Contract
Exhibit 10.3
CONFORMED COPY – NOT EXECUTED IN THIS FORM
INCORPORATING AMENDMENT NO. 1 TO ABL CREDIT AGREEMENT DATED AS OF MAY 27, 2016, AMENDMENT NO. 2 TO ABL CREDIT AGREEMENT DATED AS OF AUGUST 22, 2018, AMENDMENT NO. 3 TO ABL CREDIT AGREEMENT DATED AS OF JUNE 12, 2019, AMENDMENT NO. 4 TO ABL CREDIT AGREEMENT AND WAIVER DATED AS OF SEPTEMBER 30, 2020, AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT DATED AS OF APRIL 15, 2022 AND AMENDMENT NO. 6 TO ABL CREDIT AGREEMENT DATED AS OF MAY 10, 2023
$40,000,000
ABL CREDIT AGREEMENT
among
X.XXXX, INC.,
XXXX ACQUISITION LLC,
CERTAIN SUBSIDIARIES OF XXXX ACQUISITION LLC FROM TIME TO TIME PARTY HERETO,
THE LENDERS PARTY HERETO
and
CIT FINANCE LLC, as Administrative Agent and Collateral Agent
__________________________________________________________ dated as of May 8, 2015 __________________________________________________________
|
TABLE OF CONTENTS
Page
SECTION 1. Definitions and Accounting Terms. |
2 |
|
1.01 |
Defined Terms |
2 |
1.02 |
Other Definitional Provisions |
61 |
1.03 |
Divisions |
62 |
SECTION 2. Amount and Terms of Credit. |
62 |
|
2.01 |
The Revolving Loan Commitments. |
62 |
2.02 |
Minimum Amount of Each Borrowing |
65 |
2.03 |
Notice of Borrowing |
65 |
2.04 |
Disbursement of Funds |
66 |
2.05 |
Notes |
68 |
2.06 |
Conversions/Continuations |
69 |
2.07 |
Pro Rata Borrowings |
69 |
2.08 |
Interest |
69 |
2.09 |
Interest Periods |
70 |
2.10 |
Increased Costs, Illegality, etc |
71 |
2.11 |
Compensation |
78 |
2.12 |
Change of Lending Office |
78 |
2.13 |
Replacement of Lenders |
79 |
2.14 |
Company as Agent for Borrowers and other Credit Parties |
80 |
2.15 |
Incremental Revolving Loans. |
81 |
2.16 |
Extensions of Revolving Loan Commitments. |
82 |
SECTION 3. Letters of Credit. |
85 |
|
3.01 |
Letters of Credit |
85 |
3.02 |
Maximum Letter of Credit Outstandings; Final Maturities |
86 |
3.03 |
Letter of Credit Requests; Minimum Stated Amount |
86 |
3.04 |
Letter of Credit Participations |
87 |
3.05 |
Agreement to Repay Letter of Credit Drawings |
89 |
3.06 |
Increased Costs |
89 |
3.07 |
Extended Revolving Loan Commitments |
90 |
3.08 |
Subrogation Rights; Letter of Credit Guaranty. |
90 |
SECTION 4. Commitment Commission; Fees; Reductions of Commitment. |
91 |
|
4.01 |
Fees |
91 |
4.02 |
Voluntary Termination of Unutilized Commitments |
92 |
4.03 |
Mandatory Termination of Commitments |
92 |
SECTION 5. Prepayments; Payments; Taxes. |
92 |
|
5.01 |
Voluntary Prepayments |
92 |
5.02 |
Mandatory Repayments; Cash Collateralization |
94 |
5.03 |
Method and Place of Payment |
95 |
5.04 |
Taxes. |
97 |
SECTION 6. Conditions Precedent to Credit Events on the Effective Date |
102 |
|
6.01 |
Effective Date; Notes |
102 |
6.02 |
Officer’s Certificate |
102 |
6.03 |
Opinion of Counsel |
102 |
6.04 |
Company Documents; Proceedings; etc |
102 |
6.05 |
Reserved. |
103 |
6.06 |
Financial Statements; Pro Forma Balance Sheet; Projections |
103 |
6.07 |
Reserved |
103 |
6.08 |
Reserved. |
103 |
6.09 |
Fees, etc |
103 |
6.10 |
Reserved |
103 |
6.11 |
Security Agreements |
103 |
6.12 |
Reserved. |
104 |
6.13 |
Solvency Certificate; Insurance Certificates |
104 |
6.14 |
Patriot Act |
104 |
6.15 |
No Company Material Adverse Effect |
104 |
6.16 |
Purchase Agreement Representations and Specified Representations |
104 |
SECTION 7. Conditions Precedent to All Credit Events |
105 |
|
7.01 |
No Default; Representations and Warranties |
105 |
7.02 |
Notice of Borrowing; Letter of Credit Request |
105 |
7.03 |
Borrowing Base Limitations |
105 |
7.04 |
Borrower Status |
106 |
SECTION 8. Representations, Warranties and Agreements |
106 |
|
8.01 |
Company Status |
106 |
8.02 |
Power and Authority |
106 |
8.03 |
No Violation |
107 |
8.04 |
Approvals |
107 |
8.05 |
Financial Statements; Financial Condition; Projections. |
107 |
8.06 |
Litigation |
108 |
8.07 |
True and Complete Disclosure |
108 |
8.08 |
Use of Proceeds; Margin Regulations |
108 |
8.09 |
Tax Returns and Payments |
108 |
8.10 |
Compliance with ERISA |
109 |
8.11 |
Security Documents |
109 |
8.12 |
Properties |
110 |
8.13 |
OFAC |
110 |
8.14 |
Patriot Act/FCPA |
110 |
8.15 |
Compliance with Statutes |
110 |
8.16 |
Investment Company Act |
111 |
8.17 |
Environmental Matters |
111 |
8.18 |
Employment and Labor Relations |
111 |
8.19 |
Intellectual Property, Etc |
112 |
8.20 |
Insurance |
112 |
8.21 |
Borrowing Base Calculation |
112 |
SECTION 9. Affirmative Covenants |
112 |
|
9.01 |
Information Covenants |
112 |
9.02 |
Books, Records and Inspections; Quarterly Conference Calls |
116 |
9.03 |
Maintenance of Property; Insurance |
117 |
9.04 |
Existence; Franchises |
118 |
9.05 |
Compliance with Statutes, etc |
118 |
9.06 |
Compliance with Environmental Laws. |
118 |
9.07 |
ERISA |
119 |
9.08 |
End of Fiscal Years; Fiscal Quarters |
120 |
9.09 |
Reserved. |
120 |
9.10 |
Payment of Taxes |
120 |
9.11 |
Use of Proceeds |
120 |
9.12 |
Additional Security; Further Assurances; etc |
120 |
9.13 |
Certain Matters Regarding Collateral |
123 |
9.14 |
Landlords’ Agreements, Mortgagee Agreements, Bailee Letters and Real Estate Purchases |
123 |
9.15 |
Inventory |
124 |
9.16 |
Ownership of Subsidiaries |
124 |
9.17 |
Permitted Acquisitions. Subject to this Section 9.17 and the requirements contained in the definition of “Permitted Acquisition”, |
124 |
SECTION 10. Negative Covenants |
126 |
|
10.01 |
Liens |
126 |
10.02 |
Consolidation, Merger, Purchase or Sale of Assets, etc |
129 |
10.03 |
Dividends |
133 |
10.04 |
Indebtedness |
135 |
10.05 |
Advances, Investments and Loans |
138 |
10.06 |
Transactions with Affiliates |
141 |
10.07 |
Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Limitations on Voluntary Payments, etc |
143 |
10.08 |
Limitation on Certain Restrictions on Subsidiaries |
143 |
10.09 |
Business; etc |
144 |
10.10 |
Reserved. |
145 |
10.11 |
Fixed Charge Coverage Ratio |
145 |
10.12 |
No Additional Deposit Accounts; etc |
145 |
SECTION 11. Events of Default. |
146 |
|
11.01 |
Events of Default |
146 |
11.02 |
Rescission |
149 |
11.03 |
Application of Proceeds |
149 |
11.04 |
Cure Right. |
150 |
SECTION 12. The Administrative Agent and the Collateral Agent. |
152 |
|
12.01 |
Appointment |
152 |
12.02 |
Nature of Duties |
153 |
12.03 |
Lack of Reliance on the Administrative Agent |
153 |
12.04 |
Certain Rights of the Agents |
154 |
12.05 |
Reliance |
155 |
12.06 |
Indemnification |
156 |
12.07 |
The Administrative Agent in its Individual Capacity |
157 |
12.08 |
Holders |
157 |
12.09 |
Resignation by the Administrative Agent |
157 |
12.10 |
Collateral Matters |
158 |
12.11 |
Delivery of Information |
161 |
12.12 |
Withholding |
161 |
12.13 |
Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim |
161 |
SECTION 13. Miscellaneous. |
162 |
|
13.01 |
Expenses; Indemnity; Damage Waiver; Costs and Expenses |
162 |
13.02 |
Right of Setoff |
164 |
13.03 |
Notices |
165 |
13.04 |
Benefit of Agreement; Assignments; Participations |
167 |
13.05 |
No Waiver; Remedies Cumulative |
171 |
13.06 |
Payments Pro Rata |
171 |
13.07 |
Calculations; Computations |
172 |
13.08 |
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL |
173 |
13.09 |
Counterparts |
174 |
13.10 |
Effectiveness |
175 |
13.11 |
Headings Descriptive |
175 |
13.12 |
Amendment or Waiver; etc |
175 |
13.13 |
Survival |
178 |
13.14 |
Domicile of Loans |
178 |
13.15 |
Register |
178 |
13.16 |
Confidentiality |
179 |
13.17 |
Special Notice Regarding Pledges of Equity Interests in, and Promissory Notes Owed by, Persons Not Organized in the United States |
180 |
13.18 |
Patriot Act |
180 |
13.19 |
OTHER LIENS ON COLLATERAL; TERMS OF INTERCREDITOR AGREEMENTS; ETC |
180 |
13.20 |
Interest Rate Limitation |
181 |
13.21 |
No Fiduciary Duty |
182 |
13.22 |
Release of Borrowers |
182 |
13.23 |
Post-Closing Actions |
183 |
13.24 |
Revival and Reinstatement of Obligations |
183 |
13.25 |
Lender Action |
183 |
13.26 |
Cash Management Banks and Hedging Creditors |
184 |
13.27 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
184 |
13.28 |
Electronic Records |
184 |
13.29 |
Severability |
185 |
13.30 |
Integration |
185 |
13.31 |
Acknowledgement Regarding any Supported QFCs. |
186 |
SECTION 14. Nature of Borrower Obligations. |
187 |
|
14.01 |
Nature of Borrower Obligations |
187 |
14.02 |
Independent Obligation |
187 |
14.03 |
Authorization |
187 |
14.04 |
Reliance |
188 |
14.05 |
Contribution; Subrogation |
188 |
14.06 |
Waiver |
188 |
SECTION 15. Guaranty. |
188 |
|
15.01 |
The Guaranty |
188 |
15.02 |
Obligations Unconditional |
189 |
15.03 |
Reinstatement |
190 |
15.04 |
Subrogation; Subordination |
190 |
15.05 |
Remedies |
191 |
15.06 |
Instrument for the Payment of Money |
191 |
15.07 |
Continuing Guarantee |
191 |
15.08 |
Excluded Swap Obligations; Keepwell |
191 |
SCHEDULE 1.01(a) Commitments
SCHEDULE 1.01(b) Borrowers
SCHEDULE 1.01(d) Immaterial Subsidiaries
SCHEDULE 1.01(e) Existing Letters of Credit
SCHEDULE 8.12 Real Property
SCHEDULE 8.20 Insurance
SCHEDULE 9.01(f) Borrowing Base Ancillary Deliverables
SCHEDULE 10.01 Existing Liens
SCHEDULE 10.04 Existing Indebtedness
SCHEDULE 10.08 Restrictive Agreements
SCHEDULE 10.12 Deposit Accounts
SCHEDULE 13.03 Lender Addresses
SCHEDULE 13.23 Post-Closing Matters
EXHIBITS
EXHIBIT A-1 Form of Notice of Borrowing
EXHIBIT A-2 Form of Notice of Conversion/Continuation
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D-1 Form of U.S. Tax Compliance Certificate
EXHIBIT D-2 Form of U.S. Tax Compliance Certificate
EXHIBIT D-3 Form of U.S. Tax Compliance Certificate
EXHIBIT D-4 Form of U.S. Tax Compliance Certificate
EXHIBIT E Form of Officer’s Certificate
EXHIBIT F Form of Security Agreement
EXHIBIT G Form of Solvency Certificate
EXHIBIT H Form of Compliance Certificate
EXHIBIT I Form of Assignment and Assumption Agreement
EXHIBIT J [Reserved]
EXHIBIT K [Reserved]
EXHIBIT L Form of Joinder Agreement
EXHIBIT M Form of Borrowing Base Certificate
ABL CREDIT AGREEMENT, dated as of May 8, 2015, among XXXX ACQUISITION LLC, a Delaware limited liability company (the “Company”), X. XXXX GIFT CARD SOLUTIONS, INC., a Florida corporation (“Gift Card”), the other Borrowers from time to time party hereto, X.XXXX, INC., a Delaware corporation, as successor to JJill Holdings, Inc. and Xxxx Intermediate LLC (as replacement “Parent” of Xxxx Holdings LLC) (“Parent”), the other Guarantors from time to time party hereto, the Lenders from time to time party hereto and CIT FINANCE LLC (“CIT”), as Administrative Agent and Collateral Agent. All capitalized terms used herein and defined in Section 1 are used herein as therein defined.
W I T N E S S E T H:
WHEREAS, on or prior to the date hereof, JJill Holdings, Inc., a Delaware corporation (“Holdings”), intends to acquire Xxxx Intermediate LLC (“Xxxx Intermediate”) and its subsidiaries (the “Acquisition”) pursuant to the terms of that certain Membership Interest Purchase Agreement, dated as of March 30, 2015, by and among Holdings, Xxxx Intermediate, the members of Xxxx Intermediate party thereto and JJ Holding Company Limited (as the same may be amended, restated, amended and restated, modified and/or supplemented from time to time in accordance with the terms hereof and thereof, and together with all exhibits, schedules and other disclosure letters thereto, collectively, the “Purchase Agreement”), pursuant to which (i) certain equity holders will receive equity interests in JJIP, LLC, and contribute such equity interests to JJill Topco Holdings, L.P. (“Topco”), in exchange for certain equity interests in Topco, (ii) Xxxx Intermediate will pay off interests under the Commodities Purchase Agreement (as defined in the Purchase Agreement as in effect on the Effective Date) and redeem certain of its other outstanding equity interests, (iii) certain affiliates of the Sponsor and certain other Persons will make direct or indirect contributions of cash to Topco, the proceeds of which will be further used to capitalize Holdings, and (iv) Holdings will purchase all of the remaining outstanding equity interests of Xxxx Intermediate from its members, all for an aggregate purchase price equal to the Purchase Price (as such term is defined in the Purchase Agreement as in effect on the Effective Date) (collectively, the “Acquisition Consideration”);
WHEREAS, in order to finance, in part, the Acquisition described in the first recital to this Agreement, to pay certain fees and expenses in connection with the Transaction, and to provide for the general corporate purposes and working capital of the Company and its Subsidiaries, Parent and the Borrowers have requested that the Joint Lead Arrangers arrange, and the Lenders provide, a senior secured asset-based revolving credit facility in the form of this Agreement (the “ABL Facility”); and
WHEREAS, subject to and upon the terms and conditions set forth herein, the Joint Lead Arrangers have arranged, and the Lenders are willing to make available to the Borrowers, the ABL Facility.
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Definitions and Accounting Terms.
1.01 Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“ABL Facility” shall have the meaning provided in the Recitals to this Agreement.
“ABL Facility Priority Collateral” shall have the meaning provided in the Intercreditor Agreement.
“ABL Secured Cash Management Agreement” shall mean any Cash Management Agreement that is entered into by and between any Credit Party and any Cash Management Bank designated in writing by the Company (with the consent of all parties to the respective such Cash
Management Agreement) to the Administrative Agent as an “ABL Secured Cash Management Agreement” for purposes of this Agreement and the other Credit Documents on or prior to the date of entering into such agreement (or in the case of any Cash Management Agreement existing on the Effective Date, within 30 days after the Effective Date); provided, that (a) a Cash Management Agreement may not be so designated, and will not constitute an ABL Secured Cash Management Agreement, if it is secured by any Term Loan Priority Collateral on a basis prior to the Obligations pursuant to this Agreement (whether secured on a pari passu basis with the Term Loan Obligations or otherwise) and (b) such Cash Management Agreement (and related obligations) shall be permitted in accordance with the terms of this Agreement.
“ABL Secured Hedging Agreement” shall mean each Interest Rate Protection Agreement and/or Other Hedging Agreement entered into by one or more Credit Parties (which may be guaranteed by any other Credit Parties) with any Lender Counterparty designated in writing by the Company (with the consent of all parties to the respective such Interest Rate Protection Agreement and/or Other Hedging Agreement) to the Administrative Agent as an “ABL Secured Hedging Agreement” for purposes of this Agreement and the other Credit Documents within 30 days of entering into such agreement (or in the case of any Interest Rate Protection Agreement existing on the Effective Date, within 30 days after the Effective Date); provided, that (a) an Interest Rate Protection Agreement and/or Other Hedging Agreement may not be so designated, and will not constitute an ABL Secured Hedging Agreement, if it is secured by any Term Loan Priority Collateral on a basis prior to the Obligations pursuant to this Agreement (whether secured on a pari passu basis with the Term Loan Obligations or otherwise) and (b) such Interest Rate Protection Agreement and/or Other Hedging Agreement (and related obligations) shall be permitted in accordance with the terms of this Agreement.
“Account” shall mean an “account” as such term is defined in Article 9 of the UCC, and any and all supporting obligations in respect thereof.
“Account Debtor” shall mean each Person who is obligated on an Account.
“Acquired Entity or Business” shall mean either (a) all or substantially all of the assets constituting a business, division or product line of any Person not already a Subsidiary of the Company, or (b) 50.1% or more of the Equity Interests of any such Person (including by way of merger or consolidation), which Person shall, as a result of the acquisition of such Equity Interests or as a result of a merger or consolidation, become a Subsidiary of the Company (or shall be merged with and into any Borrower or any Subsidiary of any Borrower).
“Acquisition” shall have the meaning provided in the Recitals to this Agreement.
“Acquisition Consideration” shall have the meaning provided in the Recitals to this Agreement.
“Additional Security Documents” shall have the meaning provided in Section 9.12(a).
“Adjusted Term SOFR” shall mean for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation, plus (b) the Term SOFR Adjustment. In no event shall Adjusted Term SOFR equal less than the Floor.
“Administrative Agent” shall mean CIT, in its capacity as Administrative Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Administrative Agent appointed pursuant to Section 12.09.
“Administrative Agent’s Account” shall have the meaning provided in Section 5.03(d).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in such form as may be supplied from time to time by the Administrative Agent.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that none of the Administrative Agent, any Lender (other than an Affiliated Person) or any of their respective Affiliates shall be considered an Affiliate of Parent or any Subsidiary thereof.
“Affiliated Person” shall have the meaning provided in Section 13.04(b).
“Agent Advance” shall have the meaning provided in Section 2.01(e).
“Agent Advance Period” shall have the meaning provided in Section 2.01(e).
“Agents” shall mean and include, collectively, the Administrative Agent, the Collateral Agent and the Co-Syndication Agents; and “Agent” shall mean any of them.
“Aggregate Consideration” shall mean, with respect to any Permitted Acquisition, the sum (without duplication) of (a) the aggregate amount of all cash paid (or to be paid) by Parent or any of its Subsidiaries to the seller in connection with such Permitted Acquisition, including all contingent cash purchase price, earn-out, non-compete and other similar cash-pay obligations of Parent or any of its Subsidiaries incurred and reasonably expected to be incurred in connection therewith (as determined in good faith by Parent), (b) the aggregate principal amount of all Indebtedness of the seller in such Permitted Acquisition, or any entity acquired in connection with such Permitted Acquisition, assumed, incurred or refinanced by Parent or any of its Subsidiaries and/or issued by Parent and its Subsidiaries to the seller as consideration for such Permitted Acquisition (including, as applicable, Permitted Acquired Debt), (c) the aggregate liquidation preference of all Preferred Equity issued (or to be issued) by Parent or any of its Subsidiaries to the seller as consideration in connection with such proposed Permitted Acquisition and (d) the Fair Market Value (as determined in good faith by the senior management of Parent) of all other consideration paid (or to be paid) by Parent or its Subsidiaries in connection with such Permitted Acquisition, including, if applicable, Parent Common Stock or Qualified Preferred Stock of Parent; provided that any future payment that is subject to a contingency shall be considered Aggregate Consideration only to the extent of the reserve, if any, required under GAAP at the time of such sale to be established in respect thereof by Parent, the Borrowers or any of its Subsidiaries.
“Aggregate Exposure” shall mean, at any time, the sum of (a) the aggregate principal amount of all Revolving Loans, Agent Advances and Swingline Loans then outstanding and (b) the aggregate amount of all Letter of Credit Outstandings at such time.
“Agreement” shall mean this ABL Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.
“Annual Financial Statements” shall mean the audited consolidated balance sheet of Parent and its Subsidiaries as of February 1, 2020 and related statements of operations, member’s equity and cash flows of Parent and its Subsidiaries for the Fiscal Year ended February 1, 2020.
“Anticipated Cure Deadline” shall have the meaning assigned to such term in Section 11.04.
“Applicable Margin” shall mean a rate per annum equal to the rate set forth below for the applicable Type of Loan opposite the applicable Historical Excess Availability:
|
|
|
Revolving Loans and |
|
|
Revolving Loans |
Swingline Loans |
|
|
Maintained as |
Maintained as |
Level |
Historical Excess Availability |
Term SOFR Loans |
Base Rate Loans |
|
|
|
|
I |
Greater than 50% of Availability
|
1.50% |
0.50% |
II |
Less than or equal to 50% of Availability
|
1.75%
|
0.75% |
Each change in the Applicable Margin resulting from a change in Historical Excess Availability shall be effective with respect to all Loans and Letters of Credit outstanding on and after the first Business Day of the calendar month immediately following the date of delivery to the Administrative Agent of the Borrowing Base Certificate required by Section 9.01(f) with respect to a fiscal period that is the final month in a Fiscal Quarter indicating such change until the last Business Day of the calendar month immediately preceding the next date of delivery of such Borrowing Base Certificate with respect to a fiscal period that is the final month of a Fiscal Quarter indicating another such change. Notwithstanding the foregoing, Historical Excess Availability shall be deemed to be in Level II at any time during which the Company has failed to deliver the Borrowing Base Certificate required by Section 9.01(f).
“Asset Sale” shall mean any sale, transfer or other disposition by Parent or any of its Subsidiaries to any Person other than to a Borrower or a Wholly-Owned Subsidiary of any Borrower that is a Subsidiary of any asset (including, without limitation, any capital stock or other securities of, or Equity Interests in, another Person, other than Parent) pursuant to Section 10.02(d), but excluding any sale, transfer or disposition (for such purpose, treating any series of related sales,
transfers or dispositions as a single such transaction) that generates Net Sale Proceeds of less than $3,000,000.
“Assignment and Assumption Agreement” shall mean an Assignment And Assumption Agreement substantially in the form of Exhibit I.
“Authorized Officer” shall mean, with respect to (a) delivering the Notice of Borrowing, Notices of Conversion/Continuation, Letter of Credit Requests and similar notices, the chief executive officer, chief financial officer, treasurer, chief operating officer of the Company or any person or persons that are designated in writing by one or more persons described above to the Administrative Agent as being authorized by the Borrowers to deliver such notices and (b) any other matter in connection with this Agreement or any other Credit Document, the chief executive officer, the chief financial officer, the treasurer, the principal accounting officer, the president or other similar officer of the Company.
“Availability” at any time shall mean the lesser of (a) the Borrowing Base at such time and (b) the Total Revolving Loan Commitment at such time.
“Back-Stop Arrangements” shall mean, collectively, Letter of Credit Back-Stop Arrangements and Swingline Back-Stop Arrangements.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” shall have the meaning provided in Section 11.01(e).
“Base Rate” shall mean, at any time, the highest of (a) the Prime Rate at such time, (b) 1/2 of 1% per annum in excess of the overnight Federal Funds Effective Rate at such time, (c) the most recently available Adjusted Term SOFR (as adjusted by any Floor) plus 1%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR Rate, respectively.
“Base Rate Loan” shall mean (a) each Revolving Loan designated or deemed designated as such by the relevant Borrower at the time of the incurrence thereof or conversion thereto and (b) each Swingline Loan.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Borrower Guaranteed Obligations” shall have the meaning provided in Section 15.01.
“Borrower Materials” shall have the meaning provided in Section 13.03(c).
“Borrower Release” shall have the meaning provided in Section 13.22.
“Borrowers” shall mean, collectively, (a) the Company and each Wholly-Owned Domestic Subsidiary listed on Schedule 1.01(b) hereto, and (b) each other Wholly-Owned Domestic Subsidiary that is or becomes a party to this Agreement pursuant to Section 9.12; and “Borrower” shall mean any of them.
“Borrowing” shall mean the borrowing of one Type of Revolving Loan from all the Lenders, or from the Swingline Lender in the case of Swingline Loans, on a given date (or resulting from a conversion or conversions on such date) having in the case of Term SOFR Loans the same Interest Period; provided, that Base Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of the related Borrowing of Term SOFR Loans.
“Borrowing Base” shall mean, as of any date of calculation, the amount, calculated pursuant to the Borrowing Base Certificate most recently delivered to the Administrative Agent in accordance with Section 9.01(f) (but as modified as provided below in this definition), equal to, without duplication:
(a) the Eligible Credit Card Receivables Advance Rate Percentage of the net amount of Eligible Credit Card Receivables at such time, plus
(b) 85% of the net book value of Eligible Accounts at such time, plus
(c) the lesser of (A) 100% of the Value of Eligible Inventory at such time and (B) the Eligible Inventory NOLV Advance Rate Percentage of the Net Orderly Liquidation Value of Eligible Inventory at such time, plus
(d) the least of (A) 100% of the Value of Eligible In Transit Inventory at such time, (B) the Eligible Inventory NOLV Advance Rate Percentage of the Net Orderly Liquidation Value of Eligible In Transit Inventory at such time and (C) the In Transit Maximum Amount, minus
(e) the sum of Reserves then established by the Administrative Agent, as may be modified, amended, eliminated or established from time to time by the Administrative Agent in its Permitted Discretion.
Each of the Administrative Agent and the Collateral Agent shall have the right (but not the obligation) to review such computations and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, each of the Administrative Agent and the Collateral Agent shall have the right to correct any such errors. Without limiting the foregoing, assets which are acquired by one or more Borrowers pursuant to one or more Permitted Acquisitions (or owned by Borrowers that are acquired under one or more Permitted Acquisitions) but for which the Administrative Agent shall not have received an acceptable appraisal and/or field examination with respect to such assets, as applicable, may be included in the Borrowing Base as of the time of such Permitted Acquisition (subject to such Reserves as may be established from time to time by the Administrative Agent with respect thereto in its Permitted Discretion) until the 30th day after the time of such Permitted Acquisition so long as (x) Borrowers and the Administrative Agent reasonably believe in good faith that such assets do not otherwise fail to satisfy the criteria contained in the respective defined terms above, and (y) the aggregate amount of such assets that are included in the Borrowing Base under this paragraph does not at any time exceed $1,000,000.
“Borrowing Base Certificate” shall have the meaning provided in Section 9.01(f).
“Business Day” shall mean (a) any day which is neither a Saturday or Sunday nor a legal holiday on which banks are authorized or required to be closed in New York, New York; and (b) relative to the making, continuing, prepaying or repaying of any Term SOFR Loans, any day which is a Business Day described in clause (a) above and which is also a day on which dealings in Dollars are carried on in the London interbank market.
“Calculation Period” shall mean, with respect to any Permitted Acquisition or any other event expressly required to be calculated on a Pro Forma Basis pursuant to the terms of this Agreement, the Test Period most recently ended prior to the date of such Permitted Acquisition or other event, in each case, for which financial statements have been (or were required to have been) delivered to the Lenders pursuant to Section 8.05 or 9.01(a) or (b), as applicable.
“Capital Expenditures” shall mean, with respect to any Person, for any period, (a) all expenditures by such Person during such period which are required to be included as capital expenditures on a consolidated statement of cash flows in accordance with GAAP and (b) without duplication, the amount expended or capitalized under leases evidencing Capitalized Lease Obligations incurred by such Person in such period.
“Capitalized Lease Obligations” shall mean, with respect to any Person, all rental obligations of such Person which, under GAAP, are or will be required to be capitalized on the books of such Person, in each case taken at the amount thereof accounted for as indebtedness in accordance with such principles; provided that all leases of any Person that are or would be characterized as operating leases in accordance with GAAP immediately prior to December 31, 2018 (whether or not such operating leases were in effect on such date) shall continue to be accounted for as operating leases (and not as capital leases) for purposes of this Agreement regardless of any change in GAAP thereafter that would otherwise require such leases to be recharacterized as capital leases.
“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in accordance with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of such Person and its Subsidiaries.
“Carrier Notice” means a written notice, in form and substance reasonably satisfactory to the Administrative Agent, to a common carrier or non-vessel operating common carrier in possession of In Transit Inventory and/or other goods of any Borrower in-transit to the United States notifying such carrier of the Administrative Agent’s Lien in such In Transit Inventory and/or other goods.
“Cash Equivalents” shall mean (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Xxxxx’x, (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Xxxxx’x, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any commercial bank (A) organized under the laws of the United States or any state thereof or the District of Columbia or any member nation of the Organization for Economic Cooperation and Development and (B) having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000 in the case of U.S. banks or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or any recognized securities dealer having combined capital and surplus of not less than $250,000,000 in the case of U.S. banks or $100,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above, and (i) in the case of any Foreign Subsidiary (i) such local currencies in those countries in which such Foreign Subsidiary transacts business from time to time in the ordinary course of business and (ii) investments of comparable tenor and credit quality to those described in clauses (a) through (g) above customarily utilized in such countries in which such Foreign Subsidiary operates for short term cash management purposes.
“Cash Management Agreement” shall mean any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“Cash Management Bank” shall mean (a) any Lender or an Affiliate of a Lender that as of the Effective Date has a Cash Management Agreement that is permitted under this Agreement and (b) any Person that, at the time it enters into a Cash Management Agreement permitted under this Agreement, is a Lender or an Affiliate of a Lender, in each case in its capacity as a party to such Cash Management Agreement.
“Cash Management Obligations” shall mean any and all obligations, whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Cash Management Services.
“Cash Management Services” shall mean any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payable services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq.
“CFC” shall mean a controlled foreign corporation under Section 957 of the Code.
“Change of Control” shall mean that (a) any Person or “group” (within the meaning of Rule 13d-3 and 13d-5 under the Exchange Act) (other than the Sponsor) owns and controls, directly or indirectly, Equity Interests of Parent having the right to vote for the election of members of the board of directors of Parent representing (A) 35% or more of all such Equity Interests and (B) a percentage of such Equity Interests in excess of those held by the Sponsor, (b) Parent ceases to own and control, directly, 100% of the Equity Interests of the Company, or (c) a “change of control” or similar event shall occur as provided in the Term Loan Agreement (or any Permitted Refinancing Indebtedness in respect thereof), or any other Indebtedness or Disqualified Equity Interests with an outstanding principal amount (or aggregate liquidation preference) equal to or greater than $30,000,000.
“Chattel Paper” shall mean “chattel paper” (as such term is defined in Article 9 of the UCC).
“CIT” shall have the meaning provided in the introductory paragraph to this Agreement.
“Claims” shall have the meaning provided in the definition of “Environmental Claims”.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral” shall mean all property (whether real or personal) with respect to which any security interests have been granted (or are purported to be granted) pursuant to any Security Document, including, without limitation, all Security Agreement Collateral and all Mortgaged Properties.
“Collateral Agent” shall mean CIT, in its capacity as Collateral Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Collateral Agent appointed pursuant to Section 12.09.
“Collection Account” shall mean each account established at a Collection Bank subject to a Control Agreement into which funds shall be transferred as provided in Section 5.03(b).
“Collection Banks” shall have the meaning provided in Section 5.03(b).
“Commingled Inventory” shall mean Inventory of any Borrower that is commingled (whether pursuant to a consignment, a toll manufacturing agreement or otherwise) with Inventory of another Person (other than another Borrower) at a location owned or leased by a Borrower to the extent that such Inventory of such Borrower is not readily identifiable.
“Commitment Commission” shall have the meaning provided in Section 4.01(a).
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall have the meaning provided in Section 13.03(b).
“Company” shall have the meaning provided in the introductory paragraph to this Agreement.
“Company Material Adverse Effect” shall mean any change, circumstance, development, effect or occurrence that, individually or in the aggregate, (a) has or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company Group, taken as a whole; provided, however, that the term “Company Material Adverse Effect” will not include any change, circumstance, development, effect or occurrence to the extent caused by (i) changes or proposed changes in Laws or interpretations thereof or decisions by courts or any Governmental Entity first effected after the Effective Date, (ii) changes or proposed changes in GAAP first effected after the Effective Date, (iii) actions or omissions of any Company Group Member taken with the explicit written consent of Buyer in contemplation of the Contemplated Transactions, including the impact thereof on relationships, contractual or otherwise, with, or actual or potential loss or impairment of, customers, suppliers, distributors, partners, financing sources, officers, employees and/or consultants on revenue, profitability or cash flows, or actions by Buyer and its Affiliates, (iv) general conditions affecting the economy as a whole, including changes in the credit, debt, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security or market index or any disruption of such markets), in each case, in the United States
or anywhere else in the world, (v) events or conditions generally affecting the industries in which any Company Group Member operates, (vi) global, national or regional political conditions, including national or international hostilities, acts of terror or acts of war, sabotage or terrorism or military actions or any escalation or worsening of any hostilities, acts of war, sabotage or terrorism or military actions, (vii) pandemics, earthquakes, hurricanes, tornados or other natural disasters, (viii) other than for purposes of Section 3.5 and Section 3.16(b)(x) of the Purchase Agreement (and, to the extent related thereto, the conditions set forth in Section 7.3(a) of the Purchase Agreement) the announcement or pendency of the Purchase Agreement or the Contemplated Transactions to the extent related to the identity of Buyer, (ix) any matter set forth on Schedule 1.1(c) to the Purchase Agreement, (x) the failure by any Company Group Member to take any action that is prohibited by any Transaction Document and for which the written consent of Buyer was sought but denied, (xi) any change or prospective change in the credit ratings of any Company Group Member, or (xii) any failure to meet any projections, forecasts, guidance, estimates, milestones, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position (provided, that (A) the matters described in clauses (i), (ii), (iv), (v), (vi) and (vii) shall be included in the term “Company Material Adverse Effect” to the extent any such matter has a disproportionate and adverse impact on the business, assets, condition (financial or otherwise) or results of operations of the Company Group, taken as a whole, relative to other participants in the same business as the Company Group, and (B) clauses (xi) and (xii) will not prevent a determination that any change or effect underlying any such change or failure, as applicable, has resulted in a Company Material Adverse Effect, to the extent such change or effect is not otherwise excluded from this definition of Company Material Adverse Effect), or (b) that has or would reasonably be expected to prevent the Members or the Company from performing their respective obligations under the Purchase Agreement or materially delay the ability of the Members or the Company Group to consummate the Contemplated Transactions.
For purposes of the foregoing definition of Company Material Adverse Effect, capitalized terms used therein (other than “Purchase Agreement” and “Company Material Adverse Effect”) shall have the meanings assigned to such terms in the Purchase Agreement as in effect on the Effective Date.
“Compliance Certificate” shall mean a certificate of an Authorized Officer of the Company substantially in the form of Exhibit H.
“Concentration Account” shall have the meaning provided in Section 5.03(c).
“Consolidated Current Assets” shall mean, at any time, the consolidated current assets of the Parent and its Subsidiaries at such time (other than current deferred tax assets).
“Consolidated EBITDA” shall mean, as of any date for the applicable period ending on such date with respect to the Company and its Subsidiaries on a consolidated basis, and without duplication:
(a) Consolidated Net Income; plus
(b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted (and not added back) (or, in the case of amounts pursuant to clause (i) below, not already included in Consolidated Net Income), without duplication,
(i) Consolidated Interest Expense (and to the extent not included in interest expense, costs of surety bonds in connection with financing activities) for such period,
(ii) provision for Taxes based on income, profits or capital of the Company and its Subsidiaries (including Tax Distributions), including federal, state, franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such period including (A) penalties and interest related to such taxes or arising from any tax examinations and (B) in respect of repatriated funds,
(iii) depreciation and amortization expense and impairment charges (including amortization of intangible assets (including goodwill), deferred financing fees or costs), amortization of unrecognized prior service costs and actuarial gains and losses related to pensions and other post-employment benefits),
(iv) net unusual, extraordinary or nonrecurring charges, expenses or losses (including accruals and payments for amounts payable under executive employment agreements, severance costs, relocation costs, strategic review costs, store/office closure costs, legal settlement costs, retention or completion bonuses and losses realized on disposition of property outside of the ordinary course of business, and losses relating to activities constituting a business that is being terminated or discontinued); provided, that the aggregate amount added to Consolidated EBITDA pursuant to this clause (iv), together with the aggregate amounts added back to Consolidated EBITDA pursuant to clauses (vi), (vii) and (xvii), shall not exceed 30.0% of Consolidated EBITDA (calculated prior to giving effect to the addbacks made pursuant to this clause (iv) and clauses (vi), (vii) and (xvii)),
(v) other non-cash charges, expenses or losses (excluding any such non-cash charge, expense or loss to the extent that it represents an accrual of or reserve for cash expenses in any future period, an amortization of a prepaid cash expense that was paid in a prior period, or write-off or write-down or reserves with respect to Consolidated Current Assets) including (A) any non-cash increase in expenses resulting from the revaluation of Inventory (including any impact of changes to Inventory valuation policy methods including changes in capitalization and variances), (B) losses recognized in respect of post-retirement benefits as a result of the application of FASB ASC 715, (C) losses on minority interests owned by any Person, (D) all losses from Investments recorded using the equity method, (E) the non-cash impact of accounting changes or restatements, (F) non-cash fair value adjustments in Investments and (G) the non-cash portion of rent expense,
(vi) restructuring charges (including any unusual, extraordinary or nonrecurring operating expenses directly attributable to the implementation of any cost savings initiatives), accruals or reserves and business optimization expense (including any restructuring costs and integration costs incurred in connection with Permitted Acquisitions after the Sixth Amendment Effective Date), costs associated with strategic reviews, project start-up costs, transition costs, costs related to the opening, closure and/or consolidation of offices, facilities and stores (including
the termination or discontinuance of activities constituting a business) (and proposals in connection therewith, whether or not successful), retention charges, contract termination costs, recruiting and signing bonuses and expenses, above target management incentives, future lease commitments, systems establishment, replacement and improvement costs, conversion costs and excess pension charges and consulting fees and Pre-Opening Expenses; provided, that the aggregate amount added to Consolidated EBITDA pursuant to this clause (vi), together with the aggregate amounts added back to Consolidated EBITDA pursuant to clauses (iv), (vii) and (xvii), shall not exceed 30.0% of Consolidated EBITDA (calculated prior to giving effect to the addbacks made pursuant to this clause (vi) and clauses (iv), (vii) and (xvii)),
(vii) the amount of net cost savings, operating expense reductions, other operating improvements and acquisition synergies projected by the Company in good faith to be realized (calculated on a Pro Forma Basis as though such items had been realized on the first day of such period) as a result of actions taken or to be taken in connection with the Transaction (as defined in the Term Loan Agreement), any acquisition or disposition by the Company or any Subsidiary (including the termination or discontinuance of activities constituting a business, any New Project, the termination of senior management and other headcount reductions, the closure of stores/offices domestically and internationally and product sample reductions) or any operational change taken or committed to be taken during such period, net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions; provided that (A) a duly completed certificate signed by an Authorized Officer of the Company shall be delivered to the Administrative Agent, certifying that (x) such cost savings, operating expense reductions, other operating improvements and synergies are a result of the actions specified, reasonably anticipated to be realized within the timeframes set forth in clauses (I) and (II) below, reasonably identifiable (in the good faith determination of the Company) and factually supportable as determined in good faith by the Company, and (y) such cost savings, operating expense reductions, other operating improvements and synergies are to be realized within (I) in the case of any such cost savings, operating expense reductions, other operating improvements and synergies in connection with the Transaction (as defined in the Term Loan Agreement), 18 months after the Sixth Amendment Effective Date and (II) in all other cases, within 18 months after the consummation of the acquisition, disposition or operational change which is expected to result in such cost savings, expense reductions, operating improvements or synergies, (B) no cost savings, operating expense reductions, operating improvements and synergies shall be added pursuant to this clause (vii) to the extent duplicative of any expenses or charges otherwise added to Consolidated Net Income, whether through a pro forma adjustment or otherwise, for such period and (C) projected amounts (that are not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (vii) to the extent occurring more than eight (8) full Fiscal Quarters after the specified action taken in order to realize such projected cost savings, operating expense reductions, operating improvements and synergies; provided, that the aggregate amount added to Consolidated EBITDA pursuant to this clause (vii), together with the aggregate amounts added back to Consolidated EBITDA pursuant to clauses (iv), (vi) and (xvii), shall not exceed 30.0% of Consolidated EBITDA (calculated prior to giving effect to the addbacks made pursuant to this clause (vii) and clauses (iv), (vi) and (xvii)),
(viii) non-cash expenses resulting from any employee benefit or management compensation plan or the grant of stock and stock options or other Equity Interests to employees of Parent, the Company or any Subsidiary pursuant to a written plan or agreement (including
expenses arising from the grant of stock and stock options prior to the Effective Date) or the treatment of such options or other Equity Interests under variable plan accounting,
(ix) Transaction Costs not to exceed $5,000,000,
(x) the amount of expenses relating to payments made to option holders or related equity holders of Parent or any parent holding company in connection with, or as a result of, any distribution being made to shareholders of such Person or its direct or indirect parent companies, which payments are being made to compensate such option holders as though they were shareholders at the time of, and entitled to share in, such distribution, in each case to the extent permitted by this Agreement,
(xi) any costs or expenses incurred pursuant to any management equity plan or share or unit option plan or any other management or employee benefit plan or agreement or share or unit subscription or shareholder or similar agreement, to the extent such costs or expenses are funded with cash proceeds contributed to the capital of the Company or the Net Cash Proceeds of any issuance of Equity Interests (other than Disqualified Equity Interests) of Parent or the Company (or any parent holding company thereof),
(xii) transaction fees and expenses incurred, or amortization thereof, in connection with, to the extent permitted hereunder, any Investment, any debt issuance, any issuance of Qualified Equity Interests, any acquisition, any disposition, any casualty event, or any amendments or waivers of the Credit Documents and Permitted Refinancings in connection therewith, in each case, whether or not consummated; provided, that the aggregate amount with respect to any unconsummated acquisition (including any acquisition that would be a Permitted Acquisition) added to Consolidated EBITDA pursuant to this clause (xii) shall not exceed $2,500,000 in the aggregate,
(xiii) proceeds from business interruption insurance (to the extent not reflected as revenue or income in Consolidated Net Income and to the extent that the related loss was deducted in the determination of Consolidated Net Income),
(xiv) charges, losses, lost profits, expenses or write-offs to the extent indemnified or insured by a third party, including expenses covered by indemnification provisions in connection with the Transaction (as defined in the Term Loan Agreement), a Permitted Acquisition or any other acquisition permitted by the Credit Documents or any transaction permitted by the Credit Documents, in each case, to the extent that coverage has not been denied and so long as such amounts are actually reimbursed to the Company or any Subsidiary in cash within one year after the related amount is first added to Consolidated EBITDA pursuant to this clause (xiv) (and if not so reimbursed within 180 days, such amount shall be deducted from Consolidated EBITDA during the next measurement period),
(xv) cash receipts (or any netting arrangements resulting in reduced cash expenses) not included in Consolidated EBITDA in any period to the extent non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (c) below for any previous period and not added back,
(xvi) [reserved],
(xvii) the amount of any loss attributable to a New Project (including costs associated with capital projects directly related to software and hardware systems that, in accordance with GAAP, are not required to be reflected as capitalized costs on the consolidated balance sheet of the Company and its Subsidiaries (excluding, for the avoidance of doubt, Capitalized Software Expenditures)), until the date that is 12 months after the date of completing the construction, acquisition, assembling or creation of such New Project, as the case may be; provided that (A) such losses are reasonably identifiable and factually supportable and certified by an Authorized Officer of the Company and (B) losses attributable to such New Project after 12 months from the date of completing such construction, acquisition, assembling or creation, as the case may be, shall not be included in this clause (xvii); provided, that the aggregate amount added to Consolidated EBITDA pursuant to this clause (xvii), together with the aggregate amounts added back to Consolidated EBITDA pursuant to clauses (iv), (vi) and (vii), shall not exceed 30.0% of Consolidated EBITDA (calculated prior to giving effect to the addbacks made pursuant to this clause (xvii) and clauses (iv), (vi) and (vii)), and
(xviii) net realized losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830, minus
(c) an amount which, in the determination of Consolidated Net Income, has been included for,
(i) all non-recurring, extraordinary or unusual gains and non-cash income during such period (including income related to any purchase of the Term Loans by any Affiliated Person),
(ii) other non-cash income or gains including (A) any non-cash increase in income resulting from the revaluation of Inventory (including any impact of changes to Inventory valuation policy methods including changes in capitalization and variances and the non-cash portion of rent expense), (B) gains recognized in respect of postretirement benefits as a result of the application of FASB ASC 715 or FASB 106, (C) gains on minority interests owned by any Person, (D) all gains from Investments recorded using the equity method, (E) the non-cash impact of accounting changes or restatements and (F) non-cash fair value adjustments in Investments but excluding (1) accrual of revenue in the ordinary course, (2) any such items in respect of which cash was received in a prior period or will be received in a future period (and, in the case of cash that was received in a prior period, such amounts previously reduced Consolidated Net Income in a prior period (and would not have been required to be added back pursuant to preceding clause (b) of this definition)) or (3) any such items which represent the reversal in such period of any accrual of, or reserve for, anticipated cash charges in any prior period where such accrual or reserve is no longer required (and where such accrual or reserve previously reduced Consolidated Net Income in a prior period (and would not have been required to be added back pursuant to clause (b) of this definition)), all as determined on a consolidated basis,
(iii) the amount of cash received in such period in respect of any non-cash income or gain in a prior period (to the extent such non-cash income or gain previously increased Consolidated Net Income in a prior period (and would not have been required to be deducted pursuant to preceding clause (c)(ii) of this definition)),
(iv) any gains realized upon the disposition of property outside of the ordinary course of business or gains relating to activities constituting a business that is being terminated or discontinued; and
(v) all cash payments made during the respective period in respect of any amounts that previously were added under preceding clause (b) on basis that they were non-cash items, minus
(d) the amount of Dividends paid (i) to Parent or any parent entity of Parent for operating expenses or (ii) as fees to and indemnities to directors of Parent or any parent entity of Parent or of the Company or its Subsidiaries, to the extent (A) such amount, if paid directly by the Company, would have reduced Consolidated Net Income (assuming such amount was paid by the Company) and would not otherwise have been required to be added back pursuant to preceding clause (b) of this definition or (B) such Dividend payment is paid by the Company in respect of an expense or other item that has resulted in, or will result in, a reduction of Consolidated EBITDA, as calculated pursuant to this definition).
Notwithstanding anything to the contrary, to the extent that such amounts were included in the determination of Consolidated Net Income, any calculation of Consolidated EBITDA shall exclude for any period, any income (loss) for such period attributable to the early extinguishment of (x) Indebtedness or (y) obligations under any Interest Rate Protection Agreement.
“Consolidated Indebtedness” shall mean the sum of (without duplication) all Indebtedness (other than letters of credit or bank guarantees, to the extent undrawn) consisting of Capitalized Lease Obligations, Indebtedness for borrowed money and Disqualified Equity Interests of Parent, the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” shall mean, for any period, the total interest expense of the Company and its Subsidiaries on a consolidated basis deducted in the determination of Consolidated Net Income of such Person for such period (and not added back), including, as applicable (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments, (d) the interest component of Capitalized Lease Obligations, (e) net payments, if any, made (less net amounts, if any, received) pursuant to Interest Rate Protection Agreements with respect to Indebtedness, (f) amortization or write-off of deferred financing fees, debt issuance costs, commissions, fees and expenses, including commitment, letter of credit and administrative fees and charges with respect to this Agreement and with respect to other Indebtedness permitted to be incurred hereunder and (g) any expensing of bridge, commitment and other financing fees, but excluding total interest expense associated with synthetic lease obligations) and, to the extent not reflected in such total interest expense, any losses on hedging obligations or other derivative instruments entered into for the purpose of hedging interest rate risk, net of interest income or gains on such hedging obligations, and costs of surety bonds in connection with financing activities (whether amortized or immediately expensed).
“Consolidated Net Income” shall mean, as of any date for the applicable period ending on such date, with respect to the Company and its Subsidiaries on a consolidated basis, net income, determined in accordance with GAAP, but excluding, without duplication, (a) [reserved], (b) any amounts attributable to Investments in any joint venture to the extent that such amounts have not been distributed in cash to the Company and its Subsidiaries during such applicable period, (c) (i) any net unrealized gains and losses resulting from fair value accounting required by FASB ASC 815 and (ii) any net unrealized gains and losses relating to mark-to-market of amounts denominated in foreign currencies resulting from the application of FASB ASC 830, in each case, to the extent included in Consolidated Net Income, (d) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or consolidated with the Company or any Subsidiary (except to the extent required for any calculation of Consolidated EBITDA on a Pro Forma Basis), (e) net income of any Subsidiary (other than a Credit Party) for any period to the extent that, during such period, there exists any encumbrance or restriction on the ability of such Subsidiary to pay Dividends or make any other distributions in cash on the Equity Interests of such Subsidiary held by the Company and its Subsidiaries, except to the extent of cash actually distributed during such period to the Company or to a Subsidiary of the Company that is not itself subject to any such encumbrance or restriction, (f) to the extent not already excluded or deducted as minority interest expense in accordance with GAAP, payments made in respect of minority interests of third parties in any Non-Wholly-Owned Subsidiary, non-Wholly-Owned Foreign Subsidiary or joint venture in such period, including pursuant to Dividends declared or paid on equity interests held by third parties in respect of such Non-Wholly-Owned Subsidiary, non-Wholly-Owned Foreign Subsidiary or joint venture, (g) the cumulative effect of a change in GAAP or the Company’s accounting policy, (h) any net gain, charge or loss with respect to (A) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than, at the option of the Company, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof), (B) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the option of such Person, relating to assets or properties held for sale or pending the divestiture or termination thereof) and/or (C) any facility that has been closed during such period, (i) any gains from the forgiveness of Indebtedness or other similar events and (j) any net gain or loss arising from the collection of the proceeds of any insurance policy or policies or the sale or disposition of any assets outside of the ordinary course of business. There shall be excluded from Consolidated Net Income for any period the accounting effects of adjustments to Inventory, property and equipment, software and other intangible assets and deferred revenue required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Company and the Subsidiaries), as a result of any acquisition consummated prior to the Effective Date, the Transaction (as defined in the Term Loan Agreement) and any Permitted Acquisitions (or Investments similar to those made for Permitted Acquisitions) or any Investment permitted hereunder or the amortization or write-off of any amounts thereof.
“Consolidated Total Assets” shall have the meaning provided in the Term Loan Agreement as in effect on the Sixth Amendment Effective Date or as amended in accordance with the terms hereof.
“Contingent Obligation” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided, however, that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Contribution Indebtedness” shall mean Indebtedness of the Borrowers or any Subsidiary in an aggregate principal amount not greater than the aggregate amount of cash contributions (other than the proceeds from the issuance of Disqualified Equity Interests, contributions by the Borrowers or any Subsidiary and contributions in connection with any exercise of a Cure Right) made to the capital of Parent (and contributed by Parent to the common equity of the Company) after the Sixth Amendment Effective Date (whether through the issuance or sale of Equity Interests or otherwise); provided that such Contribution Indebtedness is (a) incurred within 180 days after the making of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of an Authorized Officer of the Company delivered to the Administrative Agent on the date of incurrence thereof.
“Control Agreement” shall mean a control agreement, in form and substance reasonably satisfactory to the Collateral Agent, executed and delivered by a Borrower or one of its Subsidiaries, the Collateral Agent and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account), subject to the terms of the Intercreditor Agreement and consistent with the requirements of Section 5.03.
“Copyright Security Agreement” shall have the meaning specified in the Security Agreement.
“Co-Syndication Agents” shall mean Jefferies Finance LLC and Macquarie Capital (USA) Inc., in their capacity as Co-Syndication Agents and any successor(s) thereto.
“Credit Card Notification” shall have the meaning provided in Section 5.03(b).
“Credit Documents” shall mean, collectively, (a) this Agreement, the Intercreditor Agreement, any Intercompany Subordination Agreement, the Notes (if any), any Joinder Agreement, each Security Document and the Fee Letter and (b) all other agreements, instruments, documents and certificates executed and delivered to, or in favor of, the Administrative Agent, the Collateral Agent or any Lender in connection with the foregoing.
“Credit Event” shall mean the making of any Loan or the issuance, amendment, extension or renewal of any Letter of Credit (other than any amendment, extension or renewal that does not increase the maximum Stated Amount of such Letter of Credit).
“Credit Parties” shall mean, collectively, the Borrowers and the Guarantors; and “Credit Party” shall mean any of them.
“Cure Amount” shall have the meaning provided in Section 11.04.
“Cure Right” shall have the meaning provided in Section 11.04.
“Customer Credit Liability Reserve” shall mean at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards sold by any Borrower entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory, and (b) outstanding merchandise credits issued by and customer deposits received by any Borrower.
“Customs Brokers” means the persons listed on a schedule provided by the Company to the Administrative Agent on or prior to the Sixth Amendment Effective Date or such other person or persons as may be selected by the Company after the Sixth Amendment Effective Date and after written notice by the Company to the Administrative Agent who are reasonably acceptable to the Administrative Agent to handle the receipt of Inventory within the United States or to clear Inventory through the Bureau of Customs and Border Protection or other domestic or foreign export control authorities or otherwise perform port of entry services to process Inventory imported by a Borrower from outside the United States (such persons sometimes being referred to herein individually as a “Customs Broker”); provided, that, as to each such person, (a) the Administrative Agent shall have received a customs broker agreement by such person in favor of the Administrative Agent (in form and substance satisfactory to Agent) duly authorized, executed and delivered by such person, (b) such agreement shall be in full force and effect and (c) such person shall be in compliance in all material respects with the terms thereof (it being understood and agreed that, from the Sixth Amendment Effective Date through and including November 5, 2023 (or such later date as the Administrative Agent may agree in its sole discretion), each such person may be considered a Customs Broker despite the Administrative Agent not having yet received a customs broker agreement by each such person).
“Default” shall mean any event, act or condition which solely with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in effect.
“Deposit Account” shall mean any deposit account (as that term is defined in the UCC).
“Designated Non-Cash Consideration” shall mean the fair market value (as determined by the Borrowers in good faith) of non-cash consideration received by the Company or any of its Subsidiaries in connection with a sale that is so designated as Designated Non-Cash Consideration pursuant to an officer’s certificate signed by an Authorized Officer, setting forth the
basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or payment of, on or with respect to, such Designated Non-Cash Consideration.
“Disbursement Account” shall mean each disbursement account maintained by each Credit Party for their respective general corporate purposes, including for the purpose of paying their trade payables and other operating expenses.
“Disqualified Equity Interests” shall mean any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests) pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and the termination of all Letters of Credit and all other Obligations that are accrued and payable and the termination of the Revolving Loan Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the then latest Final Maturity Date at the time of issuance; provided, that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Parent, the Company or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by Parent, the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.
“Disqualified Lender” shall mean (a) those competitors of Parent and its Subsidiaries and Affiliates of such competitors (other than any Affiliates that are banks, financial institutions, bona fide debt funds or investment vehicles that are engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course), in each case, that were specified in writing to the Joint Lead Arrangers on March 30, 2015, as such list may be updated by written notice to the Administrative Agent from time to time (and subject to the consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed) and (b) those certain banks, financial institutions and other entities that, in each case, were specified in writing to the Joint Lead Arrangers on March 30, 2015; provided, that to the extent the Borrowers update the list of Disqualified Lenders, the inclusion of any Person shall not retroactively apply to prior assignments or participations; provided, further, Disqualified Lender shall exclude any Person that the Company has designated as no longer being a Disqualified Lender by written notice delivered to the Administrative Agent from time to time.
“Dividend” shall mean, with respect to any Person, that such Person has paid a dividend, distribution or returned any equity capital to its stockholders, partners or members or authorized or made any other distribution, payment or delivery of property (other than common Equity Interests of such Person) or cash to its stockholders, partners or members in their capacity as such, or redeemed, retired, purchased or otherwise acquired for a consideration any shares of any class of its capital stock or any of its other Equity Interests outstanding on or after the Effective
Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests) or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for a consideration any shares of any class of the capital stock or any other Equity Interests of such Person outstanding on or after the Effective Date (or any options or warrants issued by such Person with respect to its capital stock or other Equity Interests). Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans.
“Dollars” and the sign “$” shall each mean freely transferable lawful money of the United States.
“Domestic Foreign Holding Company” shall mean any Domestic Subsidiary of the Company (i) substantially all of the assets of which consist of the stock of one or more Foreign Subsidiaries that are CFCs or Domestic Foreign Holding Companies (and, if applicable, Indebtedness of any such CFC or Domestic Foreign Holding Company), other than immaterial cash held by such Domestic Subsidiary solely for the purpose of paying administrative or maintenance expense of such Domestic Subsidiary, (ii) that conducts no material business other than that of being a holding company for such Foreign Subsidiaries, and (iii) that has no material purpose other than serving as a holding company for the ownership of such Foreign Subsidiaries.
“Domestic Subsidiary” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State or territory thereof or the District of Columbia.
“Dominion Period” shall mean any period (a) commencing on the date on which (i) a Specified Event of Default has occurred and is continuing or (ii) Excess Availability has been less than the greater of (A) $4,500,000 and (ii) 10% of Availability for five consecutive Business Days, and (b) ending on the first date thereafter on which (i) in the case of a Dominion Period commencing as a result of clause (a)(i) above, no Specified Event of Default exists or is continuing (including as a result of such Specified Event of Default having been cured or waived in accordance with the provisions of this Agreement) and (ii) in the case of a Dominion Period commencing as a result of clause (a)(ii) above, Excess Availability has been equal to or greater than the greater of (A) $4,500,000 or (B) 10% of Availability for 30 consecutive days.
“Drawing” shall have the meaning provided in Section 3.05(b).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” shall have the meaning provided in Section 13.10.
“Eligible Accounts” shall mean all Accounts of (and owed to) the Borrowers that (x) arise in the ordinary course of their business, (y) arise out of their sale of goods or rendition of services, and (z) are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below. Eligible Accounts shall not include the following:
(a) Eligible Credit Card Receivables (and Accounts which would constitute Eligible Credit Card Receivables if not excluded pursuant to clauses (a) through (h) of the definition thereof);
(b) Accounts which either are 60 days or more past due or are unpaid more than 120 days after the original invoice date;
(c) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of the total amount of all Accounts owed by that Account Debtor (and its Affiliates) are deemed ineligible hereunder;
(d) Accounts with respect to which the Account Debtor is (i) a Credit Party or an Affiliate of a Credit Party (excluding portfolio companies of the Sponsor that are not Parent, Subsidiaries of Parent, any direct or indirect holding company of Parent or any other Person whose Equity Interests are owned by any of the foregoing) or (ii) an employee or agent of a Credit Party;
(e) Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by an Account Debtor may be conditional;
(f) Accounts that are not payable in Dollars or Canadian dollars, unless (i) the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, or (ii) the Account is covered by credit insurance in form, substance, and amount, and by an insurer satisfactory to the Administrative Agent in its Permitted Discretion;
(g) Accounts with respect to which the Account Debtor is a non-Governmental Authority unless: (i) the Account Debtor either (A) maintains its chief executive office in the United States or Canada, or (B) is organized under the laws of the United States or Canada, or any state or subdivision thereof; or (ii) (A) the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative
Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent, in its Permitted Discretion;
(h) Accounts with respect to which the Account Debtor is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless (i) the Account is supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, or (ii) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent, in its Permitted Discretion;
(i) Accounts with respect to which the Account Debtor is the government of the United States or of any state, territory, municipality, or other political subdivision thereof or any department, agency, municipality or instrumentality of any of the foregoing;
(j) Accounts with respect to which the Account Debtor (i) is also a creditor or supplier of the Company or any of its Subsidiaries, (ii) has or has asserted a right of setoff or (iii) has disputed its obligation to pay all or any portion of the Account; provided, that any such Account shall be eligible (A) to the extent such amount thereof exceeds any such obligation to a creditor, claim, contract, right of setoff, or dispute or (B) such Account Debtor has entered into a written agreement reasonably satisfactory to the Administrative Agent in its Permitted Discretion to waive any claim, right of setoff, or dispute with respect to the foregoing;
(k) Accounts with respect to an Account Debtor (and its Affiliates) whose total obligations owing to the Borrowers exceed 15% of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor (and its Affiliates) in excess of such percentages; provided, further, that the amount of Eligible Accounts that are excluded because they exceed the foregoing percentages shall be determined by the Administrative Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(l) Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding, has gone out of business, or as to which any Credit Party has received notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account Debtor unless (i) such Account is supported by a letter of credit satisfactory to the Collateral Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, (ii) such Account Debtor has received debtor-in-possession financing sufficient as determined by the Collateral Agent in its Permitted Discretion to finance its ongoing business activities or (iii) a court order satisfactory to the Administrative Agent in its Permitted Discretion relating to the Insolvency Proceeding has been issued allowing payment on such Account by the Account Debtor so long as the Administrative Agent is satisfied in its Permitted
Discretion that the requisite Account Debtor has sufficient resources to pay, and will pay, such Accounts in a timely fashion;
(m) Accounts that are not subject to a valid and perfected First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors pursuant to the relevant Security Documents as provided in the Intercreditor Agreement;
(n) Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor;
(o) Accounts that represent the right to receive progress payments or other advance billings that are due prior to the completion of performance by a Credit Party of the subject contract for goods or services (other than customary maintenance contracts);
(p) Accounts with respect to which any return, rejection or repossession of any of the merchandise giving rise to such Account has occurred, but only to the extent of the value of the goods returned, rejected or repossessed;
(q) Accounts that are evidenced by Chattel Paper unless such Chattel Paper has been delivered to the Collateral Agent;
(r) any Account that has not been invoiced, has not been billed and has not been recognized as received by the applicable Account Debtor;
(s) any Account with respect to which a partial payment of such Account has been made by the respective Account Debtor; provided, that to the extent such Account consists of multiple separate line-items, only the line items that have been partially paid shall be excluded;
(t) Accounts that are not payable to a Borrower;
(u) Accounts to the extent representing service charges or late fees up to the amount of such service charges or late fees;
(v) Accounts to the extent representing unapplied cash balances up to the amount of such unapplied cash balances; or
(w) subject to the final paragraph in the definition of “Borrowing Base”, Accounts owned by a target acquired in connection with a Permitted Acquisition, or Accounts owned by a Person that is joined to this Agreement as a Borrower pursuant to the provisions of this Agreement, until the completion of a field examination with respect to such Accounts satisfactory to Administrative Agent in its Permitted Discretion.
“Eligible Credit Card Receivables” shall mean Accounts (net of any applicable fees) due to any Credit Party from Visa, MasterCard, American Express Company, Discover and other major credit card or debit card issuer and processors which may be approved by the Administrative Agent, as arise in the ordinary course of business and are not excluded as ineligible
by one or more of the criteria set forth below (without duplication of any Reserves established in accordance with Section 2.01(d)). Without limiting the foregoing, none of the following shall be deemed to be Eligible Credit Card Receivables:
(a) Accounts due from credit card or debit card processors that have been outstanding for more than five Business Days from the date of sale or for such longer period as may be approved by the Administrative Agent in its reasonable discretion;
(b) Accounts due from credit card or debit card processors with respect to which a Credit Party does not have good, valid and marketable title, free and clear of any Lien (other than Liens granted to the Collateral Agent for its own benefit and the benefit of the other Secured Creditors and other Liens permitted pursuant to Sections 10.01(a), (b), (d), (e), (h), (j), (k), (n), (p), (q), (r), (t) and (w));
(c) Accounts due from credit card or debit card processors that are not subject to a First Priority security interest in favor of the Collateral Agent for its own benefit and the benefit of the Secured Creditors having priority by applicable law (it being the intent that chargebacks in the ordinary course by the credit card processors shall not be deemed violative of this clause (c));
(d) Accounts due from credit card or debit card processors which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback and except to the extent such claim, counterclaim, offset or chargeback is limited by an agreement that is reasonably satisfactory to the Administrative Agent);
(e) except as otherwise approved by the Administrative Agent (such approval not to be unreasonably withheld), Accounts due from credit card or debit card processors as to which the credit card or debit card processor has the right under certain circumstances to require any Borrower to repurchase the Accounts from such credit card processor;
(f) except as otherwise approved by the Administrative Agent (such approval not to be unreasonably withheld), Accounts due from any Person on account of any private label credit card or debit card receivables other than such Accounts under programs between any Borrower and a third party reasonably acceptable to the Administrative Agent where the third party retains the consumer credit exposure;
(g) Accounts due from credit card or debit card processors (other than Visa, MasterCard, American Express Company and Discover) which the Administrative Agent determines in its Permitted Discretion to be uncertain of collection;
(h) Accounts due from credit card or debit card processors with respect to which a Credit Card Notification has not been executed and delivered (and a copy thereof provided to the Administrative Agent); provided, that any such Accounts in existence on the Effective Date shall not be excluded so long as Credit Card Notifications are delivered with respect thereto in accordance with (and within the time period required by) Section 5.03(b); and
(i) subject to the final paragraph in the definition of “Borrowing Base”, Accounts due from credit card or debit card processors and owned by a target acquired in connection with a Permitted Acquisition, or Accounts due from credit card or debit card processors and owned by a Person that is joined to this Agreement as a Borrower pursuant to the provisions of this Agreement, until the completion of a field examination with respect to such Accounts satisfactory to Administrative Agent in its Permitted Discretion.
“Eligible Credit Card Receivables Advance Rate Percentage” shall mean a percentage equal to (a) during the months of January, February, July, August, September and December of each calendar year, 95%, and (b) during all other months during each calendar year, 90%.
“Eligible In Transit Inventory” shall mean In Transit Inventory owned by the Borrowers which would qualify as “Eligible Inventory” but for clauses (d), (f), (g) and (o) in the definition of “Eligible Inventory”, and:
(a) is fully insured by marine cargo or other similar insurance, in such amounts, with such insurance companies and subject to such deductibles as are customary in the Borrowers’ industry and in respect of which the Administrative Agent has been named as an additional insured and/or loss payee (as applicable) and has received a copy of the certificate of marine cargo or similar insurance in connection therewith; provided, however, that, from the Sixth Amendment Effective Date through and including May 23, 2023 (or such later date as the Administrative Agent may agree in its sole discretion), In Transit Inventory shall not be excluded pursuant to this clause (a) so long as such In Transit Inventory otherwise constitutes Eligible In Transit Inventory hereunder;
(b) for which title has passed to a Borrower;
(c) has been in transit for a period not exceeding 60 days (whether by vessel, air or land) from any location to a location within the United States owned or leased by one or more Credit Parties;
(d) unless Administrative Agent otherwise agrees in writing in its sole discretion, either:
(i) is the subject of a negotiable bill of lading governed by the laws of a state within the United States (x) that is consigned to the Administrative Agent or one of its Customs Brokers (either directly or by means of endorsements), (y) that was issued by the carrier (including a non-vessel operating common carrier) in possession of the Inventory that is subject to such bill of lading, and (z) that either is in the possession of the Administrative Agent or a Customs Broker (in each case in the continental United States),
(ii) is the subject of a negotiable forwarder’s cargo receipt governed by the laws of a state within the United States and is not the subject of a bill of lading (other than a negotiable bill of lading consigned to, and in the possession of, a consolidator or the Administrative Agent, or their respective agents) and such negotiable cargo receipt on its face indicates the name of the Customs Broker as a carrier or multimodal transport operator and has been signed or otherwise authenticated by it in such capacity or as a named agent for or on behalf of the carrier
or multimodal transport operator, in any case respecting such Inventory (x) consigned to the Administrative Agent or one of its Customs Brokers that is handling the importing, shipping and delivery of such Inventory (either directly or by means of endorsements), (y) that was issued by a consolidator respecting the subject Inventory, and (z) that is in the possession of the Administrative Agent or a Customs Broker (in each case in the continental United States), or
(iii) is the subject of a non-negotiable bill of lading, non-negotiable sea waybill or other similar shipping document governed by the laws of a state within the United States (each a “Non-Negotiable Document”) that (A) is consigned to a Borrower, (B) is issued by the carrier (including a non-vessel operating common carrier) in possession of the inventory that is subject to such non-negotiable document and, if requested by the Administrative Agent following the occurrence and during the continuance of an Event of Default, to which a Carrier Notice has been delivered and (C) conspicuously states on its face that the Inventory that is subject to such non-negotiable document is subject to the Lien of the Administrative Agent and names the Administrative Agent as an additional notice party in respect of such Inventory;
provided, however, that, from the Sixth Amendment Effective Date through and including November 5, 2023 (or such later date as the Administrative Agent may agree in its sole discretion), In Transit Inventory shall not be excluded pursuant to this clause (d) so long as such In Transit Inventory otherwise constitutes Eligible In Transit Inventory hereunder;
(e) with respect to Inventory located in the United States that was Eligible In Transit Inventory immediately prior to it having entered the United States, is in transit via rail or truck within the United States with a carrier hired by the Borrowers to a location owned or leased by one or more of the Credit Parties and for which (i) Non-Negotiable Documents have been issued, (ii) upon request of the Administrative Agent in its Permitted Discretion, copies of all such Non-Negotiable Documents shall have been provided to the Administrative Agent; provided, that, the Administrative Agent shall not request such copies more than two (2) times in any Fiscal Year unless (x) at any time during such Fiscal Year, Excess Availability is less than $10,000,000 or (y) an Event of Default has occurred and is continuing, (iii) no negotiable bills of lading or other negotiable documents exist with respect to such Inventory and (iv) the Borrowers have provided to the Administrative Agent any other documentation relating to such Inventory as the Administrative Agent may reasonably require to confirm that such Inventory is otherwise Eligible In Transit Inventory;
(f) is in the possession of a common carrier (including on behalf of any non-vessel operating common carrier) that has issued the bill of lading or other document of title with respect thereto or the Customs Broker handling the importing, shipping and delivery of such Inventory;
(g) the Administrative Agent determines in its reasonable discretion that such Inventory is not subject to (i) any Person’s right of reclamation, repudiation, stoppage in transit or diversion or (ii) any other right or claim of any other Person which is (or is capable of being) senior to, or pari passu with, the Lien of the Administrative Agent or the Administrative Agent determines in its reasonable discretion that any Person’s right or claim impairs, or interferes with, directly or indirectly, the ability of the Administrative Agent to realize on, or reduces the amount that the Administrative Agent may realize from the sale or other disposition of such Inventory;
(h) within 30 days after a request therefor from the Administrative Agent, the Company has provided (i) a certificate to the Administrative Agent that certifies that, to the best knowledge of the Company, such Inventory meets all of Borrowers’ representations and warranties contained in the Credit Documents concerning Eligible In Transit Inventory, that it knows of no reason why such Inventory would not be accepted by such Borrower when it arrives in the continental United States and that the shipment as evidenced by the documents conforms to the related order documents, and (ii) upon the Administrative Agent’s request, a copy of the invoice, packing slip and manifest with respect thereto; and
(i) either (i) the Administrative Agent shall have received collateral access agreements, in form and substance satisfactory to the Administrative Agent, duly authorized, executed and delivered by each freight forwarder, Customs Broker or other Person handling the importing, shipping and delivery of such Inventory or (ii) the Administrative Agent shall have established a reserve in such amount as determined by the Administrative Agent in its Permitted Discretion in respect of the customs charges, freight and shipping charges due to any such freight forwarder, Customs Broker or other Person handling the importing, shipping and delivery of such Inventory (it being understood and agreed that, from the Sixth Amendment Effective Date through and including November 5, 2023 (or such later date as the Administrative Agent may agree in its sole discretion), In Transit Inventory shall not be excluded pursuant to this clause (i) and no reserve shall be established so long as such In Transit Inventory otherwise constitutes Eligible In Transit Inventory hereunder).
“Eligible Inventory” shall mean all of the Inventory owned by the Borrowers (without duplication as to Eligible In Transit Inventory) and properly reflected as “Eligible Inventory” in the most recent Borrowing Base Certificate delivered by the Company to the Administrative Agent, except any Inventory as to which any of the exclusionary criteria set forth below applies. Eligible Inventory shall not include any Inventory of a Borrower that:
(a) is not of a type held for sale by the applicable Borrower in the ordinary course of business as is being conducted by each such Borrower;
(b) is not subject to a First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors as provided in the Intercreditor Agreement; provided, that no Inventory subject to a Lien shall be Eligible Inventory to the extent such Lien (i) is not a Permitted Lien or (ii) primes the perfected lien granted to the Collateral Agent, as determined by the Administrative Agent in its Permitted Discretion, in each case only to the extent of the value of such Lien;
(c) is not owned by a Borrower free and clear of the rights of any other Person (including the rights of a purchaser that has made progress payments and the rights of a surety that has issued a bond to assure a Xxxxxxxx’s performance with respect to that Inventory), except the First Priority Lien in favor of the Collateral Agent on behalf of the Secured Creditors and Permitted Liens (which shall be subject to the provisions of clause (b) above);
(d) (i) is not located on premises owned, leased or rented by a Borrower (excluding in-transit Inventory located in the United States, which is subject to the
following clause (f), and In Transit Inventory, which shall be subject to the definition of “Eligible In Transit Inventory”) or stored with a bailee or warehouseman or (ii) is located on premises leased or rented by a Borrower (except for Inventory located at a retail store leased or rented by a Borrower) or stored with a bailee or warehouseman, unless, in the case of this sub-clause (ii), (A) in the case of leased or rented premises, either (1) if requested by the Administrative Agent, a reasonably satisfactory landlord waiver has been delivered to the Administrative Agent or (2) Rent Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto, (B) if stored with a bailee at a leased location, either (1) a reasonably satisfactory landlord waiver or collateral access agreement has been delivered to the Administrative Agent, or (2) Rent Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto, and/or (C) if stored with a bailee or warehouseman, either (1) a reasonably satisfactory and acknowledged bailee letter has been received by the Administrative Agent or (2) Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto (provided, that any Reserves established under this clause (d) may be reduced or removed by the Administrative Agent in its Permitted Discretion (including if it subsequently receives a landlord waiver, collateral access agreement or bailee letter, as the case may be, as set forth above));
(e) is placed on consignment unless Reserves reasonably satisfactory to the Administrative Agent in its Permitted Discretion have been established with respect thereto;
(f) is in transit, except inventory that (i) is in transit between domestic (U.S.) locations owned or leased by one or more Credit Parties or (ii) is in transit within the United States and is under the control of one or more Credit Parties;
(g) is covered by a negotiable document of title, unless, at the Administrative Agent’s request, such document has been delivered to the Collateral Agent or an agent thereof and such Credit Party takes such other actions as the Administrative Agent requests in order to create a perfected First Priority security interest in favor of the Collateral Agent in such Inventory with all necessary endorsements, free and clear of all Liens except Permitted Liens, and the amount of any shipping fees, costs and expenses shall be reflected in Reserves;
(h) consists of goods that are unsaleable, damaged or obsolete (to the extent not included in determining Net Orderly Liquidation Value) or constitute spare parts, samples or trim (not intended for sale), packaging and shipping materials, promotional products (not intended for sale), or supplies used or consumed in a Credit Party business;
(i) consists of any gross profit mark-up in connection with the sale and distribution thereof to any division of any Credit Party or Subsidiary or Affiliate of such Credit Party, to the extent of such gross profit mark-up;
(j) is manufactured, assembled or otherwise produced in violation of the Fair Labor Standards Act and subject to the “hot goods” provisions contained in Title 25 U.S.C. 215(a)(i);
(k) is not covered by casualty insurance required by the terms of this Agreement;
(l) breaches in any material respect any of the representations or warranties pertaining to such Inventory set forth in any Credit Document;
(m) does not conform in all material respects to all standards imposed by any governmental agency, division or department thereof which has regulatory authority over such goods or the use or sale thereof;
(n) is Commingled Inventory;
(o) is located outside the United States (other than In Transit Inventory, which shall be subject to the definition of “Eligible In Transit Inventory”);
(p) is subject to a license agreement or other arrangement with a third party which, in the Administrative Agent’s Permitted Discretion, restricts the ability of the Administrative Agent or the Collateral Agent to exercise its rights under the Credit Documents with respect to such Inventory unless (i) such third party has entered into an agreement in form and substance reasonably satisfactory to the Administrative Agent permitting the Administrative Agent or the Collateral Agent to exercise its rights with respect to such Inventory, (ii) Reserves satisfactory to the Administrative Agent have been established with respect thereto or (iii) the Administrative Agent has otherwise agreed to allow such Inventory to be eligible in the Administrative Agent’s Permitted Discretion;
(q) consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available; or
(r) subject to the final paragraph in the definition of “Borrowing Base”, was acquired in connection with a Permitted Acquisition, or Inventory owned by a Person that is joined to this Agreement as a Borrower pursuant to the provisions of this Agreement, until the completion of an appraisal and/or field examination with respect to such Inventory that is, in each case, satisfactory to Administrative Agent in its Permitted Discretion.
“Eligible Inventory NOLV Advance Rate Percentage” shall mean a percentage equal to (a) during the months of January, February, July, August, September and December of each calendar year, 97.5%, and (b) during all other months during each calendar year, 90%.
“Eligible Transferee” shall mean and include any Person that is eligible to become a Lender pursuant to Section 13.04, but in any event excluding (a) the Sponsor, the Borrowers, Guarantors and their respective Affiliates and Subsidiaries, (b) natural persons and (c) any Disqualified Lender.
“Environmental Claims” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance
or violation, investigations or proceedings arising under any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “Claims”), including, without limitation, (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the Release of Hazardous Materials.
“Environmental Law” shall mean any applicable Federal, state, foreign or local statute, law, regulation and ordinance, and any legally binding code, guideline, policy and rule of common law now or hereafter in effect and in each case as amended, and any judicial or administrative interpretation thereof, including any binding judicial or administrative order, consent decree or judgment, relating to the environment, employee health and safety as such matters relate to exposure to Hazardous Materials, including, without limitation, CERCLA; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Hazardous Material Transportation Act, 49 U.S.C. § 5101 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (as it relates to Hazardous Materials); and any state and local or foreign counterparts or equivalents, in each case as amended from time to time.
“Equity Interests” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any common stock, Preferred Equity, any limited or general partnership interest and any limited liability company membership interest.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.
“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which together with Parent or a Subsidiary of Parent would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event” shall mean any one or more of the following:
(a) any Reportable Event;
(b) the filing of a notice of intent to terminate any Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA; or the filing under Section 4041(a)(2) of ERISA of a notice of intent to terminate any Plan or the termination of any Plan under Section 4041(c) of ERISA;
(c) the institution of proceedings by the PBGC under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan;
(d) the failure to make a required contribution to any Plan that results in the imposition of a lien or other encumbrance under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a lien or encumbrance; the failure of any Plan to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; or the filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code with respect to any Plan; a determination that any Plan is considered an at-risk plan within the meaning of Section 430 of the Code or Section 303 of ERISA; or Parent, any Subsidiary of Parent or any ERISA Affiliate incurring any liability under Section 436 of the Code, or a violation of Section 436 of the Code with respect to a Plan; or the failure to make any required contribution to a Multiemployer Plan;
(e) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to a Plan;
(f) the complete or partial withdrawal of Parent, any Subsidiary of Parent or any ERISA Affiliate from a Multiemployer Plan that results in a material liability to Parent or any Subsidiary; the reorganization or insolvency under Title IV of ERISA of any Multiemployer Plan that results in a material liability to Parent or any Subsidiary; or the receipt by Parent, any Subsidiary of Parent or any ERISA Affiliate, of any notice that a Multiemployer Plan is in endangered or critical status under Section 432 of the Code or Section 305 of ERISA; or
(g) Parent, any Subsidiary of Parent or any ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA).
“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.
“Event of Default” shall have the meaning provided in Section 11.01.
“Excess Availability” shall mean, as of any date of determination, the amount by which (a) Availability at such time exceeds (b) the Aggregate Exposure at such time.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Deposit Accounts” shall mean (a) Deposit Accounts and Securities Accounts established (or otherwise maintained) by Parent or any of its Subsidiaries the balance of which consists exclusively of (i) withheld income taxes and federal, state or local employment taxes in such amounts as are required in the reasonable judgment of the Company to be paid to the IRS or state or local government agencies with respect to employees of any of the Credit Parties and (ii) amounts required to be paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for the benefit of employees of one or more Credit Parties, (b) all segregated Deposit Accounts and Securities Accounts established (or otherwise maintained) by
Parent or any of its Subsidiaries constituting (and the balance of which consists solely of funds set aside in connection with) tax accounts, payroll (and other wage and benefit) accounts, trust or similar accounts, (c) all other Deposit Accounts established (or otherwise maintained) by Parent or any of its Subsidiaries (excluding Collection Accounts, Concentration Accounts and Administrative Agent’s Accounts) that do not have cash balances at any time exceeding $2,000,000 for any individual Deposit Account or in the aggregate for all such Deposit Accounts and (d) Deposit Accounts of any Borrower maintained with the Administrative Agent the balance of which consists solely of proceeds of any sale or other disposition of any Term Loan Priority Collateral (and only such Collateral).
“Excluded Subsidiary” shall mean (a) any Immaterial Subsidiary, (b) any Domestic Subsidiary that is prohibited by law, rule, regulation or contractual obligation (including organizational documentation in the case of a joint venture) (as in effect on the Effective Date or, if later, that date of acquisition of such Subsidiary so long as not created in contemplation thereof) from providing the Guaranty, for so long as such prohibition is in effect, or that would require governmental consent, approval, license or authorization to provide a guarantee (unless such consent, approval, license or authorization has been obtained), (c) any CFC or Domestic Foreign Holding Company, (d) any direct or indirect Domestic Subsidiary of a CFC or (e) any Subsidiary to the extent that the Borrowers and the Administrative Agent reasonably agree that the cost or other consequence (including any adverse tax consequence) of obtaining the Guaranty by such Subsidiary is excessive in relation to the value afforded thereby.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest 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 Guaranty or security interest is or becomes illegal.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in the Loan (or any fees hereunder) pursuant to a law in effect on the date on which (i) such Recipient becomes a party to this Agreement (other than pursuant to an assignment request by a Borrower under Section 2.13) or (ii) in the case of a Lender, such Lender changes its lending office, except in each case to the extent that, pursuant to Section 5.04, amounts with respect to such Taxes were payable either to such Xxxxxx’s assignor immediately before such Lender became a party hereto or to such Lender
immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 5.04(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Letters of Credit” shall mean those letters of credit listed on Schedule 1.01(e).
“Extended Final Maturity Date” shall mean, with respect to any Extended Loan or Extended Revolving Loan Commitment, the agreed upon date occurring after the Initial Maturity Date as specified in the applicable definitive documentation thereof.
“Extended Loan” shall mean each Revolving Loan and each Swingline Loan pursuant to an Extended Revolving Loan Commitment.
“Extended Revolving Loan Commitments” shall have the meaning provided in Section 2.16(b)(ii).
“Extending Lender” shall have the meaning provided in Section 2.16(d).
“Extension” shall have the meaning provided in Section 2.16(a).
“Extension Amendment” shall have the meaning provided in Section 2.16(d).
“Extension Offer” shall have the meaning provided in Section 2.16(a).
“Facing Fee” shall have the meaning provided in Section 4.01(c).
“Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Company.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
“FCPA” shall mean The United States Foreign Corrupt Practices Act of 1977, as amended.
“Federal Funds Effective Rate” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations (rounded upwards, if necessary to
the next 1/100th of 1%) for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.
“Fee Letter” shall mean the Amended and Restated Fee Letter dated as of the Sixth Amendment Effective Date among the Borrowers and the Administrative Agent.
“Fees” shall mean all amounts payable pursuant to or referred to in Section 4.01.
“Fifth Amendment” shall mean Amendment No. 5 to ABL Credit Agreement, dated as of the Fifth Amendment Effective Date, by and among the Borrowers, Parent, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.
“Fifth Amendment Effective Date” shall mean April 15, 2022.
“Final Maturity Date” shall mean the Initial Maturity Date or, if such date is not a Business Day, the first Business Day thereafter; provided, that with respect to any Extended Revolving Loan Commitment, the Final Maturity Date with respect thereto instead shall be the Extended Final Maturity Date.
“Financial Covenant Compliance Period” shall mean any period (a) commencing on the date on which Excess Availability is less than the greater of (i) $4,000,000 and (ii) 10% of Availability, and (b) ending on the first date thereafter on which Excess Availability has been equal to or greater than the greater of (i) $4,000,000 and (ii) 10% of Availability, in each case of this clause (b) for 21 consecutive Business Days.
“First Priority” shall have the meaning provided in the Intercreditor Agreement.
“Fiscal Month” shall mean each monthly period beginning on the day after the last day of the immediately preceding Fiscal Month and ending on the Saturday closest to the last day of each calendar month.
“Fiscal Quarter” shall mean each of the quarterly periods beginning on the day after the last day of the immediately preceding Fiscal Quarter and ending on the Saturday closest to April 30, July 31, October 31 and January 31.
“Fiscal Year” shall mean each fiscal year of Parent and its Subsidiaries ending on the Saturday closest to January 31 in each calendar year.
“Fixed Charge Coverage Ratio” shall mean, with respect to the Company and its Subsidiaries for any period, the ratio of Consolidated EBITDA for such period, determined on a Pro Forma Basis, to Fixed Charges for such period, also determined on a Pro Forma Basis.
“Fixed Charges” shall mean, with respect to the Company and its Subsidiaries, for any period, the sum (without duplication) of (a) Consolidated Interest Expense less interest income, (b) all cash Dividends, distributions and other payments made in respect of any Qualified Preferred Stock or Disqualified Equity Interests (excluding items eliminated in consolidation) of Parent, (c) scheduled principal payments made on Indebtedness of the Company and its Subsidiaries, (d) cash taxes paid by the Company and its Subsidiaries and (e) except to the extent
financed with long-term Indebtedness (but not under revolving or similar facilities), Capital Expenditures.
“Floor” shall mean a rate of interest equal to 1.00%.
“Foreign Lender” shall mean a Lender that is not a U.S. Person.
“Foreign Pension Plan” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by Parent or any one or more of its Subsidiaries primarily for the benefit of employees of Parent 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 Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“Fourth Amendment” shall mean Amendment No. 4 to ABL Credit Agreement and Waiver, dated as of the Fourth Amendment Effective Date, by and among the Borrowers, Parent, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.
“Fourth Amendment Effective Date” shall mean September 30, 2020.
“GAAP” shall mean generally accepted accounting principles in the United States as in effect from time to time; provided, that determinations in accordance with GAAP for purposes of Sections 9.17 and 10, including defined terms as used therein, and for all purposes of determining the Fixed Charge Coverage Ratio, the Secured Net Leverage Ratio and the Total Net Leverage Ratio, are subject (to the extent provided therein) to Section 13.07(a).
“Gift Card” shall have the meaning provided in the introductory paragraph to this Agreement.
“Gift Certificate/Card and Merchandise Credit Liabilities” shall mean, at any time, the aggregate remaining value at such time of (a) gift certificates and gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory that have been outstanding for three years or less, and (b) merchandise credits of the Borrowers that have been outstanding for three years or less.
“Governmental Authority” shall mean the government of the United States, any other nation or any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guaranteed Obligations” shall have the meaning provided in Section 15.01.
“Guarantors” shall mean, collectively, (a) Parent (in its capacity as a guarantor under the Guaranty of all Parent Guaranteed Obligations) and (b) each Borrower (in its capacity as a guarantor under the Guaranty of Borrower Guaranteed Obligations); and “Guarantor” shall mean any of them.
“Guaranty” shall mean the guaranty of the Guarantors pursuant to Section 15.
“Hazardous Materials” shall mean (a) any petroleum or petroleum products, radioactive materials, friable asbestos, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, the exposure to, or Release of which is prohibited, limited or regulated by any Governmental Authority due to its dangerous or deleterious properties or characteristics.
“Hedging Creditors” shall mean, collectively, each Lender Counterparty party to an ABL Secured Hedging Agreement.
“Historical Excess Availability” shall mean, for the purposes of the definition of “Applicable Margin”, from and after each day of delivery of any Borrowing Base Certificate delivered in accordance with the definition of “Applicable Margin”, an amount equal to (a) the sum of each day’s Excess Availability during the most recently ended Fiscal Quarter divided by (b) the number of days in such Fiscal Quarter; provided, that Excess Availability shall be determined on a Pro Forma Basis in accordance with the requirements of the definition of “Pro Forma Basis” contained herein.
“Holdings” shall have the meaning provided in the Recitals to this Agreement.
“ICE” shall mean the ICE Benchmark Administration Direct Data Service.
“Immaterial Subsidiary” shall mean any Subsidiary of the Company (that is not a Borrower) that the Company elects to treat as an Immaterial Subsidiary; provided, that a Subsidiary may be designated an Immaterial Subsidiary (and remain an Immaterial Subsidiary) only so long as such Subsidiary (a) does not, as of the last day of the Fiscal Quarter of the Company most recently ended, have assets with a value in excess of 2.5% of the total assets or revenues representing in excess of 2.5% of total revenues of Parent, the Company and their respective Subsidiaries, in each case, on a consolidated basis as of such date, and (b) taken together with all Immaterial Subsidiaries as of the last day of the Fiscal Quarter of the Company most recently ended, did not have assets with a value in excess of 5% of total assets or revenues representing in excess of 5% of total revenues of Parent, the Company and their respective Subsidiaries, in each case, on a consolidated basis as of such date. Each Immaterial Subsidiary as of the Effective Date is set forth in Schedule 1.01(d).
“In Transit Inventory” shall mean Inventory which is in transit (whether by vessel, air, or land) from a location outside of the continental United States and which is not yet in the
physical possession of one or more Credit Parties at domestic (U.S.) locations owned or leased by one or more Credit Parties.
“In Transit Maximum Amount” shall mean (a) during the months of January, February, July, August, September and December of each calendar year, $17,500,000, and (b) during all other months during each calendar year, $12,500,000.
“Incremental Amendment” shall have the meaning provided in Section 2.15(b).
“Incremental Availability” shall have the meaning provided in Section 2.15(a).
“Incremental Facility” shall have the meaning provided in Section 2.15(a).
“Incremental Facility Closing Date” shall have the meaning provided in Section 2.15(b).
“Incremental Revolving Loan Commitments” shall have the meaning provided in Section 2.15(a).
“Incremental Revolving Loans” shall have the meaning provided in Section 2.15(b).
“Incremental Term Loans” shall have the meaning provided in the Term Loan Agreement as in effect on the Sixth Amendment Effective Date or as amended in accordance with the terms hereof.
“Indebtedness” shall mean, as to any Person, if and to the extent (other than with respect to clause (c)) the same would constitute indebtedness or a liability in accordance with GAAP, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (b) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (c) all indebtedness of the types described in clause (a), (b), (d), (e), (f) or (g) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (provided, that if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the lesser of the amount secured and the Fair Market Value of the property to which such Lien relates), (d) all Capitalized Lease Obligations of such Person, (e) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted (i.e., take or pay and similar obligations), (f) all Contingent Obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (e) above and clause (g) below and (g) all net payments under any Interest Rate Protection Agreement or any Other Hedging Agreement that such Person would have to make in the event of an early termination, on the date Indebtedness of such Person is being determined. Notwithstanding the foregoing, Indebtedness shall not include (i) trade and other ordinary course payables, accrued expenses and intercompany liabilities arising in the ordinary course of business, (ii) prepaid or deferred revenue, (iii) purchase price holdbacks in respect of assets pending the
satisfaction by the seller of such assets of unperformed obligations, (iv) accrued expenses and deferred tax and other credits incurred by any Person in the ordinary course of business of such Person or (v) in the case of the Company and its Subsidiaries, (A) all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extension of terms) and made in the ordinary course of business and (B) intercompany liabilities in connection with the cash management, tax and accounting operations of the Company and its Subsidiaries.
“Indemnified Liabilities” shall have the meaning provided in Section 13.01(a)(iii).
“Indemnified Person” shall have the meaning provided in Section 13.01(a)(iii).
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of a Credit Party under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Individual Exposure” of any Lender shall mean, at any time, the sum of (a) the aggregate principal amount of all Revolving Loans made by such Lender and then outstanding, (b) such Lender’s RL Percentage of the aggregate principal amount of all Swingline Loans then outstanding and (c) such Xxxxxx’s RL Percentage of the aggregate amount of all Letter of Credit Outstandings at such time.
“Initial Maturity Date” means May 10, 2028; provided that, if as of the date that is one hundred eighty (180) days prior to the Term Loan Initial Maturity Date, such Term Loan Initial Maturity Date has not been extended (whether by amendment, restatement, refinancing or otherwise) to a date that is at least one hundred eighty (180) days after the Initial Maturity Date, then the Initial Maturity Date shall automatically be deemed to be one hundred eighty (180) days prior to such Term Loan Initial Maturity Date.
“Insolvency Proceeding” shall mean any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any state or foreign bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
“Intercompany Loans” shall have the meaning provided in Section 10.05(h).
“Intercompany Note” shall mean any promissory note evidencing Intercompany Loans.
“Intercompany Subordination Agreement” shall have the meaning provided in Section 10.05(h).
“Intercreditor Agreement” shall mean that certain Xxxxxxx and Restated Intercreditor Agreement, dated as of September 30, 2020, among Parent, the Company and the other Grantors party thereto from time to time, the Term Loan Agent, the Administrative Agent, the Collateral Agent and the other parties thereto from time to time, as amended, restated, amended and restated modified and/or supplemented from time to time.
“Interest Coverage Ratio” means, with respect to any Person for any period, the ratio of Consolidated EBITDA of such Person for such period, determined on a Pro Forma Basis, to the Consolidated Interest Expense of such Person for such period.
“Interest Period” shall have the meaning provided in Section 2.09.
“Interest Rate Protection Agreement” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.
“Inventory” shall mean inventory (as such term is defined in Article 9 of the UCC).
“Investments” shall have the meaning provided in Section 10.05.
“IRS” shall mean the United States Internal Revenue Service.
“Issuing Lender” shall mean each of (a) the Administrative Agent or an Affiliate thereof (except as otherwise provided in Section 12.09), (b) any other Lender reasonably acceptable to the Administrative Agent and the Company which agrees to issue Letters of Credit hereunder and (c) a bank or other legally authorized Person selected by or acceptable to the Administrative Agent in its sole discretion and guaranteed by the Administrative Agent (a “Letter of Credit Guaranty”) and, so long as no Event of Default exists at the time of selection, reasonably satisfactory to the Company; provided, that if any Extension is effected in accordance with Section 2.16, then on the occurrence of the Initial Maturity Date (or any subsequent Final Maturity Date which has been extended), each Issuing Lender shall have the right to resign as such on, or on any date within 20 Business Days after, the Initial Maturity Date (or any subsequent Final Maturity Date which has been extended), upon not less than 10 Business Days’ prior written notice thereof to the Company and the Administrative Agent and, in the event of any such resignation and upon the effectiveness thereof, the resigning Xxxxxxx Xxxxxx shall retain all of its rights hereunder and under the other Credit Documents as Issuing Lender with respect to all Letters of Credit theretofore issued by it (which Letters of Credit shall remain outstanding in accordance with the terms hereof until their respective expirations) but shall not be required to issue any further Letters of Credit hereunder. If at any time and for any reason (including as a result of resignations as contemplated by the last proviso to the preceding sentence), an Issuing Xxxxxx has resigned in such capacity in accordance with the preceding sentence and no Issuing Lenders exist at such time, then no Person shall be an Issuing Lender hereunder obligated to issue Letters of Credit unless and until (and only for so long as) a Lender (or Affiliate of a Lender) reasonably satisfactory to the Administrative Agent and the Company agrees to act as Issuing Xxxxxx xxxxxxxxx. Any Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by one or more Affiliates of such Issuing Lender (and such Affiliate shall be deemed to be an “Issuing Lender” for all purposes of the Credit Documents).
“Xxxx Intermediate” shall have the meaning provided in the Recitals to this Agreement.
“Joinder Agreement” shall mean a Joinder Agreement substantially in the form of Exhibit L.
“Joint Book-Running Managers” shall mean Jefferies Finance LLC and Macquarie Capital (USA) Inc., in their capacity as Joint Book-Running Managers and any successor(s) thereto.
“Joint Lead Arrangers” shall mean Jefferies Finance LLC and Macquarie Capital (USA) Inc., in their capacity as Joint Lead Arrangers and any successor(s) thereto.
“L/C Supportable Obligations” shall mean (a) obligations of the Company or any of its Subsidiaries with respect to workers compensation, surety bonds and other similar statutory obligations and (b) such other obligations of the Company or any of its Subsidiaries as are reasonably acceptable to the respective Issuing Lender and otherwise permitted to exist pursuant to the terms of this Agreement (other than obligations in respect of (i) Indebtedness pursuant to the Term Loan Agreement (and any Permitted Refinancing thereof), (ii) any Indebtedness or other obligations that are subordinated in right of payment (or in security) to the Obligations and (iii) any Equity Interests).
“Leaseholds” of any Person shall mean all the right, title and interest of such Person as lessee, sublessee or licensee in, to and under leases, subleases or licenses of land, improvements and/or fixtures.
“Legal Requirements” shall mean, as to any person, the organizational documents of such person, and any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such person or any of its property or to which such person or any of its property is subject, in each case whether or not having the force of law.
“Lender” shall mean each financial institution listed on Schedule 1.01(a), as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13, or 13.04(b), in each case, (other than with respect to Section 12.06 or 13.01) for so long as such Person holds Loans or Revolving Loan Commitments hereunder.
“Lender Affiliate” shall mean (a) any Affiliate of any Lender, (b) any person that is administered or managed by any Lender or any Affiliate of any Lender and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and (c) with respect to any Lender which is a fund that invests in commercial loans and similar extensions of credit, any other fund that invests in commercial loans and similar extensions of credit and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such Lender or investment advisor.
“Lender Counterparty” shall mean any counterparty to an Interest Rate Protection Agreement and/or Other Hedging Agreement that is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Person enters into such Interest Rate Protection Agreement and/or Other Hedging Agreement (even if the Administrative Agent or such Lender subsequently ceases to be the Administrative Agent or a Lender, as the case may be, under this Agreement for any reason).
“Lender Default” shall mean, as to any Lender, (a) the wrongful refusal (which has not been retracted) of such Lender or the failure of such Lender (which has not been cured) to make available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.04(c), (b) such Lender having been deemed insolvent or having become the subject of an Insolvency Proceeding or a takeover by a regulatory authority, (c) such Lender having failed, within three Business Days after written request by the Administrative Agent or the Company to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided, that such Lender Default shall cease to exist upon receipt of such written confirmation by the Administrative Agent and the Company), (d) such Lender having notified in writing to the Company and/or the Administrative Agent, the Swingline Lender, any Issuing Lender and/or any Credit Party (i) that it does not intend to comply with its obligations under Sections 2.01(a) or (c), 2.04 or 3, as the case may be, in circumstances where such non-compliance would constitute a breach of such Lender’s obligations under the respective Section or (ii) of the events described in preceding clause (b); provided, that for purposes of any documentation entered into pursuant to the Back-Stop Arrangements and any requirements to provide same (and the term “Defaulting Lender” as used therein), the term “Lender Default” shall also include, as to any Lender, (A) any Affiliate of such Lender that has “control” (within the meaning provided in the definition of “Affiliate”) of such Lender having been deemed insolvent or having become the subject of an Insolvency Proceeding or a takeover by a regulatory authority, (B) any previously cured “Lender Default” of such Lender under this Agreement, unless the Company, Administrative Agent, each Issuing Lender and the Swingline Lender have agreed in writing that the “Defaulting Lender” has adequately remedied all matters that caused such Xxxxxx Xxxxxxx, and (C) the failure of such Lender to make available its portion of any Borrowing (including any Mandatory Borrowing) or to fund its portion of any unreimbursed payment with respect to a Letter of Credit pursuant to Section 3.04(c) within one Business Day of the date (1) the Administrative Agent (in its capacity as a Lender) or (2) Lenders constituting the Required Lenders with Revolving Loan Commitments has or have, as applicable, funded its or their portion thereof or (e) such Lender becomes the subject of a Bail-In Action.
“Letter of Credit” shall have the meaning provided in Section 3.01(a).
“Letter of Credit Back-Stop Arrangements” shall have the meaning provided in Section 3.03(b).
“Letter of Credit Fee” shall have the meaning provided in Section 4.01(b).
“Letter of Credit Guaranty” shall have the meaning provided in the definition of Issuing Lender.
“Letter of Credit Outstandings” shall mean, at any time, the sum of (a) the Stated Amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all Unpaid Drawings in respect of all Letters of Credit at such time.
“Letter of Credit Request” shall have the meaning provided in Section 3.03(a).
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other) or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Capitalized Lease Obligations having substantially the same economic effect as any of the foregoing).
“Loan” shall mean each Revolving Loan (including, without limitation, each extension of credit pursuant to the Incremental Facility) and each Swingline Loan.
“Loan Communication” shall have the meaning provided in Section 13.28.
“Mandatory Borrowing” shall have the meaning provided in Section 2.01(c).
“Margin Stock” shall have the meaning provided in Regulation U.
“Material Adverse Effect” shall mean (a) a material adverse effect on the business, operations, property, assets, liabilities or financial condition of Parent, the Company and their respective Subsidiaries taken as a whole (other than, in the case of this clause (a), as a direct result of the impact of the COVID-19 pandemic) or (b) a material adverse effect (i) on the rights or remedies of the Lenders, the Administrative Agent or the Collateral Agent under the Credit Documents or (ii) on the ability of the Credit Parties (taken as a whole) to perform their obligations to the Lenders, the Administrative Agent or the Collateral Agent under the Credit Documents.
“Material Intellectual Property” shall mean any intellectual property that is material to the business operations of the Company and its Subsidiaries, taken as a whole.
“Maximum Letter of Credit Amount” shall mean $15,000,000.
“Maximum Rate” shall have the meaning provided in Section 13.20.
“Maximum Swingline Amount” shall mean $5,000,000.
“Minimum Borrowing Amount” shall mean (a) for Revolving Loans, $250,000 and (b) for Swingline Loans, $100,000 or such lesser amount as may be agreed by the Administrative Agent.
“Minimum Extension Condition” shall have the meaning provided in Section 2.16(c).
“Monthly Financial Statements” shall mean the unaudited consolidated statement of income of Parent and its Subsidiaries for the Fiscal Month ended August 29, 2020.
“Monthly Reporting Period” shall mean any period (a) commencing on the date on which Excess Availability has been less than $4,000,000 for three consecutive Business Days, and (b) ending on the first date thereafter on which Excess Availability has been equal to or greater than $4,000,000 for 30 consecutive days.
“Xxxxx’x” shall mean Xxxxx’x Investors Service, Inc. or any successor to its rating agency business.
“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt, debenture or similar security instrument in form and substance reasonably satisfactory to the Administrative Agent.
“Mortgage Policy” shall mean an ALTA Lender’s title insurance policy (Form 2006) or other form reasonably satisfactory in form and substance to the Administrative Agent.
“Mortgaged Property” shall mean any Real Property owned by the Company or any of its Subsidiaries which is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms of this Agreement.
“Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA that is subject to Title IV of ERISA and is contributed to by (or to which there is an obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA Affiliate, or to which Parent, a subsidiary of Parent or an ERISA Affiliate has any liability, contingent or otherwise.
“NAIC” shall mean the National Association of Insurance Commissioners.
“Net Cash Proceeds” shall mean, with respect to any event, the gross cash proceeds received from such event, net of transaction costs (including, as applicable, any underwriting, brokerage or other customary commissions and reasonable legal, advisory and other fees and expenses associated therewith) incurred in connection with such event.
“Net Orderly Liquidation Value” shall mean the cash proceeds of Inventory which could be obtained in an orderly liquidation (net of all liquidation expenses, costs of sale, commissions, operating expenses and retrieval and related costs), as determined pursuant to the most recent third-party appraisal of such Inventory delivered to the Administrative Agent by an appraiser reasonably acceptable to the Administrative Agent, and in each case expressed as a recovery percentage with respect to each category of such assets. The Net Orderly Liquidation Value for each category of assets will be increased or reduced promptly upon receipt by the Administrative Agent of each updated appraisal.
“Net Sale Proceeds” shall mean for any sale or other disposition of assets, the gross cash proceeds (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received) received from such sale or other disposition of assets, net of (a) transaction costs (including, without limitation, any underwriting, brokerage or other customary selling commissions, reasonable legal, advisory and other fees and expenses (including title and recording expenses), associated therewith and sales, VAT and transfer taxes arising therefrom), (b) payments of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 90 days after, the date of such sale or other disposition, (c) the amount of such gross cash proceeds required to be used and actually used within 90 days following such sale or disposition to permanently repay any Indebtedness (other than Indebtedness secured by the assets disposed of on a junior or pari passu basis relative to the Obligations) which is secured by the respective assets which were sold or otherwise disposed of,
and (d) the estimated income taxes payable in respect of such sale or other disposition; provided, however, that such gross proceeds shall not include any portion of such gross cash proceeds which the Company determines in good faith should be reserved for post-closing adjustments or indemnities (to the extent the Company delivers to the Administrative Agent a certificate signed by an Authorized Officer as to such determination), it being understood and agreed that on the day that all such post-closing adjustments have been determined (which shall not be later than eighteen months following the date of the respective asset sale), the amount (if any) by which the reserved amount in respect of such sale or disposition exceeds the actual post-closing adjustments payable by Parent or any of its Subsidiaries shall constitute Net Sale Proceeds on such date received by Parent and/or any of its Subsidiaries from such sale or other disposition.
“New Project” shall mean (x) each plant, facility, branch or store which is either a new plant, facility, branch or store or an expansion, relocation, remodeling or substantial modernization of an existing plant, facility, branch or store owned by the Company or its Subsidiaries which in fact commences operations and (y) each creation (in one or a series of related transactions) of a business unit (including, without limitation, individual stores) to the extent such business unit commences operations or each expansion (in one or a series of related transactions) of business into a new market.
“Non-Defaulting Lender” shall mean and include each Lender, other than a Defaulting Lender.
“Non-Negotiable Document” shall have the meaning provided in clause (d)(iii) of the definition of “Eligible In Transit Inventory”.
“Non-Wholly-Owned Subsidiary” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.
“Note” shall mean each Revolving Note and the Swingline Note.
“Notice of Borrowing” shall have the meaning provided in Section 2.03(a).
“Notice of Conversion/Continuation” shall have the meaning provided in Section 2.06.
“Notice Office” shall mean the office of the Administrative Agent located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxx and Xxx Xxxxx, and Emails: Xxxxxxx.Xxxxx@xxxxxxxxxxxxx.xxx and Xxx.Xxxxx@xxx.xxx, or such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“Obligations” shall mean all amounts owing to the Administrative Agent, the Collateral Agent or any Lender pursuant to the terms of this Agreement or any other Credit Document, including, without limitation, all amounts in respect of any principal, interest (including any interest accruing following maturity of the Loans, all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit and interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in this Agreement, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees (including all legal fees and
disbursements required to be paid by the Company and its Subsidiaries hereunder), expenses, indemnifications, reimbursements and other liabilities, and guarantees of the foregoing amounts.
“OFAC” shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Organization” shall mean any corporation, limited liability company, partnership or other business entity (or the adjectival form thereof, where applicable) or the equivalent of the foregoing in any foreign jurisdiction.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or enforced any Credit Document, engaged in any other transaction pursuant to, or sold or assigned an interest in any Credit Document).
“Other Hedging Agreements” shall mean any foreign exchange contracts, currency swap agreements, commodity agreements or other similar agreements (including commodity futures or forward purchase contracts), or arrangements designed to protect against fluctuations in currency values or commodity prices.
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.13). For the avoidance of doubt, Other Taxes shall not include any Taxes imposed on, or measured by reference to, gross income, net income or gain.
“Parent” shall have the meaning provided in the introductory paragraph to this Agreement.
“Parent Common Stock” shall mean the authorized shares of common stock of Parent on the Effective Date, together with any subsequently authorized shares of common stock of Parent.
“Parent Guaranteed Obligations” shall have the meaning provided in Section 15.01.
“Participant” shall have the meaning provided in Section 3.04(a).
“Participant Register” shall have the meaning provided in Section 13.04(a).
“Patent Security Agreement” shall have the meaning provided in the Security Agreement.
“Patriot Act” shall have the meaning provided in Section 13.18.
“Payment Conditions” shall mean, with respect to any proposed action for which the Payment Conditions are required to be satisfied, that each of the following conditions are satisfied at the time such action is proposed to occur and immediately after giving effect thereto:
(a) (i) no Event of Default shall have occurred and be continuing, (ii) Thirty-Day Excess Availability and Excess Availability (in each case calculated on a Pro Forma Basis after giving effect to the Borrowing of any Loans or issuance of any Letters of Credit in connection with the proposed action (and assuming that such Loans and Letters of Credit had remained outstanding throughout the applicable 30-day period for which Thirty-Day Excess Availability is to be determined)) shall be equal to or exceed the greater of (A) $6,000,000 and (B) 15% of Availability, (iii) the Company and its Subsidiaries shall be in compliance with a Fixed Charge Coverage Ratio of not less than 1.00:1.00 for the Test Period then most recently ended on a Pro Forma Basis as if such proposed action had occurred on the first day of such Test Period, and (iv) the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying as to compliance with preceding clauses (i) through (iii) and demonstrating (in reasonable detail) the calculations required by preceding clauses (ii) and (iii); or
(b) (i) no Default or Event of Default shall have occurred and be continuing, (ii) Thirty-Day Excess Availability and Excess Availability (in each case calculated on a Pro Forma Basis to include the Borrowing of any Revolving Loans or the issuance of any Letters of Credit in connection with the proposed action (and assuming that such Loans and Letters of Credit had remained outstanding throughout the applicable 30-day period for which Thirty-Day Excess Availability is to be determined)), shall be equal to or exceed the greater of (A) $10,000,000 and (B) 25% of Availability, and (iii) the Company shall have delivered to the Administrative Agent a certificate of an Authorized Officer of the Company certifying as to compliance with preceding clauses (i) and (ii) and demonstrating (in reasonable detail) the calculations required by preceding clause (ii).
“Payment Office” shall mean the office of the Administrative Agent located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxx Xxxxx, and Email: Xxx.Xxxxx@xxx.xxx, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.
“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.
“Permitted Acquired Debt” shall have the meaning provided in Section 10.04(g).
“Permitted Acquisition” shall mean the acquisition by the Company or a Subsidiary of the Company of an Acquired Entity or Business; provided that (in each case) (a) the Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is in a business permitted by Section 10.09 and (b) all requirements of Sections 9.12 and 9.17 applicable to such Permitted Acquisitions are satisfied. Notwithstanding anything to the contrary contained in the immediately preceding sentence, an acquisition which does not otherwise meet the requirements set forth above in this definition shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in writing, prior to the consummation thereof, that such acquisition shall constitute a Permitted Acquisition for purposes of this Agreement.
“Permitted Discretion” shall mean a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Encumbrance” shall mean, with respect to any Mortgaged Property, easements, zoning restrictions, rights-of-way restrictions and other similar encumbrances permitted under Section 10.01(h), and such exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto.
“Permitted Liens” shall have the meaning provided in Section 10.01.
“Permitted Refinancing” shall mean, with respect to any Person, any modification, refinancing, replacement, refunding, renewal or extension of any Indebtedness of such Person; provided, that (a) the aggregate principal amount (or accreted value, if applicable) of the Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension does not exceed the aggregate principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, replaced, refunded, renewed or extended except by an amount equal to unpaid accrued interest, fees, expenses and premium thereon and any make-whole payments applicable thereto and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, replacement, refunding, renewal or extension has a final stated maturity date equal to or later than the final stated maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (excluding the effects of nominal amortization in the amount of no greater than one percent per annum and prepayments of Indebtedness), (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) such modification, refinancing, replacement, refunding, renewal or extension does not add guarantors, change obligors or provide for security different from that which applied to the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended, (e) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such Indebtedness incurred pursuant to such modification, refinancing, replacement, 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, replaced, refunded, renewed or extended, (f) to the extent such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is secured by Liens that are subordinated to the Liens securing the Obligations, such Indebtedness incurred pursuant to such modification, refinancing, replacement, refunding, renewal or extension is unsecured or secured by Liens that are subordinated to the Liens securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended; provided, that a certificate of an officer of the Company delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the requirements of this clause (f) shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent notifies the Borrowers within five Business Days following receipt of such certificate that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and
(g) in the case of any Permitted Refinancing in respect of the Term Loan Obligations proposed to be secured by the Liens on the Collateral, such Permitted Refinancing is subject to the Intercreditor Agreement or other intercreditor agreement in form and substance satisfactory to the Administrative Agent in its sole discretion.
“Permitted Refinancing Indebtedness” shall mean any Indebtedness implemented pursuant to, and in accordance with the requirements of, a Permitted Refinancing.
“Permitted Unsecured Ratio Debt” shall mean unsecured Indebtedness of a Borrower (which may be guaranteed by one or more Credit Parties), so long as (a) such Indebtedness is unsecured Indebtedness or Subordinated Indebtedness, (b) such Indebtedness does not mature prior to the date that is 91 days after the then latest Final Maturity Date at the time such Indebtedness is incurred and the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Term Loans, (c) immediately after giving effect thereto and to the use of the proceeds thereof, (i) no Event of Default shall exist or result therefrom and (ii) on a Pro Forma Basis giving effect to the occurrence of such Indebtedness, the Interest Coverage Ratio shall equal or exceed 2.00:1.00 as of the last day of the most recently ended Calculation Period prior to the incurrence of such Indebtedness, (d) such Indebtedness is not guaranteed by any Person other than the Credit Parties, and (e) such Indebtedness does not have covenants more restrictive to the Credit Parties than those set forth in the Term Loan Agreement as in effect on the Sixth Amendment Effective Date.
“Person” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any Governmental Authority.
“Plan” shall mean any pension plan as defined in Section 3(2) of ERISA which is maintained or contributed to by (or to which there is an obligation to contribute of) Parent or a Subsidiary of Parent or an ERISA Affiliate, or to which Parent, a subsidiary of Parent or an ERISA Affiliate has any liability, contingent or otherwise, and is subject to Section 302 or Title IV of ERISA or Section 412 of the Code, other than a Multiemployer Plan.
“Platform” shall have the meaning provided in Section 13.03(c).
“Pre-Opening Expenses” shall mean, with respect to any fiscal period, the amount of expenses (other than interest expense) incurred with respect to stores which are classified as “pre-opening expenses” or “store-opening costs” (or any similar or equivalent caption) in the applicable financial statements of the Company and its Subsidiaries for such period, prepared in accordance with GAAP.
“Preferred Equity” shall mean, as to any Person, 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.
“Prime Rate” shall mean, for any day, the rate of interest per annum quoted by JPMorgan Chase Bank as its “prime rate” in effect from time to time (or if such rate is at any time
not available, the prime rate so quoted by any banking institution selected by CIT), which rate is not intended to be the lowest rate charged by any such banking institution to its borrowers.
“Pro Forma Basis” shall mean, in connection with any calculation of compliance with any financial ratio or test, in respect of a Specified Transaction, that such Specified Transaction and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement for the applicable covenant or requirement: (a) income statement items (whether positive or negative) attributable to the property or Person, if any, subject to such Specified Transaction shall be (i) excluded (in the case of a disposition of all or substantially all Equity Interests in any Subsidiary or any division, product line or facility used for operations of the Company or any Subsidiary) and (ii) included (in the case of a purchase or other acquisition of all or substantially all of the property and assets or business of any Person, or of assets constituting a business unit, a line of business or division of such Person, or of all or substantially all of the Equity Interests in a Person or non-maintenance capital expenditures expected to result in increased revenue upon completion), (b) any retirement of Indebtedness, (c) if and to the extent applicable hereunder, any incurrence or assumption of Indebtedness by the Company or any Subsidiary (and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination) and (d) any other Specified Transaction if consummated after the first day of the relevant Test Period or Calculation Period, as the case may be, and on or prior to the date of such Specified Transaction than being effected; provided, that (A) Pro Forma Basis, in respect of any Specified Transaction shall be calculated in a reasonable and factually supportable manner and certified by an Authorized Officer of the Company and (B) any such calculation shall be subject to the applicable limitations set forth in the definition of “Consolidated EBITDA”.
“Pro Forma Financial Statements” shall have the meaning provided in Section 8.05(a)(ii).
“Pro Rata Share” shall have the meaning provided in Section 12.05.
“Projections” shall mean the projections that were prepared by or on behalf of the Company in connection with this Agreement and delivered to the Administrative Agent and the Lenders prior to the Effective Date.
“Purchase Agreement” shall have the meaning provided in the Recitals to this Agreement.
“Purchase Agreement Representations” shall mean the representations and warranties made by Xxxx Intermediate in the Purchase Agreement as are material to the interests of the Lenders, but only to the extent that Holdings or its applicable Affiliates have the right to terminate their respective obligations under the Purchase Agreement (or to decline to consummate the Acquisition) as a result of a breach of such representations.
“QFC Credit Support” shall have the meaning provided in Section 13.31.
“Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person that constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Equity Interests” shall mean any Equity Interests that are not Disqualified Equity Interests.
“Qualified Preferred Stock” of a Person shall mean any Preferred Equity of such Person that does not constitute Disqualified Equity Interests.
“Quarterly Financial Statements” shall mean the unaudited consolidated balance sheets and related statements of operations and cash flows of Parent and its Subsidiaries for the Fiscal Quarter ended August 1, 2020.
“Quarterly Payment Date” shall mean the last Business Day of each April, July, October and January occurring after the Effective Date.
“Real Property” of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.
“Recipient” shall mean (a) the Administrative Agent and (b) any Lender, as applicable.
“Register” shall have the meaning provided in Section 13.15.
“Regulation D” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof.
“Related Persons” shall have the meaning provided in Section 12.06.
“Release” shall mean actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or seeping, into or upon any land or water or air, or otherwise entering into the environment.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Rent Reserve” shall mean a reserve that may be established by the Administrative Agent in respect of rent payments made by a Borrower for a period equal to at least the liquidation period as established in the respective inventory appraisal last received by the Administrative Agent pursuant to this Agreement for each (a) leased store (i) that is in Pennsylvania, Texas, Virginia, Washington, Washington, D.C. or any other State providing lessors with statutory or common law Lien rights on personal property located at such store securing payment of rent and other charges that prime a previously perfected security interest or (ii) that is subject to a lease that grants to the landlord a security interest in property that would otherwise constitute Eligible Inventory which would prime the perfected security interest granted to the Collateral Agent, as determined by the Administrative Agent in its Permitted Discretion, and (b) distribution center, warehouse or other location other than a leased store at which Inventory of a Borrower is located, unless, in each case, such location is subject to a landlord waiver or collateral access agreement reasonably acceptable to the Administrative Agent (as reported to the Administrative Agent by the Company from time to time as requested by the Administrative Agent), as adjusted from time to time by the Administrative Agent in its Permitted Discretion.
“Replaced Lender” shall have the meaning provided in Section 2.13.
“Replacement Lender” shall have the meaning provided in Section 2.13.
“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA other than those events as to which the 30-day notice period is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
“Required Lenders” shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving Loans and RL Percentages of (a) Swingline Loans at such time and (b) Letter of Credit Outstandings at such time) represents at least a majority of the sum of the Total Revolving Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after the termination thereof, the sum of the total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL Percentage of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time.
“Requirements of Law” shall mean, collectively, any and all requirements of any Governmental Authority including any and all laws, judgments, orders, decrees, ordinances, rules, regulations, statutes or case law.
“Reserves” shall mean reserves, if any, established by the Administrative Agent from time to time hereunder in its Permitted Discretion against the Borrowing Base, including without limitation, (a) Customer Credit Liability Reserves, (b) Rent Reserves, (c) potential dilution related to Accounts, (d) sums that the Borrowers are or will be required to pay (such as taxes,
assessments and insurance premiums) and have not yet paid, (e) amounts owing by any Borrowers to any Person to the extent secured by a Lien on, or trust over, any Collateral that (i) is not a Permitted Lien or (ii) to the extent same could reasonably be expected to have priority over the Liens granted to the Collateral Agent pursuant to the Security Documents, (f) reserves for customs charges, freight and shipping charges related to any In Transit Inventory or other Inventory in transit, (g) reserves against Eligible Inventory as a result of rights of licensors with respect thereto and of Liens as described in Section 10.01(x), (h) reserves for Gift Certificate/Card and Merchandise Credit Liabilities (limited to 50% of such potential liability) and (i) such other events, conditions or contingencies as to which the Administrative Agent, in its Permitted Discretion, determines reserves should be established from time to time hereunder; provided, however, that the Administrative Agent may not implement reserves with respect to matters which are already specifically reflected as ineligible Accounts, Inventory or In Transit Inventory or criteria deducted in computing the net book value of Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory or Eligible In Transit Inventory or the Net Orderly Liquidation Value of Eligible Inventory or Eligible In Transit Inventory.
“Restricted Junior Payments” shall have the meaning provided in Section 10.07(a).
“Returns” shall have the meaning provided in Section 8.09.
“Revolving Loan” shall have the meaning provided in Section 2.01(a).
“Revolving Loan Commitment” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 1.01(a) directly below the column entitled “Revolving Loan Commitment,” as same may be (a) reduced from time to time or terminated pursuant to Sections 4.02, 4.03 and/or 11, as applicable or (b) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 2.13 or 13.04(b). In addition, the Revolving Loan Commitment of each Lender shall include, subject to the consent of such Lender, any Extended Revolving Loan Commitment and any Incremental Revolving Loan Commitment of such Lender. The aggregate amount of the Revolving Loan Commitments as of the Sixth Amendment Effective Date is $40,000,000.
“Revolving Note” shall have the meaning provided in Section 2.05(a).
“RL Percentage” of any Lender at any time shall mean a fraction (expressed as a percentage) the numerator of which is the Revolving Loan Commitment of such Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time; provided, that if the RL Percentage of any Lender is to be determined after the Total Revolving Loan Commitment has been terminated, then the RL Percentages of such Lender shall be determined immediately prior (and without giving effect) to such termination.
“S&P” shall mean Standard & Poor’s Rating Service, a division of S&P Global, or any successor thereto.
“Sale-Leaseback Transaction” shall mean any arrangement with any Person directly or indirectly providing for the leasing by the Company or any Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Company or such Subsidiary to such Person in contemplation of such leasing.
“SEC” shall mean the Securities and Exchange Commission, or any successor thereto.
“Second Amendment” shall mean Amendment No. 2 to ABL Credit Agreement, dated as of the Second Amendment Effective Date, by and among the Borrowers, Parent, the other Credit Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Second Amendment Effective Date” shall mean August 22, 2018.
“Second Priority” shall have the meaning provided in the Intercreditor Agreement.
“Secured Creditors” shall mean collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Swingline Lender, the Issuing Lender, each Hedging Creditor and each Cash Management Bank.
“Secured Net Leverage Ratio” shall have the meaning provided in the Term Loan Agreement as in effect on the Sixth Amendment Effective Date or as amended in accordance with the terms hereof.
“Secured Obligations” shall mean all (a) Obligations and (b) obligations of any Credit Party arising under (i) any ABL Secured Hedging Agreement or the guarantee thereof pursuant to the Credit Documents (other than Excluded Swap Obligations) and (ii) any ABL Secured Cash Management Agreement.
“Securities Account” shall mean a securities account (as that term is defined in the UCC).
“Security Agreement” shall have the meaning provided in Section 6.11.
“Security Agreement Collateral” shall mean all “Collateral” as defined in the Security Agreement.
“Security Document” shall mean and include each of the Security Agreement, each Control Agreement, each Copyright Security Agreement, each Patent Security Agreement, each Trademark Security Agreement, each Mortgage, after the execution and delivery thereof, each Additional Security Document and any other related document, agreement or grant pursuant to which Parent or any of its Subsidiaries grants, perfects or continues a security interest in favor of the Collateral Agent for the benefit of the Secured Creditors.
“Settlement Date” shall have the meaning provided in Section 2.04(b)(i).
“Sixth Amendment” shall mean Amendment No. 6 to ABL Credit Agreement, dated as of the Sixth Amendment Effective Date, by and among the Borrowers, Parent, the other Credit Parties party thereto, the Administrative Agent, the Collateral Agent and the Lenders party thereto.
“Sixth Amendment Effective Date” shall mean May 10, 2023.
“SOFR” shall mean a rate per annum equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“Specified Event of Default” means an Event of Default under Section 11.01(a), Section 11.01(c)(i) (solely as a result of an Event of Default (x) under Section 5.03, (x) (after giving effect to the cure pursuant to Section 11.04) under Section 10.11 or (y) under Sections 9.01 (f) or