EIGHTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of June 12, 2020, is entered into by and among (a) AT HOME HOLDING III INC. (formerly known as GRD Holding III Corporation), a Delaware corporation, and AT HOME STORES LLC (successor in interest to Garden Ridge, L.P.), a Delaware limited liability company (collectively, the “Borrowers” and each individually, a “Borrower”), (b) AT HOME HOLDING II INC. (formerly known as GRD Holding II Corporation), a Delaware corporation (“Holdings”), (c) the other Guarantors (as defined in the Existing Credit Agreement referred to below) party hereto, (d) the Lenders (as defined below), (e) BANK OF AMERICA, N.A., as administrative agent and collateral agent for all Lenders (in such capacities, including any successor thereto in such capacities, the “Administrative Agent”), and (f) TCG SENIOR FUNDING L.L.C., as agent for the FILO Lenders (in such capacity, including any successor thereto in such capacity, the “FILO Agent”).
W I T N E S S E T H:
WHEREAS, reference is made to that certain Credit Agreement, dated as of October 5, 2011 (as amended by the First Amendment to Credit Agreement, dated as of May 9, 2012, as further amended by the Second Amendment to Credit Agreement, dated as of May 23, 2013, as further amended by the Third Amendment to Credit Agreement, dated as of July 28, 2014, as further amended by the Assumption and Ratification Agreement, dated as of September 29, 2014, as further amended by the Fourth Amendment to Credit Agreement, dated as of June 5, 2015, as further amended by the Fifth Amendment to Credit Agreement, dated as of June 15, 2016, further amended by the Sixth Amendment to Credit Agreement, dated as of June 2, 2017, as further amended by the Seventh Amendment to Credit Agreement, dated as of July 27, 2017, as further modified by a certain commitment increase letter agreement, dated as of June 14, 2019, as further amended from time to time by certain joinder agreements, and as otherwise amended, extended, supplemented or otherwise modified in writing from time to time and in effect immediately prior to the effectiveness of this Amendment, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended by this Amendment, the “Amended Credit Agreement”), by and among (a) the Borrowers, (b) the Guarantors party thereto, (c) the lenders from time to time party thereto (each a “Lender”, and collectively, the “Lenders”), and (d) the Administrative Agent;
WHEREAS, the Borrowers have requested that the Existing Credit Agreement be amended to add a new tranche of term loans in a principal amount of $35,000,000 on a “first-in, last-out” basis (the “FILO Loans”) to be extended to the Borrowers on the Eighth Amendment Effective Date (as defined below) by TCG Senior Funding L.L.C. and certain of its affiliates and debt funds, as the lenders holding commitments for FILO Loans as of the Eighth Amendment Effective Date (collectively, the “Initial FILO Lenders”), subject to the terms and conditions set forth in this Amendment and the Amended Credit Agreement; and
WHEREAS, (a) the Administrative Agent and the Lenders party hereto (which collectively constitute the Required Supermajority Lenders under the Existing Credit Agreement) are willing, on the terms and subject to the conditions set forth in this Amendment, to amend the Existing Credit Agreement as provided herein, (b) each Initial FILO Lender is willing, on the terms
1
and subject to the conditions set forth in this Amendment, to join the Amended Credit Agreement as a Lender and a FILO Lender thereunder and to extend the FILO Loans to the Borrowers as provided herein, and (c) TCG Senior Funding L.L.C. is willing, on the terms and subject to the conditions set forth in this Amendment, to join the Amended Credit Agreement as the FILO Agent.
NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:
1. Defined Terms; Amendment as Loan Document. All capitalized terms used in this Amendment, including in the preamble and recitals hereto, and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement. This Amendment constitutes a “Loan Document” under the Amended Credit Agreement.
2. Amendments to Existing Credit Agreement. As of the Eighth Amendment Effective Date:
(a) Amended Credit Agreement. The Existing Credit Agreement (excluding the schedules and exhibits thereto, which shall remain in full force and effect, except as specifically amended and restated pursuant to Section 2(b) and (c) of this Amendment) is hereby amended as set forth in Annex A attached hereto such that all of the newly inserted double underlined text (indicated textually in the same manner as the following example: double-underlined text) and any formatting changes attached hereto shall be deemed to be inserted and all stricken text (indicated textually in the same manner as the following example: stricken text) shall be deemed to be deleted therefrom.
(b) Amendments to Exhibits to the Existing Credit Agreement.
(i) Each of the following exhibits to the Existing Credit Agreement is hereby deleted in its entirety and replaced with the corresponding exhibits set forth in Annex B-1 attached to this Amendment:
a) Exhibit A (Committed Loan Notice),
b) Exhibit B (Swing Line Loan Notice),
c) Exhibit C-1 (Revolving Note),
d) Exhibit D (Compliance Certificate),
e) Exhibit E (Assignment and Assumption), and
f) Exhibit F (Borrowing Base Certificate).
(ii) Each of the following exhibits are hereby added to the Amended Credit Agreement in the form set forth in Annex B-2 attached to this Amendment:
a) Exhibit C-2 (FILO Note), and
2
b) Exhibit I (Joinder).
(c) Amendments to Schedules to the Existing Credit Agreement.
(i) Each of the following schedules to the Existing Credit Agreement is hereby deleted in its entirety and replaced with the corresponding schedules to the Amended Credit Agreement set forth in Annex C attached to this Amendment:
a) Schedule I (Guarantors),
b) Schedule E-1 (Excluded Subsidiaries),
c) Schedule 2.01(a)(i) (Revolving Commitments),
d) Schedule 2.01(a)(ii) (FILO Commitments),
e) Schedule 5.08(b) (Owned Real Property),
f) Schedule 5.08(c) (Leased Real Property),
g) Schedule 5.08(d) (Other Locations of Tangible Personal Property),
h) Schedule 5.09 (Environmental Matters),
i) Schedule 5.11(a) (ERISA Compliance),
j) Schedule 5.11(d) (Pension Plans),
k) Schedule 5.12 (Subsidiaries and Other Equity Investments),
l) Schedule 5.16 (Intellectual Property Matters),
m) Schedule 5.17(b) (Credit Card Arrangements),
n) Schedule 5.20 (Labor Matters),
o) Schedule 6.02 (Collateral Reports),
p) Schedule 7.01 (Existing Liens),
q) Schedule 7.02 (Existing Investments),
r) Schedule 7.03 (Permitted Surviving Debt),
s) Schedule 7.08 (Transactions with Affiliates), and
t) Schedule 10.02 (Administrative Agent’s Office, Certain Addresses for Notices).
3
3. Amendments to Existing Security Agreement. As of the Eighth Amendment Effective Date, the Security Agreement, dated of October 5, 2011 (amended, supplemented or otherwise modified in writing from time to time and in effect immediately prior to the effectiveness of this Amendment, the “Existing Security Agreement”, and the Existing Security Agreement, as amended by this Amendment, the “Amended Security Agreement”) is hereby amended by adding a new Section 10(f) immediately after Section 10(e) therein as follows:
“(f) Without limiting the provisions of Section 1 or any other rights of the Administrative Agent as the holder of a security interest in any Intellectual Property Collateral, for the purpose of enabling the Administrative Agent to exercise rights and remedies under this Agreement at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Administrative Agent, for the benefit of the Secured Parties, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Grantors) to use, license or sublicense any of the Intellectual Property Collateral now owned or hereafter acquired by such Grantor, and wherever the same may be located (whether or not any license by and between any Grantor and any other Person relating to the use of such Intellectual Property Collateral may be terminated hereafter), and including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, provided, however, that any license and any sublicense granted by the Administrative Agent to a third party shall be subject to and include reasonable and customary terms necessary to preserve the existence, validity and value of the affected Intellectual Property Collateral, including without limitation, provisions requiring the continuing confidential handling of trade secrets, requiring the use of appropriate notices and prohibiting the use of false notices, protecting and maintaining the quality standards of the Trademarks in the manner set forth below.
The use by the Administrative Agent of the license granted pursuant to this Section 10(f) may only be exercised, at the option of the Administrative Agent, during the continuation of an Event of Default; provided that any license, sublicense or other transaction entered into by the Administrative Agent in accordance herewith shall immediately and automatically terminate at such time as the Administrative Agent is no longer lawfully entitled to exercise its rights and remedies under this Agreement and the other Loan Documents. In the event the license granted pursuant to this Section 10(f) is exercised with regard to any Trademarks, then the following shall apply: (i) all goodwill arising from any licensed or sublicensed use of any Trademark shall inure to the benefit of the relevant Grantor; (ii) the licensed or sublicensed Trademarks shall only be used in association with goods or services of a quality and nature consistent with the quality and reputation with which such Trademarks were associated when used by the relevant Grantor prior to the exercise of the license rights set forth herein; and (iii) at the relevant Grantor’s request and expense, licensees and sublicensees shall provide reasonable cooperation in any effort by such Grantor to maintain the registration or otherwise secure the ongoing validity and effectiveness of such licensed Trademarks.”
4
4. Conditions to Effectiveness. This Amendment shall not be effective until the date that each of the following conditions precedent has been fulfilled to the satisfaction of the Administrative Agent (such date, the “Eighth Amendment Effective Date”):
(a) Amendment. This Amendment shall have been duly executed and delivered by the Borrowers, the Guarantors, the existing Lenders (constituting the Required Supermajority Lenders under the Existing Credit Agreement), the FILO Agent, and the Initial FILO Lenders.
(b) FILO Note. The Administrative Agent and the FILO Agent shall have received a FILO Note made by the Borrowers in favor of each Initial FILO Lender, to the extent requested by such Initial FILO Lender.
(c) Collateral Matters.
(i) Omnibus Reaffirmation Agreement. The Administrative Agent shall have received an Omnibus Reaffirmation of the Loan Documents, duly executed by the Borrowers, the Guarantors, and the Administrative Agent.
(ii) Perfection Certificate. The Administrative Agent shall have received a customary perfection certificate, dated as of the Eighth Amendment Effective Date, duly executed by a Responsible Officer of each Loan Party.
(iii) Lien Searches. The Administrative Agent shall have received the results of (A) searches of the Uniform Commercial Code filings (or equivalent filings) and (B) judgment and tax lien searches, made with respect to the Loan Parties in, with respect to searches in respect of clause (A), the states or other jurisdictions of organization, incorporation or formation of such Loan Parties and, with respect to searches in respect of clause (B), such other locations as are satisfactory to the Administrative Agent, together with copies of the financing statements (or, in the case of clause (B), similar or equivalent documents or filings) disclosed by such searches.
(d) Borrowing Base Certificate. The Administrative Agent and the FILO Agent shall have received a Borrowing Base Certificate, dated as of the Eighth Amendment Effective Date, setting forth a calculation of the Revolving Borrowing Base and FILO Borrowing Base as of a date to be agreed by the Administrative Agent and the FILO Agent, duly executed by a Responsible Officer of the Borrowers, and such Borrowing Base Certificate shall demonstrate that Availability, as of the Eighth Amendment Effective Date and after giving pro forma effect to this Amendment and the transactions contemplated hereby, is not less than $75,000,000.
(e) Solvency Certificate. The Administrative shall have received a certificate from the chief financial officer of Holdings and the Borrowers certifying that after giving effect to the transactions contemplated by this Amendment (including the extension of the FILO Loans on the Eighth Amendment Effective Date), the Loan Parties, on a consolidated basis, are Solvent.
5
(f) Officer’s Closing Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrowers certifying that the conditions specified in Sections 4(i) and (j) hereof have been satisfied.
(g) Corporate Authority. The Administrative Agent shall have received (i) a copy of the Organization Document of each Loan Party filed in connection with such Loan Party’s organization, incorporation or formation, including all amendments thereto, certified, if applicable, as of a recent date by the Secretary of State (or similar Governmental Authority) in the jurisdiction of organization, incorporation or formation of such Loan Party, and a certificate as to the good standing (or local equivalent) of each Loan Party as of a recent date, from such Secretary of State (or similar Governmental Authority) in the jurisdiction of organization, incorporation or formation of such Loan Party; (ii) a certificate of the Secretary or Assistant Secretary (or equivalent Responsible Officer) of each Loan Party, dated the Eighth Amendment Effective Date and certifying (A) that attached thereto is a true and complete copy of all Organization Documents of such Loan Party as in effect on the Eighth Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or similar governing body or entity) of such Loan Party authorizing the execution, delivery and performance of this Amendment, the other Amendment Documents, the transactions contemplated hereby and thereby, and, in the case of the Borrowers, the borrowing of the FILO Loans, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the incumbency and specimen signature of each Responsible Officer executing this Amendment, any other Amendment Document, or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) for each Loan Party, a certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary (or equivalent Responsible Officer) executing the certificate pursuant to clause (ii) above.
(h) Legal Opinions. The Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent, the FILO Agent and the Lenders (including the Initial FILO Lenders) and dated as of the Eighth Amendment Effective Date) of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, as counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent and its counsel. The Loan Parties hereby request such counsel to deliver such opinions.
(i) Representations and Warranties. On the Eighth Amendment Effective Date, the representations and warranties set forth in Section 6 hereof shall be true and correct.
(j) No Material Adverse Effect. Since January 25, 2020, there shall have been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
6
(k) Committed Loan Notice. The Administrative Agent and the FILO Agent shall have received a duly executed Committed Loan Notice in respect of the FILO Loans at least one (1) Business Day prior to the Eighth Amendment Effective Date (or such shorter period as may be acceptable to the FILO Agent).
(l) Projections. The Administrative Agent and the FILO Agent shall have received reasonably detailed projections, including an Availability model, prepared by management of the Borrowers in a form reasonably acceptable to the Administrative Agent and the FILO Agent; provided that the Administrative Agent and the FILO Agent acknowledge that the projections previously delivered by management of the Borrowers are in a form and substance acceptable to both the Administrative Agent and the FILO Agent.
(m) Fees and Expenses. The Borrowers shall have (i) paid all fees required to be paid pursuant to that certain fee letter agreement, dated as of the Eighth Amendment Effective Date, among the Borrowers and the FILO Agent (the “FILO Fee Letter”), and (ii) reimbursed the Administrative Agent and the FILO Agent for all reasonable and documented out-of-pocket fees, costs and expenses, including reasonable attorneys’ fees and disbursements, in connection with or relating to this Amendment.
(n) KYC. The Administrative Agent, the FILO Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested in writing not less than five (5) days prior to the Eighth Amendment Effective Date.
Without limiting the generality of the provisions of Section 9.04 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, the FILO Agent and each Lender (including the Initial FILO Lenders), to the extent such Person has signed this Amendment, shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Person, unless the Administrative Agent shall have received notice from such Person prior to the proposed Eighth Amendment Effective Date specifying its objection thereto.
5. Post-Closing Obligations. The Borrowers shall use commercially reasonable efforts to complete, or cause to be completed, each of the post-closing obligations listed on Annex D attached to this Amendment, as soon as commercially reasonable and in any event on or before the date set forth for such post-closing obligation on Annex D (as such date may be extended by the Administrative Agent in writing in its reasonable discretion), each of which post-closing obligation shall be completed or provided in form and substance reasonably satisfactory to the Administrative Agent.
6. Representations and Warranties. Each Loan Party hereby represents and warrants to the Administrative Agent, the FILO Agent and the Lenders (including the Initial FILO Lenders) that as of the Eighth Amendment Effective Date:
7
(a) Representations and Warranties; No Defaults. The following statements shall be true on the Eighth Amendment Effective Date, both immediately before and immediately after giving effect to this Amendment and the consummation of the transactions contemplated by this Amendment (including the making of the FILO Loan and any other Credit Extensions made on the Eighth Amendment Effective Date and the application of the proceeds thereof):
(i) the representations and warranties of the Borrowers and each other Loan Party contained in Article 5 of the Amended Credit Agreement or any other Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Eighth Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date, and except that for purposes of this clause (i), the representations and warranties contained in the first sentence of Section 5.05(a) of the Amended Credit Agreement and in Section 5.05(e) of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.01(a) of the Amended Credit Agreement, in the case of the first sentence of Section 5.05(a) of the Amended Credit Agreement, and Section 6.01(b) or (c) Amended Credit Agreement, in the case of Section 5.05(e) of the Amended Credit Agreement; and
(ii) no Default or Event of Default under the Amended Credit Agreement or any other Loan Document, as amended hereby, shall exist or would result therefrom.
(b) Authorization; No Contravention. The execution, delivery and performance by each Loan Party of this Amendment and all other instruments and agreements required to be executed and delivered by such Loan Party in connection with the transactions contemplated hereby or referred to herein (collectively, the “Amendment Documents”), and the consummation of the transactions contemplated by the Amendment Documents, are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 of the Amended Credit Agreement), or require any payment to be made under (A) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (B) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) violate any Law; except with respect to any conflict, breach, contravention or payment (but not creation of Liens) referred to in clause (ii)(A), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a
8
Material Adverse Effect.
(c) Governmental Authorization; Other Consents. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, any Loan Party of this Amendment, any other Amendment Document, the Amended Credit Agreement or any other Loan Document, or for the consummation of the transactions contemplated hereby or thereby, except for the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
(d) Binding Effect. This Amendment, each other Amendment Document, the Amended Credit Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. This Amendment, each other Amendment Document, the Amended Credit Agreement and each other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by bankruptcy insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity.
7. Effect on Loan Documents. After giving effect to this Amendment on the Eight Amendment Effective Date, the Amended Credit Agreement and the other Loan Documents shall be and remain in full force and effect in accordance with their terms and are hereby ratified and confirmed by the Loan Parties in all respects. Each Loan Party hereby acknowledges and agrees that, after giving effect to this Amendment, all of its obligations and liabilities under the Existing Credit Agreement and the other Loan Documents to which it is a party, as such obligations and liabilities have been amended by this Amendment, are reaffirmed and remain in full force and effect. All references to the “Credit Agreement” in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to the Amended Credit Agreement. Nothing contained herein shall be construed as a novation of the Obligations outstanding under and as defined in the Existing Credit Agreement, which shall remain in full force and effect, except as modified and amended hereby. Each Loan Party hereby further acknowledges and agrees that the Collateral Documents continue to secure the Obligations (including, for the avoidance of doubt, the FILO Obligations), as modified pursuant to this Amendment, to the same extent as prior to giving effect to this Amendment.
8. Joinder of Initial FILO Lenders. As of the Eighth Amendment Effective Date, the parties hereto hereby agree and acknowledge that, by executing this Amendment, each Initial FILO Lender shall become a “Lender” and a “FILO Lender” under the Amended Credit Agreement and the other Loan Documents with a Commitment as set forth on Schedule 2.01(a)(ii) of the Amended Credit Agreement. Each Initial FILO Lender (a)
9
represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (ii) it shall be bound by the provisions of the Amended Credit Agreement as a Lender and FILO Lender thereunder and, to the extent of its Commitment (or Loans) and all other related rights and obligations under the Amended Credit Agreement and the Intercreditor Agreement, shall have the obligations of a Lender and a FILO Lender thereunder, (iii) it has received a copy of the Existing Credit Agreement and the Intercreditor Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and become a Lender and a FILO Lender under the Amended Credit Agreement, and (iv) it has, independently and without reliance upon the Administrative Agent, the FILO Agent or any existing Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and become a Lender and a FILO Lender under the Amended Credit Agreement; and (b) agrees that (i) it will, independently and without reliance on any of the Administrative Agent, the FILO Agent or any Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and a FILO Lender.
9. Joinder and Appointment of the FILO Agent. As of the Eighth Amendment Effective Date, the parties hereto hereby agree and acknowledge that, by executing this Amendment, TCG Senior Funding L.L.C. shall become the FILO Agent, and such Person shall be bound by the terms of the Amended Credit Agreement and the other Loan Documents.
10. Acknowledgment of Intercreditor Agreement. The FILO Agent, on behalf of itself and each FILO Secured Party, (a) hereby consents to the subordination of the Liens on the Collateral other than the ABL Priority Collateral securing the Obligations on the terms set forth in the Intercreditor Agreement, and (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement.
11. Limited Effect. This Amendment relates only to the specific matters expressly covered herein, shall not be considered to be an amendment or waiver of any rights or remedies that the Administrative Agent or any Lender may have under the Existing Credit Agreement or any other Loan Document or a consent to any transaction thereunder (in each case, except as expressly set forth herein) or under applicable Law, and shall not be considered to create a course of dealing or to otherwise obligate in any respect the Administrative Agent or any Lender to execute similar or other amendments, waivers or consents or grant any amendments, waivers or consents under the same or similar or other circumstances in the future.
12. Binding Effect. The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their heirs, representatives, successors and assigns.
10
13. Multiple Counterparts. This Amendment may be executed in multiple counterparts, each of which shall constitute an original and together which shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by telecopy, or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) shall be as effective as delivery of a manually executed counterpart of this Amendment.
14. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the date first above written.
BORROWERS: | AT HOME HOLDING III INC. | |
| | |
| By: | /s/ Xxxx Xxxx Xxxxxxxxx |
| | Name: Xxxx Xxxx Xxxxxxxxx |
| | Title: Senior Vice President, General Counsel and Secretary |
| | |
| | |
| AT HOME STORES LLC | |
| | |
| By: | /s/ Xxxx Xxxx Xxxxxxxxx |
| | Name: Xxxx Xxxx Xxxxxxxxx |
| | Title: Senior Vice President, General Counsel and Secretary |
Signature Page to Eighth Amendment to Credit Agreement
GUARANTORS: | AT HOME COMPANIES LLC AT HOME HOLDING II XXX. XX HOME PROPERTIES XXX 0000 XXXX XXXXX XXXXXXX, XXX 0000 WEST INTERSTATE 20, LLC 11501 BLUEGRASS PARKWAY XXX 00000 XXXX XXXXXX XXXX XXX 0000 SOUTH GREENFIELD ROAD XXX 0000 XXXXX XXXX XXX 0000 XXXX XXXX 289 LLC 642 XXXXX XXXXXX XXXXXX XXX 00000 CREOSOTE ROAD XXX 000 X. XXXXXXX XXXXXXXXX (1031), LLC 1660 W. MIDWAY BOULEVARD (1031), XXX 0000 XXXX XXXX, XXX 0000 XXXXX XXXX XXXX 0000, XXX 000 XXXXXXX XXXXX, LLC 4949 XXXXXXXXX XXXXX, XXX 0000 XXXXXXXXX BLVD, LLC 1605 XXXXXX HWY, XXX 0000 XXXXXXX XXXX XX, XXX 0000 000X XXXX XXXX, XXX 00000 LIMESTONE COMMERCIAL DR, XXX 0000 XXXXX XXXX, XXX 0000 X. XXXXX AVENUE, LLC 1919 XXXXX XX, LLC 7697 XXXXXXXXXX XX, XXX 0000 XXXXXX XXXXX XXXXX XXX 0000 XXXXXX CREEK DR LLC 2000 E. SANTA FE LLC 301 X XXXX XXXX XXXX XX XXX 000 XX 00XX XXXXXX LLC 4200 AMBASSADOR XXXXXXX PKWY XXX 0000 XXXXXXXX XXXXX XX LLC 6360 RIDGEWOOD COURT DR LLC AT HOME RMS XXX. XX HOME PROCUREMENT XXX. XX HOME GIFT CARD LLC 1376 E. 70TH STREET LLC 25 PACE BLVD LLC | |
| | |
| By: | /s/ Xxxx Xxxx Xxxxxxxxx |
| | Name: Xxxx Xxxx Xxxxxxxxx |
| | Title: Senior Vice President, General Counsel and Secretary |
Signature Page to Eighth Amendment to Credit Agreement
| 0000 XXXXX XXXXXXX XXXXXXXXX LLC E. XXXXXXXX FIELD RD LLC 3000 XXXXX DRIVE LLC 3551 S 27TH STREET LLC 4833 WATERVIEW MEADOW DR LLC 10800 ASSEMBLY PARK DR LLC 1050 X. XXXXXXX RD LLC 15255 N NORTHSIGHT BLVD LLC 1811 MONOCACY BLVD LLC 2016 GRAND CYPRESS DR LLC 2301 XXXX XXXXXX XXXX X XXX 00000 XXXXXXXXX FREEWAY XXX 0000 XXXXXXXXX XX XXX 000 TANGER OUTLET BLVD XXX 0000 XXXXXXXXX XXXXXXX XXX 0000 W 86TH ST LLC 361 NEWNAN CROSSING BYPASS XXX 0000 XXXXXXX XXXXXX XXX 000 XXXXXXXX XXXXX XX XXX 0000 STATE HIGHWAY 121 LLC 602 US HWY 287 XXX 0000 XXXXX XX XXX 0000 AIRPORT FREEWAY XXX 0000 XXXXXX XXXXX XXXX XXX 00000 SW FELLOWSHIP WAY LLC 1160 GEMINI PLACE LLC 1720 N XXXXXX BLVD XXX 000 XXXXX XXXXXXXX XXXXX XXX 0000 W WISCONSIN AVENUE LLC COMPASS CREEK PARKWAY LLC | |
| | |
| By: | /s/ Xxxx Xxxx Xxxxxxxxx |
| | Name: Xxxx Xxxx Xxxxxxxxx |
| | Title: Senior Vice President, General Counsel and Secretary |
Signature Page to Eighth Amendment to Credit Agreement
| BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer | |
| | |
| By: | /s/ Xxxxx Xxxxxxxx |
| | Name: Xxxxx Xxxxxxxx |
| | Title: Senior Vice President |
| | |
| BANK OF AMERICA, N.A., as a Revolving Credit Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxxxx |
| | Name: Xxxxx Xxxxxxxx |
| | Title: Senior Vice President |
Signature Page to Eighth Amendment to Credit Agreement
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Revolving Credit Lender | |
| | |
| By: | /s/ Xxxxxxx Xxxxx |
| | Name: Xxxxxxx Xxxxx |
| | Title: Assistant Vice President |
Signature Page to Eighth Amendment to Credit Agreement
| REGIONS BANK, as a Revolving Credit Lender | |
| | |
| By: | /s/ Xxxxx Xxxx |
| | Name: Xxxxx Xxxx |
| | Title: Director |
Signature Page to Eighth Amendment to Credit Agreement
| U.S. BANK NATIONAL ASSOCIATION, as a Revolving Credit Lender | |
| | |
| By: | /s/ Xxxxxx X. Xxxxxxxx |
| | Name: Xxxxxx X. Xxxxxxxx |
| | Title: Vice President |
Signature Page to Eighth Amendment to Credit Agreement
| BBVA USA, as a Revolving Credit Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxxx |
| | Name: Xxxxx Xxxxxxx |
| | Title: Senior Vice President |
Signature Page to Eighth Amendment to Credit Agreement
| TCG SENIOR FUNDING L.L.C., as FILO Agent | |
| | |
| By: | /s/ Xxxxx Xxxxxx |
| | Name: Xxxxx Xxxxxx |
| | Title: Managing Director |
Signature Page to Eighth Amendment to Credit Agreement
| TCG BDC, INC., as an Initial FILO Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxx |
| | Name: Xxxxx Xxxxxx |
| | Title: Managing Director |
Signature Page to Eighth Amendment to Credit Agreement
| TCG BDC II SPV LLC, as an Initial FILO Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxx |
| | Name: Xxxxx Xxxxxx |
| | Title: Managing Director |
Signature Page to Eighth Amendment to Credit Agreement
| TCG BDC II SPV 2 LLC, as an Initial FILO Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxx |
| | Name: Xxxxx Xxxxxx |
| | Title: Managing Director |
Signature Page to Eighth Amendment to Credit Agreement
| CARLYLE TACTICAL PRIVATE CREDIT FUND, as an Initial FILO Lender | |
| | |
| By: | /s/ Xxxxx Xxxxxx |
| | Name: Xxxxx Xxxxxx |
| | Title: Principal |
Signature Page to Eighth Amendment to Credit Agreement
| CCOF MAIN SPV, L.P., as an Initial FILO Lender | |
| | |
| By: | /s/ Xxxxxxxxx Xxxxx |
| | Name: Xxxxxxxxx Xxxxx |
| | Title: Managing Director |
Signature Page to Eighth Amendment to Credit Agreement
ANNEX A
AMENDED CREDIT AGREEMENT
[see attached]
Composite Credit Agreement reflecting changes pursuant to
First Amendment to Credit Agreement dated as of May 9, 2012,
Second Amendment to Credit Agreement dated as of May 23, 2013
Third Amendment to Credit Agreement dated as of July 28, 2014,
Assumption and Ratification Agreement dated as of September 29, 0000,
Xxxxxx Xxxxxxxxx to Credit Agreement dated as of June 5, 2015,
Fifth Amendment to Credit Agreement dated as of June 16, 2016,
Sixth Amendment to Credit Agreement dated as of June 2, 2017,
Seventh Amendment to Credit Agreement dated as of July 27, 2017,
and Commitment Increase Letter Agreement dated as of June 14, 2019,
and Eighth Amendment to Credit Agreement dated as of June 12, 2020
CREDIT AGREEMENT
Dateddated as of October 5, 2011,
among
AT HOME HOLDING III INC.
(formerly known as GRD Holding III Corporation), and AT HOME STORES LLC
(as successor in interest to Garden Ridge, L.P.),
as Borrowers,
AT HOME HOLDING II INC.,
as Holdings,
The GUARANTORS party hereto,
The LENDERS party hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and an L/C Issuer
The Other Lenders Party Hereto,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
and
TCG SENIOR FUNDING L.L.C.,
as FILO Agent
_____________________________
BofA SECURITIES, INC.
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Bookrunners,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agent
TABLE OF CONTENTS
| PAGE |
| |
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS | 2 |
Section 1.01. Defined Terms. | 2 |
Section 1.02. Other Interpretive Provisions | 569 |
Section 1.03. Accounting Terms. | 5 69 |
Section 1.04. Rounding | 570 |
Section 1.05. References to Agreements and Laws | 570 |
Section 1.06. Times of Day | 570 |
Section 1.07. Timing of Payment or Performance | 570 |
Section 1.08. Currency Equivalents Generally | 570 |
Section 1.09. Letter of Credit Amounts | 570 |
Section 1.10. Interest Rates | 71 |
Section 1.11. Divisions | 71 |
| |
ARTICLE 2 THE COMMITMENTS AND CREDIT EXTENSIONS | 5771 |
Section 2.01. The Revolving Credit Borrowings. 57Facilities; Reserves | 71 |
Section 2.02. Borrowings, Conversions and Continuations of Loans. | 58 72 |
Section 2.03. Letters of Credit. | 61 76 |
Section 2.04. Swing Line Loans. | 69 84 |
Section 2.05. Prepayments. | 72 87 |
Section 2.06. Termination or Reduction of Revolving Commitments. | 73 89 |
Section 2.07. Repayment of Loans. | 7490 |
Section 2.08. Interest. | 74 90 |
Section 2.09. Fees | 915 |
Section 2.10. Computation of Interest and Fees | 915 |
Section 2.11. Evidence of Indebtedness. | 75 91 |
Section 2.12. Payments Generally; Administrative Agent’s Clawback. | 76 92 |
Section 2.13. Sharing of Payments | 7894 |
Section 2.14. Increase in Revolving Credit Facility. | 7 95 |
Section 2.15. Cash Collateral. | 8097 |
Section 2.16. Defaulting Lenders. | 81 98 |
Section 2.17. Settlement Amongst Revolving Credit Lenders. | 83 100 |
| |
ARTICLE 3 TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY | 84100 |
Section 3.01. Taxes. | 84 100 |
Section 3.02. Illegality | 86103 |
Section 3.03. Inability To Determine Rates | 87103 |
Section 3.04. Increased Cost Andand Reduced Return; Capital Adequacy. | 87 106 |
Section 3.05. Funding Losses | 88107 |
Section 3.06. Matters Applicable to all Requests for Compensation. | 89 107 |
Section 3.07. Replacement of Lenders under Certain Circumstances. | 9 108 |
Section 3.08. Survival | 9109 |
Section 3.09. Designation of At Home III as Borrower’s Agent. 9; Joint and Several Liability | 110 |
| |
ARTICLE 4 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSIONS | 92111 |
Section 4.01. Conditions to Initial Credit Extensions | 92111 |
Section 4.02. Conditions to All Credit Extensions | 96115 |
| |
ARTICLE 5 REPRESENTATIONS AND WARRANTIES | 97116 |
Section 5.01. Existence, Qualification and Power; Compliance with Laws | 97116 |
Section 5.02. Authorization; No Contravention | 98117 |
Section 5.03. Governmental Authorization; other Consents | 98117 |
Section 5.04. Binding Effect | 98117 |
Section 5.05. Financial Statements; No Material Adverse Effect. | 98 117 |
Section 5.06. Litigation | 99118 |
Section 5.07. No Default | 99118 |
Section 5.08. Ownership of Property; Liens. | 99 118 |
Section 5.09. Environmental Compliance | 10019 |
Section 5.10. Taxes | 1020 |
Section 5.11. ERISA Compliance. | 1020 |
Section 5.12. Subsidiaries; Equity Interests | 10221 |
Section 5.13. Margin Regulations; Investment Company Act. | 10221 |
Section 5.14. Disclosure | 10322 |
Section 5.15. Compliance with Laws | 10322 |
Section 5.16. Intellectual Property; Licenses, Etc. | 10322 |
Section 5.17. Anti-Corruption Laws and Sanctions. | 10323 |
Section 5.18. Solvency | 10423 |
Section 5.19. [Reserved]EEA Financial Institutions | 10423 |
Section 5.20. Labor Matters | 10423 |
Section 5.21. Perfection, Etc. | 10423 |
Section 5.22. Tax Shelter Regulations | 1234 |
Section 5.23. PATRIOT Xxx | 0000 |
| |
ARTICLE 6 AFFIRMATIVE COVENANTS | 1245 |
Section 6.01. Financial Statements | 1245 |
Section 6.02. Certificates; other Information | 10626 |
Section 6.03. Notices | 10930 |
Section 6.04. Payment of Obligations | 11030 |
Section 6.05. Preservation of Existence, Etc. | 11031 |
Section 6.06. Maintenance of Properties | 11131 |
Section 6.07. Maintenance of Insurance. | 11131 |
Section 6.08. Compliance with Laws | 11131 |
Section 6.09. Books and Records | 11132 |
Section 6.10. Inspection Rights | 11132 |
Section 6.11. Use of Proceeds | 11333 |
Section 6.12. Covenant to Guarantee Obligations and Give Security. | 11334 |
Section 6.13. Compliance with Environmental Laws | 1365 |
Section 6.14. Further Assurances. | 11536 |
Section 6.15. Cash Management. | 11536 |
Section 6.16. Physical Inventories. | 11738 |
| |
ARTICLE 7 NEGATIVE COVENANTS | 11838 |
Section 7.01. Liens | 11838 |
Section 7.02. Investments | 12142 |
Section 7.03. Indebtedness | 1245 |
Section 7.04. Fundamental Changes | 12748 |
Section 7.05. Dispositions | 12849 |
Section 7.06. Restricted Payments | 12950 |
Section 7.07. Change in Nature of Business | 13253 |
Section 7.08. Transactions with Affiliates | 13253 |
Section 7.09. Burdensome Agreements | 13253 |
Section 7.10. Use of Proceeds | 13354 |
Section 7.11. Financial Covenants.Minimum Availability Covenant | 13354 |
Section 7.12. Amendments of Organization Documents | 13354 |
Section 7.13. Accounting Changes | 13354 |
Section 7.14. Prepayments, Etc. of Indebtedness. | 13455 |
Section 7.15. Holding Company | 13455 |
Section 7.16. Deposit Accounts; Credit Card Processors | 13456 |
| |
ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES | 1356 |
Section 8.01. Events of Default | 1356 |
Section 8.02. Remedies upon Event of Default | 13758 |
Section 8.03. Right to Cure[Reserved] | 13861 |
Section 8.04. Application of Funds | 13961 |
Section 8.05. Turnover by the FILO Secured Parties | 163 |
Section 8.06. DIP Financings; Proceedings under Debtor Relief Laws | 166 |
Section 8.07. Separate Classification | 168 |
Section 8.08. Avoidance and Reinstatement | 168 |
Section 8.09. Payments Over | 169 |
Section 8.10. Subrogation | 169 |
| |
ARTICLE 9 ADMINISTRATIVE AGENT AND OTHER AGENTS | 14169 |
Section 9.01. Appointment and Authorization of Agents. | 14169 |
Section 9.02. Delegation of Duties | 1702 |
Section 9.03. Liability of AgentsExculpatory Provisions | 14270 |
Section 9.04. Reliance by Agents. | 14272 |
Section 9.05. Notice of Default[Reserved] | 14372 |
Section 9.06. Credit Decision; Disclosure of Information by Agents | 14372 |
Section 9.07. Indemnification of Agents | 14473 |
Section 9.08. Agents in their Individual Capacities | 14474 |
Section 9.09. Successor Agent. | 14574 |
Section 9.10. Administrative Agent May File Proofs of Claim | 1475 |
Section 9.11. Collateral and Guaranty Matters | 14677 |
Section 9.12. Secured Bank Product Agreements, Secured Cash Management Agreements and Secured Hedge Agreements | 1478 |
Section 9.13. Other Agents; Arranger and Managers | 14879 |
Section 9.14. Appointment of Supplemental Administrative Agents. | 148 179 |
Section 9.15. Reserves; FILO Deficiency Reserve and FILO Seasonal Reserve | 180 |
Section 9.16. Appointment and Resignation of FILO Agent. | 182 |
Section 9.17. Certain ERISA Matters | 183 |
| |
ARTICLE 10 MISCELLANEOUS | 14984 |
Section 10.01. Amendments, Etc. | 14984 |
Section 10.02. Notices; Effectiveness; Electronic Communications. | 15190 |
Section 10.03. Waiver; Cumulative Remedies; Enforcement | 15392 |
Section 10.04. Expenses and Taxes | 15393 |
Section 10.05. Indemnification by the Borrower | 15493 |
Section 10.06. Payments Set Aside | 15595 |
Section 10.07. Successors And Assigns. | 15695 |
Section 10.08. Confidentiality | 1599 |
Section 10.09. Setoff | 26000 |
Section 10.10. Interest Rate Limitation | 26100 |
Section 10.11. Counterparts | 26101 |
Section 10.12. Integration; Effectiveness | 26201 |
Section 10.13. Survival of Representations and Warranties | 26201 |
Section 10.14. Severability | 26202 |
Section 10.15. Tax Forms. | 26202 |
Section 10.16. Governing Law; Jurisdiction; Etc. | 26505 |
Section 10.17. WAIVER OF RIGHT TO TRIAL BY JURY | 26605 |
Section 10.18. Binding Effect | 26706 |
Section 10.19. No Advisory or Fiduciary Responsibility | 26706 |
Section 10.20. Affiliate Activities | 167207 |
Section 10.21. Electronic Execution of Assignments and Certain other Documents | 20768 |
Section 10.22. USA XXXXXXX XXX | 00000 |
Section 10.23. Press Releases. | 20868 |
Section 10.24. Acknowledgement and Consent to Bail-In of EEA Financial Institutions | 169208 |
Section 10.25. Keepwell | 209 |
Section 10.269. Intercreditor Agreement | 209 |
| |
Section 10.27. Acknowledgment Regarding Any Supported QFCs | 209 |
| |
SCHEDULES
I | Guarantors |
E-1 | Excluded Subsidiaries |
2.1 | Commitments and Pro Rata Shares |
| Revolving Commitments |
| FILO Commitments |
2.03 | Existing Letters of Credit |
5.05 | Supplement to Interim Financial Statements |
5.08(b) | Owned Real Property |
5.08(c) | Leased Real Property |
5.08(d) | Other Locations of Tangible Personal Property |
5.09 | Environmental Matters |
5.11(a) | ERISA Compliance |
5.11(d) | Pension Plans |
5.12 | Subsidiaries and Other Equity Investments |
5.16 | Intellectual Property Matters |
5.17(b) | Credit Card Arrangements |
5.20 | Labor Matters |
6.02 | Collateral Reports |
7.1 | Existing Liens |
7.2 | Existing Investments |
7.3 | Permitted Surviving Debt |
7.08 | Transactions with Affiliates |
10.02 | Administrative Agent’s Office, Certain Addresses for Notices |
EXHIBITS
Form of
A | Committed Loan Notice |
B | Swing Line Loan Notice |
C C-1 | Revolving Credit Note |
C-2 | FILO Note |
D D | Compliance Certificate |
E-1 | Assignment and Assumption |
E-2 | Administrative Questionnaire |
F | Borrowing Base Certificate |
G-1 | Holdings Guaranty |
G-2 | Subsidiary Guaranty |
H | Security Agreement |
I | [Reserved]Joinder Agreement |
J | Intellectual Property Security Agreement |
K-1 | Opinion Matters – Counsel to Loan Parties |
K-2 | Opinion Matters – Local Counsel to Loan Parties |
L | Credit Card Notification |
CREDIT AGREEMENT
This CREDIT AGREEMENT (this “Agreement”) is entered into on October 5, 2011 among (a) AT HOME HOLDING III INC. (formerly known as GRD Holding III Corporation), a Delaware corporation, and AT HOME STORES LLC (as successor in interest to Garden Ridge, L.P.), a Delaware limited liability company (collectively, and jointly and severally, the “Borrower” and each individually, a “Borrower”), (b) AT HOME HOLDING II INC. (formerly known as GRD Holding II Corporation), a Delaware corporation (“Holdings”), (c) each other Guarantor (as hereinafter defined) from time to time party hereto, the(d) each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Joint Lead Arrangers and Bookrunners, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent, and(e) BANK OF AMERICA, N.A., as administrative agent and collateral agent for all Lenders (in such capacities, including any successor thereto in such capacities, the “Administrative Agent”), Swing Line Lender and an L/C Issuer. , and (f) TCG SENIOR FUNDING L.L.C., as agent for the FILO Lenders (in such capacity, including any successor thereto in such capacity, the “FILO Agent”).
PRELIMINARY STATEMENTS
A. Pursuant to the Stock Purchase Agreement, dated as of July 12, 2011 (the “Acquisition Agreement”), among Garden Holdings Inc., a Delaware corporation (the “Company”), the sellers named therein (the “Sellers”), and the Borrower, the Borrower acquired on the Closing Date (in part directly and in part through an indirect contribution of rollover equity by the Sellers to the Borrower, as contemplated by the contribution agreement referred to in the Acquisition Agreement) 100% of the issued and outstanding shares of capital stock or other equity interests of the Company (the “Acquisition”) in accordance with the terms thereof.
B. The Borrower has requested that the Lenders make available to the Borrower a revolving credit facility in an aggregate principal amount of $425,000,0001 for the making of revolving loans and the issuance of letters of credit for the account of the Borrower, from time to time.
C. The Borrower has requested that the FILO Lenders (as hereinafter defined) extend a “first-in, last-out” term loan in an aggregate principal amount of $35,000,000, as of the Eighth Amendment Effective Date.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
1 After giving effect to the commitment increase letter agreement dated June 14, 2019.
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the meanings set forth below:
“ABL License” shall mean the irrevocable license granted by the Loan Parties to the Administrative Agent pursuant to Section 10(f) of the Security Agreement.
“ABL Priority Collateral” has the meaning specified in the Intercreditor Agreement.
“Acceptable Credit Card Processor” means any major credit or debit card processor (including Visa, MasterCard, American Express, Diners Club, and other processors reasonably acceptable to the Administrative Agent in its Permitted Discretion).
“Acceptable Document of Title” means, with respect to any Inventory, a xxxx of lading or other Document (as defined in the Uniform Commercial Code) that (a) is issued by a common carrier which is not an Affiliate of any Loan Party which is in actual possession of such Inventory, (b) is issued to the order of the Borrower or Procurement Company, as applicable, or, if so requested by the Administrative Agent, to the order of the Administrative Agent, (c) names the Administrative Agent as a notify party and bears a conspicuous notation on its face of the Administrative Agent’s security interest therein, (d) is not subject to any Lien (other than in favor of the Administrative Agent or a Term Loan Agent), and (e) is on terms otherwise reasonably acceptable to the Administrative Agent in its Permitted Discretion.
“Account” means “accounts” or “payment intangibles” (each as defined in the Uniform Commercial Code), and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.
“ACH” means automated clearing house transfers.
“Acquisition” as defined in the Preliminary Statements to this Agreement.
“Acquisition Agreement” as defined in the Preliminary Statements to this Agreement.
“Adjustment Date” means the first day of each fiscal quarter, commencing at the end ofwith the first full fiscal quarter beginning after the ClosingEighth Amendment Effective Date.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agenthas the meaning specified in the introductory paragraph to this Agreement.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any othera form approved by the Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to any 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. “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. “Controlling” and “Controlled” have meanings correlative thereto.
“Agent Parties” has the meaning specified in Section 10.02(c).
“Agent-Related Persons” means each Agent, together with its Affiliates, and the officers, directors, employees, agents, attorneys-in-fact, trustees and advisors of such Persons and Affiliates.
“Agents” means, collectively, Bank of America, in its capacity as the Administrative Agent and the Syndication Agent.
“Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving Credit Lenders. The Aggregate Revolving Commitment of all Revolving Credit Lenders shall beis $425,000,000 onas of the Commitment IncreaseEighth Amendment Effective Date, as such amount may be increased or reduced from time to time in accordance with the terms of this Agreement.
“Agreement” means this Credit Agreement.
“Anticipated Cure Deadline” has the meaning specified in Section 8.03(c).
“Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Xxxxxxx Xxx 0000, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which a Loan Party or Subsidiary thereof is located or doing business.
“Applicable Rate” means, with respect to the Revolving Credit Facility, Revolving Credit Loans, Swing Line Loans and Letters of Credit:
(i) (A) Fromfrom and after the SeventhEighth Amendment Effective Date until the first Adjustment Date occurring after the first full fiscal quarter following the SeventhEighth Amendment Effective Date, the percentages set forth in Level I of the pricing grid below; and
(ii) (B) Fromfrom and after the first Adjustment Date occurring after the first full fiscal quarter following the SeventhEighth Amendment Effective Date and on each Adjustment Date thereafter, the Applicable Rate shall be determined from the following
pricing grid based upon the Average Daily Availability for the most recent fiscal quarter ended immediately preceding such Adjustment Date; provided that, until the first Adjustment Date occurring after first full fiscal quarter ending after the Seventh Amendment Effective Date, the Applicable Rate shall be established at Level I (even if the Average Daily Availability for Level III has been met); provided further that, notwithstanding anything to the contrary set forth herein, upon the occurrence of an Event of Default, the Administrative Agent may, and at the direction of the Required Lenders shall, immediately increase the Applicable Rate to that set forth in Level I (even if the Average Daily Availability requirements for a different Level have been met); provided further that, if any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the information set forth in any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Rate would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand..
Applicable Rate for Revolving Credit Facility | |||
Pricing Level | Average Daily Availability | Eurodollar Rate Loans | Base Rate Loans |
I | Less than or equal to $100,000,000 | 12.725% | 01.725% |
II | Greater than $100,000,000 but less than or equal to $150,000,000 | 12.500% | 1.0.50% |
III | Greater than $150,000,000 | 1.275% | 0.275% |
Notwithstanding anything to the contrary set forth in this Agreement, including in this definition, upon the occurrence of an Event of Default, the Administrative Agent may, and at the direction of the Required Revolving Credit Lenders shall, immediately increase the Applicable Rate to that set forth in Level I (even if the Average Daily Availability requirements for a different Level have been met); provided, further that, if any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the information set forth in any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Rate determined pursuant to clause (ii) of this definition would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.
“Appraisal Percentage” means 90.0%; provided that, so long as no amount in respect of the FILO Loans remains outstanding, during the period beginning August 15 and ending on November 30 of each year, Appraisal Percentage shall mean 92.5%.
“Appraised Value” means the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Eligible Inventory as set forth in the Inventory stock ledger of the Borrower or Procurement Company, as applicable, which value shall be determined from time to time by reference to the most recent appraisal undertaken by an independent appraiser engaged by the Administrative Agent.
“Approved Domestic Bank” has the meaning specified in clause (b) of the definition of “Cash Equivalents”.
“Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
“Arrangers” means each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,BofA Securities, Inc. and Xxxxx Fargo Bank, National Association, in their capacities as exclusive lead arrangers and bookrunners.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E-1entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit E or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“At Home III” means At Home Holding III Inc. (formerly known as GRD Holding III Corporation), a Delaware corporation.
“At Home Stores” means At Home Stores LLC (as successor in interest to Garden Ridge, L.P.), a Delaware limited liability company.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended January 28, 2012 and the related consolidated statement of income or operations and cash flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
“Auto-Renewal Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Availability” means, as of any date of determination thereof by the Administrative Agent, the result, if a positive number, of:
(a) the Loan Cap,
minus
(b) the Total Revolving Outstandings.
InExcept as otherwise permitted in writing by the Administrative Agent, in calculating Availability at any time and for any purpose under this Agreement, the Borrower shall certify to the Administrative Agent that all accounts payable and Taxes are being paid on a timely basis.
“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the Revolving Commitment of each Revolving Credit Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria or in the determination of Appraised Value, such Reserves as the Administrative Agent from time to time determines in its Permitted Discretion as being appropriate (a) to reflect the impediments to the AgentsAdministrative Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with the realization upon the Collateral, (c) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of any portion of the Borrowing Base or the assets, business, financial performance or financial condition of any Loan Party, (d) to reflect that a Default or an Event of Default then exists or (e) to reflect any restrictions in the Term Loan Documents on the incurrence of Indebtedness by the Loan Parties, but only to the extent that such restrictions reduce, or with the passage of time could reduce, the amounts available to be borrowed hereunder in order for the Loan Parties to comply with the Term Loan Documents. Without limiting the generality of the foregoing, Availability Reserves may include, in the Administrative Agent’s Permitted Discretion, (but are not limited to) Reserves based on: (i) rent (not to exceed two months’ rent for each location plus any past due rent) (A) for any Store locations and (B) for each distribution center leased by a Loan Party unless, in each case, the applicable lessor has delivered to the Administrative Agent, as applicable, a Collateral Access Agreement; (ii) customs duties, and other costs to release Inventory which is being imported into the United States; (iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims of the PBGC and other Taxes which may have priority over the interests of the Administrative Agent in any Collateral; (iv) salaries, wages, vacation pay and benefits due and owing to employees of any Loan Party, (v) Customer Credit Liabilities, (vi) customer deposits, (vii) Reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals, (viii) warehousemen’s, carrier’s or bailee’s charges which may have priority over the interests of the Administrative Agent in any Collateral, (ix) amounts
due to vendors on account of consigned goods, and (x) (I) so long as any amount in respect of the FILO Loans remains outstanding, upon the direction of the FILO Agent in accordance with Section 9.15(a) and (II) when no amount in respect of the FILO Loans remains outstanding, at any time that Availability is less than 25.0% of the Loan Cap, Reserves to reflect the reasonably anticipated liabilities and obligations of the Loan Parties or any Subsidiary thereof with respect to any Secured Bank Product Agreement, Secured Hedge Agreement or Secured Cash Management Agreement then provided or outstanding. The amount of any Availability Reserve established by the Administrative Agent hereunder shall have a reasonable relationship to the event, condition or other matter which is the basis for such Availability Reserve.
“Average Daily Availability” means the average daily Availability for the immediately preceding fiscal quarter.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation 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 I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Bank Product Agreement” means any agreement relating to services ofor facilities provided on account of (a) purchase cards, (b) credit cards or debit cards, (c) leasing, (cd) factoring, and (d(e) supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), and (f) merchant services constituting a line of credit to any Loan Party or any Subsidiary of any Loan Party, but excluding any Cash Management Agreement.
“Bank Product Provider” means any Person that (i) at the time it enters into a Bank Product Agreement, is a Lender or an Affiliate of a Lender, or (ii) is, as of the Closing Date, a Lender or an Affiliate of a Lender and a party to a Bank Product Agreement, in each case, in its capacity as a party to such Bank Product Agreement.
“Bankers’ Acceptance” means a time draft or xxxx of exchange or other deferred payment obligation relating to a commercial Letter of Credit which has been accepted by the L/C Issuer.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 10.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurodollar Rate plus 1.00%; provided that, if the Base Rate as so determined shall be less than 1.00%, then the Base Rate shall be deemed to be 1.00% for purposes of this Agreement. The “prime rate” is a rate
set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03(a), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Blocked Account” has the meaning provided in Section 6.15(b).
“Blocked Account Agreement” means, with respect to an account established by a Loan Party, an agreement, in form and substance reasonably satisfactory to the Administrative Agent, establishing control (as defined in the Uniform Commercial Code) of such Blocked Account by the Administrative Agent (for the benefit of itself and the other Secured Parties) and whereby the bank maintaining such account agrees, during a Cash Dominion Trigger Period, to comply only with the instructions originated by the Administrative Agent without the further consent of any Loan Party.
“Blocked Account Bank” means each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof.
“Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“Borrower Materials” has the meaning specified in Section 6.02(m).
“Borrower Parties” means the collective reference to the Borrower and its Restricted Subsidiaries, and “Borrower Party” means any one of them.
“Borrowing” means a Revolving Credit Borrowing or, a Swing Line Borrowing or a FILO Borrowing, as the context may require.
“Borrowing Base” means, at any time of calculation, an amount equal to:
(a) the face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate;
plus
(b) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of Appraisal Percentage multiplied by the Appraised Value of Eligible Inventory;
plus
(c) at any time other than during a Cash Dominion Trigger Period, the lesser of (x) 100% of Borrowing Base Eligible Cash Collateral and (y) $20,000,000;
minus
(d) without duplication, the then amount of all Availability Reserves.collectively, the Revolving Borrowing Base and the FILO Borrowing Base.
“Borrowing Base Certificate” means a certificate which sets forth the calculation of the Revolving Borrowing Base and the FILO Borrowing Base, substantially in the form of Exhibit F hereto (with such changes therein as may be required by the Administrative Agent to reflect the components of, and reservesReserves against, the Revolving Borrowing Base and/or the FILO Borrowing Base, including the FILO Deficiency Reserve and the FILO Seasonal Reserve, as provided for hereunder from time to time), executed and certified as accurate and complete by a Responsible Officer of the Borrower, and which shall include appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Administrative Agent.
“Borrowing Base Eligible Cash Collateral” means cash that is unrestricted and in the Borrowing Base Eligible Cash Collateral Account.
“Borrowing Base Eligible Cash Collateral Account” means a segregated deposit account in the name of the Borrower subject to a Blocked Account Agreement, in which only Borrowing Base Eligible Cash Collateral shall be deposited.
“Borrowing Base Reporting Recovery Event” shall mean Availability is at least the greater of (i) $1840,75000,000 and (ii) 12.5% of the Combined Loan Cap for thirty (30) consecutive days and no Event of Default is outstanding during such thirty (30) day period.
“Borrowing Base Reporting Trigger Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) the failure of the Borrower to maintain Availability, at any time, of at least the greater of (x) $1840,75000,000, and (y) 12.5% of the Combined Loan Cap for five (5) consecutive days.
“Borrowing Base Reporting Trigger Period” shall mean the period after a Borrowing Base Reporting Trigger Event and prior to a Borrowing Base Reporting Recovery Event.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
“Capital Expenditures” means, as of any date for the applicable period then ended, all capital expenditures of the Borrower Parties on a consolidated basis for such period, as determined in accordance with GAAP.
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“Carve Out” means, in connection with any proceeding under any Debtor Relief Law relating to any Loan Party, any carve out amount granted with respect to professional fees and expenses, court costs, filing fees, and fees and costs of the Office of the United States Trustee as granted by the court or as agreed to by the Administrative Agent in its reasonable discretion.
“Cash Collateral Account” means a blocked, non-interest bearing deposit account at Bank of America in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner satisfactory to the Administrative Agent.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Secured Parties, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Dominion Recovery Event” shall mean Availability is at least the greater of (i) $135,000,000 and (ii) 10.0% of the Combined Loan Cap for thirty (30) consecutive days and no Event of Default is outstanding during such thirty (30) day period; provided that for the purposes of Section 6.15 a Cash Dominion Trigger Event may be discontinued only two (2) times in any twelve (12) month period, and the termination of a Cash Dominion Trigger Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Trigger Event in the event that the conditions set forth in this definition again arise.
“Cash Dominion Trigger Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) the failure of the Borrower to maintain Availability, at any time, of at least the greater of (x) $135,000,000, and (y) 10.0% of the Combined Loan Cap for five (5) consecutive Business Days.
“Cash Dominion Trigger Period” shall mean the period after a Cash Dominion Trigger Event and prior to a Cash Dominion Recovery Event.
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any of its Restricted Subsidiaries:
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than twenty four months from the date of acquisition thereof; provided, that the full faith and credit of the United States is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Revolving Credit Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated at least P-1 (or the then equivalent grade) by Xxxxx’x or at least “A-1” (or the then equivalent grade by S&P), and (iii) has combined capital and surplus of at least $250,000,000 (any such bank being an “Approved Domestic Bank”), in each case with maturities of not more than three hundred and sixty (360) days from the date of acquisition thereof;
(c) commercial paper and variable or fixed rate notes issued by an Approved Domestic Bank (or by the parent company thereof) or any variable rate note issued by, or guaranteed by a domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Xxxxx’x, in each case with maturities of not more than three hundred and sixty (360) days from the date of acquisition thereof;
(d) marketable short-term money market and similar funds (including such funds investing a portion of their assets in municipal securities) having a rating of at least P-1 or A-1 from either Xxxxx’x or S&P, respectively (or, if at any time neither Xxxxx’x nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower);
(e) repurchase agreements entered into by any Person with a bank or trust company (including any of the Revolving Credit Lenders) or recognized securities dealer having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed or insured by the United States government or any agency or instrumentality of the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations;
(f) Investments, classified in accordance with GAAP as Current Assets of the Borrower or any of its Restricted Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions having capital of at least $250,000,000, and the portfolios of which are limited such that at least 95% of such investments are of the character, quality and maturity described in clauses (a), through (e) of this definition;
(g) investment funds investing at least 95% of their assets in securities of the types (including as to credit quality and maturity) described in clauses (a) through (f) above; and
(h) solely with respect to any Restricted Subsidiary that is a Foreign Subsidiary, (x) such local currencies in those countries in which such Foreign Subsidiary transacts business from time to time in the ordinary course of business and (y) investments of comparable tenor and credit quality to those described in the foregoing clauses (a) through (g) customarily utilized in countries in which such Foreign Subsidiary operates for short term cash management purposes.
“Cash Flow Forecast” means a rolling 13-week cash flow forecast, in a form consistent with the form of Cash Flow Forecast delivered to the Administrative Agent and the FILO Agent prior to the Eighth Amendment Effective Date, prepared by the Borrower in good faith based on assumptions the Borrower believes to be reasonable, which shall include a weekly cash forecast and weekly projections of cash receipts, disbursements (including ordinary course operating expenses, Capital Expenditures, fees and expenses) and total available liquidity (including forecasts of the Revolving Borrowing Base, the FILO Borrowing Base, and Availability) on a reasonably detailed line-item basis, and which is otherwise in form and substance reasonably satisfactory to the FILO Agent.
“Cash Flow Variance Report” has the meaning set forth in Section 6.01(e).
“Cash Interest Charges” means, as of any date for the applicable period ending on such date with respect to the Borrower Parties on a consolidated basis, Consolidated Interest Charges that have been paid or are payable in cash during such period net of cash interest income.
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements to any Loan Party or any Subsidiary of any Loan Party, but excluding (i) credit and debit cards, (ii) purchase cards, and (iii) any other merchant service constituting a line of credit.
“Cash Management Bank” means any Person that (i) at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, or (ii) is, as of the Closing Date, a Lender or an Affiliate of a Lender and a party to a Cash Management Agreement, in each case, in its capacity as a party to such Cash Management Agreement.
“Casualty Event” means any event that gives rise to the receipt by Holdings, the Borrower or any of its Restricted Subsidiaries of any casualty insurance proceeds or condemnation awards in respect of any asset, including but not limited to Inventory, equipment, fixed assets or real property (including any improvements thereon).
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“Change of Control” means the earliest to occur of:
(a) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including any “person” (as that term is used
in Section 13(d) of the Security Exchange Act of 1934, as amended)), other than the Permitted Holders, shall have the power, directly or indirectly, to vote or direct the voting of securities having a majority of the ordinary voting power for the election of directors of Holdings or, after a Consolidating Merger, the Consolidated Entity; or
(b) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Holdings and its Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) other than one or more Permitted Holders; or
(c) any “Change of Control” (or any comparable term) in any document pertaining to the Term Loan Facilities or any Senior Secured Debt in each case with an aggregate outstanding principal amount in excess of the Threshold Amount; or
(d) other than in the case of a Consolidating Merger, At Home III shall cease to be a wholly owned Subsidiary of Holdings.
“Closing Date” means the first date all the conditions precedent in Article 4 are satisfied or waived in accordance with Article 4.
“Closing Material Adverse Effect” has the meaning set forth in Section 4.01(e).
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property and assets that are or are required under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Administrative Agent executed by (a) a bailee or other Person in possession of Collateral, and or (b) any landlord of real property leased by any Loan Party, pursuant to which such Person (i) acknowledges the Administrative Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such real property, (iii) provides the Administrative Agent with access to the Collateral held by such bailee or other Person or located in or on such real property, (iv) as to any landlord, provides the Administrative Agent with a reasonable time to sell and dispose of the Collateral from such real property, and (v) makes such other agreements with the Administrative Agent as the Administrative Agent may reasonably require.
“Collateral Documents” means, collectively, the Security Agreement, the Intellectual Property Security Agreement, each of the mortgages, collateral assignments, Security Agreement Supplements, IP Security Agreement Supplements, the Blocked Account Agreements, the Credit Card Notifications, security agreements, pledge agreements, control agreements or other similar agreements delivered to the Administrative Agent and the Lenders pursuant to Section 6.12, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
“Commitment” means, as to each Lender, its obligation to (a) make Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be increased or decreased from time to time in accordance with this Agreement.
“Combined Loan Cap” means, at any time of determination, the sum of (a) the Loan Cap and (b) the Total FILO Outstandings at such time.
“Commitment” means, as to each Lender, its Revolving Commitment or FILO Commitment, as applicable.
“Commitment Fee” means 0.25% per annum.
“Commitment Increase Effective Date” means June 14, 2019.
“Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a FILO Borrowing, (c) a conversion of Loans from one Type to the other, or (cd) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
“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.
“Company” has the meaning set forth in the Preliminary Statements.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Concentration Account” has the meaning set forth in Section 6.15(d).
“Conforming DIP” has the meaning set forth in Section 6.15(d8.06(a).
“Consolidated Cash Balance” means, at any time, (a) the aggregate amount of the cash and Cash Equivalents of the Loan Parties and their Restricted Subsidiaries, less (b) an amount of Cash and Cash Equivalents necessary for the Loan Parties and their Restricted Subsidiaries to satisfy the current liabilities incurred by them in the ordinary course of their business and without acceleration of the satisfaction of such current liabilities within the following five (5) Business Days, including amounts held for the purpose of (i) paying any taxes, payroll, employee wage and benefit payments and trust and fiduciary obligations or (ii) making principal and interest payments on any permitted Indebtedness of the Loan Parties and their Restricted Subsidiaries (including the Loans and the Term Loans).
“Consolidated Cash EBITDA” has the meaning specified in the First Lien Credit Agreement as in effect on the Fourth Amendment Effective Date.
“Consolidated Cash Taxes” means, as of any date for the applicable period ending on such date with respect to the Borrower Parties on a consolidated basis, the aggregate of all income, franchise and similar taxes, as determined in accordance with GAAP, to the extent the same are payable in cash with respect to such period.
“Consolidated EBITDA” means, as of any date for the applicable period ending on such date with respect to any Person and its Restricted Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income, plus (b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for, without duplication,
(i) total interest expense determined in accordance with GAAP (including, to the extent deducted and not added back in computing Consolidated Net Income, (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments, (d) the interest component of Capitalized Leases, (e) net payments, if any, made (less net payments, if any, received) pursuant to interest rate Swap Contracts with respect to Indebtedness, (f) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and (g) any expensing of bridge, commitment and other financing fees) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income and gains on such hedging obligations,
(ii) provision for taxes based on income, profits or capital of the Borrower and the Restricted Subsidiaries, including, without limitation, federal, state, franchise and similar taxes (such as Delaware franchise tax, Pennsylvania capital tax or Texas margin tax) and foreign withholding taxes paid or accrued during such period including penalties and interest related to such taxes or arising from any tax examinations,
(iii) depreciation and amortization expense (including amortization of intangible assets),
(iv) non-cash expenses resulting from any employee benefit or management compensation plan or the grant of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs to employees of Holdings, the Borrower or any Restricted Subsidiary pursuant to a written plan or agreement or the treatment of such options under variable plan accounting,
(v) any costs or expenses incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of Holdings or net cash proceeds of an issuance of Equity Interests of Holdings (other than Disqualified Equity Interests),
(vi) all extraordinary, non-recurring or unusual charges,
(vii) costs and expenses in connection with store openings; provided that the aggregate amount of add backs made pursuant to this clause (vii) shall not exceed an amount equal to 15% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (vii)),
(viii) cash expenses and employee bonuses incurred in connection with, or in anticipation of, the Transaction,
(ix) cash restructuring charges or reserves and business optimization expense, including any restructuring costs and integration costs incurred in connection with Permitted Acquisitions after the Closing Date, project start-up costs, costs related to the closure and/or consolidation of facilities, retention charges, contract termination costs, recruiting, retention, relocation, severance and signing bonuses and expenses, transaction fees and expenses (including those in connection with, to the extent permitted hereunder, any Investment, any Debt Issuance, any Equity Issuance, any Disposition, or any Casualty Event, in each case, whether or not consummated), systems establishment costs, conversion costs and excess pension charges, consulting fees and any one-time expense relating to enhanced accounting function, or costs associated with becoming a public company or any other costs (including legal services costs) incurred in connection with any of the foregoing; provided that the aggregate amount of add backs made pursuant to this clause (ix) when added to the aggregate amount of add backs made pursuant to clause (xix) below, shall not exceed an amount equal to 15% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (ix) or clause (xix) below);
(x) any losses (or minus any gains) realized upon the disposition of property outside of the ordinary course of business,
(xi) any (x) expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement or (y) expenses, charges or losses with respect to liability or casualty events or business interruption covered by insurance, in each case to the extent actually reimbursed, or, so long as the Borrower has made a determination that reasonable evidence exists that such indemnification or reimbursement will be made, and only to the extent that such amount is (A) not denied by the applicable indemnifying party, obligor or insurer in writing and (B) in fact indemnified or reimbursed within eighteen (18) months of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such eighteen (18) months),
(xii) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (A) not denied in writing by the applicable insurer and (B) in fact reimbursed within three hundred and sixty-five (365) days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed
within such three hundred and sixty-five (365) days), expenses, charges or losses with respect to liability or casualty events or business interruption,
(xiii) management fees permitted under Section 7.08(d),
(xiv) any non-cash purchase accounting adjustment and any step-ups with respect to re-valuing assets and liabilities in connection with the Transaction or any Investment permitted under Section 7.02,
(xv) non cash-losses from Joint Ventures and non-cash minority interest reductions,
(xvi) fees and expenses in connection with the exchanges or refinancings permitted by Section 7.14,
(xvii) expenses representing the implied principal component under Synthetic Lease Obligations,
(xviii) other expenses of such Person and its Restricted Subsidiaries reducing Consolidated Net Income which do not represent a cash item in such period or any future period,
(xix) the amount of net cost savings, operating expense reductions, other operating improvements and acquisition synergies projected by the Borrower in good faith to be realized during such period (calculated on a pro forma basis as though such items had been realized on the first day of such period) as a result of actions taken or to be taken in connection with the Transaction, any acquisition or disposition by the Borrower or any Restricted Subsidiary or any operational changes (including, without limitation, operational changes arising out of the modification of contractual arrangements (including, without limitation, renegotiation of lease agreements, utilities and logistics contracts and insurance policies, as well as purchases of leased real properties)) or headcount reductions, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions, provided that (A) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the Compliance Certificate required to be delivered pursuant to Section 6.02, certifying that (x) such cost savings, operating expense reductions and synergies are reasonably expected and factually supportable as determined in good faith by the Borrower, and (y) such actions are to be taken within (I) in the case of any such cost savings, operating expense reductions and synergies in connection with the Transaction, twelve (12) months after the Closing Date and (II) in all other cases, within twelve (12) months after the consummation of the acquisition or disposition, which is expected to result in such cost savings, expense reductions or synergies, (B) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (xix) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, (C) to the extent that any cost savings, operating expense reductions and synergies are not associated with the Transaction, all steps shall have been taken for realizing such savings, (D)
projected amounts (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (xix) to the extent occurring more than four (4) full fiscal quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions and synergies and (E) the aggregate amount of add backs made pursuant to this clause (xix), when added to the aggregate amount of add backs made pursuant to clause (ix) above, shall not exceed an amount equal to 15% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (xix) or clause (ix) above),
(xx) the amount of expenses relating to payments made to option holders of any direct or indirect parent company of the Borrower or any of its direct or indirect parent companies in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted hereunder provided that the aggregate amount of add backs made pursuant to this clause (xx) shall not exceed $20,000,000 in any four (4) fiscal quarter period, and
(xxi) costs of surety bonds incurred in such period in connection with financing activities; provided that the aggregate amount of add backs made pursuant to this clause (xxi) when added to the aggregate amount of add backs made pursuant to clause (ix) and (xix) above, shall not exceed an amount equal to 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (xxi) or clauses (ix) and (xix) above), minus
(c) an amount which, in the determination of Consolidated Net Income, has been included for
(i) all extraordinary, non-recurring or unusual gains and non cash income during such period, and
(ii) any gains realized upon the disposition of property outside of the ordinary course of business, plus/minus
(d) unrealized losses/gains in respect of Swap Contracts, all as determined in accordance with GAAP, minus
(e) the amount of Restricted Payments made in reliance on Sections 7.06(e)(i), 7.06(e)(ii), Section 7.06(e)(vii) or 7.06(h) (except to the extent that (x) the amount paid with such Restricted Payments by Holdings would not, if the respective expense or other item had been incurred directly by the Borrower, have reduced Consolidated EBITDA determined in accordance with this definition or (y) such Restricted Payment is paid by the Borrower in respect of an expense or other item that has resulted in, or will result in, a reduction of Consolidated EBITDA, as calculated pursuant to this definition).
Notwithstanding anything to the contrary, to the extent included in Consolidated Net Income, there shall be excluded in determining Consolidated EBITDA for any period any income (loss) for such period attributable to the early extinguishment of (i) Indebtedness, (ii) obligations under any Swap Contracts or (iii) other derivative instruments.
“Consolidated Entity” has the meaning specified in the definition of “Consolidating Merger.”
“Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA for such period minus (ii) all Consolidated Cash Taxes, minus (iii) Unfinanced Capital Expenditures made during such period to (b) the sum of all Consolidated Scheduled Funded Debt Payments of the Borrower Parties for the most recently completed Measurement Period, all as determined on a consolidated basis in accordance with GAAP.
“Consolidated Funded Indebtedness” means all Indebtedness of a Person and its Restricted Subsidiaries on a consolidated basis, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but (x) excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transaction or any Permitted Acquisition and (y) any Indebtedness that is issued at a discount to its initial principal amount shall be calculated based on the entire principal amount thereof), excluding (i) net obligations under any Swap Contract, (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of the applicable Person and is expected to be paid in a fiscal quarter immediately following the date of determination of the Consolidated Funded Indebtedness, (iii) any deferred compensation arrangements, (iv) any non-compete or consulting obligations incurred in connection with Permitted Acquisitions, or (v) obligations in respect of letters of credit, except to the extent of unreimbursed amounts thereunder; provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Funded Indebtedness until three (3) Business Days after such amount is drawn. The amount of Consolidated Funded Indebtedness for which recourse is limited either to a specified amount or to an identified asset of such Person shall be deemed to be equal to such specified amount (or, if less, the fair market value of such identified asset).
“Consolidated Interest Charges” means, as of any date for the applicable period ending on such date with respect to any Person and its Restricted Subsidiaries on a consolidated basis, interest expense (including the amortization of debt discount and premium, the interest component under Capitalized Leases and the implied interest component under Synthetic Lease Obligations, but excluding, to the extent included in interest expense, (i) fees and expenses associated with the consummation of the Transaction, (ii) annual agency fees paid to the Administrative Agent or to a Term Loan Agent, (iii) costs associated with obtaining Swap Contracts and (iv) fees and expenses associated with any Investment permitted under Section 7.02, Equity Issuance or Debt Issuance (whether or not consummated)), as determined in accordance with GAAP, to the extent the same are payable in cash with respect to such period.
“Consolidated Net Income” means, as of any date for the applicable period ending on such date with respect to any Person and its Restricted Subsidiaries on a consolidated basis, net
income (excluding, without duplication, (i) extraordinary items, (ii) any amounts attributable to Investments in any Unrestricted Subsidiary or Joint Venture to the extent that either (x) such amounts have not been distributed in cash to such Person and its Restricted Subsidiaries during the applicable period, (y) such amounts were not earned by such Unrestricted Subsidiary or Joint Venture during the applicable period or (z) there exists in respect of any future period any encumbrance or restriction on the ability of such Unrestricted Subsidiary or Joint Venture to pay dividends or make any other distributions in cash on the Equity Interests of such Unrestricted Subsidiary or Joint Venture held by such Person and its Restricted Subsidiaries, (iii) the cumulative effect of foreign currency translations during such period to the extent included in Consolidated Net Income, (iv) the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Restricted Subsidiaries (except to the extent required for any calculation of Consolidated EBITDA on a Pro Forma Basis) and (v) net income of any Restricted Subsidiary (other than a Loan Party) for any period to the extent that, during such period, there exists any encumbrance or restriction on the ability of such Restricted Subsidiary to pay dividends or make any other distributions in cash on the Equity Interests of such Restricted Subsidiary held by such Person and its Restricted Subsidiaries, except to the extent that such net income is distributed in cash during such period to such Person or to a Restricted Subsidiary of such Person that is not itself subject to any such encumbrance or restriction) as determined in accordance with GAAP.
“Consolidated Scheduled Funded Debt Payments” means, as of any date for the applicable period ending on such date with respect to the Borrower Parties on a consolidated basis, the sum of (a) Cash Interest Charges during such period plus (b) all scheduled payments of principal (and with respect to any Term Loan, as such payments may be adjusted in accordance with the applicable Term Loan Documents as a result of any prepayment of the Term Loans) during such period on Consolidated Funded Indebtedness that constitutes Funded Debt (including the implied principal component of payments due on Capitalized Leases and Synthetic Lease Obligations during such period), as determined in accordance with GAAP.
“Consolidating Merger” means a merger of any combination of At Home III, Holdings, and At Home Group Inc. (formerly known as GRD Holding I Corporation), a Delaware corporation, into a single entity (the “Consolidated Entity”) in contemplation of an issuance by the Consolidated Entity of its common Equity Interests in a public offering; provided that (i) upon any Consolidating Merger involving (x) At Home III, references to the “Borrower” in this Agreement shall mean the Consolidated Entity and/or At Home Stores LLC, as applicable, and (y) Holdings, references to “Holdings” in this Agreement shall, to the extent applicable, mean the Consolidated Entity, and to the extent not applicable, be disregarded; (ii) the representations and warranties contained in Article 5, to the extent applicable, shall be true with respect to the Consolidated Entity; (iii) immediately before and immediately after giving effect to such Consolidating Merger, no Default or Event of Default shall have occurred and be continuing; and (iv) upon request by the Administrative Agent, At Home III and Holdings shall deliver such certifications, certificates, joinders, agreements, financial information, or opinions of counsel, that the Administrative Agent deems necessary to confirm (x) the continuing validity and perfection of the Secured Parties’ security interests in the Collateral and (y) the enforceability of the Loan Documents.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Cost” means the lower of cost or market value of Inventory, based upon the Borrower’s accounting practices, known to the Administrative Agent, which practices are in effect on the Closing Date as such calculated cost is determined from invoices received by the Borrower or Procurement Company, as applicable, the Borrower’s or Procurement Company’s purchase journals or the Borrower’s or Procurement Company’s stock ledger. “Cost” does not include Inventory capitalization costs, other non- purchase price charges (such as freight) used in the Borrower’s calculation of cost of goods sold or any costs related to the transfer of Inventory between Procurement Company and the Borrower.
“Covenant Recovery Event” shall mean Availability is at least the greater of (i) $15,000,000 and (ii) 10% of the Loan Cap for thirty (30) consecutive days and no Event of Default is outstanding during such thirty (30) day period.
“Covenant Trigger Event” means either (i) the occurrence and continuance of any Event of Default, or (ii) the failure of the Borrower to maintain Availability of at least the greater of (x) $15,000,000, and (y) 10% of the Loan Cap.
“Covenant Trigger Period” shall mean the period after a Covenant Trigger Event and prior to a Covenant Recovery Event.
“Credit Card Advance Rate” means 90.0%.
“Credit Card Notifications” has the meaning provided in Section 6.15(a).
“Credit Card Receivables” means each “payment intangible” (as defined in the Uniform Commercial Code), together with all income, payments and proceeds thereof, owed by an Acceptable Credit Card Processor to the Borrower resulting from charges by a customer of the Borrower on credit or debit cards issued by such Acceptable Credit Card Processor in connection with the sale of goods by the Borrower, or services performed by the Borrower, in each case in the ordinary course of its business.
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Cure Amount” has the meaning provided in Section 8.03.
“Cure Right” has the meaning provided in Section 8.03.
“Credit Extension Conditions” means, in relation to any determination thereof at any time, the requirements that:
(a) the Total Outstandings at such time shall not exceed the Combined Loan Cap at such time (other than as a result of any Permitted Overadvance or Protective Advance);
(b) the Total Revolving Outstandings at such time shall not exceed the Loan Cap at such time (other than as a result of any Permitted Overadvance or Protective Advance);
(c) the sum of (i) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, (ii) such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, and (iii) such Revolving Credit Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed (other than in the case of the Revolving Credit Lender acting as the Swing Line Lender) such Revolving Credit Lender’s Revolving Commitment;
(d) solely in connection with the issuance, amendment, renewal or extension of any Letter of Credit, the Outstanding Amount of the L/C Obligations at such time shall not exceed the Letter of Credit Sublimit;
(e) solely in connection with the making of any Swing Line Loans, the Outstanding Amount of Swing Line Loans at such time shall not exceed the Swing Line Sublimit; and
(f) the Consolidated Cash Balance shall not exceed $35,000,000;
“Current Assets” means, with respect to any Person, all assets of such Person that, in accordance with GAAP, would be classified as current assets on the balance sheet of a company conducting a business the same as or similar to that of such Person, after deducting appropriate and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP.
“Customer Credit Liabilities” means at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards ofrelating to the Borrower or Procurement Company entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits ofrelating to the Borrower or Procurement Company.
“Customs Broker/Carrier Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent among the Borrower (or Procurement Company, as applicable), a customs broker, freight forwarder, consolidator, or carrier, and the Administrative Agent, in which the customs broker, freight forwarder, consolidator, or carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Administrative Agent and agrees, upon notice from the Administrative Agent, to hold and dispose of the subject Inventory solely as directed by the Administrative Agent.
“DDA” means each checking, savings or other demand deposit account maintained by any of the Loan Parties, other than any such account used solely for payroll, taxes, pension, medical and other ERISA benefit funds. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the AgentsAdministrative Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.
“Debt Issuance” means the issuance by any Person and its Restricted Subsidiaries of any Indebtedness for borrowed money.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to, when used with respect to Revolving Obligations, (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Revolving Credit Loans that are Base Rate Loans hereunder plus (c) 2.00% per annum; provided, however, that, with respect to a Eurodollar Rate Loanthe outstanding principal amount of any Revolving Credit Loan (including any Swing Line Loan), the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Revolving Credit Loan plus 2.00 % per annum, in eachany case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means, subject to Section 2.16, any Lender that, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swing Line Loans within two (2) Business Days of the date required to be funded by it hereunder, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements generally in which it commits to extend credit, (c) has failed, within two (2) Business Days after reasonable request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) become the subject of a Bail-In Action, (iii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, or (iv) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority.
“DIP Financing” means, in connection with a proceeding under any Debtor Relief Laws with respect to a Loan Party, the consensual use of cash collateral by, or the provision of financing or financial accommodations to, such Loan Party (including, in either event, all of the terms and conditions established and/or approved in connection with the consensual use of cash collateral, financing or financial accommodations).
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a Division or otherwise) of any property by any Person (including any sale and leaseback transaction and any
issuance of Equity Interests by a Restricted Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided, however, that “Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its Equity Interests to another Person.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligations or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings (or any direct or indirect parent thereof), the Borrower or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the Borrower or if its Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
“Dividing Person” has the meaning assigned to it 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” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia and any other Subsidiary that is not a “controlled foreign corporation” under Section 957 of the Code.
“EBITDA Condition” means that the actual Consolidated EBITDA for the twelve (12) consecutive months ending on December 31 of the applicable year, or, if such actual Consolidated EBITDA is not achieved for such period, such later twelve (12) consecutive month period prior to September 30 of the immediately succeeding year for which financial statements have been
delivered pursuant to this Agreement, shall be not less than (x) with respect to the FILO Seasonal Reserve for the fiscal year ending on January 30, 2021, the amount set forth as the section entitled “EBITDA Amount” in the calculations delivered to the Administrative Agent and the FILO Agent prior to the Eighth Amendment Effective Date (the “EBITDA Threshold Calculations”) for the applicable Test Date (as defined in the EBITDA Threshold Calculations) and (y) with respect to the FILO Seasonal Reserve for the fiscal year ending on January 29, 2022, the amount set forth as the EBITDA Amount in the EBITDA Threshold Calculations for the applicable Test Date. Notwithstanding the definition of “Consolidated EBITDA” as set forth herein or anything else herein to the contrary, for purposes of determining compliance with the EBITDA Condition, addbacks made in cash to Consolidated EBITDA shall not exceed those set forth in the EBITDA Threshold Calculations.
“EBITDA Threshold Calculations” has the meaning assigned to it in the definition of “EBITDA Condition.”
“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.
“Eighth Amendment” means Eighth Amendment to Credit Agreement, dated as of June 12, 2020.
“Eighth Amendment Effective Date” has the meaning specified in the Eighth Amendment.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.07(b)(iii)); provided that, “Eligible Assignee” shall not include any natural person, the Loan Parties or any of their Affiliates, any Permitted Holder or any Affiliate of a Permitted Investor.
“Eligible Credit Card Receivables” means at the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned by performance and represents the bona fide amounts due to the Borrower from an Acceptable Credit Card Processor or a credit card payment processor, and in each case originated in the ordinary course of business of the Borrower, and (ii) is not ineligible for inclusion in the calculation of any portion of the Borrowing Base pursuant to any of clauses (a) through (i) below. Without
limiting the foregoing, to qualify as an Eligible Credit Card Receivable, an Account shall indicate no Person other than the Borrower as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that the Borrower may be obligated to rebate to a customer, a credit card payment processor, or Acceptable Credit Card Processor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Borrower to reduce the amount of such Credit Card Receivable. Except as otherwise agreed by the Administrative Agent, any Credit Card Receivable included within any of the following categories shall not constitute an Eligible Credit Card Receivable:
(a) Credit Card Receivables which do not constitute an Account;
(b) Credit Card Receivables that have been outstanding for more than five (5) Business Days from the date of sale;
(c) Credit Card Receivables (i) that are not subject to a perfected first-priority security interest and Lien in favor of the Administrative Agent, or (ii) with respect to which the Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than Liens granted to the Administrative Agent pursuant to the Security Documents and Permitted Liens);
(d) Credit Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback);
(e) Credit Card Receivables with respect to which the Acceptable Credit Card Processor has recourse to the Borrower in the event of non-payment by the holder of the applicable credit card;
(f) Credit Card Receivables due from an issuer or payment processor of the applicable Credit Cardcredit card which (i) is the subject of any proceeding under any Debtor Relief Law or (ii) is a target of Sanctions;
(g) Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable credit card issuer with respect thereto;
(h) Credit Card Receivables which do not conform in all material respects to all representations, warranties or other provisions in the Loan Documents relating to Credit Card Receivables; or
(i) Credit Card Receivables which the Administrative Agent determines in its Permitted Discretion to be uncertain of collection or which do not meet such other reasonable eligibility criteria for Credit Card Receivables as the Administrative Agent may determine; provided that, the Administrative Agent may not change any of the eligibility criteria for Eligible Credit Card Receivables unless the Borrower is given at least three (3) days prior written notice of the implementation of such change and, upon delivery of such notice, the Administrative Agent
shall be available to discuss the proposed change with the Borrower to afford the Borrower an opportunity to take such action as may be required so that the event condition or circumstance that is a basis for such Reservechange no longer exists in a manner and to the extent reasonably satisfactory to the Administrative Agent in its Permitted Discretion; provided that, during such three (3) day period, Credit Extensions hereunder shall be subject to the Borrowing Base as if such change in eligibility criteria were given effect.
“Eligible In-Transit Inventory” means, as of any date of determination thereof, without duplication of other Eligible Inventory, In-Transit Inventory:
(a) Which has been shipped from a foreign location for receipt by the Borrower or Procurement Company, but which has not yet been delivered to the Borrower or Procurement Company, which In-Transit Inventory has been in transit for forty-five (45) days or less from the date of shipment of such Inventory;
(b) For which the purchase order is in the name of the Borrower or Procurement Company and title and risk of loss has passed to the Borrower or Procurement Company;
(c) For which an Acceptable Document of Title has been issued, and as to which the Administrative Agent has control (as defined in the Uniform Commercial Code) over the documents of title which evidence ownership of the subject Inventory;
(d) For which, if requested by the Administrative Agent, the Administrative Agent has received a Customs Broker/Carrier Agreement;
(e) Which is insured to the reasonable satisfaction of the Administrative Agent (including, without limitation, marine cargo insurance);
(f) For which payment of the purchase price has been made by the Borrower or Procurement Company or the purchase price is supported by a commercial Letter of Credit, unless the Administrative Agent otherwise agrees; and
(g) Which otherwise would constitute Eligible Inventory (except with respect to the requirements in clause (c) of the definition thereof);
provided that, the Administrative Agent may, in its Permitted Discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event (i) the Administrative Agent determines that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or (ii) any event has occurred or is reasonably anticipated by the Administrative Agent to arise which may otherwise adversely impact the value of such Inventory or the ability of the Administrative Agent to realize upon such Inventory; provided further that, in the case of clause (ii) hereof, the Administrative Agent shall give at least three (3) days prior written notice of the implementation of the exclusion of any particular Inventory from the definition of “Eligible In-Transit Inventory” (and, upon delivery of such notice, the Administrative Agent shall be available to discuss the proposed change with the Borrower to afford the Borrower an opportunity to take such action as may be required so that the event condition or circumstance that is a basis for such exclusion no longer exists in the manner and to the extent reasonably satisfactory to the Administrative Agent in its Permitted Discretion); provided further that, during such three (3) day
period, Credit Extensions hereunder shall be subject to the Borrowing Base as if such change in eligibility criteria were given effect.
“Eligible Inventory” means, as of the date of determination thereof, without duplication, (i) Eligible In-Transit Inventory (provided that, in no event shall Eligible In-Transit Inventory included in Eligible Inventory exceed 20% of the Eligible Inventory included in the sum of the Revolving Borrowing Base and the FILO Borrowing Base), and (ii) items of Inventory of the Borrower and Procurement Company that are finished goods, merchantable and readily saleable to the public in the ordinary course of business, in each case that, (A) comply in all material respects with each of the representations and warranties respecting Inventory made by the Borrower and Procurement Company in the Loan Documents, and (B) are not excluded as ineligible by virtue of one or more of the criteria set forth below. The following items of Inventory shall not be included in Eligible Inventory:
(a) Inventory that is not solely owned by the Borrower or Procurement Company or the Borrower or Procurement Company does not have good, marketable and valid title thereto;
(b) Inventory that is leased by or is on consignment to the Borrower or Procurement Company or which is consigned by the Borrower or Procurement Company to a Person which is not a Loan Party;
(c) Inventory that is not located in the United States of America (excluding territories or possessions of the United States) either (i) at a location that is owned or leased by the Borrower or Procurement Company, except Inventory in transit between such owned or leased locations of any such Person or (ii) in-transit from a domestic location for receipt by the Borrower or Procurement Company at a domestic location that is owned or leased by the Borrower or Procurement Company within twenty-one (21) days of the date of shipment, which Inventory is fully insured (as required by this Agreement) for Cost of such Inventory and with respect to which the title has passed to the Borrower or Procurement Company;
(d) Inventory that is comprised of goods which (i) are damaged, defective, “seconds,” or otherwise unmerchantable, (ii) are to be returned to the vendor, (iii) are obsolete or slow moving, or custom items, work-in-process, raw materials, or that constitute, spare parts, promotional, marketing, packaging and shipping materials or supplies used or consumed in the Borrower’s or Procurement Company’s business, (iv) are seasonal in nature and which have been packed away for sale in the subsequent season (except to the extent the existence of such Inventory is accounted for in the most recent Inventory appraisal conducted pursuant to this Agreement), (v) are not in compliance with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, or (vi) are xxxx and hold goods;
(e) Inventory that is not subject to a perfected first-priority security interest and Lien in favor of the Administrative Agent;
(f) Inventory that consists of samples, labels, bags, and other similar non-merchandise categories;
(g) Inventory that is not insured in compliance with the provisions of Section 6.07 hereof;
(h) Inventory that has been sold to a buyer but not yet delivered to such buyer;
(i) Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party which would require the payment of fees or royalties to, or the consent of, the licensor under such agreement for any sale or other disposition of such Inventory by the Administrative Agent, and the Administrative Agent shall have determined in its Permitted Discretion that it cannot sell or otherwise dispose of such Inventory in accordance with Article 8 without violating any such licensing, patent, royalty, trademark, trade name or copyright agreement;
(j) [reserved];
(k) Inventory acquired in a Permitted Acquisition and which is not of the type usually sold in the ordinary course of the Borrower’s and Procurement Company’s business, unless and until the Administrative Agent has completed or received (A) an appraisal of such Inventory from appraisers satisfactory to the Administrative Agent and establishes Inventory Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (B) such other due diligence as the Administrative Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent; or
(l) Inventory which the Administrative Agent determines in its Permitted Discretion does not meet such other reasonable eligibility criteria for Inventory as the Administrative Agent may determine; provided that, the Administrative Agent may not change any of the eligibility criteria for Eligible Inventory unless the Borrower is given at least three (3) days prior written notice of the implementation of such change and, upon delivery of such notice, the Administrative Agent shall be available to discuss the proposed change with the Borrower to afford the Borrower an opportunity to take such action as may be required so that the event condition or circumstance that is a basis for such Reservechange no longer exists in the manner and to the extent reasonably satisfactory to the Administrative Agent in its Permitted Discretion; provided that, during such three (3) day period, Credit Extensions hereunder shall be subject to the Borrowing Base as if such change in eligibility criteria were given effect.
“Environmental Laws” means any and all applicable Laws, rules, judgments, orders, decrees, permits, licenses, or governmental restrictions, in each case relating to pollution or the protection of the environment or the release into the environment of, or exposure to, any pollutant, contaminant or toxic or hazardous substance or waste, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any Environmental Law or Environmental Permit, (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 action, suit, investigation or proceeding, or contract, agreement or other binding consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“Equity Contribution” has the meaning set forth in Section 4.01(l).
“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“Equity Issuance” means any issuance for cash by any Person to any other Person of (a) its Equity Interests, (b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests.
“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 any Loan Party or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 302 of ERISA or Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party or any Subsidiary or any of their respective ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any Subsidiary or any of their respective ERISA Affiliates from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension Plan or the receipt by any Loan Party or any Subsidiary or any of their respective ERISA Affiliates of notice relating to the intent to terminate such plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is or is reasonably expected to be considered an “at-risk plan” or a plan in “endangered status” or “critical status” within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA, as applicable; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any Subsidiary or any of their respective ERISA Affiliates; (i) the conditions for the imposition of a lien under Section 430(k) of the Code or Section 303(k) of ERISA shall have been or are reasonably expected to be met with respect to any Pension Plan; (j) the failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to a Pension Plan, whether or not waived; (k) the filing pursuant to Section 431 of the Code or Section 304(d) of ERISA of an application for the extension of any amortization
period; (l) the failure to timely make a contribution required to be made with respect to any Pension Plan; (m) the filing pursuant to Section 302(c) of ERISA or Section 412(c) of the Code of an application for a waiver of the minimum funding standard with respect to any Pension Plan or (n) the occurrence of a non-exempt “prohibited transaction” with respect to which a Loan Party or any Subsidiary or any of their respective ERISA Affiliates is a “disqualified person” (each within the meaning of Section 4975 of the Code).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor theretoperson), as in effect from time to time.
“Eurodollar Rate” means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Eurodollar Rate = | | Eurodollar Base Rate |
| 1.00 – Eurodollar Reserve Percentage |
where, for purposes of this clause (a),
“Eurodollar Base Rate” means, for such Interest Period, the rate per annum equal to (i) the Ice Benchmark Administration Limited LIBOR Rate (or any other Person that takes over the administration of such rate for Dollars for a period equal in length to such Interest Period) (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Eurodollar Rate = | | Eurodollar Base Rate |
| 1.00 – Eurodollar Reserve Percentage |
where, for purposes of this clause (b),
“Eurodollar Base Rate” means the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time, determined two (2) Business Days prior to such date for Dollar deposits
being delivered in the London interbank market for a term of one (1) month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one (1) month would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at the date and time of determination.
In no event shall; and
(c) if the Eurodollar Rate be less than zero., as determined pursuant to clause (a) or (b) of this definition, shall be less than 1.00%, such rate shall be deemed 1.00% for purposes of this Agreement.
“Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”
“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental, marginal or other reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Loan the interest on which is determined by reference to the Eurodollar Rate shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“Event of Default” has the meaning specified in Section 8.01.
“Excluded Subsidiary” means any Subsidiary (a) that is (i) a Foreign Subsidiary, (ii) an Unrestricted Subsidiary, (iii) an Immaterial Subsidiary, (iv) prohibited by applicable Laws, regulation or by any Contractual Obligation existing on the Fourth Amendment Effective Date as set forth on Schedule E-1 or on the date after the Fourth Amendment Effective Date such Person becomes a Subsidiary (as long as such Contractual Obligation was not entered into in contemplation of such Person becoming a Subsidiary) from granting a Subsidiary Guaranty or that would require a governmental (including regulatory) or third party consent, approval, license or authorization in order to grant such Subsidiary Guaranty (unless such consent, approval, license or authorization has been received or to the extent that the Borrower has used commercially reasonable efforts (not involving spending money in excess of de minimis amounts) to obtain such consent, approval, license or authorization), (v) a direct or indirect Subsidiary if substantially all of its assets consist of Equity Interests of one or more direct or indirect Foreign Subsidiaries, (vi) a not-for-profit Subsidiary, or (vii) not wholly owned directly by the Borrower or one or more of its wholly owned Restricted Subsidiaries, or (b) to the extent that the burden or cost (including any material adverse tax consequences) of obtaining a Subsidiary Guaranty therefrom outweighs the benefit afforded thereby (as reasonably determined by the Administrative Agent and the Borrower).
“Excluded Swap Obligation” means, with respect to any Guarantor, any obligation in respect of a Secured Hedge Agreement if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such obligation arising under any Secured Hedge Agreement (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (determined after giving effect to Section 10.25 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s obligations in respect of Secured Hedge Agreements by any Borrower or other Loan Party) at the time the guaranty of such Guarantor or the grant of such Lien becomes effective with respect to such obligation under any Secured Hedge Agreement. If any obligation under any Secured Hedge Agreement arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Existing Credit Agreement” has the meaning specified in Section 4.01(c).
“Existing Letters of Credit” means the Letters of Credit described on Schedule 2.03 under the heading “Existing Letters of Credit”.
“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 entered into in connection with the implementation of the foregoing.
“Federal Funds Rate” means, for any day, the rate per annum equal tocalculated by the weighted average of the rates on overnight FederalFederal Reserve Bank of New York based on such day’s federal funds transactions with members ofby depository institutions (as determined in such manner as the Federal Reserve System arranged by Federal funds brokers on such day, asBank of New York shall set forth on its public website from time to time) and published by the Federal Reserve Bank of New York on the Business Day next succeeding such dayBusiness Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that (a), if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day,as so determined would be less than 1.00%, then the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple ofdeemed to be 1/1.00 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent% for the purposes of this Agreement.
“Fee Letter” means, collectively, the Fee Letter, dated July 12, 2011, among the Borrower, Bank of America, MLPFS, and the other parties thereto, the “Second Amendment Fee Letter” referred to in the Second Amendment, the “Third Amendment Fee Letter” referred to in the Third Amendment, the “Fifth Amendment Fee Letter” referred to in the Fifth Amendment, and the “Seventh Amendment Fee Letter” referred to in the Seventh Amendment.
“Fifth Amendment” means the Fifth Amendment to the Credit Agreement, dated as of June 15, 2016.
“FILO Agent” has the meaning specified in the introductory paragraph to this Agreement.
“FILO Borrowing” means a borrowing consisting of the FILO Loans made on the Eighth Amendment Effective Date by a FILO Lender pursuant to Section 2.01(a)(ii).
“FILO Borrowing Base” means, at any time of calculation, an amount (not less than zero) equal to:
(a) the face amount of Eligible Credit Card Receivables, multiplied by 10.0%;
plus
(b) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of (i) 10.0% multiplied by (ii) the Appraised Value of Eligible Inventory;
minus
(c) with duplication of Availability Reserves maintained against the Revolving Borrowing Base, Availability Reserves with respect to Secured Bank Products and Secured Hedge Agreements pursuant to the last sentence of Section 9.15(a);
provided that, for every $1,000,000 in aggregate principal amount of the FILO Loans prepaid or repaid by the Borrower, the advance rate applicable to Eligible Inventory included in the FILO Borrowing Base, as set forth in clause (b)(i) above shall be reduced based on a rate of 25 basis points for every $1,000,000 (e.g., if the amount of such repayment or prepayment was $1,000,000, and the relevant advance rate, prior to such prepayment was 10.0%, such advance rate will be reduced to 9.75%); provided, further that under no circumstances shall the advance rate applicable to Eligible Inventory included in the FILO Borrowing Base be reduced to a rate below 0%. Such reduction shall be effective on the next succeeding date following the date of the relevant prepayment on which a Borrowing Base Certificate is required to be delivered under Section 6.02(c).
The FILO Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent and the FILO Agent pursuant to Section 6.02(c), as adjusted to give effect to any Availability Reserve implemented or modified following such delivery as contemplated by clause (c) above.
“FILO Commitment” means, as to any FILO Lender, the commitment of such FILO Lender to make FILO Loans pursuant to Section 2.01(a)(ii). The amount of each FILO Lender’s
FILO Commitment is set forth on Schedule 2.01(a)(ii). The aggregate amount of the FILO Lenders’ FILO Commitments on the Eighth Amendment Effective Date is $35,000,000.
“FILO Default Rate” means an interest rate equal to the interest rate (including any applicable margin) otherwise applicable to such FILO Loan plus 2.00% per annum, to the fullest extent permitted by applicable Laws.
“FILO Deficiency Reserve” means, at any time, the amount, if any, by which the then outstanding FILO Loans exceeds the FILO Borrowing Base.
“FILO Deficiency Reserve Correction Notice” has the meaning set forth in Section 9.15(c).
“FILO Event of Default” means (i) an Event of Default under Section 8.01(a) with respect to the FILO Loans or any other FILO Obligations, (ii) an Event of Default under Section 8.01(a) with respect to the Obligations (other than the FILO Obligations) as a result of failure of the Borrowers to pay all such Obligations then due and owing due on the earlier of the Maturity Date or the date on which the maturity of such Obligations is accelerated pursuant to Section 8.02(a)(ii), and (iii) an Event of Default under Section 8.01(b) or Section 8.01(c), as applicable, but only to the extent such Event of Default arises from the Loan Parties’ failure to comply with the provisions of Section 6.02(c) or Section 7.11. Each determination of whether a FILO Event of Default has occurred and is continuing shall be made without giving effect to any waiver or modification of any such provision effected pursuant to the terms hereof without the consent of the FILO Agent.
“FILO Facility” means the FILO Commitments and the FILO Loans made pursuant thereto on the Eighth Amendment Effective Date, as provided in this Agreement.
“FILO Fee Letter” means the Fee Letter, dated as of the Eighth Amendment Effective Date, among the Borrower and the FILO Agent.
“FILO Lenders” means Lenders holding FILO Commitments and/or FILO Loans.
“FILO Loans” has the meaning specified in Section 2.01(a)(ii).
“FILO Note” means a promissory note made by the Borrower, substantially in the form of Exhibit C-2, in favor of a FILO Lender, evidencing the FILO Loans made by such FILO Lender to the Borrower.
“FILO Obligations” means all advances to, and debts (including principal, interest, fees (including, without limitation, the FILO Prepayment Premium, if applicable), costs, and expenses), liabilities, obligations, covenants and indemnities of, any Loan Party arising under any Loan Document with respect to the FILO Loans, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, costs and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“FILO Prepayment Premium” has the meaning given to such term in the FILO Fee Letter.
“FILO Rate” means, the higher of (a) 1.00% per annum, and (b) the rate per annum (rounded upwards, if necessary, to the nearest 1/100th), determined on the first day of each calendar month, appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service as determined by the FILO Agent) as the London interbank offered rate for deposits in Dollars for an interest period of three (3) months as of such date (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates).
“FILO Seasonal Reserve” means, (a) for the one-month period commencing on October 1st and ending on October 31st of each year, an amount equal to $5,000,000, (b) for the one-month period commencing on November 1st and ending on November 30th of each year, an amount equal to $10,000,000 and (c) for the period commencing on December 1st of each year and ending on the date, if any, that the EBITDA Condition is satisfied prior to September 30 of the immediately following calendar year, an amount equal to $15,000,000.
“FILO Secured Parties” means, collectively, the FILO Agent and the FILO Lenders.
“FILO Standstill Period” means, with respect to a FILO Event of Default, the period commencing on the date of the Administrative Agent’s and Borrowers’ receipt of written notice from the FILO Agent that a FILO Event of Default has occurred and is continuing and that the FILO Agent is requesting the Administrative Agent to accelerate the FILO Obligations or otherwise commence the enforcement of remedies, and ending on the date that is (i) forty-five (45) days after receipt of such notice with respect to a FILO Event of Default arising under Section 8.01(a) and (ii) sixty (60) days after such receipt of such notice with respect to any other FILO Event of Default.
“Financial Officer” means, with respect to any Loan Party, the chief financial officer, treasurer, assistant treasurer or controller of such Loan Party. Any document delivered hereunder that is signed by a Financial Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Financial Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“First Amendment” means the First Amendment to the Credit Agreement, dated as of May 9, 2012.
“First Lien Administrative Agent” means the “Administrative Agent” as defined in the First Lien Credit Agreement.
“First Lien Collateral Agent” means the “Collateral Agent” as defined in the First Lien Credit Agreement.
“First Lien Credit Agreement” means the First Lien Credit Agreement, dated as of the Fourth Amendment Effective Date (as amended, supplemented or otherwise modified from time to time in accordance with its terms and with the terms hereof and the Intercreditor Agreement),
among Holdings, the Borrower, the First Lien Lenders, the First Lien Administrative Agent and the First Lien Collateral Agent, including any replacement thereof entered into in connection with one or more Permitted Refinancings thereof.
“First Lien Loan Documents” means, collectively, (i) the First Lien Credit Agreement and the other “Loan Documents” as defined in the First Lien Credit Agreement and (ii) any “Loan Documents” (or alternative definition serving an equivalent purpose) in respect of any Incremental First Lien Term Loan or Permitted Other First Lien Indebtedness (as defined in the First Lien Credit Agreement).
“First Lien Loans” means the “Term Loans” as defined in the First Lien Credit Agreement and shall, for the avoidance of doubt, include Incremental First Lien Term Loans (as defined in the First Lien Credit Agreement).
“Foreign Lender” has the meaning specified in Section 10.15(a)(i).
“Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower which is not a Domestic Subsidiary.
“Foreign Vendor” means a Person whose place of business is outside of the United States that sells In-Transit Inventory to the Borrower or Procurement Company.
“Fourth Amendment” means the Fourth Amendment to Credit Agreement, dated as of June 5, 2015.
“Fourth Amendment Effective Date” has the meaning specified in the Fourth Amendment.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“Funded Debt” of any Person means Indebtedness of such Person that by its terms matures more than one (1) year after the date of its creation or matures within one (1) year from any date of determination but is renewable or extendible, at the option of such Person, to a date more than one (1) year after such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one (1) year after such date.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or Disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, Holdings and the Subsidiaries of the Borrower listed on Schedule I and each other Subsidiary of the Borrower that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to Section 6.12.
“Guaranty” means, collectively, the Holdings Guaranty and the Subsidiary Guaranty.
“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, toxic mold, polychlorinated biphenyls, radon
gas and infectious or medical wastes, and all other substances or wastes of any nature regulated as “hazardous” or “toxic,” or as a “pollutant” or a “contaminant,” pursuant to any Environmental Law.
“Hedge Bank” means any Person that (i) at the time it enters into a Secured Hedge Agreement, is a Lender or an Affiliate of a Lender, or (ii) is, as of the Closing Date, a Lender or an Affiliate of a Lender and a party to a Secured Hedge Agreement, in each case, in its capacity as a party to such Secured Hedge Agreement.
“Holdings” has the meaning specified in the introductory paragraph to this Agreement.
“Holdings Guaranty” means the Holdings Guaranty made by Holdings in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit G-1.
“Honor Date” has the meaning specified in Section 2.03(c)(i).
“ICC” has the meaning specified in Section 2.03(g).
“Immaterial Subsidiary” means each Restricted Subsidiary designated as such by the Borrower to the Administrative Agent in writing that meets all of the following criteria as of the date of the most recent balance sheet required to be delivered pursuant to Section 6.01: (a) the assets of such Restricted Subsidiary and its Restricted Subsidiaries (on a consolidated basis) as of such date do not exceed an amount equal to 5.0% of the consolidated assets of the Borrower and its Restricted Subsidiaries as of such date; and (b) the revenues of such Restricted Subsidiary and its Restricted Subsidiaries (on a consolidated basis) for the fiscal quarter ending on such date do not exceed an amount equal to 5.0% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for such period; provided, however, that (x) the aggregate assets of all Immaterial Subsidiaries and their Restricted Subsidiaries (on a consolidated basis) as of such date may not exceed an amount equal to 10.0% of the consolidated assets of the Borrower and its Restricted Subsidiaries as of such date; and (y) the aggregate revenues of all Immaterial Subsidiaries and their Restricted Subsidiaries (on a consolidated basis) for the fiscal quarter ending on such date may not exceed an amount equal to 10.0% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for such period.
“Impacted Loans” has the meaning set forth in Section 3.03(a).
“Impositions” has the meaning set forth in Section 3.01(a).
“Increased Inspection Trigger Event” has the meaning provided in Section 6.10(b).
“Increased Collateral Monitoring Trigger Event” means (a) so long as any amount in respect of the FILO Loans remains outstanding, the failure of the Borrower to maintain Availability, at any time, of at least the greater of (i) $105,000,000 and (ii) 30.0% of the Combined Loan Cap, and (b) when no amount in respect of the FILO Loans remains outstanding, the failure of the Borrower to maintain Availability, at any time, of at least 20.0% of the Loan Cap.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (w) any purchase price adjustment pursuant to the Acquisition Agreement, (x) trade accounts payable in the ordinary course of business, (y) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and (z) expenses accrued in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity Interests; and
(h) all Guarantees of such Person in respect of any of the foregoing;
provided that, notwithstanding the foregoing, Indebtedness shall be deemed not to include Attributable Indebtedness, if any, arising out of Sale and Lease-Back Transactions permitted by Section 7.05(e).
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person that is non-recourse to such Person, for purposes of clause (e), shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
“Indemnified Liabilities” has the meaning set forth in Section 10.05.
“Indemnitees” has the meaning set forth in Section 10.05.
“Information” has the meaning specified in Section 10.08.
“Insolvency Increase Amount” means, during any proceeding under Debtor Relief Laws, an amount equal to the result of (x) 5.00% of the sum of the Revolving Borrowing Base (calculated without giving effect to any FILO Seasonal Reserve), minus (y) any then outstanding Permitted Overadvances or Protective Advances made pursuant to clause (b) of the definition of Maximum Revolving Insolvency Amount (subject to the limitations set forth therein), whether such Permitted Overadvance or Protective Advance is made prior to or during any proceeding under Debtor Relief Laws; provided that such result shall not be less than zero.
“Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, Internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing), indicia and other source and/or business identifiers, all of the goodwill related thereto, and all registrations and applications for registrations thereof; works of authorship and other copyrighted works (including copyrights for computer programs), and all registrations and applications for registrations thereof; inventions (whether or not patentable) and all improvements thereto; patents and patent applications, together with all continuances, continuations, divisions, revisions, extensions, reissuances, and reexaminations thereof; industrial design applications and registered industrial designs; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; all rights to xxx and recover at law or in equity for any past, present or future infringement, dilution or misappropriation, or other violation thereof; and all common law and other rights throughout the world in and to all of the foregoing.
“Intellectual Property Security Agreement” means, collectively, the intellectual property security agreement, substantially in the form of Exhibit J hereto together with each intellectual property security agreement supplement executed and delivered pursuant to Section 6.12.
“Intercreditor Agreement” means the ABL/Term Intercreditor Agreement, dated as of the Fourth Amendment Effective Date, between the Administrative Agent, the First Lien Collateral Agent, the Second Lien Collateral Agent and acknowledged and agreed to by the Borrower, Holdings and the other Guarantors, as it may be further amended, supplemented, restated, renewed, replaced, restructured or otherwise modified from time to time in accordance with this Agreement.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the first (1st) day after the end of calendar month and the Maturity Date.
“Interest Payment Date for FILO Loans” means with respect to any FILO Loan, the first day of each calendar month.
“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate
Loan and ending on the date one, two, three or six months thereafter, or to the extent consented to by all Lenders, nine or twelve months thereafter, as selected by the Borrower in its Committed Loan Notice; provided, that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“In-Transit Inventory” means Inventory of the Borrower or Procurement Company which is in the possession of a common carrier and is in transit from a Foreign Vendor of the Borrower or Procurement Company from a location outside of the continental United States to a location of the Borrower or Procurement Company that is within the continental United States.
“Inventory” has the meaning given that term in the Uniform Commercial Code, and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a business; (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising, and shipping materials related to any of the foregoing.
“Inventory Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria or in the determination of Appraised Value, such Reserves as may be established from time to time by the Administrative Agent in its Permitted Discretion with respect to the determination of the saleability, at retail, of the Eligible Inventory, or which reflect such other factors as affect the market value of the Eligible Inventory or which reflect claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with the realization upon the Inventory. Without limiting the generality of the foregoing, Inventory Reserves may, in the Administrative Agent’s Permitted Discretion, include (but are not limited to) Reserves based on:
(a) obsolescence;
(b) seasonality;
(c) shrink;
(d) imbalance;
(e) change in Inventory character;
(f) change in Inventory composition;
(g) change in Inventory mix;
(h) xxxx-xxxxx (both permanent and point of sale);
(i) retail xxxx-ons and xxxx-ups inconsistent with prior period practice and performance, industry standards, current business plans or advertising calendar and planned advertising events;
(j) out-of-date and/or expired Inventory; and
(k) seller’s reclamation or repossession rights under any Debtor Relief Laws.
The amount of any Inventory Reserve established by the Administrative Agent hereunder shall have a reasonable relationship to the event, condition or other matter which is the basis for such Inventory Reserve.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (h) of the definition of “Indebtedness” set forth in this Section 1.01 in respect of such Person, (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person, or (d) the Disposition of any property for less than the fair market value thereof (other than Dispositions under Sections 7.05(d), (g) and (i)). For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“IP Rights” has the meaning set forth in Section 5.16.
“IP Security Agreement Supplement” has the meaning specified in the Security Agreement.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any applicable Restricted Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.
“Joinder Agreement” means a joinder agreement, in substantially in the form of Exhibit I.
“Joint Venture” means (a) any Person which would constitute an “equity method investee” of the Borrower or any of its Subsidiaries, and (b) any Person in whom the Borrower or any of its Subsidiaries beneficially owns any Equity Interest that is not a Subsidiary.
“Junior Financing” has the meaning specified in Section 7.14(a).
“Junior Financing Documentation” means the documentation governing any Junior Financing.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Commitment hereunder at such time.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Advance” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” means Bank of America and each other Lender reasonably acceptable to the Borrower and the Administrative Agent that agrees to issue Letters of Credit pursuant hereto, in each case in its capacity as an issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Commitment hereunder at such time.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit (including, without limitation, Bankers’ Acceptances) or a standby letter of credit.
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the Latest Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” means an amount equal to $50,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“LIBOR” has the meaning specified in the definition of Eurodollar Rate.
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“LIBOR Successor Rate” has the meaning specified in Section 3.03(c).
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such
market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Liquidation” means the exercise by the Administrative Agent or the Administrative Agent of those rights and remedies accorded to the Administrative Agent under the Loan Documents and applicable Laws as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Administrative Agent, of any public, private or “going-out-of-business”, “store closing” or other similar sale or any other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
“Loan” means an extension of credit by a Lender to the Borrower under Article 2, including in the form of a Revolving Credit Loan or, a Swing Line Loan or a FILO Loan.
“Loan Cap” means, at any time of determination, the lesser of (i) the Aggregate Revolving Commitments at such time and (ii) the Revolving Borrowing Base, as reflected in the most recent Borrowing Base Certificate required to be delivered, pursuant to Section 6.02(c) at such time.
“Loan Documents” means, collectively, (a) for purposes of this Agreement and the Notes and any amendment, supplement or other modification hereof or thereof and for all other purposes other than for purposes of the Guaranty and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Collateral Documents, (v) the Fee Letter, (vi) the Intercreditor Agreement, (vii) all Borrowing Base Certificates and, (viii) the Credit Card Notifications, (ix) all Compliance Certificates, and (x) the FILO Fee Letter and (b) for purposes of the Guaranty and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Collateral Documents, (v) the Fee Letter, (vi) the Intercreditor Agreement, (vii) all Borrowing Base Certificates, (viii) the Credit Card Notifications, (ix) all Compliance Certificates, (x) the FILO Fee Letter, (xi) each Secured Bank Product Agreement, (viixii) each Secured Cash Management Agreement, (viiiand (xiii) each Secured Hedge Agreement, (ix) the Intercreditor Agreement, (x) all Borrowing Base Certificates and (xi) the Credit Card Notifications.
“Loan Parties” means, collectively, the Borrower and each Guarantor.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Management Agreement” means that certain Management Agreement, dated as October 5, 2011, by and among GRD Holding I Corporation, AEA Investors LP, Three Cities Research, Inc. and Xxxxxxx Holdings LLC, as amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, but only to the extent that such amendment, supplement or modification (i) does not increase the obligations of Holdings or any of its Subsidiaries to make payments thereunder and (ii) is otherwise permitted under the terms of the Loan Documents.
“Master Agreement” has the meaning specified in the definition of “Swap Contract”.
“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which the Borrower or any of the Loan Parties is a party or (c) a material adverse effect on the rights and remedies of the Lenders under any Loan Document.
“Maturity Date” means (a) with respect to the Revolving Credit Facility, the earliest of (ai) July 27, 2022, (bii) the date of termination in whole of the Commitments, the Letter of Credit Commitments, and the Swing LineRevolving Commitments pursuant to Section 2.06(a) or Section 8.02, and (ciii) the date that is ninety-one (91) days prior to the maturity date (as such date may be extended) of the First Lien Loans unless the First Lien Loans have been defeased, repaid, repurchased, or refinanced pursuant to a Permitted Refinancing prior to such date (and as a result of such Permitted Refinancing, the maturity date of the First Lien Loans is at least ninety-one (91) days after July 27, 2022) and (b) with respect to the FILO Facility, the earlier of (i) the date provided by the immediately preceding clause (a) as in effect from time to time and (ii) July 27, 2022.
“Maximum Rate” has the meaning specified in Section 10.10.
“Maximum Revolving Insolvency Amount” means an amount equal to the sum of (a) the result of (i) the Revolving Borrowing Base (calculated without giving effect to any FILO Deficiency Reserve), plus (ii) the FILO Borrowing Base, minus (iii) the sum of (x) the amount of Availability required to be maintained by the Borrower pursuant to Section 7.11, and (y) the Total FILO Outstandings, plus (b) without duplication, Permitted Overadvances and/or Protective Advances that satisfy the requirements contained in clauses (a)(i), (a)(ii) and (b) of each such definition (subject to the aggregate caps set forth in clause (b) of each such definition), plus (c) in addition to the Permitted Overadvances and Protective Advances described in clause (b) above, without duplication, Permitted Overadvances and/or Protective Advances in an aggregate amount up to the sum of (x) an amount up to the aggregate amount equal to payroll of the Loan Parties and their Subsidiaries for a two-week period, (y) an additional amount not to exceed $1,500,000 solely to the extent used to fund payroll of the Loan Parties and (z) an amount equal to one months’ rent and charges at all of the Loan Parties’ leased distribution centers and third party warehouse and bailee locations, plus (d) all then outstanding Unintentional Overadvances, plus (e) the Insolvency Increase Amount, plus (f) Revolving Credit Loans (including loans made pursuant to a DIP Financing that is a Conforming DIP) to fund the Carve Out; provided that the agent under such DIP Financing shall implement, and maintain, at all times, a borrowing base reserve in the full amount of the applicable Carve Out (as calculated from time to time during such proceeding).
“Measurement Period” means, at any date of determination, the most recently completed twelve (12) fiscal months (or, if only quarterly financial statements are then required to be
delivered, on a rolling four (4) quarter basis) of the Borrower Parties for which financial statements have been or, if a Default under Section 6.01 then exists, were required to have been, delivered.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“MLPFS” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and its successors.
“Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA subject to the provisions of Title IV of ERISA and to which any Loan Party or any Subsidiary or any of their respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two (2) or more contributing sponsors (including a Loan Party or any Subsidiary or any of their respective ERISA Affiliates) at least two (2) of whom are not under common control, as such a plan is described in Sections 4063 and 4064 of ERISA.
“Non-Consenting Lender” has the meaning specified in Section 3.07(d).
“Nonrenewal Notice Date” has the meaning provided in Section 2.03(b)(iii).
“Note” means a promissory note of the Borrower payable to a Lender, in substantially the form of Exhibit C hereto, evidencing the indebtedness of the Borrower to such Lender resulting from the Loans made or held by such Lender.
“Note” means a Revolving Credit Note or a FILO Note, as applicable.
“NPL” means the National Priorities List under CERCLA.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Bank Product Agreement, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees, expense reimbursement, indemnities and other charges that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees, expense reimbursement, indemnities and other charges are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (a) the obligation to pay principal, interest, L/C Borrowings, Letter of Credit commissions, charges, expenses, fees, indemnities and other amounts payable by any Loan Party under any Loan Document, collectively, the Revolving Obligations and (b) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan PartyFILO Obligations.
Notwithstanding anything to the contrary contained in the foregoing, the Obligations of any Guarantor shall exclude any Excluded Swap Obligation.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Equity” has the meaning set forth in Section 4.01(l).
“Other Taxes” has the meaning specified in Section 3.01(b).
“Outstanding Amount” means (a) with respect to the Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans ((including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case may be, occurring on such date); and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date; and (c) with respect to the FILO Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof.
“Overadvance” means any extension of credit hereunder (whether in the form of a Credit Extension, or advance made by the Administrative Agent), to the extent that, immediately after its having been made (or deemed made), Availability is less than zero (or, solely, for purposes of determining the existence of a Protective Advance or Unintentional Overadvance, any such Credit Extension, advance, or providing of credit support resulting in Availability being less than the amount required pursuant to Section 7.11).
“Participant” has the meaning specified in Section 10.07(d).
“Participant Register” has the meaning set forth in Section 10.07(h).
“PATRIOT Act” has the meaning specified in Section 10.22.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006, as amended.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained, sponsored or contributed to by a Loan Party or any Subsidiary or any ERISA Affiliate (or to which any such party would be deemed to be a “contributing sponsor” or “employer” if such plan were terminated) and which is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
“Permitted Acquisition” has the meaning specified in Section 7.02(i).
“Permitted Discretion” means the commercially reasonable judgment of the Administrative Agent exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions. In exercising such judgment, the Administrative Agent may consider any factors which it reasonably determines: (a) with respect to any Collateral issues, will or reasonably could be expected to adversely affect in any material respect the value of the Collateral, the enforceability or priority of the Administrative Agent’s Liens thereon or the amount which the Administrative Agent, the Lenders or any Issuing Lenderthe L/C Issuer would be likely to receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral, (b) is evidence that any collateral report or financial information delivered to the Administrative Agent by any Person on behalf of the applicable Borrower is incomplete, inaccurate or misleading in any material respect, or (c) creates or reasonably could be expected to create a Default or Event of Default. In exercising such judgment, the Administrative Agent may also consider, without duplication, such factors already included in or tested by the definitions of Eligible Inventory or Eligible Credit Card Receivables, as well as any of the following: (i) changes after the Closing Date in any material respect in demand for, pricing of, or product mix of Inventory; (ii) changes after the Closing Date in any material respect in any concentration of risk with respect to Accounts or Credit Card Receivables; (iii) any other factors or circumstances that will or would reasonably be expected to have a Material Adverse Effect and (iv) any other factors arising after the Closing Date that change in any material respect the credit risk of lending to the Borrowers on the security of the Collateral.
“Permitted Equity Issuance” means any sale or issuance of any Equity Interests (other than Disqualified Equity Interests) of Holdings, the proceeds of which are contributed to the common equity of the Borrower.
“Permitted Holders” means the Sponsor, Three Cities and the management of the Company; provided that in no event shall management of the Company, when taken together, be treated as Permitted Holders with respect to more than fifteen percent (15%) of the outstanding voting Equity Interests of Holdings or with respect to their ability to designate, or to vote or direct the voting of securities having the power to elect, more than fifteen percent (15%) of the board of directors of Holdings.
“Permitted Investors” means the Sponsor and Three Cities.
“Permitted Liens” means those Liens permitted pursuant to Section 7.01.
“Permitted Overadvance” means anany Overadvance made (or deemed to exist) by the Administrative Agent, in its discretion, and which:
(a) is made to :
(i) maintain, protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties; or
(ii) (b) is made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation; or
(iii) (c) is made to pay any other amount chargeable to any Loan Party hereunder; and
(b) (d) together with all other Permitted Overadvances then outstanding, shall not (i) exceed five percent (5.00%) of the Revolving Borrowing Base at any time or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Required Lenders otherwise agree.;
provided that, the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.03 regarding the Revolving Credit Lenders’ obligations with respect to Letters of Credit or Section 2.04 regarding the Revolving Credit Lenders’ obligations with respect to Swing Line Loans, or (ii) result in any claim or liability against the Administrative Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances, and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder, and further provided that in no event shall the Administrative Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions would exceed the Aggregate Revolving Commitments (as in effect prior to any termination of the Commitments pursuant to Section 2.06 hereofor 8.02).
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to accrued and unpaid interest and a reasonable premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any existing commitments unutilized thereunder; (b) such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; (c) if the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or
extension is subordinated in right of payment to the Obligations on terms as favorable in all material respects to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; (d) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed, replaced or extended Indebtedness are either (i) customary for similar debt in light of then-prevailing market conditions or (ii) not materially less favorable, taken as a whole, to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended (provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (d), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of its objection during such five (5) Business Day period); provided that, in all events (including in the event such Permitted Refinancing pertains to Senior Secured Debt) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed, replaced or extended Indebtedness, are not more restrictive as to the terms of this Agreement and the other Loan Documents and the rights and remedies of the Administrative Agent and other Secured Parties hereunder and thereunder, or as to the ABL Priority Collateral, than those set forth in the Term Loan Facilities; (e) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor on the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; and (f) at the time thereof, no Default shall have occurred and be continuing.
“Permitted Store Closings” means sales or other dispositions of the Inventory not in the ordinary course of business in connection with Store closures (a) which Store closures do not exceed (i) in any fiscal year of the Borrower and its Subsidiaries, ten percent (10%) of the number of the Loan Parties’ Stores as of the beginning of such fiscal year (net of Store relocations and new Store openings) and (ii) in the aggregate from and after the Third Amendment Effective Date, twenty-five percent (25%) of the greater of (x) the number of the Loan Parties’ Stores in existence as of the Third Amendment Effective Date (net of Store relocations and new Store openings) and (y) the number of the Loan Parties’ Stores as of the beginning of any fiscal year beginning after the Third Amendment Effective Date (net of Store relocations and new Store openings) and (b) which sales of Inventory in connection with such Store closures shall, to the extent the Cost of such Inventory being sold (in any one transaction or series of related transactions) is in excess of $10,000,000, be in accordance with liquidation agreements and with professional liquidators reasonably acceptable to the Administrative Agent.
“Permitted Surviving Debt” has the meaning specified in Section 4.01(c).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of a Loan Party or any Subsidiary or any of their respective ERISA Affiliates or any such plan sponsored, maintained or contributed to by a
Loan Party or any Subsidiary or any of their respective ERISA Affiliates on behalf of any of its employees.
“Platform” has the meaning specified in Section 6.02.
“Pledged Debt” has the meaning specified in the Security Agreement.
“Pledged Interests” has the meaning specified in the Security Agreement.
“Procurement Company” means At Home Procurement Inc., a Delaware corporation.
“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, in respect of a Specified Transaction or incurrence of Indebtedness subject to the Specified Incurrence Conditions, that such Specified Transaction or incurrence of Indebtedness subject to the Specified Incurrence Conditions and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement in such covenant: (a) income statement items (whether positive or negative) attributable to the property or Person, if any, subject to such Specified Transaction or incurrence of Indebtedness subject to the Specified Incurrence Conditions, (i) in the case of a Disposition of all or substantially all Equity Interests in any Restricted Subsidiary of the Borrower or any division, product line, or facility used for operations of the Borrower or any of its Restricted Subsidiaries, shall be excluded, and (ii) in the case of a purchase or other acquisition of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all or substantially all of the Equity Interests in a Person, shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by the Borrower or any of its Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination.
“Pro Forma Excess Availability” shall mean, as of any date of calculation, after giving Pro Forma Effect to the transaction then to be consummated or payment to be made, Availability as of the date of such transaction or payment and for each of the sixty (60) days prior thereto.
“Pro Rata Share” means, (a) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, a fraction (expressed as a percentage, carried out to the ninth (9th) decimal place, and subject to adjustment as provided in Section 2.16), the numerator of which is the amount of the Revolving Commitments of such Revolving Credit Lender at such time and the denominator of which is the amount of the Aggregate Revolving Commitments at such time; provided, that if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, then the Pro Rata Share of each Revolving Credit Lender shall be determined based on the Pro Rata Share of such Revolving Credit Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof and (b) in respect of the FILO Facility, with respect to any FILO Lender (i) on the Eighth Amendment Effective Date immediately prior to the making of the FILO Loans, a fraction (expressed as a percentage, carried out to the ninth (9th) decimal place), the numerator of which is
the amount of the FILO Commitments of such FILO Lender at such time and the denominator of which is the aggregate amount of the FILO Commitments of all FILO Lenders at such time and (ii) thereafter, a fraction (expressed as a percentage, carried out to the ninth (9th) decimal place), the numerator of which is the amount of the FILO Loans of such FILO Lender at such time and the denominator of which is the aggregate amount of the FILO Commitments of all FILO Lenders at such time. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The Pro Rata Share of each Lender shall be determined by the Administrative Agent and shall be conclusive absent manifest error.
“Protective Advance” means any extension of credit hereunder (whether in the form of a Credit Extension, or advance made by the Administrative Agent) that is made (or deemed to exist) by the Administrative Agent, in its discretion, and which:
(a) is made to:
(i) maintain, protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties; or
(ii) enhance the likelihood of, or to maximize the amount of, repayment of any Obligation; or
(iii) is made to pay any other amount chargeable to any Loan Party hereunder; and
(b) together with all other Protective Advances then outstanding, shall not (i) exceed, at any time, the result of (A) 5.00% of the Revolving Borrowing Base (calculated without giving effect to any FILO Seasonal Reserve), minus (B) the aggregate outstanding principal amount of all Permitted Overadvances at such time or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Required Lenders otherwise agree;
provided that the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.03 regarding the Revolving Credit Lenders’ obligations with respect to Letters of Credit or Section 2.04 regarding the Revolving Credit Lenders’ obligations with respect to Swing Line Loans, or (ii) result in any claim or liability against the Administrative Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances, and such Unintentional Overadvances shall not reduce the amount of Protective Advances allowed hereunder.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“Purchase Option Event” has the meaning specified in Section 10.01-B(a).
“Qualified ECP Guarantor” means in respect of any obligation under any Secured Hedge Agreement, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guaranty, keepwell, or grant of the relevant security interest becomes effective with respect to such obligation under such Secured Hedge Agreement or such other person as constitutes an “eligible contract participant” 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) promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified IPO” means the issuance by the Borrower, Holdings, or any direct or indirect parent company of the Borrower to the extent proceeds of such Qualified IPO are contributed to the Borrower, of its common Equity Interests in an underwritten primary public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether alone or in connection with a secondary public offering).Equity Interest” means, with respect to any Person, Equity Interests of such Person that are not Disqualified Equity Interests.
“Recovery” has the meaning set forth in Section 8.08.
“Refinancing” has the meaning set forth in Section 4.01(c).
“Register” has the meaning set forth in Section 10.07(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, attorneys-in-fact, trustees and advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived, with respect to a Pension Plan.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required FILO Lenders” means, as of any date of determination FILO Lenders holding more than 50% of the Outstanding Amount of the FILO Loans; provided, that the portion of the Total FILO Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required FILO Lenders.
“Required Lenders” means, as of any date of determination, at least two unaffiliated Lenders (if there is more than one Lender) having more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), and (b) unless terminated, the aggregate unused Commitments; provided, that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination, at least two unaffiliated Revolving Credit Lenders (if there is more than one Revolving Credit Lender) having more than 50% of the sum of the (a) Total Revolving Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), and (b) unless terminated, the aggregate unused Revolving Commitments; provided, that the unused Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.
“Required Supermajority Lenders” means, as of any date of determination, at least two unaffiliated Lenders (if there is more than one Lender) having more than 66⅔% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition), and (b) unless terminated, the aggregate unused Commitments; provided, that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Supermajority Lenders.
“Reserves” means all (if any) Inventory Reserves and Availability Reserves.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer or assistant treasureror Financial Officer of a Loan Party and, assolely for the purposes of the delivery of incumbency certificates from time to time, any document delivered on the Fourth Amendment Effective Date, any vice president, secretary or assistant secretary of a Loan Party, and, solely for purposes of notices given pursuant to Article 2, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Payment Conditions” means, at the time of determination, with respect to any specified payment,Restricted Payment subject to the Restricted Payment Conditions, the requirements that: (a) no Default or Event of Default then exists or would arise as a result of the making of such payment, (b) after giving effect to such payment, (i) Pro Forma Excess Availability shall be equal to or greater than 15.0% of the Combined Loan Cap and (ii) if the Pro Forma Excess Availability is less than 20.0% of the Combined Loan Cap, the Consolidated Fixed Charge Coverage Ratio, as projecteddetermined on a Pro-Forma Basis for the twelve (12) fiscal months (or, if only quarterly financial statements are then required to be delivered, on a rolling four (4) quarter basis) preceding such payment, is equal to or greater than 1.00:1.00. Prior to undertaking any paymentRestricted Payment which is subject to the Restricted Payment Conditions, the Loan Parties shall deliver to the Administrative Agent a certificate from the Chief Financial Officer of the Borrower evidencing satisfaction of the conditions contained in clause (b) above, if applicable, on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Administrative Agent in good faith (which approval shall not be unreasonably withheld or delayed).
“Restricted Subsidiary” means any Subsidiary of the Borrower that is not an Unrestricted Subsidiary.
“Revolving Borrowing Base” means, at any time of calculation, an amount equal to:
(a) the face amount of Eligible Credit Card Receivables, multiplied by the Credit Card Advance Rate;
plus
(b) the Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of (i) the Appraisal Percentage multiplied by (ii) the Appraised Value of Eligible Inventory;
plus
(c) at any time other than during a Cash Dominion Trigger Period, the lesser of (x) 100% of Borrowing Base Eligible Cash Collateral and (y) $20,000,000;
minus
(d) the FILO Deficiency Reserve;
minus
(e) the FILO Seasonal Reserve in effect at such time;
minus
(f) without duplication, the then amount of all Availability Reserves.
The Revolving Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent and the FILO Agent pursuant to Section 6.02(c), as adjusted to give effect to any Reserves, any FILO Deficiency Reserve or any FILO Seasonal Reserve, in each case, implemented or modified following such delivery.
“Revolving Commitment” means, as to each Lender, its obligation to (a) make Loans to the Borrower pursuant to Section 2.01(a)(i), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01(a)(i) under the caption “Revolving Commitment” or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be increased or decreased from time to time in accordance with this Agreement.
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01(a).
“Revolving Credit Facility” means, at any time, the revolving credit facility provided in this Agreement for the making of Revolving Credit Loans and the issuance of Letters of Credit in an aggregate amount equal to the Aggregate Revolving Commitments at such time.
“Revolving Credit Increase Effective Date” has the meaning specifiedset forth in Section 2.14(c).
“Revolving Credit Lenders” means Lenders holding Revolving Commitments and/or Revolving Credit Loans.
“Revolving Credit Loan” means any portion of an advance made hereunder by any Lender pursuant to Section 2.01(a)(i), for the avoidance of doubt, excluding any FILO Loan.
“Revolving Credit Note” means a promissory note made by the Borrower, substantially in the form of Exhibit C-1, in favor of a Revolving Credit Lender, evidencing the Revolving Credit Loans made by such Revolving Credit Lender to the Borrower.
“Revolving Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party or any Subsidiary arising under any Loan Document or otherwise with respect to any Revolving Credit Loan, Letter of Credit, Secured Bank Product Agreement, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees, expense reimbursement, indemnities and other charges that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees, expense reimbursement,
indemnities and other charges are allowed claims in such proceeding. Without limiting the generality of the foregoing, the Revolving Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, L/C Borrowings, Letter of Credit commissions, charges, expenses, fees, indemnities and other amounts payable by any Loan Party or any of its Subsidiary to any Revolving Secured Party under any Loan Document, including commissions, charges, expenses, fees, indemnities and other amounts that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such commissions, charges, expenses, fees, indemnities and other amounts are allowed claims in such proceeding and (b) the obligation of any Loan Party or any of its Subsidiaries to reimburse any amount in respect of any of the foregoing that any Revolving Secured Party, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary in accordance with, and to the extent permitted by, the Loan Documents. Notwithstanding anything to the contrary contained in the foregoing, the Revolving Obligations shall exclude any Excluded Swap Obligation.
“Revolving Purchase Date” has the meaning specified in Section 2.01(a).set forth in Section 10.01-B(a).
“Revolving Purchase Notice” has the meaning set forth in Section 10.01-B(a).
“Revolving Purchasing Creditors” has the meaning set forth in Section 10.01-B(a).
“Revolving Secured Parties” means, collectively, the Administrative Agent, the Revolving Credit Lenders, the Hedge Banks, the Bank Product Providers, the Cash Management Banks and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.01(d).
“S&P” means Standard & Poor’s Financial Services LLC, a wholly-owned subsidiary of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
“Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Borrower or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person in contemplation of such leasing.
“Sanctioned Country” means at any time, a country, region or territory which is itself the subject or target of any Sanctions.
“Sanctioned Person” means at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person majority-owned or otherwise 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 the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.
“Scheduled Unavailability Date” has the meaning set forth in Section 3.03(c)(ii).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment” means Second Amendment to Credit Agreement, dated as of May 24, 2013.
“Second Lien Administrative Agent” means the “Administrative Agent” as defined in the Second Lien Credit Agreement.
“Second Lien Collateral Agent” means the “Collateral Agent” as defined in the Second Lien Credit Agreement.
“Second Lien Credit Agreement” means the Second Lien Credit Agreement, dated as of the Fourth Amendment Effective Date (as amended, supplemented or otherwise modified from time to time in accordance with its terms and with the terms hereof and the Intercreditor Agreement), among Holdings, the Borrower, the Second Lien Lenders, the Second Lien Administrative Agent and the Second Lien Collateral Agent, including any replacement thereof entered into in connection with one or more Permitted Refinancings thereof. As of the Eighth Amendment Effective Date, the Loan Parties confirm that the Second Lien Credit Agreement and the commitments thereunder have been terminated and all Second Lien Loans and all other obligations thereunder have been repaid in full in cash.
“Second Lien Loan Documents” means, collectively, (i) the Second Lien Credit Agreement and the other “Loan Documents” as defined in the Second Lien Credit Agreement and (ii) any “Loan Documents” (or alternative definition serving an equivalent purpose) in respect of any Incremental Second Lien Term Loan or Permitted Other Second Lien Indebtedness (as defined in the Second Lien Credit Agreement). As of the Eighth Amendment Effective Date, all Second Lien Loan Documents have been terminated and all obligations thereunder have been repaid in full in cash.
“Second Lien Loans” means the “Term Loans” as defined in the Second Lien Credit Agreement and shall, for the avoidance of doubt, include Incremental Second Lien Term Loans (as defined in the Second Lien Credit Agreement). As of the Eighth Amendment Effective Date, the Loan Parties confirm that all Second Lien Loans have been repaid in full in cash.
“Secured Bank Product Agreement” means any Bank Product Agreement that is entered into by and between any Loan Party (or any Subsidiary of a Loan Party) and any Bank Product Provider.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party (or any Subsidiary of a Loan Party) and any Cash Management Bank.
“Secured Hedge Agreement” means any Swap Contract permitted under Article 7 that is entered into by and between any Loan Party (or any Subsidiary of a Loan Party) and any Hedge Bank.
“Secured Net Leverage Ratio” has the meaning specified in the First Lien Credit Agreement as in effect on the Fourth Amendment Effective Date.
“Secured Obligations” has the meaning specified in the Security Agreement.
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, the Bank Product Providers, the Cash Management Banks and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.01(d).
“Secured Parties” means, collectively, the Revolving Secured Parties and the FILO Secured Parties. Where reference is made to the applicable Secured Parties, such reference shall mean, as the context requires, the Revolving Secured Parties or the FILO Secured Parties.
“Security Agreement” means, collectively, the Security Agreement dated the date hereof executed by the Loan Parties, substantially in the form of Exhibit H, together with each other security agreement supplement executed and delivered pursuant to Section 6.12.
“Security Agreement Supplement” has the meaning specified in the Security Agreement.
“Sellers” as defined in the Preliminary Statements to this Agreement.
“Senior Facilities” means the Revolving Credit Facility and the Term Loan Facility2.
“Senior Secured Debt” means Indebtedness that is either unsecured or secured by Senior Secured Debt Liens; provided that (A) (1) unless such Senior Secured Debt is incurred in the form of secured term loans on terms customary for similar debt in light of then-prevailing market conditions, the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) and (2) the covenants, events of default, guarantees, collateral and other terms of such Indebtedness are customary for similar senior secured debt in light of then-prevailing market conditions (it being understood that, unless such Senior Secured Debt is incurred in the form of secured term loans on terms customary for similar debt in light of then-prevailing market conditions, such Indebtedness shall not include any financial maintenance covenants that are more restrictive than the provisions of this Agreement) and in any event, when taken as a whole (other than interest rate and redemption premiums), (x) are not more restrictive to the Borrower and the Restricted Subsidiaries than those set forth in the Term Loan Facility (unless such Senior
2 As defined in this Agreement prior to giving effect to the Fourth Amendment.
Secured Debt is incurred in the form of secured term loans on terms customary for similar debt in light of then-prevailing market conditions) and (y) are not more restrictive as to the terms of this Agreement (except, in the case of Senior Secured Debt that is incurred in the form of secured term loans, financial maintenance covenants customary for similar debt in light of then-prevailing market conditions) and the other Loan Documents and the rights and remedies of the Administrative Agent and other Secured Parties hereunder and thereunder, or as to the ABL Priority Collateral, than those set forth in the Term Loan Facility (provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (2), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of its objection during such five (5) Business Day period); and (B) immediately before and immediately after giving Pro Forma Effect to the incurrence of such Indebtedness, no Default shall have occurred and be continuing.
“Senior Secured Debt Liens” means Liens on the Collateral securing Indebtedness that constitutes Senior Secured Debt, which Liens are either junior or pari passu to the Lien of the First Lien Administrative Agent on the Collateral (and which are junior and subordinate to the Lien of the Administrative Agent with respect to the ABL Priority Collateral), provided that such Liens are granted under security documents to a collateral agent for the benefit of the holders of such indebtedness and subject to the Intercreditor Agreement or another customary intercreditor agreement that is reasonably satisfactory to the Administrative Agent and that is entered into between the Administrative Agent (as collateral agent for the Lenders), such other collateral agent and the Loan Parties and which provides for lien sharing and for the junior or pari passu treatment of such Liens with the Liens securing the Obligations, as applicable.
“Settlement Date” has the meaning provided in Section 2.17(a).
“Seventh Amendment” means the Seventh Amendment to the Credit Agreement, dated as of July 27, 2017.
“Seventh Amendment Effective Date” has the meaning specified in the Seventh Amendment.
“Shrink” means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website and that has been selected or recommended by the Relevant Governmental Body.
“SOFR-Based Rate” means SOFR or Term SOFR.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Incurrence Conditions” means, at the time of determination, with respect to any incurrence of Indebtedness subject to the Specified Incurrence Conditions, the requirements that: (a) no Default or Event of Default then exists or would arise as a result of the incurrence of such Indebtedness, and (b) after giving effect to the incurrence of such Indebtedness, (i) Pro Forma Excess Availability shall be equal to or greater than 12.5% of the Combined Loan Cap and (ii) the Consolidated Fixed Charge Coverage Ratio, as projecteddetermined on a Pro-Forma Basis for the twelve (12) fiscal months (or, if only quarterly financial statements are then required to be delivered, on a rolling four (4) quarter basis) preceding such transaction or payment, is equal to or greater than 1.00:1.00. Prior to undertaking any incurrence of Indebtedness which is subject to the Specified Incurrence Conditions, the Loan Parties shall deliver to the Administrative Agent a certificate from the Chief Financial Officer of the Borrower evidencing satisfaction of the conditions contained in clause (b) above, if applicable, on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Administrative Agent in good faith (which approval shall not be unreasonably withheld or delayed).
“Specified Release Paragraph” has the meaning provided in Section 10.01-A.
“Specified Transaction” means any incurrence or repayment of Indebtedness (other than for working capital purposes) or Investment that results in a Person becoming a Subsidiary, any Permitted Acquisition or any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary of the Borrower, any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Disposition of a business unit, line of business or division of the Borrower or a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise or any material restructuring of the Borrower or implementation of initiative not in the ordinary course of business and described in reasonable detail in the officer’s certificate of the Borrower that, by the terms of this Agreement, requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be tested on a “Pro Forma Basis” or after giving “Pro Forma Effect”.
“Specified Transaction Conditions” means, at the time of determination, with respect to any specified transaction or payment, that is subject to the Specified Transaction Conditions, the requirements that: (a) no Default or Event of Default then exists or would arise as a result of entering into such transaction or the making of such payment, and (b) after giving effect to such transaction or payment, (i) Pro Forma Excess Availability shall be equal to or greater than 12.5% of the Combined Loan Cap and (ii) if the Pro Forma Excess Availability is less than 17.5% of the Combined Loan Cap, the Consolidated Fixed Charge Coverage Ratio, as projecteddetermined on
a Pro-Forma Basis for the twelve (12) fiscal months (or, if only quarterly financial statements are then required to be delivered, on a rolling four (4) quarter basis) preceding such transaction or payment, is equal to or greater than 1.00:1.00. Prior to undertaking any transaction or payment which is subject to the Specified Transaction Conditions, the Loan Parties shall deliver to the Administrative Agent a certificate from the Chief Financial Officer of the Borrower evidencing satisfaction of the conditions contained in clause (b) above, if applicable, on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Administrative Agent in good faith (which approval shall not be unreasonably withheld or delayed).
“Sponsor” means, collectively, as of the Closing Date (i) AEA Investors LP, and affiliates and associated funds of each such Person listed in this clause (i), (ii) Starr Investment Fund II, LLC, and affiliates and associated funds of each such Person listed in this clause (ii), and (iii) SPH GRD Holdings, LLC, and affiliates and associated funds of each such Person listed in this clause (iii), other than (x) any portfolio company of any of the foregoing or (y) any Debt Fund Affiliate (as defined in the Term Loan Facilities as in effect on the date hereof) of any of the foregoing.
“Store” means any retail Store (which may include any real property, fixtures, equipment, Inventory and other property related thereto) operated, or to be operated, by any Loan Party.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” means, collectively, the Restricted Subsidiaries of the Borrower that are Guarantors.
“Subsidiary Guaranty” means, collectively, the Subsidiary Guaranty made by the Subsidiary Guarantors in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit G-2, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12.
“Supplemental Administrative Agent” has the meaning provided in Section 9.14(a).
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts 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 Contracts, as determined in accordance with such Swap Contracts based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower..
“Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Commitments.
“Syndication Agent” means Xxxxx Fargo Bank, National Association, as Syndication Agent under the Loan Documents.
“Synthetic Lease Obligation” means the monetary obligation of a Person under a so-called synthetic, off-balance sheet or tax retention lease.
“Taxes” has the meaning specified in Section 3.01(a).
“Term Loan Agents” means, collectively, the First Lien Administrative Agent, the Second Lien Administrative Agent, the First Lien Collateral Agent, and the Second Lien Collateral Agent, each individually, a “Term Loan Agent”.
“Term Loan Documents” means, collectively, the First Lien Loan Documents and the Second Lien Loan Documents, or any documents governing the Permitted Refinancing of a Term
Loan Facility, and each of the other agreements, documents and instruments providing for or evidencing any obligations in connection therewith, and any other document or instrument executed or delivered at any time in connection with any such obligations, together with any amendments, replacements, modifications, extensions, renewals or supplements to, or restatements of, any of the foregoing in accordance with the terms hereof and the Intercreditor Agreement.
“Term Loan Facilities” means, collectively, the First Lien Credit Agreement and the Second Lien Credit Agreement, each individually, a “Term Loan Facility”.
“Term Loans” means, collectively, the First Lien Loans and the Second Lien Loans, each individually, a “Term Loan”.
“Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Administrative Agent”) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion.
“Third Amendment” means the Third Amendment to Credit Agreement, dated as of July 28, 2014.
“Third Amendment Effective Date” has the meaning specified in the Third Amendment.
“Three Cities” means Three Cities Research, Inc., and its affiliates and associated funds.
“Threshold Amount” means $20,000,000.
“Total FILO Outstandings” means, at any time of determination, the aggregate Outstanding Amount of all FILO Loans.
“Total Outstandings