THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
THIRD AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Third Amendment”) dated as of January 28, 2022 by and among:
GENESCO INC., a Tennessee corporation (the “Lead Borrower”),
GCO CANADA ULC (formerly, GCO Canada Inc.) a corporation continued under the laws of Alberta, as the Canadian Borrower (the “Canadian Borrower”),
GENESCO (UK) LIMITED, a company incorporated in England and Wales with company number 07667223, as the UK Borrower (the “UK Borrower”)
the Other Domestic Borrowers party hereto (together with the Lead Borrower, the Canadian Borrower and the UK Borrower, the “Borrowers”),
the Lenders party hereto, and
BANK OF AMERICA, N.A., as Agent;
in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agent have entered into a certain Fourth Amended and Restated Credit Agreement dated as of January 31, 2018, as amended by that certain First Amendment to Fourth Amended and Restated Credit Agreement dated as of February 1, 2019, as further amended by that certain Second Amendment to Fourth Amended and Restated Credit Agreement dated as of June 5, 2020 (as amended, restated, supplemented or otherwise modified, the “Existing Credit Agreement”), and as further amended by this Third Amendment (the “Credit Agreement”); and
WHEREAS, the Borrowers have requested that the Agent and Lenders agree to amend certain provisions of the Existing Credit Agreement, in each case, subject to the terms and conditions hereof; and
WHEREAS, the Borrowers, the Lenders and the Agent have agreed to amend the Existing Credit Agreement on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:
DB1/ 126960639.6
a. This Third Amendment shall have been duly executed and delivered by the Credit Parties and the Lenders party hereto.
b. A Note, or an amended and restated Note, as applicable, executed by the applicable Borrowers in favor of each Lender requesting a Note not later than one (1) Business Day prior to the Third Amendment Effective Date and reflecting the Commitment of such Lender after giving effect to this Third Amendment.
DB1/ 126960639.6
c. A Borrowing Base Certificate dated as of the Third Amendment Effective Date, executed by a Financial Officer of the Lead Borrower, relating to the fiscal month ending December 25, 2021. The Excess Availability under the Credit Agreement on the Third Amendment Effective Date, after giving effect to any funding under the Credit Agreement, shall be equal to or greater than $100,000,000 based on the Borrowing Base Certificate dated as of the Third Amendment Effective Date.
d. The Sixth Amended and Restated Security Agreement, executed by the Credit Parties and the Agent.
e. The Confirmation and Ratification of Ancillary Documents, executed by the Credit Parties and the Agent.
f. Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Financial Officers of each Credit Party as the Agent may require evidencing (A) the authority of each Credit Party to enter into this Third Amendment and the other Loan Documents to which such Credit Party is a party or is to become a party and (B) the identity, authority and capacity of each Financial Officer thereof authorized to act as a Financial Officer in connection with this Third Amendment and the other Loan Documents to which such Credit Party is a party or is to become a party, and attaching copies of each Credit Party’s organization documents and such other documents and certifications as the Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation.
g. A certificate from a Financial Officer of the Lead Borrower, together with such other evidence reasonably requested by the Agent, in each case reasonably satisfactory in form and substance to the Agent, certifying that as of the Third Amendment Effective Date (i) the Credit Parties, on a Consolidated basis, are Solvent, (ii) there has been no event or circumstance since January 30, 2021 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (iii) the representations and warranties made by the Borrowers in Section 2 above are true and correct in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the giving of notice or passage of time (or both) would be a Default or an Event of Default.
h. All governmental consents and approvals, and all third-party consents required for the Borrowers to consummate the Third Amendment and the transactions and financings contemplated herein shall have been obtained by the Borrowers. The Agent and the Lenders shall have received (x) all documentation and other information reasonably requested by them that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and (y) at least three (3) Business Days prior to the date hereof, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver (upon request by the Agent,
DB1/ 126960639.6
provided such request is made more than three (3) Business Days prior to the date hereof) to the Agent to be shared with any Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
i. Completed information certificates of the Domestic Borrowers and Canadian Borrower in form consistent with the information certificate delivered on the Second Amendment Effective Date.
DB1/ 126960639.6
DB1/ 126960639.6
IN WITNESS WHEREOF, this Third Amendment has been duly executed and delivered by each of the parties hereto as a sealed instrument as of the date first above written.
DOMESTIC BORROWERS:
GENESCO BRANDS, LLC
HAT WORLD CORPORATION
XXXXX BROS. OF PUERTO RICO, INC.
By_________________________
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer and President
GENESCO BRANDS NY, LLC
By_________________________
Name: Xxxx X. Xxxxxx
Title: President
GENESCO FOOTWEAR LLC,
By: Genesco Services LLC, its sole member
By_________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
CANADIAN BORROWER: |
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GCO CANADA ULC |
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By |
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Name: |
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Xxxx X. Xxxxxx |
Title: |
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Chief Executive Officer and President |
UK BORROWER: |
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GENESCO (UK) LIMITED |
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By |
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Name: |
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Xxxx X. Xxxxxx |
Title: |
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Director |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
BANK OF AMERICA, N.A., as Agent, Issuing |
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Bank, a Domestic Lender and a UK Lender |
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By: |
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Name: |
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Xxxxxxx Xxxxxx |
Title: |
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Authorized Signatory |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
BANK OF AMERICA, N.A. (ACTING |
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THROUGH ITS CANADA BRANCH), as a |
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Canadian Lender |
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By: |
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Name: |
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Xxxxxx Xxxxxxxxxx |
Title: |
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Vice President |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
Truist Bank, as a Domestic Lender, Canadian |
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Lender and UK Lender |
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By: |
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Name: |
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Xxxxxxx Xxxxx |
Title: |
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Director |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
U.S. BANK NATIONAL ASSOCIATION, as |
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a Domestic Lender and UK Lender |
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By: |
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Name: |
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Xxxxxxx Xxxxxx |
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Title: |
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Vice President |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
U.S. BANK NATIONAL ASSOCIATION |
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CANADA BRANCH, as a Canadian Lender |
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By: |
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Name: |
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Xxxx X. Xxxxx |
Title: |
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SVP & Principal Officer |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
PNC BANK, NATIONAL ASSOCIATION, |
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as a Domestic Lender, and UK Lender |
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By: |
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Name: |
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Xxxxx X. Xxxxx |
Title: |
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Vice President |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
PNC BANK CANADA BRANCH, as a |
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Canadian Lender |
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By: |
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Name: |
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Xxxxx X. Xxxxx |
Title: |
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Regional President and Principal Officer |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
JPMORGAN CHASE BANK, N.A., as a |
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Domestic Lender |
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By: |
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Name: |
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Xxxx X. Xxxxxx |
Title: |
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Authorized Officer |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
JPMORGAN CHASE BANK, N.A., |
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TORONTO BRANCH, as a Canadian Lender |
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By: |
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Name: |
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Xxxxxxx Xxxxx |
Title: |
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Authorized Officer |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
JPMORGAN CHASE BANK, N.A. |
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LONDON BRANCH, as a UK Lender |
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By: |
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Name: |
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Xxxxxxx Xxxxxxx |
Title: |
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Authorised Officer |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
CITIBANK, N.A. as a Domestic Lender, |
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Canadian Lender and UK Lender |
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By: |
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Name: |
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Xxxxxxx X. Xxxx, Xx. |
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Title: |
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Authorized Signatory |
[Genesco – Signature Page to Third Amendment]
DB1/ 000000000.6
Bank of Montreal, Canadian Lender |
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By: |
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Name: |
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Xxxxx Xxxxxxx-Xxxxxxxxx |
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Title: |
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Managing Director |
Bank of Montreal, as a Domestic Lender and |
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UK Lender |
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By: |
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Name: |
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Xxxx Xxxxxxx |
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Title: |
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Managing Director, Chicago Branch |
[Genesco – Signature Page to Third Amendment]
DB1/ 126960639.6
ANNEX A
CONFORMED CREDIT AGREEMENT
[See Attached.]
ANNEX B
UPDATED EXHIBITS
[See Attached.]
ANNEX C
SCHEDULES TO THE CREDIT AGREEMENT
[See Attached.]
22
ANNEX A – Credit Agreement Conformed through Third Amendment
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
January 31, 2018,
as amended as of February 1, 2019
as further amended as of June 5, 2020
as further amended as of January 28, 2022
among
a Domestic Borrower and the Lead Borrower,
GENESCO BRANDS, LLC, HAT WORLD CORPORATION,
XXXXX BROS. OF PUERTO RICO, INC.,
GENESCO FOOTWEAR LLC, and GENESCO BRANDS NY, LLC
as the Other Domestic Borrowers,
GCO CANADA ULC
as the Canadian Borrower
GENESCO (UK) LIMITED
as the UK Borrower
The LENDERS Party Hereto,
BANK OF AMERICA, N.A.
as Agent
U.S. BANK NATIONAL ASSOCIATION
and
TRUIST BANK
as Co-Syndication Agents
PNC BANK, NATIONAL ASSOCIATION
as Documentation Agent
and
BANK OF AMERICA, X.X.
X.X. BANK NATIONAL ASSOCIATION
and
TRUIST SECURITIES, INC.
as Joint Lead Arrangers and Joint Bookrunners
___________________________
23
Table of Contents
Page
1. |
DEFINITIONS |
2 |
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1.1 |
Defined Terms |
2 |
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1.2 |
Terms Generally; Interpretation |
64 |
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1.3 |
Accounting Terms |
65 |
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1.4 |
Rounding |
65 |
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1.5 |
Times of Day |
65 |
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1.6 |
Letter of Credit Amounts |
65 |
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1.7 |
United Kingdom Tax Matters |
65 |
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1.8 |
Exchange Rates; Currency Translation |
71 |
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1.9 |
Limited Condition Acquisitions |
71 |
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1.10 |
Divisions |
72 |
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1.11 |
Interest Rates |
72 |
2. |
AMOUNT AND TERMS OF CREDIT |
73 |
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2.1 |
Commitments of the Lenders. |
73 |
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2.2 |
Reserves; Changes to Reserves |
77 |
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2.3 |
Making of Loans. |
77 |
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2.4 |
Overadvances |
79 |
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2.5 |
Swingline Loans, Canadian Swingline Loans and UK Swingline Loans |
79 |
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2.6 |
Letters of Credit |
81 |
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2.7 |
Settlements Among Lenders |
86 |
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2.8 |
Notes; Repayment of Loans |
87 |
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2.9 |
Interest on Loans |
88 |
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2.10 |
Default Interest |
89 |
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2.11 |
Certain Fees |
89 |
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2.12 |
Unused Commitment Fee |
89 |
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2.13 |
Letter of Credit Fees |
89 |
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2.14 |
Nature of Fees |
90 |
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2.15 |
Termination or Reduction of Commitments |
90 |
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2.16 |
[Reserved]. |
91 |
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2.17 |
Conversion and Continuation of Loans |
91 |
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2.18 |
Mandatory Prepayment; Cash Collateral; Commitment Termination |
92 |
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2.19 |
Optional Prepayment of Loans; Reimbursement of Lenders |
95 |
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2.20 |
Maintenance of Loan Account; Statements of Account |
96 |
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DB1/ 126870242.8
Table of Contents
(continued)
Page
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2.21 |
Cash Receipts |
97 |
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2.22 |
Application of Payments |
99 |
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2.23 |
Increased Costs. |
102 |
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2.24 |
Change in Legality |
103 |
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2.25 |
Payments; Sharing of Setoff |
103 |
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2.26 |
Taxes |
105 |
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2.27 |
Security Interests in Collateral |
108 |
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2.28 |
Mitigation Obligations; Replacement of Lenders |
108 |
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2.29 |
Inability to Determine Rates |
109 |
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2.30 |
UK Borrowing Base |
111 |
3. |
REPRESENTATIONS AND WARRANTIES |
112 |
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3.1 |
Organization; Powers |
112 |
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3.2 |
Authorization; Enforceability |
112 |
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3.3 |
Governmental Approvals; No Conflicts |
112 |
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3.4 |
Financial Condition |
113 |
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3.5 |
Properties |
113 |
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3.6 |
Litigation and Environmental Matters. |
114 |
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3.7 |
Compliance with Laws and Agreements |
114 |
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3.8 |
Investment Company or Holding Company Status |
114 |
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3.9 |
Taxes |
114 |
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3.10 |
ERISA/Canadian Pension Plan/ UK Pension Plan |
115 |
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3.11 |
ERISA Compliance |
115 |
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3.12 |
Disclosure |
115 |
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3.13 |
Subsidiaries |
116 |
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3.14 |
Insurance |
116 |
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3.15 |
Labor Matters |
116 |
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3.16 |
[Reserved] |
116 |
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3.17 |
Restrictions on the Credit Parties |
116 |
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3.18 |
Security Documents |
116 |
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3.19 |
Federal Reserve Regulations. |
117 |
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3.20 |
Solvency |
117 |
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3.21 |
Franchises, Patents, Copyrights, Etc. |
117 |
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DB1/ 126870242.8
Table of Contents
(continued)
Page
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3.22 |
Brokers |
117 |
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3.23 |
Casualty |
117 |
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3.24 |
Intellectual Property; Licenses, Etc. |
118 |
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3.25 |
Ranking |
118 |
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3.26 |
EEA Financial Institution |
118 |
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3.27 |
Sanctions Concerns and Anti-Corruption Laws |
118 |
4. |
CONDITIONS |
118 |
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4.1 |
Conditions of Effectiveness |
118 |
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4.2 |
Conditions Precedent to Each Loan and Each Letter of Credit |
121 |
5. |
AFFIRMATIVE COVENANTS |
121 |
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5.1 |
Financial Statements and Other Information |
122 |
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5.2 |
Notices of Material Events |
124 |
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5.3 |
Information Regarding Collateral |
125 |
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5.4 |
Existence; Conduct of Business |
125 |
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5.5 |
Payment of Obligations |
126 |
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5.6 |
Maintenance of Properties |
126 |
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5.7 |
Insurance |
126 |
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5.8 |
Casualty and Condemnation |
127 |
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5.9 |
Books and Records; Inspection and Audit Rights |
127 |
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5.10 |
Fiscal Year |
128 |
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5.11 |
Physical Inventories/ Cycle Counts |
128 |
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5.12 |
Compliance with Laws |
129 |
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5.13 |
Use of Proceeds and Letters of Credit |
129 |
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5.14 |
Additional Subsidiaries |
129 |
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5.15 |
Further Assurances |
130 |
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5.16 |
Compliance with Terms of Leaseholds |
131 |
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5.17 |
Environmental Laws |
131 |
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5.18 |
[Reserved] |
131 |
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5.19 |
UK “Know your customer” checks. |
131 |
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5.20 |
UK Pension Plans |
132 |
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5.21 |
Canadian Pension Plans |
132 |
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5.22 |
People with Significant Control Regime |
132 |
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DB1/ 126870242.8
Table of Contents
(continued)
Page
6. |
NEGATIVE COVENANTS |
133 |
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6.1 |
Indebtedness |
133 |
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6.2 |
Liens |
134 |
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6.3 |
Fundamental Changes |
135 |
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6.4 |
Investments, Loans, Advances, Guarantees and Acquisitions |
136 |
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6.5 |
Asset Sales |
137 |
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6.6 |
Restrictive Agreements |
138 |
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6.7 |
Restricted Payments; Certain Payments of Indebtedness |
139 |
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6.8 |
Transactions with Affiliates |
139 |
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6.9 |
Additional Subsidiaries |
139 |
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6.10 |
Amendment of Material Documents |
139 |
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6.11 |
Fixed Charge Coverage Ratio |
139 |
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6.12 |
Environmental Laws |
140 |
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6.13 |
Fiscal Year |
140 |
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6.14 |
Canadian Pension Plans |
140 |
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6.15 |
Sanctions |
140 |
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6.16 |
Anti-Corruption Laws |
140 |
7. |
EVENTS OF DEFAULT |
140 |
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7.1 |
Events of Default |
140 |
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7.2 |
When Continuing |
143 |
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7.3 |
Remedies on Default |
143 |
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7.4 |
Application of Proceeds |
143 |
8. |
THE AGENT |
151 |
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8.1 |
The Agent |
151 |
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8.2 |
Sharing of Excess Payments |
152 |
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8.3 |
Agreement of Applicable Lenders |
153 |
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8.4 |
Liability of Agent |
153 |
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8.5 |
Notice of Default |
154 |
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8.6 |
Lenders’ Credit Decisions |
154 |
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8.7 |
Reimbursement and Indemnification |
154 |
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8.8 |
Rights of Agent |
155 |
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8.9 |
Notice of Transfer |
155 |
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DB1/ 126870242.8
Table of Contents
(continued)
Page
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8.10 |
Successor Agent |
155 |
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8.11 |
Reports and Financial Statements |
155 |
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8.12 |
Agent May File Proofs of Claim |
155 |
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8.13 |
Defaulting Lenders |
156 |
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8.14 |
Agency for Perfection. |
158 |
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8.15 |
Risk Participation. |
158 |
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8.16 |
ERISA Representations. |
159 |
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8.17 |
Co-Syndication Agents and Documentation Agent |
161 |
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8.18 |
Appointment of Agent as Security Trustee for UK Security Agreements. |
161 |
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8.19 |
Recovery of Erroneous Payments. |
164 |
9. |
MISCELLANEOUS |
164 |
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9.1 |
Notices |
164 |
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9.2 |
The Platform |
165 |
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9.3 |
Waivers; Amendments. |
166 |
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9.4 |
Expenses; Indemnity; Damage Waiver. |
168 |
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9.5 |
Designation of Lead Borrower as Borrowers’ Agent. |
169 |
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9.6 |
Successors and Assigns. |
170 |
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9.7 |
Survival |
172 |
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9.8 |
Counterparts; Integration; Effectiveness |
172 |
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9.9 |
Severability |
173 |
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9.10 |
Right of Setoff |
173 |
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9.11 |
Governing Law; Jurisdiction; Consent to Service of Process. |
173 |
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9.12 |
WAIVER OF JURY TRIAL |
173 |
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9.13 |
Headings |
174 |
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9.14 |
Interest Rate Limitation |
174 |
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9.15 |
Additional Waivers. |
174 |
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9.16 |
Confidentiality |
175 |
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9.17 |
Release of Collateral and Guaranty Obligations. |
176 |
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9.18 |
Amendment and Restatement |
176 |
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9.19 |
Commitments |
177 |
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9.20 |
Judgment Currency. |
177 |
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9.21 |
USA Patriot Act Notice |
177 |
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DB1/ 126870242.8
Table of Contents
(continued)
Page
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9.22 |
Foreign Asset Control Regulations |
178 |
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9.23 |
Canadian Anti-Money Laundering Legislation. |
178 |
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9.24 |
No Advisory or Fiduciary Responsibility |
178 |
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9.25 |
Limitation of Canadian Borrower and UK Borrower Liability. |
179 |
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9.26 |
Language. |
179 |
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9.27 |
Keepwell. |
179 |
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9.28 |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions. |
180 |
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9.29 |
Acknowledgement Regarding Any Supported QFCs. |
180 |
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9.30 |
Electronic Execution of Documents. |
181 |
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DB1/ 126870242.8
EXHIBITS
A |
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Form of Assignment and Acceptance |
B-1 |
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Form of Canadian Note |
B-2 |
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Form of Canadian Note |
B-3 |
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Form of UK Note |
B-4 |
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Form of Swingline Note |
B-5 |
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Form of Canadian Swingline Note |
B-6 |
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Form of UK Swingline Note |
C-1 |
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Form of Effective Date Guaranty – Domestic Borrowers |
C-2 |
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Form of Effective Date Guaranty – Canadian Borrower |
C-3 |
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Form of Effective Date Guaranty – UK Borrower |
D |
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Form of Borrowing Base Certificate |
E |
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Form of Compliance Certificate |
F |
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Closing Agenda |
G |
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Form of DDA Notification |
H-1 |
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Form of Domestic Notice of Borrowing |
H-2 |
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Form of Domestic Notice of Borrowing |
H-3 |
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Form of UK Notice of Borrowing |
I |
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Form of Mortgage |
vii
DB1/ 126870242.8
SCHEDULES
1.1 |
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Lenders and Commitments |
1.2 |
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Leased Distribution Centers and Warehouses |
1.3 |
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Secured Equipment Leases |
2.6(j) |
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Existing Letters of Credit |
2.21(b) |
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Credit Card Arrangements |
2.21(c) |
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Concentration Accounts and Investment Accounts |
3.5(b)(i) |
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Owned Properties |
3.5(b)(ii) |
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Leased Properties |
3.6 |
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Litigation and Environmental Matters |
3.7 |
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Compliance with Laws and Agreements |
3.9 |
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Taxes |
3.10 |
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ERISA/Canadian Pension Plan/UK Pension Plan |
3.13 |
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Subsidiaries |
3.14 |
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Insurance |
3.21 |
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Franchises, Patents, Copyrights, etc. |
5.1(i) |
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Financial Reporting Requirements |
6.1 |
|
Indebtedness |
6.2 |
|
Liens |
6.4 |
|
Investments, Loans, Advances, Guarantees and Acquisitions |
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This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January 31, 2018 (this “Agreement”) among GENESCO INC., a corporation organized under the laws of the State of Tennessee having a place of business at Genesco Park, 0000 Xxxxxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxx, XX 00000-0000, as a Domestic Borrower and the Lead Borrower (as hereinafter defined); the Other Domestic Borrowers (as defined below); GCO CANADA ULC, as the Canadian Borrower; GENESCO (UK) LIMITED, a company incorporated in England and Wales with company number 07667223 as the UK Borrower; the LENDERS party hereto; BANK OF AMERICA, N.A., a national banking association having a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as Agent for the Lenders and the other Secured Parties (as each such term is hereinafter defined); and U.S. BANK NATIONAL ASSOCIATION and TRUIST BANK, as Co-Syndication Agents; and PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent.
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Lenders make available to the Domestic Borrowers, as co-borrowers, a revolving credit facility (including a letter of credit sub-facility) in an initial maximum amount not to exceed $332,500,000 in the aggregate, the proceeds of which, in each case, shall be used by the Borrowers for purposes permitted under, and otherwise in accordance with and subject to the terms of, this Agreement;
WHEREAS, the Other Borrowers are direct or indirect wholly-owned Subsidiaries of the Lead Borrower, and together with the Lead Borrower are related entities that collectively constitute an integrated business;
WHEREAS, each Borrower is sufficiently dependent upon the others and the Borrowers are related in such a way that any advance made hereunder to any Borrower will benefit all of the Borrowers as a result of their related operations and identity of interests;
WHEREAS, the Domestic Borrowers have requested that the Agents and Lenders treat them as co-borrowers hereunder, jointly and severally responsible for the obligations of each other;
WHEREAS, each Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the Borrowers on a pro rata basis according to its Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the Lenders on the terms and conditions set forth herein and in the other Loan Documents;
WHEREAS, each Canadian Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the Canadian Borrower according to its Canadian Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the Canadian Secured Parties on the terms and conditions set forth herein and in the other Loan Documents;
WHEREAS, each UK Lender is willing to agree (severally and not jointly) to make such loans and provide such financial accommodations to the UK Borrower according to its UK Commitment on the terms and conditions set forth herein, and Bank of America, N.A. is willing to act as Agent for the UK Secured Parties on the terms and conditions set forth herein and in the other Loan Documents;
WHEREAS, prior to the date of this Agreement, the Borrowers, on the one hand, and Bank of America, N.A., as Agent thereunder, and the Lenders on the other hand, previously entered into a Third Amended and Restated Credit Agreement dated as of January 31, 2014 (as amended and in effect, the
DB1/ 126870242.8
“Existing Credit Agreement”), pursuant to which the Lenders provided the Borrowers (other than the UK Borrower) with certain financial accommodations;
WHEREAS, in accordance with SECTION 9.3 of the Existing Credit Agreement, the Borrowers, the Lenders, and the Agents desire to amend and restate the Existing Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned hereby agree that the Existing Credit Agreement shall be amended and restated in its entirety to read as follows (it being agreed that this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of the Obligations under the Existing Credit Agreement):
1.1 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Account Control Agreements” shall mean agency agreements with or notices to and acknowledgements from banks or other institutions maintaining a checking or other demand deposit account, lockbox account or investment account of a Credit Party (excluding store-level deposit accounts and all Excluded DDAs), including without limitation any DDA into which the proceeds of any other DDA are regularly swept on a daily basis, establishing control (as defined in the UCC) of such account by the Agent and whereby the bank maintaining such account agrees, in respect of the Domestic Credit Parties and Canadian Credit Parties, upon the occurrence and during the continuance of a Cash Dominion Event and in respect of the UK Credit Parties, at all times following the establishment of the UK Borrowing Base, to comply only with instructions originated by the Agent without the further consent of any Credit Party, each of which agreements shall be in form and substance reasonably satisfactory to the Agent.
“Account Debtor” shall mean any Person who is obligated under an Account.
“Account Reserves” means such reserves as may be established from time to time by the Agent in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Account Reserve shall not be required)) with respect to the collectability of any Eligible Wholesale Receivable or any Eligible Credit Card and Debit Card Receivable, including, without limitation, Dilution Reserves. Account Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Third Amendment Effective Date with other similarly situated borrowers.
“Accounts” shall mean “accounts” as defined in the UCC and in the PPSA, (or to the extent governed by the Civil Code of Quebec, defined as all “claims” for the purposes of the Civil Code of Quebec), and also all accounts, accounts receivable, and rights to payment (whether or not earned by performance): (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of; (ii) for services rendered or to be rendered; (iii) arising out of a policy of insurance issued or to be issued; (iv) arising out of a secondary obligation incurred or to be incurred; or (v) arising out of the use of a debit, credit or charge card or information contained on or used with that card.
“ACH” shall mean automated clearing house transfers.
“Act” has the meaning provided therefor in Section 9.21.
“Additional Commitment Lender” has the meaning provided therefor in Section 2.1(c).
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“Adjustment Date” means the first day of each Fiscal Quarter, commencing with the first Fiscal Quarter occurring after the expiration of three months following the Third Amendment Effective Date.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Agent.
“Affected Financial Institution” means any EEA Financial Institution or UK Financial Institution.
“Affiliate” means, with respect to a specified Person, (i) any director or officer of that Person, (ii) any other Person Controlling, Controlled by or under direct or indirect common Control with that Person (and if that Person is an individual, any member of the immediate family (including parents, siblings, spouse, children, stepchildren, nephews, nieces and grandchildren) of such individual and any trust whose principal beneficiary is such individual or one or more members of such immediate family and any Person who is Controlled by any such member or trust), (iii) any other Person directly or indirectly holding 15% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person, and (iv) any other Person 15% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person.
“Agent” means Bank of America in its capacity as administrative agent and collateral agent under any of the Loan Documents, or any successor thereto, and solely with respect to the loan servicing requirements of the Canadian Borrower, Bank of America, N.A.-Canada Branch.
“Agent Party” has the meaning provided therefor in Section 9.2.
“Agent’s Office” means the Agent’s address and, as appropriate, account as set forth on the signature page hereto, or such other address or account as the Agent may from time to time notify the Lead Borrower and the Lenders.
“Agreed Currency” means Dollars, Canadian Dollars or any Alternative Currency, as applicable.
“Agreement” means this Credit Agreement, as modified, amended, supplemented or restated and in effect from time to time.
“Alternative Currency” means Euros and Pounds Sterling, or any other freely transferable currencies approved by the Agent and each UK Lender.
“Alternative Currency Daily Rate” means, for any day, with respect to any Credit Extension:
provided, that, if any Alternative Currency Daily Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Any change in an Alternative Currency Daily Rate shall be effective from and including the date of such change without further notice.
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“Alternative Currency Daily Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Daily Rate.” All Alternative Currency Daily Rate Loans must be denominated in an Alternative Currency.
“Alternative Currency Loan” means an Alternative Currency Daily Rate Loan or an Alternative Currency Term Rate Loan, as applicable.
“Alternative Currency Term Rate” means, for any Interest Period, with respect to any Credit Extension:
provided, that, if any Alternative Currency Term Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Alternative Currency Term Rate Loan” means a Loan that bears interest at a rate based on the definition of “Alternative Currency Term Rate.” All Alternative Currency Term Rate Loans must be denominated in an Alternative Currency.
“Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any Governmental Authority having jurisdiction over the Agent or the SOFR Administrator and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Agent or such administrator.
“Applicable Fiscal Period” means, as of any date of determination, the most recently ended twelve (12) Fiscal Months.
“Applicable Law” means as to any Person: (i) all statutes, rules, regulations, orders, or other requirements having the force of law and (ii) all court orders and injunctions, and/or similar rulings, in each instance ((i) and (ii)) of or by any Governmental Authority, that are applicable to such Person or any property of such Person.
“Applicable Lenders” means the Required Lenders, the Required Supermajority Lenders, all affected Lenders, or all Lenders, as the context may require.
“Applicable Margin” means the rates for Prime Rate Loans, U.S. Index Rate Loans, BA Equivalent Loans, Term SOFR Loans, and other Alternative Currency Loans set forth below:
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Level |
Average Daily Availability |
Applicable Margin for Loans that are Term SOFR Loans, Alternative Currency Loans, and BA Equivalent Loans |
Applicable Margin for Loans that are Domestic Prime Rate Loans, U.S. Index Rate Loans, and Canadian Prime Rate Loans |
Applicable Margin for UK Swingline Loans |
I |
Greater than or equal to 50% of the Loan Cap |
1.25% |
0.25% |
1.25% |
II |
Less than 50% of the Loan Cap |
1.50% |
0.50% |
1.50% |
From and after the Third Amendment Effective Date and until the first Adjustment Date, the Applicable Margin shall be established at the percentages set forth in Level I of the pricing grid set forth above. From and after such first Adjustment Date following the Third Amendment Effective Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the pricing grid set forth above based upon the Average Daily Availability for the most recent Fiscal Quarter ended immediately preceding such Adjustment Date; provided, however, that notwithstanding anything to the contrary set forth herein, upon the occurrence of an Event of Default, the Agent may, and at the direction of the Required Lenders shall, immediately increase the Applicable Margin to that set forth in Level II (even if the Average Daily Availability requirements for a different Level have been met) and interest shall accrue at the rate of interest set forth in Section 2.10; provided further if any Borrowing Base Certificate is at any time restated or otherwise revised or if the information set forth in any Borrowing Base Certificate otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.
“Appraised Value” means with respect to (x) Eligible Inventory and Eligible In-Transit Inventory, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Eligible Inventory or Cost of Eligible In-Transit Inventory, as applicable, as set forth in the inventory stock ledger of the Borrower Consolidated Group, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent subject to Section 5.9 or (y) with respect to Real Estate, the fair market value of Real Estate as set forth in the most recent appraisal of Real Estate as determined from time to time by an independent appraiser engaged by the Agent, in form and substance reasonably satisfactory to the Agent, which appraisal shall be in compliance with all FIRREA requirements, provided that the Appraised Value of Eligible Real Estate shall in no event exceed the maximum amount of the Obligations at any time specified to be secured by a Mortgage thereon.
“Approved Foreign Vendor” means a foreign vendor which (a) is located in any country acceptable to the Agent in its discretion, (b) has received reasonably timely payment or performance of all obligations owed to it by the Borrowers, and (c) has not asserted any reclamation, repossession, diversion, stoppage in transit, Lien or title retention rights in respect of such Inventory.
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“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, (c) an entity or an Affiliate of an entity that administers or manages a Lender, or (d) the same investment advisor or an advisor under common control with such Lender, Affiliate or advisor, as applicable.
“Arrangers” means each of Bank of America (the “Lead Arranger”), U.S. Bank National Association and Truist Securities, Inc., in their capacities as joint lead arrangers and joint bookrunners.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.6), and accepted by the Agent, in the form of Exhibit A or any other form approved by the Agent.
“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower Consolidated Group for the Fiscal Year ended January 30, 2021, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Borrower Consolidated Group, including the notes thereto.
“Availability Reserves” means such reserves (but without duplication of any other Reserves or any factors included in the determination of the Appraised Value of Eligible Inventory or Eligible Real Estate) as the Agent from time to time determines in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Availability Reserve shall not be required)) as being appropriate (a) to reflect the impediments to the Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the Collateral, or (c) to reflect that a Default or an Event of Default then exists. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on (i) rent (A) on account of past due rent, (B) for leased distribution center locations as to which the Agent has not received a Collateral Access Agreement from the applicable landlord, and (C) for locations for which the landlord has been granted a Lien on the assets of any Person included in the Borrower Consolidated Group or in those states in which the landlord has a statutory landlord’s Lien; (ii) Customer Credit Liabilities; (iii) outstanding taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims of the PBGC and other taxes or claims which might have priority over the interests of the Agent in the Collateral; (iv) customs duties, and other costs to release Inventory which is being imported into the United States or Canada; (v) salaries, wages and benefits due to employees of any Credit Party, provided that Availability Reserves under this clause (v) will not be imposed except during the continuance of a Cash Dominion Event; (vi) customer deposits; (vii) reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals resulting from any significant or material decrease in comparable store sales trends, gross margins, any significant changes in Inventory mix, store operating expense structure or markdown activity, or any other factor that could reasonably be expected to result in a decrease to Appraised Value of Eligible Inventory, provided that if the Agent notifies the Lead Borrower of its intention to impose such an Availability Reserve, the Lead Borrower may, at its expense, engage an appraiser reasonably satisfactory to the Agent, to conduct an updated Inventory appraisal and, upon the Agent’s receipt and satisfactory review of the results of such appraisal, the previously imposed Availability Reserve under this clause (vii) will be terminated (without limiting the Agent’s right to re-establish such an Availability Reserve under this clause (vii) if circumstances so warrant); (viii) warehousemen’s or bailee’s charges and other Liens permitted by Section 6.2 which may have priority over the interests of the Agent in the Collateral; (ix) amounts due to vendors on account of consigned goods; (x) the Agent’s estimate of Canadian Priority Payable Reserves; (xi) Cash Management Reserves; and (xii) Bank Products Reserves. Availability Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Third Amendment Effective Date with other similarly situated borrowers.
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“Average Daily Availability” shall mean, in respect of any Adjustment Date, the average daily Excess Availability for the immediately preceding Fiscal Quarter.
“BA Equivalent Loan” means any Canadian Loan in CD$ bearing interest at a rate determined by reference to the BA Rate in accordance with the provisions of Section 2.
“BA Equivalent Loan Borrowing” means any Borrowing comprised of BA Equivalent Loans.
“BA Rate” means, for the Interest Period applicable to a BA Equivalent Loan, the rate of interest per annum equal to the annual rates applicable to CD$ bankers’ acceptances having an identical or comparable term as the proposed BA Equivalent Loan displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 10:20 A.M. (Toronto time) on such day (or, if such day is not a Business Day, as of 10:20 A.M. (Toronto time) on the immediately preceding Business Day)(or other commercially available source designated by Agent from time to time); provided that in no event shall the BA Rate be less than zero.
“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, with respect to (x) 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 or (y) the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” shall mean Bank of America, N.A., a national banking association, and as a Lender, includes any applicable branch thereof located in Canada (including Bank of America-Canada Branch) or the United Kingdom.
“Bank of America-Canada Branch” means Bank of America, N.A. (acting through its Canada branch), a banking corporation carrying on business under the Bank Act (Canada).
“Bank of America Concentration Account” has the meaning provided therefor in Section 2.21(d).
“Bank of Canada Overnight Rate” means, on any date of determination, the rate of interest charged by the Bank of Canada on one-day Canadian dollar loans to financial institutions, for such date.
“Bank Product Reserves” means such reserves as the Agent from time to time determine in its Permitted Discretion as being appropriate to reflect the anticipated liabilities and obligations of the Credit Parties with respect to Bank Products then provided or outstanding.
“Bank Products” means any services or facilities provided to any Credit Party by the Agent, any Lender, or any of their respective Affiliates, including, without limitation, on account of (a) Hedging Agreements, (b) purchase cards, (c) foreign exchange facilities, (d) leasing, and (e) supply chain finance services (including, without limitation, trade payable services and supplier accounts receivable purchases), but excluding Cash Management Services.
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“Banker’s Acceptance” means a time draft or xxxx of exchange or other deferred payment obligation relating to a Commercial Letter of Credit which has been accepted by the Issuing Bank.
“Bankruptcy Code” shall mean the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended and in effect from time to time, and the regulations issued from time to time thereunder.
“Base Rate” means for any day, a per annum rate equal to the greatest of (a) the Prime Rate for such day; (b) the Federal Funds Effective Rate for such day, plus 0.50%; or (c) Term SOFR for a one month interest period as of such day plus 1.00%, subject to the interest rate floor set forth herein. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.29 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“BIA” means the Bankruptcy and Insolvency Act (Canada).
“Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower Consolidated Group” shall mean the Lead Borrower and its Subsidiaries.
“Borrower Materials” has the meaning provided therefor in Section 5.1.
“Borrowers” means, individually and collectively, the Lead Borrower, the Other Borrowers and any other Person who subsequently becomes a Borrower hereunder.
“Borrowing” shall mean (a) a Canadian Borrowing, a UK Borrowing or a Domestic Borrowing, as applicable, (b) the incurrence of a Swingline Loan, (c) the incurrence of a Canadian Swingline Loan or (d) the incurrence of a UK Swingline Loan.
“Borrowing Base Certificate” has the meaning provided therefor in Section 5.1(f).
“Breakage Costs” has the meaning provided therefor in Section 2.19(b).
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by law to remain closed, or are in fact closed in the state where the Agent’s Office with respect to Obligations denominated in Dollars is located and:
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“Canadian Availability” means, as of any date of determination thereof, the result, if a positive number, of:
minus
In calculating Canadian Availability at any time and for any purpose under this Agreement, any amount calculated or referenced in Dollars shall also refer to the Equivalent CD$ Amount.
“Canadian Borrower” means GCO Canada ULC (formerly, GCO Canada Inc.), a corporation continued under the laws of Alberta.
“Canadian Borrowing” means a borrowing consisting of simultaneous Canadian Loans of the same Type and, in the case of BA Equivalent Loans or Term SOFR Loans, having the same Interest Period made by each of the Canadian Lenders pursuant to Section 2.3.
“Canadian Borrowing Base” means, at any time of calculation, an Equivalent CD$ Amount in Dollars equal to:
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plus
plus
plus
minus
“Canadian Commitment Percentage” means the Commitment Percentages of the Canadian Lenders.
“Canadian Commitments” means, as to each Canadian Lender, its obligation to (a) make Canadian Loans to the Canadian Borrower pursuant to Section 2.1 and (b) purchase participations in Canadian Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Canadian Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Canadian Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Canadian Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all Canadian Loans (including Canadian Swingline Loans) then outstanding, and (b) the then amount of the Canadian Letter of Credit Outstandings.
“Canadian Credit Parties” means, collectively, the Canadian Borrower and each Material Subsidiary organized under the laws of Canada or any province or territory thereof that is or becomes a guarantor of the Canadian Liabilities. “Canadian Credit Party” means any one of such Persons.
“Canadian Defined Benefit Pension Plan” shall mean a pension plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the Income Tax Act (Canada) but shall not include a “multi-employer pension plan” within the meaning of the Pension Benefits Standards Act, 1985 (Canada) (or
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similar term under equivalent provincial pension standards legislation) for which a Canadian Borrower’s or Canadian Subsidiary’s sole financial obligations are limited to making fixed contributions.
“Canadian Dollars” and “CD$” refer to lawful money of Canada.
“Canadian Lenders” means Bank of America-Canada Branch and any other Person having Canadian Commitments from time to time or at any time.
“Canadian Letter of Credit” means each Letter of Credit issued hereunder for the account of the Canadian Borrower.
“Canadian Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to Canadian Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under Canadian Letters of Credit for which the Issuing Bank has not then been reimbursed.
“Canadian Letter of Credit Sublimit” means an amount equal to $5,000,000. The Canadian Letter of Credit Sublimit is part of, and not in addition to, the Canadian Total Commitments. A permanent reduction of the Canadian Total Commitments shall not require a corresponding pro rata reduction in the Canadian Letter of Credit Sublimit; provided, however, that if the Canadian Total Commitments are reduced to an amount less than the Canadian Letter of Credit Sublimit, then the Canadian Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Canadian Borrower’s option, less than) the Canadian Total Commitments.
“Canadian Liabilities” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any Canadian Credit Party arising under any Loan Document or otherwise with respect to any Canadian Loan or Canadian Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against any Canadian Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, (b) any Other Canadian Liabilities, and (c) all Loans made to the Canadian Borrower under Section 2.1(a)(x).
“Canadian Loan” means an extension of credit by a Canadian Lender to the Canadian Borrower (to the extent based on Canadian Availability) under Section 2.
“Canadian Loan Cap” means, at any time of determination, the lesser of (a) the Canadian Total Commitments and (b) the Canadian Borrowing Base.
“Canadian Note” means a promissory note made by the Canadian Borrower in favor of a Canadian Lender evidencing Canadian Loans made by such Canadian Lender, substantially in the form of Exhibit B-1.
“Canadian Notice of Borrowing” means a notice from the Canadian Borrower to the Agent in connection with a Canadian Borrowing of Canadian Loans or Canadian Swingline Loans, which shall be substantially in the form of Exhibit H-2.
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“Canadian Pension Plan” means any pension plan that is subject to the Pension Benefits Act (Ontario) or similar legislation of another Canadian province or territory and the Income Tax Act (Canada) and that is either (a) maintained or sponsored by any Canadian Credit Party or any Canadian Subsidiary for employees, or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which any Canadian Credit Party or any Canadian Subsidiary is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions.
“Canadian Prime Rate” means, for any day, the greater of (i) the fluctuating rate of interest per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch as its reference rate of interest for loans made in CD$ and designated as its “prime” rate being a rate set by Bank of America-Canada Branch based upon various factors, including Bank of America-Canada Branch’s costs and desired return, general economic conditions and other factors and is used as a reference point for pricing some loans, and (ii) the BA Rate for a one month Interest Period as determined on such day, plus 1.0%; provided that in no event shall the Canadian Prime Rate be less than 1.00%. Any change in the prime rate announced by the Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based on the Canadian Prime Rate hereunder, shall be adjusted simultaneously with any change in the Canadian Prime Rate.
“Canadian Prime Rate Loan” means a Canadian Loan in CD$ that bears interest based on the Canadian Prime Rate.
“Canadian Priority Payable Reserves” means, at any time, without duplication, the obligations, liabilities and indebtedness at such time which have, or could in any proceeding have, a trust, deemed trust, right of garnishment, right of distress, charge or statutory Lien imposed to provide for payment or Liens ranking or capable of ranking senior to or pari passu with Liens securing the Canadian Liabilities on any of the Collateral under federal, provincial, state, county, territorial, municipal, or local law including, to the extent that there is such a trust, statutory Liens or Liens in respect of the specified item that has or is capable of having such rank, claims for unremitted and accelerated rents, utilities, taxes (including sales taxes, value added taxes, amounts deducted or withheld or not paid and remitted when due under the Income Tax Act (Canada), excise taxes, goods and services taxes (“GST”) and harmonized sales taxes (“HST”) payable pursuant to Part IX of the Excise Tax Act (Canada) or similar taxes under provincial or territorial law), the claims of a clerk, servant, travelling salesperson, labourer or worker (whether full-time or part-time) who is owed wages (including any amounts protected by the Wage Earner Protection Program Act (Canada)), salaries, commissions, disbursements, compensation or other amounts (such as union dues payable on behalf of employees) by the Credit Parties (but only to the extent that the claims of such parties may rank or be capable of ranking senior to or pari passu with Liens securing the Obligations on any of the Collateral), vacation pay, severance pay, employee source deductions, workers’ compensation obligations, government royalties or pension fund obligations (including claims in respect of, and all amounts currently or past due and not contributed, remitted or paid to, or pursuant to, any Canadian Pension Plan, the Pension Benefits Act (Ontario) or any similar law and any amounts representing any unfunded liability, solvency, deficiency or wind-up deficiency with respect to any Canadian Defined Benefit Pension Plan) (but only to the extent ranking or capable of ranking senior to or pari passu with Liens securing the Obligations on any of the Collateral), together with the aggregate value, determined in accordance with GAAP, of all Eligible Inventory which may be or may become subject to a right of a supplier to recover possession thereof or to exercise rights of revendication with respect thereto under any federal, provincial, state, county, municipal, territorial or local law, where such supplier’s right may have priority over Liens securing the Obligations including Eligible Inventory subject to a right of a supplier to repossess goods pursuant to Section 81.1 of the BIA or the Civil Code of Quebec.
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“Canadian Sanction Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Xxxxxxxx Xxxxxxxx Xxx (Xxxxxx), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.
“Canadian Secured Party” or “Canadian Secured Parties” has the meaning assigned to such term in the Canadian Security Agreement.
“Canadian Security Agreement” means the Second Amended and Restated General Security Agreement dated as of the Effective Date among the respective Canadian Credit Parties and the Agent for the benefit of the Canadian Secured Parties and the UK Secured Parties.
“Canadian Security Documents” means (a) the Canadian Security Agreement, (b) each deed of hypothec granted by a Canadian Credit Party in favor of the Agent, and (c) and each other security agreement or other instrument or document executed and delivered by any Canadian Credit Party to the Agent pursuant to this Agreement or any other Loan Document granting a Lien on assets of any Canadian Credit Party for the benefit of the Canadian Secured Parties and the UK Secured Parties, as security for the Canadian Liabilities and the UK Liabilities.
“Canadian Subsidiary” means any Subsidiary that is organized under the laws of Canada or any province or territory thereof.
“Canadian Swingline Lender” means Bank of America-Canada Branch, in its capacity as lender of Canadian Swingline Loans hereunder.
“Canadian Swingline Loan” shall mean a Loan made by the Canadian Swingline Lender to the Canadian Borrower pursuant to Section 2.5 hereof.
“Canadian Swingline Note” means a promissory note of the Canadian Borrower substantially in the form of Exhibit B-5, payable to the Canadian Swingline Lender if requested by the Canadian Swingline Lender, evidencing the Canadian Swingline Loans.
“Canadian Swingline Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the Canadian Total Commitments. The Canadian Swingline Sublimit is part of, and not in addition to, the Canadian Total Commitments.
“Canadian Total Commitments” means the aggregate of the Canadian Commitments of all Canadian Lenders. On the Third Amendment Effective Date, the Canadian Total Commitments are $70,000,000.
“Capital Expenditures” of any Person means, for any period, to the extent treated as a capital expenditure in accordance with GAAP, any expenditure for fixed assets (both tangible and intangible), including assets being constructed (whether or not completed), leasehold improvements, installment purchases of machinery and equipment, acquisitions of real estate and other similar expenditures including without duplication, expenditures in or from any construction-in-progress account of any of the Credit Parties, provided that “Capital Expenditures” shall not include any portion of the purchase price of a Permitted Acquisition which is allocated to property, plant or equipment acquired as part of such Permitted Acquisition.
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“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Card Receivables” means each “payment intangible” (as defined in the UCC or the PPSA, as applicable) and each Account, together with all income, payments and proceeds thereof, owed by a credit card issuer, debit card issuer, credit card processor or debit card processor to a Credit Party resulting from charges by a customer of a Credit Party on credit or debit cards issued by such issuer or processor in connection with the sale of goods by a Credit Party, or services performed by a Credit Party, in each case in the ordinary course of its business.
“Cash Collateral Account” shall mean (i) an interest-bearing account established by the Domestic Borrowers with the Agent under the sole and exclusive dominion and control of the Agent designated as the “Genesco Inc. Cash Collateral Account”, (ii) in the case of the Canadian Borrower, an interest-bearing account established by the Canadian Borrower with the Agent at Bank of America-Canada Branch under the sole and exclusive dominion and control of the Agent designated as the “GCO Canada Cash Collateral Account”, and (iii) in the case of the UK Borrower, an interest-bearing account established by the UK Borrower with the Agent under the sole and exclusive dominion and control of the Agent designated as the “Genesco (UK) Limited Cash Collateral Account”.
“Cash Collateralize” means, as of any date, the deposit by the Borrowers in the Cash Collateral Account of an amount in cash equal to 102% of the Letter of Credit Outstandings plus any accrued and unpaid interest thereon.
“Cash Dominion Event” means either (i) the occurrence and continuance of any Specified Event of Default, or (ii) the failure of the Borrowers to maintain Excess Availability in an amount equal to the greater of (A) twelve and one-half percent (12.5%) of the Loan Cap, or (B) $30,000,000, in each case, for three (3) consecutive Business Days. For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing (i) so long as such Specified Event of Default has not been waived, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure to achieve Excess Availability as required hereunder, until Excess Availability has exceeded the greater of $30,000,000 or 12.5% of the Loan Cap for thirty (30) consecutive days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Cash Dominion Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise.
“Cash Management Reserves” means such reserves as the Agent, from time to time, determines in its Permitted Discretion as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Credit Parties with respect to Cash Management Services then provided or outstanding.
“Cash Management Services” means any one or more of the following types of services or facilities provided to any Credit Party by the Agent or any Lender or any of their respective Affiliates: (a) ACH transactions, (b) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) credit card processing services, and (d) credit or debit cards.
“Cash Receipts” has the meaning provided therefor in Section 2.21(d).
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“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.
“Change in Control” means, at any time, (a) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Lead Borrower by Persons who were neither (i) nominated by the board of directors of the Lead Borrower nor (ii) appointed by directors so nominated; or (b) any person or group (as such terms are used in the Securities and Exchange Act of 1934, as amended), is or becomes the beneficial owner (within the meaning of Rule 13d-3 and 13d-5 of the Securities and Exchange Act of 1934, as amended) directly or indirectly of fifty percent (50%) or more of the total voting power of the Voting Stock of the Lead Borrower on a fully diluted basis, whether as a result of the issuance, sale or distribution of securities of the Lead Borrower, any merger or consolidation to which the Lead Borrower is a party, or otherwise, (c) except as otherwise permitted pursuant to this Agreement, the failure of the Lead Borrower to own, directly or indirectly, at least eighty percent (80%) of the Voting Stock or ownership interest, as applicable, of all of the Borrower Consolidated Group (other than with respect to Permitted Joint Venture Investments, for which such percentage shall be at least fifty percent (50%)), or (d) there occurs a “Change in Control” under and as determined in any document governing Material Indebtedness of any Credit Party.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant), (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant) or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.23, by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement (or, in the case of any Person which becomes a Lender or Participant thereafter, the date on which such Person becomes a Lender or Participant); provided however, for purposes of this Agreement, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, guidelines or directives in connection therewith, and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III and including CRR, in each case are deemed to have gone into effect and been adopted after the Effective Date.
“Charges” has the meaning provided therefor in Section 9.14.
“Chattel Paper” has the meaning ascribed to such term in the UCC or in the PPSA, as applicable.
“CME” means CME Group Benchmark Administration Limited.
“Co-Syndication Agents” means U.S. Bank National Association and Truist Bank.
“Code” means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder, as amended from time to time.
“Collateral” means any and all “Collateral” or “Mortgaged Property” as defined in any applicable Security Document.
“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee or other Person in possession of Collateral, and (b) any
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landlord of Real Estate leased by any Credit Party, pursuant to which such Person (i) acknowledges the Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such Real Estate, (iii) provides the Agent with access to the Collateral held by such bailee or other Person or located in or on such Real Estate, (iv) as to any landlord, provides the Agent with a reasonable time to sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Agent as it may reasonably require. Any Collateral Access Agreement executed and delivered to, and accepted by, the Agent will be deemed to satisfy the requirements set forth in this definition. The Collateral Access Agreements obtained in connection with the Existing Credit Agreement will be deemed to be effective Collateral Access Agreements for the purposes contained herein.
“Collateral Control Agreement” means a tri-party agreement in form and substance satisfactory to the Agent, in its Permitted Discretion, among the Agent, a Borrower and a customs broker, freight forwarder or other carrier, in which the customs broker, freight forwarder or other carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Agent and agrees, upon notice from the Agent following the occurrence and during the continuance of an Event of Default, to hold and dispose of the subject Inventory solely as directed by the Agent.
“Combined Borrowing Base” means the sum of (i) the Domestic Borrowing Base, (ii) as long as Canadian Commitments remain outstanding, the Canadian Borrowing Base, and (iii) if established pursuant to Section 2.30(a), the UK Borrowing Base.
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a member of the Borrower Consolidated Group in the ordinary course of business of such Borrower.
“Commitment” shall mean, with respect to each Lender, the Canadian Commitment, the UK Commitment, and the Domestic Commitment of such Lender hereunder.
“Commitment Fee” has the meaning provided therefor in Section 2.12(a).
“Commitment Fee Rate” means 0.20% per annum.
“Commitment Increase” has the meaning provided therefor in Section 2.1(c).
“Commitment Increase Date” has the meaning provided therefor in Section 2.1(d).
“Commitment Percentage” shall mean, with respect to (a) any Domestic Lender at any time, the percentage (carried out to the ninth decimal place) of the Domestic Total Commitments represented by such Domestic Lender’s Domestic Commitment at such time, (b) any Canadian Lender at any time, the percentage (carried out to the ninth decimal place) of the Canadian Total Commitments represented by such Canadian Lender’s Canadian Commitment at such time, (c) any UK Lender at any time, the percentage (carried out to the ninth decimal place) of the UK Total Commitments represented by such UK Lender’s UK Commitment at such time, and (d) any Lender at any time, the percentage (carried out to the ninth decimal place) of the Total Commitments represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the Issuing Bank to issue Letters of Credit have been terminated pursuant to Section 2.15 or Section 7.1 or if the Total Commitments have expired, then the Commitment Percentage of each Lender shall be determined based on the Commitment Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Commitment Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as applicable,
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or as may subsequently be set forth in the Register from time to time, and as such Commitments may be reduced from time to time pursuant to Section 2.15 or hereof or increased from time to time pursuant to Section 2.1(c) hereof.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Communication” has the meaning provided therefor in Section 9.30.
“Concentration Accounts” means collectively, the Bank of America Concentration Account and any concentration account established by the Canadian Borrower at Bank of America-Canada Branch, together with any and all other concentration accounts opened by any of the Credit Parties and consented to, in writing, by the Agent.
“Confirmation Agreement” means the Confirmation and Ratification of Ancillary Documents, dated as of the Third Amendment Effective Date and made between the Credit Parties and the Agent.
“Conforming Changes” means, with respect to the use, administration of or any conventions associated with SOFR, Term SOFR, XXXXX or any proposed Successor Rate for an Agreed Currency or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “XXXXX”, “Term SOFR” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, refers to the application or preparation (as applicable) of such term, test, statement or report based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.
“Consolidated EBITDA” of any Person means, for any Applicable Fiscal Period, the following for such Person for such period: (i) Consolidated Net Income, plus (ii) depreciation, amortization and all other non-cash charges that were deducted in the calculation of Consolidated Net Income for such period, plus (iii) provisions for income taxes that were deducted in the calculation of Consolidated Net Income for such period, plus (iv) Consolidated Interest Expense for such period, plus (v) extraordinary non-cash losses for such period to the extent such losses have not been and are not expected to become cash losses in a later fiscal period, minus (vi) federal, state, local and, to the extent not included in the calculation of taxes under clause (iii) above, foreign, income tax credits, minus (vii) all non-cash items (including, without limitation, all extraordinary non-cash gains) increasing Consolidated Net Income.
“Consolidated Interest Expense” means, for any Person for any period, total interest and all amortization of debt discount and expense (including that attributable to Capital Lease Obligations in accordance with GAAP) of such Person on a Consolidated basis with respect to all outstanding Indebtedness of such Person calculated in accordance with GAAP.
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“Consolidated Net Income” means, for any Person for any period, the net income (or loss) of such Person on a Consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, provided that there shall be excluded (i) the income (or loss) of any Person that is not a Subsidiary in which any other Person (other than the Lead Borrower or any of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Lead Borrower or any of its Subsidiaries by such Person during such period, and (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Lead Borrower or any of its Subsidiaries or is merged into or consolidated with the Lead Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Subsidiaries.
“Consolidated Net Worth” means, with respect to any Person, the difference between its Consolidated total assets and its Consolidated total liabilities, all as determined in accordance with GAAP.
“Consolidated Total Indebtedness” means as of any date of determination, the aggregate principal amount of Indebtedness of the Lead Borrower and its Subsidiaries outstanding on such date, determined on a Consolidated basis in accordance with GAAP.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Account Banks” shall mean the banks or other depository institutions with whom the Borrowers have entered into Account Control Agreements.
“Controlled Accounts” shall mean each deposit account, lockbox account or investment account of the Borrowers that is the subject of an Account Control Agreement.
“Cost” means the cost of Inventory, based upon the Borrowers’ method of accounting as in effect on the Third Amendment Effective Date, as such calculated cost is reflected in the Borrowers’ stock ledger or perpetual inventory records (and without giving effect to any inventory reserves maintained in the Borrowers’ general ledger).
“Covenant Compliance Event” means that Excess Availability at any time is less than the greater of $22,500,000 or 10% of the Loan Cap. For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing until Excess Availability has equaled or exceeded the greater of $22,500,000 or 10% of the Loan Cap for thirty (30) consecutive days, in which case a Covenant Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Covenant Compliance Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Compliance Event in the event that the conditions set forth in this definition again arise.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning provided therefor in Section 9.29.
“Credit Card Notifications” has the meaning provided therefor in Section 2.21(a).
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“Credit Extensions” shall mean, collectively, the Canadian Credit Extensions, the UK Credit Extensions and the Domestic Credit Extensions.
“Credit Parties” shall mean, collectively, the Canadian Credit Parties, the UK Credit Parties, if applicable, and the Domestic Credit Parties (each, individually, a “Credit Party”).
“CRR” means either CRR-EU or, as the context may require, CRR-UK.
“CRR-EU” means regulation 575/2013 of the European Union on prudential requirements for credit institutions and investment firms and regulation 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.
“CRR-UK” means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 (UK) and the European Union (Withdrawal Agreement) Act 2020 (UK) and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019 (UK).
“CTA” means the Corporation Tax Xxx 0000 (UK).
“Currency Due” has the meaning provided therefor in Section 9.20.
“Customs Broker/Carrier Agreement” means an agreement in form and substance satisfactory to the Agent among a Credit Party, a customs broker, freight forwarder, consolidator, or carrier, and the Agent, in which the customs broker, freight forwarder, consolidator, or carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory for the benefit of the Agent and agrees, upon notice from the Agent, to hold and dispose of the subject Inventory solely as directed by the Agent.
“Customer Credit Liabilities” means, at any time, the aggregate face value at such time of (a) outstanding gift certificates and gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate to pay all or a portion of the purchase price for any Inventory, including, without limitation, discount cards, and (b) outstanding merchandise credits of the Borrowers.
“Daily Simple SOFR” means with respect to any applicable determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source)
“DDA” means any checking or other demand deposit account maintained by any Borrower. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.
“DDA List” has the meaning provided therefor in Section 2.21(a).
“DDA Notification” has the meaning provided therefor in Section 2.21(a).
“Debtor Relief Law” shall mean, collectively, (i) the Bankruptcy Code, (ii) the BIA, the Companies’ Creditors Arrangement Act (Canada) and the Winding-up and Restructuring Act (Canada), and (iii) all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States, Canada, the United Kingdom or other applicable jurisdictions from time to time in effect affecting the rights of creditors generally, in each case as amended from time to time.
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“Default” means any event or condition that constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means, subject to Section 8.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder, or (ii) pay to the Agent, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, the UK Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit, Swingline Loans, the Canadian Swingline Loans, or UK Swingline Loans, as applicable) within two Business Days of the date when due, (b) has notified the Borrowers, the Agent, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, or the UK Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect, (c) has failed, within three Business Days after written request by the Agent or the Lead Borrower, to confirm in writing to the Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States, Canada or the United Kingdom or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 8.13(b)) as of the date established therefor by the Agent in a written notice of such determination, which shall be delivered by the Agent to the Lead Borrower, the Issuing Bank, the Swingline Lender, the Canadian Swingline Lender, the UK Swingline Lender and each other Lender promptly following such determination.
“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.
“Determination Date” shall mean the date upon which each of the following has occurred:
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“Dilution Reserve” means, for any period, the excess of (a) that percentage reasonably determined by the Agent by dividing (i) the amount of charge-offs and other account adjustments of Eligible Wholesale Receivables and returns of goods purchased from the Borrowers during such period which had, at the time of sale, resulted in the creation of an Eligible Wholesale Receivable, by (ii) the amount of sales (exclusive of sales and other similar taxes) of the Borrowers during such period over (b) five percent (5%) (but in no event shall the Dilution Reserve be less than zero).
“Disqualified Stock” means any capital stock or other equity interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Loans mature. Notwithstanding the preceding sentence, any equity interest that would constitute Disqualified Stock solely because the holders thereof have the right to require a Credit Party to repurchase such equity interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrowers and their Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.
“Documentation Agent” means PNC Bank, National Association.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Availability” means, as of any date of determination thereof, the result, if a positive number, of:
minus
“Domestic Borrowers” means the Lead Borrower and the Other Domestic Borrowers.
“Domestic Borrowing” means a borrowing consisting of simultaneous Domestic Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Domestic Lenders pursuant to Section 2.3.
“Domestic Borrowing Base” means, at any time of calculation, an amount equal to:
(a) the product of (i) the Inventory Advance Rate multiplied by (ii) the Appraised Value of Eligible Inventory (other than Eligible In-Transit Inventory) of the Domestic Borrowers multiplied by (iii)(A) the Cost of Eligible Inventory of the Domestic Borrowers, minus (B) Inventory Reserves related to such Eligible Inventory of the Domestic Borrowers;
plus
(b) the product of (i) the Inventory Advance Rate multiplied by (ii) the Appraised Value of Eligible In-Transit Inventory of the Domestic Borrowers multiplied by (iii)(A) the Cost of Eligible In-Transit Inventory of the Domestic Borrowers, minus (B) Inventory Reserves related to Eligible In-Transit Inventory of the Domestic Borrowers; provided that, in no event shall the
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aggregate amounts available to be borrowed under this clause (b) exceed fifteen percent (15%) of the Domestic Loan Cap;
plus
(c) the product of (i) eighty-five percent (85%) multiplied by (ii)(A) the then Eligible Wholesale Receivables of the Domestic Borrowers, minus (B) Account Reserves related to such Eligible Wholesale Receivables of the Domestic Borrowers;
plus
(d) the product of (i) ninety percent (90%) multiplied by (ii)(A) the then Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers, minus (B) Account Reserves related to Eligible Credit Card and Debit Card Receivables of the Domestic Borrowers;
plus
(e) the product of (i) the Real Estate Advance Rate multiplied by (ii)(A) the Appraised Value of Eligible Real Estate, minus (B) Realty Reserves related to such Eligible Real Estate of the Domestic Borrowers, provided that in no event shall the aggregate amounts available to be borrowed under this clause (e) exceed twenty-five percent (25%) of the Domestic Borrowing Base;
minus
(f) without duplication, the then amount of all Availability Reserves and Realty Reserves established with respect to matters affecting the Domestic Borrowers.
“Domestic Commitment Percentage” means the Commitment Percentage of the Domestic Lenders.
“Domestic Commitments” means, as to each Domestic Lender, its obligation to (a) make Domestic Loans to the Domestic Borrowers pursuant to Section 2.1 and (b) purchase participations in Domestic Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Domestic Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such Domestic Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Domestic Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all Domestic Loans (including Swingline Loans) then outstanding, and (b) the then amount of the Domestic Letter of Credit Outstandings.
“Domestic Credit Parties” means, collectively, the Domestic Borrowers and each Material Domestic Subsidiary that is or becomes a guarantor of the Obligations. “Domestic Credit Party” means any one of such Persons.
“Domestic Lenders” means the Lenders having Domestic Commitments from time to time or at any time.
“Domestic Letter of Credit” means each Letter of Credit issued hereunder for the account of a Domestic Borrower.
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“Domestic Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to Domestic Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under Domestic Letters of Credit for which the Issuing Bank has not then been reimbursed.
“Domestic Letter of Credit Sublimit” means an amount equal to $70,000,000. The Domestic Letter of Credit Sublimit is part of, and not in addition to, the Domestic Total Commitments. A permanent reduction of the Domestic Total Commitments shall not require a corresponding pro rata reduction in the Domestic Letter of Credit Sublimit; provided, however, that if the Domestic Total Commitments are reduced to an amount less than the Domestic Letter of Credit Sublimit, then the Domestic Letter of Credit Sublimit shall be reduced to an amount equal to (or, at the Lead Borrower’s option, less than) the Domestic Total Commitments.
“Domestic Loan” means an extension of credit by a Domestic Lender to the Domestic Borrowers (to the extent based on Domestic Availability) under Section 2.
“Domestic Loan Cap” means, at any time of determination, the lesser of (a) the Domestic Total Commitments, minus the then outstanding principal balance of the Canadian Credit Extensions and the UK Credit Extensions, and (b) the Domestic Borrowing Base minus the then outstanding principal balance of the Canadian Credit Extensions, but only to the extent in excess of the Canadian Borrowing Base, and the UK Credit Extensions.
“Domestic Note” means a promissory note made by the Domestic Borrowers in favor of a Domestic Lender evidencing Domestic Loans made by such Domestic Lender, substantially in the form of Exhibit B-2.
“Domestic Notice of Borrowing” means a notice from the Lead Borrower to the Agent in connection with a Domestic Borrowing of Domestic Loans or Swingline Loans, which shall be substantially in the form of Exhibit H-1.
“Domestic Prime Rate Loan” shall mean any Loan bearing interest at a rate based on the Base Rate.
“Domestic Secured Party” or “Domestic Secured Parties” has the meaning assigned to such term in the Security Agreement.
“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
“Domestic Total Commitments” means the aggregate of the Domestic Commitments of all Domestic Lenders. On the Third Amendment Effective Date, the Domestic Total Commitments are $332,500,000.
“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.
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“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in Section 4.1 were satisfied (or waived by the Agent).
“Effective Date Guaranties” means, collectively, (i) the Guaranty executed on January 31, 2014 by the Domestic Borrowers in favor of the Canadian Secured Parties and the UK Secured Parties substantially in the form of Exhibit C-1 hereto, (ii) the Guaranty governed by Ontario law and executed on January 31, 2014 by the Canadian Borrower to guaranty the UK Liabilities and the Canadian Liabilities substantially in the form of Exhibit C-2 hereto, and (iii) the Guaranty governed by English law and executed on January 31, 2014 by the UK Borrower to guaranty the UK Liabilities and the Canadian Liabilities substantially in the form of Exhibit C-3 hereto.
“Electronic Copy” has the meaning provided therefor in Section 9.30.
“Electronic Record” has the meaning provided therefor in Section 9.30.
“Electronic Signature” has the meaning provided therefor in Section 9.30.
“Eligible Assignee” means (a) a Lender (other than a Defaulting Lender) or any of its Affiliates; (b) a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Lender assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Lender’s rights in and to a material portion of such Lender’s portfolio of asset based credit facilities, and (e) any other Person (other than a natural person) approved by the Agent, such approval not to be unreasonably withheld or delayed; provided that notwithstanding the foregoing, (i) “Eligible Assignee” shall not include a Credit Party or any of the Credit Parties’ Affiliates or Subsidiaries, and (ii) an Eligible Assignee who is assigned a Canadian Commitment shall meet the criteria set forth in the definition of “Canadian Lender”.
“Eligible Credit Card and Debit Card Receivables” means Card Receivables due to a Borrower (other than the UK Borrower) on a non-recourse basis from Visa, MasterCard, American Express Company, Discover, and other major credit card or debit card processors, in each case acceptable to the Agent in its Permitted Discretion, as arise in the ordinary course of business, that have been earned by performance and are deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless the Agent otherwise agrees, none of the following shall be deemed to be Eligible Credit Card and Debit Card Receivables:
(a) Card Receivables that have been outstanding for more than five (5) Business Days from the date of sale;
(b) Card Receivables with respect to which a Borrower does not have good and valid title, free and clear of any Lien (other than Liens granted to the Agent for its own benefit and the ratable benefit of the other applicable Secured Parties and Permitted Encumbrances for which the Agent may, in its Permitted Discretion, establish adequate Reserves pursuant to Section 2.2);
(c) Card Receivables that are not subject to a first priority security interest in favor of the Agent for its own benefit and the ratable benefit of the other applicable Secured Parties (it being
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the intent that chargebacks in the ordinary course by the credit card and debit card processors, and Permitted Encumbrances for which the Agent may, in its Permitted Discretion, establish adequate Reserves pursuant to Section 2.2, shall not be deemed violative of this clause);
(d) Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (but only to the extent of such claim, counterclaim, offset or chargeback); or
(e) Card Receivables which the Agent determines in its Permitted Discretion to be uncertain of collection.
“Eligible In‑Transit Inventory” means, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory:
(a) which has been shipped from a foreign location for receipt by Borrower, but which has not yet been delivered to such Borrower, which such Inventory has been in transit for sixty (60) days or less from the date of shipment of such Inventory;
(b) for which the purchase order is in the name of a Borrower and title and risk of loss has passed to such Borrower;
(c) for which a xxxx of lading or other document of title has been issued, and in each case as to which the Agent has control (as defined in the UCC) over the documents of title which evidence ownership of the subject Inventory (including the delivery of a Customs Broker/Carrier Agreement);
(d) which is insured to the reasonable satisfaction of the Agent (including, without limitation, marine cargo insurance);
(e) the foreign vendor with respect to such Inventory is an Approved Foreign Vendor; and
(f) Which otherwise would constitute Eligible Inventory;
provided that, the Agent may, in its discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event the Agent determines that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or any event has occurred or is reasonably anticipated by the Agent to arise which may otherwise adversely impact the value of such Inventory or the ability of the Agent to realize upon such Inventory.
“Eligible Inventory” shall mean, as of the date of determination thereof (without duplication), (a) Eligible In-Transit Inventory, (b) Eligible Xxxxxxxx & Xxxxxx Inventory, (c) Eligible Journeys Inventory, (d) Eligible Wholesale Inventory, and (e) other items of Inventory of the Borrowers (other than the UK Borrower) that are finished goods, merchantable and readily saleable to the public in the ordinary course deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless otherwise approved in writing by the Agent, none of the following shall be deemed to be Eligible Inventory:
(a) Inventory that is not owned solely by a Borrower, or is leased or on consignment, or such Borrower does not have good and valid title thereto;
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(b) Inventory (other than Eligible In-Transit Inventory) that is not located at a warehouse facility or store that is owned or leased by a Borrower (it being understood that any Inventory that is in transit between a warehouse facility and a store or between stores that are owned or leased by one or more Borrowers (other than the UK Borrower) will not be rendered “ineligible” by the application of this clause (b));
(c) Inventory that represents (i) goods damaged, defective or otherwise unmerchantable, or (ii) goods returned to the vendor;
(d) Inventory that is not located in the United States of America or Canada other than Eligible In-Transit Inventory, provided that the United States of America for purposes of this clause (d) shall include Puerto Rico but exclude other territories and possessions;
(e) Inventory that is not subject to a perfected first priority security interest in favor of the Agent for the benefit of the applicable Secured Parties (it being the intent that Permitted Encumbrances for which the Agent, in its Permitted Discretion, has established adequate Reserves pursuant to Section 2.2 shall not be deemed violative of this clause);
(f) Inventory which consists of samples, labels, bags, packaging and other similar non-merchandise categories;
(g) Inventory as to which insurance in compliance with the provisions of Section 5.7 hereof is not in effect;
(h) Inventory which has been sold but not yet delivered or as to which a Borrower has accepted a deposit;
(i) Inventory that is located (i) in a distribution center or warehouse leased by a Borrower described on Schedule 1.2 hereto unless in each case, the applicable lessor has delivered to the Agent a Collateral Access Agreement; or (ii) in any other leased distribution center or warehouse in which Inventory having a Cost of at least $5,000,000 is maintained, unless in each case, the applicable lessor has delivered to the Agent a Collateral Access Agreement (unless the Agent establishes an Availability Reserve for rent in such amounts as it deems appropriate from time to time in its Permitted Discretion);
(j) Inventory that is owned by any joint venture of the Borrowers; or
(k) Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which any Borrower or any of its Subsidiaries has received written notice to limit, restrict or terminate (in whole or in part) the right of the Borrowers or any of their Subsidiaries to dispose of any Inventory which is the subject of such agreement; provided that if any such licensing, patent, royalty, trademark, trade name or copyright agreement permits the Borrowers (or the Borrowers are otherwise permitted) to dispose of the Inventory which is the subject thereof after receipt of such written notice (the “Sell-off Period”), then, so long as the Agent would not be precluded from disposing of such Inventory in a Liquidation, such Inventory shall continue to constitute Eligible Inventory during the Sell-off Period (as long it would not otherwise be excluded under this definition), but the Inventory Advance Rate for such Inventory shall reduce by 2.5% each week until such Inventory is disposed of.
“Eligible Xxxxxxxx & Xxxxxx Inventory” shall mean, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory which is sold through the Xxxxxxxx & Xxxxxx
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operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.
“Eligible Journeys Inventory” shall mean, as of the date of determination thereof, without duplication of other Eligible Inventory, Inventory which is sold through the Journeys operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.
“Eligible Real Estate” means Real Estate which is (i) wholly-owned in fee or (ii) for a portion of the Xxxxxx County Property, leased under a ground lease acceptable to the Agent in its reasonable discretion, which in each case, except as otherwise agreed by the Agent, in its discretion, satisfies all of the following conditions:
(a) A Domestic Borrower (i) owns such Real Estate in fee simple absolute or (ii) with respect to a portion of the Xxxxxx County Property, is the lessee under a Lease for such Real Estate;
(b) The Agent shall have received evidence that all actions have been taken that the Agent may reasonably deem necessary or appropriate in order to create valid first and subsisting Liens (subject only to Permitted Encumbrances (other than Liens securing Indebtedness) which have priority over the Lien of the Agent by operation of law or otherwise reasonably acceptable to the Agent) on the property described in the Mortgages;
(c) The Agent shall have received an appraisal (based upon Appraised Value) of such Real Estate complying with the requirements of FIRREA and as provided in the definition of Appraised Value by a third party appraiser reasonably acceptable to the Agent and otherwise in form and substance reasonably satisfactory to the Agent;
(d) The Real Estate Eligibility Requirements have been satisfied or waived;
(e) The Lease for the applicable portion of the Xxxxxx County Property shall contain customary estoppels, cure rights, and other provisions protecting a leasehold mortgagee’s interests in the Lease as the Agent may reasonably determine in or if not contained therein, such provisions have been included in an agreement between the lessor and the Agent in form and substance reasonably satisfactory to the Agent, unless waived by the Agent; and
(f) The Domestic Borrowers shall not be in default of the material terms of the Lease for the applicable portion of the Xxxxxx County Property.
“Eligible Wholesale Inventory” shall mean, without duplication of other Eligible Inventory, Inventory which is sold at wholesale through the licensed brands operations, and/or the Xxxxxxxx & Xxxxxx wholesale operations of the Borrowers (other than the UK Borrower) and which would otherwise constitute Eligible Inventory.
“Eligible Wholesale Receivables” shall mean each Account acceptable to the Agent in its Permitted Discretion, as arises in the ordinary course of business from the sale of finished goods inventory or rendering of services by the Borrowers (other than the UK Borrower) to wholesale customers, that have been earned by performance and are deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Domestic Borrowing Base or the Canadian Borrowing Base, as applicable. Without limiting the foregoing, unless the Agent otherwise agrees, no Account shall be deemed to be an Eligible Wholesale Receivable if:
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(a) it is not subject to a valid perfected first priority security interest in favor of the Agent for the benefit of the applicable Secured Parties, subject to no other Lien other than Permitted Encumbrances for which the Agent, in its Permitted Discretion, has established adequate Reserves pursuant to Section 2.2;
(b) it is not evidenced by an invoice, statement or other documentary evidence reasonably satisfactory to the Agent;
(c) it arises out of services rendered or sales to, or out of any other transaction between, among or with, one or more Affiliates or employees of Borrowers;
(d) it remains unpaid for longer than the earlier of (i) sixty-one (61) calendar days after the original due date, or (ii) ninety-one (91) calendar days after the original invoice date or, with respect to certain Account Debtors that may be agreed in writing from time to time between the Agent and Lead Borrower, one hundred twenty-one (121) calendar days after the original invoice date;
(e) it is owed by an Account Debtor and/or its Affiliates with respect to which more than 50% of the aggregate balance of all Accounts owing from such Account Debtor and/or its Affiliates remain unpaid for longer than the earlier of (i) sixty-one (61) calendar days after the original due date, or (ii) ninety-one (91) calendar days after the original invoice date or, with respect to certain Account Debtors that may be agreed in writing from time to time between the Agent and Lead Borrower, one hundred twenty-one (121) calendar days after the original invoice date;
(f) with respect to all Accounts owed by any particular Account Debtor and/or its Affiliates, 50% or more of all such Accounts are deemed not to be Eligible Wholesale Receivables by the Agent in its Permitted Discretion (which percentage may, in the Agent’s Permitted Discretion, be increased or decreased);
(g) all Accounts owed by the corresponding Account Debtor and/or its Affiliates together exceed twenty percent (20%) (or, 35% for each of the Account Debtors that may be agreed in writing from time to time between the Agent and the Lead Borrower) of the net collectible dollar value of all Accounts at any one time (but the portion of the Accounts not in excess of the applicable percentages will be deemed Eligible Wholesale Receivables);
(h) any covenant, agreement, representation or warranty contained in any Loan Document with respect to such Account has been breached and remains uncured;
(i) the Account Debtor for such Account has commenced a voluntary case under any Debtor Relief Law or has made an assignment for the benefit of creditors, or a decree or order for relief has been entered by a court having jurisdiction in respect of such Account Debtor in an involuntary case under any Debtor Relief Law, or any other petition or application for relief under any Debtor Relief Law has been filed against such Account Debtor, or such Account Debtor has failed, suspended business or ceased to be solvent, called a meeting of its creditors, or has consented to or suffered a receiver, trustee, liquidator or custodian to be appointed for it or for all or a significant portion of its assets or affairs;
(j) it arises from the sale of property or services rendered to one or more Account Debtors outside the continental United States or Canada or that have their principal place of business or chief executive offices outside the continental United States or Canada, unless such Account is fully backed back an irrevocable letter of credit on terms, and issued by a financial
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institution, acceptable to the Agent and such irrevocable letter of credit is in the possession of, and may be drawn on by, the Agent;
(k) it represents the sale of goods to an Account Debtor on a xxxx‑and‑hold, guaranteed sale, sale-and-return, sale on approval, consignment or other repurchase or return basis or is evidenced by Chattel Paper or an Instrument of any kind not delivered to the Agent or has been reduced to judgment;
(l) the applicable Account Debtor for such Account is any Governmental Authority, unless (i) if an Account due from the United States of America, rights to payment of such Account have been assigned to Agent, for the benefit of itself and Lenders, pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727, et seq. and 41 U.S.C. Section 15, et seq.), or otherwise, or (ii) if an Account due from the federal government of Canada or a political subdivision thereof, or any province or territory, or any municipality or department or agency or instrumentality thereof, then the provisions of the Financial Administration Act (Canada) or any applicable provincial, territorial or municipal law of similar purpose and effect restricting the assignment thereof have been complied with, and, in each case, all applicable statutes or regulations respecting the assignment of government Accounts have been complied with;
(m) it is subject to an offset, credit (including any resource or other income credit or offset), deduction, defense, discount, chargeback, freight claim, allowance, adjustment, dispute or counterclaim, or is contingent in any respect or for any reason (but only to the extent of such offset, credit, deduction, defense, discount, chargeback, freight claim, allowance, adjustment, dispute or counterclaim or contingency);
(n) there is an agreement with an Account Debtor for any deduction from such Account, except for discounts or allowances made in the ordinary course of business for prompt payment, all of which discounts or allowances are reflected in the calculation of the face value of each invoice related thereto, such that only the discounted amount of such Account after giving effect to such discounts and allowances shall be considered an Eligible Wholesale Receivable;
(o) any return, rejection or repossession of goods or services related to it has occurred;
(p) it is not payable to a Borrower;
(q) the applicable Borrower has agreed to accept or has accepted any non-cash payment for such Account;
(r) it constitutes a re-billing of an amount previously billed or double billing (i.e., counted twice);
(s) it constitutes a billing for a sample for which there is no written invoice or similar agreement evidencing the Account Debtor’s agreement to pay such Account;
(t) with respect to any Account arising from the sale of goods, the goods have not been shipped to the Account Debtor or its designee;
(u) with respect to any Account arising from the performance of services, the services have not been actually performed or the services were undertaken in violation of any law;
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(v) the applicable Account Debtor for such Account is located in the States of New Jersey, Minnesota, or West Virginia (or any other state that requires a creditor to file a business activity report or similar document in order to bring suit or otherwise enforce its remedies against such Account Debtor in the courts or through any judicial process of such state), unless the requisite Borrower has qualified to do business in New Jersey, Minnesota, West Virginia, or such other states, or has filed a business activities report with the applicable division of taxation, the department of revenue, or with such other state offices, as appropriate, for the then-current year, or is exempt from such filing requirement;
(w) it is an Account subject to a debit memo issued by any Borrower;
(x) such Account does not arise from the actual and bona fide sale and delivery of goods by a Borrower or rendition of services by a Borrower in the ordinary course of its business which transactions are completed in accordance with the terms and provisions contained in any documents related thereto;
(y) it is an Account subject to a surety bond, guaranty, indemnity or other similar arrangement;
(z) it is an Account owed by an Account Debtor that is subject to legal process by a Borrower or against which a Borrower has asserted a mechanics’ or other similar lien or that is subject to collection by a Borrower;
(aa) it is an Account (i) owing from any Person that is also a supplier to or creditor of a Borrower or (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Borrower to discounts on future purchase therefrom, unless the applicable Person has waived the applicable right of setoff in a manner acceptable to Agent;
(bb) it is an Account evidenced by a promissory note or other instrument; or
(cc) it fails to meet such other specifications and requirements which may from time to time be established by the Agent on a prospective basis or is not otherwise satisfactory to the Agent, as determined in the Agent’s Permitted Discretion.
“Environmental Compliance Reserve” means, with respect to Eligible Real Estate, such reserves which the Agent, from time to time in its Permitted Discretion establishes for estimable amounts that are reasonably likely to be expended by any of the Credit Parties in order for such Credit Party and its operations and property (a) to comply with any notice from a Governmental Authority asserting non-compliance with Environmental Laws, or (b) to correct any such non-compliance with Environmental Laws or to provide for any Environmental Liability.
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, or handling, treatment, storage, disposal, Release or threatened Release of any Hazardous Material.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, natural resource damage, costs of environmental remediation, administrative oversight costs, fines, penalties or indemnities), of any Person directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
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disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equivalent Amount” means, (a) the Equivalent CD$ Amount, and (b) with respect to any Alternative Currency, the equivalent amount thereof in Dollars determined by the Agent at such time on the basis of the Spot Rate.
“Equivalent CD$ Amount” means, on any date, the rate at which Canadian Dollars may be exchanged into Dollars, determined by reference to the Bank of Canada rate at the close of business on the immediately preceding Business Day as provided on the Reuters screen page. In the event that such rate does not appear on such Reuters screen page, “Equivalent CD$ Amount” shall mean, on any date, the amount of Dollars into which an amount of Canadian Dollars may be converted or the amount of Canadian Dollars into which an amount of Dollars may be converted, in either case, at, in the case of the Canadian Borrower, the Agent’s spot buying rate in Toronto as at approximately 12:00 noon (Toronto time) on such date and, in the case of a Domestic Borrower, the Agent’s spot buying rate in New York as at approximately 12:00 noon, Local Time on the immediately preceding Business Day.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by a Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by a Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan (which is subject to Section 4063 of ERISA) or Multiemployer Plan; or (g) the receipt by a Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“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.
“Euros” and the designation “€” mean the lawful currency of the Participating Member States.
“EURIBOR” has the meaning provided therefor in the definition of Alternative Currency Term Rate.
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“Event of Default” has the meaning provided therefor in Section 7.1. An “Event of Default” shall be deemed to have occurred and to be continuing in accordance with the provisions of Section 7.2 hereof.
“Excess Availability” means, as of any date of determination, the excess, if any, of (a) the Loan Cap, over (b) the Total Outstandings.
“Excluded DDA” means (a) all DDAs maintained by any Credit Party in the ordinary course of business and actually used solely (i) for payroll and payroll taxes and other trust funds, (ii) for sales taxes or other taxes, (iii) to fund a reserve account pursuant to a processing agreement entered into in the ordinary course of business with a credit card or debit card processor or check processor, or (iv) after the occurrence and during the continuation of a Cash Dominion Event, to fund chargebacks, fees, fines, penalties and other charges due and owing to credit card or debit card processors or check processors arising in the ordinary course of business with respect to the processing of credit card or debit card charges or checks, and (b) any DDA of the UK Borrower and the other UK Credit Parties until such time as the UK Borrower and the other UK Credit Parties have granted a Lien on, and security interest in, their assets to secure the UK Liabilities and the Canadian Liabilities as set forth in Section 2.30 hereof.
“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Credit Party of, or the grant under a Loan Document by such Credit Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 9.27 hereof and any and all guarantees of such Credit Party’s Swap Obligations by other Credit Parties) at the time the guaranty of such Credit Party, or grant by such Credit Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one Hedging Agreement, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Hedging Agreement for which such guaranty or security interest becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be deducted or withheld 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) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which any Borrower or Lender is located, (c) in the case of a Foreign Lender (other than a Canadian Lender or a UK Lender) any U.S. withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a New Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a New Lending Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 2.26, (d) in the case of a Canadian Lender (other than the Canadian Lenders on the Effective Date), any withholding tax that is imposed on amounts payable to such Canadian Lender at the time such Canadian Lender becomes a party to this Agreement (or designates a New Lending Office) or is attributable to such Canadian Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 2.26, except to the extent that such Canadian Lender (or its assignor, if any) was entitled, at the time of designation of a New Lending Office (or assignment), to receive additional amounts from the Canadian Borrower with respect to such withholding tax pursuant to Section 2.26, (e) any U.S. federal withholding or Canadian Taxes imposed pursuant to FATCA, (f) any Canadian Tax (i) imposed on
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a payment by or on account of any obligation of a Credit Party hereunder: (A) to a person with which the Credit Party does not deal at arm’s length (for purposes of the Income Tax Act (Canada)) at the time of making such payment or (B) in respect of a debt or other obligation to pay an amount to a person with whom the payer is not dealing at arm’s length (for the purposes of the Income Tax Act (Canada)) at the time of such payment, or (ii) that would not have been imposed but for a Recipient being a “specified shareholder” (as defined in subsection 18(5) of the Income Tax Act (Canada)) of a Credit Party or not dealing at arm’s length (for purposes of the Income Tax Act (Canada)) with such a specified shareholder, and (g) any Taxes attributable to a Recipient’s failure to comply with Section 2.26(k).
“Excluded UK Subsidiaries” means the Subsidiaries of the UK Borrower in existence as of the Effective Date and any future Subsidiaries of such Excluded UK Subsidiaries.
“Existing Credit Agreement” has the meaning set forth in the Recitals hereto.
“Existing Financing Agreements” shall mean the “Loan Documents”, as defined in the Existing Credit Agreement.
“Existing Letters of Credit” means each of the letters of credit listed on Schedule 2.6(j) hereto.
“Facility Guaranty” means any Guaranty made by the Guarantors in favor of the applicable Secured Parties, in form reasonably satisfactory to the Agent.
“FASB” means the Financial Accounting Standards Board, which promulgates accounting standards.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
“Federal Funds Effective Rate” means for any day, the per annum rate calculated by FRBNY based on such day’s federal funds transactions by depository institutions (as determined in such manner as FRBNY shall set forth on its public website from time to time) and published on the next Business Day by FRBNY as the federal funds effective rate; provided, that in no event shall the Federal Funds Effective Rate be less than zero.
“Fee Letter” means the letter between the Lead Borrower and the Agent dated as of January 3, 2018, as such letter may from time to time be amended.
“Financial Officer” means, with respect to any Borrower, the chief financial officer, controller, assistant controller, treasurer, or assistant treasurer of such Borrower. Any document delivered hereunder that is signed by a Financial Officer of a Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Borrower and such Financial Officer shall be conclusively presumed to have acted on behalf of such Borrower.
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“FIRREA” means the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.
“First Amendment Effective Date” means, February 1, 2019.
“Fiscal Month” means any four or five week fiscal period of any Fiscal Year in accordance with the fiscal accounting calendar of the Credit Parties.
“Fiscal Quarter” means any thirteen week fiscal period of any Fiscal Year in accordance with the fiscal accounting calendar of the Credit Parties.
“Fiscal Year” means any period of four consecutive Fiscal Quarters ending on the Saturday closest to January 31 of any calendar year.
“Fixed Charge Coverage Ratio” means, as of the last day of any Fiscal Month, for the Lead Borrower on a Consolidated basis for the Applicable Fiscal Period then ended, the ratio of (a) an amount equal to Consolidated EBITDA less Capital Expenditures and Taxes paid in cash, in each case for such period, to (b) Fixed Charges for such period. Consolidated EBITDA, Capital Expenditures, Taxes and Fixed Charges shall be calculated without regard to (i) those items attributable to any Person prior to the date it becomes a Domestic Subsidiary of the Lead Borrower or any of its other Domestic Subsidiaries or is merged into or consolidated with the Lead Borrower or any of its Domestic Subsidiaries or that Person’s assets are acquired by the Lead Borrower or any of its Domestic Subsidiaries and (ii) any Subsidiaries other than Domestic Subsidiaries.
“Fixed Charges” means, with respect to any Person, the sum of (a) Consolidated Interest Expense paid in cash, and (b) scheduled principal payments on any Indebtedness for such period (excluding the Obligations but including Capital Lease Obligations).
“Flood Insurance Laws” means collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Reform Act of 2004 as now or hereafter in effect or any successor statute thereto, and (iii) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States of America or any State thereof or the District of Columbia.
“FRBNY” means the Federal Reserve Bank of New York.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Commitment Percentage of the outstanding Letters of Credit other than Letters of Credit as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, the Canadian Swingline Lender, and the UK Swingline Lender, such Defaulting Lender’s Commitment Percentage of Swingline Loans, Canadian Swingline Loans, or UK Swingline Loans, as applicable, other than Swingline Loans, Canadian Swingline Loans, or UK Swingline Loans, as applicable, as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
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“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means accounting principles which are (a) consistent with those promulgated or adopted by the FASB and its predecessors (or successors) in effect and applicable to that accounting period in respect of which reference to GAAP is being made, and (b) consistently applied with past financial statements of the Credit Parties adopting the same principles provided that, with respect to Foreign Subsidiaries organized under the laws of Canada, or any province or territory thereof, unless GAAP is being applied, “GAAP” shall mean principles which are consistent with those promulgated or adopted by the Chartered Professional Accountants Canada and its predecessors (or successors) in effect and applicable to the accounting period in respect of which reference to GAAP is being made.
“Governmental Authority” means any federal, state, provincial, territorial, municipal, local, foreign or other agency, authority, body, commission, court, instrumentality, political subdivision, central bank, or other entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions for any governmental, judicial, investigative, regulatory or self-regulatory authority (including the Financial Conduct Authority, the Prudential Regulation Authority and any supra-national bodies such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the primary purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantor” means (i) each Material Domestic Subsidiary of the Lead Borrower that shall be required to execute and deliver a Facility Guaranty of the Obligations pursuant to Section 5.14, (ii) each Material Subsidiary of the Canadian Borrower that shall be required to execute and deliver a Facility Guaranty of the Canadian Liabilities and the UK Liabilities pursuant to Section 5.14, and (iii) each Material Subsidiary of the UK Borrower that shall be required to execute and deliver a Facility Guaranty of the UK Liabilities and the Canadian Liabilities pursuant to Section 2.30 or Section 5.14, as applicable.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and all other substances or wastes of any nature regulated pursuant to any Environmental Law, including any material listed as a hazardous substance under Section 101(14) of CERCLA.
“Hedging Agreement” means any interest rate protection agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, foreign currency exchange agreement, commodity price protection agreement, or other interest or currency exchange rate or commodity price hedging arrangement designed to hedge against fluctuations in interest rates or foreign exchange rates.
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“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money (including any obligations of such Person that are without recourse to the credit of such Person), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) to the extent not otherwise included, all net obligations of such Person under Hedging Agreements, (k) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Stock, and (l) the principal and interest portions of all rental obligations of such Person under any Synthetic Lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnitee” has the meaning provided therefor in Section 9.4(b).
“Instrument” has the meaning ascribed to such term in the UCC.
“Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights and copyright applications; (including copyrights for computer programs) and all tangible and intangible property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing.
“Interest Payment Date” means (a) with respect to any Domestic Prime Rate Loan (including a Swingline Loan), Canadian Prime Rate Loan (including a Canadian Swingline Loan), U.S. Index Rate Loan (including a Canadian Swingline Loan), Alternative Currency Daily Rate Loan or UK Swingline Loan, the first day of each calendar month and (b) with respect to any Term SOFR Loan, BA Equivalent Loan, or Alternative Currency Term Rate Loan the last day of the Interest Period applicable to the Borrowing of which such Loan is a part, and, in addition, if such Term SOFR Loan, BA Equivalent Loan or Alternative
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Currency Term Rate Loan has an Interest Period of greater than 90 days, on the last day of the third month of such Interest Period.
“Interest Period” means, with respect to any Term SOFR Borrowing, BA Equivalent Loan Borrowing, or Alternative Currency Term Rate Loan Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two (only with respect to BA Equivalent Loan Borrowings) three or six (only with respect to Term SOFR Borrowings or Alternative Currency Term Rate Loan Borrowings) months thereafter, as the Lead Borrower, UK Borrower or Canadian Borrower may elect by notice to the Agent in accordance with the provisions of this Agreement, provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month during which such Interest Period ends) shall end on the last Business Day of the calendar month during which such Interest Period ends, (c) any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date, and (d) notwithstanding the provisions of clause (c), no Interest Period shall have a duration of less than one month, and if any Interest Period applicable to a Term SOFR Borrowing, BA Equivalent Loan Borrowing or borrowing of an Alternative Currency Term Rate Loan would be for a shorter period, such Interest Period shall not be available hereunder. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Inventory” has the meaning assigned to such term in the Security Agreement.
“Inventory Advance Rate” means (x) for the period from the Fiscal Month of August through and including the Fiscal Month of November of each Fiscal Year, 92.5% and (y) at all other times during the Fiscal Year, 90% or, in the case of Inventory acquired in a Permitted Acquisition, such rate as the Agent shall establish, in its Permitted Discretion, after completion of an appraisal on such Inventory, provided that such rate shall not exceed 90% or, during such period set forth in subsection clause (x) above, 92.5%; provided further that from and after the Third Amendment Effective Date, the Inventory Advance Rate for Eligible In-Transit Inventory shall be 75% until such time (which shall in no event be after the one (1) year anniversary of the Third Amendment Effective Date) the Agent receives satisfactory appraisal and field examination of such Inventory.
“Inventory Reserves” means such reserves as may be established from time to time by the Agent in its Permitted Discretion (after consultation with the Lead Borrower (whose consent to any Inventory Reserve shall not be required)) with respect to the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as affect the Appraised Value of the Eligible Inventory. Without limiting the generality of the foregoing, Inventory Reserves may include (but are not limited to) reserves based on (i) obsolescence; (ii) seasonality; (iii) Shrink; (iv) imbalance; (v) change in Inventory character; (vi) change in Inventory composition; (vii) change in Inventory mix; (viii) markdowns (both permanent and point of sale); and (ix) retail xxxx-ons and markups inconsistent with prior period practice and performance; industry standards; current business plans; or advertising calendar and planned advertising events. Inventory Reserves shall be established and calculated in a manner and methodology consistent with the Agent’s practices as of the Third Amendment Effective Date with other similarly situated borrowers.
“Investment” has the meaning provided therefor in Section 6.4.
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“Investment Accounts” means all accounts maintained by any of the Credit Parties for Investments as of the Third Amendment Effective Date and thereafter opened by any of the Credit Parties and consented to by the Agent.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means, with respect to Domestic Letters of Credit and UK Letters of Credit, Bank of America and, with respect to Canadian Letters of Credit, Bank of America-Canada Branch; provided that if such Issuing Bank is unable to issue any Letter of Credit as a result of the provisions of Section 2.6(b)(ii) hereof, the Lead Borrower may appoint one other Lender who agrees to accept such appointment to act as Issuing Bank hereunder. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“ITA” means the Income Tax Xxx 0000 (UK).
“Joinder Agreement” shall mean an agreement in form and substance acceptable to the Agent in its Permitted Discretion, pursuant to which, among other things, a Person becomes a party to, and bound by, the terms of this Agreement and/or other Loan Documents in the same capacity and to the same extent as either a Borrower or a Guarantor, as the Agent may determine.
“Judgment Currency” has the meaning provided therefor in Section 9.20.
“L/C Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of Credit.
“LCA Election” has the meaning provided therefor in Section 1.9.
“LCA Test Date” has the meaning provided therefor in Section 1.9.
“Lead Borrower” means Genesco Inc. and any replacement that the Borrowers appoint to act as Lead Borrower upon the consent of the Agent, which consent shall not be unreasonably withheld.
“Lease” means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Credit Party is entitled to the use or occupancy of any real property for any period of time.
“Lenders” shall mean the Persons identified on Schedule 1.1 and each assignee that becomes a party to this Agreement as set forth in Section 9.6(b).
“Letter of Credit” shall mean a Standby Letter of Credit, Commercial Letter of Credit or Banker’s Acceptance that is (i) issued pursuant to this Agreement for the account of any Borrower or any Guarantor, (ii) issued in connection with the purchase of Inventory by any Borrower or any Guarantor or for any other purpose that is reasonably acceptable to the Agent, and (iii) in form and substance reasonably satisfactory to the Issuing Bank. The term “Letter of Credit” shall include, without limitation, all Existing Letters of Credit and all Banker’s Acceptances.
“Letter of Credit Fees” shall mean the fees payable in respect of Letters of Credit pursuant to Section 2.13.
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“Letter of Credit Outstandings” shall mean, collectively, Canadian Letter of Credit Outstandings, the UK Letter of Credit Outstandings and Domestic Letter of Credit Outstandings. For purposes of computing the amounts available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.6. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Limited Condition Acquisition” means any purchase or other acquisition, by merger, amalgamation, consolidation or otherwise, by the Borrowers or any Subsidiary of equity interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“Liquidation” means the exercise by the Agent of those rights and remedies accorded to the Agent under the Loan Documents and Applicable Law as a creditor of the Borrowers with respect to the realization on the Collateral, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Borrowers acting with the consent of the Agent, of any public, private or “going-out-of-business”, “store closing” or other similar sale or any other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
“Liquidation Percentage” means, for any Lender, a fraction, the numerator of which is the sum of such Lender’s Domestic Total Commitment, Canadian Commitment and UK Commitment on the Determination Date and the denominator of which is the Total Commitments of all Lenders on the Determination Date.
“Loan” means a Revolving Loan, a Swingline Loan, a Canadian Swingline Loan or a UK Swingline Loan as applicable.
“Loan Account” has the meaning provided therefor in Section 2.20(a).
“Loan Cap” means, at any time of determination, the lesser of (a) the Total Commitments or (b) the Combined Borrowing Base.
“Loan Documents” means this Agreement, the Notes, the Letters of Credit, the Fee Letter, the Third Amendment Fee Letter, all Borrowing Base Certificates, the Account Control Agreements, the DDA Notifications, the Credit Card Notifications, the Security Documents, the Perfection Certificate, the Effective Date Guaranties, the Facility Guaranty, the Confirmation Agreement, the UK Deed of Confirmation, and any other instrument or agreement now or hereafter executed and delivered in connection herewith or therewith, each as amended and in effect from time to time.
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“Local Time” means, (a) with respect to Domestic Loans, Swingline Loans, Canadian Loans and Canadian Swingline Loans, Eastern time (daylight or standard, as applicable), and (b) with respect to UK Loans and UK Swingline Loans, prevailing time in London, England.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Material Adverse Effect” means a material adverse effect on (a) the business, operations, property, assets, condition, financial or otherwise, of the Credit Parties, taken as a whole, (b) the ability of the Credit Parties, taken as a whole, to perform any material obligation or to pay any Obligations under this Agreement or any of the other Loan Documents, or (c) the validity or enforceability of this Agreement or any of the other Loan Documents or any of the material rights or remedies of the Agent or the Lenders hereunder or thereunder.
“Material Domestic Subsidiary” means, as of any date of determination, any Domestic Subsidiary (a) the total tangible assets (after intercompany eliminations) of which, as determined in accordance with GAAP, exceeds five percent (5%) of the Consolidated total tangible assets of the Lead Borrower (after intercompany eliminations) measured as of the end of the most recently ended Fiscal Quarter with respect to which the Agent has received financial statements required to be delivered pursuant to Sections 5.1(a) and 5.1(b), as applicable, or (b) which represents more than ten percent (10%) of Consolidated Net Income of the Lead Borrower for the previous twelve Fiscal Months ending as of the last day of such Fiscal Quarter. “Material Domestic Subsidiary” shall include, without limitation, any Subsidiary whose principal assets are one or more Material Domestic Subsidiaries. A Material Domestic Subsidiary may include, at the sole option of Lead Borrower, any Domestic Subsidiary designated by Borrower to be a “Material Domestic Subsidiary” by written notice to Agent and compliance with the requirements of Section 5.14.
“Material Foreign Subsidiary” means each Foreign Subsidiary which is a direct or indirect Subsidiary of a Borrower which, as of the last day of any Fiscal Quarter, satisfied any one or more of the following tests:
(a) such Foreign Subsidiary’s total tangible assets (after intercompany eliminations), as determined in accordance with GAAP, exceeds 10% of Consolidated total tangible assets of the Lead Borrower; or
(b) such Foreign Subsidiary’s Consolidated Net Income for the previous twelve months ending as of the last day of such Fiscal Quarter exceeds 10% of Consolidated Net Income of the Lead Borrower for the previous twelve months ending as of the last day of such Fiscal Quarter; or
(c) such Foreign Subsidiary’s Consolidated Net Worth exceeds 10% of the Consolidated Net Worth of the Lead Borrower.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit) of any one or more of the Borrowers in an aggregate principal amount exceeding $20,000,000.
“Material Real Estate” means any piece of Real Estate located in the United States that is owned in fee by a Credit Party having a fair market value in excess of $5,000,000 as reasonably determined, in good faith, by the Lead Borrower and reasonably acceptable to the Agent.
“Material Subsidiary” means a Material Domestic Subsidiary or a Material Foreign Subsidiary. A Material Subsidiary may include, at the sole option of Lead Borrower, any Subsidiary designated by Borrower to be a “Material Subsidiary” by written notice to Agent and compliance with the requirements of Section 5.14. Additionally, Lead Borrower may designate any Material Subsidiary which does not
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constitute a Material Domestic Subsidiary or a Material Foreign Subsidiary under the respective definitions thereof as no longer constituting a Material Subsidiary and a Material Domestic Subsidiary or Material Foreign Subsidiary, as the case may be.
“Maturity Date” means January 28, 2027.
“Maximum Rate” has the meaning provided therefor in Section 9.14.
“Minority Lenders” has the meaning provided therefor in Section 9.3(c).
“Modification” means any amendment, supplement, extension, approval, consent, waiver, change or other modification of a Loan Document, including any waiver of a Default or Event of Default.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Mortgage” means each and every fee and leasehold mortgage or deed of trust, security agreement and assignment by the Domestic Borrower owning or holding the leasehold interest in the Real Estate encumbered thereby in favor of the Agent.
“Mortgage Policy” has the meaning specified in the definition of Real Estate Eligibility Requirements.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“New Lending Office” has the meaning provided therefor in Section 2.26(e).
“Noncompliance Notice” has the meaning provided therefor in Section 2.5(a)(ii).
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Notes” shall mean, collectively, the Canadian Notes, the Domestic Notes, the UK Notes, the Swingline Note, the Canadian Swingline Notes and the UK Swingline Notes.
“Notice of Borrowing” means a Domestic Notice of Borrowing, a Canadian Notice of Borrowing, or a UK Notice of Borrowing, as applicable.
“Obligations” means (a) the principal of, and interest (including all interest that accrues after the commencement of any case or proceeding by or against any Borrower under any federal, state or provincial bankruptcy, insolvency, receivership or similar law, whether or not allowed in such case or proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) the obligations of the Borrowers under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, (c) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise, of the Borrowers to the Secured Parties under this Agreement and the other Loan Documents (including all such amounts that accrue or are incurred after the commencement of any case or proceeding by or against any Borrower under any federal, state or provincial bankruptcy, insolvency, receivership or similar law, whether or not allowed in such case or proceeding), (d) all covenants, agreements, obligations and liabilities of the Borrowers under or pursuant to this Agreement and the other Loan Documents, and (e) the payment and performance under any transaction of a Credit Party with any Lender or any of its Affiliates that arises out of (i) any Cash
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Management Services, or (ii) any Bank Products provided by any such Person; provided that Obligations of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party. Without limiting the foregoing, the term “Obligations” includes all Canadian Liabilities and all UK Liabilities.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Other Borrowers” means the Other Domestic Borrowers, the Canadian Borrower and the UK Borrower.
“Other Canadian Liabilities” means any obligation of the Canadian Borrower arising on account of clause (e) of the definition of “Obligations”.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Domestic Borrowers” means Genesco Brands, LLC, a Delaware limited liability company; Hat World Corporation, a Delaware corporation; Xxxxx Bros. of Puerto Rico, Inc., a Delaware corporation, Genesco Footwear LLC, a Tennessee limited liability company, Genesco Brands NY, LLC, a Delaware limited liability company, and any other Material Domestic Subsidiary that is not a Guarantor.
“Other Domestic Liabilities” means any obligation of the Domestic Credit Parties arising on account of clause (e) of the definition of “Obligations”.
“Other Taxes” means any and all current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.28) arising from any payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.
“Other UK Liabilities” means any obligation of the UK Borrower arising on account of clause (e) of the definition of “Obligations”.
“Overadvance” means, at any time of calculation, a circumstance in which the Credit Extensions exceed the Domestic Loan Cap.
“Participant” has the meaning provided therefor in Section 9.6(e).
“Participant Register” has the meaning provided therefor in Section 9.6(f).
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Payment Conditions” means, as of the date of the making of any Restricted Payment or consummation of any Acquisition, that (a) no Default or Event of Default exists or would arise after giving effect to such Restricted Payment or Acquisition, and (b) either (i) the Borrowers have pro forma Excess
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Availability for the prior 60 day period equal to or greater than 20% of the Loan Cap, after giving pro forma effect to such Restricted Payment or Acquisition, or (ii) (A) the Borrowers have pro forma Excess Availability for the prior 60 day period of less than 20% of the Loan Cap but equal to or greater than 15% of the Loan Cap, after giving pro forma effect to the Restricted Payment or Acquisition, and (B) the Fixed Charge Coverage Ratio, on a pro-forma basis for the twelve months preceding such Restricted Payment or Acquisition, will be equal to or greater than 1.0:1.0 and (c) after giving effect to such Restricted Payment or Acquisition, the Borrowers are Solvent. In the event that (x) the aggregate amount of any payment paid by the Borrowers in an Acquisition or a series of related Acquisitions equals or exceeds $10,000,000 during any consecutive thirty (30) day period, then the Borrowers shall provide a certificate signed by a Financial Officer, no earlier than ten (10) Business Days and no later than two (2) Business Days prior to the anticipated date of such Acquisition (or the first such Acquisition, if in connection with a series of Acquisitions), or (y) the aggregate amount of any payments projected by the Borrowers in good faith to be paid by the Borrowers for any Restricted Payment or a series of related Restricted Payments in any Fiscal Quarter (the “Subject Quarter”) will equal or exceed $30,000,000 during such Fiscal Quarter, then the Borrowers shall provide a certificate signed by a Financial Officer, no earlier than ten (10) Business Days and no later than two (2) Business Days prior to the commencement of the Subject Quarter, in each case certifying as to the satisfaction of the applicable Payment Conditions (on a basis (including, without limitation, giving due consideration to results for prior periods) reasonably satisfactory to the Agent) including the relevant calculations therefor and accompanied by such information required to be delivered to the Agent pursuant to Section 5.1(j), if applicable, (to the extent not previously delivered) provided that if pro forma Excess Availability for the prior 60 day period is less than or equal to 20% of the Loan Cap, such a certificate shall be provided if the aggregate amount for any Acquisition paid by the Borrowers in a transaction or a series of related transactions equals or exceeds $5,000,000.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Perfection Certificate” means, collectively, (i) a certificate of the Domestic Borrowers in the form approved by the Agent as to certain matters regarding the Collateral and (ii) a certificate of the Canadian Borrower in the form approved by the Agent as to certain matters regarding the Collateral, as each may be amended, restated, amended and restated, supplemented, and modified from time to time.
“Permitted Acquisition” means (a) the acquisition (in a transaction or series of related transactions) of not less than eighty percent (80%) of the capital stock or other equity interests of, or (b) the acquisition (in a transaction or series of related transactions) of all or substantially all of the assets or properties of, or any division or business unit of, any Person, whether or not pursuant to a transaction of merger or consolidation, or (c) any acquisition of any store locations or Leases of any Person (each of the foregoing an “Acquisition”) in each case which satisfies each of the following conditions:
(i) The Acquisition is of a business permitted to be conducted by the Borrowers pursuant to Section 6.3(b) hereof; and
(ii) Prior to and after giving effect to the Acquisition or at the LCA Test Date, as the case may be, no Default or Event of Default will exist or will arise therefrom; and
(iii) The Person making the Acquisition must be a Borrower or a Subsidiary which will become a Borrower or Guarantor (if required) in accordance with Section 5.14 hereof and the Borrowers (including such Person) shall take such steps as are necessary to grant to the Agent, for the benefit of the applicable Secured Parties, a legal, valid and enforceable first priority (except as provided in Section 6.2 hereof) security interest in the assets and capital
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stock or other equity interests acquired in connection with such acquisition to the extent the grant of such security interest is required in accordance with Section 5.14 hereof; and
(iv) If a Borrower shall merge with such other Person, such Borrower shall be the surviving party of such merger; and
(v) Either (A) the aggregate consideration for such Acquisition, together with the consideration for all other Acquisitions undertaken by the Borrowers in such Fiscal Year, shall not exceed $30,000,000 in any Fiscal Year, or (B) the Payment Conditions shall have been satisfied; provided that with respect to any Limited Condition Acquisition, such satisfaction shall be determined in accordance with Section 1.9; and
(vi) In the case of the Acquisition of capital stock or other equity interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition.
In connection with any Permitted Acquisition, the Lead Borrower may submit a Borrowing Base Certificate reflecting a calculation of the Domestic Borrowing Base, and the Canadian Borrowing Base that includes Eligible Inventory, Eligible Wholesale Receivables and Eligible Credit Card and Debit Card Receivable acquired in connection with such Acquisition (the “Acquired Eligible Inventory”, the “Acquired Eligible Wholesale Receivables” and the “Acquired Eligible CC Receivables”, respectively, and collectively, the “Acquired Borrowing Base Collateral”) and, from and after the Acquisition Date (as defined below), the Domestic Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be calculated giving effect thereto; provided that prior to the completion of a field examination and inventory appraisal with respect to such Acquired Borrowing Base Collateral, such adjustment to the Domestic Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be limited to (i) from the date such Acquisition is consummated (the “Acquisition Date”) until the date that is 90 days after the Acquisition Date, the sum of (x) 50% of the Acquired Eligible Inventory, (y) 70% of the Acquired Eligible Wholesale Receivables, and (z) 80%, in the case of Acquired Eligible CC Receivables; provided that, the Domestic Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) attributable to such Acquired Borrowing Base Collateral shall not exceed 5% of the Combined Borrowing Base, and (ii) from the 91st day following the Acquisition Date (or such later day as the Agent may agree in its sole discretion), the Domestic Borrowing Base, and the Canadian Borrowing Base (and if applicable, the UK Borrowing Base) shall be calculated without reference to the Acquired Borrowing Base Collateral until a field examination and inventory appraisal have been completed with respect to such assets; it being understood and agreed that there shall be no Default or Event of Default solely as a result of a failure to complete and deliver such inventory appraisal and field examination on or prior to the dates indicated above.
“Permitted Discretion” means the Agent’s good faith credit judgment based upon any factor or circumstance which it reasonably believes in good faith: (i) will or could reasonably be expected to adversely affect the value of the Collateral, the enforceability or priority of the Agent’s Liens thereon in favor of the applicable Secured Parties or the amount which the Agent and the applicable Secured Parties would likely receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral; (ii) suggests that any collateral report or financial information delivered to the Agent by or on behalf of a Borrower is incomplete, inaccurate or misleading in any material respect; (iii) could reasonably be expected to increase materially the likelihood of a bankruptcy, reorganization or other insolvency proceeding involving any of the Credit Parties; or (iv) creates or reasonably could be expected to create a Default or Event of Default. In exercising such judgment, the Agent may consider factors or circumstances already included in or tested by the definition of Eligible Inventory, Eligible
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In-Transit Inventory, Eligible Wholesale Receivables or Eligible Credit Card and Debit Card Receivables, as well as any of the following: (A) changes in demand for and pricing of Inventory; (B) changes in any concentration of risk with respect to Inventory or Accounts; (C) any other factors or circumstances that will or could reasonably be expected to have a Material Adverse Effect; (D) audits of books and records by third parties, history of chargebacks or other credit adjustments, or other relevant information regarding the creditworthiness of Account Debtors; and (E) any other factors that change or could reasonably be expected to change the credit risk of lending to the Borrowers on the security of the Inventory or Accounts. Notwithstanding the foregoing, it shall not be within Permitted Discretion for the Agent to establish Reserves which are duplicative of each other whether or not such reserves fall under more than one reserve category.
“Permitted Encumbrances” means:
(i) Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 5.5;
(ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in compliance with Section 5.5;
(iii) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance, old-age pension and other social security laws or regulations (other than (a) any Lien imposed under ERISA) or (b) Liens (save for contribution amounts not yet due) arising pursuant to the Pension Benefits Act (Ontario) or similar legislation of another Canadian province or territory;
(iv) deposits to secure the performance of bids, trade contracts, leases, contracts (other than for the repayment of borrowed money), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business or letter of credit guarantees issued in respect thereof;
(v) judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.1(m);
(vi) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrowers or any of the other Credit Parties, taken as a whole, and such other minor title defects or survey matters that, in each case, do not materially interfere with the ordinary conduct of the business of the Borrowers or any of the other Credit Parties, taken as a whole;
(vii) Possessory liens in favor of brokers and dealers arising in connection with the acquisition or disposition of Investments owned as of the Third Amendment Effective Date and Permitted Investments and other Investments permitted under Section 6.4, provided that such liens (a) attach only to such Investments and (b) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or disposition of such Investments and not any obligation in connection with margin financing;
(viii) Liens in favor of a financial institution encumbering deposits (including the right of setoff) held by such financial institution in the ordinary course of its business and which are within the general parameters customary in the banking industry;
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(ix) Landlords’ and lessors’ liens in respect of rent that is not overdue by more than thirty (30) days or which is being contested in compliance with Section 5.5;
(x) leases or subleases granted by any Credit Party to any Person other than a Credit Party, provided that such lease or sublease does not interfere in any material respect with the business of such Credit Party or materially impair the Agent’s interest in the Collateral;
(xi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods and securing obligations that are not overdue by more than sixty (60) days, or are being contested in compliance with Section 5.5;
(xii) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 6.4;
(xiii) Liens of a collecting bank arising under Section 4-210 of the UCC on items in the course of collection and Liens arising solely by virtue of any statutory or common law provisions relating to bankers’ liens, liens in favor of securities intermediaries, rights of setoff or similar rights and remedies as to deposit accounts or securities or securities accounts or other funds maintained with depository institutions or securities intermediaries;
(xiv) reservations, limitations, provisos and conditions expressed in any original grant from the Crown or other grants of real or immovable property, or interests therein, that do not materially affect the use of the affected land for the purpose for which it is used by that Person;
(xv) the right reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit acquired by that Person or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof;
(xvi) security given to a public utility or any Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of its business;
(xvii) any Lien arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by any Credit Party;
(xviii) Liens in favor of a credit card processor or check processor, as applicable, on proceeds of credit card charges or checks, as applicable, held by such processor to secure (A) chargebacks, fees, fines, penalties and other charges arising in the ordinary course of business with respect to the processing of credit card charges or checks, as applicable; or (B) equipment leases described on Schedule 1.3 (but no other such leases);
(xix) Liens on xxxx xxxxxxx money deposits made by the Borrowers or any other Credit Parties in connection with any letter of intent or purchase agreement permitted hereunder;
(xx) Liens in respect of the licensing and sublicensing of patents, copyrights, trademarks, trade names, other indications of origin, domain names and other forms of Intellectual Property in the ordinary course of business;
(xxi) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods (including Article 2 of the UCC) and Liens that are contractual rights of set-off relating to purchase orders and other similar agreement entered into by the Borrowers or other Credit Parties; and
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(xxii) Liens of landlords or of mortgagees of landlords on fixtures located on premises leased by any Credit Party or any Subsidiary in the ordinary course of business;
provided that, except as provided in any one or more of clauses (i) through (xii) above, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.
“Permitted Investments” means each of the following:
(i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America or Canada (or by any agency or instrumentality thereof to the extent such obligations are backed by the full faith and credit of the United States of America or Canada, as applicable), in each case maturing within one year from the date of acquisition thereof;
(ii) Investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1 from S&P or P-1 from Xxxxx’x;
(iii) Investments in certificates of deposit, banker’s acceptances and time deposits maturing within 270 days from the date of acquisition thereof issued or guaranteed by or placed with, and demand deposit and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any state thereof or under the Bank Act (Canada) that has a combined capital and surplus and undivided profits of not less than $100,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (i) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying the criteria described in clause (iii) above or with any primary dealer and having a market value at the time that such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase agreement has been entered into;
(v) money market mutual funds, 90% of the investments of which are in cash or investments contemplated by clauses (i) through (iv) of this definition; and
(vi) Investments by the Lead Borrower consistent with the Lead Borrower’s investment policy, which investment policy is approved by the Agent from time to time, such approval not to be unreasonably withheld;
provided that, notwithstanding the foregoing, after the occurrence and during the continuance of an Event of Default, (i) no such new Investments shall be permitted by a Borrower unless either (A) no Loans are then outstanding, or (B) the Investment is a temporary Investment pending expiration of an Interest Period for Term SOFR Loan or BA Equivalent Loan, the proceeds of which Investment will be applied to the Obligations after the expiration of such Interest Period, and (ii) all such Investments are pledged by the applicable Borrower to the Agent as additional collateral for the Obligations pursuant to such agreements as may be reasonably required by the Agent.
“Permitted Joint Venture Investments” means (a) Investments existing on the Third Amendment Effective Date and listed on the Perfection Certificate, and (b) in the absence of the existence of a Cash Dominion Event, additional Investments by the Credit Parties in Subsidiaries that are not Credit Parties not to exceed in the aggregate $10,000,000 in any Fiscal Year of the Lead Borrower.
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“Permitted Overadvance” means an Overadvance, as determined by the Agent in its Permitted Discretion, (a) which is made to maintain, protect or preserve the Collateral and/or the Lenders’ rights under the Loan Documents, or (b) which is otherwise in the Lenders’ interests; provided that Permitted Overadvances shall not (i) exceed ten percent (10%) of the then Combined Borrowing Base in the aggregate outstanding at any time or (ii) unless a Liquidation is occurring, remain outstanding for more than ninety (90) consecutive Business Days, unless in case of clause (ii) the Required Lenders otherwise agree; and provided further that the foregoing shall not (1) modify or abrogate any of the provisions of Section 2.6(f) regarding the Lenders’ obligations with respect to L/C Disbursements, Section 2.5 regarding the Domestic Lenders’ obligations with respect to Swingline Loans, Section 2.5 regarding the Canadian Lenders’ obligations with respect to Canadian Swingline Loans or Section 2.5 regarding the UK Lenders’ obligations with respect to UK Swingline Loans, or (2) result in any claim or liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder, and further provided that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions (including any Overadvance or proposed Overadvance) would exceed the Total Commitments.
“Permitted Refinancing” means, with respect to any Person, any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is greater than or equal to the weighted average life to maturity of the Indebtedness being Refinanced (c) such Permitted Refinancing shall not require any scheduled principal payments due prior to the Maturity Date in excess of, or prior to, the scheduled principal payments due prior to such Maturity Date for the Indebtedness being Refinanced, (d) if the Indebtedness being Refinanced is subordinated in right of payment to the Obligations, such Permitted Refinancing shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Secured Parties as those contained in the documentation governing the Indebtedness being Refinanced, (e) no Permitted Refinancing shall have different direct or indirect obligors, or greater guarantees or security, than the Indebtedness being Refinanced, (f) such Permitted Refinancing shall be otherwise on terms not materially less favorable to the Credit Parties than those contained in the documentation governing the Indebtedness being Refinanced, including, without limitation, with respect to amortization, maturity, financial and other covenants, and (g) at the time thereof, no Default or Event of Default shall have occurred and be continuing.
“Permitted Senior Debt” means Indebtedness of the Borrowers in the aggregate principal amount of up to the greater of (i) $500,000,000 and (ii) an amount that would not cause the Total Leverage Ratio to exceed 5.00:1.00 after incurrence thereof, provided that:
(a) if any portion of the principal of such Indebtedness in excess of an amount reasonably acceptable to the Agent, as determined by the Agent in connection with the incurrence by the Borrowers of such Indebtedness, shall be required to be paid, whether by stated maturity, mandatory or scheduled prepayment or redemption or otherwise, prior to the Maturity Date, other than in the event of (i) a default under such Indebtedness, (ii) a change of control of the Lead Borrower or (iii) certain asset sales in each case, if such Indebtedness is secured, subject to the standstill and the lien subordination provisions described in clause (c) below, then the Maturity Date hereunder shall be automatically changed without further action by the parties hereto to the date that is ninety (90) days prior to such date;
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(b) such Indebtedness may be secured by (A) a first priority Lien on any assets of the Credit Parties not constituting Collateral and (B) upon request of a creditor for such facility, a second priority Lien on assets constituting Collateral; provided that if a creditor for such facility has requested a second priority Lien on assets constituting Collateral, the Agent for the benefit of the Secured Parties, shall be granted a second priority Lien on any assets for which a first priority Lien has been granted to a creditor for such facility to secure such Indebtedness (excluding, for the avoidance of doubt, any Real Estate); and
(c) if such Indebtedness is secured with a junior Lien on the assets constituting Collateral, it shall be subject to an intercreditor agreement reasonably acceptable to the Agent that may include, among other things, (A) the priority of the Liens securing the Collateral and the payment of proceeds therefrom, (B) a reasonable standstill by the holders of such Indebtedness as to remedies against the Collateral, (C) waivers by the holders of such Indebtedness of rights to contest validity or priority of Liens of the Agent or the Lenders (which waiver may be reciprocal) or object to dispositions of Collateral (including an affirmative agreement by such holders to release Liens of such holders in the event of a disposition of Collateral approved by the Agent) (with reciprocal agreements as to assets not constituting Collateral), (D) waiver of rights to object to the use of cash collateral or sale of Collateral, and reasonable restrictions on certain claims and actions, in any proceeding under any Debtor Relief Laws by the holders of such Indebtedness (with reciprocal agreements as to assets not constituting Collateral), and (E) restrictions on amendments to, or consents, waivers or other modifications with respect to, the documents evidencing such Indebtedness to the extent the same would be materially adverse to the Lenders (with reciprocal agreements as to the Loan Documents).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Phase I” means an investigation performed in accordance with American Society for Testing and Materials Standard E1527-13, as amended, or any similar environmental assessment.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which a Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning provided therefor in Section 5.1.
“Pounds Sterling” or “£” refers to lawful money of the United Kingdom.
“PPSA” means the Personal Property Security Act (Ontario) and the Regulations thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority of the Agent’s security interests in any Collateral are governed by the personal property security laws of any jurisdiction other than Ontario (including Quebec), PPSA shall mean those personal property security laws in such other jurisdiction, including the Civil Code of Quebec, for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.
“Prime Rate” means the rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement.
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“Prime Rate Loans” shall mean Domestic Prime Rate Loans or Canadian Prime Rate Loans, as applicable.
“Proceeds” shall have the meaning ascribed to it in the UCC or the PPSA, as applicable, and shall include proceeds of all Collateral.
“Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time, and including all regulations thereunder.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning provided therefor in Section 5.1.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning set forth in Section 9.29.
“Qualified ECP Guarantor” means, at any time, each Credit Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualifying Lender” means
(a) a Lender (other than a Lender within clause (b) below) which is beneficially entitled to interest payable to that Lender in respect of an advance and is:
(i) a Lender:
(A) that is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document; or
(B) in respect of an advance by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that such advance was made,
and, in each case, which is within the charge to United Kingdom corporation tax with respect to any payments of interest made in respect of that advance; or
(ii) a Lender which is:
(A) a company resident in the United Kingdom for United Kingdom tax purposes;
(B) a partnership, each member of which is:
(1) a company so resident in the United Kingdom; or
(2) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent
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establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(C) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or
(iii) a Treaty Lender; or
(b) a building society (as defined for the purposes of section 880 of the ITA) making an advance.
“Real Estate” means all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any of the Credit Parties, including all fixtures and equipment used in connection with the operation of such structures and all easements, rights-of-way and similar rights relating thereto and all leases, tenancies, and occupancies thereof.
“Real Estate Advance Rate” means the percentages set forth below:
Period |
Real Estate Advance Rate |
From the Third Amendment Effective Date until the first anniversary of the Third Amendment Effective Date |
60% |
From the first anniversary of the Third Amendment Effective Date until the second anniversary of the Third Amendment Effective Date |
56% |
From the second anniversary of the Third Amendment Effective Date until the third anniversary of the Third Amendment Effective Date |
52% |
From the third anniversary of the Third Amendment Effective Date until the fourth anniversary of the Third Amendment Effective Date |
48% |
From the fourth anniversary of the Third Amendment Effective Date until the Maturity Date |
44% |
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“Real Estate Eligibility Requirements” means collectively, each of the following:
(a) The applicable Domestic Borrower has executed and delivered to the Agent a Mortgage, substantially in the form of Exhibit I, with respect to any Real Estate intended, by such Domestic Borrower, to be included in Eligible Real Estate;
(b) Such Real Estate is used by a Domestic Borrower for offices or as a Store, distribution center or warehouse;
(c) As to any particular property, the Domestic Borrower is in compliance in all material respects with the representations, warranties and covenants set forth in the Mortgage relating to such Real Estate;
(d) The Agent shall have received fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or marked-up title insurance commitments having the effect of a policy of title insurance (the “Mortgage Policies”) in form and substance, with the endorsements reasonably required by the Agent (to the extent available at commercially reasonable rates) and in amounts reasonably acceptable to the Agent, issued, coinsured and reinsured (to the extent reasonably required by the Agent) by title insurers reasonably acceptable to the Agent, insuring the Mortgages to be valid first and subsisting Liens on the property or leasehold interests described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances having priority over the Lien of the Agent under law or otherwise reasonably acceptable to the Agent;
(e) With respect to any Real Estate owned by a Domestic Borrower (excluding interests as lessee under a Lease) which is intended by such Domestic Borrower to be included in Eligible Real Estate, the Agent shall have received American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, certified to the Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and reasonably acceptable to the Agent, showing all buildings and other improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Agent;
(f) With respect to any Real Estate intended by any Domestic Borrower to be included in Eligible Real Estate, (i) the Agent shall have received a Phase I, in form and substance reasonably satisfactory to the Agent, from an environmental consulting firm reasonably acceptable to the Agent, which report shall identify recognized environmental conditions and shall to the extent possible quantify any related costs and liabilities, associated with such conditions and the Agent shall be reasonably satisfied with the nature and amount of any such matters, and (ii) if requested by the Agent after receipt of a Phase I, such further environmental assessments or reports to the extent such further assessments or reports are reasonably recommended in the Phase I;
(g) With respect to the Lease on the applicable portion of the Xxxxxx County Property intended by the Domestic Borrowers included in Eligible Real Estate, the Agent shall have received a consent agreement to the extent required under the terms of the applicable Lease relating to such leased Real Estate, in form and substance reasonably satisfactory to the Agent, executed by the
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lessor of the Lease, along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, (2) evidence that the applicable Lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary, in the Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, and (3) if such leasehold interest was acquired or sub-leased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Agent;
(h) The applicable Domestic Borrower shall have delivered to the Agent and each Lender a life of loan flood zone determination from a third party vendor, and, if such Real Estate is located in a “special flood hazard area”, (A) the Agent shall have delivered to the Lenders a notification to the applicable Credit Parties of that fact and (if applicable) notification to the applicable Credit Parties that flood insurance coverage is not available and evidence of the receipt by the applicable Credit Parties of such notice and (B) the Agent shall have received evidence of flood insurance naming the Agent as mortgagee as required by the National Flood Insurance Program as set forth in the Flood Insurance Laws, each of which shall be in amounts as required by the applicable Flood Insurance Laws and reasonably satisfactory in form and substance to the Agent; and
(i) The applicable Domestic Borrower shall have delivered such other information and documents as may be reasonably requested by the Agent, including, without limitation, such as may be necessary to comply with FIRREA and as provided in the definition of Appraised Value.
Notwithstanding any provision in this definition or in this Agreement to the contrary, in no event shall any Mortgage be signed unless and until the condition set forth in the preceding clause (h) has been satisfied with respect to the Real Estate to be encumbered by such Mortgage.
“Realty Reserves” means such reserves as the Agent from time to time determines in the Agent’s Permitted Discretion as being appropriate to reflect the impediments to the Agent’s ability to realize upon any Eligible Real Estate, to reflect such factors as affect the market value of the Eligible Real Estate or to reflect claims and liabilities that the Agent reasonably determines will need to be satisfied in connection with the realization upon any Eligible Real Estate. Without limiting the generality of the foregoing, Realty Reserves may include (but are not limited to) (i) Environmental Compliance Reserves, (ii) reserves for (A) municipal taxes and assessments, (B) repairs and (C) remediation of title defects, and (iii) reserves for Indebtedness secured by Liens having priority over the Lien of the Agent.
“Recipient” means the Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder.
“Register” has the meaning provided therefor in Section 9.6(c).
“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
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“Relevant Rate” means with respect to any Credit Extension denominated in (a) Dollars, Term SOFR, (b) Pounds Xxxxxxxx, XXXXX, (c) Euro, EURIBOR, and (d) Canadian Dollars, the BA Rate.
“Release” has the meaning set forth in Section 101(22) of CERCLA.
“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the sum of the Total Commitments, or if the commitments have been terminated, Lenders whose percentage of the outstanding Loans and Letter of Credit Outstandings aggregate greater than 50% of all such Loans and Letter of Credit Outstandings, provided that such calculation shall exclude any Defaulting Lenders and any such Defaulting Lender’s Commitment in the event that such Defaulting Lender’s rights to participate shall have been suspended or terminated pursuant to Section 8.13 of this Agreement.
“Required Supermajority Lenders” shall mean, at any time, Lenders having Commitments greater than 66 2/3% of the Total Commitments, or if the Commitments have been terminated, Lenders whose percentage of the outstanding Loans and Letter of Credit Outstandings aggregate greater than 66 2/3% of all such Loans and Letter of Credit Outstandings, provided that such calculation shall exclude any Defaulting Lenders and any such Defaulting Lender’s Commitment in the event that such Defaulting Lender’s rights to participate shall have been suspended or terminated pursuant to Section 8.13 of this Agreement.
“Rescindable Amount” has the meaning provided therefor in Section 10.25(d).
“Reserves” means the Account Reserves, the Inventory Reserves, the Realty Reserves, and the Availability Reserves.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means (i) any dividend or other distribution, directly or indirectly (whether in cash, securities or other property) with respect to any shares of any class of capital stock or other equity interests of any of the Credit Parties, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock or other equity interests of any of the Credit Parties or any option, warrant or other right to acquire any such shares of capital stock or other equity interests of any of the Credit Parties; or (ii) any payment or other distribution, directly or indirectly (whether in cash, securities, or other property) of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities, or other property), including any sinking fund or similar deposit on, an account of the purchase, redemption, retirement, acquisition, cancellation, or termination of any Indebtedness (other than the Obligations).
“Revolving Loan” means all Canadian Loans, Domestic Loans and UK Loans at any time made by a Lender pursuant to Section 2.3.
“Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”), the federal government of Canada (including, without limitation, Canadian Sanction Laws) or other relevant sanctions authority.
“Scheduled Unavailability Date” has the meaning provided therefor in Section 2.29(b).
“SEC” means the United States Securities and Exchange Commission.
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“Secured Party” or “Secured Parties” means, collectively, the Canadian Secured Parties, the UK Secured Parties and the Domestic Secured Parties.
“Security Agreement” means the Sixth Amended and Restated Security Agreement dated as of the Third Amendment Effective Date and executed and delivered by each of the Domestic Credit Parties to the Agent for the benefit of the Secured Parties, as amended and in effect from time to time.
“Security Documents” means the Security Agreement, the Facility Guaranty, the Effective Date Guaranties, the Account Control Agreements, the Collateral Control Agreements, the Canadian Security Documents, the Mortgages, and each other security agreement, mortgage (if any), guaranty or other instrument or document executed and delivered pursuant to Section 5.15 or any other provision hereof or any other Loan Document, to secure any of the Obligations, the Canadian Liabilities and the UK Liabilities.
“Settlement Date” has the meaning provided therefor in Section 2.7(d).
“Shrink” means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.
“SOFR” means the Secured Overnight Financing Rate as administered by the FRBNY (or a successor administrator).
“SOFR Adjustment” means (a) with respect to Daily Simple SOFR, 0.1000% (10.00 basis points); and (b) with respect to Term SOFR, (i) 0.1000% (10.00 basis points) for an Interest Period of one-month’s duration, (ii) 0.1500% (15.00 basis points) for an Interest Period of three-months’ duration, and (iii) 0.2500% (25.00 basis points) for an Interest Period of six-months’ duration.
“SOFR Administrator” means the FRBNY, as the administrator of SOFR, or any successor administrator of SOFR designated by the FRBNY or other Person acting as the SOFR Administrator at such time.
“SOFR Loan” means a Loan that bears interest at a rate based on the definitions of “Term SOFR” or “Daily Simple SOFR.”
“Solvent” means, with respect to any Person on a particular date, that on such date (a) at fair valuations, all of the properties and assets of such Person are greater than the sum of the debts, including contingent liabilities, of such Person, (b) the present fair saleable value of the properties and assets of such Person is not less than the amount that would be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is able to realize upon its properties and assets and pay its debts and other liabilities, contingent obligations and other commitments as they mature in the normal course of business, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged, and (f) as regards a Canadian Credit Party, such Person is not an “insolvent person” within the meaning of the BIA.
“XXXXX” means, with respect to any applicable determination date, the Sterling Overnight Index Average Reference Rate published on the fifth Business Day preceding such date on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time); provided however that if such determination date is not a Business Day, XXXXX means such rate that applied on the first Business Day immediately prior thereto.
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“XXXXX Adjustment” means, with respect to XXXXX, 0.0326% per annum.
“S&P” means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc.
“Specified Credit Party” means any Credit Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 9.27).
“Specified Event of Default” means the occurrence of any Event of Default arising under any of Sections 7.1 (a), 7.1(b), 7.1(d), 7.1(j), 7.1(k), 7.1(n), 7.1(q) or 7.1(v).
“Spot Rate” for a currency means the exchange rate, as reasonably determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency.
“Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of Credit and that (a) is used in lieu or in support of performance guaranties or performance, surety or similar bonds (excluding appeal bonds) arising in the ordinary course of business, (b) is used in lieu or in support of stay or appeal bonds, or (c) supports the payment of insurance premiums for reasonably necessary insurance carried by any of the Borrowers.
“Stated Amount” means at any time the maximum amount for which a Letter of Credit may be honored.
“Store” means any retail store (which may include any Real Estate, fixtures, equipment, Inventory and other property related thereto) operated, or to be operated, by any Credit Party.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power for the election of directors or other members of its governing body (other than securities or ownership interests having such power only upon satisfaction of a contingency) or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled by the parent and/or one or more Subsidiaries of the parent. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Lead Borrower.
“Substantial Liquidation” shall mean either (a) the Liquidation of substantially all of the Collateral, or (b) the sale or other disposition of substantially all of the Collateral by the Credit Parties.
“Successor Rate” has the meaning specified in Section 2.29.
“Supported QFC” has the meaning set forth in Section 9.29.
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“Swap Obligations” means with respect to any Credit Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Swingline Lender” means Bank of America, in its capacity as lender of Swingline Loans hereunder.
“Swingline Loan” shall mean a Loan made by the Swingline Lender to the Domestic Borrowers pursuant to Section 2.5 hereof.
“Swingline Note” means a promissory note of the Domestic Borrowers substantially in the form of Exhibit B-4, payable to the Swingline Lender if requested by the Swingline Lender, evidencing the Swingline Loans.
“Swingline Sublimit” means an amount equal to the lesser of (a) $45,000,000 and (b) the Total Commitments. The Swingline Sublimit is part of, and not in addition to, the Total Commitments.
“Synthetic Lease” means any lease or other agreement for the use or possession of property creating obligations which do not appear as Indebtedness on the balance sheet of the lessee thereunder but which, upon the insolvency or bankruptcy of such Person, would be characterized as Indebtedness of such lessee without regard to the accounting treatment.
“TARGET” has the meaning specified in the definition of Business Day.
“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance is either:
(a) a company resident in the United Kingdom for United Kingdom tax purposes; or
(b) a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or
(c) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
“Tax Credit” means a credit against, relief or remission for, or repayment of, any Taxes.
“Tax Deduction” means a deduction or withholding from a payment under any Loan Document for and on account of any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments and all interest, penalties or similar liabilities with respect thereto, other than a FATCA Deduction.
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“Tax Payment” means, in relation to the UK Borrower, either the increase in a payment made by the UK Borrower to a Lender under Section 1.7(b) or a payment under Section 1.7(c).
“Taxes” means any and all current or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including any interest or penalties thereon and any additions thereto.
“Term SOFR” means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;
provided, that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than zero, the Term SOFR shall be deemed zero for purposes of this Agreement.
“Term SOFR Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Screen Rate” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Agent from time to time).
“Termination Date” shall mean the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Loans are accelerated and the Commitments are terminated in accordance with Section 7.1, or (iii) the date of the occurrence of any Event of Default pursuant to Section 7.1(j) or 7.1(k) or (iv) the termination of the Commitments in accordance with the provisions of Section 2.15 hereof.
“Termination Event” shall mean (a) the whole or partial withdrawal of the Canadian Borrower or any Canadian Subsidiary from a Canadian Pension Plan during a plan year; or (b) the filing by a Canadian Borrower or any Canadian Subsidiary of a notice of intention to terminate in whole or in part a Canadian Pension Plan or the treatment of a Canadian Pension Plan amendment by a Canadian Borrower or any Canadian Subsidiary as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee or like body appointed to administer a Canadian Pension Plan, or (d) any other event or condition which might constitute grounds for the termination of, or winding up of, or the appointment of a trustee or like body to administer, any Canadian Pension Plan.
“Third Amendment” means that certain Third Amendment to Fourth Amended and Restated Credit Agreement dated as of the Third Amendment Effective Date by and among the Credit Parties, Agent, and the Lenders.
“Third Amendment Effective Date” means January 28, 2022.
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“Third Amendment Fee Letter” means that certain Fee Letter dated as of January 12, 2022, between the Lead Borrower and the Agent.
“Total Commitments” shall mean, at any time, the sum of the Commitments at such time. As of the Third Amendment Effective Date, the aggregate Total Commitments are $332,500,000.
“Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness to (b) Consolidated EBITDA, in each case of or by Lead Borrower and its Subsidiaries for the most recently completed Applicable Fiscal Period, all as determined on a Consolidated basis in accordance with GAAP.
“Total Outstandings” shall mean the sum of the Canadian Credit Extensions, the Domestic Credit Extensions and the UK Credit Extensions.
“Trading with the Enemy Act” has the meaning provided therefor in Section 9.22.
“Treaty Lender” means a Lender which:
(a) is treated as a resident of a Treaty State for the purposes of the relevant Treaty; and
(b) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in any advance is effectively connected.
“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Term SOFR Rate, the BA Rate, the Base Rate, the Canadian Prime Rate, the U.S. Index Rate, the UK Base Rate, the Alternative Currency Term Rate or the Alternative Currency Daily Rate.
“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided further that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.
“UK Base Rate” means, with respect to UK Swingline Loan made in Dollars or any Alternative Currency, a fluctuating rate of interest per annum equal to the rate of interest in effect for such day as announced by and used from time to time by the local branch of Bank of America in the jurisdiction in which such currency is funded as its “base rate” with respect to such currency. Any change in such rate shall take effect at the opening of business on the day of such change.
“UK Base Rate Loan” means a UK Swingline Loan made to the UK Borrower denominated in Dollars or any Alternative Currency and bearing interest at a rate based on the UK Base Rate.
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“UK Borrower” means Genesco (UK) Limited, a corporation incorporated in England and Wales with a company number 07667223.
“UK Borrowing” means a borrowing consisting of simultaneous UK Loans of the same Type and, in the case of Alternative Currency Term Rate Loans, having the same Interest Period made by each of the UK Lenders pursuant to Section 2.3.
“UK Borrowing Base” has the meaning provided therefor in Section 2.30(a).
“UK Commitment Percentage” means the Commitment Percentages of the UK Lenders.
“UK Commitments” means, as to each UK Lender, its obligation to (a) make UK Loans to the UK Borrower pursuant to Section 2.1 and (b) purchase participations in UK Letter of Credit Outstandings, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such UK Lender’s name on Schedule 1.1 or in the Assignment and Acceptance pursuant to which such UK Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“UK Credit Extensions” as of any day, shall be equal to the sum of (a) the principal balance of all UK Loans (including UK Swingline Loans) then outstanding, and (b) the then amount of the UK Letter of Credit Outstandings.
“UK Credit Parties” means, collectively, the UK Borrower and each Material Subsidiary of the UK Borrower incorporated in England and Wales that is or becomes a guarantor of the UK Liabilities (the “UK Guarantors”); provided that the Excluded UK Subsidiaries shall not become UK Credit Parties hereunder except in accordance with Section 2.30 hereof. “UK Credit Party” means any one of such Persons.
“UK Deed of Confirmation” means the deed of confirmation, dated as of the Effective Date and made between the UK Borrower, the Lead Borrower and the Agent.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Lenders” means Bank of America and any other Person having UK Commitments from time to time or at any time. A Person may be a UK Lender only if it is a Domestic Lender or an Affiliate of a Domestic Lender.
“UK Letter of Credit” means each Letter of Credit issued hereunder for the account of the UK Borrower.
“UK Letter of Credit Outstandings” shall mean, at any time, the sum of (a) with respect to UK Letters of Credit outstanding at such time, the aggregate maximum amount that then is or at any time thereafter may become available for drawing or payment thereunder plus (b) all amounts theretofore drawn or paid under UK Letters of Credit for which the Issuing Bank has not then been reimbursed.
“UK Letter of Credit Sublimit” means an amount equal to $10,000,000. The UK Letter of Credit Sublimit is part of, and not in addition to, the UK Total Commitments. A permanent reduction of the UK
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Total Commitments shall not require a corresponding pro rata reduction in the UK Letter of Credit Sublimit; provided, however, that if the UK Total Commitments are reduced to an amount less than the UK Letter of Credit Sublimit, then the UK Letter of Credit Sublimit shall be reduced to an amount equal to (or, at UK Borrower’s option, less than) the UK Total Commitments.
“UK Liabilities” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any UK Credit Party arising under any Loan Document or otherwise with respect to any UK Loan or UK Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, costs, expenses and indemnities that accrue after the commencement by or against any UK Credit Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and (b) any Other UK Liabilities.
“UK Loan” means an extension of credit by a UK Lender to the UK Borrower under Section 2.
“UK Loan Cap” means the least of (a) the Domestic Borrowing Base less the sum of the Domestic Credit Extensions and the Canadian Credit Extensions in excess of the Canadian Borrowing Base, (b) the Total Commitments less the sum of the Domestic Credit Extensions and the Canadian Credit Extensions, and (c) the UK Total Commitments.
“UK Minority Lenders” has the meaning provided therefor in Section 9.3(d).
“UK Non-Bank Lender” means:
(i) a Lender (which falls within clause (a)(ii) of the definition of Qualifying Lender) which is a party to this Agreement and which has provided a Tax Confirmation to the Agent; and
(ii) where a Lender becomes a party after the Third Amendment Effective Date, an assignee which gives a Tax Confirmation in the Assignment and Acceptance which it executes on becoming a party.
“UK Note” means a promissory note made by the UK Borrower in favor of a UK Lender evidencing UK Loans made by such UK Lender, substantially in the form of Exhibit B-3.
“UK Notice of Borrowing” means a notice from the UK Borrower to the Agent in connection with a UK Borrowing of UK Loans or UK Swingline Loans, which shall be substantially in the form of Exhibit H-3.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Secured Party” or “UK Secured Parties” has the meaning assigned to such term in the Security Agreement.
“UK Subsidiary” means any Subsidiary of the UK Borrower incorporated under the laws of England and Wales.
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“UK Swingline Lender” means Bank of America, in its capacity as lender of UK Swingline Loans hereunder.
“UK Swingline Loan” shall mean a Loan made by the UK Swingline Lender to the UK Borrower pursuant to Section 2.5 hereof.
“UK Swingline Note” means a promissory note of the UK Borrower substantially in the form of Exhibit B-6, payable to the UK Swingline Lender if requested by the UK Swingline Lender, evidencing the UK Swingline Loans.
“UK Swingline Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the UK Total Commitments. The UK Swingline Sublimit is part of, and not in addition to, the UK Total Commitments.
“UK Total Commitments” means the aggregate of the UK Commitments of all UK Lenders. On the Third Amendment Effective Date, the UK Total Commitments are $100,000,000.
“Unintentional Overadvance” means an Overadvance which, to the Agent’s knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Agent and the Lenders, including, without limitation, a reduction in the Appraised Value of property or assets included in the Domestic Borrowing Base or the Canadian Borrowing Base or a misrepresentation by the Credit Parties.
“Unused Commitment” shall mean, on any day, (a) the then Total Commitments minus (b) the sum of (i) the principal amount of Loans then outstanding (including, but only with respect to the calculation of the Commitment Fee due to the Lender that is the Swingline Lender or the Canadian Swingline Lender, the principal amount of Swingline Loans or the Canadian Swingline Loans then outstanding), and (ii) the then Letter of Credit Outstandings.
“U.S. Government Securities Business Day” means any Business Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the FRBNY is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Index Rate” means, for any day, the greatest of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of America-Canada Branch in Toronto, Ontario as its “base rate” (the “base rate” being a rate set by Bank of America-Canada Branch based on various factors including costs and desired return of Bank of America-Canada Branch, general economic conditions and other factors, and used as a reference point for pricing loans in Dollars made at its “base rate”, which may be priced at, above or below such announced rate), (b) the Federal Funds Effective Rate for such day, plus 0.50%; or (c) the Term SOFR Rate for a 30 day interest period as determined on such day, plus 1.00%; provided, that in no event shall the U.S. Index Rate be less than zero. Any change in the “base rate” announced by Bank of America-Canada Branch shall take effect at the opening of business on the day specified in the public announcement of such change. Each interest rate based upon the U.S. Index Rate shall be adjusted simultaneously with any change in the “base rate”. In the event that Bank of America-Canada Branch (including any successor or assignee) does not at any time publicly announce a “base rate”, then “U.S. Index Rate” shall mean the “base rate” publicly announced by a Schedule 1 chartered bank in Canada selected by Agent.
“U.S. Index Rate Loan” means a Canadian Loan made in Dollars that bears interest based on the U.S. Index Rate.
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“U.S. Special Resolution Regimes” has the meaning set forth in Section 9.29.
“VAT” means:
(a) any value added tax imposed by the Value Added Tax Act 1994 (UK);
(b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(c) any other tax of a similar nature, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above, or imposed elsewhere.
“Voting Stock” means, with respect to any corporation, the outstanding stock of all classes (or equivalent interests) which ordinarily, in the absence of contingencies, entitles holders thereof to vote for the election of directors (or Persons performing similar functions) of such corporation, even though the right so to vote has been suspended by the happening of such contingency.
“Xxxxxx County Property” means the property located at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx, which shall be subject to a fee deed of trust and a leasehold deed of trust as of June 5, 2020.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Terms Generally; Interpretation. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns or, for natural persons, such Person’s successors, heirs, executors, administrators and other legal representatives, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Exhibits and Schedules shall be construed to refer to Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same
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meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (f) all financial statements and other financial information provided by the Borrowers and each of the other Credit Parties to the Agent or any Lender shall be provided with reference to Dollars, and (g) this Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Credit Parties and the Agent and are the product of discussions and negotiations among all parties. Accordingly, this Agreement and the other Loan Documents are not intended to be construed against the Agent or any of the Lenders merely on account of the Agent’s or any Lender’s involvement in the preparation of such documents.
(b) For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (q) “personal property” shall be deemed to include “movable property”, (r) “real property” shall be deemed to include “immovable property”, (s) “tangible property” shall be deemed to include “corporeal property”, (t) “intangible property” shall be deemed to include “incorporeal property”, (u) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (v) all references to filing, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code of Quebec, (w) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (x) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (y) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (z) an “agent” shall be deemed to include a “mandatary”.
1.3 Accounting Terms. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect on the Third Amendment Effective Date, on a basis consistent with the financial statements referred to in Section 4.1(g) of this Agreement, provided that, if the Borrowers request an amendment to any provision hereof to reflect the effect of any change occurring after the Third Amendment Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such provision shall have been amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change in accounting for leases pursuant to GAAP resulting from the implementation of FASB ASU No. 2016-02, Leases (Topic 842), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a Capital Lease Obligation where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015.
1.4 Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.5 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to applicable Local Time.
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1.6 Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or by the terms of any documents related thereto, provides for one or more automatic increases in the Stated Amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time.
1.7 United Kingdom Tax Matters.
(a) The provisions of this Section 1.7 shall only apply in respect of the UK Borrower (a “Relevant Borrower”).
(b) Tax Gross-Up.
(i) Each Relevant Borrower shall make all payments to be made by it under any Loan Document without any Tax Deduction unless a Tax Deduction is required by law.
(ii) A Relevant Borrower shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify Agent accordingly. Similarly, a Lender shall promptly notify Agent on becoming so aware in respect of a payment payable to that Lender. If Agent receives such notification from a Lender, it shall notify the Relevant Borrower.
(iii) If a Tax Deduction is required by law to be made by a Relevant Borrower, the amount of the payment due from that Relevant Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(iv) A payment shall not be increased under clause (iii) above by reason of a Tax Deduction on account of Taxes imposed by the United Kingdom if, on the date on which the payment falls due:
(A) the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
(B) the relevant Lender is a Qualifying Lender solely by virtue of clause (a)(ii) of the definition of Qualifying Lender, and:
(1) an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Relevant Borrower making the payment a certified copy of that Direction; and
(2) the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
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(C) the relevant Lender is a Qualifying Lender solely by virtue of clause (a)(ii) of the definition of Qualifying Lender and:
(1) the relevant Lender has not given a Tax Confirmation to the Relevant Borrower; and
(2) the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Relevant Borrower, on the basis that the Tax Confirmation would have enabled the Relevant Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or
(D) the relevant Lender is a Treaty Lender and the Relevant Borrower making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under clause (vii) below.
(v) If a Relevant Borrower is required to make a Tax Deduction, that Relevant Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
(vi) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Relevant Borrower making that Tax Deduction shall deliver to Agent for the benefit of the Lender entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(vii) A Treaty Lender and each Relevant Borrower which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Relevant Borrower to obtain authorization to make that payment without a Tax Deduction.
(viii) Nothing in clause (b)(vii) above shall require a Treaty Lender to:
(A) register under the HMRC DT Treaty Passport scheme;
(B) apply the HMRC DT Treaty Passport scheme to any advance if it has so registered; or
(C) file Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport Scheme to apply to this Agreement in accordance with clause (b)(xi) or clause (f)(i) (HMRC DT Treaty Passport scheme confirmation) and the Relevant Borrower making that payment has not complied with its obligations under clause (b)(xii) or clause (f)(ii) (HMRC DT Treaty Passport scheme confirmation).
(ix) A UK Non-Bank Lender which becomes a party on the day on which this Agreement is entered into gives a Tax Confirmation to the Relevant Borrower by entering into this Agreement.
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(x) A UK Non-Bank Lender shall promptly notify the Relevant Borrower and Agent if there is any change in the position from that set out in the Tax Confirmation.
(xi) A Treaty Lender which becomes a party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any Relevant Borrower) by notifying the Lead Borrower of its scheme reference number and its jurisdiction of tax residence.
(xii) Where a Lender notifies the Lead Borrower as described in clause (b)(xi) above each Relevant Borrower shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the date of this Agreement and shall promptly provide the Lender with a copy of that filing.
(xiii) If a Lender has not included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause (b)(xi) above or clause (f)(i) (HMRC DT Treaty Passport scheme confirmation), no Relevant Borrower shall file any form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s advance or its participation in any advance.
(c) Tax Indemnity.
(i) The Lead Borrower shall (within three Business Days of demand by the Agent) pay to a Lender an amount equal to the loss, liability or cost which that Lender determines will be or has been (directly or indirectly) suffered for or on account of Taxes by that Lender in respect of a Loan Document.
(ii) Clause (c)(i) above shall not apply:
(A) with respect to any Taxes assessed on a Lender
(1) under the law of the jurisdiction in which such Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which such Lender is treated as resident for tax purposes; or
(2) under the law of the jurisdiction in which such Lender’s office is located in respect of amounts received or receivable in such jurisdiction, if such Taxes are imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by such Lender; or
(B) to the extent a loss, liability or cost:
(1) is compensated for by an increased payment under Section 1.7(b)(iii) (Tax gross-up);
(2) would have been compensated for by an increased payment under Section 1.7(b)(iii) (Tax gross-up) but was not so compensated solely because one of the exclusions in Section 1.7(b)(iv) (Tax gross-up) applied; or
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(3) related to a FATCA Deduction required to be made by a party to this Agreement.
(iii) A Lender making, or intending to make a claim under Section 1.7(c)(i) above shall promptly notify Agent of the event which will give, or has given, rise to the claim, following which Agent shall notify the Lead Borrower.
(iv) A Lender shall, on receiving a payment from the Lead Borrower under this clause (c), notify Agent.
(d) Tax Credit. If a Relevant Borrower makes a Tax Payment and the relevant Lender determines that:
(i) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
such Lender has obtained, utilized and retained that Tax Credit,
(ii) such Lender shall pay an amount to the Relevant Borrower which such Lender determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Relevant Borrower.
(e) Lender Status Confirmation. Each Lender which becomes a party to this Agreement after the date of this Agreement (“New Lender”) shall indicate, in the Assignment and Acceptance which it executes on becoming a party, and for the benefit of Agent and without liability to any Relevant Borrower, which of the following categories it falls within:
(i) not a Qualifying Lender;
(ii) a Qualifying Lender (other than a Treaty Lender); or
(iii) a Treaty Lender.
If a New Lender fails to indicate its status in accordance with this Section 1.7(e), then such New Lender or Lenders (as appropriate) shall be treated for the purposes of this Agreement (including by each Relevant Borrower) as if it is not a Qualifying Lender until such time as it notifies Agent which category of Qualifying Lender applies (and Agent, upon receipt of such notification, shall inform the Relevant Borrower). For the avoidance of doubt, an Assignment and Acceptance shall not be invalidated by any failure of a New Lender to comply with this Section 1.7.
(f) HMRC DT Treaty Passport Scheme Confirmation.
(i) A New Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Agent and without liability to any Relevant Borrower) in the Assignment and Acceptance which it executes by including its scheme reference number and its jurisdiction of tax residence in that Assignment and Acceptance.
(ii) Where an Assignment and Acceptance includes the indication described in clause (f)(i) above in the relevant Assignment and Acceptance each Relevant Borrower which is a party as a Borrower as at the date that the relevant Assignment and Acceptance Agreement is
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executed (the “Transfer Date”) shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of that Transfer Date and shall promptly provide the Lender with a copy of that filing.
(g) Stamp Taxes. The Relevant Borrower shall pay and, within three Business Days of demand, indemnify each Lender against any cost, loss or liability that Lender incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Loan Document as it relates to the Relevant Borrower only and not an obligation of the other Borrowers.
(h) VAT.
(i) All amounts set out or expressed in a Loan Document to be payable by any party to any Lender which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to clause (ii) below, if VAT is or becomes chargeable on any supply made by any Lender to any party under a Loan Document, that party shall pay to the Lender (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Lender shall promptly provide an appropriate VAT invoice to such party).
(ii) If VAT is or becomes chargeable on any supply made by any Lender (the “Supplier”) to any other Lender (the “Lender Recipient”) under a Loan Document, and any party other than the Lender Recipient (the “Subject Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Lender Recipient in respect of that consideration),
(A) (where the Supplier is the person required to account to the relevant tax authority for the VAT) such party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Lender Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Lender Recipient from the relevant tax authority which the Lender Recipient reasonably determines is in respect of such VAT; and
(B) (where the Lender Recipient is the person required to account to the relevant tax authority for the VAT) the Subject Party must promptly, following demand from the Lender Recipient, pay to the Lender Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Lender Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.
(iii) Where a Loan Document requires any party to reimburse or indemnify a Lender for any cost or expense, that party shall reimburse or indemnify (as the case may be) such Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(iv) Any reference in this Section 1.7(h) to any party shall, at any time when such party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at
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such time (the term “representative member” to have the same meaning as in the United Kingdom Value Added Tax Act 1994).
(i) FATCA Deduction.
(i) Each party to this Agreement may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party to this Agreement shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
(ii) Each party to this Agreement shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the party to whom it is making the payment and, in addition, shall notify the Lead Borrower and the Agent and the Agent shall notify the Lenders.
(j) Except as otherwise expressly provided in this Section 1.7, a reference to “determines” or “determined” in connection with tax provisions contained in this Section 1.7 means a determination made in the absolute discretion of the person making the determination.
1.8 Exchange Rates; Currency Translation.
(a) The Agent or the Issuing Bank, as applicable, shall reasonably determine the Spot Rates to be used for calculating Equivalent Amounts of Loans and amounts denominated in CD$ or Alternative Currencies. Such Spot Rates shall become effective as of any such date of determination and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next date to so occur. Except for purposes of financial statements delivered by the Credit Parties hereunder or calculating financial covenants hereunder (including baskets related thereto, as applicable) or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Equivalent Amount as so determined by the Agent or the Issuing Bank, as applicable.
(b) Any amount specified in this Agreement or any of the other Loan Documents to be in Dollars shall also include the Equivalent Amount. Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Term SOFR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but if such Borrowing, Term SOFR Loan or Letter of Credit is denominated in CD$ or in an Alternative Currency, then such amount shall be the relevant Equivalent Amount of such Dollar amount (rounded to the nearest unit of such CD$ or Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Agent or the Issuing Bank, as the case may be.
(c) Notwithstanding the foregoing, for purposes of any determination under any provision of this Agreement expressly requiring the use of a currency exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the Spot Rate.
1.9 Limited Condition Acquisitions.
In connection with any action being taken solely in connection with a Limited Condition Acquisition, for purposes of:
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(a) determining compliance with any provision of this Agreement which requires the calculation of the Total Leverage Ratio or satisfaction of the Payment Conditions; and
(b) determining compliance with representations, warranties, defaults, Events of Default or basket (in each case, other than for purposes of Section 4.2);
in each case, at the option of the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) (provided that the Lead Borrower shall be required to make an LCA Election on or prior to the date on which the definitive agreements for such Limited Condition Acquisition have been entered into and provided further that with respect to any required calculation of the Payment Conditions on the LCA Test Date, such calculation shall be effective only in the event that such Limited Condition Acquisition is consummated within 180 days following the LCA Test Date), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Applicable Fiscal Period ending prior to the LCA Test Date (after giving effect to any increases or decrease in Indebtedness of the Lead Borrower and Subsidiaries since such date), the Lead Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio, representation, warranty, default, Events of Default or basket, such ratio, representation, warranty, default, Event of Default or basket shall be deemed to have been complied with for purposes of such Limited Condition Acquisition. For the avoidance of doubt, if the Lead Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Lead Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Lead Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratios, representations, warranties, defaults, Events of Default or basket availability (including with respect to satisfaction of the Payment Conditions in connection therewith) with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Lead Borrower, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, the consummation of any other Permitted Acquisition or the designation of a Subsidiary as a Material Subsidiary or Material Domestic Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratios representations, warranties, defaults, Events of Default or baskets shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) has been consummated (it being further understood and agreed, however, that neither any Consolidated Net Income, Consolidated EBITDA or Consolidated Total Indebtedness therefrom, nor any assets of the target to be acquired pursuant to such Limited Condition Acquisition, shall be included in the Borrowers’ Consolidated Net Income, Consolidated EBITDA or Consolidated Total Indebtedness, or in the calculation of the Combined Borrowing Base, Domestic Borrowing Base, Canadian Borrowing Base, or the UK Borrowing Base, as applicable, in any such subsequent calculation until such Limited Condition Acquisition has actually closed).
1.10 Divisions.
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For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its capital stock at such time.
1.11 Interest Rates.
Agent does not warrant or accept responsibility for, nor shall it have any liability with respect to, administration, submission or any other matter related to any reference rate referred to herein or with respect to any rate (including, for the avoidance of doubt, the selection of such rate and any related spread or other adjustment) that is an alternate, replacement or successor to such rate (including any Successor Rate), or any component thereof, or the effect of any of the foregoing, or of any Conforming Changes. Agent may select information source(s) in its discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including any Successor Rate), or any component thereof, in each case pursuant to the terms hereof, and shall have no liability to any Lender, Credit Party or other Person for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise, and whether at law or in equity) for any error or other act or omission related to or affecting the selection, determination or calculation of any rate (or component thereof) provided by such information source.
2.1 Commitments of the Lenders.
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(B) For purposes of Section 2.18(a) and Section 2.18(c), Loans made to the Canadian Borrower under this Section 2.1(a)(x) shall not be included as Canadian Credit Extensions.
(C) If at any time the amount of the Canadian Credit Extensions to the Canadian Borrower plus the amount of the Loans made to the Canadian Borrower pursuant to this Section 2.1(a)(x) exceeds Canadian Total Commitments (including, without limitation, as a result of one or more fluctuations in the exchange rate of the Canadian Dollar against the Dollar), the Canadian Borrower will immediately prepay the Loans made to the Canadian Borrower pursuant to this Section 2.1(a)(x) in an amount necessary to eliminate such excess.
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2.2 Reserves; Changes to Reserves.
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2.3 Making of Loans.
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2.4 Overadvances. The Agent and the Lenders have no obligation to make any Loan or to provide any Letter of Credit if an Overadvance would result. The Agent (including through any of its branches) may, in its discretion, make Permitted Overadvances without the consent of the Lenders and each Lender shall be bound thereby. Any Permitted Overadvances may constitute Swingline Loans. The making of any Permitted Overadvance is for the benefit of the Borrowers; such Permitted Overadvances constitute Revolving Loans and Obligations. The making of any such Permitted Overadvances on any one occasion shall not obligate the Agent or any Lender to make or permit any Permitted Overadvances on any other occasion or to permit such Permitted Overadvances to remain outstanding. The Agent shall have no liability for, and no Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever against the Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).
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2.5 Swingline Loans, Canadian Swingline Loans and UK Swingline Loans.
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2.6 Letters of Credit.
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2.7 Settlements Among Lenders.
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2.8 Notes; Repayment of Loans.
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2.9 Interest on Loans.
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For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever interest to be paid hereunder is to be calculated on the basis of a year of 360 days or any other period of time that is less than a calendar year, the yearly rate of interest to which the rate determined pursuant to such calculation is equivalent is the rate so determined multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by either 360 or such other period of time, as the case may be. Calculations of interest shall be made using the nominal rate method of calculation, and will not be calculated using the effective rate method of calculation or any other basis that gives effect to the principle of deemed reinvestment of interest.
2.10 Default Interest. Effective upon the occurrence of any Event of Default and at all times thereafter while such Event of Default is continuing, at the option of the Agent or upon the direction of the Required Lenders, interest shall accrue on all outstanding Loans (including Swingline Loans, Canadian Swingline Loans and UK Swingline Loans) (after as well as before judgment, as and to the extent permitted by law), and all fees payable under Sections 2.11, 2.12 and 2.13 shall accrue, at a rate per annum equal to the applicable rate (including the Applicable Margin) otherwise in effect from time to time plus 2.00% per annum, and such interest shall be payable on demand.
2.11 Certain Fees. The Borrowers shall pay to the Agent, for the account of the Agent and the Lenders, the fees set forth in the Fee Letter as and when payment of such fees is due as therein set forth.
2.12 Unused Commitment Fee. (a) The Domestic Borrowers shall pay to the Agent for the account of the Lenders in accordance with their respective Domestic Commitment Percentages, a commitment fee (the “Commitment Fee”) computed at the Commitment Fee Rate per annum (on the basis of actual days elapsed in a year of 360 days), of the average daily balance of the Unused Commitment for each day commencing on and including the Third Amendment Effective Date and ending on but excluding the Termination Date.
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2.13 Letter of Credit Fees. The Borrowers shall pay the Agent, for the account of the Domestic Lenders, the Canadian Lenders or the UK Lenders, as applicable, on first day of each calendar quarter, in arrears for the immediately preceding calendar quarter, a fee (each, a “Letter of Credit Fee”) equal to the following per annum percentages of the Stated Amount of the following categories of Letters of Credit outstanding during the subject quarter:
2.14 Nature of Fees. All fees shall be paid on the dates due, in immediately available funds, to the Agent, for the respective accounts of the Agent, the Arrangers, the Issuing Bank, and the Lenders, as provided herein. All fees shall be fully earned on the date when due and shall not be refundable under any circumstances. For greater certainty, the Canadian Borrower and the UK Borrower shall not be liable for any fees which form part of the Obligations unless they are Canadian Liabilities or UK Liabilities (including as provided in Section 2.12(b), Section 2.11, or Section 9.4).
2.15 Termination or Reduction of Commitments.
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2.16 [Reserved].
2.17 Conversion and Continuation of Loans. The Lead Borrower on behalf of the Domestic Borrowers, or the Canadian Borrower or the UK Borrower, as applicable, shall have the right at any time,
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subject to the following:
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If the applicable Borrower does not give notice to convert any Borrowing of Domestic Prime Rate Loans or Canadian Prime Rate Loans, or does not give notice to continue, or does not have the right to continue, any Borrowing as Term SOFR Loans, Alternative Currency Term Rate Loans or BA Equivalent Loans, in each case as provided above, such Borrowing shall automatically be converted to, or continued as, as applicable, a Borrowing of Domestic Prime Rate Loans, Canadian Prime Rate Loans or UK Swingline Loans, as applicable, at the expiration of the then current Interest Period. The Agent shall, after it receives notice from the applicable Borrower, promptly give each Lender notice of any conversion, in whole or part, of any Loan made by such Lender.
2.18 Mandatory Prepayment; Cash Collateral; Commitment Termination. The outstanding Obligations shall be subject to mandatory prepayment as follows:
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2.19 Optional Prepayment of Loans; Reimbursement of Lenders.
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2.20 Maintenance of Loan Account; Statements of Account.
2.21 Cash Receipts.
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2.22 Application of Payments.
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2.23 Increased Costs.
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Term SOFR Loans, Alternative Currency Loans or BA Equivalent Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise) other than Taxes, which shall be governed by Section 2.26 and Section 1.7 hereof, then, as long as the Borrowers are treated in the same manner as all similarly situated customers, the Borrowers will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
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2.24 Change in Legality.
2.25 Payments; Sharing of Setoff.
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2.26 Taxes.
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2.27 Security Interests in Collateral. To secure their Obligations under this Agreement and the other Loan Documents, each Credit Party (other than the UK Credit Parties unless the UK Borrowing Base has been established) shall grant, and the Lead Borrower shall cause each Domestic Credit Party to grant, to the Agent, for its benefit and the ratable benefit of the other Secured Parties, and shall cause each Canadian Credit Party to grant, to the Agent, for its benefit and the ratable benefit of the other Canadian Secured Parties and the UK Secured Parties, a first-priority security interest in, and hypothec of, all of the Collateral pursuant hereto and to the Security Documents; provided that the security interest in, and hypothec of, the Collateral granted by the Canadian Borrower shall secure only the Canadian Liabilities and the UK Liabilities.
2.28 Mitigation Obligations; Replacement of Lenders.
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2.29 Inability to Determine Rates.
Thereafter, (x) the obligation of the Lenders to make or maintain Loans in the affected currencies, as applicable, or to convert Prime Rate Loans to Term SOFR Loans or Canadian Prime Rate Loans to BA Equivalent Loans, shall be suspended in each case to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable, and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate or the BA Rate component of the Canadian Prime Rate, the utilization of the Term SOFR component in determining the Base Rate or the BA Rate component in determining the Canadian Prime Rate, as applicable, shall be suspended, in each case until the Agent (or, in the case of a determination by the Required Lenders described in clause (ii) of this Section 2.29(a), until the Agent upon instruction of the Required Lenders) revokes such notice.
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Upon receipt of such notice, (i) the Borrowers may revoke any pending request for a Borrowing of, or conversion to Term SOFR Loans, Canadian Prime Rate Loans or Borrowing of, or continuation of Alternative Currency Loans to the extent of the affected Alternative Currency Loans or Interest Period or determination date(s), as applicable or, failing that, will be deemed to have converted such request into a request for a Borrowing of Prime Rate Loans denominated in Dollars, or Canadian Prime Rate Loans if denominated in Canadian Dollars, of the amount specified therein and (ii) (A) any outstanding Term SOFR Loans shall be deemed to have been converted to Base Rate Loans immediately, (B) any outstanding BA Equivalent Loans shall be deemed to have been converted to Canadian Prime Rate Loans immediately, and (C) any outstanding affected Alternative Currency Loans, at the Lead Borrower’s election, shall either (1) be converted into a Borrowing of Base Rate Loans denominated in Dollars of the amount of such outstanding Alternative Currency Loan immediately, in the case of an Alternative Currency Daily Rate Loan or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan or (2) be prepaid in full immediately, in the case of an Alternative Currency Daily Rate Loan, or at the end of the applicable Interest Period, in the case of an Alternative Currency Term Rate Loan; provided that if no election is made by the Lead Borrower (x) in the case of an Alternative Currency Daily Rate Loan, by the date that is three Business Days after receipt by the Lead Borrower of such notice or (y) in the case of an Alternative Currency Term Rate Loan, by the last day of the current Interest Period for the applicable Alternative Currency Term Rate Loan, the Lead Borrower shall be deemed to have elected clause (a) above.
or if the events or circumstances of the type described in Section 2.29(b)(i), (ii) or (iii) have occurred with respect to the Successor Rate then in effect, then, the Agent and the Lead Borrower may amend this Agreement solely for the purpose of replacing the Relevant Rate for an Agreed Currency or any then current Successor Rate for an Agreed Currency in accordance with this Section 2.29 with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar credit
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facilities syndicated and agented in the U.S. and denominated in such Agreed Currency for such alternative benchmarks, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar credit facilities syndicated and agented in the U.S. and denominated in such Agreed Currency for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be periodically updated (and any such proposed rate, including for the avoidance of doubt, any adjustment thereto, a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Agent shall have posted such proposed amendment to all Lenders and the Lead Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Agent written notice that such Required Lenders object to such amendment.
The Agent will promptly (in one or more notices) notify the Lead Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero, the Successor Rate will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to the Lead Borrower and the Lenders reasonably promptly after such amendment becomes effective.
2.30 UK Borrowing Base.
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Each Borrower represents and warrants to the Agent and the Lenders that:
3.1 Organization; Powers. Each of the Credit Parties and each Material Foreign Subsidiary is, duly organized, incorporated, validly existing and in good standing (as appropriate) under the laws of the jurisdiction of its organization or incorporation, and each such Person has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
3.2 Authorization; Enforceability. The transactions contemplated hereby and by the other Loan Documents to be entered into by each of the Credit Parties are within such Person’s corporate powers and have been duly authorized by all necessary corporate, and, if required, stockholder action. This Agreement has been duly executed and delivered by each of the Borrowers and constitutes, and each other Loan Document to which any of the Credit Parties is a party, when executed and delivered by such Credit Party,
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will constitute, a legal, valid and binding obligation of such Credit Party (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
3.3 Governmental Approvals; No Conflicts. The transactions to be entered into contemplated by the Loan Documents (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) for such as have been obtained or made and are in full force and effect, (ii) for those for which a failure to obtain same could not be reasonably be expected to have a Material Adverse Effect, and (iii) for filings and recordings necessary to perfect Liens created under the Loan Documents, (b) will not violate any Applicable Law or regulation or the charter, by laws, memorandum and articles of association or other organizational documents of any Borrower, any of the other Credit Parties, or any Material Foreign Subsidiary or any order of any Governmental Authority, except for such violations as could not reasonably be expected to have a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Borrower, any of the other Credit Parties, or any Material Foreign Subsidiary, or their respective assets, except for such violations or defaults as could not reasonably be expected to have a Material Adverse Effect, or give rise to a right thereunder to require any material payment to be made by any Borrower, any of the other Credit Parties, or any Material Foreign Subsidiary and (d) will not result in the creation or imposition of any Lien on any material asset of any Borrower, any of the other Credit Parties, or any Material Foreign Subsidiary, except Liens created under the Loan Documents or otherwise permitted hereby or thereby.
3.4 Financial Condition.
3.5 Properties.
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3.6 Litigation and Environmental Matters.
3.7 Compliance with Laws and Agreements. Except as set forth in Schedule 3.7, each of the Credit Parties is in compliance with all laws, regulations and orders of any Governmental Authority applicable to such Person or its property and all indentures, material agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.
3.8 Investment Company or Holding Company Status. None of the Credit Parties is an (a) “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company,” an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company,” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 2005, as amended.
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3.9 Taxes. Except as set forth in Schedule 3.9, each of the Credit Parties and each Material Foreign Subsidiary has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid prior to delinquency all taxes required to have been paid by it, except (a) taxes that are being contested in good faith by appropriate proceedings, for which such Person has set aside on its books adequate reserves, and as to which no Lien (other than an inchoate Lien) secures such obligation, and which contest effectively suspends the collection of the contested obligation and the enforcement of any Lien securing such obligation, or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
3.10 ERISA/Canadian Pension Plan/ UK Pension Plan. (a) Except as set forth in Schedule 3.10, none of the Credit Parties nor any Material Foreign Subsidiary is party to a Plan. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. Except as set forth in Schedule 3.10, the present value of all accumulated benefit obligations under each Plan and each Canadian Pension Plan (based on, inter alia, the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan or Canadian Pension Plan. Schedule 3.10 sets forth the amount of underfunding on such basis for all Plans and Canadian Pension Plans as of the date of the most recent financial statements, and nothing is reasonably expected to occur that could increase the amount of such underfunding to an amount that, in either case, could reasonably be expected to result in a Material Adverse Effect.
3.11 ERISA Compliance.
Assuming the accuracy of Lenders’ representation in Section 8.16, Borrowers represent and warrant as of the Third Amendment Effective Date that the Borrowers are not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments.
3.12 Disclosure. The Borrowers have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which any of the Credit Parties or any Material Foreign Subsidiary is
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subject, and all other matters known to any such Person, that, individually or in the aggregate, in each case, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any of the Credit Parties or any Material Foreign Subsidiary to the Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that with respect to projected financial information and other forward-looking information, the Borrowers represent only that such information was prepared in good faith on the basis of assumptions believed to be reasonable at the time. As of the Third Amendment Date, the information included in the Beneficial Ownership Certification, provided on or prior to the Third Amendment Effective Date, if any, is true and correct in all respects.
3.13 Subsidiaries. On and as of the Third Amendment Effective Date, the authorized capital stock or other equity interests, and the number of issued and outstanding shares of capital stock or other equity interests of the Borrowers and each other member of the Borrower Consolidated Group is as described in Schedule 3.13 and, as to Subsidiaries, Schedule 3.13 indicates whether such Subsidiary is a Material Subsidiary, and, if not a Material Subsidiary, whether such Subsidiary is active or inactive. All such outstanding shares of capital stock or other equity interests of the Borrowers, each of the other Credit Parties and each Material Foreign Subsidiary have been duly and validly issued in material compliance with all legal requirements relating to the authorization and issuance of shares of capital stock or other equity interests, and (except in the case of the options for shares of the common stock of the Lead Borrower described on Schedule 3.13) are fully paid and non-assessable. Except as set forth on the Perfection Certificate, as of the Third Amendment Effective Date, none of the Credit Parties is party to any joint venture, general or limited partnership, or limited liability company, agreements or any other business ventures or entities.
3.14 Insurance. Schedule 3.14 sets forth a description of all insurance maintained by or on behalf of the Credit Parties and each Material Foreign Subsidiary as of the Third Amendment Effective Date. To the knowledge of the Credit Parties, each of such policies is in full force and effect. As of the Third Amendment Effective Date, all premiums in respect of such insurance that are due and payable have been paid.
3.15 Labor Matters. There are no strikes, lockouts or slowdowns against any of the Credit Parties or any Material Foreign Subsidiary pending or, to the knowledge of the Borrowers, threatened, that could reasonably be expected to result in a Material Adverse Effect. The hours worked by and payments made to employees of the Credit Parties or any Material Foreign Subsidiary have not been in violation of the Fair Labor Standards Act, if applicable, or any other applicable federal, state, local or foreign law dealing with such matters to the extent that any such violations could reasonably be expected to have a Material Adverse Effect. All material payments due from any of the Credit Parties or any Material Foreign Subsidiary, or for which any material claim may be made against any such Person, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Credit Party or such Material Foreign Subsidiary. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any of the Credit Parties or any Material Foreign Subsidiary is bound.
3.16 [Reserved]
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3.17 Restrictions on the Credit Parties. None of the Credit Parties nor any Material Foreign Subsidiary is a party to or bound by any contract, agreement or instrument, or subject to any charter or other corporate restriction, that has or could reasonably be expected to have a Material Adverse Effect.
3.18 Security Documents.
3.19 Federal Reserve Regulations.
(a) None of the Credit Parties is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, to buy or carry Margin Stock or to extend credit to others for the purpose of buying or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or for any other purpose, in any case that entails a violation of, or that is not permitted by the provisions of the Regulations of the Board, including Regulation U or X and the Credit Parties agree to comply with the Agent’s, and the Lenders’, requests for information relating to any transactions involving Margin Stock to the extent relevant to comply with such regulations.
3.20 Solvency. Before and after giving effect to each Credit Extension, (a) the Credit Parties, taken as a whole, are and will be Solvent, and (b) the Credit Parties and the Material Foreign Subsidiaries, taken as a whole, are and will be Solvent. No transfer of property is being made by any Borrower and no obligation is being incurred by any Borrower in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of any Borrower.
3.21 Franchises, Patents, Copyrights, Etc.. Except as otherwise set forth on Schedule 3.21 hereto, each of the Credit Parties owns, or is licensed to use, all franchises, patents, copyrights, trademarks, tradenames, service marks, licenses and permits, and rights in respect of the foregoing, adequate for the conduct of its business as substantially now conducted, and to its knowledge, without conflict with any rights of any other Person (and, in each case, free of any Lien that is not a Permitted Encumbrance), except to the extent that a failure to do so would not reasonably be expected to have a Material Adverse Effect.
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3.22 Brokers. No broker or finder brought about the obtaining, making or closing of the Loans or transactions contemplated by the Loan Documents, and no Credit Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
3.23 Casualty. Neither the businesses nor the properties of any Credit Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
3.24 Intellectual Property; Licenses, Etc.. The Credit Parties own, or possess the right to use, all of the Intellectual Property, licenses, permits and other authorizations that are reasonably necessary for the operation of their respective businesses, to the knowledge of the Credit Parties, without conflict with the rights of any other Person, except as would not be reasonably expected to have a Material Adverse Effect.
3.25 Ranking.
The UK Borrower’s payment obligations under the Loan Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
3.26 EEA Financial Institution.
None of the Borrowers is an EEA Financial Institution.
3.27 Sanctions Concerns and Anti-Corruption Laws.
4.1 Conditions of Effectiveness. The effectiveness of the Agreement on the Effective Date was subject to the following conditions precedent:
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The Agent shall notify the Lead Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
4.2 Conditions Precedent to Each Loan and Each Letter of Credit. In addition to those conditions described in Section 4.1, the obligation of the Lenders to make each Loan and of the applicable Issuing Bank to issue each Letter of Credit subsequent to the Effective Date is subject to the following conditions precedent:
The request by the Borrowers for, and the acceptance by the Borrowers of, each extension of credit hereunder shall be deemed to be a representation and warranty by the Borrowers that the conditions
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specified in this Section 4.2 have been satisfied at that time and that after giving effect to such extension of credit the Borrowers shall continue to be in compliance with Section 2.1(a). The conditions set forth in this Section 4.2 are for the sole benefit of the Agent and the Lenders and, unless the Required Lenders otherwise direct, may be waived by the Agent in whole or in part without prejudice to the Agent or any Lender.
Until the Commitments have expired or have been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or have been terminated and all L/C Disbursements shall have been reimbursed, each of the Credit Parties covenants and agrees with the Agent and the Lenders that:
5.1 Financial Statements and Other Information. The Borrowers will furnish to the Agent:
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Documents required to be delivered pursuant to Sections 5.1(a), (b), (c), (f) and (h) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
The Credit Parties hereby acknowledge that (a) the Agent and/or the Arrangers will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Credit Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Credit Parties or their securities) (each, a “Public Lender”). The Credit Parties hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Credit Parties shall be deemed to have authorized the Agent, the Arrangers, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Credit Parties or their securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
5.2 Notices of Material Events. The Borrowers will, and the Lead Borrower will cause each of the other Credit Parties to, furnish to the Agent (which in turn shall furnish to the Issuing Bank, the Agent and each Lender) prompt written notice of the following:
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Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Lead Borrower setting forth the details of the event or development requiring such notice and, if applicable, any action taken or proposed to be taken with respect thereto.
5.3 Information Regarding Collateral.
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5.4 Existence; Conduct of Business. Except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect, the Lead Borrower will, and will cause each of the other Credit Parties and each Material Foreign Subsidiary to, do or cause to be done all things necessary to comply with its respective charter, certificate of incorporation, and/or other organizational documents, as applicable, and by-laws and/or other instruments which deal with corporate governance, and to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, provided that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under Section 6.3 or any sale, lease, transfer or other disposition permitted by Section 6.5.
5.5 Payment of Obligations. Each Borrower will, and the Lead Borrower will cause each other Credit Party and each Material Foreign Subsidiary to, pay its Indebtedness and other obligations, including tax liabilities, before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate actions, (b) such Borrower, such other Credit Party, or such Material Foreign Subsidiary has set aside on its books adequate reserves with respect thereto to the extent required by and in accordance with GAAP, (c) such contest effectively suspends collection of the contested obligation, and (d) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect. Nothing contained herein shall be deemed to limit the rights of the Agent under Section 2.2(b).
5.6 Maintenance of Properties. Except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect, the Lead Borrower will, and will cause each of the other Credit Parties and each Material Foreign Subsidiary to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted and with the exception of asset dispositions permitted hereunder.
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5.7 Insurance.
5.8 Casualty and Condemnation. Each Borrower will furnish to the Agent and the Lenders prompt written notice of any casualty or other insured damage to any material portion of the Collateral or
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the commencement of any action or proceeding for the taking of any material portion of the Collateral or any material part thereof or material interest therein under power of eminent domain or by condemnation or similar proceeding.
5.9 Books and Records; Inspection and Audit Rights.
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5.10 Fiscal Year. Each of the Borrowers, each of the other Credit Parties and each Material Foreign Subsidiary shall have a Fiscal Year ending on the Saturday closest to January 31 of each year and shall notify the Agent of any change in such Fiscal Year.
5.11 Physical Inventories/ Cycle Counts.
5.12 Compliance with Laws. Each Borrower will, and the Lead Borrower will cause each other Credit Party and each Material Foreign Subsidiary to, comply with all laws, rules, regulations and orders
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of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
5.13 Use of Proceeds and Letters of Credit. The proceeds of the Loans made hereunder and Letters of Credit issued hereunder will be used only (a) for Restricted Payments, Investments permitted under Section 6.4 hereof and Permitted Acquisitions, (b) to finance the acquisition of working capital assets of the Borrowers and the Subsidiaries, including the purchase of inventory and equipment, in each case in the ordinary course of business, (c) to finance Capital Expenditures of the Borrowers and the Subsidiaries, (d) for refinancing of the Indebtedness under the Existing Credit Agreement, (e) to pay transaction costs in connection with this Agreement and the other Loan Documents, and (f) for general corporate purposes, including without limitation the issuance of Letters of Credit, all to the extent permitted herein. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X.
5.14 Additional Subsidiaries.
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Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, the Borrowers, the Material Domestic Subsidiaries and the Material Foreign Subsidiaries (i) will not be required to take any action to grant or perfect a security interest in or Lien on any asset where the Agent and the Lead Borrower agree that the cost of obtaining such a security interest in or Lien on or perfection thereof is excessive in relation to the benefit afforded thereby, and (ii) will not be required to take any action to grant or perfect a security interest in or Lien on any asset or serve as a Guarantor if granting or perfecting such security interest or serving as a Guarantor would cause any of the Material Foreign Subsidiaries to be treated as holding United States property under Code Section 956 and U.S. Treasury Regulations Section 1.956-2(c).
5.15 Further Assurances. Each Borrower will, and the Lead Borrower will cause each of the other Credit Parties and each Material Foreign Subsidiary to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any Applicable Law, or which the Agent or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Borrowers, provided however, that neither the Excluded UK Subsidiaries nor any other Material Foreign Subsidiary will be required to take any of the foregoing actions if and to the extent such action would cause an adverse tax consequence. The Borrowers also agree to provide to the Agent, from time to time upon request, evidence reasonably satisfactory to the Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
5.16 Compliance with Terms of Leaseholds.
The Borrowers shall perform all obligations in respect of all Leases of real property to which any Credit Party is a party and keep such Leases in full force and effect, except (a) for store closures in the ordinary course of business or (b) where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.17 Environmental Laws.
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5.18 [Reserved].
5.19 UK “Know your customer” checks.
5.20 UK Pension Plans.
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5.21 Canadian Pension Plans.
The Canadian Borrower shall cause each of its and its Canadian Subsidiaries’ Canadian Pension Plans for which the Canadian Borrower or any Canadian Subsidiary is sponsor or administrator to be duly registered and administered in material compliance with Applicable Laws and the terms of the Canadian Pension Plans. The Canadian Borrower shall ensure that it and its Canadian Subsidiaries: (a) file with all applicable Governmental Authorities each required actuarial valuation report prepared for funding purposes in respect of each Canadian Defined Benefit Pension Plan; (b) pay all amounts required to be paid by it or them in respect of such Canadian Pension Plan when due; (c) have no Lien on any of its or their property that arises or exists in respect of any Canadian Pension Plan except a Permitted Encumbrance; (d) do not permit the wind-up and/or termination of any Canadian Pension Plan during the term of this Agreement without the prior written consent of Agent.
5.22 People with Significant Control Regime.
The Lead Borrower will comply with any notice it receives pursuant to Part 21A of the Companies Act 2006 (UK) from any company incorporated in the United Kingdom whose shares are the subject of a Lien in favor of the Agent.
Until the Commitments have expired or have been terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or have been terminated and all L/C Disbursements shall have been reimbursed, each Borrower covenants and agrees with the Agent and the Lenders that:
6.1 Indebtedness. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to, create, incur, assume or permit to exist any Indebtedness of such Credit Parties, except:
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6.2 Liens. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
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6.3 Fundamental Changes. (a) The Borrowers shall not, nor shall the Lead Borrower permit any of the other Credit Parties or any Material Foreign Subsidiary to, liquidate, merge, amalgamate or consolidate into or with any other Person or enter into or undertake any plan or agreement of liquidation, merger, amalgamation, or consolidation with any other Person, provided that (i) a Borrower may merge or amalgamate with another company in connection with a Permitted Acquisition if such Borrower is the surviving company, (ii) any wholly-owned Subsidiary may merge, amalgamate, or consolidate into or with a Borrower or any other wholly-owned Subsidiary of a Borrower if no Default or Event of Default has occurred and is continuing or would result from such merger or amalgamation and if a Borrower is the surviving company in any merger, amalgamation, or consolidation to which it is a party, (iii) a Subsidiary may merge, amalgamate or consolidate into or with another entity in connection with a Permitted Acquisition if, upon consummation of such merger, amalgamation, or consolidation, the surviving entity shall be a direct or indirect wholly-owned Subsidiary and, if the surviving entity is a Material Domestic Subsidiary or a Material Foreign Subsidiary that is a Canadian Subsidiary or a UK Subsidiary (other than an Excluded UK Subsidiary), such Material Domestic Subsidiary or Material Foreign Subsidiary, as applicable, becomes a party to the Security Documents, (iv) any Domestic Subsidiary may merge or consolidate into or with any other Domestic Subsidiary, and, if the surviving entity is a Material Domestic Subsidiary, such Material Domestic Subsidiary becomes a party to the Security Documents, (v) any Foreign Subsidiary may merge into or amalgamate with any other Foreign Subsidiary and, if the surviving entity is a Material Foreign Subsidiary that is a Canadian Subsidiary or a UK Subsidiary (other than an Excluded UK Subsidiary), such Material Foreign Subsidiary becomes a party to the applicable Loan Documents; provided that if a Credit Party is part of such merger or amalgamation, either such Credit Party shall be the survivor of such merger or amalgamation or the Borrowers shall cause the survivor to become a Credit Party hereunder (unless such action would cause any such Material Foreign Subsidiary to be treated as holding United States property under Code Section 956 and U.S. Treasury Regulations Section 1.956-2(c)) and (vi) any Subsidiary (other than a Borrower) may liquidate or dissolve if the Lead Borrower determines in good faith that such liquidation is in the best interests of the Borrowers and would not have a Material Adverse Effect.
6.4 Investments, Loans, Advances, Guarantees and Acquisitions. The Borrowers shall not, nor shall the Lead Borrower permit any of the other Credit Parties to, purchase, hold or acquire (including pursuant to any merger or amalgamation with any Person that was not a wholly owned Subsidiary prior to such merger or amalgamation) any capital stock or other equity interests, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guarantee any obligations of, or make or permit to exist any investment
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or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (each of the foregoing, an “Investment”), except for:
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provided that to the extent any such Investment includes Intellectual Property, such Intellectual Property shall be subject to a limited, non-exclusive, royalty-free, worldwide (solely to the extent the Credit Parties and their Subsidiaries have worldwide rights in such Intellectual Property) license in favor of the Agent for the sole purpose of the Agent’s exercise of rights and remedies under this Agreement.
6.5 Asset Sales. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to, sell, transfer, lease or otherwise dispose of any asset, including any capital stock or other equity interests except:
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provided that if any such sales, transfers or dispositions include the sales, transfers or dispositions of Intellectual Property, such Intellectual Property shall be subject to a limited, non-exclusive, royalty-free, worldwide license of such Intellectual Property in favor of the Agent for use in connection with the exercise of the rights and remedies of the Secured Parties; further provided that all sales, transfers, leases and other dispositions of Inventory and the proceeds thereof shall be made for cash consideration or on customary terms, and further provided that all sales, transfers, leases and other dispositions permitted by clauses (a)(i), (a)(ii), (c) and (d) above shall be made at arm’s length and for fair value; and further provided that the authority granted hereunder may be terminated in whole or in part by the Agent upon the occurrence and during the continuance of any Event of Default.
6.6 Restrictive Agreements. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of any of the Credit Parties to create, incur or permit to exist any Lien upon any of its property or assets or (b) the ability of any of the Credit Parties to pay dividends or other distributions with respect to any shares of its capital stock or other equity interests or to make or repay loans or advances to the Borrowers or any of the other Credit Parties or to guarantee Indebtedness of the Borrowers or any of the other Credit Parties, provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document, (ii) the foregoing restrictions shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment or subleasing thereof.
6.7 Restricted Payments; Certain Payments of Indebtedness. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment or any payments on the Guarantees set forth in Section 6.1(h)(i), except that the Borrowers and the other Credit Parties shall be permitted to:
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6.8 Transactions with Affiliates. The Borrowers will not, nor will the Lead Borrower permit any other Credit Party to at any time sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions in the ordinary course of business that are at prices and on terms and conditions not less favorable to the Borrowers than could be obtained on an arm’s-length basis from unrelated third parties, and (b) transactions between or among the Borrowers and one or more Subsidiaries, not involving any other Affiliate, that would not otherwise violate the provisions of the Loan Documents.
6.9 Additional Subsidiaries. The Borrowers will not, nor will the Lead Borrower permit any of the other Credit Parties to, create any additional Subsidiary unless no Default or Event of Default would arise therefrom and the requirements of Section 5.14 are satisfied to the extent applicable.
6.10 Amendment of Material Documents. The Borrowers will not, nor will the Lead Borrower permit any other Credit Party or any Material Foreign Subsidiary to, amend, modify or waive any of its rights under (a) its certificate of incorporation, by-laws or other organizational documents to the extent that such amendment, modification or waiver would result in a Material Adverse Effect, or (b) any Material Indebtedness, in each case to the extent that such amendment, modification or waiver would result in a Default or Event of Default under any of the Loan Documents or would result in a Material Adverse Effect.
6.11 Fixed Charge Coverage Ratio. After the occurrence and during the continuance of a Covenant Compliance Event, the Borrowers shall not permit the Fixed Charge Coverage Ratio to be less than 1.0:1.0 tested at the end of each Applicable Fiscal Period.
6.12 Environmental Laws. The Borrowers shall not, nor will the Lead Borrower permit any other Credit Party or any Material Foreign Subsidiary to (a) fail to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, or (b) become subject to any Environmental Liability, in each case which is reasonably likely to have a Material Adverse Effect.
6.13 Fiscal Year. The Borrowers shall not change their Fiscal Year without the prior written consent of the Agent, which consent shall not be unreasonably withheld.
6.14 Canadian Pension Plans.
Except in connection with a Permitted Acquisition or with the prior consent of the Agent, the Borrowers shall not maintain, administer, contribute or have any liability in respect of any Canadian Defined Benefit Pension Plan or acquire an interest in any Person if such Person sponsors, maintains, administers or contributes to, or has any liability in respect of, any Canadian Defined Benefit Pension Plan.
6.15 Sanctions.
The Borrowers will not, nor will the Lead Borrower permit any other Credit Party to directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension, or lend, contribute or otherwise make available such Credit Extension or the proceeds of any Credit Extension to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, or in any other manner
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that will result in a violation by any Person (including any Person participating in the transaction, whether as Lender, Arranger, Agent, Issuing Bank or otherwise) of Sanctions.
6.16 Anti-Corruption Laws.
The Borrowers will not, nor will the Lead Borrower permit any other Credit Party directly or indirectly, use any Credit Extension or the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Xxxxxxx Xxx 0000, the Corruption of Foreign Public Officials Act (Canada), and other similar anti-corruption legislation in other jurisdictions to the extent applicable to the Borrowers or any other Credit Party.
7.1 Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
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then, and in every such event (other than an event with respect to each Borrower, any of the other Credit Parties or any Material Foreign Subsidiary described in clause (j) or (k) of this Section), and at any time thereafter during the continuance of such event, the Agent may, and at the request of the Required Lenders shall, by notice to the Lead Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately and no Lender shall thereafter be obligated to make any Loans, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers; and (iii) require the Borrowers to furnish cash collateral in an amount equal to 102% of the Letter of Credit Outstandings, and in case of any event with respect to any Borrower described in clause (j) or (k) of this Section, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers.
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7.2 When Continuing. For all purposes under this Agreement, each Default and Event of Default that has occurred shall be deemed to be continuing at all times thereafter unless it either (a) is cured or corrected to the reasonable written satisfaction of the Lenders in accordance with Section 9.3, or (b) is waived in writing by the Lenders in accordance with Section 9.3.
7.3 Remedies on Default. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the maturity of the Loans shall have been accelerated pursuant hereto, the Agent may, and at the direction of the Required Lenders, shall, proceed to protect and enforce its rights and remedies under this Agreement, the Notes or any of the other Loan Documents by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Agent or the Lenders. No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
7.4 Application of Proceeds. (a) After the exercise of remedies provided for in Section 7.3 or upon the acceleration of the time for payment of the Obligations following an Event of Default (or after the Loans have automatically become immediately due and payable and the Letter of Credit Outstandings have automatically been required to be Cash Collateralized as set forth in Section 7.1), any amounts received from any Domestic Credit Party, from the liquidation of any Collateral of any Domestic Credit Party, or on account of the Obligations (other than the Canadian Liabilities and the UK Liabilities), shall be applied by the Agent against the Obligations in the following order:
First, to payment of that portion of the Obligations (excluding the Other Domestic Liabilities, the Canadian Liabilities and the UK Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4) payable to the Agent, in its capacity as such;
Second, to payment of that portion of the Obligations (excluding the Other Domestic Liabilities, the Canadian Liabilities and the UK Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) then currently payable to the Domestic Lenders and the Issuing Bank (on account of Domestic Letters of Credit) (including fees, charges and disbursements of counsel to the respective Domestic Lenders and the Issuing Bank on account of Domestic Letters of Credit), ratably among them in proportion to the amounts described in this clause Second payable to them;
Third, to the extent not previously reimbursed by the Domestic Lenders, to payment to the Domestic Lenders of that portion of the Obligations constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the Domestic Lenders in proportion to the amounts described in this clause Third payable to them;
Fourth, to the extent that Swingline Loans made to the Domestic Borrowers have not been refinanced by a Domestic Loan, payment to the Swingline Lender of that portion of the Obligations constituting accrued and unpaid interest on the Swingline Loans made to the Domestic Borrowers;
Fifth, to the extent that Swingline Loans made to the Domestic Borrowers have not been refinanced by a Domestic Loan, payment to the Swingline Lender of that portion of the Obligations constituting unpaid principal on the Swingline Loans made to the Domestic Borrowers;
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Sixth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Domestic Loans and other Obligations (other than the Canadian Liabilities and the UK Liabilities), and fees (including Letter of Credit Fees, other than any fees due on account of any Canadian Letter of Credit or UK Letter of Credit), ratably among the Domestic Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixth payable to them;
Seventh, to payment of that portion of the Obligations constituting unpaid principal of the Domestic Loans, ratably among the Domestic Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Seventh held by them;
Eighth, to the Agent for the account of the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of Domestic Letters of Credit;
Ninth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the UK Lenders as cash collateral for payment of that portion of the Canadian Liabilities and UK Liabilities (excluding the Other Canadian Liabilities and the Other UK Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4) payable to the Agent, in its capacity as such;
Tenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders, the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities and UK Liabilities (excluding the Other Canadian Liabilities and the Other UK Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the Canadian Lenders, the UK Lenders and the Issuing Bank (on account of Canadian Letters of Credit and UK Letters of Credit) (including fees, charges and disbursements of counsel to the respective Canadian Lenders, the UK Lenders and the Issuing Bank on account of Canadian Letters of Credit and UK Letters of Credit) and amounts payable under Section 9.4), ratably among them in proportion to the amounts described in this clause Tenth payable to them;
Eleventh, to the extent not previously reimbursed by the Canadian Lenders and the UK Lenders, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the UK Lenders as cash collateral to payment to the Canadian Lenders and UK Lenders of that portion of the Canadian Liabilities and UK Liabilities constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the Canadian Lenders and UK Lenders in proportion to the amounts described in this clause Eleventh payable to them;
Twelfth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting accrued and unpaid interest on the Canadian Swingline Loans made to the Canadian Borrower;
Thirteenth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting unpaid principal on the Canadian Swingline Loans made to the Canadian Borrower;
Fourteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Swingline Lender as cash collateral to payment of that portion of the UK Liabilities constituting accrued and unpaid interest on the UK Swingline Loans made to the UK Borrower;
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Fifteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Swingline Lender as cash collateral to payment of that portion of the UK Liabilities constituting unpaid principal on the UK Swingline Loans made to the UK Borrower;
Sixteenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders, the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities and UK Liabilities constituting accrued and unpaid interest on the Canadian Loans, UK Loans and other Canadian Liabilities and UK Liabilities, and fees (including Letter of Credit Fees not paid pursuant to clause Sixth above), ratably among the Canadian Lenders, the UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixteenth payable to them;
Seventeenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders, the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities and UK Liabilities constituting unpaid principal of the Canadian Loans and UK Loans, ratably among the Canadian Lenders, UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Seventeenth held by them;
Eighteenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders, the UK Lenders and the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of Canadian Letters of Credit and UK Letters of Credit;
Nineteenth, to payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations for which a claim has been made, but excluding any Other Domestic Liabilities, Other Canadian Liabilities and Other UK Liabilities), ratably among the Lenders in proportion to the respective amounts described in this clause Nineteenth held by them;
Twentieth, to payment of that portion of the Obligations arising from Cash Management Services to the extent secured under the Security Documents, ratably among the Lenders in proportion to the respective amounts described in this clause Twentieth held by them;
Twenty-first, to payment of all other Obligations arising from Bank Products, ratably among the Lenders in proportion to the respective amounts described in this clause Twenty-first held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Domestic Credit Parties or as otherwise required by Applicable Law.
Amounts used to Cash Collateralize the aggregate undrawn amount of Domestic Letters of Credit pursuant to clause Eighth above shall be applied to satisfy drawings under such Domestic Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Domestic Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
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First, to payment of that portion of the Canadian Liabilities (excluding the Other Canadian Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4 payable to the Agent, in its capacity as such);
Second, to payment of that portion of the Canadian Liabilities (excluding the Other Canadian Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the Canadian Lenders and the Issuing Bank (on account of Canadian Letters of Credit) (including fees, charges and disbursements of counsel to the respective Canadian Lenders and the Issuing Bank on account of Canadian Letters of Credit) and amounts payable under Section 9.4), ratably among them in proportion to the amounts described in this clause Second payable to them;
Third, to the extent not previously reimbursed by the Canadian Lenders, to the Agent to be applied to that portion of the Canadian Liabilities constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the Canadian Lenders in proportion to the amounts described in this clause Third payable to them;
Fourth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting accrued and unpaid interest on the Canadian Swingline Loans made to the Canadian Borrower;
Fifth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting unpaid principal on the Canadian Swingline Loans made to the Canadian Borrower;
Sixth, to payment of that portion of the Canadian Liabilities constituting accrued and unpaid interest on the Canadian Loans and other Canadian Liabilities, and fees (including Letter of Credit Fees due on account of Canadian Letters of Credit), ratably among the Canadian Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixth payable to them;
Seventh, to payment of that portion of the Canadian Liabilities constituting unpaid principal of the Canadian Loans, ratably among the Canadian Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Seventh held by them;
Eighth, to the Agent for the account of the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of Canadian Letters of Credit;
Ninth, to payment of all other Canadian Liabilities (including without limitation the cash collateralization of unliquidated indemnification obligations, but excluding any Other Canadian Liabilities), ratably among the Canadian Lenders in proportion to the respective amounts described in this clause Ninth held by them;
Tenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders as cash collateral for payment of that portion of the UK Liabilities (excluding the Other UK
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Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4) payable to the Agent, in its capacity as such;
Eleventh, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the UK Liabilities (excluding the Other UK Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the UK Lenders and the Issuing Bank (on account of UK Letters of Credit) (including fees, charges and disbursements of counsel to the respective UK Lenders and the Issuing Bank on account of UK Letters of Credit) and amounts payable under Section 9.4), ratably among them in proportion to the amounts described in this clause Eleventh payable to them;
Twelfth, to the extent not previously reimbursed by the UK Lenders, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders as cash collateral to payment to the UK Lenders of that portion of the UK Liabilities constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the UK Lenders in proportion to the amounts described in this clause Twelfth payable to them;
Thirteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Swingline Lender as cash collateral to payment of that portion of the UK Liabilities constituting accrued and unpaid interest on the UK Swingline Loans made to the UK Borrower;
Fourteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Swingline Lender as cash collateral to payment of that portion of the UK Liabilities constituting unpaid principal on the UK Swingline Loans made to the UK Borrower;
Fifteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the UK Liabilities constituting accrued and unpaid interest on the UK Loans and other UK Liabilities, and fees (including Letter of Credit Fees), ratably among the UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Fifteenth payable to them;
Sixteenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders and the Issuing Bank as cash collateral to payment of that portion of the UK Liabilities constituting unpaid principal of the UK Loans, ratably among the UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixteenth held by them;
Seventeenth, to the Agent to be held by the Agent, for the ratable benefit of the UK Lenders and the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of UK Letters of Credit;
Eighteenth, to payment of all other UK Liabilities (including without limitation the cash collateralization of unliquidated indemnification obligations for which a claim has been made, but excluding any Other UK Liabilities), ratably among the UK Lenders in proportion to the respective amounts described in this clause Eighteenth held by them;
Nineteenth, to payment of that portion of the Canadian Liabilities and UK Liabilities arising from Cash Management Services to the extent secured under the Security Documents, ratably among the Canadian Lenders and UK Lenders in proportion to the respective amounts described in this clause Nineteenth held by them;
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Twentieth, to payment of all other Canadian Liabilities and UK Liabilities arising from Bank Products to the extent secured under the Security Documents, ratably among the Canadian Lenders and UK Lenders in proportion to the respective amounts described in this clause Twentieth held by them; and
Last, the balance, if any, after all of the Canadian Liabilities and UK Liabilities have been indefeasibly paid in full, to the Canadian Credit Parties or as otherwise required by Applicable Law.
Amounts used to Cash Collateralize the aggregate undrawn amount of Canadian Letters of Credit pursuant to clause Eighth above shall be applied to satisfy drawings under such Canadian Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Canadian Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Canadian Liabilities and UK Liabilities, if any, in the order set forth above.
First, to payment of that portion of the UK Liabilities (excluding the Other UK Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4 payable to the Agent, in its capacity as such);
Second, to payment of that portion of the UK Liabilities (excluding the Other UK Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the UK Lenders and the Issuing Bank (on account of UK Letters of Credit) (including fees, charges and disbursements of counsel to the respective UK Lenders and the Issuing Bank on account of UK Letters of Credit) and amounts payable under Section 9.4), ratably among them in proportion to the amounts described in this clause Second payable to them;
Third, to the extent not previously reimbursed by the UK Lenders, to the Agent to be applied to that portion of the UK Liabilities constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the UK Lenders in proportion to the amounts described in this clause Third payable to them;
Fourth, to the Agent to be applied by the Agent to pay that portion of the UK Liabilities constituting accrued and unpaid interest on the UK Swingline Loans made to the UK Borrower;
Fifth, to the Agent to be applied to pay that portion of the UK Liabilities constituting unpaid principal on the UK Swingline Loans made to the UK Borrower;
Sixth, to payment of that portion of the UK Liabilities constituting accrued and unpaid interest on the UK Loans and other UK Liabilities, and fees (including Letter of Credit Fees due on account of UK Letters of Credit), ratably among the UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixth payable to them;
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Seventh, to payment of that portion of the UK Liabilities constituting unpaid principal of the UK Loans, ratably among the UK Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Seventh held by them;
Eighth, to the Agent for the account of the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of UK Letters of Credit;
Ninth, to payment of all other UK Liabilities (including without limitation the cash collateralization of unliquidated indemnification obligations, but excluding any Other UK Liabilities), ratably among the UK Lenders in proportion to the respective amounts described in this clause Ninth held by them;
Tenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders as cash collateral for payment of that portion of the Canadian Liabilities (excluding the Other Canadian Liabilities) constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Section 9.4) payable to the Agent, in its capacity as such;
Eleventh, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities (excluding the Other Canadian Liabilities) constituting indemnities, expenses, and other amounts (other than principal, interest and fees) payable to the Canadian Lenders and the Issuing Bank (on account of Canadian Letters of Credit) (including fees, charges and disbursements of counsel to the respective Canadian Lenders and the Issuing Bank on account of Canadian Letters of Credit) and amounts payable under Section 9.4), ratably among them in proportion to the amounts described in this clause Eleventh payable to them;
Twelfth, to the extent not previously reimbursed by the Canadian Lenders, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders as cash collateral to payment to the Canadian Lenders of that portion of the Canadian Liabilities constituting principal and accrued and unpaid interest on any Permitted Overadvances, ratably among the Canadian Lenders in proportion to the amounts described in this clause Twelfth payable to them;
Thirteenth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting accrued and unpaid interest on the Canadian Swingline Loans made to the Canadian Borrower;
Fourteenth, to the extent that Canadian Swingline Loans made to the Canadian Borrower have not been refinanced by a Canadian Loan, payment to the Canadian Swingline Lender of that portion of the Obligations constituting unpaid principal on the Canadian Swingline Loans made to the Canadian Borrower;
Fifteenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities constituting accrued and unpaid interest on the Canadian Loans and other Canadian Liabilities, and fees (including Letter of Credit Fees), ratably among the Canadian Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Fifteenth payable to them;
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Sixteenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the Issuing Bank as cash collateral to payment of that portion of the Canadian Liabilities constituting unpaid principal of the Canadian Loans, ratably among the Canadian Lenders and the Issuing Bank in proportion to the respective amounts described in this clause Sixteenth held by them;
Seventeenth, to the Agent to be held by the Agent, for the ratable benefit of the Canadian Lenders and the Issuing Bank, to Cash Collateralize the aggregate undrawn amount of Canadian Letters of Credit;
Eighteenth, to payment of all other Canadian Liabilities (including without limitation the cash collateralization of unliquidated indemnification obligations for which a claim has been made, but excluding any Other Canadian Liabilities), ratably among the Canadian Lenders in proportion to the respective amounts described in this clause Eighteenth held by them;
Nineteenth, to payment of that portion of the UK Liabilities and Canadian Liabilities arising from Cash Management Services to the extent secured under the Security Documents, ratably among the UK Lenders and Canadian Lenders in proportion to the respective amounts described in this clause Nineteenth held by them;
Twentieth, to payment of all other UK Liabilities and Canadian Liabilities arising from Bank Products to the extent secured under the Security Documents, ratably among the UK Lenders and Canadian Lenders in proportion to the respective amounts described in this clause Twentieth held by them; and
Last, the balance, if any, after all of the UK Liabilities and Canadian Liabilities have been indefeasibly paid in full, to the UK Credit Parties or as otherwise required by Applicable Law.
Amounts used to Cash Collateralize the aggregate undrawn amount of UK Letters of Credit pursuant to clause Eighth above shall be applied to satisfy drawings under such UK Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all UK Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other UK Liabilities and Canadian Liabilities, if any, in the order set forth above.
8.1 The Agent. (a) Each Lender and the Issuing Bank hereby irrevocably designate Bank of America as Agent under this Agreement and the other Loan Documents. The general administration of the Loan Documents shall be by the Agent. The Lenders and the Issuing Bank each hereby irrevocably authorize the Agent (i) to enter into the Loan Documents (including the Security Documents) to which it is a party and to perform its duties and obligations thereunder, together with all powers reasonably incidental thereto and (ii) at its discretion, to take or refrain from taking such actions as agent on its behalf and to exercise or refrain from exercising such powers under the Loan Documents and the Notes as are delegated by the terms hereof or thereof, as appropriate, together with all powers reasonably incidental thereto. The Agent shall have no duties or responsibilities except as set forth in this Agreement and the remaining Loan Documents, nor shall it have any fiduciary relationship with any Lender or the Issuing Bank and no implied covenants, responsibilities, duties, obligations, or liabilities shall be read into the Loan Documents or otherwise exist against the Agent.
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8.2 Sharing of Excess Payments. Each of the Lenders, the Agent and the Issuing Bank agrees that if it shall, through the exercise of a right of banker’s lien, setoff or counterclaim against the Borrowers, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim and received by such Lender, the Agent or the Issuing Bank under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of the Obligations owed it (an “excess payment”) as a result of which such Lender, the Agent or the Issuing Bank has received payment of any Loans or other Obligations outstanding to it in excess of the amount that it would have received if all payments at any time applied to the Loans and other Obligations had been applied in the order of priority set forth in Section 7.4, then such Lender, the Agent or the Issuing Bank shall promptly purchase at par (and shall be deemed to have thereupon purchased) from the other Lenders, the Agent and the Issuing Bank, as applicable, a participation in the Loans and Obligations outstanding to such other Persons, in an amount determined by the Agent in good faith as the amount necessary to ensure that the economic benefit of such excess payment is reallocated in such manner as to cause such excess payment and all other payments at any time applied to the Loans and other Obligations to be effectively applied in the order of priority set forth in Section 7.4, pro rata in proportion to the respective Commitment Percentages; provided, that if any such excess payment is thereafter recovered or otherwise set aside such purchase of participations shall be correspondingly rescinded (without interest) and, provided further, that, without limiting the provisions of Section 8.15, to the extent that any excess payment arises solely from the proceeds of the assets of the Canadian Credit Parties, such excess shall be reallocated solely amongst the Canadian Lenders. The Borrowers expressly consent to the foregoing arrangements and agree that any Lender, the Agent or the Issuing Bank holding (or deemed to be holding) a participation in any Loan or other Obligation may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by such Borrower to such Lender, the Agent or the Issuing Bank as fully as if such Lender, the Agent or the Issuing Bank held a Note and was the original obligee thereon, in the amount of such participation.
8.3 Agreement of Applicable Lenders. Upon any occasion requiring or permitting an approval, consent, waiver, election or other action on the part of the Applicable Lenders, action shall be taken by the Agent for and on behalf or for the benefit of all Lenders upon the direction of the Applicable Lenders, and any such action shall be binding on all Lenders. No amendment, modification, consent, or waiver shall be effective except in accordance with the provisions of Section 9.3.
Upon the occurrence of an Event of Default, the Agent shall take such action with respect thereto as may be reasonably directed by the Applicable Lenders; provided that unless and until the Agent shall have received such directions, the Agent may (but shall not be obligated to) take such action as they shall deem advisable in the best interests of the Lenders. In no event shall the Agent be required to comply with any such directions to the extent that the Agent believe that the Agent’s compliance with such directions would be unlawful.
8.4 Liability of Agent.
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8.5 Notice of Default. The Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Agent has actual knowledge of the same or has received notice from a Lender or the Lead Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Agent obtains such actual knowledge or receive such a notice, the Agent shall give prompt notice thereof to each of the Lenders. The Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders. Unless and until the Agent shall have received such direction, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to any such Default or Event of Default as it shall deem advisable in the best interest of the Lenders.
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8.6 Lenders’ Credit Decisions. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender, and based on the financial statements prepared by the Borrowers and such other documents and information as it has deemed appropriate, made its own credit analysis and investigation into the business, assets, operations, property, and financial and other condition of the Borrowers and has made its own decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in determining whether or not conditions precedent to closing any Loan hereunder have been satisfied and in taking or not taking any action under this Agreement and the other Loan Documents.
8.7 Reimbursement and Indemnification. Each Lender agrees (i) to reimburse (x) the Agent for such Lender’s Commitment Percentage of any expenses and fees incurred by the Agent for the benefit of the Lenders or the Issuing Bank under this Agreement, the Notes and any of the Loan Documents, including, without limitation, counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders or the Issuing Bank, and any other expense incurred in connection with the operations or enforcement thereof not reimbursed by the Borrowers and (y) the Agent for such Lender’s Commitment Percentage of any expenses of the Agent incurred for the benefit of the Lenders or the Issuing Bank that the Borrowers have agreed to reimburse pursuant to Section 9.4 and have failed to so reimburse and (ii) to indemnify and hold harmless the Agent and any of its directors, officers, employees, or agents, on demand, in the amount of such Lender’s Commitment Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against it or any of them in any way relating to or arising out of this Agreement, the Notes or any of the Loan Documents or any action taken or omitted by it or any of them under this Agreement, the Notes or any of the Loan Documents to the extent not reimbursed by the Borrowers (except such as shall result from their respective gross negligence or willful misconduct). The provisions of this Section 8.7 shall survive the repayment of the Obligations and the termination of the Commitments.
8.8 Rights of Agent. It is understood and agreed that Bank of America shall have the same rights and powers hereunder (including the right to give such instructions) as the other Lenders and may exercise such rights and powers, as well as its rights and powers under other agreements and instruments to which it is or may be party, and engage in other transactions with the Borrowers, as though it were not the Agent of the Lenders under this Agreement. Without limiting the foregoing, the Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of commercial or investment banking, trust, advisory or other business with the Borrowers and their Subsidiaries and Affiliates as if it were not the Agent hereunder.
8.9 Notice of Transfer. The Agent may deem and treat a Lender party to this Agreement as the owner of such Lender’s portion of the Loans for all purposes, unless and until, and except to the extent, an Assignment and Acceptance shall have become effective as set forth in Section 9.6(b).
8.10 Successor Agent. The Agent may resign at any time by giving fifteen (15) Business Days’ written notice thereof to the Lenders, the Issuing Bank and the Lead Borrower. Upon any such resignation of the Agent, the Required Lenders shall have the right to appoint a successor Agent, which so long as there is no Default or Event of Default then in existence shall be reasonably satisfactory to the Lead Borrower (whose consent shall not be unreasonably withheld or delayed). If no successor Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation, the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent which shall be a commercial bank (or affiliate thereof) organized
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under the laws of the United States of America or of any State thereof and having a combined capital and surplus of a least $500,000,000 which, so long as there is no Default or Event of Default, shall be reasonably satisfactory to the Lead Borrower (whose consent shall not be unreasonably withheld or delayed). Upon the acceptance of any appointment as Agent by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent’s resignation hereunder as the Agent, the provisions of this Section 8 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Agent under this Agreement.
8.11 Reports and Financial Statements. Promptly after receipt thereof from the Borrowers, the Agent shall remit to each Lender copies of all financial statements required to be delivered by the Borrowers hereunder (or by making such financial statements available to the Lenders electronically), all Borrowing Base Certificates and all commercial finance examinations and appraisals of the Collateral received by the Agent.
8.12 Agent May File Proofs of Claim. In case of the pendency of any proceeding under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or any other judicial proceeding relative to any Credit Party, the Agent (irrespective of whether the principal of any Loan or Letter of Credit Outstandings shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Credit Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender, the Issuing Bank and each other Secured Party to make such payments to the Agent and, if the Agent shall consent to the making of such payments directly to the Lenders, the Issuing Bank, and the other Secured Parties, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under this Agreement.
Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender, the Issuing Bank or any other Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender, the Issuing Bank or any other Secured Party or to authorize the Agent to vote in respect of the claim of any Lender, the Issuing Bank or any other Secured Party in any such proceeding.
8.13 Defaulting Lenders.
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(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 2.12 for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
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(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Commitment Percentage of the stated amount of Letters of Credit which it has Cash Collateralized.
(C) With respect to any fee payable under Section 2.12 or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrowers shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit, Swingline Loans, Canadian Swingline Loans or UK Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank, Swingline Lender, Canadian Swingline Lender and UK Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s, Swingline Lender’s, Canadian Swingline Lender’s or UK Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
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8.14 Agency for Perfection.
Each Lender hereby appoints each other Lender as agent for the purpose of perfecting Liens for the benefit of the Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC, the PPSA or any other Applicable Law of the United States or any other jurisdiction can be perfected only by possession or control. Should any Lender (other than the Agent) obtain possession or control of any such Collateral, such Lender shall notify the Agent thereof, and, promptly upon the Agent’s request therefor shall deliver such Collateral to the Agent or otherwise deal with such Collateral in accordance with the Agent’s instructions.
8.15 Risk Participation.
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No fees required to be paid on any assignment pursuant to Section 9.6(b) of this Agreement shall be payable in connection with any assignment under this Section 8.15.
8.16 ERISA Representations.
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8.17 Co-Syndication Agents and Documentation Agent. Neither the Co-Syndication Agents, Documentation Agent, nor the Arrangers in their capacity as such, shall have any obligation, responsibility or required performance hereunder and shall not become liable in any manner to any party hereto. No party shall have any obligation or liability, or owe any performance, hereunder, to the Co-Syndication Agents or Documentation Agent, each in their capacity as such.
8.18 Appointment of Agent as Security Trustee for UK Security Agreements.
For the purposes of any Liens or Collateral created under the UK Security Agreements, the following additional provisions shall apply, in addition to the provisions set out elsewhere in this Section 8 or otherwise hereunder.
“Appointee” means any receiver, administrator or other insolvency officer appointed in respect of any Credit Party or its assets.
“Charged Property” means the assets of the Credit Parties subject to a security interest under the UK Security Agreements.
“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Agent (in its capacity as security trustee).
“UK Security Agreements” means each security document executed by any Credit Party and governed by English law in favour of the Agent, and which, as of the Effective Date, shall not include any security documents.
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8.19 Recovery of Erroneous Payments.
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9.1 Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
Notices and other communications to the Agent, the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Section 2 if such Lender or the Issuing Bank, as applicable, has notified the Agent that it is incapable of receiving notices under such Section by electronic communication. The Agent or the Lead Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Without limiting the foregoing, such notices and other communications shall be deemed to have been delivered when the Lead Borrower provides notice to the Agent by e-mail that such materials are posted on the website of the SEC at xxx.xxx.xxx or on another website accessible to the Agent. The Borrowers agree that the Agent may make such materials, as well as any other written information,
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documents, instruments and other material relating to the Borrowers or any of their Subsidiaries or any other materials or matters relating to this Agreement or any of the transactions contemplated hereby, available to the Lenders by posting such notices on Intralinks or a substantially similar electronic system.
9.2 The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Credit Party, any Lender, the Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Credit Parties’ or the Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Credit Party, any Lender, the Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
9.3 Waivers; Amendments.
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9.4 Expenses; Indemnity; Damage Waiver.
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9.5 Designation of Lead Borrower as Borrowers’ Agent.
9.6 Successors and Assigns.
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9.7 Survival. All covenants, agreements, representations and warranties made by the Borrowers in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant
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to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.23, 2.26, and 9.4 and Section 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.
9.8 Counterparts; Integration; Effectiveness. Subject to Section 9.30, this Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Agent and the Lenders and when the Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
9.9 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
9.10 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrowers against any of and all the obligations of the Borrowers now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured and regardless of the adequacy of the Collateral. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender may have.
9.11 Governing Law; Jurisdiction; Consent to Service of Process.
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9.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.13 Headings. Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
9.14 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan or otherwise regulated under Applicable Law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with Applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
9.15 Additional Waivers.
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9.16 Confidentiality. Each of the Lenders agrees that it will use its best efforts not to disclose without the prior consent of the Borrowers (other than to its employees, auditors, counsel or other professional advisors, to Affiliates or to another Lender if the Lender or such Lender’s holding or parent
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company in its sole discretion determines that any such party should have access to such information, which party shall be informed of the confidential nature thereof) any information with respect to any Borrower which is furnished pursuant to this Agreement provided that any Lender may disclose any such information (a) as has become generally available to the public, (b) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (whether in the United States or elsewhere) or their successors, (c) as may be required or appropriate in response to any summons or subpoena or in connection with any litigation, provided that if the Lender is able to do so prior to complying with the summons or subpoena, such Lender shall provide the Borrowers with prompt notice of such requested disclosure so that the Borrowers may seek a protective order or other appropriate remedy (nothing contained herein however shall result in such Lender’s non-compliance with Applicable Law), (d) in order to comply with any law, order, regulation or ruling applicable to such Lender, (e) in connection with the enforcement of remedies under this Agreement and the other Loan Documents, and (f) to any prospective transferee in connection with any contemplated transfer of any of the Loans or Notes or any interest therein by such Lender provided that such prospective transferee agrees to be bound by the provisions of this Section. The Borrowers hereby agree that the failure of a Lender to comply with the provisions of this Section 9.16 shall not relieve the Borrowers of any of their obligations to such Lender under this Agreement and the other Loan Documents.
9.17 Release of Collateral and Guaranty Obligations.
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9.18 Amendment and Restatement. Effective as of Effective Date, each Borrower hereby agrees to become a borrower, debtor and obligor under, and to bind itself to, the Existing Financing Agreements to which Borrowers are bound generally (in each case, as modified and restated hereby), and, in such capacity, to assume and bind itself to all Obligations of Borrowers thereunder (as modified and restated hereby). The terms, conditions, agreements, covenants, representations and warranties set forth in and relating to the Existing Credit Agreement are hereby amended, restated, replaced and superseded in their entirety by the terms, conditions, agreements, covenants, representations and warranties set forth in this Agreement. This Agreement does not extinguish the obligations, including, without limitation, obligations for the payment of money, outstanding under the Existing Credit Agreement or discharge or release the obligations or the liens or priority of any mortgage, pledge, security agreement or any other security therefor, which shall continue, as modified and restated hereby, without interruption and in full force and effect. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement or instruments securing the same, which shall remain in full force and effect, except in each case as amended, restated, replaced and superseded hereby or by instruments executed in connection herewith. Nothing expressed or implied in this Agreement shall be construed as a release or other discharge of any Borrower or guarantor from any of their obligations or liabilities under the Existing Financing Agreements or any of the security agreements, pledge agreements, mortgages, guaranties or other loan documents executed in connection therewith, except in each case as amended, restated, replaced and superseded hereby or by instruments executed in connection herewith. Each Borrower hereby confirms and agrees that (i) the Existing Credit Agreement and each Existing Financing Agreement to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, in each case as amended, restated, replaced and superseded hereby or by instruments executed in connection herewith, except that on and after the Effective Date all references in any such Existing Financing Agreement to “the Agreement”, “thereto”, “thereof” “thereunder” or words of like import referring to the Existing Credit Agreement shall mean the Existing Credit Agreement as amended, restated, replaced and superseded by this Agreement; and (ii) to the extent that any such Existing Financing Agreement purports to assign or pledge to the Agent for the benefit of the Lenders a security interest in or lien on, any collateral as security for the Obligations of any Borrower from time to time existing in respect of the Existing Credit Agreement, such pledge, assignment or grant of the security interest or lien is hereby ratified and confirmed in all respects in favor of Agent for the benefit of Lenders, which shall remain in full force and effect, except as amended, restated, replaced and superseded hereby or by instruments executed in connection herewith.
9.19 Commitments. Effective as of the Effective Date, the Agent shall reallocate the Commitments and Loans of the Lenders hereunder and shall notify the Lenders of any payment required to be made so that the Commitments and Loans of the Lenders are in accordance with Schedule 1.1. Upon receipt of such notice, each Lender shall make the payments specified therein, if any.
9.20 Judgment Currency.
If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Loan Document, it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount due under this Agreement or under any other Loan Document in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given. For this purpose, “rate of exchange” means the rate at which the applicable Agent is able, on the relevant date, to
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purchase the Currency Due with the Judgment Currency in accordance with its normal practice for the applicable currency conversion in the wholesale market. In the event that there is a change in the rate of exchange prevailing between the conversion date and the date of actual payment of the amount due, the Credit Parties will pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of Currency Due which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the conversion date. If the amount of the Currency Due which the Agent is so able to purchase is less than the amount of the Currency Due originally due to it, the applicable Credit Party shall indemnify and save the Agent, the Issuing Bank and the Lenders harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Loan Document or under any judgment or order.
9.21 USA Patriot Act Notice. Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies the Credit Parties that pursuant to the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Act”), it is required to obtain, verify and record information that identifies the Credit Parties, which information includes the name and address of each Credit Party and other information that will allow such Lender or the Agent, as applicable, to identify such Credit Party in accordance with and under applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation, if applicable.
9.22 Foreign Asset Control Regulations. Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto (which for the avoidance of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) the Act). Furthermore, none of the Borrowers or their Affiliates (a) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violative of any such order.
9.23 Canadian Anti-Money Laundering Legislation.
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Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that the Agent has no obligation to ascertain the identity of the Credit Parties or any authorized signatories of the Credit Parties on behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from any Credit Party or any such authorized signatory in doing so.
9.24 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby, the Credit Parties each acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Credit Parties, on the one hand, and the Secured Parties, on the other hand, and each of the Credit Parties is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the each Secured Party is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Credit Parties or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Secured Parties has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Credit Parties with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any of the Secured Parties has advised or is currently advising any Credit Party or any of its Affiliates on other matters) and none of the Secured Parties has any obligation to any Credit Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Secured Parties and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Credit Parties and their respective Affiliates, and none of the Secured Parties has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Secured Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Credit Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each of the Secured Parties with respect to any breach or alleged breach of agency or fiduciary duty.
9.25 Limitation of Canadian Borrower and UK Borrower Liability.
Notwithstanding anything to the contrary herein contained, the liability of the Canadian Borrower and the UK Borrower hereunder and under any other Loan Documents shall be limited to the Canadian Liabilities and the UK Liabilities and the Canadian Borrower and the UK Borrower shall have no liability whatsoever under the Loan Documents with respect to any other Obligations of the Domestic Borrowers or the other Domestic Credit Parties.
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9.26 Language.
The parties herein have expressly requested that this Agreement and all related documents be drawn up in the English language. A la demande expresse des parties aux présentes, cette convention et tout document y afférent ont été rédigés en langue anglaise.
9.27 Keepwell.
Each Credit Party (other than the Canadian Borrower and the UK Borrower) that is a Qualified ECP Guarantor at the time the grant of a security interest under the Loan Documents, in each case, by any Specified Credit Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Credit Party with respect to such Swap Obligation as may be needed by such Specified Credit Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings voidable under Applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Credit Party intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Credit Party for all purposes of the Commodity Exchange Act.
9.28 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Issuing Bank that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
9.29 Acknowledgement Regarding Any Supported QFCs.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
9.30 Electronic Execution of Documents.
This Agreement and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a “Communication”), including Communications required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Each of the Credit Parties agrees that any Electronic Signature on or associated with any Communication shall be valid and binding on each of the Credit Parties to the same extent as a manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid and binding obligation each of the Credit Parties enforceable against such in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. Any Communication may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Agent and each of the Secured Parties of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Agent and each of the Secured Parties may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Agent pursuant to
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procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Agent has agreed to accept such Electronic Signature, the Agent and each of the Secured Parties shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of any Credit Party without further verification and (b) upon the request of the Agent or any Lender, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
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