equivalent) or higher by Xxxxx’x or (ii) at the Borrower Representative’s election, either (A)(1) a rating of BBB- (or the equivalent) or higher by S&P, (2) a rating of Baa3 (or the equivalent) or higher by Xxxxx’x and (3) a rating of BB+ (or the equivalent) or higher by Fitch; (B)(1) a rating of BBB- (or the equivalent) or higher by S&P, (2) a rating of Ba1 (or the equivalent) or higher by Xxxxx’x and (3) a rating of BBB- (or the equivalent) or higher by Fitch; or (C)(1) a rating of BB+ (or the equivalent) or higher by S&P, (2) a rating of Baa3 (or the equivalent) or higher by Xxxxx’x and (3) a rating of BBB- (or the equivalent) or higher by Fitch; provided, that the U.S. Borrower is under no obligation to seek a rating from Fitch.
“Guaranteed Obligations” has the meaning set forth in Section 7.01(a).
“Guaranteed Parties” means the Agents, Lenders, Issuing Banks, the Lender Counterparties and shall include, without limitation, all former Agents, Lenders, Issuing Banks, and Lender Counterparties to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, Lenders, Issuing Banks, or Lender Counterparties and such Obligations have not been paid or satisfied in full.
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“Guarantor” means (i) with respect to the Obligations of each Borrower, each Subsidiary Guarantor, (ii) with respect to the Obligations of the European Borrower and Hong Kong Borrower, the U.S. Borrower and (iii) with respect to all Obligations of any Subsidiary arising under any Hedge Agreement, Cash Management Agreement or Treasury Transaction, the U.S. Borrower, and (iv) each other Subsidiary that has become a party hereto as a Guarantor at the election of the Borrower Representative pursuant to Section 7.01(b) (if any).
“Guaranty” means the guaranty of each Guarantor set forth in Article VII.
“Hazardous Materials” means any pollutant, contaminant, chemical, waste, material or substance, exposure to which or Release of which is prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard to human health and safety or to the indoor or outdoor environment, including petroleum, petroleum products, asbestos, urea formaldehyde, radioactive materials, polychlorinated biphenyls and toxic mold.
“Hedge Agreement” means an Interest Rate Agreement, a Commodity Agreement or a Currency Agreement entered into with a Lender Counterparty.
“HIBO Rate” has the meaning set forth in the definition of “Eurocurrency Rate”.
“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow.
“Historical Financial Statements” means the audited consolidated financial statements of the U.S. Borrower consisting of balance sheets as of February 3, 2019 and February 4, 2018 and income statements and statements of stockholders’ equity and cash flows for Fiscal Years 2016, 2017 and 2018 and an unqualified audit report relating thereto.
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.
“Hong Kong Borrower” has the meaning specified in the preamble hereto.
“Hong Kong Dollars” means the lawful currency of Hong Kong.
“Hong Kong Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Hong Kong Revolving Loan and “Hong Kong Revolving Commitments” means such Commitments of all Lenders in the aggregate. The amount of each Lender’s Hong Kong Revolving Commitment, if any, is set forth on Schedule 2.02 or in the applicable Assignment Agreement or Joinder Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Hong Kong Revolving Commitments as of the Closing Date is $50,000,000.
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“Hong Kong Revolving Commitment Period” means the period from and including the Closing Date to but excluding the Hong Kong Revolving Commitment Termination Date.
“Hong Kong Revolving Commitment Termination Date” means the earliest to occur of (i) the fifth anniversary of the Closing Date, which date is April 29, 2024, (ii) the date such Hong Kong Revolving Commitments are permanently reduced to zero pursuant to Section 2.13(b) or 2.14 and (iii) the date of the termination of such Hong Kong Revolving Commitments pursuant to Section 8.01; provided, that if any of the Hong Kong Revolving Commitments are extended pursuant to Section 2.26, the Hong Kong Revolving Commitment Termination Date relating to such extended Hong Kong Revolving Commitments will be extended pursuant to Section 2.26.
“Hong Kong Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of such Lender’s Hong Kong Revolving Commitments, that Lender’s Hong Kong Revolving Commitment; and (ii) after the termination of such Lender’s Hong Kong Revolving Commitments, the Dollar Equivalent of the aggregate outstanding principal amount of the Hong Kong Revolving Loans of that Lender.
“Hong Kong Revolving Loan” means Loans made by a Lender in respect of its Hong Kong Revolving Commitment to the Hong Kong Borrower pursuant to Section 2.02(d) and/or Section 2.24.
“Immaterial Subsidiary” means any Subsidiary that is not a Material Company.
“Increased Amount Date” has the meaning set forth in Section 2.24.
“Increased-Cost Lender” has the meaning set forth in Section 2.23.
“Incremental Revolving Commitments” has the meaning set forth in Section 2.24.
“Incremental Revolving Loan” has the meaning set forth in Section 2.24.
“Incremental Revolving Loan Lender” has the meaning set forth in Section 2.24.
“Incremental Term Loan” has the meaning set forth in Section 2.24.
“Incremental Term Loan Commitments” has the meaning set forth in Section 2.24.
“Incremental Term Loan Exposure” means, with respect to any Lender, as of any date of determination, the outstanding principal amount of the Incremental Term Loans of such Lender.
“Incremental Term Loan Lender” has the meaning set forth in Section 2.24.
“Incremental Term Loan Maturity Date” means the date on which Incremental Term Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or otherwise.
“Incremental Term Loan Note” means a promissory note substantially in the form of Exhibit B-4, as it may be amended, restated, supplemented or otherwise modified from time to time.
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“Indebtedness” means, as applied to any Person, without duplication, (i) all indebtedness for borrowed money; (ii) that portion of obligations with respect to Finance Leases that is properly classified as a capitalized liability on a balance sheet in conformity with GAAP; (iii) obligations evidenced by bonds, debentures, notes or other similar instruments; (iv) any obligation owed for all or any part of the deferred purchase price of property or services (excluding trade accounts payable and accrued expenses in the ordinary course of business which are not overdue for a period of more than 90 days or, if overdue for more than 90 days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of such Person and any such obligations incurred under ERISA), which purchase price is (a) due more than six months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar written instrument in each case to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with GAAP (it being understood that the amount of any such obligation shall be calculated in each case, in accordance with GAAP); (v) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person (provided that if the recourse to such Person in respect of such indebtedness is limited solely to the property subject to such Lien, the amount of such indebtedness shall be deemed to be the fair market value (as determined in good faith by such Person) of the property subject to such Lien or the amount of such indebtedness if less); (vi) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings; provided such letter of credit is issued by a Person other than the U.S. Borrower and its Subsidiaries; (vii) [reserved], (viii) the net payments that such Person would have to make in the event of any early termination, on the date Indebtedness of such Person is being determined, in respect of any exchange traded or over the counter derivative transaction, including any Hedge Agreement, in each case, whether entered into for hedging or speculative purposes; provided, that in no event shall obligations under any derivative transaction be deemed “Indebtedness” for any purpose under Section 6.04 or for the purpose of calculating the Net Leverage Ratio unless such obligations relate to a derivatives transaction which has been terminated; (ix) the full outstanding balance of trade receivables, notes or other instruments sold with full recourse in a factoring or similar transaction, other than in any such case any thereof sold solely for purposes of collection of delinquent accounts and (x) any Contingent Liability with respect to the foregoing. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other necessary response action related to the Release or presence of any Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including any of the foregoing in connection with any investigative, administrative or judicial proceeding or hearing commenced or threatened by any Group Member, its Affiliates or any other Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity),
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whether direct, indirect, special or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions, the syndication of the credit facilities provided for herein or the use or intended use of the proceeds thereof, or any enforcement of any of the Loan Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)); (ii) the commitment letter (and any related fee letter) delivered by any Agent or any Lender to the U.S. Borrower with respect to the transactions contemplated by this Agreement;; (iii) any Environmental Claim relating to or arising from, directly or indirectly, any past or present activity, operation, land ownership, or practice of any Group Member; or (iv) any Loan or the use of proceeds thereof.
“Indemnified Taxes” means any Taxes other than Excluded Taxes.
“Indemnitee” has the meaning set forth in Section 10.03(a).
“Installment” has the meaning set forth in Section 2.12(a).
“Installment Date” has the meaning set forth in Section 2.12(a).
“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under the United States, multinational or foreign laws or otherwise, and the right to xxx or otherwise recover for any past, present and future infringement, dilution, misappropriation, or other violation or impairment thereof, including the right to receive all proceeds therefrom, including without limitation license fees, royalties, income, payments, claims, damages and proceeds of suit, now or hereafter due and/or payable with respect thereto.
“Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated EBITDA for the four-Fiscal-Quarter period then ended to (ii) Consolidated Cash Interest Expense for such four-Fiscal-Quarter period.
“Interest Payment Date” means, with respect to (i) any Loan that is a Base Rate Loan (including any Swing Line Loan in Dollars), any Canadian Prime Rate Loan (including any Canadian Swing Line Loan) and any Swing Line Loan in Euros, each March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a Eurocurrency Rate Loan (other than a Swing Line Loan in Euros), the last day of each Interest Period applicable to such Loan; provided, that in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period.
“Interest Period” means, in connection with a Eurocurrency Rate Loan, an interest period of one, two, three or six months (or, if available to all of the Lenders, 12 months), as selected by the Borrowers in the applicable Borrowing Notice or Conversion/Continuation Notice, (i) initially,
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commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, that (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period in respect of a Eurocurrency Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Class of Term Loans shall extend beyond such Class’s Term Loan Maturity Date; and (d) no Interest Period with respect to any portion of any Class of Revolving Loans shall extend beyond such Class’s Revolving Commitment Termination Date.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with the operations of the Group and not for speculative purposes.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
“Interpolated Rate” means, (a) in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between: (i) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan and (ii) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that Loan, each as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan, (b) in relation to the EURIBO Rate, the rate which results from interpolating on a linear basis between: (i) the applicable EURIBO Rate for the longest period (for which that EURIBO Rate is available) which is less than the Interest Period of that Loan and (ii) the applicable EURIBO Rate for the shortest period (for which that EURIBO Rate is available) which exceeds the Interest Period of that Loan, each as of approximately 11:00 a.m. (Brussels, Belgium time) two Business Days prior to the commencement of such Interest Period of that Loan, (c) in relation to the CDOR Rate, the rate which results from interpolating on a linear basis between: (i) the applicable CDOR Rate for the longest period (for which that CDOR Rate is available) which is less than the Interest Period of that Loan and (ii) the applicable CDOR Rate for the shortest period (for which that CDOR Rate is available) which exceeds the Interest Period of that Loan, each as of approximately 11:00 a.m. (Toronto time) two Business Days prior to the commencement of such Interest Period of that Loan and (d) in relation to the HIBO Rate, the rate which results from interpolating on a linear basis between: (i) the applicable HIBO Rate for the longest period (for which that HIBO Rate is available) which is less than the Interest Period of that Loan and (ii) the applicable HIBO Rate for the shortest period (for which that HIBO Rate is available) which exceeds the Interest Period of
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that Loan, each as of approximately 11:00 a.m. (New York City time) two Business Days prior to the commencement of such Interest Period of that Loan.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance of such Letter of Credit).
“Issuance Notice” means a notice substantially in the form of Exhibit A-3.
“Issuing Bank” means each of Barclays, Citi, Bank of America, N.A., JPMorgan and Royal Bank of Canada as Issuing Bank hereunder, and any other Lender that has notified the Administrative Agent that it has agreed to a request by the Borrower Representative to become an Issuing Bank hereunder with respect to U.S. Letters of Credit, European Letters of Credit or Canadian Letters of Credit, as applicable, together with their respective permitted successors and assigns in such capacity. Unless otherwise specified, in respect of any Letters of Credit, “Issuing Bank” shall refer to the applicable Issuing Bank which has issued such Letter of Credit. An Issuing Bank may perform its obligations hereunder through any applicable branch thereof and such branch shall be treated as the applicable Issuing Bank where applicable.
“Japanese Yen” means the lawful currency of Japan.
“Joinder Agreement” means an agreement substantially in the form of Exhibit G.
“JPMorgan” has the meaning specified in the preamble hereto.
“Judgment Currency” has the meaning set forth in Section 10.25.
“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement or a Joinder Agreement. Unless the context clearly indicates otherwise, the term “Lenders” shall include the Swing Line Lender.
“Lender Counterparty” means (a) each Person counterparty to a Hedge Agreement, Cash Management Agreement or Treasury Transaction who is (or at the time such Hedge Agreement, Cash Management Agreement or Treasury Transaction was entered into, was) a Lender, an Agent or an Affiliate of any thereof and (b) any Person who is an Agent or a Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a Hedge Agreement, Cash Management Agreement or Treasury Transaction, ceases to be an Agent or a Lender, as the case may be.
“Letter of Credit” means a U.S. Letter of Credit, a Canadian Letter of Credit and/or a European Letter of Credit, as applicable.
“LIBO Rate” means the U.S. LIBO Rate, EURIBO Rate and Alternate Currency LIBO Rate, as applicable.
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“Lien” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement having the practical effect of any of the foregoing; provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
“Liquidity” has the meaning set forth in Section 6.04(c).
“Loan” means a Term Loan, a Revolving Loan and a Swing Line Loan, which (i) in the case of Loans denominated in Dollars, may be a Base Rate Loan or a Eurocurrency Rate Loan, (ii) in the case of Loans denominated in Euros, Hong Kong Dollars or an Other Foreign Currency, shall be a Eurocurrency Rate Loan and (iii) in the case of Loans denominated in Canadian Dollars, may be a Canadian Prime Rate Loan or a Eurocurrency Rate Loan.
“Loan Document” means any of this Agreement, the Notes, if any, each Joinder Agreement, any documents or certificates executed by the Borrowers in favor of any Issuing Bank relating to Letters of Credit and all other documents, instruments or agreements executed and delivered by a Loan Party for the benefit of any Agent, any Issuing Bank or any Lender in connection herewith on or after the Closing Date, including any Security Documents, as applicable.
“Loan Party” means each Borrower and each Guarantor.
“Margin Stock” has the meaning given in Regulation U of the Board of Governors as in effect from time to time.
“Market Disruption” means any Interest Rate Determination Date on which (i) the Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), with respect to any Eurocurrency Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Eurocurrency Rate, or (ii) before the close of business in London on such Interest Rate Determination Date, the Administrative Agent receives notifications from a Lender or Lenders (whose aggregate exposure in respect of any Class of Loans exceeds 50.0% of that Class of Loans) that the cost to it of obtaining matching deposits in the London interbank market would be in excess of the Eurocurrency Rate.
“Material Adverse Effect” means any event, development or circumstance that has had or would reasonably be expected to have a material adverse effect on (i) the business, assets, operations or financial condition of the Group (other than any Securitization Subsidiary) taken as a whole (other than, at any time prior to January 31, 2022, resulting from any event, development or circumstance (A) related to the COVID-19 pandemic that was disclosed to the Lenders, or otherwise publicly disclosed, on or prior to April 8, 2020 or (B) that was reasonably foreseeable in light of any event, development or circumstance described in the foregoing clause (A), including store closures, supply chain disruptions and inventory charges, which in each case shall be disregarded); (ii) the ability of the Loan Parties (taken as a whole) to pay the Obligations under the Loan Documents; or (iii) the rights and remedies available to, or conferred upon, any Agent and any Lender or any other Guaranteed Party under any Loan Document in any manner (including the legality, validity, binding effect or enforceability of the Loan Documents against the Loan Parties) that would be prejudicial to the interests of the Guaranteed Parties, taken as a whole.
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“Material Company” means (i) any Group Member that is listed in Schedule 1.01(g) or (ii) any Group Member that has (x) Group Member Adjusted EBITDA or (y) Group Member Assets representing, respectively, 5% or more of Consolidated EBITDA or Consolidated Total Assets. For this purpose:
(a) the (i) Group Member Adjusted EBITDA and (ii) Group Member Assets will be determined from its financial statements upon which the latest audited financial statements of the Group have been based;
(b) if a Subsidiary becomes a Group Member after the date on which the latest audited financial statements of the Group have been prepared, the (i) Group Member Adjusted EBITDA or (ii) Group Member Assets of that Subsidiary will be determined from its latest financial statements;
(c) the (i) Consolidated EBITDA and (ii) Consolidated Total Assets will be determined from its latest audited financial statements, adjusted (where appropriate) to take into account pro forma adjustments of the type described in the definition of “Consolidated EBITDA” and “Consolidated Total Assets”, as applicable; and
(d) if a Material Company disposes of all or substantially all of its assets to another Group Member, it will immediately cease to be a Material Company and the other Group Member (if it is not already) will immediately become a Material Company.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit) of any one or more of the Borrowers or any Subsidiary in an individual principal amount (or Net Xxxx-to-Market Exposure) of $150,000,000 or more.
“Material Intellectual Property” means any Intellectual Property that is material to the business of any Group Member.
“MLPFS” has the meaning specified in the preamble hereto.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) or Section 4001(a)(3) of ERISA.
“NAIC” means The National Association of Insurance Commissioners, and any successor thereto.
“Net Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated Total Net Debt as of such day to (ii) Consolidated EBITDA for the four-Fiscal-Quarter period ending on such date.
“Net Xxxx-to-Market Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized profits of such Person arising from Hedge Agreements or other Indebtedness of the type described in clause (gviii) of the definition thereof. As used in this definition, “unrealized losses” means the fair market value of the cost to such
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Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming the Hedge Agreement or such other Indebtedness were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain to such Person of replacing such Hedge Agreement or such other Indebtedness as of the date of determination (assuming such Hedge Agreement or such other Indebtedness were to be terminated as of that date).
“Non-Consenting Lender” has the meaning set forth in Section 2.23.
“Non-Extending Lender” has the meaning set forth in Section 2.26(c).
“Non-U.S. Lender” has the meaning set forth in Section 2.20(c).
“Note” means a Tranche A Term Loan Note, an Incremental Term Loan Note, a Revolving Loan Note or a Swing Line Note.
“Notice” means a Borrowing Notice, an Issuance Notice, or a Conversion/ Continuation Notice.
“Obligations” means all obligations of every nature of each Loan Party (and, in the Borrower Representative’s sole discretion, any obligations of a Subsidiary under Hedging Agreements, Cash Management Agreements and Treasury Transactions), including obligations from time to time owed to Guaranteed Parties, under any Loan Document, Ancillary Facility, Hedge Agreement, Cash Management Agreement or Treasury Transaction whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy, would have accrued on any Obligation, whether or not a claim is allowed for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge Agreements, fees, expenses, indemnification or otherwise; provided, that at no time shall Obligations include any Excluded Swap Obligations.
“Organizational Documents” means, with respect to any Person, all formation, organizational and governing documents, instruments and agreements, including (i) with respect to any corporation, its certificate or articles of incorporation or organization, its by-laws, any memorandum of incorporation or other constitutional documents, (ii) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (iii) with respect to any general partnership, its partnership agreement (if any) and (iv) with respect to any limited liability company, its certificate of incorporation or formation (and any amendments thereto), certificate of incorporation on change of name (if any), its memorandum and articles of association (if any), its articles of organization (if any), the shareholders’ list (if any) and its limited liability company agreement or operating agreement. In the event any term or condition of this Agreement or any other Loan Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Foreign Currencies” means Japanese Yen, Pounds Sterling, Australian Dollars and Swiss Francs, in each case which are readily available in the amount required and freely convertible into Euro in the relevant interbank market, or any other currency which is approved in accordance with Section 1.06.
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“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes, charges or similar levies (and interest, fines, penalties and additions related thereto) arising from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, this Agreement or any other Loan Document.
“Parent Entity” has the meaning set forth in the definition of “Change of Control”.
“Participant Register” has the meaning set forth in Section 10.06(g)(iv).
“PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56.
“Payment in Full” or “Paid in Full” means the payment in full of all Obligations (other than obligations under Hedge Agreements, Cash Management Agreements or Treasury Transactions not yet due and payable and contingent obligations not yet due and payable) and cancellation, expiration or Cash Collateralization of all Letters of Credit and termination of all Commitments to lend under this Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 or Section 430 of the Internal Revenue Code or Title IV or Section 302 or Section 303 of ERISA.
“Permitted Bond Hedge Transactions” means any call, capped call, option (or economically equivalent or similar swap or other derivative transaction) relating to the common stock of the U.S. Borrower (or other securities and/or property of the U.S. Borrower that the applicable Permitted Convertible Indebtedness is convertible or exchangeable into, in accordance with the terms thereof) purchased by the U.S. Borrower in connection with the issuance of any Permitted Convertible Indebtedness.
“Permitted Convertible Indebtedness” means, any Indebtedness of the U.S. Borrower that is convertible into, or exchangeable for, common stock in the U.S. Borrower (or other securities and/or property that such Indebtedness is convertible or exchangeable into in accordance with the terms thereof), cash (such amount of cash determined by reference to the price of such common stock, or such other securities and/or property), or any combination of any of the foregoing, and cash in lieu of fractional shares of common stock.
“Permitted Liens” means:
(a) Liens granted by any Subsidiary of the U.S. Borrower in favor of the U.S. Borrower or any other Subsidiary of the U.S. Borrower;
(b) Liens (other than Liens created or imposed under ERISA) for taxes, assessments or governmental charges or levies not overdue for a period of more than 30
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days or Liens for taxes being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;
(c) Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business;
(d) Liens (other than Liens created or imposed under ERISA) incurred or deposits made by the U.S. Borrower and its Subsidiaries in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(e) Liens in connection with judgment bonds so long as the enforcement of such Liens is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and as to which appropriate reserves are being maintained in accordance with generally accepted accounting practices;
(f) zoning restrictions, easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes;
(g) leases or subleases granted to others not interfering in any material respect with the business of the U.S. Borrower and its Subsidiaries taken as a whole and any interest of title of any lessor under any lease;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(i) normal and customary rights of setoff or pledge upon deposits of cash in favor of banks or other depository institutions and Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(j) Liens on any inventory of the U.S. Borrower or any of its Subsidiaries in favor of a vendor of such inventory, arising in the normal course of business upon its sale to the U.S. Borrower or any such Subsidiary;
(k) Liens in respect of licensing of Intellectual Property in the ordinary course of business;
(l) protective UCC filings with respect to any leased or consigned personal property;
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(m) Liens on insurance policies and the proceeds thereof securing the financing or payment of premiums with respect thereto in the ordinary course of business, to the extent not exceeding the amount of such premiums;
(n) Liens incurred in the ordinary course of business on the proceeds of prepaid cards or stored value cards; and
(o) Liens on cash or cash equivalents that are the proceeds of any Indebtedness issued in escrow or that have been deposited pursuant to discharge, redemption or defeasance provisions under the indenture or similar instrument governing any Indebtedness.
“Permitted Warrant Transactions” means any call option, warrant, or right to purchase (or economically equivalent or similar swap or other derivative transaction) relating to the common stock of the U.S. Borrower (or other securities and/or property of the U.S. Borrower that the applicable Permitted Convertible Indebtedness is convertible or exchangeable into, in accordance with the terms thereof) sold or issued by the U.S. Borrower substantially concurrently with any purchase by the U.S. Borrower of related Permitted Bond Hedge Transactions, and the performance by the U.S. Borrower of its obligations thereunder.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
“Platform” means IntraLinks, SyndTrak or another relevant website or other information platform through which the Lenders can receive information.
“Pledge and Security Agreement” means an agreement in form and substance substantially consistent with the U.S. Pledge and Security Agreement, dated as of February 13, 2013, executed by the U.S. Borrower and each U.S. Guarantor (as defined in the Existing Credit Agreement) (other than CKI and the CKI Affiliates (each as defined in the Existing Credit Agreement)), as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, modified to include customary provisions regarding notices, collateral deliveries and information with respect to any collateral pledged thereunder and requirements with respect to after acquired assets (in each case, substantially consistent with those set forth in the Existing Credit Agreement), and such other provisions as the Borrower Representative and the Administrative Agent shall reasonably agree.
“Pounds Sterling” means the lawful currency of the United Kingdom.
“Pricing Level Adjustment” means, for purposes of determining the Applicable Margin and the Applicable Revolving Commitment Fee Percentage, (a) if the Public Debt Rating shall fall within a different pricing level than the Net Leverage Ratio, the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be based upon the lower pricing level unless such Public Debt Rating and Net Leverage Ratio differ by two or more pricing levels, in which case the applicable pricing level will be deemed to be one pricing level below the higher of such pricing
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levels, (b) if only one of S&P and Xxxxx’x have in effect a Public Debt Rating, the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be determined by reference to the available rating, (c) if neither S&P nor Xxxxx’x shall have in effect a Public Debt Rating, the Public Debt Ratings component (but not, for the avoidance of doubt, the Net Leverage Ratio component) of the applicable margin and the commitment fee shall be set in accordance with pricing level V under the charts set forth in the definition of “Applicable Margin” and “Applicable Revolving Commitment Fee Percentage”, as applicable, (d) if the Public Debt Ratings established by S&P and Xxxxx’x shall fall within different pricing levels, the Applicable Margin and the Applicable Revolving Commitment Fee Percentage shall be based upon the higher rating unless such ratings differ by two or more pricing levels, in which case the applicable pricing level will be deemed to be one pricing level below the higher of such pricing levels, (e) if S&P or Xxxxx’x shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Xxxxx’x, as the case may be, shall refer to the then equivalent rating by S&P or Xxxxx’x, as the case may be, and (f) if the Borrowers fail to deliver the financial statements or Compliance Certificate within the time period specified in Section 5.08(a) or (b), as applicable, then, during the period from the date such financial statements or Compliance Certificate were required to have been delivered until delivery, the Net Leverage Ratio component (but not, for the avoidance of doubt, the Public Debt Ratings component) of the Applicable Margin for the Term Loans and the Revolving Loans shall be set in accordance with pricing level V under the chart set forth under the definition “Applicable Margin” and the Net Leverage Ratio component (but not, for the avoidance of doubt, the Public Debt Ratings component) of the Applicable Revolving Commitment Fee Percentage shall be set in accordance with pricing level V under the chart set forth under the definition “Applicable Revolving Commitment Fee Percentage”, as applicable.
“Prime Rate” has the meaning set forth in the definition of “Base Rate”.
“Principal Office” means, for each of the Administrative Agent, each Swing Line Lender and each Issuing Bank, such Person’s “Principal Office” which, in the case of the Administrative Agent, may include one or more separate offices with respect to Approved Currencies as set forth on Schedule 10.01(a), or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to the Borrowers, the Administrative Agent and each Lender.
“Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Tranche A Term Loans of any Lender, as the context requires, the percentage obtained by dividing (x) the Tranche A Term Loan Exposure of that Lender by (y) the aggregate Tranche A Term Loan Exposure of all Lenders; (ii) with respect to all payments, computations and other matters relating to the Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, as the context requires, the percentage obtained by dividing (w) (1) the U.S. Revolving Exposure of that Lender by (2) the aggregate U.S. Revolving Exposure of all Lenders, (x) (1) the European Revolving Exposure of that Lender by (2) the aggregate European Revolving Exposure of all Lenders, (y) (1) the Hong Kong Revolving Exposure of that Lender by (2) the aggregate Hong Kong Revolving Exposure of all Lenders or (z) (1) the Canadian Revolving Exposure of that Lender by (2) the aggregate Canadian Revolving Exposure of all
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Lenders; and (iii) with respect to all payments, computations, and other matters relating to Incremental Term Loan Commitments or Incremental Term Loans of a particular Series, the percentage obtained by dividing (x) the Incremental Term Loan Exposure of that Lender with respect to that Series by (y) the aggregate Incremental Term Loan Exposure of all Lenders with respect to that Series. For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (i) an amount equal to the sum of the Tranche A Term Loan Exposure, the Revolving Exposure and the Incremental Term Loan Exposure of that Lender, by (ii) an amount equal to the sum of the aggregate Tranche A Term Loan Exposure, the aggregate Revolving Exposure and the aggregate Incremental Term Loan Exposure of all Lenders.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Debt Rating” means, as of any date, the public rating that has been most recently announced by S&P and/or Xxxxx’x (and/or, at the Borrower Representative’s election (in its sole discretion) for purposes of determining whether the Guarantee Release Date has occurred, Fitch), as the case may be, with respect to the senior, unsecured, non-credit enhanced, long-term debt of the U.S. Borrower, or if any such rating agency shall have issued more than one such public rating, the lowest such public rating issued by such rating agency.
“Qualified Securitization Financing” means any transaction or series of transactions entered into by a Group Member pursuant to which such Group Member, sells, conveys, contributes, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary funds the acquisition of such Securitization Assets (i) with cash, (ii) through the issuance to such Group Member of Seller’s Retained Interests or an increase in such Seller’s Retained Interests, and/or (iii) with proceeds from the sale, pledge or collection of Securitization Assets.
“Qualifying Acquisition” shall mean any Subject Acquisition with Acquisition Consideration of at least $200,000,000.
“RBCCM” means RBC Capital Markets, LLC.
“RCF Credit Agreement” means that certain credit agreement dated as of April 8, 2020, entered into by and among, the U.S. Borrower, the several banks and financial institutions party thereto from time to time and Barclays Bank PLC as the administrative agent.
“Real Estate Assets” means, at any time of determination, any interest (fee or leasehold) then owned by the U.S. Borrower or any of its Subsidiaries in any real property.
“Refunded Swing Line Loans” has the meaning set forth in Section 2.03(b)(iv).
“Register” has the meaning set forth in Section 2.07(b).
“Regulation” has the meaning set forth in Section 4.21.
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“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.
“Regulation U” means Regulation U of the Board of Governors, as in effect from time to time.
“Reimbursement Date” has the meaning set forth in Section 2.04(d)(i).
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
“Relevant Jurisdiction” means, in relation to a Loan Party: (i) its jurisdiction of organization; (ii) any jurisdiction where any asset subject to or intended to be subject to the Security Documents to be created by it is situated; and (iii) any jurisdiction where it conducts its business.
“Replacement Lender” has the meaning set forth in Section 2.23.
“Required Lenders” means one or more Lenders having or holding Tranche A Term Loan Exposure, Incremental Term Loan Exposure and/or Revolving Exposure and representing more than 50.0% of the sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders, (ii) the aggregate Revolving Exposure of all Lenders and (iii) the aggregate Incremental Term Loan Exposure of all Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Revolving Commitment” means a U.S. Revolving Commitment, a Canadian Revolving Commitment, a European Revolving Commitment and/or a Hong Kong Revolving Commitment, as applicable.
“Revolving Commitment Period” means the U.S. Revolving Commitment Period, the Canadian Revolving Commitment Period, the European Revolving Commitment Period or the Hong Kong Revolving Commitment Period, as applicable.
“Revolving Commitment Termination Date” means the U.S. Revolving Commitment Termination Date, the Canadian Revolving Commitment Termination Date, the European Revolving Commitment Termination Date or the Hong Kong Revolving Commitment Termination Date, as applicable.
“Revolving Exposure” means, with respect to any Lender as of any date of determination, the sum of such Lender’s U.S. Revolving Exposure, Canadian Revolving Exposure, European Revolving Exposure and Hong Kong Revolving Exposure.
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“Revolving Lenders” means the Lenders having Revolving Exposure.
“Revolving Loan” means a U.S. Revolving Loan, a Canadian Revolving Loan, a European Revolving Loan and/or a Hong Kong Revolving Loan, as applicable.
“Revolving Loan Note” means a promissory note substantially in the form of Exhibit B-2, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Royal Bank” has the meaning specified in the preamble hereto.
“S&P” means Standard & Poor’s Financial Services LLC.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, the Balkans, Belarus, Burma, Cote D’Ivoire (Ivory Coast), Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, North Korea, Sudan, Syria and Zimbabwe).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the Office of the Superintendent of Financial Institutions, the European Union or Her Majesty’s Treasury of the United Kingdom, and (b) any Person majority-owned or controlled by any such Person or Persons described in the foregoing clause (a).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the European Union or Her Majesty’s Treasury of the United Kingdom or (c) the Office of the Superintendent of Financial Institutions.
“Screen Rate” means, in relation to a Loan denominated in Dollars or Other Foreign Currency, the ICE Benchmark Administration London Interbank Offered Rate for the relevant currency and Interest Period, in relation to a Loan denominated in Hong Kong Dollars, the HIBO Rate for the relevant Interest Period, in relation to a Loan denominated in Canadian Dollars, the CDOR Rate for the relevant Interest Period and in relation to a Loan denominated in Euros, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period, in each case, displayed on the appropriate page of the Reuters screen. If the agreed page is replaced or service ceases to be available, the Administrative Agent may specify another page or service displaying the appropriate rate.
“SEC” means the United States Securities and Exchange Commission and any successor Governmental Authority performing a similar function.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
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“Securitization Assets” means any accounts receivable owed to a Group Member (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets (including contract rights) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, conveyed, contributed, assigned, pledged or otherwise transferred by such Group Member to a Securitization Subsidiary.
“Securitization Repurchase Obligation” means any obligation of a seller of Securitization Assets in a Qualified Securitization Financing to repurchase Securitization Assets arising as a result of a breach of a representation, warranty or covenant with respect to such Securitization Assets, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off set, counterclaim or other dilution of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller, but in each case, not as a result of such receivable being or becoming uncollectible for credit reasons.
“Securitization Subsidiary” means a Wholly-Owned Subsidiary of the U.S. Borrower (or another Person formed for the purposes of engaging in a Qualified Securitization Financing in which any Group Member makes an investment and to which such Group Member transfers, contributes, sells, conveys or grants a security interest in Securitization Assets) that engages in no activities other than in connection with the acquisition and/or financing of Securitization Assets of the Group, all proceeds thereof and all rights (contingent and other), collateral and other assets relating thereto, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the U.S. Borrower (or a duly authorized committee thereof) or such other Person (as provided below) as a Securitization Subsidiary and (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by any Group Member, other than another Securitization Subsidiary (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (ii) is recourse to or obligates any Group Member, other than another Securitization Subsidiary, in any way other than pursuant to Standard Securitization Undertakings or (iii) subjects any property or asset (other than Securitization Assets) of any Group Member, other than another Securitization Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (b) with which no Group Member, other than another Securitization Subsidiary, has any material contract, agreement, arrangement or understanding other than (i) the applicable receivables purchase agreements and related agreements, in each case, having reasonably customary terms, or (ii) on terms which the U.S. Borrower reasonably believes to be no less favorable to the applicable Group Member than those that might be obtained at the time from Persons that are not Affiliates of the Group and (c) to which no Group Member other than another Securitization Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the U.S. Borrower (or a duly authorized committee thereof) or such other Person shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the U.S. Borrower (or a duly authorized committee thereof) or such
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other Person giving effect to such designation and a certificate executed by an Authorized Officer certifying that such designation complied with the foregoing conditions.
“Security Documents” means, when and if executed, the Pledge and Security Agreement and all other instruments, documents and agreements delivered by the U.S. Borrower or any Guarantor pursuant to this Agreement or any of the other Loan Documents in order to grant to the Collateral Agent, for the benefit of the Guaranteed Parties, a lien on any assets or property of the U.S. Borrower or that Guarantor as security for all or certain of the Obligations.
“Seller’s Retained Interests” means the debt or Equity Interests held by any Group Member in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through which such Group Member has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.
“Series” has the meaning set forth in Section 2.24.
“Solvency Certificate” means a Solvency Certificate of the Financial Officer substantially in the form of Exhibit E-2.
“Solvent” means, with respect to the Group on a consolidated basis, that as of the date of determination, (a) the sum of the Group’s debt (including contingent liabilities) does not exceed the present fair saleable value of the Group’s present assets; (b) the Group’s capital is not unreasonably small in relation to its business as of the date of determination; and (c) the Group has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, Indebtedness beyond its ability to pay such Indebtedness as they become due (whether at maturity or otherwise). For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Springing Lien Period” means the period from and after the date on which a Springing Lien Trigger Event occurs and the U.S. Borrower and the Subsidiary Guarantors have complied with Section 5.13 to but excluding the Guarantee Release Date.
“Springing Lien Trigger Event” means, solely during the Covenant Relief Period, the Public Debt Rating is (1) a rating of BB+ (or the equivalent) or lower by S&P and (2) a rating of Ba1 (or the equivalent) or lower by Xxxxx’x.
“Standard Securitization Undertakings” means representations, warranties, covenants, Securitization Repurchase Obligations and indemnities entered into by any Group Member that are reasonably customary in accounts receivable securitization transactions.
“Subject Acquisition