SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTEE AGREEMENT
Execution Version
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTEE AGREEMENT
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTEE AGREEMENT, dated as of June 25, 2020 (the “Amendment”), among Xxxxxxx Xxxx (USA), Inc. (the “Company”), Capri Holdings Limited (formerly Xxxxxxx Xxxx Holdings Limited) (“Capri Holdings”), the Foreign Subsidiary Borrowers party hereto (collectively with the Company and Capri Holdings, the “Borrowers”), the Guarantors party hereto, the several banks and other financial institutions or entities from party hereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”), and the other agents party thereto.
W I T N E S S E T H :
WHEREAS, reference is made to the Third Amended and Restated Credit Agreement, dated as of November 15, 2018 (as amended by the First Amendment, dated as of March 20, 2020, the “Credit Agreement” and as amended by this Amendment and as reflected in Exhibit A attached hereto, the “Amended Credit Agreement”);
WHEREAS, reference is made to the Third Amended and Restated Guarantee, dated as of November 15, 2018 (the “Guarantee” and as amended by this Amendment, the “Amended Guarantee”);
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers, the Guarantors and the Administrative Agent are parties to the Guarantee;
WHEREAS, the Borrowers and the Required Lenders wish to make certain amendments to each of the Credit Agreement and Guarantee as described herein;
WHEREAS, the Borrowers desire to create a new tranche of revolving commitments (the “2021 Revolving Facility”) under the Credit Agreement having, except as set forth in the Amended Credit Agreement (including as to maturity and pricing), the same terms, rights and obligations under the Loan Documents as the existing 2023 Revolving Commitments and 2023 Revolving Loans under the Amended Credit Agreement, in an aggregate principal amount of $230,000,000;
WHEREAS, each Person that executes and delivers a Lender Addendum (each, a “Lender Addendum”) to this Amendment (a “2021 Revolving Lender”) agrees to provide 2021 Revolving Commitments on the Amendment Effective Date and to make 2021 Revolving Loans to the applicable Borrowers in an aggregate principal amount not to exceed the amount set forth on the commitment schedule (the “2021 Commitment Schedule”) attached hereto as Schedule I;
WHEREAS, in respect of the 2021 Revolving Facility, (i) JPMorgan Chase Bank, N.A. and Barclays Bank PLC are each appointed by the Borrowers to act, and each of them hereby agrees to act as, a Joint Bookrunner, (ii) JPMorgan Chase Bank, N.A., Barclays Bank PLC, Citibank, N.A., BofA Securities, Inc., and Xxxxx Fargo Bank, National Association are each appointed by the Borrowers to act, and each of them hereby agrees to act as, a Joint Lead Arranger, (iii) Barclays Bank PLC is appointed by the Borrowers to act, and it hereby agrees to act as, the Syndication Agent, (iv) Citibank, N.A., BofA
Securities, Inc., and Xxxxx Fargo Bank, National Association are each appointed by the Borrowers to act, and each of them hereby agrees to act as, a Co-Documentation Agent and (v) MUFG Union Bank, N.A and BNP Paribas are each appointed by the Borrowers to act, and each of them hereby agrees to act as, a Senior Managing Agent;
WHEREAS, the Required Lenders wish to consent to (i) the amendments to the Credit Agreement as reflected in the Amended Credit Agreement, (ii) the amendments the Guarantee as reflected in Section 3 and (iii) the establishment of the 2021 Revolving Facility, all pursuant to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements hereinafter contained, the parties hereto agree as follows:
1.Defined Terms. Capitalized terms used herein but not defined herein have the respective meanings ascribed thereto in the Amended Credit Agreement.
2.Certain Amendments to the Credit Agreement. The Borrowers, Capri Holdings, the other Guarantors, the Required Lenders and the Administrative Agent agree that, effective as of the Amendment Effective Date:
(a)The 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 double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Amended Credit Agreement attached as Exhibit A hereto.
(b)Schedules 1.01(b), 1.01(c) and 6.01(g) are hereby added to the Amended Credit Agreement, in each case as attached as Exhibit B hereto.
(c)The 2021 Commitment Schedule is hereby added as Schedule 2.01(b) to the Amended Credit Agreement.
(d)Each of Exhibits A, C, D, I-1 and I-2 to the Credit Agreement are hereby amended and restated in its entirety with respect to the Amended Credit Agreement, in each case in the form thereof attached as Exhibit C hereto.
(e)The Administrative Agent is authorized to, without the consent of the Lenders (and the Required Lenders hereby authorize the Administrative Agent to) effect such technical amendments to the Credit Agreement and the other Loan Documents (including the Exhibits thereto) as may be necessary in the reasonable discretion of the Administrative Agent to give effect to the existence of the 2021 Revolving Facility.
3.Certain Amendments to the Guarantee. The Borrowers, Capri Holdings, the other Guarantors, the Required Lenders and the Administrative Agent agree that, effective as of the Amendment Effective Date:
i.Clause (ii) in the proviso of the penultimate sentence in Section 1(a) of the Guarantee is hereby amended and restated in its entirety as follows:
“(ii) if any Guarantor is a CFC or a CFC Holding Company (in each case, other than a Grantor), the Guaranteed Obligations of such Guarantor shall exclude (1) any Obligations of any Domestic
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Subsidiary and (2) any Obligations of any other Loan Party to the extent and in respect of such Loan Party’s guarantee of the Obligations of any Domestic Subsidiary (the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Guaranteed Obligations”).”
ii.The definition of the “Guaranteed Obligations” is hereby amended to include the Obligations to the Lenders or any or their Affiliates related to agreements in respect of Supply Chain Financing (except any Excluded Supply Chain Financing Agreement), Bilateral Letters of Credit and Working Capital Facilities, by:
1.replacing each reference to “Swap Agreement or Banking Services Agreement” in Sections 1, 2 and 5 of the Guarantee with the following:
“Swap Agreement, Banking Services Agreement, agreement in respect of a Supply Chain Financing (except any Excluded Supply Chain Financing Agreement), Bilateral Letter of Credit, or Working Capital Facility”
2.amending and restating Section 10(a) of the Guarantee in its entirety as follows:
“ (a) remain in full force and effect until the date of payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guarantee (in each case, other than (u) obligations in respect of Swap Agreements as to which arrangements satisfactory to the Administrative Agent shall have been made, (v) obligations in respect of Banking Services Agreements as to which arrangements satisfactory to the Administrative Agent shall have been made, (w) Bilateral Letter of Credit Obligations, (x) Working Capital Facilities Obligations, (y) obligations in respect of Supply Chain Financings and (z) contingent obligations for indemnification or expense reimbursement) and expiration or termination of the Commitments and all Letters of Credit or, in the case of Letters of Credit, cash collateralization thereof in accordance with the Credit Agreement (such date, the “Guarantee Termination Date”),”
4.2021 Revolving Commitments. Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, each 2021 Revolving Lender will make its 2021 Revolving Commitment available, in the amount not to exceed the amount set forth opposite such 2021 Revolving Lender’s name on the 2021 Commitment Schedule on the Amendment Effective Date and commit to make 2021 Revolving Loans to the applicable Borrowers in the manner contemplated by the Amended Credit Agreement.
5.Conditions to Effectiveness of this Amendment. This Amendment and the obligations of the 2021 Revolving Lenders to make 2021 Revolving Loans under the Amended Credit Agreement shall become effective as of the date (the “Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied:
1.Certain Documents. The Administrative Agent shall have received (i) this Amendment, duly executed and delivered by the Borrowers, Capri Holdings, each other Guarantor, the Administrative Agent and the Required Lenders and (ii) a Lender Addendum to this Amendment, duly executed by each 2021 Revolving Lender.
2.Corporate and Other Proceedings. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request prior to the date of this Amendment relating to the incorporation, registration, organization,
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existence and good standing (to the extent such concept is applicable in the relevant jurisdiction) of the Loan Parties, the authorization of the Amendment (including the borrowings and performance of obligations under the 2021 Revolving Facility) and any other legal matters relating to such Loan Parties, the Amendment and the 2021 Revolving Facility, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
3.Legal Opinion. The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, (ii) Xxxxxx Westwood & Riegels LP, special British Virgin Islands counsel to the Loan Parties, (iii) Xxxxx & XxXxxxxx LLP, special Dutch, English, Italian and Swiss counsel to the Loan Parties, (iv) Xxxxxxx XxXxxxxx, special Nova Scotia counsel to the Loan Parties, (v) Haiwen & Partners, special Chinese counsel to the Loan Parties, (vi) Xxxxxxxx, special Irish counsel to the Loan Parties and (vii) Xxxxxxxx Mori & Tomotsune, special Japanese counsel to the Loan Parties, each in form and substance reasonably satisfactory to the Administrative Agent and its counsel and covering such matters relating to the Loan Parties or Amendment (including the borrowings and performance of obligations under the 2021 Revolving Facility) as the Administrative Agent shall reasonably request prior to the date of this Amendment. The Loan Parties hereby request such counsel to deliver such opinions.
4.Fees and Expenses Paid. The Administrative Agent shall have received (i) for the account of each Lender that delivers its executed signature page to this Amendment by June 25, 2020 a fee in an amount equal to an amount separately communicated to the Lenders and (ii) payment of the Administrative Agent’s and its affiliates’ fees and reasonable and documented out-of-pocket expenses (including reasonable and documented out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment to the extent provided under Section 9.03(a) of the Credit Agreement and invoices therefor have been provided to the Borrower at least one Business Day prior to the date hereof.
5.No Default. At the time and immediately after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
6.Representations and Warranties. Each of the representations and warranties of the Loan Parties set forth in the Amended Credit Agreement, Section 6 of this Amendment and in the other Loan Documents shall be true and correct in all material respects (or in all respects, if qualified by a materiality threshold) as of the Amendment Effective Date, except for representations and warranties that specifically refer to an earlier date.
6.Representations and Warranties. Each Loan Party represents and warrants to the Administrative Agent and the Lenders as follows:
1.The execution, delivery and performance by each Loan Party of this Amendment is within such Loan Party’s corporate or organizational powers and has been duly authorized by all necessary corporate or organizational actions and, if required, actions by equity holders. This Amendment has been duly executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, liquidation, reconstruction, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and except to the extent that availability of the remedy of specific
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performance or injunctive relief is subject to the discretion of the court before which any proceeding therefore may be brought.
2.After giving effect to this Amendment and after giving effect to the transactions contemplated hereby, each of the representations and warranties set forth in the Amended Credit Agreement and in the other Loan Documents are true and correct in all material respects (or in all respects, if qualified by a materiality threshold) as of the Amendment Effective Date, except for representations and warranties that specifically refer to an earlier date.
3.No Event of Default has occurred and is continuing at the time of and immediately after giving effect to this Amendment.
4.No consent or approval of any Governmental Authority or any other Person is required for any of the Loan Parties to execute, deliver and perform this Amendment.
7.Ratification by Guarantors. Each of the Guarantors acknowledges that its consent to this Amendment is not required (other than with respect to Section 3 hereof), but each of the undersigned nevertheless does hereby agree and consent to this Amendment and to the documents and agreements referred to herein. Each of the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this Amendment, such Guarantor’s guarantee (as set forth in the Amended Guarantee) of the Obligations (including for the avoidance of doubt the Obligations with respect to the 2021 Revolving Facility) shall remain in full force and effect and shall extend to all extensions of credit made under the Amended Credit Agreement without modification thereto and (ii) nothing herein shall in any way limit any of the terms or provisions of such Guarantor’s guarantee or any other Loan Document executed by such Guarantor (as the same may be amended from time to time), all of which are hereby ratified, confirmed and affirmed in all respects. Each of the Guarantors hereby agrees and acknowledges that no other agreement, instrument, consent or document shall be required to give effect to this Section 7. Each of the Guarantors hereby further acknowledges that the Company, the Borrowers, the Administrative Agent and any Lender may from time to time enter into any further amendments, modifications, terminations and/or waivers of any provision of the Loan Documents without notice to or consent from such Guarantor and without affecting the validity or enforceability of such Guarantor’s guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of such Guarantor’s guarantee.
8.Miscellaneous.
1.Except as expressly provided herein, (i) the Credit Agreement shall continue in full force and effect, and the terms and conditions of the Credit Agreement are expressly incorporated herein and ratified and confirmed in all respects as reflected in the Amended Credit Agreement and (ii) the Guarantee shall continue in full force and effect, and the terms and conditions of the Guarantee are expressly incorporated herein and ratified and confirmed in all respects as reflected in the Amended Guarantee. This Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement, the Amended Guarantee and the other Loan Documents.
2.The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender under the Loan Documents.
3.This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be
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deemed to constitute one and the same instrument. Delivery of an executed signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
4.THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.The terms of this Amendment shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first written above.
CAPRI HOLDINGS LIMITED, as Capri Holdings, a Borrower and a Guarantor
By /s/ Xxxxxx X. Xxxxxxx, Xx. Name: Xxxxxx X. Xxxxxxx, Xx. Title: Executive Vice President, Chief Financial Officer and Chief Operating Officer
Execution Version
XXXXXXX XXXX (USA), INC., as the Company, a Borrower and a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX (USA) HOLDINGS, INC., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX STORES, L.L.C., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX RETAIL, INC., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX STORES (CALIFORNIA), INC., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX, L.L.C., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX (SWITZERLAND) GMBH, as MK Switzerland, a Borrower and a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Managing Officer
XXXXXXX XXXX (SWITZERLAND) HOLDINGS GMBH, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Managing Officer
XXXXXXX XXXX (SWITZERLAND) INTERNATIONAL GMBH, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Managing Officer
XXXXXXX XXXX TRADING (SHANGHAI) COMPANY LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Attorney
MKJC LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
XXXXX XXXX GROUP LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Signatory
XXXXXXX XXXX (CANADA) CO., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX (CANADA) HOLDINGS LTD., a Borrower and a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Treasurer
XXXXXXX XXXX (UK) LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Signatory
XXXXXXX XXXX (EUROPE) B.V., as MKE, a Borrower and a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Signatory
XXXXXXX XXXX (HK) LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Director
J. CHOO LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorised Signatory
VICTORY S.r.l., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
XXXXXXX XXXX ITALY S.r.l., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
GIVI HOLDING S.r.l., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
XXXXXX XXXXXXX S.r.l., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
VERSACE USA, INC., as a Guarantor
By /s/ Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx Title: Chief Financial Officer
XXXXXXX XXXX LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
XXXXXXX XXXX (IRELAND) LIMITED, as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Director
XXXXXXX XXXX JAPAN K.K., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Signatory
XXXXXXX XXXX (NETHERLANDS) B.V., as a Guarantor
By /s/ Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxxxxx Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A, as Administrative Agent
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Executive Director
LENDER ADDENDUM
LENDER ADDENDUM (this “Lender Addendum”) in connection with the Second Amendment to Third Amended and Restated Credit Agreement and First Amendment to Third Amended and Restated Guarantee Agreement (the “Amendment”), among Xxxxxxx Xxxx (USA), Inc. (the “Company”), Capri Holdings Limited (formerly Xxxxxxx Xxxx Holdings Limited) (“Capri Holdings”), the Foreign Subsidiary Borrowers party hereto (collectively with the Company and Capri Holdings, the “Borrowers”), the Guarantors party hereto, the several banks and other financial institutions or entities party hereto (the “Lenders”), JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”), and the other agents party hereto. Unless otherwise defined herein, terms defined and used herein shall have the meanings given to them in the Amendment or in the Amended Credit Agreement, as applicable.
By executing this Lender Addendum as a Lender, the undersigned institution (A) agrees to the terms of the Amendment, (B) on the terms and subject to the conditions set forth in the Amendment and in the Amended Credit Agreement, commits on the Amendment Effective Date to make 2021 Revolving Loans to the Company in the manner contemplated by the Amendment and the Amended Credit Agreement in the amount of its 2021 Revolving Commitment set forth opposite the undersigned institution’s name on the 2021 Commitment Schedule and (C) agrees that it is subject to, and bound by, the terms and conditions of the Amended Credit Agreement and other Loan Documents as a Lender thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Lender Addendum to be executed and delivered by a duly authorized officer.
as a Lender (type name of the legal entity)
By:
Name:
Title:
If a second signature is necessary:
By:
Name:
Title:
SCHEDULE I
2021 COMMITMENT SCHEDULE
LENDER | COMMITMENT | ||||
JPMorgan Chase Bank, N.A. | $35,000,000.00 | ||||
Barclays Bank PLC | $35,000,000.00 | ||||
Citibank, N.A. | $30,000,000.00 | ||||
Bank of America, N.A. | $25,000,000.00 | ||||
Xxxxx Fargo Bank, National Association | $25,000,000.00 | ||||
BNP Paribas | $20,000,000.00 | ||||
MUFG Union Bank, N.A. | $20,000,000.00 | ||||
Truist Bank | $15,000,000.00 | ||||
Standard Chartered Bank | $15,000,000.00 | ||||
HSBC Bank USA, National Association | $10,000,000.00 | ||||
AGGREGATE 2021 COMMITMENT | $230,000,000.00 |
EXHIBIT A
AMENDED CREDIT AGREEMENT
EXHIBIT A
MARKED VERSION REFLECTING CHANGES
PURSUANT TO THE SECOND AMENDMENT,
DATED AS OF JUNE 25, 2020
ADDED TEXT SHOWN UNDERSCORED
DELETED TEXT SHOWN STRIKETHROUGH
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THIRD AMENDED AND RESTATED CREDIT AGREEMENTdated as of November 15, 2018 amongMICHAEL KORS (USA), INC.CAPRI HOLDINGS LIMITEDThe Foreign Subsidiary Borrowers Party Hereto The Guarantors Party Hereto The Lenders Party HeretoJPMORGAN CHASE BANK, X.X.xx Administrative AgentBARCLAYS BANK PLCas Syndication Agent BANK OF AMERICA, N.A., BNP PARIBAS, CITIBANK, N.A., ING (IRELAND) DAC, INTESA SANPAOLO S.p.A., NEW YORK BRANCH, MUFG BANK, LTD. and U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agents and HSBC BANK USA, NATIONAL ASSOCIATION and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Senior Managing Agents | |||||
JPMORGAN CHASE BANK, N.A. and BARCLAYS BANK PLC, as Joint Bookrunners JPMORGAN CHASE BANK, N.A., BARCLAYS BANK PLC, BNP PARIBAS, CITIBANK, N.A., ING (IRELAND) DAC, INTESA SANPAOLO S.p.A., NEW YORK BRANCH, MERRILL LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, MUFG BANK, LTD. and U.S. BANK NATIONAL ASSOCIATION, as Joint Lead Arrangers |
Table Of Contents
Page
Article I Definitions 1
Section 1.01. Defined Terms 1
Section 1.02. Classification of Loans and Borrowings 4452
Section 1.03. Other Interpretive Provisions 4452
Section 1.04. Accounting Terms; GAAP; Pro Forma Calculations; Exchange Rates; Limited Condition Acquisitions 4654
Section 1.05. Status of Obligations 4856
Section 1.06. Certifications 4857
Section 1.07. Amendment and Restatement of the Existing Credit Agreement 4857
Section 1.08. Interest Rates; LIBOR Notification. 4957
Article II The Credits 4958
Section 2.01. Commitments; Loans 4958
Section 2.02. Loans and Borrowings 5059
Section 2.03. Requests for Borrowings 5160
Section 2.04. Determination of Dollar Amounts 5261
Section 2.05. Swingline Loans 5361
Section 2.06. Letters of Credit 5463
Section 2.07. Funding of Borrowings 5968
Section 2.08. Interest Elections 6069
Section 2.09. Termination and Reduction of Commitments 6271
Section 2.10. Repayment of Loans; Evidence of Debt 6372
Section 2.11. Prepayment of Loans 6473
Section 2.12. Fees 6677
Section 2.13. Interest 6779
Section 2.14. Alternate Rate of Interest 6980
Section 2.15. Increased Costs 7182
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Table Of Contents
Page
Section 2.16. Break Funding Payments 7283
Section 2.17. Taxes 7284
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Setoffs 7788
Section 2.19. Mitigation Obligations; Replacement of Lenders 7990
Section 2.20. Expansion Option 7991
Section 2.21. Escrow of Loan Proceeds 8192
Section 2.22. Judgment Currency 8193
Section 2.23. Designation of Foreign Subsidiary Borrowers 8293
Section 2.24. Defaulting Lenders 8293
Section 2.25. Financial Assistance 8495
Section 2.26. Interest Act (Canada) 8596
Section 2.27. Extension of Maturity Date; Exchange of Tranche A-1 Term Loans to Tranche A-2 Term Loans. 8697
Section 2.28. Refinancing Facilities 8899
Article III Representations and Warranties 91102
Section 3.01. Organization; Powers; Subsidiaries 91102
Section 3.02. Authorization; Enforceability 91102
Section 3.03. Governmental Approvals; No Conflicts 91102
Section 3.04. Financial Condition; No Material Adverse Change 91103
Section 3.05. Properties 92103
Section 3.06. Litigation 92103
Section 3.07. Investment Company Status 92103
Section 3.08. Taxes 92103
Section 3.09. ERISA 92103
Section 3.10. Disclosure 92104
Section 3.11. Federal Reserve Regulations 93104
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Table Of Contents
Page
Section 3.12. No Default 93104
Section 3.13. Anti-Corruption Laws and Sanctions 93104
Section 3.14. Compliance with the Swiss Twenty Non-Bank Rule 93104
Section 3.15. Security Interests in Collateral 105
Article IV Conditions 93105
Section 4.01. Effective Date 93105
Section 4.02. Each Revolving Credit Event 95106
Section 4.03. Escrow Funding Date 95107
Section 4.04. Acquisition Closing Date; Escrow Release Conditions 97109
Section 4.05. Designation of a Foreign Subsidiary Borrower 99111
Article V Affirmative Covenants 99111
Section 5.01. Financial Statements and Other Information 100112
Section 5.02. Notices of Material Events 101113
Section 5.03. Existence; Conduct of Business 101113
Section 5.04. Payment of Obligations 101113
Section 5.05. Maintenance of Properties; Insurance 101113
Section 5.06. Books and Records; Inspection Rights 102114
Section 5.07. Compliance with Laws and Material Contractual Obligations 102114
Section 5.08. Use of Proceeds and Letters of Credit 102115
Section 5.09. Guarantors; Collateral 103115
Section 5.10. Centre of Main Interests and Establishment 104117
Section 5.11. Compliance with the Swiss Twenty Non-Bank Rule 104117
Section 5.12. Beneficial Ownership Regulation 104118
Section 5.13. Financial Assistance (Ireland) 118
Article VI Negative Covenants 104118
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Table Of Contents
Page
Section 6.01. Indebtedness 104118
Section 6.02. Liens 107121
Section 6.03. Fundamental Changes and Asset Sales 109123
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions 110126
Section 6.05. Swap Agreements 112129
Section 6.06. Transactions with Affiliates 112129
Section 6.07. Restricted Payments 112129
Section 6.08. Leverage Ratio 113Financial Covenants 130
Article VII Events of Default 113130
Article VIII The Administrative Agent 115133
Article IX Miscellaneous 118138
Section 9.01. Notices 118138
Section 9.02. Waivers; Amendments 120140
Section 9.03. Expenses; Indemnity; Damage Waiver 123142
Section 9.04. Successors and Assigns 125144
Section 9.05. Survival 128148
Section 9.06. Counterparts; Integration; Effectiveness; Electronic Execution 129148
Section 9.07. Severability 129149
Section 9.08. Right of Setoff 129149
Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process 130149
Section 9.10. WAIVER OF JURY TRIAL 131150
Section 9.11. Headings 131151
Section 9.12. Confidentiality 131151
Section 9.13. USA PATRIOT Act; Anti-Money Laundering Laws 132152
Section 9.14. Releases of Liens and Guarantorees 133153
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Table Of Contents
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Section 9.15. Interest Rate Limitation 133155
Section 9.16. No Advisory or Fiduciary Responsibility 134155
Section 9.17. Prepayment of Loans under the Existing Credit Agreement 134155
Section 9.18. Attorney Representation 134155
Section 9.19. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 134155
Section 9.20. Acknowledgement Regarding Any Supported QFCs 135156
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SCHEDULES:
Schedule 1.01 - Pricing Grid
Schedule 1.01(b)- Bilateral Letters of Credit
Schedule 1.01(c)- Working Capital Facilities
Schedule 2.01(a)– 2023 Revolving Commitments
Schedule 2.01(b)– Term Loan Commitments
Schedule 2.01(d)– 2021 Revolving Commitments
Schedule 2.02 – Letter of Credit Commitments
Schedule 2.06 – Existing Letters of Credit
Schedule 3.01 – Subsidiaries
Schedule 3.06 – Litigation
Schedule 6.01 – Existing Indebtedness
Schedule 6.01(g)– Priority Indebtedness
Schedule 6.02 – Existing Liens
Schedule 6.04 – Existing InvestmentsSchedule 6.06 – Existing Transactions with Affiliates
EXHIBITS:
Exhibit A – Form of Assignment and Assumption
Exhibit B – Form of Solvency Certificate
Exhibit C – Form of Increasing Lender Supplement
Exhibit D – Form of Augmenting Lender Supplement
Exhibit E – List of Closing Documents
Exhibit F-1 – Form of Borrowing Subsidiary Agreement
Exhibit F-2 – Form of Borrowing Subsidiary Termination
Exhibit G – Form of Guaranty
Exhibit H-1 – Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)
Exhibit H-2 – Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)
Exhibit H-3 – Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)
Exhibit H-4 – Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)
Exhibit I-1 – Form of Borrowing Request
Exhibit I-2 – Form of Interest Election Request
Exhibit J-1 – Form of Revolving Note
Exhibit J-2 – Form of Term Loan Note
Exhibit K – Form of Escrow Agreement
THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of November 15, 2018 among XXXXXXX XXXX (USA), INC., CAPRI HOLDINGS LIMITED (formerly XXXXXXX XXXX HOLDINGS LIMITED), the FOREIGN SUBSIDIARY BORROWERS from time to time party hereto, the GUARANTORS from time to time party hereto, the LENDERS from time to time party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the ISSUING BANKS from time to time party hereto.
WHEREAS, the Borrowers, the Guarantors, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent thereunder, are currently party to the Second Amended and Restated Credit Agreement, dated as of August 22, 2017 (as amended, supplemented or otherwise modified prior to the Effective Date, the “Existing Credit Agreement”);
WHEREAS, the Company has requested that the Term Loan Lenders extend Term Loans to the Borrowers in an aggregate principal amount of $1,600,000,000 the proceeds of which shall be used to finance in part the Target Acquisition and the other Target Acquisition Costs;
WHEREAS, the Borrowers, the Guarantors, each Lender that is also a party to the Existing Credit Agreement, each other Lender party hereto and the Administrative Agent have entered into this Agreement in order to (i) amend and restate the Existing Credit Agreement in its entirety; (ii) extend the applicable maturity date in respect of the existing revolving credit facility under the Existing Credit Agreement; (iii) re-evidence the “Obligations” with respect to the Revolving Facility under, and as defined in, the Existing Credit Agreement, which shall be repayable in accordance with the terms of this Agreement; (iv) provide a new Term Loan Facility and evidence the Term Loans to be made by the Term Loan Lenders as part of the Obligations, and (v) set forth the terms and conditions under which the Lenders will, from time to time, make loans and extend other financial accommodations to or for the benefit of the Borrowers;
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the obligations and liabilities of the Borrowers and the Subsidiaries outstanding thereunder, and to evidence the obligations and liabilities of the Borrowers and the Subsidiaries under the Term Loan Facility, which shall be payable in accordance with the terms hereof; and
WHEREAS, it is also the intent of the Borrowers and the Guarantors to confirm that all obligations under the applicable “Loan Documents” (as referred to and defined in the Existing Credit Agreement) shall continue in full force and effect as modified or restated by the Loan Documents (as referred to and defined herein) and that, from and after the Effective Date, all references to the “Credit Agreement” contained in any such existing “Loan Documents” shall be deemed to refer to this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree that the Existing Credit Agreement is hereby amended and restated as follows:
ARTICLE IDefinitions
SECTION 1.01. Defined Terms
. As used in this Agreement, the following terms have the meanings specified below:
“2021 Aggregate Revolving Commitment” means the aggregate of the 2021 Revolving Commitments of all of the 2021 Revolving Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Second Amendment Effective Date, the 0000 Xxxxxxxxx Revolving Commitment is $230,000,000.
“2021 Available Revolving Commitment” means, at any time with respect to any 2021 Revolving Lender, the 2021 Revolving Commitment of such 2021 Revolving Lender then in effect minus the 2021 Revolving Credit Exposure of such Lender at such time.
“2021 Revolving Availability Period” means the period from and including the Second Amendment Effective Date to but excluding the earlier of the Maturity Date with respect to the 2021 Revolving Facility and the date of termination of the 2021 Revolving Commitments.
“2021 Revolving Commitment” means, with respect to each 2021 Revolving Lender, the commitment of such Lender to make 2021 Revolving Loans, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each 2021 Revolving Lender’s 2021 Revolving Commitment is set forth on Schedule 2.01(d), or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such 2021 Revolving Lender shall have assumed its 2021 Revolving Commitment, as applicable.
“2021 Revolving Credit Exposure” means, with respect to any Lender at any time, the outstanding principal amount of such Lender’s 2021 Revolving Loans.
“2021 Revolving Facility” means the 2021 Revolving Commitments and the provisions herein related to the 2021 Revolving Loans.
“2021 Revolving Lenders” means the Persons listed on Schedule 2.01(d) that have delived a “Lender Addendum” to the Second Amendment and any other Person that shall have become a 2021 Revolving Lender hereunder pursuant to an Assignment and Assumption or other documentation contemplated thereby, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or other documentation contemplated thereby.
“2021 Revolving Loan” means a Loan made pursuant to Section 2.01(d).
“2023 Aggregate Revolving Commitment” means the aggregate of the 2023 Revolving Commitments of all of the 2023 Revolving Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the 0000 Xxxxxxxxx Revolving Commitment is $1,000,000,000.
“2023 Applicable Percentage” means, with respect to any 2023 Revolving Lender, the percentage of the 0000 Xxxxxxxxx Revolving Commitment represented by such 2023 Revolving Lender’s 2023 Revolving Commitment; provided that, in the case of Section 2.24 when a Defaulting Lender shall exist, “2023 Applicable Percentage” shall mean the percentage of the 0000 Xxxxxxxxx Revolving Commitment (disregarding any Defaulting Lender’s 2023 Revolving Commitment) represented by such 2023 Revolving Lender’s 2023 Revolving Commitment. If the Commitments have terminated or expired, the 2023 Applicable Percentages shall be determined based upon the Commitments most recently in
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effect, giving effect to any assignments and to any 2023 Revolving Lender’s status as a Defaulting Lender at the time of determination.
“2023 Available Revolving Commitment” means, at any time with respect to any 2023 Revolving Lender, the 2023 Revolving Commitment of such 2023 Revolving Lender then in effect minus the 2023 Revolving Credit Exposure of such Lender at such time; it being understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be a component of the 2023 Revolving Credit Exposure for purposes of calculating the commitment fee under Section 2.12(a).
“2023 Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date with respect to the 2023 Revolving Facility and the date of termination of the 2023 Revolving Commitments.
“2023 Revolving Commitment” means, with respect to each 2023 Revolving Lender, the commitment of such Lender to make 2023 Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s 2023 Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each 2023 Revolving Lender’s 2023 Revolving Commitment is set forth on Schedule 2.01(a), or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such 2023 Revolving Lender shall have assumed its 2023 Revolving Commitment, as applicable.
“2023 Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s 2023 Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“2023 Revolving Facility” means the 2023 Revolving Commitments and the provisions herein related to the 2023 Revolving Loans, Swingline Loans and Letters of Credit.
“2023 Revolving Lenders” means the Persons listed on Schedule 2.01(a) (including, without limitation, the Persons that are “Lenders” under the Existing Credit Agreement immediately prior to the Effective Date) and any other Person that shall have become a 2023 Revolving Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption or other documentation contemplated thereby, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or other documentation contemplated thereby. Unless the context otherwise requires, the term “2023 Revolving Lenders” includes the Swingline Lender and each Issuing Bank.
“2023 Revolving Loan” means a Loan made pursuant to Section 2.01(a).
“ABR”, when used in reference to any Loan or Borrowing (other than a Canadian Loan), refers to a Loan, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base Rate.
“Acquisition” means any acquisition (in one transaction or a series of related transactions) by Capri Holdings or any Subsidiary, on or after the Effective Date (whether effected through a purchase of Equity Interests or assets or through a merger, consolidation or amalgamation), of (i) another Person including the Equity Interests of any Person in which Capri Holdings or any Subsidiary
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owns an Equity Interest or (ii) the assets constituting all or substantially all of a business or operating business unit of another Person.
“Acquisition Closing Date” means the date on which the conditions specified in Section 4.04 are satisfied, the Term Loans and Limited Condition Revolving Loans are made or, to the extent the Escrow Funding Election has been made by Capri Holdings, the proceeds of the Term Loans and Limited Condition Revolving Loans are released from the Escrow Account to Capri Holdings (or as otherwise directed by Capri Holdings), and the Acquisition is consummated pursuant to the Target Acquisition Agreement (or arrangements satisfactory to the Administrative Agent are in place for the consummation of such Acquisition substantially concurrently therewith or promptly thereafter), which date shall be a Business Day.
“Acquisition Co” means any wholly-owned direct or indirect Subsidiary or Subsidiaries of Capri Holdings used to effectuate the Target Acquisition.
“Acquisition Swap Agreements” means (i) that certain foreign exchange forward transaction between JPMorgan Chase Bank, N.A. and Capri Holdings with a trade date of September 25, 2018, a value date of January 28, 2019 and assigned contract number 10249803 and (ii) that certain foreign exchange forward transaction between Barclays Bank plc and Capri Holdings with a trade date of September 25, 2018 and a value date of January 28, 2019.
“Acquisition Swap Counterparties” means, collectively, JPMorgan Chase Bank, N.A. and Barclays Bank PLC.
“Additional Commitment Lender” has the meaning assigned to such term in Section 2.27(a).
“Additional Rolled Tranche A-2 Term Loans” has the meaning assigned to such term in Section 2.27(b).
“Additional Tranche A-2 Term Loan Lender” has the meaning assigned to such term in Section 2.27(b).
“Adjusted LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means JPMorgan Chase Bank, N.A. (including its branches and affiliates), in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
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“Agent Parties” has the meaning assigned to such term in Section 9.01(d).
“Aggregate Revolving Commitment” means the aggregate of the Revolving Commitments of all of the Revolving Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Revolving Commitment is $1,000,000,000.
“Aggregate Tranche A-1 Term Loan Commitment” means, the aggregate of the Tranche A-1 Term Loan Commitments of all of the Tranche A-1 Term Loan Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Tranche A-1 Term Loan Commitment is $800,000,000.
“Aggregate Tranche A-2 Term Loan Commitment” means, the aggregate of the Tranche A-2 Term Loan Commitments of all of the Tranche A-2 Term Loan Lenders, as reduced or increased from time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Tranche A-2 Term Loan Commitment is $800,000,000.
“Agreed Collateral Precedent” means the Amended and Restated Pledge and Security Agreement dated as of September 15, 2011 made by Capri Holdings and its Subsidiaries party thereto in favor of JPMorgan Chase Bank, N.A., as administrative agent, as modified in accordance with the Collateral Documentation Principles.
“Agreed Currencies” means (i) Dollars, (ii) euro, (iii) Pounds Sterling, (iv) Japanese Yen, (v) Canadian Dollars, (vi) Swiss Francs and (vii) any other currency (x) that is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars, (y) for which a LIBOR Screen Rate is available in the Administrative Agent’s reasonable determination and (z) that is reasonably acceptable to the Administrative Agent and each of the Revolving Lenders.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the purposes of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.
“Alternative Rate” has the meaning assigned to such term in Section 2.14(a).
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Capri Holdings or its Subsidiaries from time to time concerning or relating to money laundering, bribery or corruption.
“Applicable Maturity Date” has the meaning assigned to such term in Section 2.27.
“Applicable Payment Office” means, (a) in the case of a Canadian Borrowing, the Canadian Payment Office and (b) in the case of a Eurocurrency Borrowing, the applicable Eurocurrency Payment Office.
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“Applicable Percentage” means, with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Revolving Lender’s Revolving Commitment; provided that, in the case of Section 2.24 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the Aggregate Revolving Commitment (disregarding any Defaulting Lender’s Revolving Commitment) represented by such Revolving Lender’s Revolving Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
“Applicable Rate” means, for any day, (i) with respect to any 2023 Revolving Loan or Term Loan that is a Eurocurrency Loan, any ABR Loan, any BA Equivalent Loan or any Canadian Base Rate Loan or with respect to the Commitment Fees payable hereunder or with respect to any Commercial Letter of Credit, as the case may be, the applicable rate per annum set forth below under the caption “Eurocurrency Spread for Eurocurrency Loans”, “ABR Spread for ABR Loans”, “BA Rate Spread”, “Canadian Base Rate Spread”, “Commitment Fee Rate” or “Commercial Letter of Credit Rate”, as the case may be, as determined by reference to the then applicable Public Debt Rating as set forth in Schedule 1.01.; provided that, during the Covenant Relief Period, the Applicable Rate with respect to any 2023 Revolving Loan or Term Loan or with respect to the Commitment Fees payable hereunder shall be the applicable rate per annum set forth below under the caption “Spread for Eurocurrency Loans”, “Spread for ABR Loans”, “BA Rate Spread”, “Canadian Base Rate Spread” or “Commitment Fee Rate”, as the case may be:
Spread for Eurocurrency Loans | Spread for ABR Loans | BA Rate Spread | Canadian Base Rate Spread | Commitment Fee Rate | ||||||||||
212.5 bps | 112.5 bps | 212.5 bps | 112.5 bps | 30.0 bps |
(ii) with respect to any 2021 Revolving Loan that is a Eurocurrency Loan, ABR Loan, BA Equivalent Loan or Canadian Base Rate Loan or with respect to the Commitment Fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Spread for Eurocurrency Loans”, “Spread for ABR Loans”, “BA Rate Spread”, “Canadian Base Rate Spread” or “Commitment Fee Rate”, as the case may be:
Spread for Eurocurrency Loans | Spread for ABR Loans | BA Rate Spread | Canadian Base Rate Spread | Commitment Fee Rate | ||||||||||
225 bps | 125 bps | 225 bps | 125 bps | 35.0 bps |
“Approved Fund” has the meaning assigned to such term in Section 9.04.
“Asset Sale” means any Disposition of property or series of related Dispositions of property pursuant to Section 6.03(b)(xvii) which yields gross proceeds to Capri Holdings or any of its Subsidiaries (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds).
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“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
“Augmenting Lender” has the meaning assigned to such term in Section 2.20.
“Available Revolving Commitment” means, at any time with respect to any Revolving Lender, the Revolving Commitment of such Revolving Lender then in effect minus the Revolving Credit Exposure of such Lender at such time; it being understood and agreed that any Lender’s Swingline Exposure shall not be deemed to be a component of the Revolving Credit Exposure for purposes of calculating the commitment fee under Section 2.12(a).
“BA Equivalent Borrowing” means a Canadian Borrowing that bears interest at a rate per annum determined by reference to the BA Rate.
“BA Equivalent Loan” means a Canadian Loan that bears interest at a rate per annum determined by reference to the BA Rate.
“BA Rate” means for the relevant Interest Period, the Canadian deposit offered rate which, in turn means on any day the sum of: (a) the annual rate of interest determined with reference to the arithmetic average of the discount rate quotations of all institutions listed in respect of the relevant interest period for Canadian Dollar-denominated bankers’ acceptances displayed and identified as such on the “Reuters Screen CDOR Page” as defined in the International Swap Dealer Association, Inc. definitions, as modified and amended from time to time, as of 10:00 a.m. Toronto local time on such day and, if such day is not a business day, then on the immediately preceding business day (as adjusted by Administrative Agent after 10:00 a.m. Toronto local time to reflect any error in the posted rate of interest or in the posted average annual rate of interest); plus (b) 0.10% per annum; provided that if such rates are not available on the Reuters Screen CDOR Page on any particular day, then the Canadian deposit offered rate component of such rate on that day shall be calculated as the cost of funds quoted by Administrative Agent to raise Canadian Dollars for the applicable interest period as of 10:00 a.m. Toronto local time on such day for commercial loans or other extensions of credit to businesses of comparable credit risk; or if such day is not a business day, then as quoted by Administrative Agent on the immediately preceding business day. If the BA Rate shall be less than zero, the BA Rate shall be deemed to be zero for purposes of this Agreement.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part 1 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).
“Banking Services” means each and any of the following bank services provided to any Loan Party or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial
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customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards, (c) merchant processing services and (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services).
“Banking Services Agreement” means any agreement entered into by any Loan Party or any Subsidiary in connection with Banking Services.
“Banking Services Obligations” means any and all obligations of a Loan Party or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Banking Services.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee, administrator, custodian, monitor, assignee for the benefit of creditors or similar Person charged with the preservation, reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of (i) any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof or (ii) an Undisclosed Administration that is not expected to impair or delay a Lender’s ability to satisfy its funding obligations hereunder, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership 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 Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of Section 3(42) of ERISA 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.”
“Bilateral Letter of Credit” means (i) any commercial documentary letter of credit issued for the account of any Loan Party or any Subsidiary, (ii) any irrevocable letter of credit issued pursuant to which the issuing institution agrees to make payments for the account of Loan Party or any Subsidiary in respect of obligations of such Person incurred pursuant to contracts made or performances undertaken or to be undertaken or like matters relating to contracts to which such Person is or proposes to become a party in furtherance of such Person’s good faith business purposes, or (iii) any bank guarantee issued for the account of any Loan Party or any Subsidiary for a purpose described in clause (i) or (ii), in the case of each of clauses (i), (ii) and (iii), that is issued by a Lender or any of its Affiliates and is listed on Schedule 1.01(b) hereto or has been designated by Capri Holdings or the Company in writing to the Administrative Agent as a “Bilateral Letter of Credit” and in an aggregate principal amount not to exceed $50,000,000 at
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any time outstanding for all Bilateral Letters of Credit. The Bilateral Letters of Credit on the Second Amendment Effective Date are identified as such in Schedule 1.01(b) hereto.
“Bilateral Letter of Credit Obligations” means any and all obligations of a Loan Party or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Bilateral Letters of Credit.
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” means (i) with respect to the 2021 Revolving Facility, the Company and Capri Holdings, (ii) with respect to the 2023 Revolving Facility, the Company, Capri Holdings or any Foreign Subsidiary Borrower, and (iii) with respect to the Term Loan Facility, Capri Holdings.
“Borrowing” means (a) Revolving Loans of the same Class and Type, made, converted or continued on the same date and, in the case of Eurocurrency Loans and BA Equivalent Loans, as to which a single Interest Period is in effect, (b) a Swingline Loan, (c) Tranche A-1 Term Loans of the same Type made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, and (d) Tranche A-2 Term Loans of the same Type made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a request by any Borrower for a Borrowing in accordance with Section 2.03 in the form attached hereto as Exhibit I-1.
“Borrowing Subsidiary Agreement” means a Borrowing Subsidiary Agreement substantially in the form of Exhibit F-1.
“Borrowing Subsidiary Termination” means a Borrowing Subsidiary Termination substantially in the form of Exhibit F-2.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, (i) when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in euro, the term “Business Day” shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in euro); and (ii) when used in connection with a Canadian Loan, the term “Business Day” shall also exclude any day on which banks are required or authorized by law to close in Toronto, Canada.
“BVI Insolvency Event” means any one or more of the following with respect to any BVI Loan Party: (a) the value of its liabilities (including its contingent and prospective liabilities) exceeds the value of its assets; (b) it fails to comply with the requirements of a statutory demand that has not been set aside under Section 157 of the Insolvency Act, 2003 of the British Virgin Islands; (c) execution or other process issued on a judgment, decree or order of a court in favour of a creditor of it is returned wholly or partly unsatisfied; (d) it has taken any action or steps have been taken or legal proceedings have been started or threatened against it for (i) its winding up, liquidation, administration, dissolution,
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amalgamation, reconstruction, reorganisation, arrangement, adjustment, consolidation or protection or relief of creditors (whether by way of voluntary arrangement, scheme of arrangement or otherwise), or (ii) the enforcement of any security interest over any or all of its assets; or (iii) the appointment of a liquidator, receiver, controller, inspector, manager, supervisor, administrative receiver, administrator, trustee or similar officer or official of it or of any or all of its assets; (e) a compromise or arrangement has been proposed, agreed to or sanctioned under any of Sections 177, 178 and 179A of the BVI Business Companies Act, 2004 of the British Virgin Islands (the “BVI Companies Act”) in respect of it, or an application has been made to, or filed with, a court for permission to convene a meeting to vote on a proposal for any such compromise or arrangement; (f) a merger or consolidation is proposed, approved, agreed to or sanctioned under any of Sections 170 to 174 (inclusive) of the BVI Companies Act in respect of it; (g) action is being taken by the Registrar of Corporate Affairs pursuant to Section 213 of the BVI Companies Act to dissolve or strike it off the British Virgin Islands register of companies; or (h) action is approved, agreed to or being taken pursuant to Section 184 of the BVI Companies Act to (without the prior consent of the Administrative Agent) continue it as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands.
“BVI Loan Party” means any Loan Party incorporated under the laws of the British Virgin Islands.
“Canadian Base Rate Borrowing” means a Canadian Borrowing that bears interest at a rate per annum determined by reference to the Canadian Prime Rate.
“Canadian Base Rate Loan” means a Canadian Loan that bears interest at a rate per annum determined by reference to the Canadian Prime Rate.
“Canadian Borrower” means (i) MK Canada Holdings and (ii) any other Borrower organized under the laws of Canada or any province or territory thereof.
“Canadian Borrowing” means a Borrowing of Canadian Loans.
“Canadian Dollar” and/or “CAD” means the lawful currency of Canada.
“Canadian Loan” means a Loan made to a Canadian Borrower denominated in Canadian Dollars.
“Canadian Payment Office” of the Administrative Agent means the office, branch, affiliate or correspondent bank of the Administrative Agent for Canadian Dollars as specified from time to time by the Administrative Agent to the Company and each Lender.
“Canadian Plans” means, all Canadian pension plans that are considered to be pension plans for the purposes of, and are required to be registered under, the ITA or any applicable pension benefits standards statute or regulation in Canada and that are established, maintained or contributed to by any Loan Party, all plans or arrangements which provide or promise health, dental, or any other welfare benefits governed by the laws of Canada, to current employees or former employees who have retired or terminated from employment with any Loan Party; the term “Canadian Plans” shall not include any multi-employer pension plans as that term is defined under applicable Canadian pension and benefits standards statute or regulation, Canadian Plans administered by an entity other than a Loan Party under a collective bargaining agreement or any statutory plans with which any Loan Party thereof is required to comply, including the Canada/Quebec Pension Plan and plans administered pursuant to applicable provincial health tax, workers’ compensation and workers’ safety and employment insurance legislation.
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“Canadian Prime Rate” means, for any day, the rate determined by the Administrative Agent to be the greater of (a) the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen (or, in the event that the PRIMCAN Index is not published by Bloomberg on such day, any other information services that publishes such index from time to time, as selected by the Administrative Agent in its reasonable discretion) at 10:15 a.m. (Toronto time) on such day (or, if such day is not a Business Day, the immediately preceding Business Day) and (b) the sum of (x) the CDOR Rate for an Interest Period of one month on such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus (y) 1.0% per annum; provided, that if any of the above rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index or the CDOR Rate shall be effective from and including the effective date of such change in the PRIMCAN Index or CDOR Rate, respectively.
“Capri Holdings” means Capri Holdings Limited (formerly Xxxxxxx Xxxx Holdings Limited; also referred to in the Loan Documents as “MK Holdings”), a British Virgin Islands company.
“Cash Equivalents” means (a) Permitted Investments and (b) all other cash equivalents approved by Administrative Agent in its sole discretion.
“CDOR Rate” means the rate quoted on the Reuters Screen “CDOR Page” (or, in the event such rate does not appear on such page or screen on such day, on any successor or substitute page or screen that displays such rate, or on the appropriate page or screen of such other information service that publishes such rate from time to time, as selected by the Administrative Agent in its reasonable discretion) at 10:15 a.m. (Toronto time) on the date of the commencement of such Interest Period.
“CFC” means a “controlled foreign corporation” within the meaning of section 957(a) of the Code.
“CFC Holding Company” means any Domestic Subsidiary substantially all of the assets of which are one or more CFCs, either directly or indirectly through other entities that are disregarded entities or partnerships for U.S. federal income tax purposes, and all such entities (i) have no material assets (excluding equity interests in each other) other than equity interests of such CFCs, (ii) do not incur, and are not otherwise liable for, any material Indebtedness (other than intercompany indebtedness permitted pursuant to Section 6.01(c)), and (iii) do not conduct any material business or activities other than the ownership of such equity interests and/or receivables and other immaterial assets and activities reasonably related or ancillary thereto.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof) of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Capri Holdings; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of Capri Holdings by Persons who were neither (i) nominated, appointed or approved for election by the board of directors of Capri Holdings nor (ii) appointed by directors so nominated, appointed or approved for election; or (c) Capri Holdings ceases to own, directly or indirectly, and Control 100% (other than directors’ qualifying shares) of the ordinary voting and economic power of any other Borrower (other than, in the case of a Foreign Subsidiary Borrower, (x) directors’ qualifying shares or (y) nominal shares issued to foreign nationals to the extent required by applicable law).
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“Change in Law” means the occurrence, after the date of this Agreement (or with respect to any Lender, if later, the date on which such Lender becomes a Lender), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided however, that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.
“Class”, means, (a) when used in reference to the Lenders, each of the following classes of Lenders: (i) Lenders having 2021 Revolving Commitments or outstanding 2021 Revolving Loans, (ii) Lenders having 2023 Revolving Commitments or outstanding 2023 Revolving Loans, (iii) Lenders having Tranche A-1 Term Loan Commitments or outstanding Tranche A-1 Term Loans, (iiiiv) Lenders having Tranche A-2 Term Loan Commitments or outstanding Tranche A-2 Term Loans and (ivv) Lenders having any other separate class of commitments or loans made pursuant to the terms of this Agreement, and (b) when used in reference to any Loan or Borrowing, each class of Loans or the Borrowing comprising such Loans being: (i) 2021 Revolving Loans, (ii) Swingline2023 Revolving Loans, (iii) Swingline Loans, (iv) Tranche A-1 Term Loans, (iv) Tranche A-2 Term Loans and (vvi) any other separate class of loans made pursuant to the terms of this Agreement.
“Co-Documentation Agent” means each of Bank of America, N.A., BNP Paribas, Citibank, N.A., ING (Ireland) DAC, Intesa Sanpaolo S.p.A., New York Branch, MUFG Bank, Ltd. and U.S. Bank National Association, in its capacity as co-documentation agent for the credit facility evidenced by this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means any and all property owned, leased or operated by a Loan Party that is subject to a security interest pursuant to the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the other Secured Parties, to secure the Secured Obligations.
“Collateral Documentation Principles” means such modifications, exceptions and adjustments to the Agreed Collateral Precedent negotiated in good faith by the Company and the Administrative Agent (in its reasonable discretion), including such modifications to reflect the provisions of Section 5.09(c) and the definition of Excluded Assets set forth herein, such modifications in light of the relative size and risk profile of the Loan Parties as of the Second Amendment Effective Date and such modifications to reflect the nature and structure of the financings made available under this Agreement as compared to the nature and structure of the financings made to the Company in connection with the Agreed Collateral Precedent; provided, that the Collateral Documents shall not require the scheduling of license agreements of Intellectual Property (other than material exclusive licenses to registered U.S. copyrights).
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“Collateral Documents” means, collectively, all agreements, instruments and documents that are intended to create, perfect or evidence Liens on Collateral to secure the Secured Obligations pursuant to Section 5.09(c), executed in connection with this Agreement by Capri Holdings or any other Loan Party and delivered to the Administrative Agent for the benefit of the Secured Parties.
“Commercial Letter of Credit” means a commercial documentary letter of credit issued pursuant to this Agreement by any Issuing Bank for the account of any Borrower for the purchase of goods in the ordinary course of business.
“Commitment Fee”, with respect to each Facility, has the meaning assigned to such term in Section 2.12(a).
“Commitments” means, with respect to each Lender, such Lender’s 2021 Revolving Commitment, 2023 Revolving Commitment, Tranche A-1 Term Loan Commitment and Tranche A-2 Term Loan Commitment.
“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.
“Communications” has the meaning assigned to such term in Section 9.01(d).
“Company” means Xxxxxxx Xxxx (USA), Inc., a Delaware corporation.
“Computation Date” is defined in Section 2.04.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDAR” means, with respect to Capri Holdings and its Subsidiaries on a consolidated basis for any period, Consolidated Net Income for such period, plus
(a) without duplication and to the extent deducted from revenues in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) Consolidated Interest Expense,
(ii) provision for taxes based on income, profits or capital, including federal, state, local and foreign franchise, excise and similar taxes paid or accrued (including withholding tax payments) during such period (including in respect of repatriated funds),
(iii) depreciation and amortization (including amortization of deferred financing fees or costs),
(iv) other non-cash losses, charges or expenses, including impairment of long-lived assets,
(v) Consolidated Lease Expense,
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(vi) non-recurring Transaction Costs related to the Transactions; and
(vii) expenses, costs and charges related to business optimization (including consolidation initiatives), relocation or integration (including integration and transition costs related to acquisitions), and store renovation costs, and store closure and other restructuring and impairment costs (including recruiting costs, employee severance, contract termination and management and employee transition costs), provided that the amount of expenses, costs and charges added back pursuant to this clause (vi) shall not exceed a cumulative aggregate of $400,000,000 for all Test Periods;
minus
(b) without duplication and to the extent included in arriving at such Consolidated Net Income, the sum of the following amounts for such period:
(i) interest income,
(ii) non-cash gains,
(iii) tax credits for any of the taxes of a type described in clause (a)(ii) above (to the extent not netted from the tax expense described in such clause (a)(ii)),
(iv) any cash payments made during such period in respect of non-cash items described in clause (a)(iv) above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were incurred,
in each case, as determined on a consolidated basis for Capri Holdings and its Subsidiaries in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to Capri Holdings and its Subsidiaries for any period, the total interest expense of Capri Holdings and its Subsidiaries during such period determined on a consolidated basis, in accordance with GAAP, and shall in any event include interest on any Finance Lease Obligation which shall be deemed to accrue at an interest rate reasonably determined by Capri Holdings to be the rate of interest implicit in such Finance Lease Obligation in accordance with GAAP. For purposes of the foregoing, gross interest expense shall be determined after giving effect to any net payments made or received and costs incurred by Capri Holdings and the Subsidiaries with respect to Swap Agreements in respect of interest rates.
“Consolidated Lease Expense” means, for any period, the aggregate amount of straight-line fixed lease costs and variable lease costs, reduced by any sublease income, of Capri Holdings and its Subsidiaries for such period with respect to Operating Leases of real and personal property, determined on a consolidated basis in accordance with GAAP; provided that any amounts payable in respect of Finance Lease Obligations shall not constitute Consolidated Lease Expense.
“Consolidated Net Income” means for any period, the consolidated net income (or loss) of Capri Holdings and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary of Capri Holdings or is merged into or amalgamated or consolidated with Capri
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Holdings or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary of Capri Holdings) in which Capri Holdings or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by Capri Holdings or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of Capri Holdings to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.
“Consolidated Net Worth” means as of any date of determination thereof, the excess of (a) the aggregate consolidated net book value of the assets of Capri Holdings and its Subsidiaries after all appropriate adjustments in accordance with GAAP (including, without limitation, reserves for doubtful receivables, obsolescence, depreciation and amortization) over (b) all of the aggregate liabilities of Capri Holdings and its Subsidiaries, including all items which, in accordance with GAAP, would be included on the liability side of the balance sheet (other than Equity Interests, treasury stock, capital surplus and retained earnings), in each case determined on a consolidated basis (after eliminating all inter-company items) in accordance with GAAP; provided, however, that in calculating Consolidated Net Worth the effects of the Statement of Financial Accounting Standards No. 142 (or the corresponding Accounting Standards Codification Topic, as applicable) shall be disregarded.
“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of Capri Holdings and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
“Consolidated Total Indebtedness” means at any time, the aggregate principal amount of outstanding Indebtedness (excluding (i) Indebtedness in respect of contingent obligations described in clauses (h) and (i) of the definition of Indebtedness, (ii) Indebtedness described in clause (j) of the definition of Indebtedness, and (iii) Indebtedness described in clause (e) or (f) of the definition of Indebtedness with respect to Indebtedness of others described in clause (i) or (ii) above and (iv) Indebtedness in respect of Supply Chain Financings in an aggregate principal amount not to exceed $150,000,000) of Capri Holdings and its Subsidiaries calculated on a consolidated basis as of such time in accordance with GAAP.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Affiliate” means, with respect to any Loan Party or any of its respective Subsidiaries, any of their respective Affiliates of over which any of the foregoing exercises management control.
“Convertible Debt Security” means any debt security the terms of which provide for the conversion or exchange thereof into Equity Interests, cash or a combination of Equity Interests and cash.
“Covenant Relief Period” means the period commencing on the Second Amendment Effective Date through (but not including) the Covenant Relief Period Termination Date.
“Covenant Relief Period Termination Certificate” means a certificate of a Financial Officer of Capri Holdings (i) stating that such certificate is a Covenant Relief Period Termination Certificate and (ii) certifying that the Net Leverage Ratio as of the last day of the fiscal period for which
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Financials are being delivered concurrently pursuant to Section 5.01(a) or (b) is less than or equal to 4.00 to 1.00 and setting forth reasonably detailed calculations demonstrating such compliance.
“Covenant Relief Period Termination Date” means the earlier of (x) the date of delivery of the certificate pursuant to Section 5.01(c) for the fiscal quarter ending June 26, 2021 and (y) the date on which Capri Holdings delivers to the Administrative Agent (for distribution to the Lenders) a Covenant Relief Period Termination Certificate; provided that Capri Holdings may only deliver a Covenant Relief Period Termination Certificate concurrently with the delivery of Financials pursuant to Section 5.01(a) or (b); provided, further, that Capri Holdings may only deliver a Covenant Relief Period Termination Certificate once, on which date the Covenant Relief Period will terminate permanently for all purposes of this Agreement and the other Loan Documents.
“Covered Entity” means any of the following:
(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning assigned to such term in Section 9.20.
“Credit Event” means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Credit Party” means the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender.
“CRR” means the Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Rights” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable
“Defaulting Lender” means any Lender that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is
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based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event, or (e) has become the subject of a Bail-in Action.
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by Capri Holdings or a Subsidiary in connection with a Disposition pursuant to Section 6.03(b)(xviii) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Financial Officer or other executive officer of Capri Holdings, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).
“Disposition” means with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (whether effected pursuant to a Division or otherwise). The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Dividing Person” has the meaning assigned to such term in the definition of “Division”.
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed a Division Successor upon the occurrence of such Division.
“Dollar Amount” of any currency at any date means (i) the amount of such currency if such currency is Dollars or (ii) the equivalent amount thereof in Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in Section 2.04.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiary” means a Subsidiary of Capri Holdings organized under the laws of a jurisdiction located in the United States of America.
“Dutch Borrower” means (i) MKE and (ii) any other Foreign Subsidiary Borrower that is organized under the laws of the Netherlands.
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“Dutch Non-Public Lender” means: (i) until the publication of an interpretation of “public” as referred to in the CRR by the competent authority or authorities: an entity which (x) assumes existing rights and/or obligations vis-à-vis a Dutch Borrower, the value of which is at least EUR 100,000 (or its equivalent in another currency), (y) provides repayable funds for an initial amount of at least EUR 100,000 (or its equivalent in another currency) or (z) otherwise qualifies as not forming part of the public; and (ii) as soon as the interpretation of the term “public” as referred to in the CRR has been published by the relevant authority or authorities: an entity which is not considered to form part of the public on the basis of such interpretation.
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank and any of their respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.
“Eligible Foreign Subsidiary” means (i) any Foreign Subsidiary organized or incorporated under the laws of the British Virgin Islands, Canada or any province or territory thereof, the Netherlands or Switzerland and (ii) any other Foreign Subsidiary that is approved from time to time by the Administrative Agent and each of the Lenders in their reasonable discretion.
“End Date” means the first to occur of (i) the termination of the Target Acquisition Agreement pursuant to its terms, (ii) the consummation of all components of the Target Acquisition without the use of the Term Loan Facility, (iii) the abandonment of the Target Acquisition Agreement, and (iv) June 5, 2019 if the Borrowing of the Term Loans has not occurred on or before such date.
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“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders or decrees issued, promulgated or entered into by any Governmental Authority, and any judgments, injunctions, or binding agreements entered against or into by the Company or any of its Subsidiaries, relating in any way to the protection of the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Subsidiary resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing. Notwithstanding the foregoing, Convertible Debt Securities and Permitted Call Spread Swap Agreements shall not constitute Equity Interests.
“Equivalent Amount” of any currency with respect to any amount of Dollars at any date means the equivalent in such currency of such amount of Dollars, calculated on the basis of the Exchange Rate for such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be determined.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with a Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or is under common control with a Loan Party under Section 4001(a)(14) of ERISA, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any Reportable Event; (b) a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (c) the failure of any Loan Party or any ERISA Affiliate to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure by any Plan to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Plan; (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability on any Loan Party or any ERISA Affiliate or the incurrence by any Loan Party or any of its ERISA Affiliates of any liability with respect to the complete withdrawal or
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partial withdrawal from any Plan (within the meaning of Section 4063 of ERISA) or Withdrawal Liability from any Multiemployer Plan; (h) the receipt by any Loan Party or any ERISA Affiliate of any determination that a Multiemployer Plan is, or is expected to be, Insolvent, terminated (within the meaning of Section 4041A of ERISA), or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); or (i) any Foreign Plan Event.
“Escrow Account” means the escrow account or accounts established with the Escrow Agent pursuant to the Escrow Agreement.
“Escrow Account Funds” means all cash, securities and other property held or credited to the Escrow Account.
“Escrow Agent” means JPMorgan Chase Bank, N.A., acting through its London branch or such other financial institution reasonable acceptable to the Administrative Agent and the Company.
“Escrow Agreement” means the Escrow Agreement to be executed on or prior to the Escrow Funding Date among Capri Holdings, the Administrative Agent, the Escrow Agent and such other parties party thereto, substantially in the form of Exhibit K or in such other form that is reasonably acceptable to the Administrative Agent and the Company.
“Escrow End Date” has the meaning assigned to such term in Section 2.11(b)(iii) hereof.
“Escrow Funding Date” means the date on which the conditions specified in Section 4.03 are satisfied (or waived in accordance with Section 9.02).
“Escrow Funding Election” has the meaning assigned to such term in Section 2.07(a).
“Escrow Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(iii) hereof.
“Escrow Prepayment Date” means a date selected by Capri Holdings that is no more than three (3) Business Days after the Escrow End Date.
“Escrow Proceeds Recipient” means MK Malta or such other Subsidiary of Capri Holdings that, upon satisfaction of the Escrow Release Conditions, shall receive the Escrow Account Funds pursuant to the Escrow Agreement and shall apply (or cause to be applied) such proceeds to the payment of the cash consideration of the Target Acquisition and the Transaction Costs.
“Escrow Release Conditions” means, collectively, the conditions set forth in Section 4.04 hereof for the release of the Escrow Account Funds.
“Establishment” means, in respect of any Person, any place of operations where such Person carries out a non-transitory economic activity with human means and goods, assets or services.
“euro” and/or “EUR” means the single currency of the Participating Member States.
“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.
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“Eurocurrency”, when used in reference to a currency means an Agreed Currency (other than Canadian Dollars) and when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
“Eurocurrency Payment Office” of the Administrative Agent means, for each Foreign Currency (other than Canadian Dollars), the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Lender.
“Event of Default” has the meaning assigned to such term in Article VII.
“Excess Cash” means, at any time, the amount by which the aggregate amount of cash and Cash Equivalents held or owned by Capri Holdings and its Subsidiaries (including any Dollar Amount of amounts denominated in a Foreign Currency) at such time exceeds $200,000,000.
“Exchange Rate” means, on any day, for purposes of determining the Dollar Amount or the Equivalent Amount of any currency, the equivalent of such amount in Dollars or any Foreign Currency, as applicable, determined by using the rate of exchange for the purchase of Dollars or such Foreign Currency, as applicable, with such currency in the London foreign exchange market at or about 11:00 a.m. London time (or New York time, as applicable) on a particular day as displayed by ICE Data Services as the “ask price”, or as displayed on such other information service which publishes that rate of exchange from time to time in place of ICE Data Services (or if such service ceases to be available, the equivalent of such amount in Dollars or such Foreign Currency, as applicable, as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion).
“Excluded Assets” means, collectively (a) any property to the extent that a grant of a security interest therein (i) is prohibited by any applicable law, rule or regulation or determination of any Governmental Authority binding upon any Grantor or its properties, (ii) requires the consent of any Governmental Authority not obtained, (iii) is prohibited by, or constitutes a breach or default under, or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or governing such property or, in the case of any investment property or other equity interest, any applicable shareholder or similar agreement (to the extent such contract, license, agreement, instrument, or other document, or shareholder or similar agreement, is otherwise permitted under, or not prohibited by, this Agreement), except to the extent that such law, rule or regulation or determination, or the term in such contract, license, agreement, instrument or other documents, or shareholder or similar agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable law or (iv) would require Capri Holdings or its Subsidiaries to grant a security interest to secure on an equal and ratably basis the Senior Notes, (b) any voting stock or similar equity interest of any Subsidiary of Capri Holdings that is a CFC or CFC Holding Company in excess of 65% of the total outstanding voting stock or other similar equity interest of such Subsidiary, (c) any owned real property or any leasehold interest in real property, (d) motor vehicles and other assets subject to certificates of title, letter of credit rights and commercial tort claims with a value of less than $10,000,000 (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing a Uniform Commercial Code financing statement), (e) any asset that is subject to a Lien permitted under clause (b), (c), (f), (g)(ii), (i), (k), (l), (n) or (t) (in respect of any extension, renewal, refinancing or replacement of any Lien permitted under any of the foregoing clauses) of Section 6.02 or described in clause (c) or (d) of the definition of “Permitted Encumbrances”, in each case, if the contract or other agreement providing for such Lien or obligations secured thereby prohibits or
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requires the consent of any Person (other than any Loan Party or any Subsidiary) as a condition or the creation of any other security interest on such asset (except to the extent that such prohibition or other applicable provision is ineffective under applicable law) and only for so long as such prohibition or requirement remains effective, (f) any deposit account used only for payroll, benefits, withholding tax, customs or other fiduciary purposes, (g) any Third Party Funds or (h) any property in respect of which Capri Holdings and the Administrative Agent reasonably agree that the burdens or costs of obtaining security interests in such assets or the perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby.
“Excluded Supply Chain Financing Agreement” has the meaning assigned to such term in the definition of “Supply Chain Financing.”
“Excluded Swap Obligation” means, with respect to any Loan Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or the grant of such security interest becomes effective with respect to such Specified Swap Obligation. If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, (i) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Commitment pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Loan, Letter of Credit or Commitment (other than pursuant to an assignment request by the Company under Section 2.19(b)) or (B) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan, Letter of Credit or Commitment or to such Lender immediately before it changed its lending office, (ii) Swiss Withholding Taxes to the extent a payment of interest is increased pursuant to Section 2.13(f) and (iii) Excluded UK Withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in a Loan, Letter of Credit or Commitment, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f) and (d) any withholding Taxes imposed under FATCA.
“Excluded UK Withholding Taxes” means UK withholding Taxes imposed on amounts payable to or for the account of a Recipient with respect to an applicable interest in a Loan, Letter of Credit or Commitment, if on the date on which payment of the amount falls due:
(a) the payment could have been made to the relevant Recipient without any deduction for UK withholding Taxes if the Recipient had been a Qualifying Recipient, but on that date that Recipient is not or has ceased to be a Qualifying Recipient other than
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as a result of any change after the date it became a Recipient under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
(b) the relevant Recipient is a Qualifying Recipient solely by virtue of paragraph (a)(ii) of the definition of “Qualifying Recipient” and:
(i) an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the Income Tax Xxx 0000 which relates to the payment and that Recipient has received from the person making the payment or from another UK Loan Party a certified copy of that Direction; and
(ii) the payment could have been made to the Recipient without any deduction for UK withholding Taxes if that Direction had not been made; or
(c) the relevant Recipient is a Qualifying Recipient solely by virtue of paragraph (a)(ii) of the definition of “Qualifying Recipient” and:
(i) the relevant Recipient has not given notice to the Administrative Agent under Section 2.17(f)(iii) that it is a Qualifying Recipient; and
(ii) the payment could have been made to the Recipient without any deduction for UK withholding Taxes if the Recipient had given such notice, on the basis that the notice would have enabled the payer to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the Income Tax Xxx 0000; or
(d) the relevant Recipient is a Treaty Recipient and the person making the payment is able to demonstrate that the payment could have been made to the Recipient without any deduction for UK withholding Taxes had that Recipient complied with its obligations under Section 2.17(f)(iii).
“Existing Credit Agreement” is defined in the recitals hereto.
“Existing Letters of Credit” means the Letters of Credit heretofore issued pursuant to the Existing Credit Agreement and described on Schedule 2.06.
“Existing Maturity Date” has the meaning assigned to such term in Section 2.27.
“Existing Revolving Loans” shall have the meaning assigned to such term in Section 2.01(a).
“Extended Letter of Credit” has the meaning assigned to such term in Section 2.06(c).
“Extending Lender” has the meaning assigned to such term in Section 2.27.
“Extension Date” has the meaning assigned to such term in Section 2.27.
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“Facility” means the 2021 Revolving Facility, 2023 Revolving Facility, the Tranche A-1 Term Loan Facility or the Tranche A-2 Term Loan Facility, as applicable.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Finance Lease” means any lease of property classified as a “finance lease” on both the balance sheet and income statement for financial reporting purposes under GAAP, but excluding, for the avoidance of doubt, any Operating Leases or any other non-finance leases.
“Finance Lease Obligation” of any Person means an obligation that is required to accounted for as a Finance Lease (and not an Operating Lease) on both the balance sheet and income statement of such Person for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a Finance Lease would be the amount required to be reflected as a liability on such balance sheet in accordance with GAAP.
“Financial Officer” means the chief executive officer, president or chief financial officer of Capri Holdings.
“Financials” means the annual or quarterly financial statements, and accompanying certificates and other documents, of Capri Holdings and its Subsidiaries required to be delivered pursuant to Section 5.01(a) or 5.01(b).
“First Amendment” means the First Amendment to this Agreement, dated as of March 20, 2020, among the Borrowers, the Guarantors from time to time party thereto, the Administrative Agent, the Lenders party thereto and the other parties party thereto.
“First Amendment Effective Date” is defined in the First Amendment.
“Fitch” means Fitch, Inc.
“Foreign Currencies” means Agreed Currencies other than Dollars.
“Foreign Currency LC Exposure” means, at any time, the sum of (a) the Dollar Amount of the aggregate undrawn and unexpired amount of all outstanding Foreign Currency Letters of Credit at such time plus (b) the aggregate principal Dollar Amount of all LC Disbursements in respect of Foreign Currency Letters of Credit that have not yet been reimbursed at such time.
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“Foreign Currency Letter of Credit” means a Letter of Credit denominated in a Foreign Currency.
“Foreign Kors Person” has the meaning assigned to such term in Section 9.09.
“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“Foreign Plan” means any employee pension benefit plan (within the meaning of Section 3(2) of ERISA, whether or not subject to ERISA) that is not subject to United States or Canadian law, and any Canadian Plan, that is maintained or contributed to by any Loan Party or any ERISA Affiliate.
“Foreign Plan Event” means (a) with respect to any Foreign Plan, (i) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan, (ii) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered, or (iii) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan, or (b) a final determination that any Loan Party is responsible for a deficit or funding shortfall in a multi-employer pension plan as that term is defined under applicable Canadian pension and benefits standards statute or regulation or other Canadian Plan administered by an entity other than a Loan Party under a collective bargaining agreement.
“Foreign Subsidiary” means any Subsidiary of Capri Holdings which is not a Domestic Subsidiary.
“Foreign Subsidiary Borrower” means (a) from and after the Effective Date, each of MK Canada Holdings, MKE and MK Switzerland (collectively, the “Initial Foreign Subsidiary Borrowers”), so long as no such Subsidiary has ceased to be a Foreign Subsidiary Borrower pursuant to Section 2.23, and (b) any other Eligible Foreign Subsidiary that becomes a Foreign Subsidiary Borrower pursuant to Section 2.23, and that has not ceased to be a Foreign Subsidiary Borrower pursuant to such Section.
“Foreign Swingline Loan” means a Loan made to Capri Holdings or MK Switzerland in an Agreed Currency (other than Canadian Dollars) bearing interest at the Overnight Foreign Currency Rate pursuant to Section 2.05.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Grantor” has the meaning assigned to such term in Section 5.09(c).
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“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. For purposes of all calculations provided for in this Agreement, the amount of any Guarantee of any guarantor shall be deemed to be the lower of (x) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (y) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by Capri Holdings in good faith.
“Guarantor” means Capri Holdings and each Material Subsidiary that is a party to the Guaranty. The Guarantors on the Effective Date are identified as such in Schedule 3.01 hereto.
“Guaranty” means (a) that certain Third Amended and Restated Guarantee Agreement dated as of the Effective Date in the form of Exhibit G (including any and all supplements thereto) and executed by each Guarantor party thereto, and (b) in the case of any Guarantor that is a Foreign Subsidiary, any other guaranty agreement executed by such Foreign Subsidiary pursuant to clause (1)(y) of Section 5.09(a).
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“HMRC” means Her Majesty’s Revenue and Customs.
“IBA” has the meaning assigned to such term in Section 1.08.
“Impacted Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.
“Increasing Lender” has the meaning assigned to such term in Section 2.20.
“Incremental Term Loan” has the meaning assigned to such term in Section 2.20.
“Incremental Term Loan Amendment” has the meaning assigned to such term in Section 2.20.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or
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similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business and any earnout obligations or similar deferred or contingent purchase price obligations not overdue, which are being contested in good faith or which do not appear as a liability on a balance sheet of such Person incurred in connection with any Acquisition), (e) all Indebtedness of others secured by any Lien on property owned or acquired by such Person (to the extent of such Person’s interest in such property), whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Finance Lease Obligations of such Person, (h) the principal component of all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (j) all net payment and performance obligations of such Person under Swap Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For purposes of all calculations provided for in this Agreement, there shall be disregarded any Guarantee of any Person in respect of any Indebtedness of any other Person with which the accounts of such first Person are then required to be consolidated in accordance with GAAP. For the avoidance of doubt, any amounts available and not drawn under the Commitments shall be deemed not to be Indebtedness and “Indebtedness” shall not include the obligations of any Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations would be required to be classified and accounted for as an operating lease under GAAP as in effect on the Effective Date. The amount of any net obligation under any Swap Agreement on any date shall be the Swap Termination Value as of such date. Notwithstanding the foregoing and for the avoidance of doubt, obligations arising from any Permitted Call Spread Swap Agreement shall not be considered Indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a) hereof, Other Taxes.
“Indicative Ratings” has the meaning assigned to such term in the definition of “Public Debt Rating”.
“Ineligible Institution” has the meaning assigned to such term in Section 9.04(b).
“Initial Confirmed Public Debt Ratings” means the initial Public Debt Rating publicly announced or issued by S&P, Xxxxx’x and Fitch, as the case may be, after the Effective Date, in each case giving effect to the Target Acquisition.
“Initial Foreign Subsidiary Borrower” has the meaning assigned to such term in the definition of “Foreign Subsidiary Borrower.”
“Insolvent” means, with respect to any Multiemployer Plan, the condition that such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property” has the meaning assigned to such term in the definition of “Intellectual Property Collateral.”
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“Intellectual Property Collateral” means personal property of a Loan Party of the following type, to the extent constituting Collateral pursuant to the Collateral Documents:
(a) all intellectual property, including all patents, trademarks, copyrights and domain names and any other industrial or intellectual property, together with all registrations and applications for any of the foregoing in the United States Patent and Trademark Office, United States Copyright Office or in any other office or with any other official anywhere in the world or which are used in the United States or any state, territory or possession thereof, or in any other place, nation or jurisdiction anywhere in the world, and (i) all renewals, extensions, reissues, reexaminations, divisionals, continuations and continuations-in-part thereof, (ii) all income, royalties, license fees, damages and payments now and hereafter due and/or payable with respect thereto, including, without limitation, payments under all licenses entered into in connection therewith and damages and payments for past or future infringements thereof, (iii) the right to xxx for past, present and future infringements, dilution, misappropriation, or other violation or impairment thereof, including the right to receive all proceeds thereof, and (iv) all rights corresponding thereto throughout the world; provided, however, that the Intellectual Property Collateral shall not include any “intent-to-use” based application for a trademark or service xxxx until such time that a statement of use has been filed with the United States Patent and Trademark Office for such application (all of the foregoing, collectively, “Intellectual Property”);
(b) license agreements with any other party related to any Intellectual Property, whether the applicable Loan Party is a licensor or licensee under any such license agreement, and the right to prepare for sale, sell and advertise for sale, all of the inventory now or hereafter owned by any Loan Party and now or hereafter covered by such license agreements; and
(c) All rights, remedies, powers and/or privileges of any Loan Party with respect to any of the foregoing, and any and all proceeds and products of the foregoing, including all money, accounts, general intangibles, documents, instruments, letter-of-credit rights, investment property, chattel paper, goods, insurance proceeds and any other tangible or intangible property received upon the sale or disposition of any of the foregoing.
“Interest Election Request” means a request by the applicable Borrower to convert or continue a 2021 Revolving Borrowing, a 2023 Revolving Borrowing, a Tranche A-1 Term Loan Borrowing or a Tranche A-2 Term Loan Borrowing in accordance with Section 2.08 substantially in the form attached hereto as Exhibit I-2.
“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan denominated in Dollars) or Canadian Base Rate Loan, the last day of each March, June, September and December and the Maturity Date, (b) with respect to any Eurocurrency Loan or BA Equivalent Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or a BA Equivalent Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and the Maturity Date and (c) with respect to any Swingline Loan, the last day of each month and the Maturity Date.
“Interest Period” means with respect to any Eurocurrency Borrowing or BA Equivalent Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter (or for a period of 28 to 182 days inclusive in the case of a BA Equivalent Borrowing), as the applicable Borrower (or the Company on behalf of the applicable Borrower) may elect; provided, that (i) if any Interest Period would
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end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Borrowing or a BA Equivalent Borrowing, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Borrowing or a BA Equivalent Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBOR Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which the LIBOR Screen Rate is available for the applicable currency) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is available for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time.
“Investment” has the meaning assigned to such term in Section 6.04.
“Investment Grade Rating” means (a) as to S&P, a Public Debt Rating of BBB- or better (with stable outlook or better), (b) as to Xxxxx’x, a Public Debt Rating of Baa3 or better (with stable outlook or better) and (c) as to Fitch, a Public Debt Rating of BBB- or better (with stable outlook or better).
“Investment Grade Ratings Requirement” means the requirement that the Public Debt Ratings from at least two of S&P, Xxxxx’x and Fitch shall be Investment Grade Ratings for at least two consecutive full fiscal quarters.
“IP Subsidiary” means any Loan Party incorporated in the United States, Italy, Switzerland or the United Kingdom that owns registered Intellectual Property.
“IRS” means the United States Internal Revenue Service.
“Issuing Bank” means JPMorgan Chase Bank, N.A., Barclays Bank PLC and each other Lender designated by the Company as an “Issuing Bank” hereunder that has agreed to such designation (and is reasonably acceptable to the Administrative Agent), each in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.06(i). Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. Notwithstanding anything herein to the contrary, neither Barclays Bank PLC nor any of its branches or Affiliates shall be required to issue any Commercial Letter of Credit hereunder.
“ITA” means the Income Tax Act (Canada), as amended, and any regulations promulgated thereunder.
“Italian Civil Code” means the Italian civil code enacted by Italian Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
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“Italian Insolvency Law” means the Italian Royal Decree No. 267 of 16 March 1942, as subsequently amended and supplemented.
“Japanese Yen” means the lawful currency of Japan.
“Joinder Agreement” has the meaning assigned to such term in Section 2.27(b).
“Joinder Effectiveness Date” has the meaning assigned to such term in Section 2.27(b).
“LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).
“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the applicable Borrower at such time. The LC Exposure of any 2023 Revolving Lender at any time shall be its 2023 Applicable Percentage of the total LC Exposure at such time.
“Lead Arranger” means each of JPMorgan Chase Bank, N.A., Barclays Bank PLC, BNP Paribas, Citibank, N.A., ING (Ireland) DAC, Intesa Sanpaolo S.p.A., New York Branch, Merrill 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), MUFG Bank, Ltd. and U.S. Bank National Association, in its capacity as a joint lead arranger for the credit facility evidenced by this Agreement.
“Lender Notice Date” has the meaning assigned to such term in Section 2.27.
“Lenders” means the Revolving Lenders and Term Loan Lenders.
“Letter of Credit” means any Commercial Letter of Credit or Standby Letter of Credit, including the Existing Letters of Credit.
“Letter of Credit Commitment” means, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder. The initial amount of each Issuing Bank’s Letter of Credit Commitment is set forth on Schedule 2.02, or if an Issuing Bank has entered into an Assignment and Assumption, the amount set forth for such Issuing Bank as its Letter of Credit Commitment in the Register maintained by the Administrative Agent. Each Issuing Bank’s Letter of Credit Commitment may be decreased or increased from time to time with the written consent of the Company, the Administrative Agent and the Issuing Banks; provided that any increase in the Letter of Credit Commitment with respect to any Issuing Bank, or any decrease in the Letter of Credit Commitment with respect to any Issuing Bank to an amount not less than such Issuing Bank’s Letter of Credit Commitment as of the Effective Date or such other date of its initial Letter of Credit Commitment, shall only require the consent of the Company and such Issuing Bank.
“Leverage Ratio” means the ratio of (i) Consolidated Total Indebtedness as of the last day of the Test Period ending on the last day of any fiscal quarter plus the capitalized amount of all Operating Lease Obligations as of the last day of such Test Period to (ii) Consolidated EBITDAR for such Test
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Period, all calculated for Capri Holdings and its Subsidiaries on a consolidated basis. In the event that Capri Holdings or any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant Test Period, the Leverage Ratio shall be determined for such period on a Pro Forma Basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such Test Period.
“LIBO Rate” means, with respect to any Eurocurrency Borrowing denominated in any Agreed Currency (other than Canadian Dollars) and for any applicable Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Agreed Currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion (in each case the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, on the Quotation Day for such Agreed Currency and Interest Period; provided that, if the applicable LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement; provided, further, that if a LIBOR Screen Rate shall not be available at such time for such Interest Period (the “Impacted Interest Period”) with respect to such Agreed Currency, then the LIBOR Screen Rate for such Agreed Currency and such Interest Period shall be the Interpolated Rate at such time; provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. It is understood and agreed that all of the terms and conditions of this definition of “LIBO Rate” shall be subject to Section 2.14
“LIBOR Screen Rate” has the meaning assigned to such term in the definition of “LIBO Rate”.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement or title retention agreement (or any Finance Lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Limited Condition Acquisition” means an Acquisition or other Investment permitted hereunder the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“Limited Condition Revolving Loans” means 2023 Revolving Loans in an amount up to $500,000,000 made to finance in part the Target Acquisition and the other Target Acquisition Costs, which shall be subject only to the conditions set forth in Section 4.03.
“Liquidity” means, at any time, (i) unrestricted cash and Cash Equivalents of Capri Holdings and its Subsidiaries at such time plus (ii) the amount of undrawn Revolving Commitments at such time.
“LLC” means any Person that is a limited liability company under the laws of its jurisdiction of formation.
“Loan Documents” means this Agreement, each Borrowing Subsidiary Agreement, each Borrowing Subsidiary Termination, the Guaranty, the Escrow Agreement, anythe Collateral Documents
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(if any), any promissory notes issued pursuant to Section 2.10(f), any agreements between the Company and an Issuing Bank regarding the Issuing Bank’s Letter of Credit Commitment and any Letter of Credit applications now or hereafter executed by or on behalf of any Loan Party and delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Loan Parties” means, collectively, the Borrowers and the Guarantors.
“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.
“Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in Dollars, (ii) Toronto, Canada time in the case of a Canadian Borrowing and related Loans and (iii) local time in the case of a Loan, Borrowing or LC Disbursement (other than a Canadian Borrowing) denominated in a Foreign Currency (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).
“Main Acquisition Agreement” means the Stock Purchase Agreement (Major Sellers) dated as of September 24, 2018 by and among the Company, Allegra Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Borgo Luxembourg S.Á.X.X, Blackstone GPV Capital Partners (Mauritius) VI-D FDI LTD. and Blackstone GPV Tactical Partners (Mauritius) – N LTD.
“Majority Facility Lenders” means (i) with respect to the 2021 Revolving Facility, the Required 2021 Revolving Lenders, and (ii) with respect to the 2023 Revolving Facility, the Required 2023 Revolving Lenders and (iii) with respect to the Term Loan Facility, the Required Term Loan Lenders.
“Material Acquisition” means (i) any Acquisition that involves the payment of consideration by Capri Holdings and its Subsidiaries in excess of $20,000,000 and (ii) the Target Acquisition.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, property or financial condition of Capri Holdings and its Subsidiaries taken as a whole or (b) the rights and remedies, taken as a whole, of the Administrative Agent and the Lenders under the Loan Documents.
“Material Disposition” means any Disposition, or a series of related Dispositions, of (a) all or substantially all of the issued and outstanding Equity Interests in any Person or (b) assets comprising all or substantially all of the assets of any Person or a business unit of any Person, in each case in excess of $20,000,000.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), of any one or more of the Company and its Subsidiaries in an aggregate principal amount exceeding $50,000,000.
“Material Subsidiary” means (a) each Subsidiary that is a Borrower and (b) each other Subsidiary (i) which, as of the last day of the most recent Test Period ending with the fiscal period for
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which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)), contributed (or, in connection with a newly acquired Subsidiary pursuant to a Material Acquisition, represents on a Pro Forma Basis) greater than five percent (5%) of Consolidated EBITDAR for such Test Period or (ii) which contributed (or, in connection with a newly acquired Subsidiary pursuant to a Material Acquisition, represents on a Pro Forma Basis) greater than five percent (5%) of Consolidated Total Assets (after eliminating intercompany obligations) as of such date; provided that, if at any time the aggregate amount of Consolidated EBITDAR or Consolidated Total Assets attributable to all Subsidiaries that are not Material Subsidiaries exceeds (or, in connection with a newly acquired Subsidiary pursuant to a Material Acquisition, represents on a Pro Forma Basis) twenty percent (20%) of Consolidated EBITDAR for any such Test Period or twenty percent (20%) of Consolidated Total Assets (after eliminating intercompany obligations) as of such date, Capri Holdings shall, within ten (10) days after the delivery of the applicable compliance certificate pursuant to Section 5.01(c), designate sufficient Subsidiaries as “Material Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Subsidiaries. The failure of Capri Holdings to designate sufficient Subsidiaries as “Material Subsidiaries” in accordance with the sentence above shall constitute an Event of Default under clause (e) of Article VII (subject to the grace periods specified therein).
“Maturity Date” means (a) in the case of the 2021 Revolving Facility, the date that is 364 days after the Second Amendment Effective Date, (b) in the case of the 2023 Revolving Facility, November 15, 2023, (bc) in the case of the Tranche A-1 Term Loan Facility, the date that is the second anniversary of the Term Loan Borrowing Date and (cd) in the case of the Tranche A-2 Term Loan Facility, the date that is the fifth anniversary of the Term Loan Borrowing Date or in each case, if such date is not a Business Day, the Business Day immediately preceding such date, and in each case as extended (in the case of each Lender consenting thereto) pursuant to Section 2.27.
“MIP Acquisition Agreement” means the Stock Purchase Agreement (MIP Beneficiaries) dated September 24, 2018 by and among the Company, Xxxxxxxx Xxxx Xxxxxxx, the individuals listed in Exhibit (A) therein, Cordusio Fiduciaria S.p.A. (acting in its own name solely to undertake certain obligations thereunder), Allegra Xxxx Xxxxxxx Xxxx, Xxxxxxxxx Xxxxxxx and Xxxxx Xxxxxxx.
“MK Canada Holdings” means Xxxxxxx Xxxx (Canada) Holdings Ltd., a company limited by shares incorporated under the laws of the Province of Nova Scotia.
“MK Malta” means Capri Finance Malta Ltd, a Maltese private limited liability company.
“MK Switzerland” means Xxxxxxx Xxxx (Switzerland) GmbH, a company organized under the laws of Switzerland.
“MKE” means Xxxxxxx Xxxx (Europe) B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, its registered office at Xxxx Xxxxxxxxxxx 0, 0000 XX Xxxxx, xxx Xxxxxxxxxxx and registered with the trade register of the Chamber of Commerce (handelsregister van de Kamer van Koophandel) under number 34301064.
“MK Malta” means Capri Finance Malta Ltd, a Maltese private limited liability company.
“MK Switzerland” means Xxxxxxx Xxxx (Switzerland) GmbH, a company organized under the laws of Switzerland.
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“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute.
“Net Cash Proceeds” means, (a) with respect to any claim made under Section 15 of the Main Acquisition Agreement as a result of a breach of the representation set forth in Section 11.15(i) of the Main Acquisition Agreement, 100% of the cash proceeds actually received by Capri Holdings or any Subsidiary in respect of such claim (including any cash payments received by way of deferred payment of such claim pursuant to a note or installment receivable), net of (without duplication) (i) attorneys’ fees and expenses and other customary expenses incurred in connection with the making or pursuit of such claim, (ii) Taxes paid or payable (in the good faith determination of Capri Holdings) as a result thereof, and (iii) the aggregate amount of any actual Losses (as defined in the Main Acquisition Agreement) incurred by Capri Holdings and its Subsidiaries arising as a result of such breach of representation (as defined by Capri Holdings in good faith)., (b) in connection with any Asset Sale, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, and any other cash proceeds subsequently received in respect of noncash consideration initially received, but only as and when received) of such Asset Sale, net of attorneys’ fees, accountants’ fees, broker’s fees and commissions, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale (other than any such Indebtedness assumed by the purchaser of such asset and other than any Lien pursuant to a Collateral Document), other customary fees and expenses actually incurred in connection therewith and amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by Capri Holdings or any Subsidiary thereof associated with the properties sold in such Asset Sale (provided that, in each case, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), and net of taxes paid or reasonably estimated to be payable (in the good faith determination of Capri Holdings) as a result thereof and (c) in connection with any issuance Permitted Equivalent Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions, other customary fees and expenses actually incurred in connection therewith.
“Net Leverage Ratio” means the ratio of (i) Consolidated Total Indebtedness as of the last day of the Test Period ending on the last day of any fiscal quarter plus the capitalized amount of all Operating Lease Obligations as of the last day of such Test Period minus (ii) unrestricted cash and Cash Equivalents at such date that is in excess of $100,000,000 to (ii) Consolidated EBITDAR for such Test Period, all calculated for Capri Holdings and its Subsidiaries on a consolidated basis. In the event that Capri Holdings or any Subsidiary shall have completed a Material Acquisition or a Material Disposition since the beginning of the relevant Test Period, the Net Leverage Ratio shall be determined for such period on a Pro Forma Basis as if such acquisition or disposition, and any related incurrence or repayment of Indebtedness, had occurred at the beginning of such Test Period.
“Non-Extending Lender” has the meaning assigned to such term in Section 2.27.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is
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not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a Federal funds broker of recognized standing reasonably selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of Capri Holdings and its Subsidiaries to any of the Lenders, the Administrative Agent, any Issuing Bank or any indemnified party, individually or collectively, existing on the Original Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or to the Lenders or any of their Affiliates under any Swap Agreement or, any Banking Services Agreement, any agreement in respect of a Supply Chain Financing (except those under Excluded Supply Chain Financing Agreements), any Bilateral Letter of Credit, or any Working Capital Facility, or in respect of any of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time evidencing any thereof; provided that the definition of “Obligations” shall not create or include any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party or obligations arising from Permitted Call Spread Swap Agreements.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Operating Lease” means any lease of property classified as an “operating lease” on both the balance sheet and income statement for financial reporting purposes under GAAP.
“Operating Lease Obligation” means, with respect to any Person, an obligation that is required to be accounted for as an Operating Lease (and not a Finance Lease). At the time any determination thereof is to be made, the amount of the liability in respect of an Operating Lease would be the amount required to be reflected as a liability on the balance sheet of such Person in accordance with GAAP.
“Original Effective Date” means August 22, 2017.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan, Letter of Credit or Loan Document).
“Other Pari Passu Lien Debt” means obligations in respect of Permitted Equivalent Indebtedness permitted under Section 6.01(v) that are secured by Liens on the Collateral on a pari passu
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basis with the Obligations and subject to a pari passu lien intercreditor agreement as required pursuant to clause (iii) of the definition of “Permitted Equivalent Indebtedness”.
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.–managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate), provided that, if the applicable Overnight Bank Funding Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, provided that, if the applicable Overnight Foreign Currency Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.
“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“Participant” has the meaning assigned to such term in Section 9.04.
“Participant Register” has the meaning assigned to such term in Section 9.04(c).
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.
“Patriot Act” has the meaning assigned to such term in Section 9.13(a).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Acquisition” means any Acquisition; provided that (a) the assets so acquired or, as the case may be, the assets of the Person so acquired shall be in a Related Line of Business, (b) no Default shall have occurred and be continuing at the time thereof or would result therefrom, (c) such Acquisition shall be effected in such manner so that the acquired Equity Interests, assets or rights are owned either by Capri Holdings or a Subsidiary and, if effected by merger, consolidation or
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amalgamation, the continuing, surviving or resulting entity shall be Capri Holdings or a Subsidiary, subject to Section 6.03 and (d) the Leverage Ratio, on a Pro Forma Basis after giving effect to such acquisition, recomputed as at the last day of the most recently ended fiscal quarter of Capri Holdings for which financial statements are available, as if such acquisition had occurred on the first day of each relevant period for testing such compliance, shall not exceed 3.75 to 1.00.
“Permitted Call Spread Swap Agreements” means (a) any Swap Agreement (including, but not limited to, any bond hedge transaction or capped call transaction) pursuant to which Capri Holdings or any of its Subsidiaries acquires an option requiring the counterparty thereto to deliver to Capri Holdings or any of its Subsidiaries shares of Capri Holdings or any of its Subsidiaries acquires, the cash value of such shares or a combination thereof from time to time upon exercise of such option and (b) any Swap Agreement pursuant to which Capri Holdings or any of its Subsidiaries issues to the counterparty thereto warrants to acquire shares of Capri Holdings or any of its Subsidiaries (whether such warrant is settled in shares, cash or a combination thereof), in each case entered into by Capri Holdings or any of its Subsidiaries in connection with the issuance of Convertible Debt Securities; provided that (i) the terms, conditions and covenants of each such Swap Agreement shall be such as are customary for Swap Agreements of such type and (ii) in the case of clause (b) above, such Swap Agreement is intended by Capri Holdings be classified as an equity instrument in accordance with GAAP.
“Permitted Encumbrances” means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) landlords’, carriers’, warehousemen’s, mechanics’, shippers’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 45 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in connection with workers’ compensation, unemployment insurance, old age pensions and other social security laws or regulations, and pledges and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) Liens, pledges and deposits to secure the performance of tenders, bids, trade contracts, leases, public or statutory obligations, warranty requirements, customs, surety and appeal bonds, bonds posted in connection with actions, suits or proceedings, performance and bid bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations), in each case in the ordinary course of business or letters of credit or guarantees issued in respect thereof;
(e) Liens incurred in the ordinary course of business in connection with the sale, lease, transfer or other disposition of any credit card receivables of the Company or any of its Subsidiaries;
(f) judgment, attachment or other similar liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII;
(g) easements, zoning restrictions, restrictive covenants, encroachments, rights-of-way and similar encumbrances on real property imposed by law or arising in the
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ordinary course of business that do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
(h) possessory Liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Permitted Investments; and
(i) any security and/or right of set-off arising under the general terms and conditions (algemene bankvoorwaarden) or the equivalent thereof in any jurisdiction of banking and financing institutions;
provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Equivalent Indebtedness” means secured or unsecured Indebtedness of Capri Holdings or any of its Subsidiaries issued or incurred on or after the Second Amendment Effective Date, provided that (i) prior to and after giving effect to such incurrence, no Default or Event of Default shall have occurred and be continuing, (ii) such Permitted Equivalent Indebtedness is not guaranteed by any Subsidiary of Capri Holdings that is not a Loan Party, (iii) if secured, such Permitted Equivalent Indebtedness shall be secured only by the Collateral on a pari passu basis and subject to a customary pari passu lien intercreditor agreement that is reasonably satisfactory to the Administrative Agent, (iv) the covenants applicable to such Permitted Equivalent Indebtedness are not more onerous or more restrictive in any material respects (taken as a whole) than the applicable covenants set forth in this Agreement (it being understood that the inclusion of customary delisting prong of the fundamental change definition in any Convertible Debt Security issued as Permitted Equivalent Indebtedness shall not be deemed to be materially more restrictive) and (v) any Permitted Equivalent Indebtedness shall not mature and shall not require any scheduled amortization or other scheduled payments of principal prior to the date that is 91 days after the then latest Maturity Date of any Facility (other than customary asset sale, event of loss, fundamental change or change of control mandatory offers to purchase and customary acceleration rights after an event of default).
“Permitted Factoring Program” means the sale by Capri Holdings or its Subsidiaries of accounts receivable originated by Capri Holdings or such Subsidiaries to a third-party factor in the ordinary course of business and consistent with past practice and on a basis that is non-recourse to Capri Holdings and its Subsidiaries other than limited recourse customary for factoring transactions of a similar kind.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are directly and fully guaranteed or insured by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), the United Kingdom or any Participating Member State;
(b) investments in commercial paper having, at such date of acquisition, a credit rating of at least A-2 from S&P or P-2 from Xxxxx’x;
(c) investments in demand deposits, certificates of deposit, eurocurrency time deposits, banker’s acceptances and time deposits issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any Lender or any
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commercial bank which has a combined capital and surplus and undivided profits of not less than $100,000,000;
(d) repurchase agreements with a term of not more than 180 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;
(e) securities with maturities of three years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States or by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth or territory, political subdivision, taxing authority or foreign government (as the case may be) are rated, at such date of acquisition, at least A- by S&P or A3 by Xxxxx’x;
(f) securities with maturities of three years or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (c) of this definition;
(g) shares of money market funds that (i) comply with the criteria set forth in (a) Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, as amended or (b) Securities and Exchange Commission Rule 3c-7 under the Investment Company Act of 1940, as amended and (ii) have portfolio assets of at least (x) in the case of funds that invest exclusively in assets satisfying the requirements of clause (a) of this definition, $250,000,000 and (y) in all other cases, $500,000,000;
(h) in the case of investments by any Foreign Subsidiary, obligations of a credit quality and maturity comparable to that of the items referred to in clauses (a) through (g) above that are available in local markets;
(i) corporate debt obligations with a Xxxxx’x rating of at least A3 or an S&P rating of at least A-, or their equivalent, as follows: (i) corporate notes and bonds and (ii) medium term notes; and
(j) mutual funds which invest primarily in the securities described in clauses (a) through (d) above.
“Person” means any natural person, corporation, limited liability company, unlimited company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (within the meaning of Section 3(2) of ERISA, but not including any Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” (as defined in Section 3(5) of ERISA).
“Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system.
“Pounds Sterling” or “£” means the lawful currency of the United Kingdom.
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“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Priority Indebtedness” means (a) Indebtedness of Capri Holdings or any Subsidiary (other than that described in Section 6.01(e)) secured by any Lien on any asset(s) of Capri Holdings or any Subsidiary and (b) Indebtedness of any Subsidiary of Capri Holdings which is not a Loan Party, in each case owing to a Person other than Capri Holdings or any Subsidiary.
“Pro Forma Basis” means, with respect to compliance with any test, covenant or calculation of any ratio hereunder, the determination or calculations of such test, covenant or ratio on a pro forma basis in accordance with Section 1.04(b).
“Public Debt Rating” means, as of any date, the rating that has been most recently announced (which may be included any press release that S&P, Xxxxx’x or Fitch issues) by either S&P, Xxxxx’x or Fitch, as the case may be, for any class of non-credit enhanced long-term senior unsecured debt issued by Capri Holdings or, if any such rating agency shall have issued more than one such ratings, the lowest such rating issued by such rating agency. For purposes of the foregoing, (a) if only one of S&P, Xxxxx’x and Fitch shall have in effect a Public Debt Rating, the Applicable Rate shall be determined by reference to the available rating; (b) if none of S&P, Xxxxx’x or Fitch shall have in effect a Public Debt Rating, the Applicable Rate will be set in accordance with Level 6 under the definition of “Applicable Rate”; (c) if each of S&P, Xxxxx’x and Fitch shall have in effect a Public Debt Rating but the ratings shall fall within different levels, the Applicable Rate shall be based upon the ratings of two of the agencies unless each agency’s ratings is at a separate level, in which case the applicable level will be deemed to be the middle level; (d) if only two of S&P, Xxxxx’x and Fitch shall have in effect a Public Debt Rating and such ratings shall fall within different levels, the Applicable Rate shall be based upon the higher rating unless such ratings differ by two or more levels, in which case the applicable level will be deemed to be one level below the higher of such levels; (e) initially, the Public Debt Rating shall be based upon the indicative rating for non-credit enhanced long-term senior unsecured debt issued by Capri Holdings from S&P, Xxxxx’x and Fitch, as the case may be, in each case giving effect to the Transactions (or an affirmation of an existing rating for non-credit enhanced long-term senior unsecured debt issued by Capri Holdings after giving effect to the Transactions (which may be included in any press release related to the Transactions that S&P, Xxxxx’x or Fitch issues)) (the “Indicative Ratings”); it being understood that, if any Initial Confirmed Public Debt Ratings shall be issued after the Effective Date, or any Public Debt Rating or Indicative Rating established by S&P, Xxxxx’x or Fitch shall be changed, such Initial Confirmed Public Debt Rating or such other change shall be effective as of the date on which such Initial Confirmed Public Debt Rating or other change is first announced or issued publicly by the rating agency making such change (which may be included in any press release related to the Transactions that S&P, Xxxxx’x or Fitch issues); and (f) if S&P, Xxxxx’x or Fitch shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P, Xxxxx’x or Fitch, as the case may be, shall refer to the then equivalent rating by S&P, Xxxxx’x or Fitch, as the case may be.
“QFC” means a “qualified financial contract” has the meaning set forth in, and interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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“QFC Credit Support” has the meaning assigned to such term in Section 9.20.
“Qualifying Recipient” means:
(a) a Recipient which is beneficially entitled to interest payable to that Recipient in respect of an applicable interest in a Loan, Letter of Credit or Commitment and is:
(i) a Recipient:
(A) which is a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) making an advance made under an applicable interest in a Loan, Letter of Credit or Commitment and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from section 18A of the Corporation Tax Xxx 0000; or
(B) in respect of an advance made under an applicable interest in a Loan, Letter of Credit or Commitment by a person that was a bank (as defined for the purpose of section 879 of the Income Tax Act 2007) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or
(ii) a Recipient which is:
(A) a company resident in the United Kingdom for United Kingdom tax purposes;
(B) a partnership each member of which is:
a. a company so resident in the United Kingdom; or
b. a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the Corporation Tax Xxx 0000;
(C) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) of that company; or
(iii) a Treaty Recipient; or
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(b) a Recipient which is a building society (as defined for the purposes of section 880 of the Income Tax Act 2007) making an advance under an applicable interest in a Loan, Letter of Credit or Commitment.
“Quotation Day” means, with respect to any Eurocurrency Borrowing for any Interest Period, (i) if the currency is Pounds Sterling, the first day of such Interest Period, (ii) if the currency is euro, the day that is two (2) TARGET2 Days before the first day of such Interest Period, and (iii) for any other currency, two (2) Business Days prior to the commencement of such Interest Period (unless, in each case, market practice differs in the relevant market where the LIBO Rate for such currency is to be determined, in which case the Quotation Day will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normally be given on more than one day, then the Quotation Day will be the last of those days)).
“Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as applicable.
“Refinancing Amendment” has the meaning assigned to such term in Section 2.28.
“Refinancing Effective Date” has the meaning assigned to such term in Section 2.28.
“Refinancing Term Loans” has the meaning assigned to such term in Section 2.28.
“Register” has the meaning assigned to such term in Section 9.04.
“Regulation” means the Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings and Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceeding (recast), as applicable.
“Reinvestment Deferred Amount” means with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by Capri Holdings or any of its Subsidiaries in connection therewith that are not applied to prepay the Term Loans pursuant to Section 2.11(b)(v) as a result of the delivery of a Reinvestment Notice.
“Reinvestment Event” means any Asset Sale in respect of which Capri Holdings or the Company has delivered a Reinvestment Notice; provided that the Net Cash Proceeds of Asset Sales in respect of which Capri Holdings or the Company may deliver a Reinvestment Notice shall not exceed $100,000,000 in the aggregate.
“Reinvestment Notice” means a written notice executed by Financial Officer stating that no Default or Event of Default has occurred and is continuing and that Capri Holdings (directly or indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in, or otherwise reinvest in, the business of Capri Holdings or its Subsidiaries.
“Reinvestment Prepayment Amount” means, with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in, or otherwise reinvest in, the business of Capri Holdings or its Subsidiaries.
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“Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the earlier of (a) the date occurring one year after such Reinvestment Event (or if Capri Holdings or any Subsidiary enters into a binding commitment to reinvest such Net Cash Proceeds within one year following receipt thereof, the date occurring 450 days following receipt thereof) and (b) the date on which Capri Holdings or the Company shall have determined not to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in, or otherwise reinvest in, the business of Capri Holdings or its Subsidiaries with all or any portion of the relevant Reinvestment Deferred Amount.
“Related Line of Business” means: (a) any line of business in which Capri Holdings or any of its Subsidiaries is engaged as of, or immediately prior to, the Effective Date, (b) any wholesale, retail or other distribution of products or services under any domestic or foreign patent, trademark, service xxxx, trade name, copyright or license or (c) any similar, ancillary or related business and any business which provides a service and/or supplies products in connection with any business described in clause (a) or (b) above.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Replacement Revolving Credit Commitments” has the meaning assigned to such term in Section 2.28.
“Replacement Revolving Credit Facilitiesy Effective Date” has the meaning assigned to such term in Section 2.28.
“Replacement Revolving Credit Facilityies Effective Date” has the meaning assigned to such term in Section 2.28.
“Reportable Event” means any “reportable event,” as set forth in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Plan, other than an event as to which notice is waived pursuant to DOL Regulation Part 4043 as in effect on the applicable date (no matter how such notice requirement may be changed in the future).
“Required 2021 Revolving Lenders” means, subject to Section 2.24, at any time, 2021 Revolving Lenders having 2021 Revolving Credit Exposures, outstanding principal amount of Term Loans and unused 2021 Revolving Commitments representing more than 50% of the sum of the total 2021 Revolving Credit Exposures, outstanding principal amount of Term Loans and unused 2021 Revolving Commitments at such time (excluding for purposes of any such calculation the 2021 Revolving Credit Exposures, unused Term Loan Commitments and outstanding principal amount of Term2021 Revolving Loans of Defaulting Lenders).
“Required 2023 Revolving Lenders” means, subject to Section 2.24, at any time, 2023 Revolving Lenders having 2023 Revolving Credit Exposures and unused 2023 Revolving Commitments representing more than 50% of the sum of the total 2023 Revolving Credit Exposures and unused 2023 Revolving Commitments at such time (excluding for purposes of any such calculation the 2023 Revolving Commitments and outstanding principal amount of 2023 Revolving Loans of Defaulting Lenders).
“Required Lenders” means, subject to Section 2.24, at any time, Lenders having Revolving Credit Exposures, outstanding principal amount of Term Loans and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures, outstanding principal
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amount of Term Loans and unused Commitments at such time (excluding for purposes of any such calculation the Revolving Credit Exposures, unused Term Loan Commitments and outstanding principal amount of Term Loans of Defaulting Lenders).
“Required Term Loan Lenders” means (a) from the Effective Date until the Term Loan Borrowing Date, Term Loan Lenders having unused Term Loan Commitments representing more than 50% of the aggregate unused Term Loan Commitments at such time (excluding for purposes of any such calculation the unused Term Loan Commitments of Defaulting Lenders) and (b) from the Term Loan Borrowing Date and thereafter, Term Loan Lenders having outstanding principal amount of Term Loans representing more than 50% of the aggregate outstanding principal amount of Term Loan Loans at such time (excluding for purposes of any such calculation the outstanding principal amount of Term Loans of Defaulting Lenders).
“Requirement of Law” means, as to any Person, the Articles or Certificate of Incorporation and By-Laws, Articles or Certificate of Formation and Operating Agreement, or Certificate of Partnership or partnership agreement or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means any EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Capri Holdings or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in Capri Holdings or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in Capri Holdings or any Subsidiary. Notwithstanding the foregoing, and for the avoidance of doubt, (i) any payment or delivery (whether on cash, securities or other property) in settlement of the conversion obligation of, including any cash payment upon conversion of, or payment of any principal or premium on, or payment of any interest with respect to, or any purchase, redemption, retirement or other acquisition of, any Convertible Debt Securities shall not constitute a Restricted Payment and (ii) any payment or delivery (whether in cash, securities or other property) with respect to, or upon early unwind or settlement of, any Permitted Call Spread Swap Agreement shall not constitute a Restricted Payment.
“Revolving Commitment” means a 2021 Revolving Commitment or a 2023 Revolving Commitment, and “Revolving Commitments” means both 2021 Revolving Commitments and 2023 Revolving Commitments.
“Revolving Credit Event” means a Borrowing of Revolving Loans, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date with respect to the Revolving Facility and the date of termination of the Revolving Commitments.
“Revolving Commitment” means, with respect to each Revolving Lender, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit
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and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09, (b) increased from time to time pursuant to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Revolving Lender’s Revolving Commitment is set forth on Schedule 2.01(a), or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Revolving Lender shall have assumed its Revolving Commitment, as applicable.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s 2021 Revolving Loans, 2023 Revolving Loans and its LC Exposure and Swingline Exposure at such time.
“Revolving Credit Event” means a Borrowing of Revolving Loans, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Revolving Facility” means the Revolving Commitments and the provisions herein related to the Revolving Loans, Swingline Loans and Letters of Credit.2021 Revolving Facility or the 2023 Revolving Facility and “Revolving Facilities” means both the 2021 Revolving Facility and the 2023 Revolving Facility.
“Revolving Lenders” means the Persons listed on Schedule 2.01(a) (including, without limitation, the Persons that are “Lenders” under the Existing Credit Agreement immediately prior to the Effective Date) and any other Person that shall have become a Revolving Lender hereunder pursuant to Section 2.20 or pursuant to an Assignment and Assumption or other documentation contemplated thereby, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or other documentation contemplated thereby. Unless the context otherwise requires, the term “Revolving Lenders” includes the Swingline Lender and each Issuing Bank.
“Revolving Lender” means a 2021 Revolving Lender or a 2023 Revolving Lender, and “Revolving Lenders” means both 2021 Revolving Lenders and 2023 Revolving Lenders.
“Revolving Loan” means a Loan made pursuant to Section 2.01(a)2021 Revolving Loan or a 2023 Revolving Loan, and “Revolving Loans” means both 2021 Revolving Loans and 2023 Revolving Loans.
“Rolled Tranche A-2 Term Loan” means a Tranche A-1 Term Loan exchanged for Tranche A-2 Term Loan on the First Amendment Effective Date pursuant to Section 2.01(d).
“Rolled Tranche A-2 Term Loan Commitment” means, with respect to a Tranche A-1 Term Loan Lender, the agreement of such Tranche A-1 Term Loan Lender to exchange the entire principal amount of its Tranche A-1 Term Loans outstanding on the First Amendment Effective Date for an equal principal amount of Rolled Tranche A-2 Term Loans on the First Amendment Effective Date.
“Rolled Tranche A-2 Term Loan Lender” means a Lender with an outstanding Rolled Tranche A-2 Term Loan Commitment.
“S&P” means Standard & Poor’s Financial Services LLC.
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“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (as of the Effective Date, including, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, the State Secretariat for Economic Affairs of Switzerland or the Swiss Directorate of International Law, any European Union member state, or Her Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, (b) the United Nations Security Council, the European Union, the State Secretariat for Economic Affairs of Switzerland or the Swiss Directorate of International Law, any European Union member state or Her Majesty’s Treasury of the United Kingdom or (c) any other applicable sanctions authority.
“SEC” means the United States Securities and Exchange Commission.
“Second Amendment” means the Second Amendment to this Agreement and the First Amendment to the Third Amended and Restated Guarantee Agreement, dated as of June 25, 2020, among the Borrowers, the Guarantors party thereto, the Administrative Agent, the Lenders party thereto and the other parties party thereto.
“Second Amendment Effective Date” has the meaning assigned to the term “Amendment Effective Date” in the Second Amendment.
“Secured Obligations” means all Obligations other than Working Capital Facilities Obligations.
“Secured Parties” means the holders of the Secured Obligations from time to time and shall include (i) each Lender and the Issuing Bank in respect of its Loans and LC Exposure respectively, (ii) the Administrative Agent, each Issuing Bank and the Lenders in respect of all other present and future obligations and liabilities of Capri Holdings and its Subsidiaries of every type and description arising under or in connection with this Agreement or any other Loan Document, (iii) each Lender and affiliate of such Lender that has entered into Swap Agreements, Banking Services Agreements (other than Permitted Call Spread Swap Transactions), Supply Chain Financings (other than Excluded Supply Chain Financing Agreements) with, or issued or made a Bilateral Letter of Credit for the account of, Capri Holdings or any of its Subsidiaries, (iv) each indemnified party in respect of the obligations and liabilities of Capri Holdings and its Subsidiaries to such Person hereunder and under the other Loan Documents, and (v) their respective successors and (in the case of a Lender, permitted) transferees and assigns.
“Senior Managing Agent” means each of HSBC Bank USA, National Association and Xxxxx Fargo Bank, National Association.
“Senior Notes” means the notes issued pursuant to the Senior Notes Indenture, dated as of October 20, 2017 among the Company, Capri Holdings, the subsidiary guarantors party thereto and U.S. Bank National Association, as trustee, as amended, supplemented, refinanced or otherwise modified from time to time.
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“Specified Representations” means the representations and warranties specified in (i) Section 3.01 with respect to corporate existence of the Loan Parties, (ii) Section 3.02 relating to power, authority, execution, delivery and enforceability of the Loan Documents, (iii) Section 3.03 with respect to no conflict of the Loan Documents with organizational documents or material law, (iv) Section 3.07 and Section 3.11, and (v) Section 3.13, excluding, in each case, any representation or warranty as to the Target Group or its assets, businesses or affiliates.
“Specified Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Standby Letter of Credit” means an irrevocable letter of credit issued pursuant to this Agreement by an Issuing Bank pursuant to which such Issuing Bank agrees to make payments in an Agreed Currency for the account of any Borrower, or, subject to Section 2.06(a), any Subsidiary or other Loan Party, in respect of obligations of such Person incurred pursuant to contracts made or performances undertaken or to be undertaken or like matters relating to contracts to which such Person is or proposes to become a party in furtherance of such Person’s good faith business purposes, including, but not limited to, for insurance purposes and in connection with lease transactions.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Board, the Financial Conduct Authority, the Prudential Regulation Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D of the Board. Eurocurrency Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the Board. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
“Subordinated Indebtedness” means Indebtedness that is subordinated in right of payment to the Obligations.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” means, unless the context otherwise requires, any subsidiary of Capri Holdings.
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“Supply Chain Finance Obligations” means obligations of Capri Holdings or any Subsidiary relating to Supply Chain Financings with a Lender or an Affiliate of a Lender, other than Supply Chain Financings arising under an Excluded Supply Chain Financing Agreement.
“Supply Chain Financing” means credit support provided in respect of trade payables of Capri Holdings or any Subsidiary, in each case issued for the benefit of any bank, financial institution or other person that has acquired such trade payables pursuant to “supply chain” or other similar financing for vendors and suppliers of Capri Holdings or any Subsidiaries, so long as (i) other than pursuant to this Agreement and the Collateral Documents, such Indebtedness is unsecured, (ii) the terms of such trade payables shall not have been extended in connection with the Supply Chain Financing and (iii) such Indebtedness represents amounts not in excess of those which Capri Holdings or any of its Subsidiaries would otherwise have been obligated to pay to its vendor or supplier in respect of the applicable trade payables. Capri Holdings or the relevant Subsidiary and the Lender or its Affiliate providing Supply Chain Financing may designate in writing to the Administrative Agent any Supply Chain Financing agreement as an agreement not intended to be included as a Supply Chain Finance Obligations for purposes of this Agreement (such agreement, an “Excluded Supply Chain Financing Agreement”).
“Supported QFC” has the meaning assigned to such term in Section 9.20.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option, cap or collar agreements or similar agreement involving, or settled by reference to, one or more interest or exchange rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Company or the Subsidiaries shall be a Swap Agreement.
“Swap Obligations” means any and all obligations of a Loan Party or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction.
“Swap Termination Value” means, in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for such Swap Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements (which may include a Lender or any Affiliate of a Lender).
“Swingline Exposure” means, at any time, the aggregate principal Dollar Amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any 2023 Revolving Lender at any time shall be its 2023 Applicable Percentage of the total Swingline Exposure at such time.
“Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder, and its successors in such capacity.
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“Swingline Loan” means a Loan made pursuant to Section 2.05 (for the avoidance of doubt, each Foreign Swingline Loan is a Swingline Loan).
“Swingline Overnight Rate” means, with respect to a Swingline Loan denominated in Dollars, for any day, the rate per annum advised by the Swingline Lender as its loan funding rate for overnight Eurodollar loans in effect at its office located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; each change in the Swingline Overnight Rate shall be effective from and including the date such change is notified by the Swingline Lender to the Company as being effective, provided that, if the applicable Swingline Overnight Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Swiss Borrower” means (i) MK Switzerland and (ii) any other Borrower incorporated in Switzerland and/or qualifying as a Swiss resident pursuant to Article 9 of the Swiss Federal Withholding Tax Act.
“Swiss Federal Withholding Tax Act” means the Swiss Federal Withholding Tax Act (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965); together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.
“Swiss Francs” means the lawful currency of Switzerland.
“Swiss Guidelines” means, together, the guideline “Interbank Loans” of 22 September 1986 (S-02.123) (Merkblatt “Verrechnungssteuer auf Zinsen von Bankguthaben, xxxxx Xxxxxxxxx Xxxxxx sind (Interbankguthaben)” vom 22. September 1986), the guideline “Syndicated Loans” of January 2000 (S-02.128) (Merkblatt “circular letter No. 46 of 24 July 2019 in relation to syndicated credit facilities (Kreisschreiben Nr. 46 "Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen”" vom Januar 200024. Juli 2019), the guideline S-02.130.1 in relation to money market instruments and book claims of April 1999 (Merkblatt vom April 1999 betreffend Geldmarktpapiere und Buchforderungen inländischer Schuldner), the guideline “Bonds” of April 1999 (S-02.122.1) (Merkblatt “circular letter No. 47 of 25 July 2019 in relation to bonds (Kreissschreiben Nr. 47 "Obligationen”" vom April 199925. Juli 2019), the circular letter No. 34 “Customer Credit Balances” of 26 July 2011 (1-034-V-2011) (Kreisschreiben Nr. 34 “Kundenguthaben” vom 26. Juli 2011), the circular letter No. 15 of 3 October 2017 (1-015-DVS-2017) in relation to bonds and derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss Federal Withholding Tax and Swiss Federal Stamp Taxes (Kreisschreiben Nr. 15 “Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer und der Stempelabgaben” vom 3. Oktober 2017), the practice note 010-DVS-2019 of 5 February 2019 published by the Swiss Federal Tax Administration regarding Swiss Withholding Tax in the Group (Mitteilung-010-DVS-2019-d vom 5. Februar 2019 - Verrechnungssteuer: Guthaben im Konzern); all as issued, and as amended or replaced from time to time, by the Swiss Federal Tax Administration or as substituted or superseded and overruled by any law, statute, ordinance, regulation, court decision or the like.
“Swiss Insolvency Event” means any one or more of the following with respect to any Swiss Loan Party: it is unable or admits in writing its inability to pay its debts as they fall due or otherwise is, or admits in writing that it is, insolvent (zahlungsunfähig), suspends making payments on any of its debts within the meaning of Article 190 section (1) no. (1) of the Swiss Federal Law Concerning Debt Enforcement and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs) or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness or files a petition for the opening of
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bankruptcy proceedings because of insolvency (Zahlungsunfähigkeit) pursuant to Article 191 section (1) of the Swiss Federal Law Concerning Debt Enforcement and Bankruptcy (Bundesgesetz über Schuldbetreibung und Konkurs).
“Swiss Loan Party” means any Loan Party incorporated under the laws of Switzerland.
“Swiss Non-Bank Rules” means the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank Rule.
“Swiss Non-Qualifying Bank” means a financial institution or other entity which does not qualify as a Swiss Qualifying Bank.
“Swiss Qualifying Bank” means any person or entity acting on its own account which has a banking license in force and effect issued in accordance with the banking laws in its jurisdiction of incorporation, or if acting through a branch, issued in accordance with the banking laws in the jurisdiction of such branch, and which, in both cases, effectively conducts banking activities as its principal purpose with its own infrastructure, staff and authority of decision making, all in accordance with the Swiss Guidelines.
“Swiss Ten Non-Bank Rule” means the rule that the aggregate number of creditors or deemed creditors (other than Swiss Qualifying Banks) of any Swiss Borrower under this Agreement must not at any time exceed 10 (ten), all in accordance with the meaning of the Swiss Guidelines.
“Swiss Twenty Non-Bank Rule” means the rule that (without duplication) the aggregate number of creditors or deemed creditors (including the Lenders), other than Swiss Qualifying Banks, of any Swiss Borrower under all outstanding debts relevant for classification as debenture (Kassenobligation) (including debt arising under this Agreement and intra-group loans (if and to the extent intra-group loans are not exempt in accordance with the ordinance of the Swiss Federal Council of 18 June 2010 amending the Swiss Federal Ordinance on withholding tax and the Swiss Federal Ordinance on stamp duties with effect as of 1 August 2010), loans, facilities and/or private placements (including under this Agreement) must not, at any time, exceed twenty (20); all in accordance with the meaning of the Swiss Guidelines.
“Swiss Withholding Tax” means any Taxes levied pursuant to the Swiss Federal Withholding Tax Act.
“Syndication Agent” means Barclays Bank PLC, in its capacity as syndication agent for the credit facility evidenced by this Agreement.
“Target” means Xxxxxx Xxxxxxx S.p.A, a company incorporated under the laws of Italy.
“Target Acquisition” means the acquisition by Capri Holdings directly or indirectly through Acquisition Co of all of the Equity Interests in the Target pursuant to the Target Acquisition Agreement.
“Target Acquisition Agreement” means, collectively, the Main Acquisition Agreement and the MIP Acquisition Agreement.
“Target Acquisition Costs” means all fees, costs and expenses incurred or payable by Capri Holdings or any of its Subsidiaries in connection with the Target Acquisition Transactions,
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including any such amounts payable in connection with Swap Agreements entered into by Capri Holdings or any of its Subsidiaries in connection with the Target Acquisition Transactions, and any stamp duty and any other taxes payable in connection with the Target Acquisition Transactions.
“Target Acquisition Transactions” means the (i) execution and delivery by the Loan Parties of this Agreement and the other Loan Documents (but excluding in each case any such execution or delivery prior to the date hereof) and the borrowing of Term Loans and the use of the proceeds thereof, (ii) the consummation of the Target Acquisition and (iii) the payment of the Target Acquisition Costs.
“Target Group” means the Target and its subsidiaries and GIVI Holding S.p.A..
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.
“TARGET2 Day” means a day that TARGET2 is open for the settlement of payments in euro.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Availability Period” means the period starting on the Effective Date and ending on the End Date.
“Term Loan Facility” means, collectively, the Tranche A-1 Term Loan Facility and the Tranche A-2 Term Loan Facility.
“Term Loan Availability Period” means the period starting on the Effective Date and ending on the End Date.
“Term Loan Borrower” means Capri Holdings.
“Term Loan Borrowing Date” means the date during the Term Loan Availability Period when (i) the conditions specified in Section 4.01 and 4.04 are satisfied (or waived in accordance with Section 9.02) or (ii) if the Escrow Funding Election has been made by Capri Holdings, the conditions specified in Section 4.01 and 4.03 are satisfied (or waived in accordance with Section 9.02), and, in each case, the Borrowing of Term Loans under the Term Loan Facility occurs.
“Term Loan Commitment” means, collectively, the Tranche A-1 Term Loan Commitment and the Tranche A-2 Term Loan Commitment.
“Term Loan Lenders” means, collectively, the Tranche A-1 Term Loan Lenders and the Tranche A-2 Term Loan Lenders.
“Term Loans” means, collectively, the Tranche A-1 Term Loans and the Tranche A-2 Term Loans.
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“Termination Date” means the date on which the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated, in each case, without any pending draw, or cash collateralized in accordance with Section 2.06(j), all LC Disbursements shall have been reimbursed and all other Obligations (other than Obligations under any Swap Agreement, any Banking Services Agreement, any agreements in respect of any Supply Chain Financing, any Bilateral Letters of Credit or any Working Capital Facilities or contingent Obligations for reimbursement or indemnification and other Obligations that expressly survive the termination of the Credit Agreement) shall have been paid in full in cash.
“Test Period” means, as of any date of determination, the period of four consecutive fiscal quarters of Capri Holdings most recently ended on or prior to such date.
“Third Party Funds” shall mean any segregated accounts or funds, or any portion thereof, received by Capri Holdings or any of its Subsidiaries as agent on behalf of third parties (other than the Loan Parties) in accordance with a written agreement that imposes a duty upon Capri Holdings or one or more of its Subsidiaries to collect and remit those funds to such third parties.
“Tranche A-1 Term Loan” means a Loan made pursuant to Section 2.01(b).
“Tranche A-1 Term Loan Commitment” means, with respect to each Tranche A-1 Term Loan Lender, the commitment of such Lender to make a Tranche A-1 Term Loan pursuant to Section 2.01(b), as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09 or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Tranche A-1 Term Loan Lender’s Tranche A-1 Term Loan Commitment is the amount set forth opposite such Lender’s name on Schedule 2.01(b) hereto, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its Tranche A-1 Term Loan Commitment, as applicable.
“Tranche A-1 Term Loan Facility” means the Tranche A-1 Term Loan Commitments and the provisions herein related to the Tranche A-1 Term Loans.
“Tranche A-1 Term Loan Lenders” means the Persons listed on Schedule 2.01(b) with respect to the Tranche A-1 Term Loan Facility and any other Person that shall have become a Tranche A-1 Term Loan Lender pursuant to an Assignment and Assumption or other documentation contemplated thereby, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or other documentation contemplated thereby.
“Tranche A-2 Term Loan” means (a) prior to the First Amendment Effective Date, a Loan made pursuant to Section 2.01(c) and (b) on and after the First Amendment Effective Date an outstanding Loan made pursuant to Section 2.01(c) or a Rolled Tranche A-2 Term Loan exchanged by a Rolled Tranche A-2 Term Lender on the First Amendment Effective Date pursuant to Section 2.01(d) and any Additional Rolled Tranche A-2 Term Loan exchanged by any Additional Tranche A-2 Term Loan Lender pursuant to Section 2.27(b).
“Tranche A-2 Term Loan Commitment” means, with respect to each Tranche A-2 Term Loan Lender, the commitment of such Lender to make a Tranche A-2 Term Loan pursuant to Section 2.01(c), as such commitment may be (a) reduced or terminated from time to time pursuant to Section 2.09 or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Tranche A-2 Term Loan Lender’s Tranche A-2 Term Loan
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Commitment is the amount set forth opposite such Lender’s name on Schedule 2.01(b) hereto, or in the Assignment and Assumption or other documentation contemplated hereby pursuant to which such Lender shall have assumed its Tranche A-2 Term Loan Commitment, as applicable.
“Tranche A-2 Term Loan Facility” means the Tranche A-2 Term Loan Commitments and the provisions herein related to the Tranche A-2 Term Loans.
“Tranche A-2 Term Loan Lenders” means the Persons listed on Schedule 2.01(b) with respect to the Tranche A-2 Term Loan Facility and any other Person that shall have become a Tranche A-2 Term Loan Lender pursuant to the First Amendment, an Assignment and Assumption or other documentation contemplated thereby, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or other documentation contemplated thereby.
“Transaction Costs” means all fees, costs and expenses incurred or payable by Capri Holdings or any of its Subsidiaries in connection with the Transactions.
“Transactions” means the (i) execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, (ii) the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder, (iii) the consummation of the Target Acquisition and (iv) the payment of the Transaction Costs.
“Treaty Recipient” means a Recipient which:
(a) is treated as a resident of a Treaty State for the purposes of a Treaty;
(b) does not carry on a business in the United Kingdom through a permanent establishment with which that Recipient’s participation in the Loan is effectively connected; and
(c) qualifies for full exemption from UK income tax on payments of interest to or for the account of a Recipient with respect to an applicable interest in a Loan, Letter of Credit or Commitment, subject to the completion of necessary procedural formalities.
“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from UK income tax on interest.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate, the BA Rate or the Canadian Prime Rate (or, with respect to a Swingline Loan denominated in Dollars, the Swingline Overnight Rate).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Insolvency Event” means:
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(a) a UK Relevant Entity is unable or admits inability to pay its debts as they fall due (other than debts owed to Capri Holdings or a Subsidiary or solely by reason of balance sheet liabilities exceeding balance sheet assets), suspends making payments on any of its material debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more class of creditors (other than pursuant to the Loan Documents) with a view to rescheduling any of its material indebtedness;
(b) any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i) the suspension of payments, a moratorium of any indebtedness, windingup, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of any UK Relevant Entity;
(ii) (by reason of actual or anticipated financial difficulties) a composition, compromise, assignment or arrangement with any class of creditors of any UK Relevant Entity;
(iii) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any UK Relevant Entity, or all or substantially all of its assets; or
(iv) enforcement of any Lien over any material asset of any UK Relevant Entity,
or any analogous procedure or step is taken in any jurisdiction, save that this paragraph (b) shall not apply to (i) any involuntary proceeding or procedure that is discharged or dismissed within 60 days of commencement, or (ii) any solvent liquidation or reorganization of any Subsidiary incorporated under the laws of England and Wales which is not a Loan Party so long as any payments or assets distributed as a result of such liquidation or reorganization are distributed to other Subsidiaries; and
(c) any expropriation, attachment, sequestration, distress or execution affects any asset or assets of a UK Relevant Entity, except where such action does not, and would not reasonably be expected to, have a Material Adverse Effect.
“UK Loan Party” means any Loan Party that is:
(a) incorporated under the laws of England and Wales;
(b) resident for tax purposes in the UK; or
(c) not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of an applicable interest in a Loan, Letter of Credit or Commitment in computing its chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009).
“UK Relevant Entity” means any UK Loan Party or any Loan Party capable of becoming subject of an order for winding-up or administration under the Insolvency Xxx 0000 of the United Kingdom.
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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Special Resolution Regimes” has the meaning assigned to such term in Section 9.20.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).
“Undisclosed Administration” means the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to a Lender or its Parent under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation).
“Uniform Commercial Code” means the Uniform Commercial Code, as in effect from time to time, of the State of New York or of any other state the laws of which are required as a result thereof to be applied in connection with the attachment, perfection or priority of, or remedies with respect to, Administrative Agent’s or any Lender’s Lien on any Collateral.
“Working Capital Facilities” means credit facilities in respect of working capital provided by a Lender or any of its Affiliates to a Loan Party or any Subsidiary existing on the Second Amendment Effective Date and identified as such in Schedule 1.01(c) hereto.
“Working Capital Facilities Obligations” means any and all obligations of a Loan Party or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Working Capital Facilities.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02. Classification of Loans and Borrowings
. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “2021 Revolving Loan”) or by Type (e.g., a “Eurocurrency Loan”) or by Class and Type (e.g., a “Eurocurrency 2021 Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g.,
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a “2021 Revolving Borrowing”, “Tranche A-1 Term Loan Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency 2021 Revolving Borrowing”).
SECTION 1.03. Other Interpretive Provisions
. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and decrees, of all Governmental Authorities. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (ii) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (iii) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (iv) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) For the avoidance of doubt, any Indebtedness, Lien or Investment incurred in compliance with a ratio shall be permitted notwithstanding any changes to such ratio subsequent to such transaction.
(c) For the avoidance of doubt, in this Agreement, when used in reference to any entity organized under the laws of the Netherlands, a reference to (i) “security” includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (ii) “winding-up,” “administration” or “dissolution” includes any such entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (iii) “moratorium” includes “surseance van betaling” and a declaration or occurrence of a moratorium includes “surseance verleend”; (iv) suspension of payments includes emergency regulations (noodregeling) under the Act on Financial Supervision (wet op het financieel toezicht); (v) “trustee” in bankruptcy includes a “curator”; (vi) “administrator” includes a bewindvoerder; (vii) “attachment” includes a “beslag”; (viii) “the Netherlands” means the European part of the Kingdom of The Netherlands and “Dutch” means in or of the Netherlands; (ix) “property” means property that is owned or acquired by way of freehold ownership (eigendom), groundlease, right of superficies (opstalrecht) or condominium right (appartementsrecht); (x) “insolvency” includes a bankruptcy, moratorium and emergency
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regulation (noodregeling); (xi) “gross negligence” means grove nalatigheid; and (xii) “willful misconduct” means bewuste roekeloosheid.
(d) For the avoidance of doubt, in this Agreement, when used in reference to any entity organized under the laws of Italy, a reference to: (a) "winding-up", "administration" or "dissolution" includes, without limitation, any scioglimento, liquidazione and any other proceedings or legal concepts similar to the foregoing; (b) an "insolvency proceeding", "bankruptcy" or the like includes, without limitation, any procedura concorsuale (including fallimento, concordato preventivo, concordato fallimentare, amministrazione straordinaria, liquidazione coatta amministrativa, amministrazione straordinaria delle grandi imprese in stato di insolvenza, misure per la ristrutturazione industriale delle grandi imprese in stato di insolvenza), the execution of any composition with creditors in accordance with letter (d) of paragraph 3 of article 67 of the Italian Insolvency Law, an accordo di ristrutturazione dei debiti pursuant to article 182-bis of the Italian Insolvency Law, an accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 182-septies of the Italian Insolvency Law and cessione dei beni ai creditori pursuant to article 1977 of the Italian Civil Code) and any other proceedings or legal concepts similar to the foregoing; (c) a "receiver", "administrative receiver", "commissioner", "administrator" or the like includes, without limitation, a curatore, commissario giudiziale, commissario straordinario, commissario liquidatore, liquidatore or any other person performing the same function as each of the foregoing; (d) a "step" or "procedure" taken in connection with insolvency proceedings or bankruptcy for any person includes, without limitation, that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), implementing a piano di risanamento pursuant to article 67, third paragraph, letter (d) of the Italian Insolvency Law, entering into an accordo di ristrutturazione dei debiti pursuant to article 182-bis of the Italian Insolvency Law, an accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 182-septies of the Italian Insolvency Law, filing a petition for a concordato preventivo or entering into a similar arrangement for a substantial part of its creditors; (e) an assignment, arrangement or composition with or for the benefit of its creditors or the like, includes, without limitation, an arrangement pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), a piano di risanamento, an accordo di ristrutturazione dei debiti, a concordato preventivo or a similar arrangement for the a substantial part of creditors; (f) a "lease" includes, without limitation, a contratto di locazione or comodato; (g) a "security" if referred to a security governed by Italian law includes, without limitation, any pegno (including, to the extent implemented under Italian law, the pegno mobiliare non possessorio pursuant to Italian Law Decree No. 59 of 3 May 2016 converted into law no. 119 dated June 30, 2016), ipoteca, privilegio (including the privilegio speciale pursuant to Article 46 of the Italian Banking Law), cessione del credito in garanzia, any other garanzia xxxxx, finanziamento alle imprese garantito da trasferimento di bene immobile sospensivamente condizionato pursuant to Italian Law Decree No. 59 of 3 May 2016 converted into law no. 119 dated June 30, 2016 or other transactions having the same effect as each of the foregoing; (h) an "attachment" or "order" includes a pignoramento or a sequestro; and (i) a "guarantee", if referred to a guarantee governed by Italian law includes, without limitation, any fideiussione, garanzia a prima domanda or garanzia personale;
SECTION 1.04. Accounting Terms; GAAP; Pro Forma Calculations; Exchange Rates; Limited Condition Acquisitions
. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided
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that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 000-00-00 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. For purposes of computing ratios and related amounts, any amount in a currency other than Dollars will be converted to Dollars in accordance with GAAP, in a manner consistent with that used in preparing Capri Holdings’ financial statements.
(b) All pro forma computations required to be made hereunder giving effect to any Material Acquisition or Material Disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder to determine whether such Material Acquisition or Material Disposition, or issuance, incurrence or assumption of Indebtedness, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 3.04(a)), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. Such computations may give effect to (i) any projected synergies or cost savings (net of continuing associated expenses) that are reasonably anticipated by the Company to be achieved in connection with any such event within the 12-month period following the consummation of such event, which the Company determines in good faith are reasonable as of the date of such computation and (ii) all transactions that are directly related to such Material Acquisition or Material Disposition and are entered into in connection and substantially contemporaneously therewith; provided that (x) all adjustments pursuant to this paragraph will be without duplication of any amounts that are otherwise included or added back in computing Consolidated EBITDAR in accordance with the definition of such term and (y) if any cost savings or other adjustments included in any pro forma calculations based on the anticipation that such cost savings or other adjustments will be achieved within such 12-month period shall at any time cease to be reasonably anticipated by the Company to be so achieved, then on and after such time pro forma calculations required to be made hereunder shall not reflect such cost savings or other adjustments. If any Indebtedness bears a floating rate of
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interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Indebtedness). Items related to any Indebtedness no longer outstanding or to be repaid or redeemed on the date of determination (including, without limitation, for purposes of all pro forma computations made hereunder, interest, fees, debt discounts, charges and other items) will be excluded and such Indebtedness shall be deemed to have been repaid or redeemed as of the first day of the applicable period.
(c) For purposes of (i) determining the amount of Indebtedness incurred, outstanding or proposed to be incurred or outstanding under Section 6.01 (but excluding, for the avoidance of doubt, any calculation of Consolidated Net Worth or Consolidated EBITDAR), (ii) determining the amount of obligations secured by Liens incurred, outstanding or proposed to be incurred or outstanding under Section 6.02, or (iii) determining the amount of Material Indebtedness, the net assets of a Person or judgments outstanding under paragraphs (f), (g), (h), (i), (j) or (k) of Article VII, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the Exchange Rate on the applicable date, provided that no Default shall arise as a result of any limitation set forth in Dollars in Section 6.01 or 6.02 being exceeded solely as a result of changes in Exchange Rates from those rates applicable at the time or times Indebtedness or obligations secured by Liens were initially consummated or acquired in reliance on the exceptions under such Sections (including any such changes that occur between the time of commitments for Indebtedness are obtained and such Indebtedness is funded).
(d) Notwithstanding anything to the contrary herein, for purposes of determining (i) compliance on a Pro Forma Basis with any Leverage Ratio or Net Leverage Ratio, (ii) the amount of any basket set forth in Article VI hereof which is based on a percentage of Consolidated Net Worth or (iii) whether a Default or Event of Default has occurred and is continuing, in each case, required to be satisfied under this Agreement as a condition in connection with the consummation of a Limited Condition Acquisition, the date of such determination shall, at the election of Capri Holdings (with such election to be made on or prior to the date on which the definitive agreements for such Limited Condition Acquisition are executed by Capri Holdings or its applicable Restricted Subsidiary), be the time the definitive agreements for such Limited Condition Acquisition are entered into after giving pro forma effect to such Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof), in each case, as if they occurred at the beginning of the applicable Test Period, and, for the avoidance of doubt, if any of such ratios or amounts are exceeded as a result of fluctuations in such ratio or amount including due to fluctuations in Consolidated EBITDAR of Capri Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; provided, that if Capri Holdings elects to have such determinations occur at the time of entry into the definitive agreement with respect to such Limited Condition Acquisition, the Indebtedness (including any Indebtedness incurred pursuant to Section 2.20) to be incurred (and any associated Lien) shall be deemed incurred at the time of such election (until such time as the Indebtedness is actually incurred or the applicable acquisition agreement is terminated without actually consummating the applicable Limited Condition Acquisition (in which case such Limited Condition Acquisition and the incurrence of related Indebtedness will
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not be treated as having occurred)) and outstanding thereafter for purposes of compliance on a Pro Forma Basis with any applicable ratios, tests or other baskets, as the case may be (other than any ratio contained in Section 6.08 or any ratios, tests or baskets relating to permitting Restricted Payments); provided, that, any ratio contained in Section 6.08 or any applicable ratios, tests or other baskets with respect to permitting any Restricted Payments to be made during the period commencing from the time of entry into such definitive agreement until such time as such Limited Condition Acquisition is consummated and any related Indebtedness is actually incurred or the applicable acquisition agreement is terminated without actually consummating the applicable acquisition (in which case the acquisition and related Indebtedness will not be treated as having occurred) shall be required to be complied with using calculations without giving pro forma effect to such Limited Condition Acquisition and any associated Indebtedness to be incurred.
SECTION 1.05. Status of Obligations
. In the event that any Loan Party shall at any time issue or have outstanding any Subordinated Indebtedness, the applicable Loan Party shall take or cause such other Loan Party to take all such actions as shall be necessary to cause the Obligations to constitute senior indebtedness (however denominated) in respect of such Subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other remedies available to holders of senior indebtedness under the express terms of such Subordinated Indebtedness. Without limiting the foregoing, the Obligations are hereby designated as “senior indebtedness” and as “designated senior indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available to holders of senior indebtedness under the express terms of such Subordinated Indebtedness.
SECTION 1.06. Certifications
. All certificates and other statements required to be made by any officer, director or employee of a Loan Party pursuant to any Loan Document are and will be made on the behalf of such Loan Party and not in such officer’s, director or employee’s individual capacity.
SECTION 1.07. Amendment and Restatement of the Existing Credit Agreement
. The parties to this Agreement agree that, on the Effective Date, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to be, and shall not constitute, a novation. All “Revolving Loans” made and “Obligations” incurred under the Existing Credit Agreement which are outstanding on the Effective Date shall continue as 2023 Revolving Loans and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness of the amendment and restatement contemplated hereby on the Effective Date: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) the “Revolving Commitments” (as defined in the Existing Credit Agreement) shall be redesignated as 2023 Revolving Commitments hereunder as set forth on Schedule 2.01(a), (c) the Administrative Agent shall make such other reallocations, sales, assignments or other relevant actions in respect of each 2023 Revolving Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that each such 2023 Revolving Lender’s 2023 Revolving Credit Exposure and
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outstanding 2023 Revolving Loans hereunder reflects such Lender’s 2023 Applicable Percentage of the outstanding aggregate 2023 Revolving Credit Exposures on the Effective Date and (d) the Borrowers hereby agree to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans (including the “Eurocurrency Loans” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth in Section 2.16 hereof.
SECTION 1.08. Interest Rates; LIBOR Notification.
The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 2.14(b) of this Agreement, such Section 2.14(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Company, pursuant to Section 2.14, in advance of any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.14(b), will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.
ARTICLE IIThe Credits
SECTION 2.01. Commitments; Loans
.
(a) Prior to the Effective Date, certain “Revolving Loans” were made to certain of the Borrowers under the Existing Credit Agreement which remain outstanding as of the Effective Date (such outstanding loans being hereinafter referred to as the “Existing Revolving Loans”). Subject to the terms and conditions set forth in this Agreement, each Borrower and each of the 2023 Revolving Lenders agree that on the Effective Date, but subject to the reallocation and other transactions described in Section 1.07, the Existing Revolving Loans shall be re-evidenced as 2023 Revolving Loans under this Agreement and the terms of the Existing Revolving Loans shall be restated in their entirety and shall be evidenced by this Agreement. Subject to the terms and conditions set forth herein, each 2023 Revolving Lender (severally and not jointly) agrees to make 2023 Revolving Loans to the Borrowers in Agreed Currencies from time to time during the
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2023 Revolving Availability Period in an aggregate principal amount that will not result in (a) subject to Section 2.04, the Dollar Amount of such Lender’s 2023 Revolving Credit Exposure exceeding such Lender’s 2023 Revolving Commitment or (b) subject to Section 2.04, the sum of the Dollar Amount of the total 2023 Revolving Credit Exposures exceeding the 2023 Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow 2023 Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each Tranche A-1 Term Loan Lender (severally and not jointly) agreed to make Tranche A-1 Term Loans to Capri Holdings in Dollars in a single draw on one date during the Term Loan Availability Period, in an aggregate principal amount not to exceed such Term Loan Lender’s outstanding Tranche A-1 Term Loan Commitment immediately prior to the making of such Tranche A-1 Term Loans. Amounts paid or prepaid in respect of the Tranche A-1 Term Loans may not be reborrowed.
(c) Subject to the terms and conditions set forth herein, each Tranche A-2 Term Loan Lender (severally and not jointly) agreed to make Tranche A-2 Term Loans to Capri Holdings in Dollars in a single draw on one date during the Term Loan Availability Period, in an aggregate principal amount not to exceed such Term Loan Lender’s outstanding Tranche A-2 Term Loan Commitment immediately prior to the making of such Tranche A-2 Term Loans. Amounts paid or prepaid in respect of the Tranche A-2 Term Loans may not be reborrowed.
(d) Subject to the terms and conditions set forth herein and in the First Amendment, each Rolling Tranche A-2 Term Loan Lender (severally and not jointly) agrees to exchange on the First Amendment Effective Date its Tranche A-1 Term Loans outstanding immediately prior to the First Amendment Effective Date for a like principal amount of Rolled Tranche A-2 Term Loans, which shall constitute Loans under the same Class and tranche as the Tranche A-2 Term Loans. The Rolled Tranche A-2 Term Loans shall have the same terms as the Tranche A-2 Term Loans.
All references to “Term Loans,” “Loans,” “Term Lender,” “Lender”, “Obligations” and “Secured Obligations” in the Credit Agreement and the Loan Documents shall be deemed to include references to “Rolled Tranche A-2 Term Loans”, “Rolled Tranche A-2 Term Lender” and Obligations and Secured Obligations in respect to Rolled Tranche A-2 Term Loans, as applicable, and except otherwise set forth herein all references to “Tranche A-2 Term Loans” shall be deemed to include the “Rolled Tranche A-2 Term Loans”.
(e) Subject to the terms and conditions set forth herein, each 2021 Revolving Lender (severally and not jointly) agrees to make 2021 Revolving Loans to the Borrowers in Agreed Currencies from time to time during the 2021 Revolving Availability Period in an aggregate principal amount that will not result in (a) subject to Section 2.04, the Dollar Amount of such Lender’s 2021 Revolving Credit Exposure exceeding such Lender’s 2021 Revolving Commitment or (b) subject to Section 2.04, the sum of the Dollar Amount of the total 2021 Revolving Credit Exposures exceeding the 2021 Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow 2021 Revolving Loans.
SECTION 2.02. Loans and Borrowings
. (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders of the same Class ratably in accordance with their respective Commitments of such Class. The
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failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Any Swingline Loan shall be made in accordance with the procedures set forth in Section 2.05.
(b) Subject to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans, Eurocurrency Loans, Canadian Base Rate Loans or BA Equivalent Loans as the relevant Borrower may request in accordance herewith; provided that (i) each ABR Loan shall only be made in Dollars, (ii) no Eurocurrency Borrowing may be made in Canadian Dollars and (iii) each Canadian Loan shall only be made in Canadian Dollars to a Canadian Borrower. Each Swingline Loan shall be (x) an ABR Loan or a Swingline Overnight Rate Loan in the case of a Swingline Loan to the Company denominated in Dollars or (y) a Foreign Swingline Loan in the case of a Swingline Loan to Capri Holdings or MK Switzerland denominated in any Agreed Currency (other than Canadian Dollars). Subject to Section 2.14, each Tranche A-1 Term Loan Borrowing and each Tranche A-2 Term Loan Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as the relevant Borrower may request in accordance herewith. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.13(f), 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 (or, in the case of a Revolving Borrowing, if such Borrowing is denominated in (i) Japanese Yen, JPY10,000,000 or (ii) a Foreign Currency other than Japanese Yen, 100,000 units of such currency) and not less than $1,000,000 (or, in the case of a Revolving Borrowing, if such Borrowing is denominated in (i) Japanese Yen, JPY100,000,000 or (ii) a Foreign Currency other than Japanese Yen, 1,000,000 units of such currency). At the time that each ABR Borrowing or Canadian Base Rate Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 or CAD100,000, respectively, and not less than $500,000 or CAD500,000, respectively; provided that an ABR Borrowing or Canadian Base Rate Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the 0000 Xxxxxxxxx Revolving Commitment and/or 0000 Xxxxxxxxx Revolving Commitment or, with respect to a Revolving Borrowing, that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e). At the commencement of each Interest Period for any BA Equivalent Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of CAD100,000 and not less than CAD500,000. Each Swingline Loan shall be in an amount that is an integral multiple of $500,000 and not less than $500,000 (or, in each case, if such Swingline Loan is denominated in (i) Japanese Yen, JPY50,000,000 or (ii) a Foreign Currency other than Japanese Yen, 500,000 units of such currency). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of fifteen (15) Eurocurrency Borrowings and BA Equivalent Borrowings outstanding, not more than ten (10) of which may be Borrowings that are not Tranche A-1 Term Loan Borrowings or Tranche A-2 Term Loan Borrowing.
(d) Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date for the 2021 Revolving Facility,
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2023 Revolving Facility, Tranche A-1 Term Loan Facility or Tranche A-2 Term Loan Facility, as the case may be.
(e) Any Credit Event to any Dutch Borrower shall at all times be provided by a Lender that is a Dutch Non-Public Lender.
SECTION 2.03. Requests for Borrowings
. To request a Borrowing, the applicable Borrower, or the Company on behalf of the applicable Borrower, shall notify the Administrative Agent of such request (a) by irrevocable written notice (via a written Borrowing Request signed by the applicable Borrower, or the Company on behalf of the applicable Borrower, promptly followed by telephonic confirmation of such request) in the case of a Eurocurrency Borrowing or BA Equivalent Borrowing, not later than 12:00 noon, Local Time, three (3) Business Days before the date of the proposed Borrowing, (b) by telephone in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, on the date of the proposed Borrowing; provided that any such notice of an ABR 2023 Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be given not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing or (c) by telephone in the case of a Canadian Base Rate Borrowing not later than 10:30 a.m. Local Time, one (1) Business Day prior to the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request signed by the applicable Borrower, or the Company on behalf of the applicable Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the name of the applicable Borrower;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day during the 2021 Revolving Availability Period, 2023 Revolving Availability Period or the Term Loan Availability Period, as applicable;
(iv) whether such Borrowing is a 2021 Revolving Borrowing, a 2023 Revolving Borrowing, a Tranche A-1 Term Loan Borrowing or a Tranche A-2 Term Loan Borrowing;
(v) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing (or in the case of a Canadian Borrowing, a Canadian Base Rate Borrowing or a BA Equivalent Borrowing; or in the case of a Swingline Loan denominated in Dollars, an ABR Borrowing or a Swingline Overnight Rate Borrowing);
(vi) in the case of a Eurocurrency Borrowing, the Agreed Currency and initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
(vii) in the case of a BA Equivalent Borrowing, the initial Interest Period to be applicable thereto which shall be a period contemplated by the definition of the term “Interest Period”; and
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(viii) the location and number of the account or accounts to which funds are to be disbursed, which shall comply with the requirements of Section 2.07.
If no election as to the Type of Borrowing is specified, then, (i) in the case of a Borrowing denominated in Dollars, the requested Borrowing shall be an ABR Borrowing and (ii) in the case of a Canadian Borrowing, the requested Borrowing shall be a Canadian Base Rate Borrowing. If no Interest Period is specified with respect to any requested Eurocurrency Borrowing or BA Equivalent Borrowing, then the relevant Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. Determination of Dollar Amounts
. The Administrative Agent will determine the Dollar Amount of:
(a) each Eurocurrency Borrowing or Canadian Borrowing as of the date two (2) Business Days prior to the date of such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as a Eurocurrency Borrowing or Canadian Borrowing, as applicable,
(b) each Foreign Swingline Loan on the date of the making of such Swingline Loan,
(c) the LC Exposure as of the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit, and
(d) all outstanding Credit Events on and as of the last Business Day of each calendar quarter and, during the continuation of an Event of Default, on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Majority Facility Lenders under the Revolving Facility or the Term Loan Facility, as the case may be.
Each day upon or as of which the Administrative Agent determines Dollar Amounts as described in the preceding clauses (a), (b), (c) and (d) is herein described as a “Computation Date” with respect to each Credit Event for which a Dollar Amount is determined on or as of such day.
SECTION 2.05. Swingline Loans
. (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans (x) in Dollars to the Company and (y) in Agreed Currencies (other than Canadian Dollars) to Capri Holdings and MK Switzerland, in each case from time to time during the 2023 Revolving Availability Period, in an aggregate principal Dollar Amount at any time outstanding that will not result in, subject to Section 2.04, (i) the aggregate principal Dollar Amount of outstanding Swingline Loans exceeding $75,000,000 or (ii) the Dollar Amount of the total 2023 Revolving Credit Exposures exceeding the 0000 Xxxxxxxxx Revolving Commitment; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Company, Capri Holdings and MK Switzerland may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company, Capri Holdings or MK Switzerland (or the Company on behalf of Capri Holdings or MK Switzerland), as applicable, shall notify the Administrative Agent of such request (i) by telephone (confirmed by telecopy), not later than 2:00 p.m., New York City time, on the day of a proposed Swingline Loan to the Company in Dollars and (ii) by irrevocable written notice (via a written Borrowing Request in a form
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approved by the Swingline Lender and signed by Capri Holdings or MK Switzerland, as applicable, or the Company on behalf of Capri Holdings or MK Switzerland, as applicable, promptly followed by telephonic confirmation of such request), not later than 9:30 a.m., London time, on the day of a proposed Foreign Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day), the applicable currency and amount of the requested Swingline Loan and the account to which proceeds of such Swingline Loan are to be credited, and with respect to a Swingline Loan denominated in Dollars, whether such Swingline Loan shall be an ABR Borrowing or a Swingline Overnight Rate Borrowing. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Company, Capri Holdings or MK Switzerland. The Swingline Lender shall make each Swingline Loan available to the Company, Capri Holdings or MK Switzerland, as applicable, by means of a credit to the an account of the Company, Capri Holdings or MK Switzerland, as applicable (as designated by the Company, Capri Holdings or MK Switzerland in such notice) (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m. (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement, such later time as is reasonably practicable as reasonably determined by the Administrative Agent), Local Time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 11:00 a.m., Local Time, (i) in respect of Swingline Loans denominated in Dollars, on any Business Day and (ii) in respect of Foreign Swingline Loans, three (3) Business Days before the date of the proposed acquisition of participations, require the 2023 Revolving Lenders to acquire participations on such date in all or a portion of the Swingline Loans outstanding in the applicable Agreed Currency of such Swingline Loans. Such notice shall specify the aggregate amount and the applicable Agreed Currency of Swingline Loans in which 2023 Revolving Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each 2023 Revolving Lender, specifying in such notice such 2023 Revolving Lender’s 2023 Applicable Percentage of such Swingline Loan or 2023 Revolving Loans and the applicable Agreed Currency of such Swingline Loan or 2023 Revolving Loans. Each 2023 Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay in the applicable Agreed Currency to the Administrative Agent, for the account of the Swingline Lender, such 2023 Revolving Lender’s 2023 Applicable Percentage of such Swingline Loan or 2023 Revolving Loans. Each 2023 Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the 2023 Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each 2023 Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to 2023 Revolving Loans made by such 2023 Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the 2023 Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the 2023 Revolving Lenders. The Administrative Agent shall notify the Company of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Company, Capri Holdings or MK Switzerland (or other party on behalf of the Company, Capri Holdings or MK Switzerland) in respect of a Swingline Loan after receipt by the
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Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the 2023 Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Company, Capri Holdings or MK Switzerland, as applicable, for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Company, Capri Holdings or MK Switzerland of any default in the payment thereof.
SECTION 2.06. Letters of Credit
. (a) General. Subject to the terms and conditions set forth herein, any Borrower may request the issuance of Letters of Credit in the form of Commercial Letters of Credit or Standby Letters of Credit denominated in Agreed Currencies for its own account or as the applicant thereof for the support of its obligations or the obligations of its Subsidiaries or any other Loan Party, in a form reasonably acceptable to the Administrative Agent and the relevant Issuing Bank, at any time and from time to time during the 2023 Revolving Availability Period; provided, that only Canadian Borrowers may request the issuance of Letters of Credit denominated in Canadian Dollars. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by any Borrower to, or entered into by any Borrower with, the relevant Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, no Issuing Bank shall have any obligation hereunder to issue, and no Issuing Bank shall issue, any Letter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is the subject of any Sanctions or (ii) in any manner that would result in a violation of any Sanctions or any bona fide internal policies by any party to this Agreement. Each Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of the obligations of its Subsidiary or any other Loan Party as provided in the first sentence of this paragraph, such Borrower will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.12(b) to the same extent as if it were the sole account party in respect of such Letter of Credit (each Borrower hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such a Subsidiary or Loan Party that is an account party in respect of any such Letter of Credit).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the applicable Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the relevant Issuing Bank) to the relevant Issuing Bank and the Administrative Agent ((x) in the case of a Letter of Credit denominated in Dollars, three (3) Business Days and (y) in the case of a Letter of Credit denominated in Foreign Currencies, five (5) Business Days before the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Agreed Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by an Issuing Bank, the applicable Borrower also
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shall submit a letter of credit application on such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the applicable Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) subject to Section 2.04, the Dollar Amount of the LC Exposure shall not exceed $75,000,000, (ii) subject to Section 2.04, with respect to any Issuing Bank, the aggregate undrawn Dollar Amount of all outstanding Letters of Credit issued by such Issuing Bank at such time plus the aggregate Dollar Amount of all LC Disbursements made by such Issuing Bank that have not yet been reimbursed by or on behalf of the Borrowers at such time shall not exceed such Issuing Bank’s Letter of Credit Commitment (unless otherwise agreed by such Issuing Bank) and (iii) subject to Section 2.04, the sum of the Dollar Amount of the total 2023 Revolving Credit Exposures shall not exceed the 2023 Aggregate Revolving Commitment. The Company may, at any time and from time to time, reduce or increase the Letter of Credit Commitment of any Issuing Bank as set forth in the definition of Letter of Credit Commitment; provided that the Company shall not reduce the Letter of Credit Commitment of any Issuing Bank if, after giving effect of such reduction, the conditions set forth in clauses (i) through (iii) above shall not be satisfied.
(c) Expiration Date. Each Letter of Credit shall expire (or to be subject to termination by notice from the applicable Issuing Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five (5) Business Days prior to the Maturity Date for the 2023 Revolving Facility; provided that, upon any Borrower’s request, any such Letter of Credit which is issued in the final year prior to the Maturity Date for the 2023 Revolving Facility may have an expiry date which is not later than one (1) year after the Maturity Date for the 2023 Revolving Facility if cash collateralized or covered by standby letter(s) of credit in compliance with Section 2.06(j) below (each such Letter of Credit, an “Extended Letter of Credit”).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the relevant Issuing Bank or the 2023 Revolving Lenders, the relevant Issuing Bank hereby grants to each 2023 Revolving Lender, and each 2023 Revolving Lender hereby acquires from the relevant Issuing Bank, a participation in such Letter of Credit and in the currency of such Letter of Credit (or any currency into which such Letter of Credit is converted as provided herein) equal to such 2023 Revolving Lender’s 2023 Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each 2023 Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the relevant Issuing Bank, such 2023 Revolving Lender’s 2023 Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to any Borrower for any reason. Each 2023 Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
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(e) Reimbursement. If the relevant Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent in Dollars the Dollar Amount equal to such LC Disbursement, calculated as of the date such Issuing Bank made such LC Disbursement (or if such Issuing Bank shall so elect in its sole discretion by notice to the applicable Borrower, in such other Agreed Currency which was paid by such Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later than (x) on the same Business Day that the applicable Borrower receives written notice from such Issuing Bank that such Issuing Bank has made such LC Disbursement under such Letter of Credit, if the applicable Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., Local Time, and (y) on the next succeeding Business Day after which such Borrower receives such notice after 10:00 a.m., Local Time; provided that, if such LC Disbursement is not less than the Dollar Amount of $500,000, such Borrower may, subject to the conditions to borrowing and other conditions set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed with (i) to the extent such LC Disbursement was made in Dollars, an ABR 2023 Revolving Borrowing or Swingline Loan in Dollars in an amount equal to such LC Disbursement, (ii) to the extent such LC Disbursement was made in Canadian Dollars, a Canadian Base Rate Borrowing in an amount equal to such LC Disbursement or (iii) to the extent such LC Disbursement was made in a Foreign Currency (other than Canadian Dollars), a Eurocurrency 2023 Revolving Borrowing or a Swingline Loan in such Foreign Currency in an amount equal to such LC Disbursement and, in each case, to the extent so financed, such Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR 2023 Revolving Borrowing, Canadian Base Rate Borrowing, Eurocurrency Revolving Borrowing or Swingline Loan, as applicable. If any Borrower fails to make such payment when due, the Administrative Agent shall notify each 2023 Revolving Lender of the applicable LC Disbursement, the payment then due from such Borrower in respect thereof and such 2023 Revolving Lender’s 2023 Applicable Percentage thereof. Promptly following receipt of such notice, each 2023 Revolving Lender shall pay to the Administrative Agent its 2023 Applicable Percentage of the payment then due from the applicable Borrower, in the same manner as provided in Section 2.07 with respect to 2023 Revolving Loans made by such 2023 Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the 2023 Revolving Lenders), and the Administrative Agent shall promptly pay to the relevant Issuing Bank the amounts so received by it from the 2023 Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from any Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the relevant Issuing Bank or, to the extent that 2023 Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such 2023 Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a 2023 Revolving Lender pursuant to this paragraph to reimburse the relevant Issuing Bank for any LC Disbursement (other than the funding of ABR Loans, Eurocurrency Loans, Canadian Base Rate Loans or Swingline Loans as contemplated above) shall not constitute a 2023 Revolving Loan and shall not relieve the applicable Borrower of its obligation to reimburse such LC Disbursement. If any Borrower’s reimbursement of, or obligation to reimburse, any amounts in any Foreign Currency would subject the Administrative Agent, any Issuing Bank or any 2023 Revolving Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, such Borrower shall, at its option, either (x) pay the amount of any such tax requested by the Administrative Agent, the relevant Issuing Bank or the relevant 2023 Revolving Lender or (y) reimburse each LC Disbursement made in such Foreign Currency in Dollars, in an amount equal to the Equivalent
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Amount, calculated using the applicable Exchange Rates, on the date such LC Disbursement is made, of such LC Disbursement.
(f) Obligations Absolute. Each Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the relevant Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, any Borrower’s obligations hereunder. Neither the Administrative Agent, the 2023 Revolving Lenders nor the Issuing Banks, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the relevant Issuing Bank; provided that the foregoing shall not be construed to excuse the relevant Issuing Bank from liability to a Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by such Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of any Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the applicable Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve such Borrower of its obligation to reimburse such Issuing Bank and the 2023 Revolving Lenders with respect to any such LC Disbursement.
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(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR 2023 Revolving Loans (or in the case such LC Disbursement is denominated in a Foreign Currency, at the Overnight Foreign Currency Rate for such Agreed Currency plus the then effective Applicable Rate with respect to Eurocurrency 2023 Revolving Loans) and such interest shall be due and payable on the date when such reimbursement is payable; provided that, if such Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the relevant Issuing Bank, except that interest accrued on and after the date of payment by any 2023 Revolving Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such 2023 Revolving Lender to the extent of such payment.
(i) Replacement of any Issuing Bank. Any Issuing Bank may be replaced at any time by written agreement among the applicable Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the 2023 Revolving Lenders of any such replacement of any Issuing Bank. At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued by such successor Issuing Bank thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If (x) any Event of Default shall occur and be continuing, on the Business Day that any Borrower receives notice from the Administrative Agent or the Required 2023 Revolving Lenders (or, if the maturity of the Revolving Loans has been accelerated, 2023 Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph or (y) cash collateral is required pursuant to Section 2.06(c) in connection with the issuance of an Extended Letter of Credit, such Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the 2023 Revolving Lenders (the “LC Collateral Account”), an amount in cash equal to the Dollar Amount of the LC Exposure in respect of such Extended Letter of Credit (in the case of the foregoing clause (y)) or in the aggregate (in the case of the foregoing clause (x)) as of such date plus any accrued and unpaid interest thereon; provided that (i) the portions of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that such Borrower is not late in reimbursing shall be deposited in the applicable Foreign Currencies in the actual amounts of such undrawn Letters of Credit and LC Disbursements and (ii) the obligation to deposit such cash collateral shall (1) be required no later than five (5) Business Days prior to the Maturity Date in the case of an Extended Letter of Credit and (2) become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind,
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upon the occurrence of any Event of Default with respect to any Borrower described in clause (h) or (i) of Article VII. For the purposes of this paragraph, the Foreign Currency LC Exposure shall be calculated using the applicable Exchange Rate on the date notice demanding cash collateralization is delivered to the applicable Borrower. Each Borrower also shall deposit cash collateral pursuant to this paragraph as and to the extent required by Section 2.11(b). Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Obligations. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the relevant Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Revolving Loans has been accelerated (but subject to the consent of 2023 Revolving Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other Obligations. If any Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three (3) Business Days after all Events of Default have been cured or waived.
(k) Issuing Bank Agreements. Each Issuing Bank agrees that, unless otherwise requested by the Administrative Agent, such Issuing Bank shall report in writing to the Administrative Agent (i) on the first Business Day of each week, the daily activity (set forth by day) in respect of Letters of Credit during the immediately preceding week, including all issuances, extensions, amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) on or prior to each Business Day on which such Issuing Bank expects to issue, amend, renew or extend any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the aggregate face amount and currency of the Letters of Credit to be issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension occurred (and whether the amount thereof changed), it being understood that such Issuing Bank shall not permit any issuance, renewal, extension or amendment resulting in an increase in the amount of any Letter of Credit to occur without first obtaining written confirmation from the Administrative Agent that it is then permitted under this Agreement, (iii) on each Business Day on which such Issuing Bank pays any amount in respect of one or more drawings under Letters of Credit, the date of such payment(s) and the amount of such payment(s), (iv) on any Business Day on which the Borrowers fail to reimburse any obligations of the Borrowers for the LC Exposure required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount and currency of such payment in respect of Letters of Credit and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request.
(l) Existing Letters of Credit. The Existing Letters of Credit shall be deemed to be Letters of Credit issued hereunder on the Effective Date.
SECTION 2.07. Funding of Borrowings
. (a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds (i) in the case of Loans denominated in Dollars, by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated
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by it for such purpose by notice to the Lenders, (ii) in the case of each Loan denominated in a Foreign Currency (other than Swiss Francs) by 12:00 noon, Local Time, in the city of the Administrative Agent’s Applicable Payment Office for such currency and at such Applicable Payment Office for such currency and (iii) in the case of each Loan denominated in Swiss Francs, by 8:00 a.m., Local Time, in the city of the Administrative Agent’s Applicable Payment Office for such currency and at such Applicable Payment Office for such currency; provided that Swingline Loans shall be made as provided in Section 2.05. Subject to the last sentence of this Section 2.07(a), the Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting the amounts so received, in like funds, to (x) an account of such Borrower maintained with the Administrative Agent in New York City or Chicago or such other account, in each case, as designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in Dollars and (y) an account of such Borrower or such other account in the relevant jurisdiction and, in each case, designated by such Borrower in the applicable Borrowing Request, in the case of Loans denominated in a Foreign Currency; provided that ABR 2023 Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the relevant Issuing Bank. Notwithstanding the foregoing, in connection with the execution of the Target Acquisition and the related transactions scheduled to occur on the Acquisition Closing Date, Capri Holdings may request each Lender to make each Term Loan and each Limited Condition Revolving Loan to be made by it up to five (5) Business Days prior to the anticipated Acquisition Closing Date. If Capri Holdings notifies the Administrative Agent of this election at the time of delivery of the Borrowing Request (the “Escrow Funding Election”), upon the satisfaction (or waiver pursuant to Section 9.02) of the conditions specified in Section 4.03, each Lender shall make the amount of its Term Loan or Limited Condition Revolving Loan available to the Administrative Agent as set forth ab