Exhibit 10.1
SIXTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as of November 7, 2022 and is entered into by and among ACCO Brands Corporation, a Delaware corporation (“Holdings”), ACCO Brands Australia Holding Pty. Ltd. (the “Australian Borrower”), Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”) acting with the consent of each of the Consenting Lenders (as defined below), the Required Lenders and the Guarantors listed on the signature pages hereto, and is made with reference to that certain Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021 and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” and the Credit Agreement as amended by the Amendment, the “Amended Credit Agreement”), by and among Holdings, certain Subsidiaries of Holdings from time to time party thereto, the lenders from time to time party thereto (the “Existing Lenders”) and the Administrative Agent. Unless otherwise stated, capitalized terms used herein without definition shall have the same meanings herein as set forth in the Amended Credit Agreement.
RECITALS
WHEREAS, pursuant to and in accordance with Section 11.01(a) of the Credit Agreement, the Lenders and the other parties hereto have agreed to amend the Credit Agreement on the terms set forth herein;
WHEREAS, each Existing Lender that executes and delivers a consent to this Amendment in the form of the “Term Loan Lender Consent” attached hereto as Annex I (a “Term Loan Lender Consent”) and makes either available election thereunder (i.e. (x) consenting and agreeing to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment), or (y) consenting and agreeing to this Amendment and the Amended Credit Agreement except for the changes related to SOFR (including without limitation, the SOFR Adjustment)) (collectively, the “Accepting Term Loan Lenders”), will in each case, by the fact of such execution and delivery, be deemed to have consented to the terms of this Amendment and the Amended Credit Agreement;
WHEREAS, each Existing Lender holding Revolving Credit Loans (the “Existing Revolving Credit Loans”) or unused Revolving Credit Commitments that executes and delivers a consent to this Amendment in the form of the “Revolving Credit Lender Consent” attached hereto as Annex II (a “Revolving Credit Lender Consent”, and the Revolving Credit Lender Consents together with the Term Loan Lender Consents, the “Lender Consents”) and makes either available election thereunder (i.e. (x) consenting and agreeing to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment), or (y) consenting and agreeing to this Amendment and the Amended Credit Agreement except for the changes related to SOFR (including without limitation, the SOFR Adjustment)) (collectively, the “Accepting Revolving Credit Lenders” and, together with the Accepting Term Loan Lenders, the “Consenting Lenders”) will, by the
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fact of such execution and delivery, be deemed to have consented to the terms of this Amendment and the Amended Credit Agreement; and
WHEREAS, the Administrative Agent, the L/C Issuers, the Swingline Lender, the Consenting Lenders and the Loan Parties are willing, on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement, to amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO LOAN DOCUMENTS
On the terms and subject to the satisfaction (or waiver) of the conditions set forth in Section II hereof:
(i)the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following sample: stricken text) and to add the underlined text (indicated textually in the same manner as the following example: double underlined text), in each case, as set forth in the Credit Agreement attached as Exhibit A hereto; and
(ii)Exhibits A-1 to A-5 of the Credit Agreement are amended and restated in their entirety as set forth in the Exhibits attached as Exhibits B-1 to B-5 hereto.
SECTION II. EFFECTIVENESS
This Amendment shall become a binding agreement of the parties hereto and effective on the date (the “Sixth Amendment Effective Date”) on which the following conditions precedent have been satisfied or waived:
(i)the Administrative Agent shall have received executed signature pages hereto from the Consenting Lenders constituting all Lenders, the L/C Issuers, the Swingline Lender, the Administrative Agent, Holdings, the Borrowers and each other Loan Party.
(ii)The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (in each such case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(A)a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(B)such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment, the Amended Credit Agreement and the other Loan Documents to which such Loan Party is a party;
(C)an opinion from (A) Xxxxxx Price P.C., special New York counsel to the Loans Parties, and (B) Bird & Bird, special Australian counsel to the Loan Parties, in each case, dated as of the Sixth Amendment Effective Date, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(D)a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Sixth Amendment Effective Date after giving effect to this Amendment, from the chief financial officer of Holdings;
(E) a certificate attesting to the compliance with clauses (iv), (vi), (vii), (viii) and (ix) of this Section II on the Sixth Amendment Effective Date from a Responsible Officer of Holdings;
(iii) The Administrative Agent and the Lenders shall have received at least one (1) day prior to the Sixth Amendment Effective Date all documentation and other information reasonably requested in writing by them at least two (2) days prior to the Sixth Amendment Effective Date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act and Anti-Money Laundering and Counter-Terrorism Financing Xxx 0000 (Cth), and, if applicable, the Beneficial Ownership Regulation.
(iv)All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of this Amendment shall have been received.
(v)The Administrative Agent shall have received from Holdings payment in immediately available funds of (w) all accrued costs, fees and expenses (including reasonable fees, expenses and other charges of counsel) owing to the Administrative Agent pursuant to Section 11.04 of the Credit Agreement and Section 11.04 of the Amended Credit Agreement, as applicable, in connection with this Amendment, and (x) all other compensation required to be paid on or prior to the Sixth Amendment Effective Date to the Administrative Agent and its Affiliates pursuant to that certain Fee Letter, dated as of November 7, 2022, by and among Holdings and BofA Securities, Inc.
(vi)The representations and warranties contained in Article 5 of the Amended Credit Agreement shall be true and correct in all material respects, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided that any such representations and warranties that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(vii)There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Administrative Agent, singly or in the aggregate, materially impairs this Amendment, the financing thereof or any of the other transactions contemplated by the Loan Documents, or that could reasonably be expected to have a Material Adverse Effect.
(viii)There has been no change, occurrence or development since December 31, 2019 that could reasonably be expected to have a Material Adverse Effect.
(ix)No Default or Event of Default exists or shall exist or be continuing after giving effect to this Amendment.
(x)With respect to any Loans and Commitments (each under and as defined in the Credit Agreement) outstanding on the Sixth Amendment Effective Date, Holdings shall have paid all interest and fees accrued pursuant to the Loan Documents through the Sixth Amendment Effective Date, whether or not otherwise due as of such date.
(xi)the Administrative Agent shall have received a Notice delivered under Section 2.02 of the Amended Credit Agreement converting any Eurodollar Rate Loans (as defined in the Credit Agreement) outstanding as of the Sixth Amendment Effective Date that are denominated in a LIBOR Quoted Currency (collectively, the “Existing Loans”) to Term SOFR Loans or Agreed Currency Rate Loans, as applicable, in each case effective as of the Sixth Amendment Effective Date and in accordance with Section 5.2 below and the terms of the Amended Credit Agreement.
Notwithstanding anything herein to the contrary, for purposes of determining compliance with the conditions specified in this Section II, each Consenting Lender shall be deemed satisfied with each document and each other matter required to be reasonably satisfactory to such Consenting Lender unless, prior to the Sixth Amendment Effective Date, the Administrative Agent receives notice from such Consenting Lender specifying such Consenting Lender’s objections.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the L/C Issuers, the Swing Line Lender and each of the Consenting Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein and the Amended Credit Agreement, each Loan Party represents and warrants on and as of the Sixth Amendment Effective Date to each of the Administrative Agent, the L/C Issuers, the Swing Line Lender and each of the Consenting Lenders as follows:
3.1Existence, Qualification and Power. Each Loan Party (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization and (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to execute and deliver this Amendment and perform its obligations under, this Amendment, the Amended Credit Agreement and the other Loan Documents, as applicable.
3.2Authorization; No Contravention. The execution and delivery of this Amendment and performance by each Loan Party of this Amendment and the Amended Credit Agreement has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Material Contract to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
3.3Governmental Authorization; Other Consents. No 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, except as have been obtained or made and are in full force and effect, in connection with the execution, delivery or performance by, or enforcement against, any Loan Party
of this Amendment, the Amended Credit Agreement or any other Loan Document to which such Loan Party is a party.
3.4Binding Effect. This Amendment has been duly executed and delivered by each of the Loan Parties party thereto. Each of this Amendment and the Amended Credit Agreement constitute a legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
3.5Incorporation of Representations and Warranties from Credit Agreement. The representations and warranties contained in Article 5 of the Amended Credit Agreement are and will be true and correct in all material respects on and as of the Sixth Amendment Effective Date to the same extent as though made on and as of each such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date; provided that any such representations and warranties that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
3.6Absence of Default. No event has occurred and is continuing or will result from giving effect to the Amendment or the consummation of the transactions contemplated by this Amendment that would constitute an Event of Default or a Default.
3.7Beneficial Ownership. As of the Sixth Amendment Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
SECTION IV. ACKNOWLEDGMENT AND CONSENT; REAFFIRMATION
Nothing in this Amendment extinguishes, novates or releases any right, claim, lien, security interest or entitlement of any of the Lenders or the Administrative Agent created by or contained in any of the Loan Documents nor is any Loan Party released from any covenant, warranty or obligation created by or contained herein or therein as modified hereby.
Each Loan Party hereby confirms its pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Loan Documents, including, without limitation, under each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is party, and agrees that, notwithstanding the effectiveness of this Amendment or any of the transactions contemplated thereby or by the Amended Credit Agreement, such pledges, grants of security interests and other obligations, and the terms of each of the Loan Documents, including, without limitation, under each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is a party, as supplemented, amended, amended and restated or otherwise modified in connection with this Amendment, the Amended Credit Agreement and the transactions contemplated hereby, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all the Obligations.
Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Amended Credit Agreement, the Collateral Documents to which it is a party, the U.S. Obligations Guaranty, the Foreign Obligations Guaranty and this Amendment and consents to the amendment of the Credit Agreement and the other Loan Documents effected pursuant to this Amendment. Each Guarantor hereby confirms that each Loan Document, including each of the Pledge Agreements and the other Foreign Collateral
Documents, to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with such Loan Documents the payment and performance of all “Obligations” and any other obligations under each such Loan Document, including each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is a party (in each case, as such terms are defined in the applicable Loan Document as the same may be amended as contemplated hereby).
Each Guarantor acknowledges and agrees that each of the Loan Documents, including each of the Pledge Agreements and the other Foreign Collateral Documents, as the same may be amended as contemplated hereby to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.
Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to the Sixth Amendment Effective Date set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement and the other Loan Documents to which it is not a party effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment, the Amended Credit Agreement or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendments to the Amended Credit Agreement.
5.1Reference to and Effect on the Credit Agreement and the Other Loan Documents.
(i) On and after the Sixth Amendment Effective Date, each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Credit Agreement.
(ii) Except as specifically amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of any Agent or Lender under, the Amended Credit Agreement or any of the other Loan Documents.
5.2Transition to Applicable Rates.
(i) The Administrative Agent and each Lender acknowledges that, together with the Notices delivered pursuant to Section II of this Amendment, this Amendment constitutes all timely notices or requirements required under the Credit Agreement for the conversion of the Existing Loans, and the Administrative Agent and each such Lender waives any other notice or request requirement under the Credit Agreement.
(ii) Notwithstanding anything to the contrary, each Lender agrees to waive its right to compensation for any amounts owing under Section 3.05 of the Credit Agreement in connection with the conversion of the Existing Loans.
5.3Headings. Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Amendment or any other Loan Document.
5.4Loan Document. This Amendment shall constitute a “Loan Document” under the terms of the Amended Credit Agreement.
5.5Applicable Law; Miscellaneous. THIS AMENDMENT AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY HERETO OR THE NEGOTIATION, EXECUTION OR PERFORMANCE HEREOF OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK. The provisions of Section 11.14 and Section 11.15 of the Amended Credit Agreement are incorporated by reference herein and made a part hereof.
5.6Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Amendment shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
5.7Further Assurances. Each of the Loan Parties shall execute and deliver such additional documents and take such additional actions as may be reasonably requested by the Administrative Agent to effectuate the purposes of this Amendment.
5.8No Novation. Each of the parties hereto acknowledges and agrees that the terms of this Amendment do not constitute a novation but, rather, an amendment of the terms of a pre-existing Indebtedness and related agreement, as evidenced by the Credit Agreement.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
HOLDINGS AND X.X. XXXXXXXX: ACCO BRANDS CORPORATION
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
AUSTRALIAN BORROWER:
Executed by ACCO BRANDS AUSTRALIA
HOLDING PTY. LTD. in accordance with
Section 127 of the Corporations Xxx 0000
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/s/ Xxxxxxx X. X’Xxxxxx_________ Signature of director Name: Xxxxxxx X. X’Xxxxxx, a Responsible officer for the above-referenced company |
/s/ Xxxxxx X. Xxxxxxxxx__________ Signature of director Name: Xxxxxx X. Xxxxxxxxx, a Responsible officer for the above-referenced company |
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
GUARANTORS: ACCO BRANDS CORPORATION
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Executive Vice President and Chief Financial Office
ACCO BRANDS USA LLC
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Executive Vice President and Chief Financial Officer
GENERAL BINDING LLC
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President
ACCO BRANDS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. X’Xxxxxx_________ _
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President
ACCO EUROPE FINANCE HOLDINGS, LLC
By: /s/ Xxxxxxxxx Xxxxx______________
Name: Xxxxxxxxx Xxxxx
Title: Vice President
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
GBC INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx Xxxxx______________
Name: Xxxxxxxxx Xxxxx
Title: Treasurer
ACCO INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President
NESCHEN GBC GRAPHIC FILMS, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx_____________
Name: Xxxxxx X. Xxxxxxxxx
Title: Supervisory Director
ESSELTE U.S. FV, LLC
By: /s/ Xxxxxxxxx Xxxxx______________
Name: Xxxxxxxxx Xxxxx
Title: Vice President and Treasurer
ESSELTE EUROPEAN HOLDINGS LLC
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President and Treasurer
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
ESSELTE LLC
By: /s/ Xxxxxxxxx Xxxxx______________
Name: Xxxxxxxxx Xxxxx
Title: Vice President and Treasurer
ESSELTE HOLDINGS LLC
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President and Treasurer
ELECTRA USA LLC
By: /s/ Xxxxxxx X. X’Xxxxxx_________
Name: Xxxxxxx X. X’Xxxxxx
Title: Vice President and Treasurer
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
Executed by ACCO BRANDS AUSTRALIA HOLDING PTY. LTD. in accordance with Section 127 of the Corporations Xxx 0000
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/s/ Xxxxxxx X. X’Xxxxxx_________ Signature of director Name: Xxxxxxx X. X’Xxxxxx, a Responsible officer for the above- referenced company |
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/s/ Xxxxxx X. Xxxxxxxxx_________ Signature of director Name: Xxxxxx X. Xxxxxxxxx, a Responsible officer for the above- referenced company |
Executed by ACCO BRANDS AUSTRALIA PTY. LTD. in accordance with Section 127 of the Corporations Xxx 0000
|
/s/ Xxxxxx X. Xxxxxxxxx________ Signature of director Name: Xxxxxx X. Xxxxxxxxx, a Responsible officer for the above- referenced company |
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A.,
as Administrative Agent, Xxxx Xxxxxx, Revolving Credit Lender, Swing Line Lender and L/C Issuer
By: /s/ Xxxxxxxx X. Xxxxxxx__________
Authorized Signatory
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
ANNEX I
TERM LENDER CONSENT TO SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[NAME OF TERM LENDER], as a Xxxx Xxxxxx
By ______________________________
Name:
Title:
[[For Term Lenders requiring a second signature block]
By ______________________________
Name:
Title:]
PROCEDURE FOR TERM LENDERS:
The above-named Term Lender elects to:
OPTION A – CONSENT TO ENTIRE AMENDMENT: FORMCHECKBOX Consent and agree to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment).
OPTION B – PARTIAL CONSENT TO THE AMENDMENT: FORMCHECKBOX Except for the changes related to SOFR (including without limitation, the SOFR Adjustment), consent to the Amendment and the Amended Credit Agreement.
ANNEX II
REVOLVING CREDIT LENDER CONSENT TO SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[NAME OF REVOLVING CREDIT XXXXXX], as a Revolving Credit Lender
By ______________________________
Name:
Title:
[[For Revolving Credit Lender requiring a second signature block]
By ______________________________
Name:
Title:]
PROCEDURE FOR REVOLVING CREDIT LENDERS:
The above-named Revolving Credit Lender elects to:
OPTION A – CONSENT TO ENTIRE AMENDMENT: FORMCHECKBOX Consent and agree to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment).
OPTION B – PARTIAL CONSENT TO THE AMENDMENT: FORMCHECKBOX Except for the changes related to SOFR (including without limitation, the SOFR Adjustment), consent to the Amendment and the Amended Credit Agreement.
EXHIBIT A
Changes to the Credit Agreement
[To be attached]
Conformed Third Amended and Restated Credit Agreement
As amended by the First Amendment dated July 26, 2018,
the Second Amendment dated May 23, 2019
the Third Amendment dated May 1, 2020
the Fourth Amendment dated November 10, 2020
and the Fifth Amendment dated March 31, 2021
the Libor Transition Amendment dated December 8, 2021
and the Sixth Amendment dated Novmeber 7, 2022
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 27, 2017
AMONG
ACCO BRANDS CORPORATION
and
CERTAIN SUBSIDIARIES FROM TIME TO TIME PARTY HERETO,
as Borrowers
VARIOUS LENDERS,
BOFA SECURITIES, INC.,
BARCLAYS BANK PLC,
BMO CAPITAL MARKETS CORP,
PNC BANK, NATIONAL ASSOCIATION,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Bookrunners,
BARCLAYS BANK PLC,
BMO CAPITAL MARKETS CORP,
PNC BANK, NATIONAL ASSOCIATION,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agents
CAPITAL ONE, NATIONAL ASSOCIATION
and
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
________________________________________________________
$600,000,000 multicurrency revolving Credit Facility
€252,750,000 eur term loan a Facility
$61,000,000 aud term loan a Facility
$100,000,000 usd term loan a Facility
________________________________________________________
CONTENTS
Page
Article 1 Definitions and Accounting Terms 3
Section 1.01 Defined Terms 3
Section 1.02 Other Interpretive Provisions 6466
Section 1.03 Accounting Terms 6567
Section 1.04 Rounding 6567
Section 1.05 Times of Day 6568
Section 1.06 Letter of Credit Amounts 6568
Section 1.07 Currency Equivalents Generally; Change of Currency 6568
Section 1.08 Additional Alternative Currencies 6668
Section 1.09 Additional Borrowers 6669
Section 1.10 Timing of Payment or Performance 6770
Section 1.11 Interest Rates 6770
Section 1.12 Limited Condition Acquisitions 6870
Article 2 The Commitments and Credit Extensions 6871
Section 2.01 The Loans 6871
Section 2.02 Borrowings, Conversions and Continuations of Loans 6972
Section 2.03 Letters of Credit 7174
Section 2.04 Swing Line Loans 8082
Section 2.05 Prepayments 8385
Section 2.06 Termination or Reduction of Commitments 8588
Section 2.07 Repayment of Loans 8688
Section 2.08 Interest 8790
Section 2.09 Fees 8891
Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 8991
Section 2.11 Evidence of Debt. 8992
Section 2.12 Payments Generally; Administrative Agent’s Clawback 9092
Section 2.13 Sharing of Payments by Lenders 9294
Section 2.14 Incremental Facilities 9295
Section 2.15 Cash Collateral 9698
Section 2.16 Defaulting Lenders 9799
Section 2.17 Nature of Obligations 99101
Article 3 Taxes, Yield Protection and Illegality 101103
Section 3.01 Taxes 101103
Section 3.02 Illegality 105107
Section 3.03 Inability to Determine Rates 105108
Section 3.04 Increased Costs; Reserves on EurodollarAgreed Currency Rate Loans, SARON Loans, GBP Daily Rate Loans and Canadian BA Rate Loans 107111
Section 3.05 Compensation for Losses 108112
Section 3.06 Mitigation Obligations; Replacement of Lenders. 109113
Section 3.07 Survival 110113
Article 4 Conditions Precedent 110114
Section 4.01 Conditions Precedent to the SpinCo Closing Date 110114
Section 4.02 Conditions Precedent to the Original Closing Date 110114
Section 4.03 Conditions to All Credit Extensions after the Original Closing Date 110114
Section 4.04 Conditions Precedent to Effectiveness of Second Amendment 110114
Section 4.05 Conditions Precedent to Effectiveness of Third Amendment to Amended and Restated Credit Agreement 111114
Section 4.06 Conditions Precedent to Effectiveness of Third Amendment to Second Amended and Restated Credit Agreement 111115
Article 5 Representations and Warranties 111115
Section 5.01 Existence, Qualification and Power 111115
Section 5.02 Authorization; No Contravention 111115
Section 5.03 Governmental Authorization; Other Consents 111115
Section 5.04 Binding Effect 112115
Section 5.05 Financial Statements; No Material Adverse Effect 112116
Section 5.06 Litigation 112116
Section 5.07 No Default 112116
Section 5.08 Ownership of Property; Liens 112116
Section 5.09 Environmental 113117
Section 5.10 Insurance 114118
Section 5.11 Taxes 114118
Section 5.12 ERISA Compliance 114118
Section 5.13 Subsidiaries; Equity Interests 115119
Section 5.14 Margin Regulations; Investment Company Act 116119
Section 5.15 Disclosure 116120
Section 5.16 Compliance with Laws 116120
Section 5.17 Taxpayer Identification Number 116120
Section 5.18 Intellectual Property; Licenses, Etc 116120
Section 5.19 Solvency 117120
Section 5.20 Collateral Documents 117120
Section 5.21 Senior Debt 117121
Section 5.22 Sanctioned Persons 117OFAC 121
Section 5.23 Foreign Corrupt Practices Act 117121
Section 5.24 Compliance with EU Bail-in Regulation 117121
Section 5.25 Anti-Corruption Laws 121
Article 6 Affirmative Covenants 117121
Section 6.01 Financial Statements 118121
Section 6.02 Certificates; Other Information 118122
Section 6.03 Notices 120124
Section 6.04 Preservation of Existence, Etc 121125
Section 6.05 Maintenance of Properties 121125
Section 6.06 Maintenance of Insurance 121125
Section 6.07 Compliance with Laws 122126
Section 6.08 Books and Records 122126
Section 6.09 Inspection Rights 122126
Section 6.10 Use of Proceeds 122126
Section 6.11 Covenant to Guarantee Obligations and Give Security 122126
Section 6.12 Compliance with Environmental Laws 123127
Section 6.13 Preparation of Environmental Reports 123127
Section 6.14 [Reserved] 124128
Section 6.15 Further Assurances 124128
Section 6.16 Ratings 124128
Section 6.17 PPSA Policies and steps 124128
Section 6.18 XXXX Events 124128
Section 6.19 Anti-Corruption Laws; Sanctions 128
Article 7 Negative Covenants 124128
Section 7.01 Liens 124129
Section 7.02 Investments 127131
Section 7.03 Indebtedness 129133
Section 7.04 Fundamental Changes 132136
Section 7.05 Dispositions 132136
Section 7.06 Restricted Payments 134138
Section 7.07 Change in Nature of Business 135139
Section 7.08 Transactions with Affiliates 135139
Section 7.09 Restrictive Agreements 136140
Section 7.10 Use of Proceeds 136140
Section 7.11 Financial Covenants 136140
Section 7.12 Amendments of Organization Documents 137141
Section 7.13 Accounting Changes 137141
Section 7.14 Prepayments of Indebtedness 137141
Section 7.15 Sale-Leaseback Transactions 137141
Section 7.16 Amendments of Indebtedness 137141
Section 7.17 Limitation on Activities of Australian Borrower 137142
Section 7.18 Sanctions 142
Section 7.19 Anti-Corruption Laws 142
Article 8 Events of Default and Remedies 138142
Section 8.01 Events of Default 138142
Section 8.02 Remedies Upon Event of Default 140144
Section 8.03 Application of Funds 141145
Article 9 Administrative Agent 141145
Section 9.01 Appointment and Authority 141145
Section 9.02 Rights as a Lender 141146
Section 9.03 Exculpatory Provisions 142146
Section 9.04 Reliance 142147
Section 9.05 Delegation of Duties 143147
Section 9.06 Resignation of Administrative Agent 143147
Section 9.07 Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders 144148
Section 9.08 No Other Duties, Etc 144149
Section 9.09 Administrative Agent May File Proofs of Claim 144149
Section 9.10 Collateral and Guaranty Matters 145149
Section 9.11 Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements 146150
Section 9.12 Certain ERISA Matters 146151
Section 9.13 Recovery of Erroneous Payments 152
Article 10 Debt Allocation Mechanism 147152
Section 10.01 Implementation of DAM 147152
Section 10.02 Letters of Credit 148153
Section 10.03 Net Payments Upon Implementation of DAM Exchange 149154
Article 11 Miscellaneous 150155
Section 11.01 Amendments, Etc 150155
Section 11.02 Notices; Effectiveness; Electronic Communication 153158
Section 11.03 No Waiver; Cumulative Remedies; Enforcement 155160
Section 11.04 Expenses; Indemnity; Damage Waiver 155160
Section 11.05 Payments Set Aside 157162
Section 11.06 Successors and Assigns 158163
Section 11.07 Treatment of Certain Information; Confidentiality 162167
Section 11.08 Right of Setoff 163168
Section 11.09 Interest Rate Limitation 164168
Section 11.10 Integration 164169
Section 11.11 Survival of Representations and Warranties 164169
Section 11.12 Severability 165169
Section 11.13 Replacement of Lenders 165169
Section 11.14 Governing Law; Jurisdiction; Etc 165170
Section 11.15 Waiver of Jury Trial 166171
Section 11.16 No Advisory or Fiduciary Responsibility 167171
Section 11.17 Electronic Execution of Assignments and Certain Other Documents 167172
Section 11.18 USA XXXXXXX Xxx 000000
Section 11.19 Judgment Currency 168173
Section 11.20 Holdings as Agent for Borrowers 168173
Section 11.21 Waiver of Sovereign Immunity 169173
Section 11.22 Independence of Covenants 169174
Section 11.23 Lenders as Perfection Agents 169174
Section 11.24 Effect of Amendment and Restatement of the Second Amended and Restated Credit Agreement 169174
Section 11.25 Ratification of Loan Documents 170174
Section 11.26 Swedish law Security Confirmation 170175
Section 11.27 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions 170175
Section 11.28 Consent regarding Dissolution of ACCO Brands Colombia 171175
Section 11.29 Acknowledgement Regarding Any Supported QFCs 171175
SCHEDULES
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|
1.01A |
Existing Letters of Credit |
1.01B |
Agreed Security Principles |
1.01C |
Real Property Subject to Mortgage and Estoppel Requirements (Third Restatement Date) |
2.01 |
Commitments and Applicable Percentages |
5.08(c) |
Owned Real Property |
5.08(d)(i) |
Leased Real Property (Lessee) |
5.08(d)(ii) |
Leased Real Property (Lessor) |
5.11 |
Tax Sharing Agreements |
5.13 |
Subsidiaries; Other Equity Investments |
7.01(b) |
Certain Liens |
7.02(h) |
Certain Investments |
7.03 |
Existing Indebtedness |
7.08 |
Existing Affiliate Transactions |
11.02 |
Administrative Agent’s Office; Certain Addresses for Notices |
EXHIBITS
|
|
|
Form of |
A-1 |
Committed Loan Notice |
A-2 |
Conversion/Continuation Notice |
A-3 |
Swing Line Loan Notice |
A-4 |
Prepayment Notice |
A-5 |
Swing Line Loan Prepayment Notice |
B |
Revolving Credit Note |
C-1 |
Australian Dollar Term A Note |
C-2 |
Euro Term A Note |
C-3 |
U.S. Dollar Term A Note |
C-4 |
Term B Note |
D |
Compliance Certificate |
E-1 |
Assignment and Assumption |
E-2 |
Administrative Questionnaire |
F |
Incremental Joinder Agreement |
G-1 through G-4 |
U.S. Tax Compliance Certificates |
H |
Foreign Obligations Guaranty |
I |
Borrower Joinder Agreement |
J |
Estoppel |
K |
U.S. Mortgage |
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of January 27, 2017 (this “Agreement”), among ACCO BRANDS CORPORATION, a Delaware corporation (“Holdings”), each Domestic Subsidiary of Holdings that becomes a party hereto pursuant to Section 1.09 by execution of a joinder hereto and is designated therein as a “U.S. Borrower” (together with Holdings, collectively, the “U.S. Borrowers”), ACCO Brands Australia Holding Pty. Ltd. (the “Australian Borrower”), each Foreign Subsidiary of Holdings that becomes a party hereto pursuant to Section 1.09 by execution of a joinder hereto and is designated therein as a “Foreign Borrower” (together with the Australian Borrower, collectively, the “Foreign Borrowers”; and the Foreign Borrowers together with the U.S. Borrowers, the “Borrowers”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as administrative agent (capitalized terms used but not defined in this preamble having the meaning given such terms in Article 1 below).
WITNESSETH
WHEREAS, Holdings entered into that certain Credit Agreement, dated as of March 26, 2012, among Holdings, certain Subsidiaries of Holdings party thereto from time to time, each lender from time to time party thereto, Barclays Bank PLC, as original administrative agent, and Bank of Montreal, as original multicurrency administrative agent (as amended by the First Amendment to Credit Agreement, dated December 10, 2012, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the Restatement Date (as defined below), the “Original Credit Agreement”);
WHEREAS, pursuant to the Original Credit Agreement, the Lenders (as defined in the Original Credit Agreement) extended credit in the form of (a) Term Loans (as defined in the Original Credit Agreement) on the Original Closing Date and the SpinCo Closing Date, as applicable, in an aggregate principal amount equal to $770,000,000 (or U.S. Dollar Equivalent thereof) and (b) Revolving Credit Loans (as defined in the Original Credit Agreement) at any time and from time to time prior to the applicable Maturity Date (as defined in the Original Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $250,000,000 (or U.S. Dollar Equivalent thereof);
WHEREAS, the Required Lenders (as defined in the Original Credit Agreement) and other parties to the Second Amendment to Credit Agreement agreed to amend and restate the Original Credit Agreement in its entirety to read as set forth in the Amended and Restated Credit Agreement dated as of May 13, 2013, among Holdings, certain Subsidiaries of Holdings from party thereto from time to time, each lender from time to time party thereto, Barclays Bank PLC, as original administrative agent, Bank of Montreal, as original multicurrency administrative agent, Bank of America, N.A., as successor administrative agent (as amended by the First Amendment to Amended and Restated Credit Agreement, dated July 19, 2013, as further amended by that Second Amendment to Credit Agreement, dated as of June 26, 2014, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Amended and Restated Credit Agreement”) to, among other things, (a) exchange and/or replace the existing U.S. Dollar Term A Loans (as defined in the Original Credit Agreement) with the Term A Loans, (b) prepay in full the Canadian Dollar Term A Loans (as defined in the Original Credit Agreement) to the extent not already paid, (c) prepay in full the existing Term B Loans (as defined in the Original Credit Agreement) and (d) replace the existing Revolving Credit Facilities (as defined in the Original Credit Agreement) with the Revolving Credit Facility and, in connection therewith, (1) the grants of security interests and Liens under and pursuant to the Loan Documents continued unaltered to secure, guarantee, support and otherwise benefit the Obligations of Holdings and the other Loan Parties under the Original Credit Agreement and each other Loan Document and each of the foregoing continued in full force and effect in accordance with its terms except as expressly amended thereby or by the Second Amendment, and
the parties thereto ratified and confirmed the terms thereof as being in full force and effect and unaltered by the Second Amendment and (2) it was agreed and understood that the Amended and Restated Credit Agreement did not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Original Credit Agreement or any other Loan Document except as expressly modified by the Amended and Restated Credit Agreement, nor did it operate as a waiver of any right, power or remedy of any Lender under any Loan Document;
WHEREAS, the Required Lenders (as defined in the Amended and Restated Credit Agreement) and other parties to the Third Amendment to Amended and Restated Credit Agreement agreed to amend and restate the Amended and Restated Credit Agreement in its entirety to read as set forth in the Second Amended and Restated Credit Agreement dated as of April 28, 2015, among Holdings, certain Subsidiaries of Holdings from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent (as amended by the First Amendment to Second Amended and Restated Credit Agreement, dated July 7, 2015, as further amended by that Second Amendment and Additional Borrower Consent, dated as of May 1, 2016, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Second Amended and Restated Credit Agreement”) and to, among other things, (a) continue the existing Term A Loans (as defined in the Second Amended and Restated Credit Agreement), (b) make additional Term A Loans, (c) continue the Revolving Credit Facility (as defined below) and (d) make available additional Revolving Credit Commitments, and it was agreed by such parties that the “Obligations” under (and as defined in) the Amended and Restated Credit Agreement (including indemnification obligations) shall be governed by and deemed to be outstanding under the Second Amended and Restated Credit Agreement with the intent that the terms of the Second Amended and Restated Credit Agreement shall supersede the terms of the Amended and Restated Credit Agreement (which shall thereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Second Restatement Effective Date), and all references to the Original Credit Agreement or the Amended and Restated Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents continued unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrower and the other Loan Parties under the Original Credit Agreement, the Amended and Restated Credit Agreement and the Second Amended and Restated Credit Agreement and each other Loan Document and each of the foregoing continued in full force and effect in accordance with its terms except as expressly amended thereby or by the Third Amendment to Amended and Restated Credit Agreement, and the parties thereto ratified and confirmed the terms thereof as being in full force and effect and unaltered by the Third Amendment to Amended and Restated Credit Agreement and (2) it is agreed and understood that the Second Amended and Restated Credit Agreement did not constitute a novation, satisfaction, payment or re-borrowing of any Obligation under the Original Credit Agreement, the Amended and Restated Credit Agreement or any other Loan Document except as expressly modified by the Second Amended and Restated Credit Agreement, nor did it operate as a waiver of any right, power or remedy of any Lender under any Loan Document;
WHEREAS, the Required Lenders (as defined in the Second Amended and Restated Credit Agreement) and other parties to the Third Amendment have agreed to amend and restate the Second Amended and Restated Credit Agreement in its entirety to read as set forth in the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Third Amended and Restated Credit Agreement”) to, among other things, (a) reflect the repayment, in full, of the existing Term A Loans (as defined in the Second Amended and Restated Credit Agreement) on the Third Restatement Date, (b) continue the existing Australian Dollar Term A Loans (as defined below) as amended and restated by this Agreement, (c) establish a tranche of Euro-denominated Term A Loans in the form of the Euro Term A Loans, (d) continue the Revolving Credit Facility (as defined below) as
amended and restated by this Agreement and (e) make available additional Revolving Credit Commitments, and it has been agreed by such parties that the “Obligations” under (and as defined in) the Second Amended and Restated Credit Agreement (including indemnification obligations) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Second Amended and Restated Credit Agreement (which shall hereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Third Restatement Date), and all references to the Original Credit Agreement, the Amended and Restated Credit Agreement or the Second Amended and Restated Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrower and the other Loan Parties under the Original Credit Agreement, the Amended and Restated Credit Agreement, the Second Amended and Restated Credit Agreement and this Agreement and each other Loan Document and each of the foregoing shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby or by the Third Amendment, and the parties thereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement and (2) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or re-borrowing of any Obligation under the Original Credit Agreement, the Amended and Restated Credit Agreement, the Second Amended and Restated Credit Agreement or any other Loan Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Loan Document; and
WHEREAS, pursuant to the Second Amendment to Third Amended and Restated Credit Agreement (as defined below), Holdings has requested, and the Administrative Agent, the lenders party thereto and the other Persons party thereto have agreed, to amend this Agreement on the terms and conditions contained herein and pursuant to the Second Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Article 1
Definitions and Accounting Terms
Section 1.01Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“ABEH Shares Contribution” means the contribution by ACCO Brands International, Inc. and ACCO Europe International Holdings LLC to ACCO Dutch Finance Holdings C.V. of 100% of the partnership interests of ACCO Brands Europe Holdings LP.
“Acquisition” means the acquisition by Holdings, directly or indirectly through one or more of its wholly-owned Subsidiaries, of 100% of the Equity Interests of Esselte Group Holdings AB.
“Acquisition Agreement” means the Share Purchase Agreement, dated as of October 21, 2016, by and among Esselte Group Holdings (Luxembourg) S.A., as Vendor, ACCO Europe Limited, as Purchaser, and ACCO Brands Corporation, as Purchaser Guarantor. “Act” has the meaning specified in Section 11.18.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify Holdings and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other 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.
“Agent Parties” has the meaning specified in Section 11.02(c).
“Agents” mean the Administrative Agent, the Syndication Agents and the Co-Documentation Agents.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreed Currency” means Dollars or any Alternative Currency, as applicable.
“Agreed Currency Rate” means, other than for U.S. Dollars:
(i)for any Interest Period, with respect to any Credit Extension:
a)denominated in Japanese Yen, the rate per annum equal to the Tokyo Interbank Offer Rate (“XXXXX”), 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) on the Rate Determination Date with a term equivalent to such Interest Period;
b)denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), or a comparable or successor rate which rate is approved by the Administrative Agent and Holdings, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “EURIBOR Rate”) at or about 11:00a.m. (Brussels, Belgium time) on the Interest Rate Determination Date with a term equivalent to such Interest Period; and
c)denominated in any other Agreed Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.08.
provided that (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (y) if the Agreed Currency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Agreed Currency Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on the definition of “Agreed Currency Rate”.
“Agreed Security Principles” means those principles set forth on Schedule 1.01B.
“Agreement” has the meaning assigned to such term in the preamble to this Third Amended and Restated Credit Agreement.
“Agreement Currency” has the meaning specified in Section 11.19.
“All-in Yield” means, as to any Indebtedness, the yield thereon as reasonably determined by the Administrative Agent taking into account the interest rate, margin, original issue discount, up-front fees and increases in Eurodollarthe Relevant Rate or Base Rate floor; provided that original issue discount and up-front fees shall be equated to interest rate assuming a 4-year life to maturity and provided, further, that “All-in Yield” shall not include arrangement, underwriting, structuring or similar fees paid to arrangers or fees that are not paid ratably to the lenders providing such Indebtedness.
“Alternative Currency” means (i) with respect to Revolving Credit Loans, Canadian Dollars, Euros, Swiss Francs, Pounds Sterling and Australian Dollars or any other lawful currency (other than U.S. Dollars) that is readily available and freely transferable and convertible into U.S. Dollars subject to the consents required pursuant to Section 1.08(a) and (ii) with respect to Letters of Credit, Hong Kong Dollars, Canadian Dollars, Euros, Pounds Sterling and Australian Dollars or any other lawful currency (other than U.S. Dollars) that is readily available and freely transferable and convertible into U.S. Dollars subject to the consents required pursuant to Section 1.08(a).
“Alternative Currency Sublimit” means an amount equal to the lesser of the Revolving Credit Commitments and $300,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Revolving Credit Commitments.
“Amended and Restated Credit Agreement” has the meaning specified in the recitals to this Agreement.
“Annual Financial Statements” means the unqualified audited consolidated balance sheets of Holdings and its Subsidiaries and the consolidated statements of operations, Stockholders’ Equity and cash flows of Holdings and its Subsidiaries for the three latest Fiscal Years ending more than ninety (90) days prior to the Third Restatement Date.
“Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any Governmental Authority having jurisdiction over the Administrative Agent or the SOFR Administrator with respect to its publication of SOFR, in each case acting in such capacity and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Agreed Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of the applicable Relevant Rate, in each case acting in such capacity.
“Anti-Cash Hoarding Prepayment Amount” has the meaning specified in Section 2.05.
“Anti-Cash Hoarding Prepayment Trigger Date” has the meaning specified in Section 2.05.
“Applicable Indebtedness” has the meaning provided in the definition of “Weighted Average Life to Maturity”.
“Applicable Percentage” means (a) with respect to any Term A Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate principal amount of all Term A Loans then outstanding represented by the principal amount of such Term A Lender’s Term A Loans at such time, (b) with respect to any Term B Lender at any time, the percentage (carried out to the ninth decimal place) of the aggregate principal amount of all Term B Loans then outstanding represented by the principal amount of such Term B Lender’s Term B Loans at such time and (c) with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place), the numerator of which is the Revolving Credit Commitment of such Revolving Credit Lender and the denominator of which is the aggregate amount of the Revolving Credit Commitments; provided that if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility 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 Applicable Percentage of any Lender is subject to adjustment as provided in Section 2.16.
“Applicable Rate” means in respect of any of the Term A Facilities and the Revolving Credit Facility, (i) from the date of consummation of the Pioneer Acquisition to the date following the date of consummation of the Pioneer Acquisition on which a Compliance Certificate is delivered pursuant to Section 6.02(a) in respect of the fiscal quarter ended March 31, 2021, which Compliance Certificate shall give pro forma effect to the incurrence of Indebtedness under the Facilities, 2.50% per annum for Eurodollar Rate Loans, Australian BBSR Rate Loans, Canadian BA Rate Loans, Daily LIBOR Loans, Australian Base Rate Loans and Letter of Credit Fees (for financial Letters of Credit), 1.50% per annum for Base Rate Loans, 0.55% per annum for Letter of Credit Fees (for commercial Letters of Credit) and 1.250% per annum for Letter of Credit Fees (for performance Letters of Credit), (ii) from the Fifth Amendment Closing Date to the date following the Fifth Amendment Closing Date on which a Compliance Certificate is delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter ended after the Fifth Amendment Closing Date, which Compliance Certificate shall give pro forma effect to the incurrence of Indebtedness under the Facilities, the applicable percentage set forth at Pricing Level 2 below and (iii) thereafter, the applicable percentage set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
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|
|
|
|
|
Pricing
Level |
Consolidated
Leverage Ratio |
EurodollarTerm SOFR / Daily SOFR / Agreed Currency Rate / SARON / GBP Daily Rate / Australian BBSR Rate /Canadian BA Rate / Daily LIBORSOFR / Australian Base Rate / Letter of Credit Fees (financial) |
Base Rate |
Letter of Credit Fees (commercial) |
Letter of Credit Fees (performance) |
1 |
> 4.50 to 1.00 |
2.50% |
1.50% |
0.55% |
1.250% |
2 |
≤ 4.50 to 1.00 and
> 4.00 to 1.00 |
2.25% |
1.25% |
0.50% |
1.125% |
3 |
≤ 4.00 to 1.00 and > 3.50 to 1.00 |
2.00% |
1.00% |
0.45% |
1.000% |
4 |
≤ 3.50 to 1.00 and > 3.00 to 1.00 |
1.75% |
0.75% |
0.40 % |
0.875 % |
5 |
≤ 3.00 to 1.00 and > 2.00 to 1.00 |
1.50% |
0.50% |
0.30% |
0.750% |
6 |
≤ 2.00 to 1.00 |
1.25% |
0.25% |
0.25% |
0.625% |
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply).
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b)
“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D of the FRB) under regulations issued from time to time by the FRB or other applicable banking regulator. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“Applicable Revolving Credit Percentage” means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the Revolving Credit Facility at such time.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Appraisal” has the meaning provided in the definition of “Collateral and Guaranty Requirements”.
“Appropriate Lender” means, at any time, (a) with respect to any of the Term A Facilities, any Term B Facility, any Revolving Credit Facility, or any Series of the Incremental Term Loan Facility, a Lender that has a Commitment with respect to such Facility or holds a Term A Loan, a Term B Loan, a Revolving Credit Loan, an Incremental Term A Loan or an Incremental Term B Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arrangers” means BofA Securities, Inc., Barclays Bank PLC, BMO Capital Markets Corp., PNC BANK, National Association and Xxxxx Fargo Bank, National Association, in their capacity as joint lead arrangers and joint 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 entered into by a Lender and an Eligible Assignee (with the consent of any Person whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, if applicable, in each case, in substantially the form of Exhibit E-1 or any other form approved by the Administrative Agent.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital 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.
“AUD Incremental Joinder Agreement” means the Incremental Joinder Agreement, dated as of May 1, 2016, by and among Holdings, certain Subsidiaries of Holdings party thereto, the Australian Dollar Term A Lenders party thereto and the Administrative Agent.
“Australian Base Rate” means, with respect to Swing Line Loans denominated in Australian Dollars, on each day any such Swing Line Loan is outstanding, a fluctuating rate per annum equal to the rate announced from time to time by the Reserve Bank of Australia as the “cash rate” at or about 10:30 a.m. (Sydney time) on such day. If such rate is not available at such time for any reason, then the “Australian Base Rate” shall be the rate per annum as otherwise agreed to by the applicable Australian Borrower and
the Swing Line Lender; provided, that (x) if the Australian Borrower and the Swing Line Lender are unable to mutually agree on an acceptable rate, the Swing Line Lender shall be under no obligation to provide Swing Line Loans denominated in Australian Dollars and (y) if the Australian Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in such rate shall take effect at the opening of business on the Business Day of such change.
“Australian Base Rate Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to the Australian Base Rate. Australian Base Rate Loans may be denominated in Australian Dollars only.
“Australian BBSR Rate” means, with respect to each Interest Period for an Australian BBSR Rate Loan, the rate per annum equal to the Bank Xxxx Xxxx Reference Rate or the successor thereto as approved by the Administrative Agent (“BBSY”) as published by Bloomberg (or such other page or commercially available source providing BBSY quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m. (Sydney time) two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent with a term equivalent to such Interest Period or if such Interest Period is not equal to a number of months, with a term equivalent to the number of months closest to such Interest Period); provided that if such rate is not available at such time for any reason, the Administrative Agent may substitute such rate with a reasonably acceptable alternative published interest rate that adequately reflects the all-in-cost of funds to the Administrative Agent for funding such Type of Credit Extension; and further provided, however, that at no time will the Australian BBSR Rate be deemed to be less than 0% per annum.
“Australian BBSR Rate Loan” means a Revolving Credit Loan or Australian Dollar Term A Loan made in Australian Dollars and bearing interest based on the Australian BBSR Rate.
“Australian Borrower” means ACCO Brands Australia Holding Pty. Ltd., a Foreign Subsidiary of Holdings formed under the laws of Australia.
“Australian Dollar Term A Borrowers” means, collectively, the Australian Borrower and each other Borrower that becomes a borrower under the Australian Dollar Term A Facility pursuant to Section 1.09.
“Australian Dollar Term A Borrowing” means a borrowing consisting of one or more simultaneous Australian Dollar Term A Loans of the same Type under the Australian Dollar Term A Facility.
“Australian Dollar Term A Commitment” means, as to each Australian Dollar Term A Lender, its obligation to make Australian Dollar Term A Loans to the Australian Dollar Term A Borrowers and pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Australian Dollar Term A Lender’s name on Schedule 2.01 under the caption “Australian Dollar Term A Commitment” or opposite such caption in the Assignment and Assumption or Master Assignment pursuant to which such Australian Dollar Term A Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. As of the Second Amendment Closing Date, the aggregate amount of the Australian Dollar Term A Commitments of the Australian Dollar Term A Lenders is AUD $61,000,000.
“Australian Dollar Term A Facility” means, at any time, (a) on or prior to the Third Restatement Date, the aggregate amount of the Australian Dollar Term A Commitments at such time together with the aggregate principal amount of the Australian Dollar Term A Loans of all Australian Dollar
Term A Lenders outstanding at such time and (b) thereafter, the aggregate principal amount of the Australian Dollar Term A Loans of all Australian Dollar Term A Lenders outstanding at such time.
“Australian Dollar Term A Installment Payment Date” has the meaning specified in Section 2.07(a).
“Australian Dollar Term A Lender” means (a) at any time on or prior to the Third Restatement Date, any Lender that has an Australian Dollar Term A Commitment at such time together with any Lender that holds Australian Dollar Term A Loans at such time and (b) at any time after the Third Restatement Date, any Lender that holds Australian Dollar Term A Loans at such time.
“Australian Dollar Term A Loan” means any Loan made by any Australian Dollar Term A Lender under the Australian Dollar Term A Facility pursuant to Section 2.01(a). On the Second Amendment Closing Date, after giving effect to the making of the Australian Dollar Term A Loans to be made on such date, the aggregate outstanding principal amount of Australian Dollar Term A Loans shall be AUD $61,000,000.
“Australian Dollar Term A Note” means a promissory note made by an Australian Dollar Term A Borrower, in favor of an Australian Dollar Term A Lender evidencing Australian Dollar Term A Loans made by such Australian Dollar Term A Lender, in substantially the form of Exhibit C-1.
“Australian Dollars” and “AUD” means the lawful currency of the Commonwealth of Australia.
“Auto-Extension Letter of Credit” has the meaning specified in Section 2.03(b)(iii).
“Availability Period” means, in respect of the Revolving Credit Facility, the period from and including the Third Restatement Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Revolving Credit Commitments pursuant to Section 2.06 and (iii) the date of termination of the commitment of each Revolving Credit Lender, to make Revolving Credit Loans, and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part 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.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1.00% and (c) the Eurodollar RateTerm SOFR that would be payable on such day for a Eurodollar RateTerm SOFR Loan with a one-month Interest Period plus 1.00%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. If the Base Rate is being used as an alternate rate of
interest pursuant to Section 3.03 hereof, 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.
“BBSY” has the meaning specified in the definition of “Australian BBSR 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 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”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower Joinder Agreement” means an agreement in substantially the form of Exhibit I or any other form approved by the Administrative Agent.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrower Notice” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Borrower Obligations” means the Foreign Borrower Obligations and/or the U.S. Borrower Obligations, as applicable, and shall include any Obligations owing to the Administrative Agent, the L/C Issuer or any Lender by any entity that becomes a borrower hereunder after the Restatement Date pursuant to Section 1.09 or otherwise.
“Borrowers” has the meaning specified in the preamble to this Agreement.
“Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing, a Term A Borrowing, a Term B Borrowing or an Incremental Borrowing, as the context may require.
“Brazil” means the Federative Republic of Brazil.
“Brazilian Real” and “BRL” means the lawful currency of the Brazil.
“Business Day” means (a) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close, (b) with respect to all notices, determinations, fundings and payments in connection with the Eurodollar Rate or any Eurodollar, and payments of principal and interest on, Agreed Currency Rate Loans, any day which is a Business Day described in clause (a) and which is also a day for trading(v) with respect to U.S. Dollars, any U.S. Government Securities Business Day, (w) with respect to Euro, any Business Day that is also a TARGET Day, (x) with respect to Swiss Francs, is a day other than when banks are closed for settlement and payments of foreign exchange transactions in Zurich because such day is a Saturday, Sunday or a legal holiday under the laws of Switzerland; (y) with respect to Japanese Yen, a day other than when banks are closed for general business in Japan; or (z) if such day relates to any
interest rate settings as to an Agreed Currency Rate Loan denominated in a currency other than Swiss Francs or Japanese Yen, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in U.S. Dollar deposits in the Londonthe applicable offshore interbank market for such currency, and (c) with respect to all notices, determinations, fundings and payments in connection with, and payments of principal and interest on, Australian BBSR Rate Loans, any day which is a Business Day described in clause (a) and which is also a day which is not a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in Sydney, Australia and, (d) with respect to all notices, determinations, fundings and payments in connection with, and payments of principal and interest on, Canadian BA Rate Loans, any day which is a Business Day described in clause (a) and which is also a day which is not a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in Xxxxxxx, Xxxxxxx. and (e) with respect to all notices, determinations, fundings and payments in connection with, and payments of principal and interest on, GBP Daily Rate Loans, any day which is a Business Day described in clause (a) and which is also not a day on which banks are closed for general business in London because such day is a legal holiday under the laws of the United Kingdom.
“Canadian BA Rate” means, with respect to each Interest Period for a Canadian BA Rate Loan, the rate per annum equal to the average rate applicable to Canadian Dollar bankers’ acceptances having an identical or comparable term as the proposed Canadian BA Rate Loan displayed and identified as such on the applicable page published by Bloomberg (or such other page or commercially available source providing Canadian BA Rate quotations as may be designated by the Administrative Agent from time to time) as at approximately 10:00 a.m. Toronto time on such day (or, if such day is not a Business Day, as of 10:00 a.m. Toronto time on the immediately preceding Business Day) (the “CDOR Rate”), plus ten (10) basis points; provided that if such rate does not appear on the CDOR Page (or any display substituted therefor) at such time on such date, the rate for such date will be the annual discount rate (rounded upward or downward to the nearest whole multiple of 1/100 of 1%) as of 10:00 a.m. Toronto time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by the Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term), plus ten (10) basis points.
“Canadian BA Rate Loan” means any Revolving Credit Loan made in Canadian Dollars and bearing interest based on the Canadian BA Rate.
“Canadian Dollars” or “Cdn.$” means the lawful currency of Canada.
“Canadian Insolvency Law” means any of the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), and the Winding-Up and Restructuring Act (Canada), each as now and hereafter in effect, and any successors to such statutes and any proceeding under applicable corporate law seeking an arrangement of, or stay of proceedings to enforce, some or all of the debts of a corporation.
“Canadian Pledge Agreement” means each of the Amended and Restated Canadian Pledge Agreements (as defined in the Second Amendment).
“Capital Expenditures” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition or maintenance of any fixed or capital asset, in each case, that are capitalized in accordance with GAAP.
“Capital Lease” means, with respect to any Person, any lease that is required by GAAP to be capitalized on a balance sheet of such Person.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable) and the Lenders, 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 benefiting 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) 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 Equivalents” means any of the following types of Investments, to the extent owned by Holdings or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder):
(i)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 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;
(ii)time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a 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 as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 365 days from the date of acquisition thereof;
(iii)commercial paper issued by any Person organized under the laws of any state of the United States and maturing no more than 365 days from the time of the acquisition thereof, and having, at the time of acquisition thereof, a rating of A-1 (or the then equivalent grade) or better from S&P or P-1 (or the then equivalent grade) or better from Xxxxx’x;
(iv)Investments made by Foreign Subsidiaries organized under the laws of Brazil in (i) readily marketable obligations issued or directly and fully guaranteed or insured by the federal government of Brazil or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof (unless otherwise classified as a current asset pursuant to clause (e) below), provided, that the full faith and credit of the federal government of Brazil is pledged in support thereof, and (ii) repurchase obligations with underlying securities of the type described in this clause (d); and
(v)Investments, classified in accordance with GAAP as current assets of Holdings or any of its Subsidiaries, in money market investment programs having daily liquidity and the portfolios of which have at least 95% of its assets in Investments of the character, quality and maturity described in clauses (a), (b), (c) and, to the extent classified in accordance with GAAP as current assets of a Subsidiary organized under the laws of Brazil, clause (d) of this definition.
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, card services (including services related to credit cards, including purchasing and commercial cards, prepaid cards, including payroll, stored value and gift cards, merchant services processing and debit cards), bank guarantees, electronic funds transfer and other cash management arrangements.
“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement with any Loan Party or any Subsidiary, is a Lender, the Administrative Agent or an Arranger or an Affiliate of a Lender, the Administrative Agent or an Arranger, in its capacity as a party to such Cash Management Agreement.
“CDOR Rate” has the meaning specified in the definition of “Canadian BA Rate”.
“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and any rules or regulations promulgated thereunder.
“CFC Subsidiary” means any Subsidiary that is a controlled foreign corporation for purposes of Section 957 of the Code.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means the occurrence of any of the following:
(i)(1) the 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 assets of Holdings and its Subsidiaries taken as a whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange Act) or (2) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of Holdings or its Subsidiaries and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or more of the equity securities of Holdings entitled to vote for members of the board of directors or equivalent governing body of Holdings on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
(ii)the failure of Holdings to own and control, directly or indirectly, all of the economic and voting rights associated with all of the Equity Interests of any Borrower (other than Holdings);
(iii)after giving effect to any changes to the composition of the board of directors or other equivalent governing body of Holdings on or immediately after the Original Closing Date in connection with the Original Closing Date Transaction, during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Holdings cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(iv)a “Change of Control”, “Change in Control” or similar event shall occur under any SpinCo Notes Document, any Qualified Preferred Stock (or any documentation governing the same) or any other Indebtedness of Holdings or any of its Subsidiaries with an aggregate principal amount in excess of the Threshold Amount (to the extent that the occurrence of such event permits the holders of Indebtedness thereunder to accelerate the maturity thereof or to resell such other Indebtedness to Holdings, or requires Holdings to repay or redeem, or offer to repurchase, such Indebtedness prior to the stated maturity thereof).
“CME” means CME Group Benchmark Administration Limited.
“Co-Documentation Agents” mean Capital One, National Association and KeyBank National Association, in their capacities as co-documentation agents.
“Code” means the Internal Revenue Code of 1986, as amended (unless otherwise provided herein).
“Collateral” means all of the “Collateral”, “Pledged Collateral”, and “Mortgaged Property” or similar property no matter how defined or referred to in the Collateral Documents and all of the other property provided as collateral security under the terms of the Collateral Documents.
“Collateral and Guaranty Compliance Event” has the meaning specified in Section 6.11.
“Collateral and Guaranty Requirements” means, at any time, the requirement that:
(i)the Administrative Agent shall have received from each Person that becomes a U.S. Guarantor after the Restatement Date, a supplement to the U.S. Obligations Guaranty, in the form specified therein, duly executed and delivered by such U.S. Guarantor;
(ii)to the extent any Foreign Borrower becomes a party to this Agreement after the Restatement Date pursuant to Section 1.09, the Administrative Agent shall have received from each U.S. Loan Party and Foreign Guarantor either (i) a counterpart of the Foreign Obligations Guaranty duly executed and delivered by such U.S. Loan Party and such Foreign Guarantor dated as of such date or (ii) in the case of any Person that becomes a U.S. Loan Party or a Foreign Guarantor after such date, a supplement to the Foreign Obligations Guaranty, in the form specified therein, duly executed and delivered by such U.S. Loan Party or such Foreign Guarantor;
(iii)the Administrative Agent shall have received from each Person that becomes a U.S. Loan Party after the Restatement Date, a supplement to the U.S. Security Agreement in favor of the Administrative Agent (for the benefit of the applicable Secured Parties), in the form specified therein, duly executed and delivered by such U.S. Loan Party;
(iv)the Administrative Agent shall have received from each Subsidiary of Holdings (other than a U.S. Loan Party) that becomes a party to this Agreement as a Borrower after the Restatement Date pursuant to Section 1.09, and from each Subsidiary of each such Borrower that is organized under the laws of the same jurisdiction of such Borrower (it being understood that entities formed under the laws of different states, provinces, or other localities of the same country as that of a
Borrower shall be considered to be of the same jurisdiction as such Borrower for such purposes), security, pledge or similar agreements (each, an “Other Foreign Security Agreement”) granting first priority security interests (subject only to Permitted Liens) in all present and after-acquired personal property in favor of the Administrative Agent (for the benefit of the applicable Secured Parties) securing all of the Obligations and any guarantee thereof (except as otherwise provided in paragraph 1.2(h) of the Agreed Security Principles);
(v)(x) the Administrative Agent shall have received from each Person that becomes a U.S. Loan Party that directly holds any Equity Interests in any Subsidiary of Holdings (other than any Immaterial Subsidiary) and shall have received, in the case of any Person that becomes a U.S. Loan Party and from each Person (each, an “Other Pledgor”) that directly holds any Equity Interests in any Loan Party (other than Holdings) that is a Borrower or is organized under the laws of the same jurisdiction as a Borrower (it being understood that entities formed under the laws of different states, provinces or other localities as the same country as that of a Borrower shall be considered to be of the same jurisdiction), in each case after the Restatement Date, the Pledge Agreements duly executed and delivered by each such U.S. Loan Party or such Other Pledgor in favor of the Administrative Agent (for the benefit of the applicable Secured Parties), that it determines, based on the advice of counsel, to be necessary or advisable in connection with the pledge of such Equity Interests or any supplements to such Pledge Agreements (in the form specified therein), based on the advice of counsel, duly executed and delivered by such U.S. Loan Party and (y) the Administrative Agent shall have received certificates or other instruments representing all such Equity Interests (other than uncertificated Equity Interests) pledged in clause (x) above together with stock powers or other instruments of transfer with respect thereto endorsed in blank, in the case of any U.S. Loan Party securing all of the Obligations (subject to the Agreed Security Principles) and in the case of any Other Pledgor securing all of the Obligations and any guarantee thereof (except as otherwise provided in paragraph 1.2(h) of the Agreed Security Principles);
(vi)(x) the Administrative Agent shall have received from each Subsidiary of Holdings (other than a U.S. Borrower) that becomes a party to this Agreement as a Borrower after the Restatement Date pursuant to Section 1.09 and from each Subsidiary of each such Borrower that is organized under the laws of the same jurisdiction of such Borrower (it being understood that entities organized under the laws of different states, provinces, or other localities of the same country as that of a Borrower shall be considered to be of the same jurisdiction as such Borrower for such purposes), that directly holds any Equity Interests in any other Subsidiary of Holdings pledge agreements duly executed and delivered by each such Foreign Loan Party in favor of the Administrative Agent (for the benefit of the applicable Secured Parties), that it determines, based on the advice of counsel, to be necessary or advisable in connection with the pledge of such Equity Interests (each an “Other Foreign Pledge Agreement”) and (y) the Administrative Agent shall have received certificates or other instruments representing all such Equity Interests (other than uncertificated Equity Interests) pledged in clause (x) above together with stock powers or other instruments of transfer with respect thereto endorsed in blank, in each case securing all of the Obligations and any guarantee thereof (except as otherwise provided in paragraph 1.2(h) of the Agreed Security Principles);
(vii)subject to the provisions set forth in Section VI of the Third Amendment, all indebtedness of Holdings, the other Borrowers and each Subsidiary of Holdings that is owing to any U.S. Loan Party (other than obligations owing to the Loan Parties that do not individually or in the aggregate exceed $2,000,000 or the U.S. Dollar Equivalent thereof in any other currency) shall be evidenced by an intercompany note or by a promissory note or an instrument in form reasonably satisfactory to the Administrative Agent and shall be pledged pursuant to the U.S. Security Agreement (or other applicable Collateral Document) to secure all of the Obligations (subject to the Agreed Security Principles) and the Administrative Agent shall have received all such promissory notes or
instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;
(viii)all indebtedness of Holdings, the other Borrowers and each Subsidiary of Holdings that is owing to any Subsidiary of Holdings (other than a U.S. Loan Party) that becomes a party to this Agreement as a Borrower after the Restatement Date pursuant to Section 1.09 and from each Subsidiary of each such Borrower that is organized under the laws of the same jurisdiction of such Borrower (it being understood that entities organized under the laws of different states, provinces, or other localities of the same country as that of a Borrower shall be considered to be of the same jurisdiction as such Borrower for such purposes) (other than obligations owing to such Loan Parties that do not individually or in the aggregate exceed $2,000,000 or the U.S. Dollar Equivalent thereof in any other currency) shall be evidenced by an intercompany note or by a promissory note or an instrument in form reasonably satisfactory to the Administrative Agent and, shall have been pledged pursuant to an Other Foreign Security Agreement (or other applicable Collateral Document) to secure all of the Obligations and any guarantee thereof (except as otherwise provided in paragraph 1.2(h) of the Agreed Security Principles), and the Administrative Agent shall have received all such promissory notes or instruments, together with note powers or other instruments of transfer with respect thereto endorsed in blank;
(ix)subject to the provisions set forth in Section VI of the Second Amendment to Third Amended and Restated Credit Agreement, (i) Borrower shall have used commercially reasonable efforts to cause to be delivered to the Administrative Agent Estoppels, executed by each of the lessors of the leased real properties located in the United States listed on Schedule 1.01C and each other leased real property located in the United States in, on or about which the applicable Loan Party stores, keeps or uses personal property with a fair market value of $1,000,000 or more, which real property is leased at any time after the Original Closing Date by a Loan Party (or leased by a Person when it becomes a Loan Party) and (ii) subject to clause (ix)(10) below, the Administrative Agent shall have received deeds of trust, trust deeds, deeds to secure debt and mortgages (collectively, the “U.S. Mortgages”), each in substantially the form of Exhibit K or any other form approved by the Administrative Agent and covering the real properties located in the United States and listed on Schedule 1.01C or acquired after the Original Closing Date by any Loan Party (or owned by any Person when it becomes a Loan Party) with a fair market value greater than $1,000,000 (each such property, a “U.S. Mortgaged Property”) securing all of the Obligations (subject to the Agreed Security Principles), duly executed by the appropriate Loan Party, together with:
1.evidence that counterparts of the U.S. Mortgages with respect to such U.S. Mortgaged Properties (or, to the extent applicable with respect to Section 6.18, amendments to such U.S. Mortgages together with owner’s title affidavits and any other documents required in connection therewith) have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the applicable Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
2.fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) with respect to such U.S. Mortgaged Properties (other than as set forth in the proviso below), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the U.S. Mortgages to be valid first and subsisting Liens on the
property described therein, free and clear of all defects (including mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable; provided, that no Mortgage Policy shall be required with respect to the U.S. Mortgaged Property located at Xxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxxxxxxx solely to the extent such U.S. Mortgaged Property is Disposed of within 180 days after the Restatement Date (it being understood that if such U.S. Mortgaged Property is not Disposed of within 180 days of the Restatement Date (or such longer period of time as may be extended by the Administrative Agent in its reasonable discretion), Holdings shall cause to be issued in accordance with this paragraph (2) a Mortgage Policy for such U.S. Mortgaged Property on such 180th day (or such later date as extended by the Administrative Agent in its reasonable discretion));
3.American Land Title Association/American Congress on Surveying and Mapping form surveys with respect to such U.S. Mortgaged Properties, for which all necessary fees (where applicable) have been paid, and which are sufficient to permit the applicable title insurance company to waive any survey exception, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent (the “Surveys”); provided, that with respect to U.S. Mortgaged Properties set forth on Schedule 1.01C and owned by Holdings or any of its Subsidiaries as of the Signing Date, this requirement shall have been deemed met on the Third Restatement Date by the delivery of Surveys for such U.S. Mortgaged Properties pursuant to the Original Credit Agreement, the Amended and Restated Credit Agreement, or the Second Amended and Restated Credit Agreement, as applicable (provided, that the applicable title insurer will issue “extended coverage” for the Mortgage Policies based on the same);
4.engineering, soils and other reports and environmental assessment reports as to the properties described in the U.S. Mortgages, from professional firms acceptable to the Administrative Agent (the “Real Property Reports”); provided that with respect to U.S. Mortgaged Properties set forth on Schedule 1.01C and owned by Holdings or any of its Subsidiaries as of the Signing Date, this requirement shall have been deemed met on the Third Restatement Date by the delivery of Real Property Reports for such U.S. Mortgaged Properties pursuant to the Original Credit Agreement, the Amended and Restated Credit Agreement, or the Second Amended and Restated Credit Agreement, as applicable;
5.without limiting clause (7) below, evidence of the insurance required by the terms of the U.S. Mortgages and this Agreement;
6.an appraisal of each of the U.S. Mortgaged Properties complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 (the “Appraisals”); provided that with respect to U.S. Mortgaged Properties set forth on Schedule 1.01C and owned by Holdings or any of its Subsidiaries as of the Signing Date, this requirement shall have been deemed met on the Third Restatement Date by the delivery of Appraisals for such U.S. Mortgaged Properties pursuant to the Original Credit Agreement, the Amended and Restated Credit Agreement, or the Second Amended and Restated Credit Agreement, as applicable;
7.the following documents (collectively, the “Flood Documents”) with respect to the U.S. Mortgaged Properties: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the applicable Borrower (“Borrower Notice”) and (if applicable) notification to the applicable Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the applicable Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of the flood insurance policy or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”);
8.an opinion of counsel (which counsel shall be reasonably satisfactory to the Administrative Agent) in each state in which a U.S. Mortgaged Property is located with respect to the enforceability of the U.S. Mortgage(s) to be recorded in each such state and such other matters as the Administrative Agent may request, in each case in form and substance reasonably satisfactory to the Administrative Agent (the “Real Estate Opinions”); provided, that no such Real Estate Opinions shall be required on the Third Restatement Date with respect to U.S. Mortgages for U.S. Mortgaged Properties set forth on Schedule 1.01C and owned by Holdings or any of its Subsidiaries as of the Signing Date;
9.such other customary documents as the Administrative Agent may reasonably request with respect to such U.S. Mortgage or U.S. Mortgaged Property;
10.(A) within 10 days after any acquisition of any U.S. Mortgaged Property after the Second Amendment Closing Date, furnish to the Administrative Agent a description of the property so acquired in detail satisfactory to the Administrative Agent and (B) within 60 days after any such acquisition, but not less than 45 days following delivery of such notice, execute and deliver any U.S. Mortgages and any other document, and provide such information contemplated by the foregoing;
(x)the Administrative Agent shall have received deeds of trust, trust deeds, deeds to secure debt and mortgages, or similar documents in any applicable jurisdiction (collectively, the “Other Foreign Mortgages”), each in form and substance reasonably satisfactory to the Administrative Agent and covering the real properties not located in the United States owned by any Loan Party securing all of the Obligations and any guarantee thereof (except as otherwise provided in paragraph 1.2(h) of the Agreed Security Principles), duly executed by the appropriate Loan Party, together with such documents substantially similar to those documents listed in clauses (i)(1) through (9) above as are relevant in the applicable jurisdiction, and such additional documents as the Administrative Agent may reasonably require to provide a valid and continuing security interest in such real properties;
(xi)the Administrative Agent shall have received from Holdings and each other Loan Party fully executed Control Agreements with respect to their Deposit Accounts and Securities Accounts (other than Excluded Accounts; provided that the Administrative Agent may in its reasonable discretion and at any time request that Control Agreements be duly executed and delivered to the Administrative Agent with respect to Excluded Accounts described in clause (y) of the definition thereof), which shall be in form and substance reasonably satisfactory to the Administrative Agent;
(xii)the Administrative Agent shall have received copies of UCC, United States Patent and Trademark Office, United States Copyright Office, insolvency, tax and judgment lien searches or
equivalent reports or searches with respect to each Loan Party, as applicable, each of a recent date listing all financing statements, lien notices or comparable documents that name such Loan Party as debtor and that are filed in those jurisdictions in which any property of such Loan Party is located, is organized or maintains its principal place of business or chief executive office and such other searches as the Administrative Agent reasonably deems necessary or appropriate;
(xiii)all documents, instruments, forms and statements, required by law or reasonably requested by the Administrative Agent to be filed, registered, duly stamped or recorded to create the Liens intended to be created by the applicable Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, such Collateral Document, shall have been filed, registered, duly stamped or recorded or delivered to the Administrative Agent for filing, registration, stamping or recording and all filing, registration, stamping or recording duty or other fee shall have been paid (at the expense of the Borrowers); and
(xiv)the Administrative Agent shall have received such other customary documentation reasonably requested by the Administrative Agent including, without limitation, estoppels, confirmations, subordinations, favorable legal opinions of counsel to such Person (which shall cover, among other things, the legality, binding effect and enforceability of the documentation referred to in and the creation and perfection of Liens contemplated by this definition of Collateral and Guaranty Requirements) and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by the results of a search made with respect to any Loan Party in the jurisdiction of organization or chief executive office of such Loan Party or the jurisdiction in which property of such Loan Party is located and copies of the financing statements (or similar documents) disclosed by such search (in each case to the extent such searches and copies are made available to such Loan Party) are Permitted Liens or shall have been terminated and released;
provided, that the foregoing definition shall be subject to the Agreed Security Principles. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or legal opinions with respect to particular assets or to obtain documentation from Persons not Affiliated with any Loan Party where it determines that perfection or the obtaining of such third party documentation cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
“Collateral Documents” means, collectively, the U.S. Collateral Documents and the Foreign Collateral Documents.
“Commitment” means a Term A Commitment, a Term B Commitment, Revolving Credit Commitment, an Incremental Revolving Commitment, an Incremental Term Loan A Commitment or an Incremental Term Loan B, as the context may require.
“Commitment Fee Rate” means, from the Fifth Amendment Closing Date to the date following the Fifth Amendment Closing Date on which a Compliance Certificate is delivered pursuant to Section 6.02(a) in respect of the first fiscal quarter ended after the Fifth Amendment Closing Date, 0.375%, and, thereafter, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a):
|
|
|
Pricing
Level |
Consolidated
Leverage Ratio |
Commitment Fee Rate |
1 |
> 4.50 to 1.00 |
0.500% |
2 |
≤ 4.50 to 1.00 and > 4.00 to 1.00 |
0.375% |
3 |
≤ 4.00 to 1.00 and > 3.50 to 1.00 |
0.350% |
4 |
≤ 3.50 to 1.00 and > 3.00 to 1.00 |
0.300% |
5 |
≤ 3.00 to 1.00 and > 2.00 to 1.00 |
0.250% |
6 |
≤ 2.00 to 1.00 |
0.200% |
Any increase or decrease in the Commitment Fee Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply).
Notwithstanding anything to the contrary contained in this definition, the determination of the Commitment Fee Rate for any period shall be subject to the provisions of Section 2.10(b).
“Committed Loan Notice” means a notice of a Term A Borrowing, a Term B Borrowing, a Revolving Credit Borrowing or an Incremental Borrowing, which shall be in substantially the form of Exhibit A-2 or any other form 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 applicable 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.
“Compliance Certificate” means a certificate in substantially the form of Exhibit D or any other form approved by the Administrative Agent.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR, XXXXX, SARON or any proposed Successor Rate for an Agreed Currency, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “XXXXX”, “SARON” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Agreed Currency (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 rate for such Agreed Currency exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Consolidated Cash Interest Expense” means, for any Measurement Period, consolidated interest expense payable in cash in such period (including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest), in each case, of or by Holdings and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period (net of cash interest income), excluding, however, any upfront and one-time financing fees, including amortization of original issue discount (to the extent included in consolidated interest expense for such period) and any non-cash interest expense accrued by Holdings and its Subsidiaries as a result of any Permitted Pension Withdrawal Liability.
“Consolidated Current Assets” means, as at any date of determination, the total assets of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current assets in conformity with GAAP, excluding cash and Cash Equivalents, any asset related to the Specified Brazilian Tax Payment and deferred income taxes.
“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of a Person and its Subsidiaries on a consolidated basis that may properly be classified as current liabilities in conformity with GAAP, excluding deferred income taxes, any liability related to the Specified Brazilian Tax Payment and the current portion of long term debt.
“Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of Holdings and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period, plus the following, without duplication, to the extent deducted in calculating such Consolidated Net Income: (a) consolidated interest expense, (b) the provision for federal, state, local and foreign income and franchise taxes payable (calculated net of federal, state, local and foreign income tax credits) and other taxes, interest and penalties included under GAAP in income tax expense, (c) depreciation and amortization expenses (including amortization of goodwill and other intangibles), (d) other non-recurring expenses, write-offs, write-downs or impairment charges which do not represent a cash item in such period (or in any future period) (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period and any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts receivable or inventory), (e) non-cash charges or expenses related to stock-based compensation, (f) non-cash charges (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period and any non-cash charge, expense or loss relating to write-offs, write-downs or reserves with respect to accounts receivable or inventory), (g) (i) cash charges incurred by Holdings and its Subsidiaries in connection with severance, restructuring, retention and integration costs with respect to the personnel, assets and operations of Holdings and its Subsidiaries in an amount not to exceed, in the case of this clause (i), 10.015.0% of Consolidated EBITDA for such Measurement Period, plus (ii) cash charges constituting Third Restatement Date Transactions Costs, in an aggregate amount not to exceed in the case of this clause (ii), $5,000,000, (h) one-time advisory, financing, legal, accounting, and consulting cash expenses incurred by Holdings and its Subsidiaries in connection with Permitted Acquisitions not constituting the consideration for the Permitted Acquisition and (i) non-cash losses and expenses resulting from fair value accounting (as permitted by Accounting Standard Codification Topic No. 000-00-00 – Fair Value Option or any similar accounting standard) and minus, without duplication, (x) any amount included in Consolidated EBITDA for such Measurement Period in respect of cancellation of debt income arising as a result of the repurchase of Indebtedness (including notes or bank loans) by Holdings, (y) non-cash gains included in Consolidated Net Income for such Measurement Period (excluding any non-cash gain to the extent it represents the reversal of an accrual or a reserve for a potential cash gain in any prior period) and (z) interest income.
Solely for the purpose of the computations of the Consolidated Leverage Ratio, the Consolidated Interest Coverage Ratio, if there has occurred a Permitted Acquisition or Disposition of assets during the relevant period, Consolidated EBITDA shall be calculated on a Pro Forma Basis (as defined below) pursuant to this definition. For purposes of this definition, “Pro Forma Basis” means, with respect to the
preparation of pro forma financial statements for the purpose of the adjustment to Consolidated EBITDA (1) relating to any Permitted Acquisition, on the basis that (A) any Indebtedness incurred or assumed in connection with such acquisition was incurred or assumed on the first day of the applicable period, (B) if such Indebtedness bears a floating interest rate, such interest shall be paid over the pro forma period either at the rate in effect on the date of such acquisition or the applicable rate experienced over the period (to the extent known), and (C) all income and expense associated with the assets or entity acquired in connection with such Permitted Acquisition for the most recently ended four fiscal quarter period for which such income and expense amounts are available shall be treated as being earned or incurred by Holdings and its Subsidiaries on a pro forma basis for the portion of the applicable period occurring prior to the date such acquisition or consolidation has occurred after giving effect to cost savings, operating expenses, reductions, or other operating improvements and acquisition synergies that are reasonably identifiable and factually supportable, projected by Holdings 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 by Holdings or any Subsidiary in connection with such Permitted Acquisition and net of the amount of actual benefits realized during such period from such actions that are otherwise included in the calculation of Consolidated EBITDA; provided that (i) the aggregate amount of cost savings additions made pursuant to this clause (C) in any four consecutive fiscal quarter period shall not exceed 10% of Consolidated EBITDA for such period prior to giving effect to this clause (C); and (ii) at the time any such calculation pursuant to this clause (C) is made, Holdings shall deliver to the Administrative Agent a certificate signed by a Responsible Officer (which may be the Compliance Certificate) setting forth reasonably detailed calculations in respect of the matters referred to in this clause (C) as well as the relevant factual support in respect thereof; and (2) relating to any Disposition of assets, a pro forma adjustment of Consolidated EBITDA, to include, as of the first day of any applicable period, such Dispositions, including adjustments reflecting any non-recurring costs and any extraordinary expenses of any such permitted asset dispositions consummated during such period.
“Consolidated Funded Indebtedness” means, as of any date of determination, for Holdings and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations as determined in accordance with GAAP, whether current or long-term, for borrowed money (including the Obligations hereunder and any Indebtedness in respect of Receivables Program Obligations) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct non-contingent obligations arising in connection with letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) contingent earn-outs, hold-backs and other deferred payment of consideration in Permitted Acquisitions to the extent not fixed and payable), (e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than Holdings or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which Holdings or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to Holdings or such Subsidiary. Notwithstanding the foregoing or anything to the contrary herein, clause (a) of the definition of Consolidated Funded Indebtedness shall not include obligations under Permitted Supply Chain Financing arrangements.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the most recently completed Measurement Period to (b) Consolidated Cash Interest Expense for the most recently completed Measurement Period.
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness (net of (i) Unrestricted Cash of Holdings and its Subsidiaries (other than any Subsidiary organized under the laws of Brazil) not exceeding $100,000,000 plus (ii) the Unrestricted Cash of a Subsidiary organized under the laws of Brazil) to (b) Consolidated EBITDA for the most recently completed Measurement Period.
“Consolidated Net Income” means, at any date of determination, the net income (or loss) of Holdings and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period taken as a single accounting period determined in conformity with GAAP; provided that Consolidated Net Income shall exclude, without duplication, (a) extraordinary gains and extraordinary non-cash losses for such Measurement Period, (b) non-cash charges in connection with Permitted Pension Withdrawal Liability, (c) the net income of any Subsidiary (other than a Receivables Subsidiary) during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such Measurement Period, except that Holdings’ equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, (d) any income (or loss) for such Measurement Period of any Person if such Person is not a Subsidiary or is a Receivables Subsidiary, except that (x) Holdings’ equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income in an amount equal to the sum of (i) the aggregate amount of such net income for such Measurement Period regardless of whether such net income is actually distributed by such Person, provided that the amount by which Consolidated Net Income may be increased in accordance with this clause (c)(i) may not exceed $10,000,000 in any Measurement Period, plus (ii) without duplication for amounts described in subclause (i) of this clause (d), the aggregate amount of cash actually distributed by such Person during such Measurement Period to a Loan Party as a dividend or other distribution and (y) any loss for such Measurement Period shall be included and (e) any gains or losses (including any cancellation of debt income) arising from a repurchase of Indebtedness (including notes or bank loans) by Holdings or any of its Subsidiaries.
“Consolidated Total Assets” means, as to any Person on any date of determination, the total assets of such Person and its Subsidiaries, determined in accordance with GAAP as shown on the most recent balance sheet of Holdings delivered pursuant to Section 6.01(a) or (b) on or prior to such date after giving pro forma effect to each acquisition or disposition of a Person, division or a line of business that occurred on or after such balance sheet date and prior to such date of determination.
“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.
“Contributed Amount” means that portion of the Original Intercompany Note in an aggregate principal amount of €225,000,000 that, on or around April 30, 2017, was contributed to ACCO Dutch Finance C.V. in exchange for a currency forward contract between Holdings and ACCO Dutch Finance C.V. in an aggregate principal amount of €225,000,000.
“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.
“Control Agreement” means, with respect to any Deposit Account or Securities Account of any Loan Party, one or more control agreements which (a)(i) in the case of a Deposit Account located in the United States, is sufficient to establish the Administrative Agent’s control pursuant to Section 9-104 of the UCC or (ii) in the case of a Securities Account located in the United States, is sufficient to establish the
Administrative Agent’s control pursuant to Section 8-106 of the UCC, as applicable, (b) in the case of all Deposit Accounts and Securities Accounts of any Loan Party, provides the Administrative Agent with a perfected, first priority security interest (subject to Liens permitted by such Control Agreements) in all amounts from time to time on deposit in such Deposit Account or securities and financial assets credited to such Securities Account, as applicable and (c) is otherwise in form and substance reasonably satisfactory to the Administrative Agent, or otherwise necessary or appropriate to establish that the Administrative Agent has a valid and perfected security interest in such accounts under the law where the financial institution maintaining such account is located.
“Controller” as defined in section 9 of the Corporations Xxx 0000 (Cth).
“Conversion/Continuation Notice” means a notice of (a) a conversion of Term Loans or Revolving Credit Loans from one Type to the other or (b) a continuation of EurodollarAgreed Currency Rate Loans or Canadian BA Rate Loans pursuant to Section 2.02(a), which shall be in substantially the form of Exhibit A-2 or any other form 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 applicable Borrower.
“Covered Entity” means any of the following:
(i)“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Party” has the meaning as defined in Section 9.13.
“Daily SOFR” means the rate per annum equal to SOFR determined for any day pursuant to the definition thereof plus the SOFR Adjustment. Any change in Daily SOFR shall be effective from and including the date of such change without further notice. If the rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Daily LIBOR” means:
(i) the fluctuating rate of interest, which can change on each Business Day, equal LIBOR, or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., London time, two (2) Business Days prior to the date in question, for U.S. Dollar deposits with a term equivalent to a one (1) month term beginning on that date (in such case, the “LIBOR Rate”); and
(ii) (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate;
provided that (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (y) with respect to any Loan, the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Daily LIBORSOFR Loan” means a Loan made hereunder with respect to which thethat bears interest at a rate is calculated by reference tobased on Daily LIBORSOFR. Daily LIBORSOFR Loans may be denominated in U.S. Dollars only.
“DAM” means the mechanism for the allocation and exchange of interests in the Term Loans, Revolving Credit Loans and Incremental Revolving Loans and collections thereunder established under Article 10.
“DAM Dollar Lender” means any Lender that has made or holds (or would hold after giving effect to a DAM Exchange) any Term Loan, Revolving Credit Loan or Incremental Revolving Loan denominated in an Alternative Currency.
“DAM Exchange” means the exchange of the Lenders’ interests provided for in Section 10.01.
“DAM Exchange Date” means the date on which (a) any event referred to in Section 8.01(f) shall occur in respect of a Loan Party or (b) any acceleration of the maturity of all of the Loans pursuant to Section 8.02 shall occur.
“DAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the aggregate U.S. Dollar Equivalent (determined on the basis of the Spot Rate prevailing on the DAM Exchange Date) of the Obligations owed to such Lender on the DAM Exchange Date (excluding such Lender’s participation in the aggregate amount of Letters of Credit outstanding immediately prior to the DAM Exchange Date) and (b) the denominator shall be the aggregate U.S. Dollar Equivalent (as so determined) of the Obligations owed to all Lenders on the DAM Exchange Date (excluding the aggregate amount of Letters of Credit outstanding immediately prior to such DAM Exchange Date). For purposes of computing each Lender’s DAM Percentage, all Obligations which are denominated in an Alternative Currency shall be translated into U.S. Dollars at the Spot Rate in effect on the DAM Exchange Date.
“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, administration, 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, including any Canadian Insolvency Law.
“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 constitute an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (x) with respect to principal, interest or other fees attributable to a Facility, (i) in the case of Loans denominated in an Alternative Currency, the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% and (ii) in the case of Loans denominated in U.S. Dollars, the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum and (y) with respect to all other Obligations, (1) the Base Rate in respect of the Term A Facility plus (2) the
Applicable Rate applicable to Base Rate Loans under the Term A Facility plus (3) 2.0% per annum, in each case to the fullest extent permitted by applicable Laws, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2.0% per annum.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as reasonably 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 three (3) Business Days of the date required to be funded by it hereunder, unless, with respect to funding obligations in respect of Loans, such Lender notifies the Administrative Agent and Holdings in writing that such failure is the result of such Xxxxxx’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified Holdings 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 (unless such notice or public statement relates to such Xxxxxxx’ obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) after the date of this Agreement has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, administrator, Controller, 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, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-in Action; 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 so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrower, each L/C Issuer, the Swing Line Lender and such Defaulting Lender.
“Deposit Account” means “deposit accounts” as such term is defined in the UCC.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Discharge of Obligations” shall mean the date upon which (a) the Aggregate Commitments have been permanently and irrevocably terminated; (b) all Obligations (other than (x) contingent indemnification obligations as to which no claim has been asserted and (y) obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements) have been paid in full; (c) all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been made) have
expired or been terminated; and (d) all obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements in respect of which the Administrative Agent has received notice pursuant to Section 9.11(other than any such agreements as to which other arrangements satisfactory to the applicable Cash Management Bank, Hedge Bank or Supply Chain Finance Bank have been made), have been terminated and paid in full.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including (x) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith and (y) any issuance of Equity Interests by any Subsidiary of such Person. For the avoidance of doubt, any issuance of Equity Interests by Holdings shall not be a Disposition.
“Domestic Subsidiary” means any Subsidiary organized under the laws of any jurisdiction within the United States and any DRE of a U.S. Person.
“DRE” means any Person who is “disregarded” as an entity separate from its owner under Section 7701 of the Code and the U.S. Treasury Regulations promulgated pursuant thereto.
“Dutch CV Transactions” means the Note Contribution, the ABEH Shares Contribution and the Esselte European Holdings Contribution.
“Dutch Pledge Agreements” means (a) the security agreement over the partnership interest in ACCO Electra Dutch C.V. dated 26 July 2018, between Esselte Holdings, LLC as pledgor, Bank of America, N.A. as pledgee, and Esselte Holdings, LLC as general partner for the account and benefit of ACCO Electra Dutch C.V. as the partnership, and (b) the security agreement over the partnership interest in ACCO Dutch Finance Holdings C.V. dated 18 September 2017, between ACCO Europe International Holdings, LLC and ACCO Brands International, Inc. as pledgors, Bank of America, N.A. as pledgee, and ACCO Europe International Holdings, LLC as general partner for the account and benefit of ACCO Dutch Finance C.V. as the partnership.
“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.