SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as of May 23, 2019 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 Required Lenders (as defined in the Credit Agreement referenced below, the “Required Lenders”) and each of the Consenting Lenders (as defined below), the Required Lenders and Consenting Lenders that are delivering Lender Consents (as defined below) 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 and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” and the Credit Agreement as amend 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 Required Lenders (as defined in the Credit Agreement) and the other parties hereto have agreed to amend the Credit Agreement to, among other things, (a) provide Term A Loans denominated in Euros in an aggregate principal amount of €252,750,000 to refinance, in full, all Euro Term A Loans outstanding immediately prior to the effectiveness of this Amendment (the “Existing Euro Term A Loans”), (b) provide Term A Loans denominated in Australian Dollars in an aggregate principal amount of AUD61,000,000 to refinance, in full, all Australian Dollar Term A Loans outstanding immediately prior to the effectiveness of this Amendment (the “Existing AUD Term A Loans”), (c) establish a new tranche of Term A Loans denominated in U.S. Dollars in an aggregate principal amount of $100,000,000 (the “USD Term A Loans”), and (d) increase the aggregate commitments under the Revolving Credit Facility by $100,000,000 such that, after giving effect to such increase on the Second Amendment Closing Date, there shall exist $600,000,000 in aggregate amount of Revolving Credit Commitments under the Revolving Credit Facility;
WHEREAS, each Existing Lender holding Existing Euro Term A Loans (collectively, the “Existing Euro Term A Lenders”) and each Existing Lender holding Existing AUD Term A Loans (collectively, the “Existing AUD Term A Lenders”) that (a) in the case of Existing Euro Term A Lenders, executes and delivers a consent to this Amendment in the form of the “Euro Term A Lender Consent” attached hereto as Annex I (an “Euro Term A Lender Consent”) and makes the appropriate election thereunder (collectively, the “Continuing Euro Term A Lenders”) and (b) in the case of Existing AUD Term A Lenders, executes and delivers a consent to this Amendment in the form of the “AUD Term A Lender Consent” attached hereto as Annex II (an “AUD Term A Lender Consent”) and makes the appropriate election thereunder (collectively, the “Continuing AUD Term A Lenders”), will in each case, by the fact of such execution and delivery, be deemed (i) to have consented to the terms of this Amendment and the Amended Credit Agreement and (ii) to have agreed to continue all of its Existing Euro Term A Loans or, as the case may be, Existing AUD Term A Loans as ‘Term Loans’ and ‘Term A Loans’ (and, as applicable, ‘Euro Term A Loans’ or ‘Australian Dollar Term A Loans’) on the terms set forth in this Amendment and the Amended Credit Agreement in a principal amount equal to the principal amount of its Existing Euro Term A Loan (or such lesser amount as determined by the Administrative Agent in its sole discretion and in consultation with Holdings) or, as the case may be, Existing AUD Term A Loan (or such lesser amount as determined by the Administrative Agent in its sole discretion and in consultation with Holdings), as further set forth in this Amendment;
WHEREAS, each Existing Euro Term A Lender and each Existing AUD Term A Lender that executes and delivers an Euro Term A Lender Consent or, as the case may be, a AUD Term A Lender Consent and makes the appropriate election thereunder consents to this Amendment and the Amended Credit Agreement but does not consent to continue its Existing Euro Term A Loans or, as the case may be, its Existing AUD Term A Loans on the terms set forth in this Amendment and the Amended Credit Agreement shall, in each
Exhibit 10.1
case, execute, or shall be deemed to have executed, a counterpart of the Master Assignment and Acceptance Agreement substantially in the form attached hereto as Annex IV (a “Master Assignment”) and shall in accordance therewith sell all of its Existing Euro Term A Loans or, as the case may be, its Existing AUD Term A Loans at 100% of par as specified in the applicable Master Assignment, as further set forth in this Amendment;
WHEREAS, if an Existing Euro Term A Lender or, as the case may be, an Existing AUD Term A Lender fails to execute and return an Euro Term A Lender Consent or an AUD Term A Lender Consent, as applicable, by 5:00 p.m. (New York City time), on May 20, 2019, such Existing Euro Term A Lender or, as the case may be, such Existing AUD Term A Lender shall be deemed a Non-Continuing Euro Term A Lender (as defined below) or, as the case may be, a Non-Continuing AUD Term A Lender (as defined below) and, in accordance with Section 11.13 of the Credit Agreement, shall in each case assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06 of the Credit Agreement), all of its interests, rights and obligations under the Credit Agreement and the related Loan Documents in respect of its Existing Euro Term A Loans or, as applicable, its Existing AUD Term A Loans to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment) at 100% of par as specified in the applicable Master Assignment, as further set forth in this Amendment;
WHEREAS, each Existing Lender holding Revolving Credit Loans (as defined in the Credit Agreement immediately prior to the Second Amendment Closing Date (as defined below), the “Existing Revolving Credit Loans”) or unused Revolving Credit Commitments (as defined in the Credit Agreement immediately prior to the Second Amendment Closing Date, the “Existing Revolving Credit Commitments” and, such Existing Lenders holding such Existing Revolving Credit Loans or Existing Revolving Credit Commitments, the “Existing Revolving Credit Lenders”) that executes and delivers a consent to this Amendment in the form of the “Revolving Credit Lender Consent” attached hereto as Annex III (a “Revolving Credit Lender Consent”, and the Revolving Credit Lender Consents together with the Euro Term A Lender Consents and the AUD Term A Lender Consents (as defined below), the “Lender Consents”) and makes the appropriate election thereunder (collectively, the “Continuing Revolving Credit Lenders” and, together with the Continuing Euro Term A Lenders, the “Consenting Lenders”) will, by the fact of such execution and delivery, be deemed (i) to have consented to the terms of this Amendment and the Amended Credit Agreement and (ii) to have agreed to continue (as further described in its Revolving Credit Lender Consent) all of its Existing Revolving Credit Commitments and Existing Revolving Credit Loans as Revolving Credit Commitments and Revolving Credit Loans, respectively, on the terms set forth in this Amendment and the Amended Credit Agreement in a principal amount equal to its Existing Revolving Credit Commitments and Existing Revolving Credit Loans, respectively (or such lesser amount as determined by the Administrative Agent in its sole discretion and in consultation with Holdings), as further set forth in this Amendment;
WHEREAS, each Existing Revolving Credit Lender that executes and delivers a Revolving Credit Lender Consent and makes the appropriate election thereunder consents to this Amendment and the Amended Credit Agreement but does not consent to the continuation of any of its Existing Revolving Credit Commitments as Revolving Credit Commitments on the terms set forth in this Amendment and the Amended Credit Agreement and shall execute, or shall be deemed to have executed, a counterpart of the applicable Master Assignment and shall in accordance therewith sell all of its Existing Revolving Credit Commitments at 100% of par as specified in the applicable Master Assignment, as further set forth in this Amendment;
WHEREAS, if an Existing Revolving Credit Lender fails to execute and return a Revolving Credit Lender Consent by 5:00 p.m. (New York City time), on May 20, 2019, such Existing Revolving Credit Lender shall be deemed a Non-Continuing Revolving Credit Lender (as defined below) and, in accordance with Section 11.13 of the Credit Agreement, shall assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06 of the Credit Agreement), all of its interests, rights and obligations under the Credit Agreement and the related Loan Documents in respect of its Existing Revolving Credit Commitments and Existing Revolving Credit Loans to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment) at 100% of par as specified in the applicable Master Assignment, as further set forth in this Amendment; and
WHEREAS, each Existing Lender and Additional Lender (as defined below) that executes and delivers a consent and/or signature page to this Amendment irrevocably (i) consents to the terms of this
Exhibit 10.1
Amendment and the Amended Credit Agreement and (ii) commits to provide the Loans in an aggregate principal amount equal to its applicable Commitment as set forth on Schedule 1 hereto on the Second Amendment Closing Date.
WHEREAS, the Administrative Agent, the L/C Issuers, the Swingline Lender, the Required Lenders, the Additional Lenders, the Replacement Lender (as defined below), 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
1.1 | Second Amendment to Credit Agreement. |
(a) (i) The Borrowers, the Required Lenders, the Consenting Lenders, the Administrative Agent and the other parties hereto agree that on the Second Amendment Closing Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the Credit Agreement attached as Exhibit A hereto, and (ii) effective as of the Second Amendment Closing Date, Schedule 2.01 of the Credit Agreement is amended and restated in its entirety as set forth on Schedule 2 hereto.
(b) On the Second Amendment Closing Date, the Lenders set forth on Schedule 1 hereto under the heading “Second Amendment Closing Date USD Term A Loan Commitment” (the “USD Term A Lenders”) severally and not jointly agree to extend credit to Holdings in the form of Term A Loans denominated in U.S. Dollars (the “USD Term A Loans”) in an aggregate principal amount not to exceed their U.S. Dollar Term A Commitments as of the Second Amendment Closing Date as set forth on Schedule 1 hereto, which USD Term A Loans shall not exceed $100,000,000 in the aggregate, and the parties hereto hereby agree to such extension of credit and agree that the USD Term A Loans shall constitute ‘U.S. Dollar Term A Loans’, ‘Term A Loans’ and ‘Term Loans’ for purposes of this Amendment and the Amended Credit Agreement as more fully set forth herein and therein.
(c) On the Second Amendment Closing Date, the Lenders set forth on Schedule 1 hereto under the heading “Second Amendment Closing Date Revolving Credit Commitments” (the “Additional Revolving Credit Lender” and, together with the USD Term A Lenders, the “Additional Lenders”) severally and not jointly agree to extend credit to the Borrowers in the form of Revolving Credit Commitments in an aggregate principal amount not to exceed their Revolving Credit Commitments as of the Second Amendment Closing Date as set forth on Schedule 1 hereto, which Revolving Credit Commitments shall not exceed $100,000,000 in the aggregate, and the parties hereto hereby agree to such extension of credit and agree that such Revolving Credit Commitments and any Revolving Credit Loans extended pursuant thereto shall constitute ‘Revolving Credit Commitments’ and ‘Revolving Credit Loans’, respectively, for purposes of this Amendment and the Amended Credit Agreement, as more fully set forth herein and therein. As of the Second Amendment Closing Date, the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders is $600,000,000 (or the U.S. Dollar Equivalent thereof).
1.2 | Acknowledgement. |
On and after the Second Amendment Closing Date, unless the context shall otherwise require, each reference in the Amended Credit Agreement or any other Loan Document to (a) “Term A Loans” shall be deemed a reference to the Term A Loans, (b) “Revolving Credit Loans” shall be deemed a reference to the Revolving Credit Loans, (c) “Term A Lenders” shall be deemed a reference to the Term A Lenders, (d) “Revolving Credit Lenders” shall be deemed a reference to the Revolving Credit Lenders and (e) “Revolving Credit Commitments” shall be deemed a reference to the Revolving Credit Commitments, in each case, under as and defined in the Amended Credit Agreement. As of the Second Amendment Closing Date, after giving effect to this Amendment, the making of the additional Term A Loans contemplated by Sections 1.1(b), (c) and (d) above and the making available of the additional Revolving Credit Commitments contemplated by Section 1.1(e) above, (i) the aggregate outstanding principal amount of “USD Term A
Exhibit 10.1
Loans” is $100,000,000, (ii) the aggregate outstanding principal amount of “Australian Dollar Term A Loans” is AUD61,000,000, (iii) the aggregate outstanding principal amount of “Euro Term A Loans” is €252,750,000 and (iii) the aggregate principal amount of “Revolving Credit Commitments” is $600,000,000.
SECTION II. CONTINUATION OF EXISTING EURO TERM A LOANS, EXISTING AUD TERM A LOANS AND EXISTING REVOLVING CREDIT COMMITMENTS; OTHER TERMS AND AGREEMENTS. Each Existing Euro Term A Lender, each Existing AUD Term A Lender and each Existing Revolving Credit Lender executing this Amendment shall select one of the options on the Euro Term A Lender Consent, AUD Term A Lender Consent and Revolving Credit Lender Consent hereto, respectively, and deliver such signature page to the Administrative Agent by 5:00 p.m. (New York City time), on May 20, 2019. Pursuant to the procedures set forth in Section III of this Amendment:
Existing Euro Term A Loans
2.1 | Continuation of Existing Euro Term A Loans by Continuing Euro Term A Lenders (Option A). Each Euro Term A Lender selecting Option A on the Euro Term A Lender Consent hereto consents and agrees to (1) this Amendment and the Amended Credit Agreement, (2) sell the entire aggregate principal amount of its Existing Euro Term A Loans via an assignment (at 100% of par) on the Second Amendment Closing Date pursuant to a Master Assignment, which Existing Euro Term A Loans shall be continued as ‘Euro Term A Loans’, ‘Term A Loans’ and ‘Term Loans’ under the Amended Credit Agreement upon such sale and (3) as of a date selected by the Administrative Agent (which date shall be the Second Amendment Closing Date), purchase via an assignment Euro Term A Loans in an aggregate principal amount equal to (x) the entire aggregate principal amount of its Existing Euro Term A Loans so sold via assignment pursuant to clause (2) minus (y) such amount as may be determined by the Administrative Agent in its sole discretion and in consultation with Holdings (such amount referred to in this clause (y) with respect to any Lender, a “Decreased Amount” with respect to such Lender) applicable to such Euro Term A Lender on the Second Amendment Closing Date (it being understood and agreed that such Euro Term A Lender’s signature to the Term A Lender Consent shall be deemed to be such Term A Lender’s written consent to the assignments described in the foregoing clauses (2) and (3), on the terms set forth in the assignment agreements posted to the Lenders on May 20, 2019). Such assignment shall be made at 100% of par. |
2.2 | Non-Continuation of Existing Euro Term A Loans by Non-Continuing Euro Term A Lenders (Option B). Each Euro Term A Lender selecting Option B on the Euro Term A Lender Consent hereto (together with each other Lender, to the extent set forth in the immediately following Section 2.3, each “Non-Continuing Euro Term A Lender”) consents to this Amendment and the Amended Credit Agreement, but does not consent to the continuation of its Existing Euro Term A Loans into Euro Term A Loans (under and as defined in the Amended Credit Agreement) shall execute, or shall be deemed to have executed, a counterpart of the applicable Master Assignment and shall in accordance therewith sell such portion of its Existing Euro Term A Loans at 100% of par as specified in the applicable Master Assignment (it being understood and agreed that such Euro Term A Lender’s signature to the Term A Lender Consent shall be deemed to be such Term A Lender’s written consent to the assignment described in this Section 2.2). For the avoidance of doubt, prepayments of the Existing Euro Term A Loans held by Term A Lenders (including any assignee thereof in connection with a Master Assignment) on the Second Amendment Closing Date shall be permitted notwithstanding anything to the contrary set forth in any of the Loan Documents (including, but not limited to, Sections 2.12 and 2.13 of the Credit Agreement) to the extent consistent with the final allocations provided by the Administrative Agent to Holdings on May 20, 2019. |
2.3 | Each Euro Term A Lender failing to execute and return an Euro Term A Lender Consent hereto by 5:00 p.m. (New York City time), on May 20, 2019, shall be deemed a Non-Continuing Euro Term A Lender and, in accordance with Section 11.13 of the Credit Agreement, shall execute or be deemed to have executed a counterpart of the applicable Master Assignment and shall in accordance therewith sell such portion of its Existing Euro Term A Loans at 100% of par as specified in the applicable Master Assignment. |
Existing AUD Term A Loans
2.4 | Continuation of Existing AUD Term A Loans by Continuing AUD Term A Lenders (Option A). Each AUD Term A Lender selecting Option A on the AUD Term A Lender Consent hereto |
Exhibit 10.1
consents and agrees to (1) this Amendment and the Amended Credit Agreement, (2) sell the entire aggregate principal amount of its Existing AUD Term A Loans via an assignment (at 100% of par) on the Second Amendment Closing Date pursuant to a Master Assignment, which Existing AUD Term A Loans shall be continued as ‘Australian Dollar Term A Loans’, ‘Term A Loans’ and ‘Term Loans’ under the Amended Credit Agreement upon such sale and (3) as of a date selected by the Administrative Agent (which date shall be the Second Amendment Closing Date), purchase via an assignment Australian Dollar Term A Loans in an aggregate principal amount equal to (x) the entire aggregate principal amount of its Existing AUD Term A Loans so sold via assignment pursuant to clause (2) minus (y) the Decreased Amount (if any) applicable to such Existing AUD Term A Lender (it being understood and agreed that such AUD Term A Lender’s signature to the Term A Lender Consent shall be deemed to be such Term A Lender’s written consent to the assignments described in the foregoing clauses (2) and (3), on the terms set forth in the assignment agreements posted to the Lenders on May 20, 2019). Such assignment shall be made at 100% of par.
2.5 | Non-Continuation of Existing AUD Term A Loans by Non-Continuing AUD Term A Lenders (Option B). Each AUD Term A Lender selecting Option B on the AUD Term A Lender Consent hereto (together with each other Lender, to the extent set forth in the immediately following Section 2.6, each “Non-Continuing AUD Term A Lender”) consents to this Amendment and the Amended Credit Agreement, but does not consent to the continuation of its Existing AUD Term A Loans into Australian Dollar Term A Loans (under and as defined in the Amended Credit Agreement) shall execute, or shall be deemed to have executed, a counterpart of the applicable Master Assignment and shall in accordance therewith sell such portion of its Existing AUD Term A Loans at 100% of par as specified in the applicable Master Assignment (it being understood and agreed that such AUD Term A Lender’s signature to the Term A Lender Consent shall be deemed to be such Term A Lender’s written consent to the assignment described in this Section 2.5). For the avoidance of doubt, prepayments of the Existing AUD Term A Loans held by Term A Lenders (including any assignee thereof in connection with a Master Assignment) on the Second Amendment Closing Date shall be permitted notwithstanding anything to the contrary set forth in any of the Loan Documents (including, but not limited to, Sections 2.12 and 2.13 of the Credit Agreement) to the extent consistent with the final allocations provided by the Administrative Agent to Holdings on May 20, 2019. |
2.6 | Each AUD Term A Lender failing to execute and return an AUD Term A Lender Consent hereto by 5:00 p.m. (New York City time), on May 20, 2019, shall be deemed a Non-Continuing AUD Term A Lender and, in accordance with Section 11.13 of the Credit Agreement, shall execute or be deemed to have executed a counterpart of the applicable Master Assignment and shall in accordance therewith sell such portion of its Existing AUD Term A Loans at 100% of par as specified in the applicable Master Assignment. |
Existing Revolving Credit Loans
2.7 | Continuation of Existing Revolving Credit Loans and Existing Revolving Credit Commitments by Continuing Revolving Credit Lenders (Option A). Each Existing Revolving Credit Lender selecting Option A on the Revolving Credit Lender Consent hereto consents and agrees to (1) this Amendment and the Amended Credit Agreement, (2) sell the entire aggregate principal amount of its Existing Revolving Credit Loans and Existing Revolving Credit Commitments via an assignment (at 100% of par) on the Second Amendment Closing Date pursuant to a Master Assignment and (3) as of a date selected by the Administrative Agent (which date shall be the Second Amendment Closing Date), purchase via an assignment Revolving Credit Loans and Revolving Credit Commitments in an aggregate principal amount equal to (x) the entire aggregate principal amount of its Existing Revolving Credit Loans and Existing Revolving Credit Commitments so sold via assignment pursuant to clause (2) minus (y) the Decreased Amount (if any) applicable to such Revolving Credit Lender (it being understood and agreed that such Revolving Credit Lender’s signature to the Revolving Credit Lender Consent shall be deemed to be such Revolving Credit Lender’s written consent to the assignments described in the foregoing clauses (2) and (3), on the terms set forth in the assignment agreements posted to the Lenders on May 20, 2019). Such assignment shall be made at 100% of par. |
2.8 | Non-Continuation of Existing Revolving Credit Loans and Existing Revolving Credit Commitments by Non-Continuing Revolving Credit Lenders (Option B). Each Revolving Credit Lender selecting Option B on the Revolving Credit Lender Consent hereto (together with |
Exhibit 10.1
each other Lender, to the extent set forth in the immediately following Section 2.9, each, a “Non-Continuing Revolving Credit Lender” and, together with the Non-Continuing Euro Term A Lenders , the “Non-Continuing Lenders”) consents to this Amendment and the Amended Credit Agreement, but does not consent to the continuation of its Existing Revolving Credit Loans and Existing Revolving Credit Commitments into Revolving Credit Loans and Revolving Credit Commitments (each under and as defined in the Amended Credit Agreement), respectively, and shall execute, or shall be deemed to have executed, a counterpart of the applicable Master Assignment and shall in accordance therewith sell such portion of its Existing Revolving Credit Loans and Existing Revolving Credit Commitments at 100% of par as specified in the applicable Master Assignment (it being understood and agreed that such Revolving Credit Lender’s signature to the Revolving Credit Lender Consent shall be deemed to be such Revolving Credit Lender’s written consent to the assignment described in this Section 2.8).
2.9 | Each Revolving Credit Lender failing to execute and return a Revolving Credit Lender Consent hereto by 5:00 p.m. (New York City time), on May 20, 2019, shall be deemed a Non-Continuing Revolving Credit Lender and, in accordance with Section 11.13 of the Credit Agreement, shall execute or be deemed to have executed a counterpart of the applicable Master Assignment and shall in accordance therewith sell its Existing Revolving Credit Loans and Existing Revolving Credit Commitments at 100% of par as specified in the applicable Master Assignment. |
2.10 | Additional Lenders. Each USD Term A Lender and each Additional Revolving Credit Lender that executes and delivers a signature page to this Amendment in the capacity of ‘USD Term A Lender’ and/or as an ‘Additional Revolving Lender’ irrevocably (i) consents to the terms of this Amendment and the Amended Credit Agreement and (ii) commits to provide, as the case may be, USD Term A Loans and/or Revolving Credit Loans and Revolving Credit Commitments in an aggregate principal amount equal to its ‘Second Amendment Closing Date USD Term A Commitments’ or, as applicable, ‘Second Amendment Closing Date Additional Revolving Credit Commitments’ as set forth on Schedule 1 hereto on the Second Amendment Closing Date. |
SECTION III. THE MASTER ASSIGNMENT AGREEMENTS.
3.1 | Pursuant to the Master Assignment entered into or deemed entered into by each Non-Continuing Lender in accordance with Section II, each Non-Continuing Lender shall sell and assign the principal amount of, as the case may be, its Existing Euro Term A Loans, Existing AUD Term A Loans or Existing Revolving Credit Loans and Existing Revolving Credit Commitments as set forth in Schedule I to such Master Assignment, as such Schedule is completed by the Administrative Agent on or prior to the Second Amendment Closing Date, to Bank of America, N.A., as assignee (in such capacity, the “Replacement Lender”) under such Master Assignment. Each Lender’s signature page to its Revolving Credit Lender Consent, Euro Term A Lender Consent or AUD Term A Lender Consent, respectively, shall be deemed to be its signature page to the applicable Master Assignment. |
3.2 | At the election of the Administrative Agent (in its sole discretion), the Master Assignments (and Schedule I to each Master Assignment) may be completed and executed as one or more separate agreements, each with a separate Schedule I, each of which shall be applicable as to one or more Non-Continuing Lenders. |
3.3 | After giving effect to the transactions contemplated by this Amendment, the amounts of the “Term A Loans”, “Revolving Credit Loans” and “ Revolving Credit Commitments” shall be as determined by the Administrative Agent and set forth in this Amendment and the Amended Credit Agreement. The Administrative Agent’s determination of such amounts shall be conclusive evidence thereof absent manifest error. For the avoidance of doubt, the provisions of Article IX and Section 11.04 of the Amended Credit Agreement shall apply to any such determination made by the Administrative Agent pursuant hereto. |
SECTION IV. CONDITIONS TO THE SECOND AMENDMENT CLOSING DATE
This Amendment shall become a binding agreement of the parties hereto and effective on the date (the “Second Amendment Closing Date”) on which each of the following conditions precedent are satisfied or waived:
Exhibit 10.1
(a) This Amendment shall have been duly executed by Holdings, the Australian Borrower, each other Loan Party, the Administrative Agent, the Required Lenders, the L/C Issuers, the Swingline Lender, the Additional Lenders, the Replacement Lender and the Consenting Lenders (whether pursuant to the execution and delivery of a Lender Consent or counterpart to this Amendment, as applicable) and, in each case, duly executed counterparts thereof shall have been delivered to the Administrative Agent, such that upon such execution and delivery thereof and the occurrence of the Second Amendment Closing Date, and the making of the additional AUD Term A Loans, Euro Term A Loans and the making of USD Term A Loans contemplated by Section 1.1(b), (c) and (d) hereto above and the making available of the additional Revolving Credit Commitments contemplated by Section 1.1(e) hereto, (i) the aggregate principal amount of the Term A Loans shall be equal to (x) $100,000,000 in the case of the USD Term A Loans, (y) €252,750,000 in the case of the Euro Term A Loans, and (z) AUD61,000,000 in the case of Australian Dollar Term A Loans, and (ii) the aggregate principal amount of the Revolving Credit Commitments shall be equal to $600,000,000.
(b) 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:
(i) a Note executed by Holdings and/or the Australian Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Second Amendment Closing Date, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Second Amendment Closing Date, enforceable against all third parties in accordance with their terms;
(iii) 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;
(iv) 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;
(v) an opinion from (A) Xxxxxx Price P.C., special New York counsel to the Loans Parties, (B) Xxxxx & Klegerman PC, special Nevada counsel to the Loan Parties, and (C) Bird & Bird, special Australian counsel to the Loan Parties, in each case, dated as of the Second Amendment Closing Date, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Second Amendment Closing Date after giving effect to the Second Amendment Closing Date Transactions, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (d), (g), (h), (i), (j), (k) and (l) of this Section IV on the Second Amendment Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 of the Amended Credit Agreement; and
Exhibit 10.1
(ix) (I) a counterpart of the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto and (II) a counterpart of the Australian Perfection Certificate, executed by the Australian Borrower and each other Australian Loan Party party thereto.
(c) The Administrative Agent and the Lenders shall have received at least one (1) day prior to the Second Amendment Closing Date all documentation and other information reasonably requested in writing by them at least two (2) days prior to the Second Amendment Closing 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, if applicable, the Beneficial Ownership Regulation.
(d) 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 the Second Amendment Closing Date Transactions shall have been received.
(e) [Reserved].
(f) (i) 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 the Second Amendment Closing Date Transactions, (x) all other compensation required to be paid on or prior to the Second Amendment Closing Date to the Administrative Agent and its Affiliates pursuant to that certain engagement letter, dated as of May 1, 2019, by and among Holdings and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, (y) for the account of each Existing Lender, upfront fees in an amount equal to (I) 0.10% of the U.S. Dollar Equivalent of the stated principal amount of such Existing Lender’s loans under the Term A Facilities and such Existing Lender’s funded and unfunded commitment under the Revolving Credit Facility (which will include the face amount of any issued but undrawn Letter of Credit) up to the U.S. Dollar Equivalent of the stated principal amount of such Existing Lender’s loans and commitments under the Amended Credit Agreement immediately prior to the Second Amendment Closing Date (as such U.S. Dollar Equivalent amounts are determined the Administrative Agent on the basis of the Spot Rate (as of May 20, 2019) for the purchase of U.S. Dollars with, as the case may be, Australian Dollars or Euros), and (II) 0.25% of the U.S. Dollar Equivalent of the stated principal amount of such Existing Lender’s loans and unfunded commitments under the Facilities in excess of the amount thereof subject to upfront fees pursuant to clause (y)(I) above (as such U.S. Dollar Equivalent amount is determined by the Administrative Agent an equivalent manner as set forth in clause (y)(I) above), and (z) for the account of each Additional Lender who is not an Existing Lender, upfront fees in an amount equal to 0.25% of the U.S. Dollar Equivalent of the stated principal amount of such Additional Lender’s loans and unfunded commitments under the Facilities, in each case, payable in U.S. Dollars in immediately available funds to such Lender under this Amendment and the Amended Credit Agreement and out of the proceeds of the Loans as and when funded on the Second Amendment Closing Date.
(ii) Concurrently with the continuation of the Existing Euro Term A Loans as Term A Loans, the continuation of the Existing AUD Term A Loans as Term A Loans, the continuation of the Existing Revolving Credit Loans and Existing Revolving Credit Commitments as Revolving Credit Loans and Revolving Credit Commitments, respectively, the making of the additional Term A Loans pursuant to Section 1.1(b), (c) and (d) hereof and the making available of additional Revolving Credit Commitments on the Restatement Date pursuant to Section 1.1(e) hereof, Holdings shall have paid to each USD Term Loan A Lender, each Non-Continuing Euro Term A Lender, each Non-Continuing AUD Term A Lender, and each Non-Continuing Revolving Credit Lender all indemnities, cost reimbursements and other Obligations, if any, then due and owing to such Non-Continuing Euro Term A Lenders, Non-Continuing AUD Term A Lenders and Non-Continuing Revolving Credit Lenders under the Loan Documents (prior to the effectiveness of this Amendment) to the extent Holdings has been notified thereof prior to the Second Amendment Closing Date.
(iii) With respect to any Loans and Commitments (each under and as defined in the Amended Credit Agreement) outstanding on the Second Amendment Closing Date,
Exhibit 10.1
Holdings shall have paid all interest and fees accrued pursuant to the Loan Documents through the Second Amendment Closing Date, whether or not otherwise due as of such date.
(g) Substantially concurrently with the Credit Extensions on the Second Amendment Closing Date, the Second Amendment Closing Date Transactions shall have been consummated in full (subject to the terms and provisions of Section VI herein).
(h) 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.
(i) 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 the Second Amendment Closing Date Transactions, 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.
(j) There has been no change, occurrence or development since December 31, 2018 that could reasonably be expected to have a Material Adverse Effect.
(k) With respect to the Loan Parties and their assets in existence as of the Second Amendment Closing Date, the Loan Parties shall have taken all actions required by the Collateral and Guaranty Requirements (subject to the terms and provisions of Section VI herein).
(l) No Default or Event of Default exists or shall exist or be continuing after giving effect to this Amendment and the Second Amendment Closing Date Transactions.
(m) The Administrative Agent shall have received updated Schedules 1.01A, 5.08(c), 5.08(d)(i), 5.08(d)(ii) and 5.13 to the Credit Agreement (if any) to replace the corresponding Schedules attached thereto as of the Second Amendment Closing Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that, the Lenders agree that such updated Schedules shall be deemed to be satisfactory if such updated Schedules (1) do not differ from the corresponding Schedules attached thereto as of the Second Amendment Closing Date in a manner that is material and adverse to the Lenders or (2) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Amendment shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 4.2(m)).
(n) The Administrative Agent shall have received a completed standard “life of loan” flood hazard determination form for each property encumbered by a Mortgage, and if the property is located in an area designated by the U.S. Federal Emergency Management Agency (or any successor agency) as having special flood or mud slide hazards, (i) a notification to Holdings (“Borrower Notice”) that flood insurance coverage under the National Flood Insurance Program (“NFIP”) created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004 is not available because the applicable community does not participate in the NFIP, (ii) documentation evidencing Holdings’ receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (iii) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, Holdings’ application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent.
Notwithstanding anything herein to the contrary, for purposes of determining compliance with the conditions specified in this Section IV, each Required Lender and Consenting Lender shall be deemed satisfied with
Exhibit 10.1
each document and each other matter required to be reasonably satisfactory to such Required Lender or Consenting Lender unless, prior to the Second Amendment Closing Date, the Administrative Agent receives notice from such Required Lender or Consenting Lender specifying such Required Lender’s or Consenting Lender’s objections.
SECTION V. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the L/C Issuers, the Swing Line Lender, the Replacement Lender, each Additional Lender and each of the Required Lenders and 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 Second Amendment Closing Date to each of the Administrative Agent, the L/C Issuers, the Swing Line Lender and each of the Required Lenders and Consenting Lenders as follows:
5.1 | Existence, 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. |
5.2 | Authorization; 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. |
5.3 | Governmental 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. |
5.4 | Binding 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). |
5.5 | Incorporation 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 Second Amendment Closing 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. |
5.6 | Absence of Default. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute an Event of Default or a Default. |
Exhibit 10.1
SECTION VI. POST-EFFECTIVENESS COLLATERAL MATTERS
Each Loan Party warrants, covenants and agrees with the Administrative Agent, the L/C Issuers, the Swing Line Lender and each Lender that each Loan Party will execute and deliver the documents and complete the actions set forth on Schedule 3 hereto (which Schedule may be updated on or prior to the Second Amendment Closing Date from time to time with the consent of Holdings and the Administrative Agent), in each case, within the time limits specified on such Schedule or as extended by the Administrative Agent in its reasonable discretion.
SECTION VII. ACKNOWLEDGMENT AND CONSENT; REAFFIRMATION
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 Second Amendment Closing 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.
SECTION VIII. MISCELLANEOUS
8.1 | Reference to and Effect on the Credit Agreement and the Other Loan Documents. |
(i) On and after the Second Amendment Closing 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.
Exhibit 10.1
(ii) Except as specifically amended by this Amendment, the Credit Agreement and the other Loan Documents shall remain 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 Credit Agreement or any of the other Loan Documents.
8.2 | Headings. 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. |
8.3 | Loan Document. This Amendment shall constitute a “Loan Document” under the terms of the Amended Credit Agreement. |
8.4 | Applicable 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. |
8.5 | Counterparts. 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. |
8.6 | Further 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. |
8.7 | No 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. |
8.8 | Administrative Agent Authorization. Holdings, the Required Lenders and the Consenting Lenders hereby authorize the Administrative Agent, in consultation with Holdings, to (i) determine all amounts, percentages and other information with respect to the Commitments and Loans of each Continuing Euro Term A Lender, each Continuing AUD Term A Lender and each Continuing Revolving Credit Lender and (ii) enter and complete all such amounts, percentages and other information in the Register maintained pursuant to Section 11.06(c) of the Amended Credit Agreement, as appropriate. The Administrative Agent’s determination and entry and completion shall be conclusive and shall be conclusive evidence of the existence, amounts, percentages and other information with respect to the obligations of the Borrowers under the Amended Credit Agreement, in each case, absent manifest error. For the avoidance of doubt, the provisions of Article 9 and Section 11.06 of each of the Amended Credit Agreement shall apply to any determination, entry or completion made by the Administrative Agent pursuant to this Section 8.8. |
[Remainder of this page intentionally left blank.]
Exhibit 10.1
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 U.S. BORROWER: | ACCO BRANDS CORPORATION |
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and Chief F
Exhibit 10.1
AUSTRALIAN BORROWER:
Executed by ACCO BRANDS AUSTRALIA
HOLDING PTY. LTD. in accordance with
Section 127 of the Corporations Xxx 0000
/s/ Xxxx X. Fenwick_ | /s/ Xxxxxx X. Schneider__________ |
Signature of director | Signature of director |
Name: Xxxx X. Xxxxxxx, a Responsible Officer Name: Xxxxxx X. Xxxxxxxxx, a Responsible
for the above-referenced company Officer for the above-referenced company
Exhibit 10.1
GUARANTORS: ACCO BRANDS CORPORATION By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Executive Vice President and Chief Financial Officer | |
ACCO BRANDS USA LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Executive Vice President and Chief Financial Officer | |
GENERAL BINDING LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President | |
ACCO BRANDS INTERNATIONAL, XXX. Xx: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President | |
Exhibit 10.1
ACCO EUROPE FINANCE HOLDINGS, LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President | |
ACCO EUROPE INTERNATIONAL HOLDINGS, LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President | |
GBC INTERNATIONAL, XXX. Xx: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President and Treasurer | |
ACCO INTERNATIONAL HOLDINGS, XXX. Xx: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President | |
Exhibit 10.1
NESCHEN GBC GRAPHIC FILMS, LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Supervisory Director | |
ESSELTE U.S. FV, LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President and Treasurer | |
ESSELTE EUROPEAN HOLDINGS LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President and Treasurer | |
ESSELTE LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President and Treasurer | |
Exhibit 10.1
ESSELTE HOLDINGS LLC By: /s/ Xxxx X. Fenwick Name: Xxxx X. Fenwick Title: Vice President and Treasurer | |
ACCO BRANDS AUSTRALIA HOLDING PTY. LTD. /s/ Xxxx X. Fenwick Signature of director | |
Name: Xxxx X. Xxxxxxx, a Responsible Officer for the above-referenced company /s/ Xxxxxx X. Schneider Signature of director Name: Xxxxxx X. Xxxxxxxxx, a Responsible Officer for the above-referenced company | |
ACCO BRANDS AUSTRALIA PTY. LTD. /s/ Xxxx X. Fenwick Signature of director | |
Exhibit 10.1
Name: Xxxx X. Xxxxxxx, a Responsible Officer for the above-referenced company /s/ Xxxxxx X. Schneider Signature of director Name: Xxxxxx X. Xxxxxxxxx, a Responsible Officer for the above-referenced company | |
BANK OF AMERICA, N.A., as Administrative Agent, USD Term A Lender and an Additional Revolving Credit Lender, Replacement Lender By: /s/ Xxxxxxxx X. Phillips Name: Xxxxxxxx X. Phillips Title: Senior Vice President | |
Barclays Bank PLC, as a USD Term A Lender By: /s/Xxxxx Bhalla Name: Xxxxx Bhalla Title: Director | |
Exhibit 10.1
Barclays Bank PLC, as a Additional Revolving Credit Lender By: /s/Xxxxx Bhalla Name: Xxxxx Bhalla Title: Director | |
BRANCH BANKING AND TRUST COMPANY, as a USD Term A Lender and an Additional Revolving Credit Lender By: /s/Xxxxxx X. Trail Name: Xxxxxx X. Trail Title: Senior Vice President | |
Bank of Montreal, as a USD Term A Lender By: /s/Xxxxxxxxx Robinson Name: Xxxxxxxxx Robinson Title: Director | |
BMO Xxxxxx Bank N.A., as an Additional Revolving Credit Lender By: /s/Xxxxxxxxx Robinson Name: Xxxxxxxxx Robinson Title: Director | |
Exhibit 10.1
Capital One, National Association, as a USD Term A Lender By: /s/Xxxxxxx A Ramijanc Name: Xxxxxxx A Ramijanc Title: Duly Authorized Signatory | |
Capital One, National Association, as an Additional Revolving Credit Lender By: /s/Xxxxxxx A Ramijanc Name: Xxxxxxx A Ramijanc Title: Duly Authorized Signatory | |
COMERICA BANK, as a USD Term A Lender By: /s/Xxxx Lascody Name: Xxxx Lascody Title: Vice President | |
COMERICA BANK, as an Additional Revolving Credit Lender By: /s/Xxxx Lascody Name: Xxxx Lascody Title: Vice President | |
Exhibit 10.1
COMPASS BANK d/b/a BBVA COMPASS, as a USD Term A Lender By: /s/Xxxxxxx Randolph Name: Xxxxxxx Randolph Title: Senior Vice President | |
COMPASS BANK d/b/a BBVA COMPASS, as an Additional Revolving Credit Lender By: /s/Xxxxxxx Randolph Name: Xxxxxxx Randolph Title: Senior Vice President | |
KeyBank National Association, as a USD Term A Lender By: /s/Xxxxxxxx X. Meil Name: Xxxxxxxx X. Meil Title: Senior Vice President | |
KeyBank National Association, as an Additional Revolving Credit Lender By: /s/Xxxxxxxx X. Meil Name: Xxxxxxxx X. Meil Title: Senior Vice President | |
Exhibit 10.1
PNC BANK, NATIONAL ASSOCIATION, as a USD Term A Lender By: /s/Shweta Parthasarathy Name: Shweta Parthasarathy Title: Senior Vice President | |
PNC BANK, NATIONAL ASSOCIATION, as an Additional Revolving Credit Lender By: /s/Shweta Parthasarathy Name: Shweta Parthasarathy Title: Senior Vice President | |
TD Bank, N.A., as a USD Term A Lender By: /s/Xxxx Hogan Name: Xxxx Hogan Title: Senior Vice President | |
TD Bank, N.A., as an Additional Revolving Credit Lender By: /s/Xxxx Hogan Name: Xxxx Hogan Title: Senior Vice President | |
Exhibit 10.1
The Northern Trust Company, as a USD Term A Lender & an Additional Revolving Credit Lender By: /s/Xxxx DeCristofaro Name: Xxxx DeCristofaro Title: Senior Vice President | |
Xxxxx Fargo Bank, National Association, as a USD Term A Lender By: /s/Xxxx Holm Name: Xxxx Holm Title: Managing Director | |
Xxxxx Fargo Bank, National Association, as an Additional Revolving Credit Lender By: /s/Xxxx Holm Name: Xxxx Holm Title: Managing Director | |
Exhibit 10.1
Exhibit 10.1
List of Annexes and Exhibits | |
Annex I | Euro Term A Lender Consent to Second Amendment to Third Amended and Restated Credit Agreement |
Annex II | AUD Term A Lender Consent to Second Amendment to Third Amended and Restated Credit Agreement |
Annex III | Revolving Credit Letter Consent to Second Amendment to Third Amended and Restated Credit Agreement |
Annex IV | Form of Master Assignment and Assumption Agreement for ACCO Brands Corporation Second Amendment to Third Amended and Restated Credit Agreement |
Schedule 1 | Second Amendment Closing Date Commitments |
Schedule 2 | Schedule 2.01 of the Amended Credit Agreement; Commitments and Applicable Percentages |
Schedule 3 | Post-Second Amendment Closing Date Collateral Matters |
Exhibit A | Amended Credit Agreement |
Exhibit A
MARKED VERSION REFLECTING CHANGES PURSUANT TO
FIRSTSECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
ADDED TEXT SHOWN UNDERLINED
DELETED TEXT SHOWN STRIKETHROUGH
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.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
BARCLAYS BANK PLC,
COMPASS BANK,
BMO CAPITAL MARKETS CORP.,
and
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 Agent
BARCLAYS BANK PLC,
COMPASS BANK,
and
BANK OF MONTREAL,
as Co-Documentation Agents
PNC BANKCAPITAL ONE, NATIONAL ASSOCIATION,
and
KEYBANK NATIONAL ASSOCIATION,
as Senior ManagingCo-Documentation Agents
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
________________________________________________________
$400,000,000600,000,000 MULTICURRENCY REVOLVING CREDIT FACILITY
€300,000,000252,750,000 EUR TERM LOAN A FACILITY
$80,000,00061,000,000 AUD TERM LOAN A FACILITY
$100,000,000 USD TERM LOAN A FACILITY
________________________________________________________
Table of Contents
Page
CONTENTS Page
Article 1 Definitions and Accounting Terms 43
Section 1.01 | Defined Terms 43 |
Section 1.02 | Other Interpretive Provisions 7064 |
Section 1.03 | Accounting Terms 7165 |
Section 1.04 | Rounding 7165 |
Section 1.05 | Times of Day 7165 |
Section 1.06 | Letter of Credit Amounts 7165 |
Section 1.07 | Currency Equivalents Generally; Change of Currency 7265 |
Section 1.08 | Additional Alternative Currencies 7266 |
Section 1.09 | Additional Borrowers 7366 |
Section 1.10 | Timing of Payment or Performance 7467 |
Section 1.11 | Interest Rates 67 |
Section 1.12 | Limited Condition Acquisitions 68 |
Article 2 The Commitments and Credit Extensions | 7468 |
Section 2.01 | The Loans 7468 |
Section 2.02 | Borrowings, Conversions and Continuations of Loans 7569 |
Section 2.03 | Letters of Credit 7871 |
Section 2.04 | Swing Line Loans 8780 |
Section 2.05 | Prepayments 9083 |
Section 2.06 | Termination or Reduction of Commitments 9385 |
Section 2.07 | Repayment of Loans 9486 |
Section 2.08 | Interest 9587 |
Section 2.09 | Fees 9688 |
Section 2.10 | Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 9789 |
Section 2.11 | Evidence of Debt. 9889 |
Section 2.12 | Payments Generally; Administrative Agent’s Clawback 9890 |
Section 2.13 | Sharing of Payments by Lenders 10092 |
Section 2.14 | Incremental Facilities 10192 |
Section 2.15 | Cash Collateral 10496 |
Section 2.16 | Defaulting Lenders 10597 |
Section 2.17 | Nature of Obligations 10899 |
Article 3 Taxes, Yield Protection and Illegality | 110101 |
Section 3.01 | Taxes 110101 |
Section 3.02 | Illegality 114105 |
Section 3.03 | Inability to Determine Rates 115105 |
Section 3.04 | Increased Costs; Reserves on Eurodollar Rate Loans and Canadian BA Rate Loans 116107 |
Section 3.05 | Compensation for Losses 118108 |
Section 3.06 | Mitigation Obligations; Replacement of Lenders. 119109 |
Section 3.07 | Survival 119110 |
Article 4 Conditions Precedent | 119110 |
Section 4.01 | Conditions Precedent to the SpinCo Closing Date 119110 |
Section 4.02 | Conditions Precedent to the Original Closing Date 119110 |
Section 4.03 | Conditions to All Credit Extensions after the Original Closing Date 120110 |
Section 4.04 | Conditions Precedent to Effectiveness of Second Amendment 120110 |
Section 4.05 | Conditions Precedent to Effectiveness of Third Amendment to Amended and Restated Credit Agreement 120111 |
Section 4.06 | Conditions Precedent to Effectiveness of Third Amendment to Second Amended and Restated Credit Agreement 120111 |
Article 5 Representations and Warranties | 121111 |
Section 5.01 | Existence, Qualification and Power 121111 |
Section 5.02 | Authorization; No Contravention 121111 |
Section 5.03 | Governmental Authorization; Other Consents 121111 |
Section 5.04 | Binding Effect 121112 |
Section 5.05 | Financial Statements; No Material Adverse Effect 122112 |
Section 5.06 | Litigation 122112 |
Section 5.07 | No Default 122112 |
Section 5.08 | Ownership of Property; Liens 123112 |
Section 5.09 | Environmental 123113 |
Section 5.10 | Insurance 124114 |
Section 5.11 | Taxes 125114 |
Section 5.12 | ERISA Compliance 125114 |
Section 5.13 | Subsidiaries; Equity Interests 126115 |
Section 5.14 | Margin Regulations; Investment Company Act 126116 |
Section 5.15 | Disclosure 126116 |
Section 5.16 | Compliance with Laws 127116 |
Section 5.17 | Taxpayer Identification Number 127116 |
Section 5.18 | Intellectual Property; Licenses, Etc 127116 |
Section 5.19 | Solvency 127117 |
Section 5.20 | Collateral Documents 127117 |
Section 5.21 | Senior Debt 128117 |
Section 5.22 | Sanctioned Persons 128117 |
Section 5.23 | Foreign Corrupt Practices Act 128117 |
Section 5.24 | Compliance with EU Bail-in Regulation 128117 |
Article 6 Affirmative Covenants | 128117 |
Section 6.01 | Financial Statements 128118 |
Section 6.02 | Certificates; Other Information 129118 |
Section 6.03 | Notices 131120 |
Section 6.04 | Preservation of Existence, Etc 132121 |
Section 6.05 | Maintenance of Properties 133121 |
Section 6.06 | Maintenance of Insurance 133121 |
Section 6.07 | Compliance with Laws 133122 |
Section 6.08 | Books and Records 133122 |
Section 6.09 | Inspection Rights 134122 |
Section 6.10 | Use of Proceeds 134122 |
Section 6.11 | Covenant to Guarantee Obligations and Give Security 134122 |
Section 6.12 | Compliance with Environmental Laws 135123 |
Section 6.13 | Preparation of Environmental Reports 135123 |
Section 6.14 | Lenders’ Meetings 135[Reserved] 124 |
Section 6.15 | Further Assurances 135124 |
Section 6.16 | Ratings 136124 |
Section 6.17 | PPSA Policies and steps 136124 |
Section 6.18 | XXXX Events 124 |
Article 7 Negative Covenants | 136124 |
Section 7.01 | Liens 136124 |
Section 7.02 | Investments 139127 |
Section 7.03 | Indebtedness 141129 |
Section 7.04 | Fundamental Changes 144132 |
Section 7.05 | Dispositions 145132 |
Section 7.06 | Restricted Payments 147134 |
Section 7.07 | Change in Nature of Business 149135 |
Section 7.08 | Transactions with Affiliates 149135 |
Section 7.09 | Restrictive Agreements 149136 |
Section 7.10 | Use of Proceeds 150136 |
Section 7.11 | Financial Covenants 150136 |
Section 7.12 | Amendments of Organization Documents 150137 |
Section 7.13 | Accounting Changes 150137 |
Section 7.14 | Prepayments of Indebtedness 150137 |
Section 7.15 | Sale-Leaseback Transactions 151137 |
Section 7.16 | Amendments of Indebtedness 151137 |
Section 7.17 | Limitation on Activities of Australian Borrower 151137 |
Article 8 Events of Default and Remedies | 152138 |
Section 8.01 | Events of Default 152138 |
Section 8.02 | Remedies Upon Event of Default 154140 |
Section 8.03 | Application of Funds 155141 |
Article 9 Administrative Agent | 155141 |
Section 9.01 | Appointment and Authority 155141 |
Section 9.02 | Rights as a Lender 156141 |
Section 9.03 | Exculpatory Provisions 156142 |
Section 9.04 | Reliance 157142 |
Section 9.05 | Delegation of Duties 157143 |
Section 9.06 | Resignation of Administrative Agent 158143 |
Section 9.07 | Non-Reliance on Administrative Agent and Other Lenders 159144 |
Section 9.08 | No Other Duties, Etc 159144 |
Section 9.09 | Administrative Agent May File Proofs of Claim 159144 |
Section 9.10 | Collateral and Guaranty Matters 160145 |
Section 9.11 | Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements 161146 |
Section 9.12 | Certain ERISA Matters 146 |
Article 10 Debt Allocation Mechanism | 162147 |
Section 10.01 | Implementation of DAM 162147 |
Section 10.02 | Letters of Credit 163148 |
Section 10.03 | Net Payments Upon Implementation of DAM Exchange 164149 |
Article 11 Miscellaneous | 165150 |
Section 11.01 | Amendments, Etc 165150 |
Section 11.02 | Notices; Effectiveness; Electronic Communication 168153 |
Section 11.03 | No Waiver; Cumulative Remedies; Enforcement 170155 |
Section 11.04 | Expenses; Indemnity; Damage Waiver 171155 |
Section 11.05 | Payments Set Aside 173157 |
Section 11.06 | Successors and Assigns 174158 |
Section 11.07 | Treatment of Certain Information; Confidentiality 179162 |
Section 11.08 | Right of Setoff 180163 |
Section 11.09 | Interest Rate Limitation 180164 |
Section 11.10 | Integration 181164 |
Section 11.11 | Survival of Representations and Warranties 181164 |
Section 11.12 | Severability 182165 |
Section 11.13 | Replacement of Lenders 182165 |
Section 11.14 | Governing Law; Jurisdiction; Etc 183165 |
Section 11.15 | Waiver of Jury Trial 184166 |
Section 11.16 | No Advisory or Fiduciary Responsibility 184167 |
Section 11.17 | Electronic Execution of Assignments and Certain Other Documents 185167 |
Section 11.18 | USA XXXXXXX Xxx 000000 |
Section 11.19 | Judgment Currency 185168 |
Section 11.20 | Holdings as Agent for Borrowers 186168 |
Section 11.21 | Waiver of Sovereign Immunity 186169 |
Section 11.22 | Independence of Covenants 187169 |
Section 11.23 | Lenders as Perfection Agents 187169 |
Section 11.24 | Effect of Amendment and Restatement of the Second Amended and Restated Credit Agreement 187169 |
Section 11.25 | Ratification of Loan Documents 187170 |
Section 11.26 | Swedish law Security Confirmation 188170 |
Section 11.27 | Acknowledgement and Consent to Bail-In of EEA Financial Institutions 188170 |
Section 11.28 | Consent regarding Dissolution of ACCO Brands Colombia 188171 |
Section 11.29 | Acknowledgement Regarding Any Supported QFCs 171 |
SCHEDULES
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; and
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 reborrowingre-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 this Agreement andthe 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 reborrowingre-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 1ARTICLE 1
Definitions and Accounting Terms
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“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.
“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 and the Senior Managing Agents.
“Aggregate Commitments” means the Commitments of all the Lenders.
“Agreed Security Principles” means those principles set forth on Schedule 1.01B.
“Agreement” meanshas 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 Eurodollar 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, 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 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 and, (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 FacilityFacilities and the Revolving Credit Facility, (i) from the Third RestatementSecond Amendment Closing Date to the date following the Third RestatementSecond 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 Third RestatementSecond Amendment Closing Date, which Compliance Certificate shall give pro forma effect to the consummation of the Acquisition and the incurrence of Indebtedness under the Facilities, 2.001.75% 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), 1.000.75% per annum for Base Rate Loans, 0.40% per annum for Letter of Credit Fees (for commercial Letters of Credit) and 1.000.875% per annum for Letter of Credit Fees (for performance Letters of Credit) and (ii) 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):
Pricing Level | Consolidated Leverage Ratio | Eurodollar Rate / Australian BBSR Rate /Canadian BA Rate / Daily LIBOR / Australian Base Rate / Letter of Credit Fees (financial) | Base Rate | Letter of Credit Fees (commercial) | Letter of Credit Fees (performance) |
1 | > 4.003.50 to 1.00 | 2.502.25% | 1.501.25% | 0.50% | 1.2501.125% |
2 | ≤ 4.003.50 to 1.00 and > 3.503.25 to 1.00 | 2.252.00% | 1.251.00% | 0.45% | 1.1251.000% |
3 | ≤ 3.503.25 to 1.00 and > 3.00 to 1.00 | 2.001.75% | 1.000.75% | 0.40% | 1.0000.875% |
4 | ≤ 3.00 to 1.00 and > 2.00 to 1.00 | 1.50% | 0.50% | 0.30% | 0.750% |
5 | ≤ 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, or 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxx Fargo Bank, National AssociationBofA Securities, Inc., Barclays Bank PLC, Compass Bank, BMO Capital Markets Corp. and, 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 fromý time to time by the Reserve Bank of Australia as the “cash rate” at or about 10:30 a.m. (Sydneyý time) on such day. If such rate is not available at such time for any reason, then the “Australian Xxxxx Rate” shall be the rate per annum as otherwise agreed to by the applicable Australian Borrower and theý Swing Line Lender; provided, that (x) if the Australian Borrower and the Swing Lineý 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 Swap 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 10:3011:00 a.m. (Melbourne, AustraliaSydney 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 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 Third RestatementSecond Amendment Closing Date, the aggregate amount of the Australian Dollar Term A Commitments of the Australian Dollar Term A Lenders is AUD $80,000,00061,000,000.
“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 Third RestatementSecond 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 $80,000,00061,000,000.
“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 EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“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 Rate that would be payable on such day for a Eurodollar Rate 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 Rate Loans, any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in U.S. Dollar deposits in the London interbank market, 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 Toronto, Ontario.
“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 to non-Loan Parties, 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 or, 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).
“Co-Documentation Agents” mean Barclays Bank PLC, Compass Bank and Bank of MontrealCapital 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 ThirdSecond 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 or, an Incremental Term Loan A Commitment or an Incremental Term Loan B, as the context may require.
“Commitment Fee Rate” means, from the Third Restatement Date to the date following the Third Restatement Date on which a Compliance Certificate is delivered pursuant to Section 6.02(a) in respect of the first full fiscal quarter after the Third Restatement Date, 0.350%, 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 | > 4.003.50 to 1.00 | 0.4000.350% |
2 | ≤ 4.003.50 to 1.00 and > 3.503.25 to 1.00 | 0.3750.325% |
3 | ≤ 3.503.25 to 1.00 and > 3.00 to 1.00 | 0.3500.300% |
4 | ≤ 3.00 to 1.00 and > 2.00 to 1.00 | 0.3000.250% |
5 | ≤ 2.00 to 1.00 | 0.2500.200% |
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) in respect of the first full fiscal quarter following the Third Restatement Date; 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.
“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), 10.0% 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 Senior Secured Leverage Ratio and the Consolidated Fixed ChargeInterest 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 Excess Cash Flow” means, for any period, an amount (if positive) equal to: (a) the sum, without duplication, of the amounts for such period of (i) Consolidated Net Income, plus, (ii) to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for non-cash charges reducing Consolidated Net Income, including for depreciation and amortization (excluding any such non-cash charge to the extent that it represents an accrual or reserve for a potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), plus (iii) the Consolidated Working Capital Adjustment, minus (b) the sum, without duplication, of (i) the amounts for such period paid in cash by Holdings and its Subsidiaries from operating cash flow (and not already reducing Consolidated Net Income) of (1) scheduled repayments (but not optional or mandatory prepayments) of Indebtedness for borrowed money of Holdings and its Subsidiaries (excluding scheduled repayments of Revolving Credit Loans or Swing Line Loans (or other loans which by their terms may be re-borrowed if prepaid) except to the extent the Revolving Credit Commitments (or commitments in respect of such other revolving loans) are permanently reduced in connection with such repayments) and scheduled repayments of obligations of Holdings and its Subsidiaries under Capital Leases (excluding any interest expense portion thereof), (2) Capital Expenditures, (3) payments of the type described in clause (g) of the definition of Consolidated EBITDA and (4) consideration in respect of Permitted Acquisitions plus (ii) other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for a potential cash gain in any prior period).
“Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) (i) Consolidated EBITDA, less (ii) the portion of taxes based on income actually paid in cash and provisions for cash income taxes (other than any taxes paid or payable with respect to the Specified Brazilian Tax Payment and any financial statement income tax benefit realized in cash as a result of any Permitted Pension Withdrawal Liability), less (iii) the aggregate amount of all Capital Expenditures, less (iv) the aggregate amount of all Restricted Payments made pursuant to Section 7.06(d)(2) to (b) the sum of (x) Consolidated Cash Interest Expenses and (y) the aggregate principal amount of all regularly scheduled principal payments as such scheduled payments have been reduced by the application of any voluntary or mandatory prepayments thereto or redemptions or similar acquisitions for value of outstanding debt for borrowed money, but excluding any such payments to the extent refinanced through the incurrence of additional Indebtedness otherwise expressly permitted under Section 7.03, in each case, of or by Holdings and its Subsidiaries for the most recently completed Measurement 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 $75,000,000100,000,000 plus (ii) the Unrestricted Cash of a Subsidiary organized under the laws of Brazil in an amount not to exceed $75,000,000) 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 Senior Secured Debt” means, as of any date of determination, the aggregate principal amount of Consolidated Funded Indebtedness outstanding on such date that is secured by a Lien on any asset or property of any Borrower or any Subsidiary (including, for the avoidance of doubt, purchase money Indebtedness and Attributable Indebtedness in respect of Capital Leases).
“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.
“Consolidated Working Capital” means, as at any date of determination, Consolidated Current Assets of Holdings and its Subsidiaries less Consolidated Current Liabilities of Holdings and its Subsidiaries.
“Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period. In calculating the Consolidated Working Capital Adjustment there shall be excluded the effect of
reclassification during such period of current assets to long term assets and current liabilities to long term liabilities and the effect of any Permitted Acquisition during such period; provided, that there shall be included with respect to any Permitted Acquisition during such period an amount (which may be a negative number) by which the Consolidated Working Capital of the Person acquired in such Permitted Acquisition as at the time of such acquisition exceeds (or is less than) the Consolidated Working Capital of the Person acquired at the end of such period (in each case, substituting the Person acquired Holdings and its Subsidiaries in the calculation of such acquired Consolidated Working Capital).
“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.
“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 Eurodollar 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.
“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) if the Daily LIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Daily LIBOR Loan” means a Loan made hereunder with respect to which the interest rate is calculated by reference to Daily LIBOR. Daily LIBOR 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, 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 Lender’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 Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’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, 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.
“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.
“ECF Percentage” means, for any given Fiscal Year, 50%; provided that if, as of the last day of such Fiscal Year, the Senior Secured Leverage Ratio is (x) less than or equal to 2.00:1.00 but greater than 1.50:1.00, the ECF Percentage shall be 25% or (y) less than or equal to 1.50:1.00, the ECF Percentage shall be 0%.
“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.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
“Environmental Claim” means any written notice, claim, lien, demand or demand letter, action, litigation, proceeding, directive, request for information, complaint, citation, charge, summons, investigation, notice of non-compliance or violation, cause of action, lien, citation, consent order, consent decree, investigation, control order, stop order, injunction or other proceeding by any Governmental Authority or any other Person, arising out of, based on or pursuant to any Environmental Law or related in any way to any actual, alleged or threatened Environmental Liability.
“Environmental Laws” means any and all federal, state, provincial, municipal, local, and foreign statutes, laws, regulations, ordinances, rules, codes, judgments, orders, decrees, agreements, guidelines, standards or governmental restrictions now or hereafter in effect (including agreements with any Governmental Authority) regulating or relating to (a) human health and safety, (b) the protection of the environment or natural resources and (c) pollution or the Release or threatened Release of any materials into the environment, including those related to hazardous materials, substances or wastes, air and water emissions and discharges, and the investigation or remediation of Releases of hazardous materials. Environmental Laws include, but are not limited to, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Emergency Planning and Community Right-to-Know Act and the Occupational Safety and Health Act and their respective state, local or foreign analogs and the regulations or orders enacted or promulgated pursuant to such Laws.
“Environmental Liability” means, without limitation, any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation, assessment, response, or remediation, costs of enforcement, fines, penalties, contribution, cost recovery or indemnities), obligation, responsibility or other cost of Holdings, any other Loan Party or any of their respective Subsidiaries (including any reasonably incurred legal, expert or consulting fees) directly or indirectly resulting from or based upon
(a) any violation of, or liability under, any Environmental Law, (b) the generation, use, handling, transportation, storage, manufacture, processing, labeling, distribution, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the environment, (e) natural resource damage or (f) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, orders, remedial orders, identification number, license or other authorization or variance issued pursuant to or required under any Environmental Law.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Holdings within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a material Reportable Event with respect to a Pension Plan; (b) the material failure by Holdings or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of each Pension Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (d) the withdrawal of Holdings or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (e) the receipt by Holdings or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to the intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan; (f) the adoption of any amendment to a Pension Plan that would require the provision of security pursuant to Section 436(f) of the Code; (g) a complete or partial withdrawal by Holdings or any ERISA Affiliate from a Multiemployer Plan or notification concerning the imposition of withdrawal liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (i) the institution by the PBGC of proceedings to terminate a Pension Plan; (j) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (k) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (l) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or any ERISA Affiliate; and which events under clauses (a) through (l) above, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
“Esselte European Holdings Contribution” means the contribution by Esselte Holdings, LLC of its interest in Esselte European Holdings, LLC to ACCO Electra Dutch C.V. in exchange for capital and a USD note in an amount equivalent to €30,000,000.
“Estoppel” means an agreement in substantially the form of Exhibit J or any other form approved by the Administrative Agent.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro” and “€” means the single currency of any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Union relating to economic and monetary union.
“Euro Term A Borrowers” means, collectively, Holdings and each other U.S. Borrower that becomes a borrower under the Euro Term A Facility pursuant to Section 1.09.
“Euro Term A Borrowing” means a borrowing consisting of one or more simultaneous Euro Term A Loans of the same Type under the Euro Term A Facility having the same Interest Period made pursuant to Section 2.01(b).
“Euro Term A Commitment” means, as to each Euro Term A Lender, its obligation to make Euro Term A Loans to the Euro Term A Borrowers pursuant to Section 2.01(b) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Euro Term A Lender’s name on Schedule 2.01 under the caption “Euro Term A Commitment” or opposite such caption in the Assignment and Assumption or Master Assignment pursuant to which such Euro 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 Third RestatementSecond Amendment Closing Date, the aggregate amount of the Euro Term A Commitments of the Euro Term A Lenders is €300,000,000252,750,000.
“Euro Term A Facility” means, at any time, (a) on or prior to the Third Restatement Date, the aggregate amount of the Euro Term A Commitments at such time together with the aggregate principal amount of the Euro Term A Loans of all Euro Term A Lenders outstanding at such time and (b) thereafter, the aggregate principal amount of the Euro Term A Loans of all Euro Term A Lenders outstanding at such time.
“Euro Term A Installment Payment Date” has the meaning specified in Section 2.07(a).
“Euro Term A Lender” means (a) at any time on or prior to the Third Restatement Date, any Lender that has a Euro Term A Commitment at such time together with any Lender that holds Euro Term A Loans at such time and (b) at any time after the Third Restatement Date, any Lender that holds Euro Term A Loans at such time.
“Euro Term A Loan” means any Loan made by any Euro Term A Lender under the Term Facility pursuant to Section 2.01(b). On the Third RestatementSecond Amendment Closing Date, after giving effect to the making of the Euro Term A Loans to be made on such date, the aggregate outstanding principal amount of Euro Term A Loans shall be €300,000,000252,750,000.
“Euro Term A Note” means a promissory note made by a Euro Term A Borrower, in favor of a Euro Term A Lender evidencing Euro Term A Loans made by such Euro Term A Lender, in substantially the form of Exhibit C-2.
“Eurodollar Rate” means:
(i) for any Interest Period, with respect to any Credit Extension:
(i) denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“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) (in such case, the “LIBOR Rate”) at or about 11:00 a.m. (London time) on the Interest Rate Determination Date, for deposits in the relevant currency, with a term equivalent to such Interest Period;
(ii) denominated in a Non-LIBOR Quoted 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; and
(ii) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m. (London time) determined two (2) Business Days prior to such date for Dollar deposits being delivered in the London interbank market for deposits in Dollars with a term of one (1) month commencing that day;
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 Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Eurodollar Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on the definition of “Eurodollar Rate”.
“Event of Default” has the meaning specified in Section 8.01.
“Evidence of Flood Insurance” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Excess Cash Flow Amount” has the meaning specified in Section 2.05(b)(ii).
“Excluded Accounts” shall mean (x) disbursement and payroll accounts and (y) cash accounts established (or otherwise maintained) by any Loan Party with any Person that is a Lender, the Administrative Agent or an Arranger or the Affiliate of a Lender, the Administrative Agent or an Arranger in its capacity as a depositary bank for such cash account; provided in no event shall Excluded Accounts include any account pursuant to which an account control agreement has been executed and delivered to the Administrative Agent pursuant to any Collateral Document.
“Excluded Subsidiary” means (a) with respect to guarantees of, and grants of security interests to secure guarantees of, Foreign Borrower Obligations, any Foreign Subsidiary of Holdings that is not described in the definition of Foreign Subsidiary Guarantor, (b) with respect to guarantees of, or grants of security interests to secure guarantees of, U.S. Borrower Obligations, any Domestic Subsidiary of Holdings that is not described in the definition of U.S. Subsidiary Guarantor or (c) any Receivables Subsidiary. Notwithstanding anything in the foregoing to the contrary, no Borrower will be an Excluded Subsidiary.
“Excluded Swap Obligation” means with respect to any Guarantor, (x) as it relates to all or a portion of the Guarantee of such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor becomes effective with respect to such Swap Obligation or (y) as it relates to all or a portion of the grant by such Guarantor of a security interest, any Swap Obligation if, and to the extent that, such Swap Obligation (or such security interest in respect thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the security interest of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or the L/C Issuer, (a) Taxes imposed on or measured by overall net income (however denominated), franchise Taxes (in lieu of net income Taxes), and branch profits Taxes in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or (ii) that are Other Connection Taxes, (b) any backup withholding Tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), (c) in the case of a Foreign Lender with respect to a Loan made to a U.S. Borrower (other than an assignee pursuant to a request by Holdings under Section 11.13), any U.S. federal withholding Tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii), except that in the
case of a Foreign Lender that designates a new Lending Office or becomes a Party to this Agreement pursuant to an assignment, such withholding Taxes shall not be Excluded Taxes to the extent that such Taxes were not Excluded Taxes with respect to such Foreign Lender or its assignor, as the case may be, immediately before such designation of a new Lending Office or such assignment; and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Exempted Entity” means (A) any CFC Subsidiary, (B) any Subsidiary other than a CFC Subsidiary, but only if (i) it is a direct or indirect owner of more than 65% of the voting equity interests of one or more CFC Subsidiaries, (ii) it and all other entities (if any) through which it owns (directly or indirectly) more than 65% of the voting equity interests of such CFC Subsidiaries are DREs or partnerships for U.S. federal income tax purposes, (iii) all or substantially all of its assets and each such DRE’s or partnership’s assets are interests in such CFC Subsidiaries (and de minimis cash and Cash Equivalents incidental thereto and capital stock, other equity interests and indebtedness of such CFC Subsidiaries) and (iv) it and each such DRE or partnership does not directly hold an equity interest in a Domestic Subsidiary other than a DRE or partnership described in this clause (B), (C) any domestic corporate (for U.S. federal income tax purposes) Subsidiary if all or substantially all of its assets consist of (i) more than 65% of the voting equity interests of one or more CFC Subsidiaries (and de minimis cash and Cash Equivalents incidental thereto and capital stock, other equity interests and indebtedness of such CFC Subsidiaries held directly or indirectly solely through one or more DREs) and/or (ii) interests in one or more DREs in each case whose assets consist solely of more than 65% of the voting equity interests of such CFC Subsidiaries (and de minimis cash and Cash Equivalents incidental thereto and capital stock, other equity interests and indebtedness of such CFC Subsidiaries and other immaterial assets) that are held directly or indirectly solely through one or more DREs and (D) a Subsidiary of an Exempted Entity described in clause (A), (B) or (C) to the extent not treating such Subsidiary as an Exempted Entity creates a substantial risk of a material adverse tax consequence to Holdings; provided that, in the case of each of clauses (A), (B) and (C), Holdings provides documentation and support of such conclusion in form and substance reasonably satisfactory to the Administrative Agent.
“Existing Letters of Credit” means the collective reference to the existing letters of credit identified on Schedule 1.01A as of the Second Amendment Closing Date, including extensions and renewals thereof.
“Extraordinary Receipt” means any cash received by or paid to any Person as a result of proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings) and condemnation awards (and payments in lieu thereof); provided, however, that an Extraordinary Receipt shall not include cash receipts from proceeds of insurance or condemnation awards (or payments in lieu thereof) to the extent that such proceeds or awards are received by any Person in respect of any third party claim against, or liability of, such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim or liability and the costs and expenses of such Person with respect thereto.
“Facility” means the Term A Facility, a Term B Facility, the Revolving Credit Facility, or an Incremental Facility, as the context may require.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and, any current or future regulations or official interpretations thereof and, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code..
“Federal Funds Effective Rate” means, for any day, the rate per annum (expressed as a decimal rounded upwards, if necessary, to the next higher 1/100 of 1.00%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.
“First Amendment” means the First Amendment to Amended and Restated Credit Agreement, dated the First Amendment Effective Date, by and among the Loan Parties party thereto, the Required Lenders, the Revolving Credit Lenders and the Administrative Agent.
“First Amendment Effective Date” means July 26, 2018.
“First Two Repayment YearYears” has the meaning specified in Section 2.07(a).
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
“Fitch” means Fitch Ratings Ltd. and any successor thereof.
“Flood Determination Form” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Flood Documents” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Flood Laws” means the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Board of Governors of the Federal Reserve System).
“Foreign Borrower” has the meaning specified in the preamble to this Agreement.
“Foreign Borrower Obligations” means the Obligations of any Borrower other than any U.S. Borrower.
“Foreign Collateral Documents” means (a) each Other Foreign Security Agreement, the Japanese Pledge Agreement (all Obligations), the Mexican Pledge Agreement (all Obligations), the Canadian Pledge Agreement, the Swedish Pledge Agreement, the U.K.each Dutch Pledge Agreement, each Other Foreign Pledge Agreement, the Other Foreign Mortgages, each of the other mortgages, collateral assignments, security agreements, pledge agreements, hypothecs, bonds, control agreements or other similar agreements or supplements to the foregoing (i) entered into by any Loan Party, (ii) delivered to the Administrative Agent pursuant to the Collateral and Guaranty Requirements or pursuant to Section 6.11 for the benefit of any or all of the Secured Parties and (iii) governed by the laws (other than the laws of the United States or any state or other political subdivision thereof) of any nation, state, province or other political subdivision thereof, and (b) each of the other agreements, instruments or documents entered into by any Loan Party, governed by the laws (other than the laws of the United States or any state or other political subdivision thereof) of any nation, state, province or other political subdivision thereof, that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of any or all of the Secured Parties.
“Foreign Guarantors” means and includes each Foreign Borrower and each Foreign Subsidiary Guarantor.
“Foreign Lender” means (i) with respect to any Loan made to a U.S. Borrower, a Lender that is not a U.S. Person and (ii) with respect to any Loan made to a Foreign Borrower, any Lender that is not organized under the laws in which such Foreign Borrower is resident for tax purposes and that is not otherwise considered or deemed in respect of any amount payable to it hereunder or under any Loan Document to be resident for income tax or withholding tax purposes in the jurisdiction in which such Borrower is resident for tax purposes by application of the laws of that jurisdiction.
“Foreign Loan Party” means each Foreign Borrower and each other Foreign Guarantor.
“Foreign Obligations” means the Foreign Borrower Obligations, all Obligations of any Foreign Loan Party or any Foreign Subsidiary under any Secured Cash Management Agreement or any Secured Hedge Agreement, all Obligations of any Foreign Loan Party under any Specified Supply Chain Agreement and Obligations of any Foreign Loan Party under any guarantee or security agreement related to any of the foregoing.
“Foreign Obligations Guaranty” means an agreement in substantially the form of Exhibit H with such changes as are reasonably satisfactory to the Administrative Agent.
“Foreign Obligations Secured Parties” means, collectively, (i) the Administrative Agent, (ii) each Lender making a Loan or other extension of credit hereunder to, or having commitments under this Agreement to, any Foreign Borrower, (iii) each L/C Issuer issuing a Letter of Credit or amending or extending any issued Letter of Credit for the account of any Foreign Borrower, (iv) with respect to any Secured Cash Management Agreement with a Foreign Loan Party or any other Foreign Subsidiary, the Cash Management Banks party thereto, (v) with respect to any Secured Hedge Agreement with a Foreign Loan Party or any other Foreign Subsidiary, the Hedge Banks party thereto, (vi) with respect to any Specified Supply Chain Agreement in respect of any Permitted Supply Chain Financing with a Foreign Loan Party, the Supply Chain Finance Banks party thereto and (vii) each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05.
“Foreign Pension Plan” means any plan, fund (including any superannuation fund) or other similar program established or maintained outside the United States by Holdings, or any one or more of its Subsidiaries (other than Immaterial Subsidiaries) primarily for the benefit of employees of Holdings, or such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Foreign Pension Plan Event” means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the incurrence of any liability by Holdings or any of its Subsidiaries under applicable law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by Holdings or any of its Subsidiaries, or the imposition on Holdings or any of its Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, and which events under clauses (a) through (e) above, either individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Foreign Subsidiary Guarantor” means subject to the Agreed Security Principles, each Foreign Subsidiary of Holdings that is organized under the laws of the same jurisdiction as any Borrower (other than any U.S. 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) whether existing on the Restatement Date or established, created or acquired after the Restatement Date, in each case unless and until such time as the respective Foreign Subsidiary is released from all of its obligations under the Foreign Obligations Guaranty and the Collateral Documents (if any) to which it is a party in accordance with the terms and provisions hereof.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board as in effect as of the date of this Agreement, consistently applied.
“GBC International” means GBC International, Inc., a Nevada corporation and a Domestic Subsidiary of Holdings.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including the National Association of Insurance Commissioners and any supra-national bodies such as the European Union or the European Central Bank).
“Group” means, with respect to any Loan Party, its character as determined by its jurisdiction of organization, e.g., whether a U.S. Loan Party or a Loan Party organized in another jurisdiction.
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Restatement Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” when used as a verb has a corresponding meaning.
“Guarantors” means, collectively, each U.S. Guarantor and each Foreign Guarantor.
“Guaranty Agreement” means and includes each of the U.S. Obligations Guaranty and the Foreign Obligations Guaranty.
“Hazardous Materials” means all materials, substances or wastes listed, classified, characterized or otherwise regulated under or defined in any Environmental Laws as “hazardous”, “toxic”, “explosive” or “radioactive”, or as a “pollutant” or contaminant (or terms of similar meaning or effect), including petroleum, its derivatives or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, and infectious or medical wastes.
“Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted hereunder, is a Lender, the Administrative Agent or an Arranger or the Affiliate of a Lender, the Administrative Agent or an Arranger in its capacity as a party to such Swap Contract.
“Holdings” has the meaning specified in the preamble to this Agreement.
“Hong Kong Dollars” means the lawful currency of Hong Kong.
“Honor Date” has the meaning specified in Section 2.03(c).
“Immaterial Subsidiary” means, at any date of determination, any Subsidiary or group of Subsidiaries of Holdings (other than any Borrower or any such group containing any Borrower) that (i) contributed, together with its Subsidiaries, less than 2.0% of Consolidated EBITDA for the Measurement Period most recently ended for which Holdings has delivered financial statements to the Administrative Agent prior to the date of determination, (ii) had consolidated total revenues of less than $40,000,000 on the date of the most recent balance sheet delivered by Holdings to the Administrative Agent and (iii) does not own any Equity Interests in any Loan Party.
“Impacted Loan” has the meaning specified in Section 3.03.
“Increased Amount Date” has the meaning specified in Section 2.14(a).
“Incremental Borrowing” means a borrowing of Incremental Revolving Loans or, Incremental Term A Loans or Incremental Term B Loans, as the context may require.
“Incremental Capacity” has the meaning specified in Section 2.14(a).
“Incremental Facility” means, at any time, as the context may require, (i) the aggregate amount of the Incremental Revolving Loan Lenders’ Incremental Revolving Commitments, and/or (ii) the aggregate amount of the Incremental Term Loan A Lenders’ Incremental Term Loan A Commitments and, in each case, but without duplication, the Credit Extensions made thereunder and/or (iii) the aggregate amount of the Incremental Term Loan B Lenders’ Incremental Term Loan B Commitments and, in each case, but without duplication, the Credit Extensions made thereunder.
“Incremental Joinder Agreement” means an agreement in substantially the form of Exhibit F or any other form approved by the Administrative Agent.
“Incremental Revolving Commitments” has the meaning specified in Section 2.14.
“Incremental Revolving Loan Lender” has the meaning specified in Section 2.14.
“Incremental Revolving Loans” has the meaning specified in Section 2.14.
“Incremental Term A Loans” has the meaning specified in Section 2.14.
“Incremental Term B Loans” has the meaning specified in Section 2.14(d).
“Incremental Term Loan A Commitments” has the meaning specified in Section 2.14.
“Incremental Term Loan A Lender” has the meaning specified in Section 2.14.
“Incremental Term Loan A Maturity Date” means the date on which Incremental Term A Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Incremental Joinder Agreement, including by acceleration or otherwise.
“Incremental Term Loan B Commitments” has the meaning specified in Section 2.14(a).
“Incremental Term Loan B Lender” has the meaning specified in Section 2.14(d).
“Incremental Term Loan B Maturity Date” means the date on which Incremental Term B Loans of a Series shall become due and payable in full hereunder, as specified in the applicable Incremental Joinder Agreement, including by acceleration or otherwise.
“Incremental Term Loan Facility” means, at any time, the aggregate amount of the Incremental Term Loan A Lenders’ Incremental Term Loan A Commitments and/or the Incremental Term Loan B Lenders’ Incremental Term Loan B Commitments at such time and, in each case, but without duplication, the Credit Extensions made thereunder.
“Incremental Term Loans” has the meaning specified in Section 2.14(d).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(i) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(ii) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(iii) net obligations of such Person under any Swap Contract;
(iv) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and not past due for more than sixty (60) days after the date on which such trade account is payable (unless being contested in good faith and by appropriate proceedings) and (ii) earn-outs, hold-backs and other deferred payment of consideration in Permitted Acquisitions to the extent not required to be reflected as liabilities on the balance sheet of Holdings and its Subsidiaries in accordance with GAAP);
(v) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(vi) Capital Leases and Synthetic Lease Obligations;
(vii) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
(viii) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding anything to the contrary contained herein, Permitted Pension Withdrawal Liability shall not constitute Indebtedness.
“Indemnified Liabilities” has the meaning specified in Section 11.04(b).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 11.04(b).
“Information” has the meaning specified in Section 11.07.
“Initial AUD Loan Amount” has the meaning specified in Section 2.07(a).
“Initial EUR Loan Amount” has the meaning specified in Section 2.07(b).
“Initial USD Loan Amount” has the meaning specified in Section 2.07(c).
“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, service marks, trade dress, logos, domain names, patents, trade secrets, know-how, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.
“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, Australian BBSR Rate Loan or Canadian BA Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurodollar Rate Loan, Australian BBSR Rate Loan or a Canadian BA Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each December, March, June and September and the Maturity Date of the Facility under which such Loan was made.
“Interest Period” means, as to each Eurodollar Rate Loan, Australian BBSR Rate Loan or Canadian BA Rate Loan, the period commencing on the date such Eurodollar Rate Loan or Canadian BA Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan, Australian BBSR Rate Loan or Canadian BA Rate Loan and ending on the date one, two, three or six months (or, if available to all Lenders, 12 months) thereafter, as selected by the applicable Borrower in its Committed Loan Notice or Conversion/Continuation Notice, as applicable; provided that:
(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period;
(iii) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made; and
(iv) the Interest Period for all Eurodollar Rate Borrowings made on the Third Restatement Date shall commence on the Third Restatement Date and end on March 31, 2017.
“Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“IP Rights” has the meaning specified in Section 5.18.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application and any other document, agreement or instrument entered into by the L/C Issuer and a Borrower (or any Subsidiary) or in favor of the L/C Issuer relating to such Letter of Credit.
“Japanese Pledge Agreement (All Obligations)” means the Amended and Restated Japanese Pledge Agreement (All Obligations) (as defined in the Second Amendment).
“Judgment Currency” has the meaning specified in Section 11.19.
“Junior Indebtedness” has the meaning specified in Section 7.14.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Credit Percentage.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means with respect to the Existing Letters of Credit, Bank of America, and with respect to Letters of Credit issued hereunder on or after the Restatement Date, (i) Bank of America, (ii) any other Revolving Credit Lender that may become the L/C Issuer pursuant to Section 2.03(k), (iii) any successor issuer of Letters of Credit hereunder or (iv) collectively, all of the foregoing, in each case, in their respective capacities as issuers of letters of credit. Any reference herein to the L/C Issuer shall, in respect of any given Letter of Credit, refer to the issuer thereof.
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Reserve Account” has the meaning specified in Section 10.02(a).
“LCA Election” shall mean Holdings’ election to treat a specified investment as a Limited Condition Acquisition.
“LCA Test Date” shall have the meaning set forth in Section 1.12.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender” has the meaning specified in the preamble to this Agreement and, as the context may require, includes the Swing Line Lender.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify Holdings and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit (including a performance letter of credit or a financial letter of credit).
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is five (5) Business Days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section 2.03(h).
“Letter of Credit Sublimit” means, at any time, an amount equal to the lesser of the Revolving Credit Commitments at such time and the U.S. Dollar Equivalent of $75,000,000.
“LIBOR” has the meaning specified in the definition of “Eurodollar Rate”.
“LIBOR Quoted Currency” means each of the following currencies: U.S. Dollars; Euro; Pounds Sterling; Yen; and Swiss Franc; in each case as long as there is a published LIBOR rate with respect thereto.
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“LIBOR Successor Rate” has the meaning specified in Section 1.11.3.03(b).
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrowers).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” shall mean any Permitted Acquisition or other Investment permitted hereunder by Holdings or one or more of its Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.
“Loan” means an extension of credit by a Lender to a Borrower under Article 2 in the form of a Term A Loan, Term B Loan, Revolving Credit Loan, a Swing Line Loan, an Incremental Revolving Loan or an Incremental Term A Loan or an Incremental Term B Loan.
“Loan Documents” means this Agreement, the First Amendment, the Second Amendment to Third Amended and Restated Credit Agreement, each Note, each Issuer Document, the U.S. Obligations Guaranty, the Foreign Obligations Guaranty, the Collateral Documents, each agreement to which any Loan Party is a party that expressly provides such agreement is a “Loan Document” (as defined in this Agreement) and each agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement.
“Loan Parties” means, collectively, each Borrower and each Guarantor.
“Master Agreement” has the meaning specified in the definition of “Swap Contract”.
“Master Assignment” has the meaning specified in the Third Amendment to Amended and Restated Credit Agreement.
“Material Acquisition” means any Permitted Acquisition involving total consideration in excess of $200,000,000.
“Material Adverse Effect” means (a) any change, development, event, occurrence, effect or state of facts that, individually or in the aggregate with all such other changes, developments, events, occurrences, effects or states of facts is, or is reasonably expected to be, materially adverse to the business, financial condition or results of operations of Holdings and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
“Material Contract” means, with respect to any Person, each contract to which such Person is a party involving aggregate consideration payable to or by such Person of $12,000,000 or more in any year or otherwise material to the business, condition (financial or otherwise), operations, performance, properties or prospects of such Person.
“Maturity Date” means (a) with respect to each of the Term A Facility and the Revolving Credit Facility, the earlier of (i) the date that is the fifth anniversary of the Third RestatementSecond Amendment Closing Date and (ii) the date that is one hundred and eighty (180) days prior to the maturity of the SpinCo Notes unless, at least one hundred and eighty (180) days prior to the maturity date of the SpinCo Notes, such notes are refinanced in full (A) pursuant to a Permitted Refinancing that has a maturity date at least one hundred and eighty (180) days after the date referred to in clause (a)(i) hereof or (B) with Incremental Term Loans incurred under Section 2.14 and; (b) with respect to any Incremental Term A Loans, each Incremental Term Loan A Maturity Date applicable thereto; and (c) with respect to any Incremental Term B Loans, each Incremental Term Loan B Maturity Date applicable thereto; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“Maximum Consolidated Leverage Ratio” has the meaning specified in Section 7.11(a).
“Maximum Rate” has the meaning specified in Section 11.09.
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of Holdings.
“Mexican Pledge Agreement (All Obligations)” means the Stock Pledge Agreement, dated April 30, 2012, by and among GBC International, ACCO Mexicana, S.A. de C.V., a Foreign Subsidiary of Holdings, and Barclays Bank PLC, as administrative agent, as amended by the Amendment to Mexican Pledge Agreement (All Obligations) (as defined in the Second Amendment) and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Minor Acquisition” means any investment by any Borrower or any Guarantor in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person; provided that the total cash and non-cash consideration for such acquisition shall not exceed the greater of $20,000,000 and 0.75% of Consolidated Total Assets of Holdings.
“MNPI” has the meaning specified in Section 6.02.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgage Policy” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Mortgaged Property” means real property which becomes or became subject to a Mortgage pursuant to Section 4.01, Section 4.02 or Section 6.11 (or any predecessor Section in the Original Credit Agreement, the Amended and Restated Credit Agreement, or the Second Amended and Restated Credit Agreement, as applicable).
“Mortgages” means each U.S. Mortgage and Other Foreign Mortgage.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Holdings or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions.
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including Holdings or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Cash Proceeds” means with respect to any Disposition by Holdings or any of its Subsidiaries, or any Extraordinary Receipt received by or paid to or for the account of Holdings or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses incurred (or reasonably expected to be incurred) by Holdings or such Subsidiary in connection with such transaction and (C) taxes reasonably estimated to be actually payable during the year that the relevant transaction occurred or the next succeeding year that are attributable to the relevant transaction, including any taxes payable as a result of any gain recognized in connection therewith (the “cash proceeds”); provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall be a reduction of the Taxes previously taken into account under subclause (C) for purposes of redetermining Net Cash Proceeds; provided, further, that if (other than in connection with a Disposition pursuant to Section 7.05(l)) (x) a Responsible Officer of Holdings shall deliver a certificate to the Administrative Agent prior to the date on which a prepayment of the cash proceeds is required to be made with respect to any Disposition or Extraordinary Receipt hereunder stating that Holdings or any Subsidiary of Holdings intends to reinvest such cash proceeds in assets useful in the business of Holdings and its Subsidiaries within 365 days of receipt of such cash proceeds (provided that if, prior to the expiration of such 365-day period, Holdings, directly or through a Subsidiary, shall have entered into a binding agreement providing for such investment on or prior to the date that is 180 days after the expiration of such 365-day period, such 365-day period shall be extended to the date provided for such investment in such binding agreement) and (y) at the time of delivery of such certificate and at the time of the proposed reinvestment of such cash proceeds no Default shall have occurred and be continuing, such cash proceeds shall not constitute Net Cash Proceeds except to the extent not so reinvested by the end of such 365-day period (or such additional period, if applicable, provided for in the proviso to clause (x) above).
“Net Equity Proceeds” means, as at any date of determination, without duplication, an amount equal to any cash proceeds from a capital contribution to, or any cash proceeds from the issuance by Holdings of any common Equity Interests of Holdings (other than pursuant to any employee stock or stock option compensation plan or pursuant to any issuance permitted by Section 7.02(k) or Section 7.06(c)), net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements), minus any portion of such amount used by Holdings and its Subsidiaries on or prior to such date of determination to make (1) Investments pursuant to Section 7.02(c)(v)(C)(3) or Section 7.02(o)(3), (2) Restricted Payments pursuant to Section 7.06(d)(3) or (3) payments of Junior Indebtedness pursuant to Section 7.14(c)(3).
“NFIP” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).
“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.
“Note” means a Term A Note, a Term B Note or Revolving Credit Note, as the context may require.
“Note Contribution” means the contribution of the Contributed Amount from Holdings to ACCO Dutch Finance C.V.
“Notice” has the meaning specified in Section 2.02(a).
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party (and, solely in the case of any Secured Hedge Agreement or Secured Cash Management Agreement, any Subsidiary that is not a Loan Party to the extent an obligor thereunder) arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement, Secured Hedge Agreement or Specified Supply Chain Agreement, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, that at no time shall Obligations include any Excluded Swap Obligations.
“OFAC” has the meaning specified in Section 5.22.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction, including any unanimous shareholder agreement or declaration relating to such corporation); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).
“Original Closing Date” means May 1, 2012.
“Original Closing Date Refinancing” means the repayment in full of all indebtedness, termination of all commitments to make extensions of credit under, and the termination and release of all guarantees and security interests provided in connection with the Prior Credit Agreement and the Senior Secured Notes (as defined in the Original Credit Agreement).
“Original Closing Date Transaction” means, collectively, (a) the consummation of the Original Closing Date Refinancing, (b) the consummation of the Merger (as defined in the Original Credit Agreement) and the Cash Dividend (as defined in the Original Credit Agreement), (c) the entering into by each Loan Party of the Loan Documents (in each case as defined in the Original Credit Agreement) to which they were a party, the incurrence of the loans under the Original Credit Agreement on the Original Closing Date and the use of proceeds thereof and (d) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
“Original Closing Date Transaction Costs” means (a) fees and expenses in connection with the Original Closing Date Transaction and (b) one-time cash charges incurred by Holdings and its Subsidiaries in connection with information technology restructuring and integration costs associated with the Merger (as defined in the Original Credit Agreement), separation, integration and/or consolidation of the SpinCo Business (as defined in the Separation Agreement (as defined in the Original Credit Agreement)) with Holdings and its Subsidiaries including, but not limited to, costs with respect to the personnel, assets and operations of Holdings and its Subsidiaries.
“Original Effective Date” means March 26, 2012.
“Original Credit Agreement” has the meaning specified in the recitals hereto.
“Other Connection Taxes” means, with respect to the Administrative Agent, any Lender or the L/C Issuer, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from one or more of the following: such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Foreign Collateral Amount” means, in the case of each Cash Management Bank party to any Secured Cash Management Agreement with any Foreign Loan Party or other Foreign Subsidiary, each Hedge Bank party to any Secured Hedge Agreement with any Foreign Loan Party or other Foreign Subsidiary and each Supply Chain Finance Bank party to any Specified Supply Chain Agreement with any Foreign Loan Party, if such Cash Management Agreement, Secured Hedge Agreement or Specified Supply Chain Agreement is secured by any Lien other than a Lien in favor of the Administrative Agent for the benefit of any or all of the Secured Parties, the fair market value of all property and assets in respect of each such Lien (other than the Lien in favor of the Administrative Agent for the benefit of any or all of the Secured Parties) securing the Foreign Obligations in respect of the Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements to which such Foreign Loan Party (or, in the case of Secured Cash Management Agreements and Secured Hedge Agreements, other Foreign Subsidiary) is a party; provided that to the extent any Foreign Obligations Secured Party fails to certify its Other Foreign Collateral Amount in accordance with the provisions of Section 9.11, such amount shall be deemed to equal the entire amount of the Foreign Obligations then due and owing and remaining unpaid to such Foreign Obligations Secured Party.
“Other Foreign Mortgages” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Other Foreign Pledge Agreement” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Other Foreign Security Agreement” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Other Pledgor” has the meaning specified in the definition of “Collateral and Guaranty Requirements”.
“Other Taxes” means all present or future stamp, court or documentary, recording, filing, mortgage or mortgage recording Taxes, any other excise or property Taxes, or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, or enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document (but excluding any such Tax in respect of the assignment or transfer by any Lender of its rights or obligations under this Agreement or any other Loan Document (other than an assignment made pursuant to Section 11.13)).
“Other U.S. Collateral Amount” means, in the case of each Cash Management Bank party to any Secured Cash Management Agreement with any U.S. Loan Party or other Domestic Subsidiary, each Hedge Bank party to any Secured Hedge Agreement with any U.S. Loan Party or other Domestic Subsidiary and each Supply Chain Finance Bank party to any Specified Supply Chain Agreement with any U.S. Loan Party, if such Cash Management Agreement, Secured Hedge Agreement or Specified Supply Chain Agreement is secured by any Lien other than a Lien in favor of the Administrative Agent for the benefit of any or all of the Secured Parties, the fair market value of all property and assets in respect of each such Lien (other than the Lien in favor of the Administrative Agent for the benefit of any or all of the Secured Parties) securing the U.S. Obligations in respect of the Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements to which such U.S. Loan Party (or, in the case of Secured Cash Management Agreements and Secured Hedge Agreements, other Domestic Subsidiary) is a party; provided that to the extent any U.S. Obligations Secured Party fails to certify its Other U.S. Collateral Amount in accordance with the provisions of Section 9.11, such amount shall be deemed to equal the entire amount of the U.S. Obligations then due and owing and remaining unpaid to such U.S. Obligations Secured Party.
“Outstanding Amount” means (a) with respect to Term Loans, Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Term Loans, Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by any Borrower of Unreimbursed Amounts, in each case using the U.S. Dollar Equivalent of obligations denominated in an Alternative Currency.
“Participant” has the meaning specified in Section 11.06(d).
“Participant Register” has the meaning specified in Section 11.06(d).
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Act” means the Pension Protection Act of 2006.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including Multiple Employer Plans, defined benefit plans or defined contribution plans) that is maintained or is contributed to by, or to which there
is or may be an obligation to contribute by, Holdings and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code or Section 302 of ERISA. For the avoidance of doubt, a Pension Plan shall not include a Foreign Pension Plan.
“Permitted Acquisition” means any investment by Holdings or any of its Subsidiaries (x) in the form of acquisitions of all or substantially all of the business or a line of business or a separate operation or (y) in a joint venture, including the acquisition of a third party’s interest in an existing joint venture of any other Person (in each case, whether by the acquisition of capital stock, assets or any combination thereof) if:
(i) the Administrative Agent and the Lenders (or only the Administrative Agent with respect to any Minor Acquisition) shall receive written notice of such acquisition not less than twenty (20) days prior to closing (or not less than five (5) Business Days prior to closing with respect to any Minor Acquisition) together (except in the case of Minor Acquisitions) with a reasonable summary description of the relevant acquisition, pro forma projections and financial statements;
(ii) the acquired entity, assets or operations shall be in a substantially similar line of business as Holdings and its Subsidiaries, or a line of business reasonably related thereto;
(iii) the board of directors of the acquired company shall have approved the acquisition prior to closing (except in the case of an acquisition of a Subsidiary of an entity, or of assets of an entity);
(iv) at the time of and immediately after giving effect to any such proposed acquisition Holdings shall be in compliance with the financial covenant set forth in Section 7.11(a) on a pro forma basis; provided that, for purposes of determining pro forma compliance with Section 7.11(a), each applicable Maximum Consolidated Leverage Ratio set forth in Section 7.11(a) shall be deemed for purposes of this clause (d) to be 0.25:1.00 less than the ratio actually set forth in Section 7.11(a);
(v) the aggregate amount of such Investments made by Loan Parties in Persons that do not become U.S. Loan Parties shall not, when combined with the aggregate amount of Investments made pursuant to Section 7.02(e)(ii) used to consummate Permitted Acquisitions of Persons that do not become U.S. Loan Parties, exceed the greater of (i) $500,000,000 and (ii) 15.0% of Consolidated Total Assets of Holdings and its Subsidiaries;
(vi) Holdings shall deliver to the Administrative Agent and the Lenders, at least five (5) Business Days prior to closing, a certificate of a Responsible Officer evidencing pro forma compliance with the financial covenants set forth in Section 7.11 (both before and after giving effect to the proposed acquisition) as set forth in clause (d) above and certifying compliance with the other requirements of this definition; and
(vii) no Default or Event of Default shall have occurred and be continuing as of the closing date of the proposed acquisition.
“Permitted Liens” means those Liens permitted pursuant to Section 7.01.
“Permitted Pension Withdrawal Liability” means any liability by Holdings or any of its Subsidiaries under applicable law on account of the complete or partial termination of a Pension Plan or Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein which does not constitute an ERISA Event or Foreign Pension Plan Event.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) at the time
thereof, no Default or Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (e) if such Indebtedness being modified, refinanced, refunded, renewed or extended is secured, the terms and conditions relating to collateral of any such modified, refinanced, refunded, renewed or extended indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions with respect to the collateral for the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole (and the Liens on any collateral securing any such modified, refinanced, refunded, renewed or extended Indebtedness shall have the same (or lesser) priority relative to the Liens on the collateral securing the Obligations), (f) the terms and conditions (excluding as to collateral, subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, shall not be materially less favorable to the Loan Parties than the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole, (g) if such Indebtedness being modified, refinanced, refunded, renewed or extended was unsecured, such modification, refinancing, refunding, renewal or extension shall also be unsecured and (h) such modification, refinancing, refunding, renewal or extension is incurred by one or more Persons who is an obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended.
“Permitted Supply Chain Financing” has the meaning specified in Section 7.03(s).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of Holdings or any ERISA Affiliate or any such Plan to which Holdings or any ERISA Affiliate is required to contribute on behalf of any of its employees. A Plan shall not include a Foreign Pension Plan.
“Platform” has the meaning specified in Section 6.02.
“Pledge Agreement” shall mean each of the U.S. Pledge Agreement, the Japanese Pledge Agreement (All Obligations), the Mexican Pledge Agreement (All Obligations), the Canadian Pledge Agreements, the Swedish Pledge Agreement, the U.K.Dutch Pledge AgreementAgreements and each other pledge agreement required to be delivered to the Administrative Agent pursuant to the Collateral and Guaranty Requirements.
“Pounds Sterling” and “GBP” means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.
“PPSA” means the Personal Property Securities Xxx 0000 (Cth).
“PPS Law” means (a) the PPSA, (b) any regulation or subordinated legislation made under or corresponding to the PPSA, and (c) any amendments made at any time to any other legislation, regulation or subordinated legislation as a consequence of the PPSA or any regulation or subordinated legislation made under or corresponding to the PPSA.
“Preferred Equity”, as applied to the Equity Interests of any Person, shall mean Equity Interests of such Person (other than common Equity Interests of such Person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person, and shall include any Qualified Preferred Stock of Holdings.
“Prepayment Notice” means a notice of the optional prepayment of Term Loans and/or Revolving Credit Loans pursuant to Section 2.05(a), which shall be in substantially the form of Exhibit A-4 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.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by Bank of America as its reference rate in effect at its principal office in New York City (the Prime Rate not being intended to be the lowest rate of interest charged by Bank of America in connection with extensions of credit to debtors) (any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change).
“Prior Credit Agreement” means the Syndicated Facility Agreement - ABL Revolving Facility, dated as of September 30, 2009, among Holdings, certain subsidiaries of Holdings party thereto, the lenders from time to time party thereto, Deutsche Bank AG New York Branch, as administrative agent and collateral agent, and the other parties thereto (as amended, restated, supplemented or otherwise modified through and including the Original Closing Date).
“Pro Rata Obligations” means the Loans and the Letters of Credit.
“Proceeds” shall mean all “proceeds” as such term is defined in the UCC and in any event shall also include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty payable to the Administrative Agent or any Loan Party from time to time with respect to any of the Collateral, (ii) any and all payments (in any form whatsoever) made or due and payable to any Loan Party from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning specified in Section 6.02.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning given to that terms in Section 11.29.
“Qualified Preferred Stock” shall mean any Preferred Equity of Holdings so long as the terms of any such Preferred Equity (v) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision prior to the one year anniversary of the latest Maturity Date, (w) do not require the cash payment of dividends or distributions that would otherwise be prohibited by the terms of this Agreement or any other agreement or contract of Holdings, or its Subsidiaries, (x) do not contain any covenants (other than periodic reporting requirements), (y) do not grant the holders thereof any voting rights except for (I) voting rights required to be granted to such holders under applicable law and (II) limited customary voting rights on fundamental matters such as mergers, consolidations, sales of all or substantially all of the assets of Holdings, or liquidations involving Holdings and (z) are otherwise reasonably satisfactory to the Administrative Agent.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by Holdings or any Subsidiary pursuant to which Holdings or any such Subsidiary may sell, convey or otherwise transfer to a Receivables Subsidiary (in the case of a transfer by Holdings or any Subsidiary) or to any Special Purpose Vehicle (in the case of a transfer by a Receivables Subsidiary), or may grant (or cause a Receivables Subsidiary or Special Purpose Vehicle to grant) a security interest in, any Receivables Program Assets (whether existing on the Third Restatement Date or arising thereafter); provided that: (1) no portion of the Indebtedness or any other obligations (contingent or otherwise) of a Receivables Subsidiary or Special Purpose Vehicle (a) is Guaranteed by Holdings or any Subsidiary (other than a Receivables Subsidiary), excluding Guarantees of obligations pursuant to Standard Securitization Undertakings, (b) is recourse to or obligates Holdings or any Subsidiary (other than a Receivables Subsidiary) in any way other than pursuant to Standard Securitization Undertakings or (c) subjects any property or asset of Holdings or any Subsidiary (other than a Receivables Subsidiary), directly or indirectly, contingently or otherwise, to the satisfaction of obligations incurred in such transactions, other than pursuant to Standard Securitization Undertakings; (2) neither Holdings nor any Subsidiary (other than a Receivables Subsidiary) has any material contract, agreement, arrangement or understanding with a Receivables Subsidiary or a Special Purpose Vehicle other than on terms no less favorable to Holdings or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of Holdings, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable; and (3) Holdings and its Subsidiaries (other than a Receivables Subsidiary) do not have any obligation to maintain or preserve the financial condition of a Receivables Subsidiary or a Special Purpose Vehicle or cause such entity to achieve certain levels of operating results other than Standard Securitization Undertakings; provided, however, that the aggregate outstanding principal amount of Indebtedness incurred by all Receivables Subsidiaries pursuant to all Qualified Receivables Transactions shall not at any time exceed the greater of (x) $60,000,000135,000,000 and (y) 2.005.00% of Consolidated Total Assets of Holdings.
“Quarterly Financial Statements” means the unaudited consolidated balance sheets of Holdings and its respective Subsidiaries and the related statements of income, Stockholders’ Equity and cash flows for each fiscal quarter subsequent to the most recent Annual Financial Statements of Holdings and its respective Subsidiaries ended at least forty-five (45) days prior to the Third Restatement Date meeting the requirements of SEC Regulation S-X of the Securities Exchange Act of 1934, as amended (all of which shall have been reviewed by the independent accountants for Holdings as provided in Statement on Auditing Standards No. 100).
“Real Estate Opinion” has the meaning provided in the definition of “Collateral and Guaranty Requirements”.
“Real Property Reports” has the meaning provided in the definition of “Collateral and Guaranty Requirements”.
“Receivables” means all rights of Holdings or any of its Subsidiaries (other than a Receivables Subsidiary) to payments (whether constituting accounts, chattel paper, instruments, general intangibles or otherwise, and including the right to payment of any interest or finance charges), which rights are identified in the accounting records of Holdings or such Subsidiary as accounts receivable.
“Receivables Documents” means: (1) one or more receivables purchase agreements, pooling and servicing agreements, credit agreements, agreements to acquire undivided interests or other agreements to transfer or obtain loans or advances against, or create a security interest in, Receivables Program Assets, in each case entered into by Holdings, a Subsidiary and/or a Receivables Subsidiary, and (2) each other instrument, agreement and other document entered into by Holdings, a Subsidiary or a Receivables Subsidiary relating to the transactions contemplated by the agreements referred to in clause (a) above.
“Receivables Program Assets” means: (1) all Receivables which are described as being transferred by Holdings, a Subsidiary or a Receivables Subsidiary pursuant to the Receivables Documents; (2) all Receivables Related Assets in respect of Receivables described in clause (1); and (3) all collections (including recoveries) and other proceeds of the assets described in the foregoing clauses.
“Receivables Program Obligations” means Indebtedness and other obligations owing in respect of notes, trust certificates, undivided interests, partnership interests or other interests sold, issued and/or pledged, or otherwise incurred, in connection with a Qualified Receivables Transaction; and related obligations of Holdings, a Subsidiary or a Special Purpose Vehicle (including Standard Securitization Undertakings).
“Receivables Related Assets” means: (1) any rights arising under the documentation governing or relating to Receivables (including rights in respect of Liens securing such Receivables and other credit support in respect of such Receivables); (2) any proceeds of such Receivables and any lockboxes or accounts in which such proceeds are deposited; (3) spread accounts and other similar accounts (and any amounts on deposit therein) established in connection with a Qualified Receivables Transaction; (4) any warranty, indemnity, dilution and other intercompany claim arising out of Receivables Documents; and (5) other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable.
“Receivables Repurchase Obligation” means any obligation of Holdings or a Subsidiary (other than a Receivables Subsidiary) in a Qualified Receivables Transaction to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a Receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to Holdings or a Subsidiary (other than a Receivables Subsidiary).
“Receivables Subsidiary” means a special purpose wholly-owned Subsidiary created by Holdings or any Subsidiary in connection with the transactions contemplated by a Qualified Receivables Transaction, which Subsidiary engages in no activities other than those incidental to such Qualified Receivables Transaction and which is designated as a Receivables Subsidiary by Holdings’ Board of Directors. Any such designation by the Board of Directors shall be evidenced by filing with the Administrative Agent of a board resolution of Holdings giving effect to such designation and an officers’ certificate certifying, to the best of such officers’ knowledge and belief after consulting with counsel, that such designation, and the transactions in which the Receivables Subsidiary will engage, comply with the requirements of the definition of Qualified Receivables Transaction.
“Refinanced Term Loans” has the meaning specified in Section 11.01(d).
“Register” has the meaning specified in Section 11.06(c).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration into or through the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material) or into or out of any property owned, leased or operated by such person.
“Replacement Term Loans” has the meaning specified in Section 11.01(d).
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Term A Loans, Term B Loans or Revolving Credit Loans, a Committed Loan Notice or Conversion/Continuation Notice, as applicable, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Incremental Term Loan A Lenders” means, as of any date of determination, with respect to each Series of Incremental Term A Loans, Incremental Term Loan A Lenders or Incremental Term Loan B Lenders, as applicable, holding more than 50% of such Series on such date; provided that the portion of the Incremental Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Incremental Term Loan A Lenders.
“Required Lenders” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Credit Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in Swing Line Loans and L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders.
“Required Secured Parties” means (1) at any time prior to 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 and Secured Hedge Agreements) have been paid in full and (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, the Required Lenders (or such greater number of Lenders as may be required by Section 11.01) and (2) at any time thereafter and prior to the Discharge of Obligations, the holders of a majority of the sum of (i) the aggregate Swap Termination Value under the Secured Hedge Agreements and (ii) the aggregate outstanding amount of all Obligations then due and payable under the Secured Cash Management Agreements, in each case with respect to the foregoing clauses (i) and (ii) as of the date that is three (3) Business Days prior to the date in question.
“Required Term A Lenders” means, as of any date of determination, Term A Lenders holding more than 50% of the Term A Facility on such date; provided that the portion of the Term A Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term A Lenders.
“Required Term B Lenders” means, as of any date of determination, Term B Lenders holding more than 50% of the Term B Facility on such date; provided that the portion of the Term B Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Term B Lenders.
“Responsible Officer” means the chief executive officer, president, chief financial officer, chief accounting officer, treasurer, assistant treasurer or controller of a Loan Party or, to the extent such Person is permitted to take any applicable action pursuant to the Organization Documents of such Loan Party, a director or other authorized signatory of such Loan Party and, solely for purposes of notices given pursuant to Article 2, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.
“Restatement Date” means the date on which the conditions set forth in Section III of the Second Amendment have been satisfied or waived.
“Restatement Date Transaction Costs” means fees and expenses in connection with the Restatement Date Transactions.
“Restatement Date Transactions” means (i) the prepayment in full of the aggregate principal amount of the Term B Loans (as defined in the Original Credit Agreement) outstanding immediately prior to the effectiveness of the Second Amendment, (ii) the prepayment in full of the aggregate principal amount of the Term A Loans (as defined in the Original Credit Agreement) outstanding immediately prior to the effectiveness of the Second Amendment, other than that portion of the U.S. Dollar Term A Loans (as defined in the Original Credit Agreement) that is exchanged for a like principal amount of Term A Loans (as defined in the Amended and Restated Credit Agreement), and (iii) the repayment in full of the aggregate principal amount of any Revolving Credit Loans (as defined in the Original Credit Agreement) outstanding immediately prior to the effectiveness of the Second Amendment and the termination of all commitments to make extensions of credit under the Revolving Credit Facilities (as defined in the Original Credit Agreement) in effect immediately prior to the effectiveness of the Second Amendment, other than that portion of Revolving Credit Commitments (as defined in the Original Credit Agreement) that is exchanged for a like principal amount of Revolving Credit Commitments (as defined in the Amended and Restated Credit Agreement).
“Restatement Engagement Letter” means that certain Engagement Letter, dated as of April 11, 2013, among Holdings, Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated and Bank of America, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Restatement Financial Projections” means the consolidated forecasted balance sheet and statements of income and cash flows of Holdings and its Subsidiaries in the most recent form provided to the Administrative Agent by Holdings prior to the Restatement Date.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent or any thereof) or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“Revaluation Date” means (a) with respect to any Loan denominated in an Alternative Currency, the first day of each Interest Period; and (b) with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (i) each date of issuance of such Letter of Credit, (ii) each date of an amendment of such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of payment by the L/C Issuer under such Letter of Credit and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Revolving Credit Lenders shall require.
“Revolving Credit Borrowers” means, collectively, each U.S. Revolving Credit Borrower and each Foreign Borrower that becomes a borrower under the Revolving Credit Facility pursuant to Section 1.09.
“Revolving Credit Borrowing” means a borrowing consisting of one or more simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, Australian BBSR Rate Loan or Canadian BA Rate Loan, having the same Interest Period made pursuant to Section 2.01(cd).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(cd) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption or Master Assignment pursuant to which such 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 FirstSecond Amendment EffectiveClosing Date, the aggregate amount of the Revolving Credit Commitments of all Revolving Credit Lenders is $500,000,000600,000,000 (or the U.S. Dollar Equivalent thereof). “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time and the Credit Extensions made thereunder.
“Revolving Credit Lender” means, at any time, any Lender that has Revolving Credit Commitment at such time or that has Revolving Credit Loans or risk participations in Swing Line Loans or L/C Obligations, in each case, outstanding at such time.
“Revolving Credit Loan” has the meaning specified in Section 2.01(cd).
“Revolving Credit Note” means a promissory note made by a Revolving Credit Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans made by such Revolving Credit Lender, in substantially the form of Exhibit B.
“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
“Same Day Funds” means (a) with respect to disbursements and payments in U.S. Dollars, immediately available funds and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the Administrative Agent or the L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlements of international banking transactions in the relevant Alternative Currency.
“Scheduled Unavailability Date” has the meaning specified in Section 1.11.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amended and Restated Credit Agreement” has the meaning specified in the recitals to this Agreement.
“Second Amendment” means the Second Amendment to the Credit Agreement, entered into as of May 13, 2013, by and among Holdings, certain Subsidiaries of Holdings party thereto, Barclays Bank PLC, as Existing Administrative Agent (as defined therein), Bank of Montreal, as Existing Multicurrency Administrative Agent (as defined therein), the Required Lenders and Consenting Lenders (each, as defined therein) and Bank of America, as the New Administrative Agent (as defined therein).
“Second Amendment and Additional Borrower Consent” means that certain Second Amendment and Additional Borrower Consent among Administrative Agent, Lenders, and Borrowers dated as of May 1, 2016.
“Second Amendment Closing Date” means May 23, 2019.
“Second Amendment Closing Date Transactions” means (a) the continuation of the entire outstanding principal amount of the Term A Loans denominated in Euros outstanding immediately prior to the Second Amendment Closing Date, (b) the continuation of the entire outstanding principal amount of the Term A Loans denominated in Australian Dollars outstanding immediately prior to the Second Amendment Closing Date, (c) the establishment of a new tranche of Term A Loans denominated in U.S. Dollars, (d) (x) the continuation of the entire outstanding principal amount of the Revolving Credit Loans and Revolving Credit Commitments outstanding immediately prior to the Second Amendment Closing Date, and (y) the extension of additional Revolving Credit Commitments, (e) the consummation of the other amendments to the Third Amended and Restated Credit Agreement (as amended by the First Amendment thereto), and (e) the payment of fees and expenses in connection with the foregoing, in each case, on the terms and subject to the conditions set forth in the Second Amendment to Third Amended and Restated Credit Agreement and this Agreement.
“Second Amendment Effective Date” has the meaning assigned to the term “Effective Date” in the Second Amendment and Additional Borrower Consent.
“Second Amendment to Third Amended and Restated Credit Agreement” means the Second Amendment to the Third Amended and Restated Credit Agreement, entered into as of May 23, 2019, by and among Holdings, certain Subsidiaries of Holdings party thereto, Bank of America, as Administrative Agent, the Required Lenders (each as defined therein) and each other Person a party thereto.
“Second Two Repayment YearYears” has the meaning specified in Section 2.07(a).
“Second Restatement Date” means the date on which the conditions set forth in Section IV of the Third Amendment to Amended and Restated Credit Agreement have been satisfied or waived.
“Second Restatement Date Transaction Costs” means fees and expenses in connection with the Second Restatement Date Transactions.
“Second Restatement Date Transactions” means (i) the continuation of the entire outstanding principal amount of the Term A Loans (as defined in the Amended and Restated Credit Agreement) outstanding immediately prior to the effectiveness of the Third Amendment to Amended and Restated Credit Agreement, (ii) the making of additional Term A Loans pursuant to the second sentence of Section 2.01(a) of the Second Amended and Restated Credit Agreement, (iii) the continuation of the entire outstanding principal amount of the Revolving Loans (as defined in the Amended and Restated Credit Agreement) and Revolving Credit Commitments outstanding immediately prior to the Second Restatement Date and (iv) the extension of additional Revolving Credit Commitments, in each case on the terms and subject to the conditions set forth in the Third Amendment to Amended and Restated Credit Agreement.
“Second Restatement Financial Projections” means the consolidated forecasted balance sheet and statements of income and cash flows of Holdings and its Subsidiaries in the most recent form provided to the Administrative Agent by Holdings prior to the Second Restatement Date.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party or any Subsidiary and any Cash Management Bank.
“Secured Hedge Agreement” means any interest rate, currency or commodities Swap Contract permitted under this Agreement that is entered into by and between a Loan Party or any Subsidiary and any Hedge Bank.
“Secured Parties” means, (i) the U.S. Obligations Secured Parties, (ii) the Foreign Obligations Secured Parties or (iii) collectively, all of the foregoing, as the context may require.
“Securities Accounts” means “securities accounts” as such term is defined in the UCC and “securities accounts” as such term is defined in the STA.
“Seller’s Retained Interest” means the debt or equity interests held by Holdings or any Subsidiary in a Receivables Subsidiary to which Receivables Program Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Receivables Program Assets transferred, or any other instrument through which Holdings or any Subsidiary has rights to or receives distributions in respect of any residual or excess interest in the Receivables Program Assets.
“Senior Managing Agents” means PNC Bank, National Association and Keybank National Association, in their capacities as senior managing agents.
“Senior Secured Leverage Ratio” means, with respect to any Measurement Period, the ratio of (a) Consolidated Senior Secured Debt (net of Unrestricted Cash of Holdings and its Subsidiaries not exceeding $75,000,000) to (b) Consolidated EBITDA for such Measurement Period, in each case for Holdings and its Subsidiaries.
“Series” has the meaning specified in Section 2.14(a).
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Special Notice Currency” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
“Special Purpose Vehicle” means a trust, partnership or other special purpose Person established by Holdings and/or any of its Subsidiaries to implement a Qualified Receivables Transaction.
“Specified Brazilian Tax Payment” means any payment of taxes (including interest and penalties in connection therewith) in connection with that certain goodwill tax assessment issued on December 19, 2012 or any other subsequent assessment based on substantially similar allegations or claims by the Federal Revenue Department (Brazil) against Tilibra in an amount not to exceed, in the aggregate, the U.S. Dollar Equivalent of BRL111,000,000200,000,000.
“Specified Supply Chain Agreement” shall have the meaning specified in the definition of “Specified Supply Chain Obligations”.
“Specified Supply Chain Obligations” means the due and punctual payment and performance of all obligations of each Loan Party to any Supply Chain Finance Bank under any Permitted Supply Chain Financing, with respect to the security interests granted pursuant to the Collateral Documents, to the extent the documentation for such obligations specifically provides that such Supply Chain Finance Bank is entitled to the benefit of the security interests granted pursuant to the Collateral Documents or, with respect to guarantees provided pursuant to the Guaranty Agreements, unless the documentation for such specifically provides that such Supply Chain Finance Bank is not entitled to the benefit of the guarantees provided pursuant to the Guaranty Agreements; provided, however, that the Permitted Supply Chain Financing arrangements entered, or to be entered, into by one or more of the Loan Parties and any Supply Chain Finance Bank shall not constitute Specified Supply Chain Obligations and shall not be secured pursuant to any Collateral Documents unless expressly authorized by Holdings in a writing delivered to Agent (such documentation, a “Specified Supply Chain Agreement”).
“SpinCo” means Monaco SpinCo Inc., a Delaware corporation and any permitted successor thereto, including Holdings.
“SpinCo Closing Date” means April 30, 2012.
“SpinCo Notes” means the senior notes of SpinCo due 2020, in an aggregate principal amount not to exceed $500,000,000 outstanding under the SpinCo Notes Indenture.
“SpinCo Notes Documents” means the SpinCo Notes Indenture, the SpinCo Notes and each other document or agreement relating to the issuance of the SpinCo Notes.
“SpinCo Notes Indenture” means the indenture dated as of April 30, 2012, by and among SpinCo, as issuer, the guarantors named therein, and Xxxxx Fargo Bank, National Association, as trustee, under which the SpinCo Notes are issued.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date specified; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency and provided further that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Standard Securitization Undertakings” means representations, warranties, covenants, performance guarantees and indemnities entered into by Holdings or any Subsidiary of Holdings which, in the good faith judgment of the board of directors of the appropriate company, are reasonably customary for the applicable jurisdiction in an accounts receivable transaction, including any Receivables Repurchase Obligation.
“Stockholders’ Equity” means, as of any date of determination, consolidated stockholders’ equity of Holdings and its Subsidiaries as of that date determined in accordance with GAAP.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.
“Supply Chain Finance Bank” means any Person that, at the time it enters into any Specified Supply Chain Agreement, is a Lender, the Administrative Agent or an Arranger or the Affiliate of a Lender, the Administrative Agent or an Arranger in its capacity as a party to such Permitted Supply Chain Financing.
“Supported QFC” has the meaning given to that term in Section 11.29.
“Survey” has the meaning provided in the definition of “Collateral and Guaranty Requirements”.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other similar master agreement relating to a transaction described in clause (a) (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the termination value(s) that would be owing in accordance with the terms of such Swap Contracts were such Swap Contracts closed out on the applicable date of determination with the Loan Party or Subsidiary party thereto as the sole defaulting party or sole affected party thereunder.
“Swedish Pledge Agreement” means the Amended and Restated Swedish Pledge Agreement (as defined in the Second Amendment).
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning specified in Section 2.04(a).
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which shall be in substantially the form of Exhibit A-3 or any other form approved by the Administrative Agent and the Swing Line Lender (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.
“Swing Line Loan Prepayment Notice” means a notice of a prepayment of a Swing Line Loan pursuant to Section 2.05(a)(ii), which shall be in substantially the form of Exhibit A-5 or any other form approved by the Administrative Agent and the Swing Line Lender.
“Swing Line Sublimit” means an amount equal to $40,000,00060,000,000. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Syndication AgentAgents” mean Barclays Bank PLC, BMO Capital Markets Corp., PNC Bank, National Association and Xxxxx Fargo Bank, National Association, in its capacitytheir respective capacities as syndication agentagents.
“Synthetic Lease Obligation” means the monetary obligation of a Person under an agreement for the use or possession of property (including sale and leaseback transactions) creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term A Borrower” means, as the case may be, an Australian Dollar Term A Borrower or, a Euro Term A Borrower or a U.S. Dollar Term A Borrower.
“Term A Borrowing” means, as the case may be, an Australian Dollar Term A Borrowing or, a Euro Term A Borrowing or a U.S. Dollar Term A Borrowing.
“Term A Commitment” means, as the case may be, an Australian Dollar Term A Commitment or, a Euro Term A Commitment or a U.S. Dollar Term A Commitment.
“Term A Facility” means, as the case may be, an Australian Dollar Term A Facility or, the Euro Term A Facility or the U.S. Dollar Term A Facility.
“Term A Installment Payment Date” means, as the case may be, any Australian Dollar Term A Installment Payment Date or, any Euro Term A Installment Payment Date and any U.S. Dollar Term A Installment Payment Date.
“Term A Lender” means, as the case may be, an Australian Dollar Term A Lender or, a Euro Term A Lender or a U.S. Dollar Term A Lender.
“Term A Loan” means, as the case may be, any Australian Dollar Term A Loan or, Euro Term A Loan or U.S. Dollar Term A Loans.
“Term A Note” means any Australian Dollar Term A Note or, Euro Term A Note or the U.S. Dollar Term A Loans.
“Term B Borrower” means, collectively, Holdings and each other Person that becomes a borrower under a Term B Facility pursuant to Section 1.09.
“Term B Borrowing” means a borrowing consisting of one or more simultaneous Term B Loans of the same Type under a Term B Facility.
“Term B Commitment” means, as to each Term B Lender, its obligation to make Term B Loans to Holdings pursuant to the terms of this Agreement. As of the Second Amendment Closing Date, the aggregate amount of the Term B Commitments of the Term B Lenders is $0.
“Term B Facility” means, at any time, the aggregate principal amount of the Term B Loans of all Term B Lenders outstanding at such time.
“Term B Lender” means at any time after the Second Amendment Closing Date, any Lender that holds Term B Loans at such time.
“Term B Loan” means any loan made by any Term B Lender under a Term B Facility established pursuant to the terms of this Agreement.
“Term B Note” means a promissory note made by Holdings in favor of a Term B Lender evidencing Term B Loans made by such Term B Lender, in substantially the form of Exhibit C-4.
“Term B Replacement Lender” shall have the meaning specified in Section 11.13.
“Term Lender” means, as the case may be, a Term A Lender or, a Term B Lender, an Incremental Term Loan A Lender and an Incremental Term Loan B Lender.
“Term Loan” means, as the case may be, a Term A Loan or, a Term B Loan, an Incremental Term A Loan and an Incremental Term B Loan.
“Third Amendment to Amended and Restated Credit Agreement” means the Third Amendment to Amended and Restated Credit Agreement, dated as of April 28, 2015, among Holdings, the Administrative Agent, the Guarantors and the Lenders (as defined in the Amended and Restated Credit Agreement) and other financial institutions party thereto.
“Third Amendment” means the Third Amendment to the Second Amended and Restated Credit Agreement, entered into as of October 21, 2016, by and among Holdings, certain Subsidiaries of Holdings party thereto, the Required Lenders and Consenting Lenders (each, as defined therein) and Bank of America, as the Administrative Agent (as defined therein).
“Third Restatement Date” means the date on which the conditions set forth in Section IV of the Third Amendment have been satisfied or waived.
“Third Restatement Date Transaction Costs” means fees and expenses in connection with the Third Restatement Date Transactions.
“Third Restatement Date Transactions” means (x) the repayment, in full, of the existing Term A Loans (as defined in the Second Amended and Restated Credit Agreement) other than the Series AUD Incremental Term A Loans (as defined in the AUD Incremental Joinder Agreement) on the Third Restatement Date, (y)(i) the prepayment of a portion of the Series AUD Incremental Term A Loans, (ii) the continuation of the remaining portion of the Series AUD Incremental Term A Loans as Australian Dollar Term A Loans (as defined below) on the terms set forth in this Agreement, (iii) the establishment of a tranche of Euro-denominated Term A Loans in the form of the Euro Term A Loans, (iv) the continuation of the Revolving Credit Facility (as defined below) as amended and restated by this Agreement and (v) the establishment of additional Revolving Credit Commitments, in each case on the terms and subject to the conditions set forth in the Third Amendment and (z) the consummation of the Acquisition.
“Third Restatement Engagement Letter” means that certain Engagement Letter, dated as of June 7, 2016, among Holdings and Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Third Restatement Fee Letter” means that certain Amended and Restated Fee Letter, dated as of August 10, 2016, among Holdings, Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated and Bank of America, as amended, amended and restated, supplemented or otherwise modified from time to time.
“Third Restatement Financial Projections” means the consolidated forecasted balance sheet and statements of income and cash flows of Holdings and its Subsidiaries in the most recent form provided to the Administrative Agent by Holdings prior to the Third Restatement Date.
“Threshold Amount” means $40,000,000.
“Ticking Fee Payment Date” has the meaning specified in Section 2.09(c).
“Tilibra” means Tilibra Produtos de Papelaria Ltda., a Subsidiary of Holdings.
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.