Exhibit 4.2

 

EXECUTION VERSION

 

FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 1, 2020 (this “Fourth Amendment”), among MICHAELS STORES, INC., a Delaware corporation (the “Borrower”), MICHAELS FUNDING, INC., a Delaware corporation (“Holdings”), various Subsidiaries of the Borrower, the 2020 Converting Refinancing Term B Loan Lenders, the 2020 New Refinancing Term B Loan Lenders and JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative agent (in such capacity, the “Administrative Agent”) and collateral agent (in such capacity, the “Collateral Agent”) (with capitalized terms used, but not defined, in this paragraph and the recitals below to be defined as provided in Section 1 below).

 

R E C I T A L S

 

WHEREAS, the Borrower, the Administrative Agent, the Collateral Agent, the lenders from time to time party thereto (the “Lenders”) and various other parties have previously entered into that certain Amended and Restated Credit Agreement, dated as of January 28, 2013 (as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of June 10, 2014, the Second Amendment to Amended and Restated Credit Agreement, dated as of September 28, 2016, and the Third Amendment to Amended and Restated Credit Agreement and Omnibus Amendment to Loan Documents, dated as of May 23, 2018, and as otherwise amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement, as amended by this Fourth Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);

 

WHEREAS, pursuant to the Existing Credit Agreement and the Loan Documents, the Guarantors have, among other things, guaranteed the Obligations under the Existing Credit Agreement and provided security therefor;

 

WHEREAS, the Borrower has requested that the 2020 Converting Refinancing Term B Loan Lenders agree to convert all or a portion of their 2018 Replacement Term B Loans into 2020 Converted Refinancing Term B Loans in a principal amount for each such 2020 Converting Term B Loan Lender equal to its Allocated 2020 Refinancing Term B Loan Conversion Amount, and the 2020 Converting Term B Loan Lenders have agreed, subject to the terms and conditions contained herein and in the Existing Credit Agreement (as amended hereby), to effect such conversion;

 

WHEREAS, the Borrower has requested that the 2020 New Refinancing Term B Loan Lenders make 2020 New Refinancing Term B Loans in a principal amount for each such 2020 New Refinancing Term B Loan Lender equal to its 2020 New Refinancing Term B Loan Commitment, and the 2020 New Refinancing Term B Loan Lenders have agreed, subject to the terms and conditions contained herein and in the Existing Credit Agreement (as amended hereby), to make such 2020 New Refinancing Term B Loans;

 

WHEREAS, contemporaneously with the incurrence of the 2020 New Refinancing Term B Loans, the 2020 Refinancing Term B Loan Conversion and the related repayment of a portion of the 2018 Replacement Term B Loans not subject to the 2020 Refinancing Term B Loan Conversion, the Borrower intends to prepay the remaining 2018 Replacement Term B Loans with the proceeds of other permitted secured Indebtedness and/or cash on hand (the “Fourth Amendment Prepayment”); and

 

WHEREAS, the Borrower has requested certain other amendments and modifications to the Existing Credit Agreement and the other Loan Documents as set forth herein.

 

 

 

 

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

SECTION 1. Defined Terms; Rules of Construction. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Existing Credit Agreement or, if not defined therein, the Existing Credit Agreement as amended hereby. The rules of construction specified in Sections 1.02 through 1.09 of the Existing Credit Agreement shall apply to this Fourth Amendment, including the terms defined in the preamble and recitals hereto.

 

SECTION 2. Amendments to the Existing Credit Agreement. (a) Effective as of the Fourth Amendment Effective Date (as defined below), and subject to the terms and conditions set forth herein, (x) the Existing Credit Agreement is hereby amended to incorporate the changes reflected in the redlined version of the Credit Agreement attached hereto as Annex A, (y) (1) Exhibits A, D and E of the Existing Credit Agreement are hereby replaced with the applicable Exhibits attached hereto as Annex B, (2) Exhibit H of the Existing Credit Agreement is hereby replaced with the Exhibit attached hereto as Annex C, (3) Exhibits F-2, G-2, I and S are hereby deleted in their entirety and replaced with “[Reserved]” and (4) new Exhibit T is added to the Credit Agreement in the form attached hereto as Annex D and (z) Schedules 1.01E, 5.12, 6.07, 7.03 and 7.04 of the Existing Credit Agreement are hereby replaced with the applicable schedules attached hereto as Annex E. The parties hereto acknowledge and agree that (i) (x) amendments to the Existing Credit Agreement relating to the incurrence of the 2020 New Refinancing Term B Loans, the 2020 Refinancing Term B Loan Conversion and the related repayment of a portion of the 2018 Replacement Term B Loans not subject to the 2020 Refinancing Term B Loan Conversion are effected in reliance on Section 2.15 of the Existing Credit Agreement and (y) the 2020 Converted Refinancing Term B Loans and the 2020 New Refinancing Term B Loans are “Refinancing Term Loans” as contemplated by such Section. All 2018 Replacement Term B Loans outstanding immediately prior to the effectiveness of this Fourth Amendment on the Fourth Amendment Effective Date, after giving effect to the Fourth Amendment Prepayment, are intended to be refinanced in their entirety by the 2020 Refinancing Term B Loans (after giving effect to the 2020 Refinancing Term B Loan Conversion) and such 2020 Refinancing Term B Loans are “Refinancing Term Loans” as contemplated by Section 2.15 of the Existing Credit Agreement.

 

(b)                Each Person executing this Fourth Amendment in its capacity as a 2020 New Refinancing Term B Loan Lender or a 2020 Converting Refinancing Term B Loan Lender shall become (or, if already a Lender prior to the Fourth Amendment Effective Date, remain) a “Lender” under the Credit Agreement and shall be bound by the provisions of the Credit Agreement as a Lender holding 2020 New Refinancing Term B Loan Commitments (in the case of 2020 New Refinancing Term B Loan Lenders) and 2020 Refinancing Term B Loans (in the case of all 2020 Refinancing Term B Loan Lenders).

 

(c)                For the avoidance of doubt, immediately after giving effect to the transactions contemplated by this Fourth Amendment on the Fourth Amendment Effective Date, the only Class of Loans outstanding under the Credit Agreement shall be the 2020 Refinancing Term B Loans.

 

(d)                The Lenders party hereto hereby direct the Administrative Agent and the Collateral Agent to enter into (x) the Amended and Restated Intercreditor Agreement, dated as of the date hereof, by and between Wells Fargo Bank, National Association, as ABL Agent (as defined therein), the Administrative Agent and the Collateral Agent, in substantially the form attached as Annex C hereto (the “Intercreditor Agreement”), and (y) the Pari Passu Intercreditor Agreement, dated as of the date hereof, among the Borrower, the other Loan Parties, the Collateral Agent, the Administrative Agent, the Initial Additional Authorized Representative (as defined therein) and the Initial Additional Pari Collateral Agent (as defined therein), in substantially the form attached as Annex D hereto (the “Additional First Lien Intercreditor Agreement”).

 

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(e)        The Borrower and the undersigned Lenders hereby waive any notice requirement provided for under the Loan Documents in respect of any prepayment of the 2018 Refinancing Term B Loans.

 

SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Fourth Amendment, each Loan Party hereby represents and warrants to each other party hereto that, as of the Fourth Amendment Effective Date (as defined below):

 

(i)                the execution, delivery and performance by such Loan Party of this Fourth Amendment and the performance by such Loan Party of the other Loan Documents (as modified hereby) to which it is a party are within such Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any such Loan Party’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.04 of the Existing Credit Agreement), or require any payment to be made under (i)(x) any indenture, mortgage, deed of trust or loan agreement evidencing Indebtedness in an aggregate principal amount in excess of the Threshold Amount (other than the Loan Documents) or (y) any other Contractual Obligation to which such Loan Party is a party or affecting such Loan Party or the properties of such Loan Party or any Restricted Subsidiary or (ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property is subject, or (c) violate any material Law, except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(i) above, to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect;

 

(ii)              no Event of Default exists, both before and after giving effect to this Fourth Amendment and the transactions contemplated hereby; and

 

(iii)              the representations and warranties of the Borrower set forth in Article V of the Existing Credit Agreement and each Loan Party set forth in each other Loan Document shall be true and correct in all material respects, except to the extent such representations and warranties relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

 

SECTION 4. Conditions of Effectiveness of this Fourth Amendment. This Fourth Amendment shall become effective as of the first date (the “Fourth Amendment Effective Date”) when each of the conditions set forth in this Section 4 shall have been satisfied (which, in the case of clauses (ii), (v) and (vi) below, may be substantially concurrent with the satisfaction of the condition specified in clause (i) below):

 

(i)                 JPMorgan shall have received duly executed counterparts of (a) this Fourth Amendment that, when taken together, bear the signatures of the Borrower, each of the other Loan Parties, each of the 2020 New Refinancing Term B Loan Lenders, each of the 2020 Converting Refinancing Term B Loan Lenders and the Administrative Agent, (b) the Intercreditor Agreement from each of the Administrative Agent, the Collateral Agent and the ABL Agent, together with acknowledgements executed by each of the Loan Parties, (c) a Joinder Agreement, substantially in the form of Exhibit A to the Intercreditor Agreement, from the New Collateral Agent (as defined therein), the ABL Agent, the Administrative Agent, the Collateral Agent and each Loan Party, (d) the Additional First Lien Intercreditor Agreement, from each of the Borrower, the other Loan Parties, the Collateral Agent, the Administrative Agent, the Initial Additional Authorized Representative and the Initial Additional Pari Collateral Agent.

 

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(ii)               The Borrower shall have paid all fees and other amounts due and payable, (a) to JPMorgan and the other Fourth Amendment Lead Arrangers pursuant to (x) that certain Fee Letter, dated as of September 9, 2020, by and between the Borrower and JPMorgan and (y) that certain Joinder to Engagement Letter, dated as of September 30, 2020 (the “Joinder”), by and among the Borrower and the Fourth Amendment Lead Arrangers; and (b) to the extent invoiced, reimbursement or payment of reasonable and documented out-of-pocket expenses in connection with this Fourth Amendment of JPMorgan and the Agents, including the reasonable fees, charges and disbursements of counsel to JPMorgan and the Agents, respectively, in each case, as required to be paid or reimbursed pursuant to that certain Engagement Letter, dated as of September 9, 2020 (as supplemented by the Joinder, the “Engagement Letter”), by and among the Borrower and the Fourth Amendment Lead Arrangers, or the Existing Credit Agreement, respectively.

 

(iii)              JPMorgan shall have received a customary legal opinion of (i) Ropes & Gray LLP, New York counsel to the Loan Parties, (ii) Jones Day, Ohio counsel to the Loan Parties, and (iii) Troutman Pepper Hamilton Sanders LLP, Virginia counsel to the Loan Parties, in each case, addressed to the Lenders, the Fourth Amendment Lead Arrangers and the Agents, dated the Fourth Amendment Effective Date and in form and substance reasonably satisfactory to JPMorgan.

 

(iv)              JPMorgan shall have received (x) a certificate from the Chief Financial Officer or Treasurer of the Borrower, certifying that, after giving effect to this Fourth Amendment, the Borrower and its Restricted Subsidiaries (on a consolidated basis) are Solvent, (y) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the State of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party) and (z) a closing certificate executed by a Responsible Officer of each Loan Party, dated the Fourth Amendment Effective Date, certifying as to the incumbency and specimen signature of each officer of a Loan Party executing this Fourth Amendment or any other document delivered in connection herewith on behalf of any Loan Party and attaching (A) a true and complete copy of the certificate of incorporation (or other applicable charter document) of each Loan Party, including all amendments thereto, as in effect on the Fourth Amendment Effective Date, certified as of a recent date by the Secretary of State (or analogous official) of the jurisdiction of its organization, that has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (y) above, (B) a true and complete copy of the by-laws (or other applicable operating agreements) of each Loan Party as in effect on the Fourth Amendment Effective Date and (C) a true and complete copy of resolutions duly adopted or written consents duly executed by the Board of Directors (or equivalent governing body or any committee thereof) of each Loan Party authorizing the execution, delivery and performance of this Fourth Amendment and the performance of the Credit Agreement and the other Loan Documents (as amended by this Fourth Amendment) and certifying that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect.

 

(v)                An amount equal to the aggregate principal amount of the 2020 New Refinancing Term B Loans shall have been applied (immediately following the 2020 Refinancing Term B Loan Conversion) to make a voluntary prepayment of 2018 Replacement Term B Loans not subject to the 2020 Refinancing Term B Loan Conversion pursuant to, and in accordance with the requirements of, Section 2.05(a) of the Existing Credit Agreement. The payment of accrued and unpaid interest on such 2018 Replacement Term B Loans required pursuant to Section 2.05(a) of the Existing Credit Agreement, as well as any amounts payable pursuant to Article III of the Existing Credit Agreement (as modified hereby), shall be made pursuant to clause (vi) below.

 

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(vi)              (A) the Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender holding 2018 Replacement Term B Loans immediately prior to the Fourth Amendment Effective Date, all accrued but unpaid interest with respect to all 2018 Replacement Term B Loans (irrespective of whether such 2018 Replacement Term B Loans are subject to the 2020 Refinancing Term B Loan Conversion), whether or not such accrued amounts are otherwise then due and payable pursuant to the terms of the Existing Credit Agreement and (B) the Borrower shall have paid in full any amounts payable pursuant to Article III of the Existing Credit Agreement (as modified hereby) in connection with the repayment of the 2018 Replacement Term B Loans.

 

(vii)            The Administrative Agent shall have received from the Borrower a certificate executed by a Responsible Officer of the Borrower, certifying as to the matters set forth in Section 3(ii) and (iii).

 

(viii)           The Borrower shall have delivered to each 2020 Refinancing Term B Loan Lender requesting the same at least three Business Days prior to the date of this Fourth Amendment a promissory note in the amount of such Lender’s 2020 Refinancing Term B Loan (determined after giving effect to the 2020 Refinancing Term B Loan Conversion).

 

(ix)              To the extent requested by a 2020 Refinancing Term B Loan Lender not less than five Business Days prior to the Fourth Amendment Effective Date, the Administrative Agent shall have received all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and Anti-Money Laundering Laws, including without limitation, the Act.

 

SECTION 5. Post-Closing Obligation.

 

(a)               The Borrower hereby agrees to use commercially reasonable efforts to assign, amend, supplement or otherwise modify the Collateral Access Agreements in effect as of the Fourth Amendment Effective Date, in each case in order to effect the matters contemplated by Section 4 of the Third Amendment.

 

(b)               The Borrower and each Guarantor hereby agree to deliver such certificated securities and instruments to the Collateral Agent required to be delivered pursuant to the Collateral Documents as soon as commercially reasonable, but in no event later than 90 days following the Fourth Amendment Effective Date (or such later date as the Administrative Agent may agree in its reasonable discretion).

 

SECTION 6. Effect of Amendment. (a) Except as expressly set forth in this Fourth Amendment or in the Credit Agreement, this Fourth Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Agents under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents (including all 2020 New Refinancing Term B Loans and the 2020 Converted Refinancing Term B Loans), in each case, as amended by this Fourth Amendment. Nothing herein shall be deemed to entitle the Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.

 

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(b)         On and after the Fourth Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the Credit Agreement in any other Loan Document, in each case shall be deemed a reference to the Credit Agreement as modified by this Fourth Amendment. This Fourth Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.

 

(c)          This Fourth Amendment, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof.

 

(d)         This Fourth Amendment may not be amended, modified or waived except in accordance with Section 10.01 of the Credit Agreement.

 

SECTION 7. Costs and Expenses. The Borrower hereby agrees to reimburse each of JPMorgan and the Agents for their reasonable and documented out-of-pocket expenses in connection with this Fourth Amendment, including the reasonable fees, charges and disbursements of counsel for JPMorgan and the Agents, respectively, in each case, as required to be reimbursed pursuant to the Engagement Letter or the Existing Credit Agreement.

 

SECTION 8. Reaffirmation. By executing and delivering a counterpart hereof, (i) each Loan Party hereby agrees that all Loans incurred by the Borrower (including, without limitation, the 2020 New Refinancing Term B Loans and the 2020 Converted Refinancing Term B Loans) shall be guaranteed pursuant to the Guaranty in accordance with the terms and provisions thereof and shall be secured pursuant to the Collateral Documents (as amended hereby) in accordance with the terms and provisions thereof; (ii) each Loan Party hereby (A) agrees that, notwithstanding the effectiveness of this Fourth Amendment, after giving effect to this Fourth Amendment, the Collateral Documents continue to be in full force and effect; (B) agrees that all of the Liens and security interests created and arising under each Collateral Document remain in full force and effect on a continuous basis, and the perfected status and priority of each such Lien and security interest continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, as collateral security for its obligations, liabilities and indebtedness under the Credit Agreement and under its guarantees in the Loan Documents, in each case, to the extent provided in, and subject to the limitations and qualifications set forth in, such Loan Documents (as amended by this Fourth Amendment) and (C) affirms and confirms all of its obligations and liabilities under the Credit Agreement and each other Loan Document (including the 2020 New Refinancing Term B Loans and the 2020 Converted Refinancing Term B Loans), in each case after giving effect to this Fourth Amendment, including its guarantee of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral pursuant to the Collateral Documents (as amended hereby) to secure such Obligations, all as provided in the Collateral Documents (as amended hereby), and acknowledges and agrees that such obligations, liabilities, guarantee, pledge and grant continue in full force and effect in respect of, and to secure, such Obligations under the Credit Agreement and the other Loan Documents, in each case after giving effect to this Fourth Amendment and (iii) each Guarantor agrees that nothing in the Credit Agreement, this Fourth Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendment to the Credit Agreement.

 

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SECTION 9. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTIONS 10.16 AND 10.17 OF THE EXISTING CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS FOURTH AMENDMENT AND SHALL APPLY TO THIS FOURTH AMENDMENT, MUTATIS MUTANDIS.

 

SECTION 10. Counterparts. Section 10.11 of the Amended Credit Agreement is hereby incorporated by reference into this Fourth Amendment and shall apply to this Fourth Amendment, mutatis mutandis.

 

SECTION 11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Fourth Amendment.

 

SECTION 12. Severability. Section 10.14 of the Existing Credit Agreement is hereby incorporated by reference into this Fourth Amendment and shall apply to this Fourth Amendment, mutatis mutandis.

 

SECTION 13. Indemnity. Section 10.05 of the Existing Credit Agreement is hereby incorporated by reference to this Fourth Amendment and shall apply to this Fourth Amendment and to the Fourth Amendment Lead Arrangers as Agent-Related Persons, mutatis mutandis.

 

[Remainder of page intentionally blank.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed by their duly authorized officers, all as of the date and year first above written.

 

  MICHAELS STORES, INC., as Borrower
   
  By: /s/ Michael Diamond
    Name: Michael Diamond
    Title:   Executive Vice President – Chief Financial Officer
   
  MICHAELS FUNDING, INC.
  ARTISTREE, INC.
  DARICE, INC.
  DARICE IMPORTS, INC.
  MICHAELS FINANCE COMPANY, INC.
  MICHAELS STORES PROCUREMENT COMPANY, INC.
  MICHAELS STORES CARD SERVICES, LLC
  LAMRITE WEST, INC., as Guarantors
   
  By: /s/ Michael Diamond
    Name: Michael Diamond
    Title:   Executive Vice President – Chief Financial Officer

 

Signature Page to Michaels Stores, Inc. Fourth Amendment (2020)

 

 

 

 

  JPMORGAN CHASE BANK, N.A., as
  Administrative Agent and Collateral Agent
   
  By: /s/ Kody J. Nerios
    Name: Kody J. Nerios
    Title: Authorized Officer

 

Signature Page to Michaels Stores, Inc. Fourth Amendment (2020)

 

 

 

 

[Signatures of 2020 Converting Refinancing Term B Loan Lenders are on file with Administrative Agent]

 

 

 

 

SIGNATURE PAGE TO THE FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, WITH RESPECT TO, INTER ALIA, THE AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF JANUARY 28, 2013 (AS AMENDED BY THE FIRST AMENDMENT DATED AS OF JUNE 10, 2014, BY THE SECOND AMENDMENT DATED AS OF DATED SEPTEMBER 28, 2016 AND BY THE THIRD AMENDMENT DATED AS OF MAY 23, 2018), AMONG MICHAELS STORES, INC., THE GUARANTORS PARTY THERETO, JPMORGAN CHASE BANK, N.A. AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AND VARIOUS LENDERS AND AGENTS PARTY THERETO

 

By executing this signature page:

 

If the undersigned institution holds 2020 New Refinancing Term B Loan Commitments as of the Fourth Amendment Effective Date, the undersigned institution is executing this signature page as a 2020 New Refinancing Term B Loan Lender and agrees (i) to the terms of the Fourth Amendment and (ii) on the terms and subject to the conditions set forth in the Fourth Amendment and the Credit Agreement (as amended by the Fourth Amendment), to make a 2020 New Refinancing Term B Loan on the Fourth Amendment Effective Date in a principal amount set forth opposite its name on Schedule 1 hereto.

 

NAME OF INSTITUTION:

 

JPMORGAN CHASE BANK, N.A.

 

By: /s/ Kody J. Nerios  
Name: Kody J. Nerios  
Title: Authorized Officer  

 

 

 

 

SCHEDULE 1

 

2020 NEW REFINANCING TERM B LOAN COMMITMENTS

 

2020 New Refinancing Term B Loan Lender 2020 New Refinancing Term B Loan
  Commitment
   
JPMorgan Chase Bank, N.A. $943,824,563.18
   

 

 

 

 

ANNEX A

 

FORM OF AMENDED CREDIT AGREEMENT

 

[See attached]

 

 

 

 

 

ANNEX A

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of January 28, 2013

 

As amended by the First Amendment to Amended and Restated Credit Agreement

 

Dated as of June 10, 2014

 

As amended by the Second Amendment to Amended and Restated Credit Agreement

 

Dated as of September 28, 2016 (effective as of the Subsequent Second Amendment Effective Date)

 

As amended by the Third Amendment to Amended and Restated Credit Agreement

 

Dated as of May 23, 2018

 

As amended by the Fourth Amendment to Amended and Restated Credit Agreement

 

Dated as of October 1, 2020

 

among

 

MICHAELS STORES, INC.,

 

as Borrower,

 

JPMORGAN CHASE BANK, N.A.,

 

as Administrative Agent,

 

THE OTHER LENDERS PARTY HERETO,

 

and

 

BARCLAYS BANK PLC,

 

CREDIT SUISSE SECURITIES (USA) LLC,

 

GOLDMAN SACHS BANK USA,

 

J.P. MORGAN SECURITIES LLC,

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

 

MORGAN STANLEY SENIOR FUNDING, INC., and

 

WELLS FARGO SECURITIES, LLC,

 

as Co-Documentation Agents

 

 

 

 

DEUTSCHE BANK SECURITIES INC.,
BARCLAYS BANK PLC,

CREDIT SUISSE SECURITIES (USA) LLC,

GOLDMAN SACHS BANK USA,

J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

MORGAN STANLEY SENIOR FUNDING, INC., and

WELLS FARGO SECURITIES, LLC,

as Co-Lead Arrangers and as Joint Bookrunners

 

2

 

 

Table of Contents 

 

  Page
ARTICLE I Definitions and Accounting Terms 2
SECTION 1.01. Defined Terms 2
SECTION 1.02. Other Interpretive Provisions 6674
SECTION 1.03. Accounting Terms 6775
SECTION 1.04. Rounding 6775
SECTION 1.05. References to Agreements, Laws, Etc. 6875
SECTION 1.06. Times of Day 6875
SECTION 1.07. Timing of Payment or Performance 6875
SECTION 1.08. Currency Equivalents Generally 6875
SECTION 1.09. Change of Currency 6876
SECTION 1.10. Pro Forma and Other Calculations 6876
SECTION 1.11. Divisions 80
SECTION 1.12. Interest Rates; LIBOR Notification 80
ARTICLE II The Commitments and Credit Extensions 7181
SECTION 2.01. The Loans 7181
SECTION 2.02. Borrowings, Conversions and Continuations of Loans 7281
SECTION 2.03. [RESERVED]. 7383
SECTION 2.04. [RESERVED]. 7383
SECTION 2.05. Prepayments 7383
SECTION 2.06. Termination of Commitments 8493
SECTION 2.07. Amortization of Loans. 8593
SECTION 2.08. Interest 8593
SECTION 2.09. Fees 8694
SECTION 2.10. Computation of Interest and Fees 8795
SECTION 2.11. Evidence of Indebtedness 8795
SECTION 2.12. Payments Generally 8896
SECTION 2.13. Sharing of Payments 9097
SECTION 2.14. Provisions Applicable to Canadian Loan Parties 9098
SECTION 2.15. Refinancing Amendments 9198

 

 

 

 

SECTION 2.16. Extended Term Loans. 9299
SECTION 2.17. Incremental Borrowings. 94102
ARTICLE III Taxes, Increased Costs Protection and Illegality 98106
SECTION 3.01. Taxes 98106
SECTION 3.02. Illegality 100108
SECTION 3.03. Inability to Determine Rates 100Alternate Rate of Interest 108
SECTION 3.04. Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans 101110
SECTION 3.05. Funding Losses 102111
SECTION 3.06. Matters Applicable to All Requests for Compensation 103111
SECTION 3.07. Replacement of Lenders under Certain Circumstances 104112
SECTION 3.08. Survival 105113
ARTICLE IV Conditions Precedent to Credit Extensions 105113
SECTION 4.01. Conditions to Making of Term B Loans 105113
SECTION 4.02. Conditions to All Credit Extensions 106115
ARTICLE V Representations and Warranties 107116
SECTION 5.01. Existence, Qualification and Power; Compliance with Laws 107116
SECTION 5.02. Authorization; No Contravention 107116
SECTION 5.03. Governmental Authorization; Other Consents 107116
SECTION 5.04. Binding Effect 108116
SECTION 5.05. Financial Statements; No Material Adverse Effect 108117
SECTION 5.06. Litigation 108117
SECTION 5.07. No Default 108117
SECTION 5.08. Ownership of Property; Liens 109117
SECTION 5.09. Environmental Compliance 109117
SECTION 5.10. Taxes 110118
SECTION 5.11. ERISA Compliance 110118
SECTION 5.12. Subsidiaries; Equity Interests 110119
SECTION 5.13. Margin Regulations; Investment Company Act 110119
SECTION 5.14. Disclosure 111119
SECTION 5.15. Intellectual Property; Licenses, Etc. 111120

 

ii

 

 

SECTION 5.16. Solvency 111120
SECTION 5.17. Subordination of Junior Financing 111[Reserved] 120
SECTION 5.18. Labor Matters 111120
SECTION 5.19. Anti-Terrorism Laws; OFAC 112OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws; Patriot Act 120
SECTION 5.20. EEA Financial Institutions 121
ARTICLE VI Affirmative Covenants 112121
SECTION 6.01. Financial Statements 112121
SECTION 6.02. Certificates; Other Information 113122
SECTION 6.03. Notices 115123
SECTION 6.04. Payment of Obligations 115124
SECTION 6.05. Preservation of Existence, Etc. 115124
SECTION 6.06. Maintenance of Properties 116124
SECTION 6.07. Maintenance of Insurance 116124
SECTION 6.08. Compliance with Laws 116125
SECTION 6.09. Books and Records 117125
SECTION 6.10. Inspection Rights 117125
SECTION 6.11. Covenant to Guarantee Obligations and Give Security 117126
SECTION 6.12. Compliance with Environmental Laws 119128
SECTION 6.13. Further Assurances and Post-Closing Conditions 120128
SECTION 6.14. [Reserved] 120OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws 129
SECTION 6.15. Pension Plans 120129
SECTION 6.16. Maintenance of Rating 121129
SECTION 6.17. Redemption of 2016 Senior Subordinated Notes 121
ARTICLE VII Negative Covenants 121130
SECTION 7.01. Asset Sales 121130
SECTION 7.02. Limitation on Restricted Payments 122131
SECTION 7.03. Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock 128137
SECTION 7.04. Liens 135143

 

iii

 

 

SECTION 7.05. [RESERVED]. 135143
SECTION 7.06. Merger, Amalgamation, Consolidation or Sale of All or Substantially All Assets 135143
SECTION 7.07. Transactions with Affiliates 136145
SECTION 7.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries 138147
SECTION 7.09. Limitation on Guarantees of Indebtedness by Restricted Subsidiaries 140149
SECTION 7.10. Change in Nature of Business 140149
SECTION 7.11. [RESERVED] 140149
SECTION 7.12. Use of Proceeds 140150
SECTION 7.13. Accounting Changes 141150
SECTION 7.14. Amendments of Indebtedness, Etc. 141
ARTICLE VIII Events Of Default and Remedies 142150
SECTION 8.01. Events of Default 142150
SECTION 8.02. Remedies Upon Event of Default 144152
SECTION 8.03. Exclusion of Immaterial Subsidiaries 145153
SECTION 8.04. Application of Funds 145153
ARTICLE IX Administrative Agent and Other Agents 145154
SECTION 9.01. Appointment and Authorization of Agents 146154
SECTION 9.02. Delegation of Duties 146154
SECTION 9.03. Liability of Agents 146155
SECTION 9.04. Reliance by Agents 147155
SECTION 9.05. Notice of Default 147155
SECTION 9.06. Credit Decision; Disclosure of Information by Agents 147156
SECTION 9.07. Indemnification of Agents 148156
SECTION 9.08. Agents in their Individual Capacities 148156
SECTION 9.09. Successor Agents 148157
SECTION 9.10. Administrative Agent May File Proofs of Claim 149157
SECTION 9.11. Collateral and Guaranty Matters 150158
SECTION 9.12. Other Agents; Arrangers and Managers 151159
SECTION 9.13. Appointment of Supplemental Administrative Agents 151159
SECTION 9.14. Solidary Interests/Quebec Liens (Hypothecs) 151160
SECTION 9.15. Certain ERISA Matters. 152161

 

iv

 

 

ARTICLE X Miscellaneous 154162
SECTION 10.01. Amendments, Etc. 154162
SECTION 10.02. Notices and Other Communications; Facsimile Copies 157164
SECTION 10.03. No Waiver; Cumulative Remedies 158165
SECTION 10.04. Attorney Costs and Expenses 158165
SECTION 10.05. Limitation of Liability; Indemnification by the Borrower 158166
SECTION 10.06. Payments Set Aside 160167
SECTION 10.07. Successors and Assigns 160167
SECTION 10.08. Confidentiality 164173
SECTION 10.09. Setoff 164173
SECTION 10.10. Interest Rate Limitation 165173
SECTION 10.11. Counterparts 165174
SECTION 10.12. Integration 165175
SECTION 10.13. Survival of Representations and Warranties 165175
SECTION 10.14. Severability 166175
SECTION 10.15. Tax Forms 166175
SECTION 10.16. GOVERNING LAW 167177
SECTION 10.17. WAIVER OF RIGHT TO TRIAL BY JURY 168177
SECTION 10.18. Binding Effect 168178
SECTION 10.19. Lender Action 168178
SECTION 10.20. USA PATRIOT Act; Canadian Anti-Money Laundering Legislation 169178
SECTION 10.21. Judgment Currency 169179
SECTION 10.22. Other Liens on Collateral; Terms of Intercreditor Agreement; Etc. 170179
SECTION 10.23. Effect of the Amendment and Restatement of the Existing Credit Agreement; Amendments to Security Agreement on the Subsequent Second Amendment Effective Date 171180
SECTION 10.24. No Advisory or Fiduciary Responsibility. 171181
SECTION 10.25. Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions 172181
SECTION 10.26. Keepwell 172182
SECTION 10.27. Acknowledgement Regarding Any Supported QFCs 182

 

v

 

 

SCHEDULES

 

1.01B Collateral Documents
1.01D Mortgaged Properties
1.01E Excluded Subsidiary
1.01F Foreign Subsidiary
2.01 Commitments
5.05 Financial Statement Exceptions
5.10 Taxes
5.11 ERISA and other Pension Plan Compliance
5.12 Subsidiaries and Other Equity Investments
6.07 Insurance
7.03 Existing Indebtedness
7.04 Existing Liens
10.02 Administrative Agent’s Office, Certain Addresses for Notices

 

 

EXHIBITS

 

Form of

 

A Committed Loan Notice
B [Reserved]
C Note
D Compliance Certificate
E Assignment and Assumption
F-1 Domestic Guaranty
F-2 Canadian Guarantee[Reserved]
G-1 Security Agreement
G-2 Canadian Security Agreement[Reserved]
H Amended and Restated Intercreditor Agreement
I Opinion Matters ― Counsel to Loan Parties[Reserved]
J Intercompany Note
K Specified Discount Prepayment Notice
L Specified Discount Prepayment Response
M Discount Range Prepayment Notice
N Discount Range Prepayment Offer
O Solicited Discounted Prepayment Notice
P Solicited Discounted Prepayment Offer
Q Acceptance and Prepayment Notice
R Guarantor Consent and Reaffirmation
S Canadian Guarantor Consent and Reaffirmation[Reserved]
T Additional First Lien Intercreditor Agreement
   

 

 

 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

 

This AMENDED AND RESTATED CREDIT AGREEMENT (as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of June 10, 2014, the Second Amendment to Amended and Restated Credit Agreement, dated as of September 28, 2016, and effective as of the Subsequent Second Amendment Effective Date, and the Third Amendment to Amended and Restated Credit Agreement, dated as of May 23, 2018, and the Fourth Amendment to Amended and Restated Credit Agreement, dated as of October 1, 2020, this “Agreement”) is entered into as of January 28, 2013, among MICHAELS STORES, INC., a Delaware corporation (the “Borrower”), JPMORGAN CHASE BANK, N.A., as Administrative Agent, each Lender from time to time party hereto, and BARCLAYS BANK PLC, CREDIT SUISSE SECURITIES (USA) LLC, GOLDMAN SACHS BANK USA, J.P. MORGAN SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, MORGAN STANLEY SENIOR FUNDING, INC., and WELLS FARGO SECURITIES, LLC, as Co-Documentation Agents.

 

PRELIMINARY STATEMENTS

 

Pursuant to the Recapitalization Agreement (as this and other capitalized terms used in these preliminary statements are defined in Section 1.01 below), Bain Paste Mergerco, Inc. and Blackstone Paste Mergerco, Inc. (collectively, the “MergerCos”) were merged with the Borrower, with the Borrower as the surviving corporation (the “Recapitalization”).

 

Simultaneously with the consummation of the Recapitalization, the Borrower entered into that certain Credit Agreement, dated as of October 31, 2006 (as amended and in effect immediately prior to the Restatement Effective Date, the “Existing Credit Agreement”), by, among others, the Borrower, the “Lenders” as defined therein, and DEUTSCHE BANK AG NEW YORK BRANCH, as “Administrative Agent” as defined therein, pursuant to which the Borrower incurred an Original Loan (as defined in the Existing Credit Agreement) on the Closing Date in an aggregate principal amount of $2,400,000,000.

 

The proceeds of the Original Loan made on the Closing Date, together with the proceeds of (i) the issuance of certain unsecured notes, (ii) the funding of $400,000,000 under the ABL Credit Agreement on the Closing Date and (iii) the Equity Contribution, were used to finance the Debt Prepayment and pay the Merger Consideration and the Closing Date Transaction Expenses. Immediately prior to the Restatement Effective Date, outstanding term loans in the aggregate principal amount of approximately $1,495,000,000 (the “Outstanding Term Loans”) were outstanding under the Existing Credit Agreement.

 

The Borrower desires to refinance the Outstanding Term Loans in full with Refinancing Term Loans pursuant to a Refinancing Amendment under Section 2.15 of the Existing Credit Agreement, and, in connection therewith, to amend and restate the Existing Credit Agreement in its entirety to, among other things, (i) provide for such Refinancing Term Loans, which will take the form of a new tranche of senior secured term loans under this Agreement, and (ii) increase the aggregate principal amount of such tranche borrowed and outstanding under this Agreement to $1,640,000,000 on the Restatement Effective Date.

 

The proceeds of the Loans on the Restatement Effective Date will be used to (i) refinance in full the Outstanding Term Loans, (ii) finance the redemption of a portion of the 2016 Senior Subordinated Notes in the aggregate principal amount of approximately $137,000,000 and (iii) fund certain related fees and expenses associated with the Transaction.

 

 

 

 

The Lenders and each Additional Lender providing the Refinancing Term Loans have indicated their willingness to lend and to consent to the other amendments herein, in each case on the terms and subject to the conditions set forth herein.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I

Definitions and Accounting Terms

 

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

 

2016 Converted Replacement Term B-1 Loans” shall mean the Loans resulting from the 2016 Replacement Term B-1 Loan Conversion.

 

2016 Converted Replacement Term B-2 Loans” shall mean the Loans resulting from the 2016 Replacement Term B-2 Loan Conversion.

 

2016 Converting Replacement Term B-1 Loan Lender” shall mean, as of the Initial Second Amendment Effective Date, each Lender with a Term B Loan that has executed and delivered a counterpart of the Second Amendment, together with a 2016 Replacement Term B-1 Loan Conversion Election, to the Administrative Agent in accordance with the terms thereof.

 

2016 Converting Replacement Term B-2 Loan Lender” shall mean, as of the Initial Second Amendment Effective Date, each Lender with an Incremental 2014 Term Loan that has executed and delivered a counterpart of the Second Amendment, together with a 2016 Replacement Term B-2 Loan Conversion Election, to the Administrative Agent in accordance with the terms thereof.

 

2016 New Replacement Term B-1 Loan Commitment” shall mean, with respect to each 2016 New Replacement Term B-1 Loan Lender, the commitment of such 2016 New Replacement Term B-1 Loan Lender to make 2016 New Replacement Term B-1 Loans pursuant to Section 2.01(c)(B) (as in effect immediately prior to the Fourth Amendment Effective Date) as set forth on Schedule 1 to the Second Amendment, as the same may be reduced from time to time pursuant to Section 2.06.

 

2016 New Replacement Term B-1 Loan Lender” shall mean a Term Lender with a 2016 New Replacement Term B-1 Loan Commitment.

 

2016 New Replacement Term B-1 Loans” shall mean term loans made by the 2016 New Replacement Term B-1 Loan Lenders to the Borrower pursuant to Section 2.01(c)(B) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2016 New Replacement Term B-2 Loan Commitment” shall mean, with respect to each 2016 New Replacement Term B-2 Loan Lender, the commitment of such 2016 New Replacement Term B-2 Loan Lender to make 2016 New Replacement Term B-2 Loans pursuant to Section 2.01(c)(D) (as in effect immediately prior to the Fourth Amendment Effective Date) as set forth on Schedule 1 to the Second Amendment, as the same may be reduced from time to time pursuant to Section 2.06.

 

2016 New Replacement Term B-2 Loan Lender” shall mean a Term Lender with a 2016 New Replacement Term B-2 Loan Commitment.

 

2

 

 

2016 New Replacement Term B-2 Loans” shall mean term loans made by the 2016 New Replacement Term B-2 Loan Lenders to the Borrower pursuant to Section 2.01(c)(D) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2016 Non-Converting Replacement Term B-1 Loan Lender” shall mean each Lender holding Term B Loans party hereto immediately prior to the occurrence of the Initial Second Amendment Effective Date and which is not a 2016 Converting Replacement Term B-1 Loan Lender.

 

2016 Non-Converting Replacement Term B-2 Loan Lender” shall mean each Lender holding Incremental 2014 Term Loans party hereto immediately prior to the occurrence of the Initial Second Amendment Effective Date and which is not a 2016 Converting Replacement Term B-2 Loan Lender.

 

2016 Replacement Term B-1 Loan Conversion” shall mean the conversion of Term B Loans to 2016 Converted Replacement Term B-1 Loans as described in Section 2.01(c)(A) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2016 Replacement Term B-1 Loan Conversion Election” shall mean, as to any 2016 Converting Replacement Term B-1 Loan Lender, its request to have all of its Term B Loans converted into 2016 Converted Replacement Term B-1 Loans as set forth in the “Lender Election Form” accompanying the signature page of such 2016 Converting Replacement Term B-1 Loan Lender to the Second Amendment.

 

2016 Replacement Term B-1 Loan Lender” shall mean (a) as of the Initial Second Amendment Effective Date (prior to giving effect to the 2016 Replacement Term Loan Conversion), each 2016 New Replacement Term B-1 Loan Lender and each 2016 Converting Replacement Term B-1 Loan Lender and (b) on and after the Initial Second Amendment Effective Date (after giving effect to the 2016 Replacement Term Loan Conversion), each Lender with an outstanding 2016 Replacement Term B-1 Loan.

 

2016 Replacement Term B-1 Loans” shall mean, collectively, (a) at all times, (i) the 2016 Converted Replacement Term B-1 Loans and (ii) the 2016 New Replacement Term B-1 Loans and (b) upon the occurrence of the 2016 Replacement Term Loan Conversion, the 2016 Replacement Term B-2 Loans (all of which were converted into 2016 Replacement Term B-1 Loans of a single Class pursuant to the 2016 Replacement Term Loan Conversion on the Initial Second Amendment Effective Date).

 

2016 Replacement Term B-2 Loan Conversion” shall mean the conversion of Incremental 2014 Term Loans to 2016 Converted Replacement Term B-2 Loans as described in Section 2.01(c)(C) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2016 Replacement Term B-2 Loan Conversion Election” shall mean, as to any 2016 Converting Replacement Term B-2 Loan Lender, its request to have all of its Incremental 2014 Term Loans converted into 2016 Converted Replacement Term B-2 Loans as set forth in the “Lender Election Form” accompanying the signature page of such 2016 Converting Replacement Term B-2 Loan Lender to the Second Amendment.

 

2016 Replacement Term B-2 Loan Lender” shall mean each 2016 New Replacement Term B-2 Loan Lender and each 2016 Converting Replacement Term B-2 Loan Lender.

 

2016 Replacement Term B-2 Loans” shall mean, collectively, (a) the 2016 Converted Replacement Term B-2 Loans and (b) the 2016 New Replacement Term B-2 Loans.

 

3

 

 

2016 Replacement Term Loan Conversion” has the meaning specified in the Second Amendment.

 

2016 Senior Subordinated Notes” means $400,000,000 in aggregate principal amount of the Borrower’s 11-3/8% senior subordinated notes due 2016 (as reduced by any prepayment, redemption or retirement thereof).

 

2016 Senior Subordinated Notes Indenture” means the Indenture for the 2016 Senior Subordinated Notes, dated as of October 31, 2006, as amended, supplemented or modified from time to time.

 

2018 Converted Replacement Term B Loans” shall mean the Loans resulting from the 2018 Replacement Term B Loan Conversion.

 

2018 Converting Replacement Term B Loan Lender” shall mean, as of the Third Amendment Effective Date, each Lender with a 2016 Replacement Term B-1 Loan immediately prior to the Third Amendment Effective Date that has executed and delivered a counterpart of the Third Amendment, together with a 2018 Replacement Term B Loan Conversion Election, to the Administrative Agent in accordance with the terms thereof.

 

2018 New Replacement Term B Loan Commitment” shall mean, with respect to each 2018 New Replacement Term B Loan Lender, the commitment of such 2018 New Replacement Term B Loan Lender to make 2018 New Replacement Term B Loans pursuant to Section 2.01(d)(B) (as in effect immediately prior to the Fourth Amendment Effective Date) as set forth on Schedule 1 to the Third Amendment, as the same may be reduced from time to time pursuant to Section 2.06.

 

2018 New Replacement Term B Loan Lender” shall mean a Term Lender with a 2018 New Replacement Term B Loan Commitment.

 

2018 New Replacement Term B Loans” shall mean term loans made by the 2018 New Replacement Term B Loan Lenders to the Borrower pursuant to Section 2.01(d)(B) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2018 Non-Converting Replacement Term B-1 Loan Lender” shall mean each Lender holding 2016 Replacement Term B-1 Loans party hereto immediately prior to the occurrence of the Third Amendment Effective Date and which is not a 2018 Converting Replacement Term B Loan Lender.

 

2018 Replacement Term B Loan Conversion” shall mean the conversion of 2016 Replacement Term B-1 Loans to 2018 Converted Replacement Term B Loans as described in Section 2.01(d)(A) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

2018 Replacement Term B Loan Conversion Election” shall mean, as to any 2018 Converting Replacement Term B Loan Lender, its request to have all of its 2016 Replacement Term B-1 Loans converted into 2018 Converted Replacement Term B Loans as set forth in the signature page of such 2018 Converting Replacement Term B Loan Lender to the Third Amendment.

 

2018 Replacement Term B Loan Lender” shall mean, on and after the Third Amendment Effective Date (after giving effect to the 2018 Replacement Term B Loan Conversion), each Lender with an outstanding 2018 Replacement Term B Loan.

 

4

 

 

2018 Replacement Term B Loans” shall mean, collectively, at all times, (i) the 2018 Converted Replacement Term B Loans and (ii) the 2018 New Replacement Term B Loans.

 

2020 Converted Refinancing Term B Loans” shall mean the Loans resulting from the 2020 Refinancing Term B Loan Conversion.

 

2020 Converting Refinancing Term B Loan Lender” shall mean, as of the Fourth Amendment Effective Date, each Lender with a 2018 Replacement Term B Loan immediately prior to the Fourth Amendment Effective Date that has executed and delivered a counterpart of the Fourth Amendment, together with a 2020 Refinancing Term B Loan Conversion Election, to the Administrative Agent in accordance with the terms thereof.

 

2020 New Refinancing Term B Loan Commitment” shall mean, with respect to each 2020 New Refinancing Term B Loan Lender, the commitment of such 2020 New Refinancing Term B Loan Lender to make 2020 New Refinancing Term B Loans pursuant to Section 2.01(e)(B) as set forth on Schedule 1 to the Fourth Amendment, as the same may be reduced from time to time pursuant to Section 2.06.

 

2020 New Refinancing Term B Loan Lender” shall mean a Lender with a 2020 New Refinancing Term B Loan Commitment.

 

2020 New Refinancing Term B Loans” shall mean term loans made by the 2020 New Refinancing Term B Loan Lenders to the Borrower pursuant to Section 2.01(e)(B).

 

2020 Non-Converting Replacement Term B Loan Lender” shall mean each Lender holding 2018 Replacement Term B Loans party hereto immediately prior to the occurrence of the Fourth Amendment Effective Date and which is not a 2020 Converting Refinancing Term B Loan Lender.

 

2020 Refinancing Term B Loan Conversion” shall mean the conversion of 2018 Replacement Term B Loans to 2020 Converted Refinancing Term B Loans as described in Section 2.01(e)(A).

 

2020 Refinancing Term B Loan Conversion Election” shall mean, as to any 2020 Converting Refinancing Term B Loan Lender, its request to have all of its 2018 Replacement Term B Loans converted into 2020 Converted Refinancing Term B Loans as set forth in the signature page of such 2020 Converting Refinancing Term B Loan Lender to the Fourth Amendment.

 

2020 Refinancing Term B Loan Lender” shall mean, on and after the Fourth Amendment Effective Date (after giving effect to the 2020 Refinancing Term B Loan Conversion), each Lender with an outstanding 2020 Refinancing Term B Loan.

 

2020 Refinancing Term B Loans” shall mean, collectively, at all times, (i) the 2020 Converted Refinancing Term B Loans and (ii) the 2020 New Refinancing Term B Loans.

 

20202027 Senior SubordinatedSecured Notes” means, collectively, (i) the $260,000,000 $375,000,000 in aggregate principal amount of the Borrower’s 5-7/84.750% senior subordinatedsecured notes due 20202027 issued on December 19, 2013 and (iiOctober 1, 2020 (as may be reduced by any prepayment, redemption or retirement thereof) the.

 

2027 Senior Secured Notes Collateral Agent” has the meaning set forth in the definition of “2027 Senior Secured Notes Indenture.”

 

5

 

 

2027 Senior Secured Notes Collateral Documents” shall mean the “Security Documents” as defined in the 2027 Senior Secured Notes Indenture, or comparable term as used in the 2027 Senior Secured Notes Indenture.

 

2027 Senior Secured Notes Indenture” means the Indenture for the 2027 Senior Secured Notes, dated as of October 1, 2020, by and among the Borrower, as issuer, the Guarantors (under and as defined therein) and U.S. Bank National Association, as trustee (including any successor thereto in such capacity, the “2027 Senior Secured Notes Trustee”) and as collateral agent (including any successor thereto in such capacity, the “2027 Senior Secured Notes Collateral Agent”), as amended, supplemented or modified from time to time.

 

2027 Senior Secured Notes Trustee” has the meaning set forth in the definition of “2027 Senior Secured Notes Indenture.”

 

$250,000,0002027 Senior Unsecured Notes” means $500,000,000 in aggregate principal amount of the Borrower’s 5-7/88.000% senior subordinatedunsecured notes due 20202027 issued on June 16July 8, 20142019 (as each may be reduced by any prepayment, redemption or retirement thereof).

 

20202027 Senior SubordinatedUnsecured Notes Indenture” means the Indenture for the 20202027 Senior SubordinatedUnsecured Notes, dated as of December 19, 2013July 8, 2019, by and among the Borrower, as issuer, the Guarantors (under and as defined therein), and U.S. Bank National Association, as trustee (or any successor thereto in such capacity), as amended, supplemented or modified from time to time.

 

ABL Collateral Agent” shall mean the “Collateral Agent” as defined in the ABL Credit Agreement, or Person performing comparable functions under the ABL Credit Agreement.

 

ABL Collateral Documents” shall mean the “Security Documents” as defined in the ABL Credit Agreement, or comparable term as used in the ABL Credit Agreement.

 

ABL Credit Agreement” shall mean the Third Amended and Restated Credit Agreement, dated as of May 27, 2016, among the Borrower, as the lead borrower, the other borrowers named therein, the facility guarantors identified therein, Wells Fargo Bank, National Association, as administrative agent and as collateral agent, and the lenders identified therein, as the same may be amended, restated, modified, supplemented, extended, renewed, refunded, replaced or refinanced from time to time in one or more agreements or indentures (in each case with the same or new lenders, institutional investors or, agents or otherwise), including any agreement or indenture extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder or increasing the amount loaned or issued thereunder or altering the maturity thereof (so long as, in the case of any replacement or refinancing, all commitments under the agreements or indentures so replaced or refinanced shall have been terminated, all unpaid amounts thereunder (other than indemnities) shall have been paid in full and all parties to any replacement or refinancing agreements or indentures, or a trustee or agent on their behalf, shall have become party to the Intercreditor Agreement as of the applicable date of replacement or refinancing, as the case may be).

 

ABL Lenders” shall mean the “Lenders” as defined in the ABL Credit Agreement.

 

ABL Loan Documents” shall mean the ABL Credit Agreement and the related guaranties, pledge agreements, security agreements, mortgages, notes and other agreements and instruments entered into in connection with the ABL Credit Agreement.

 

6

 

 

ABL Loans” shall mean the “Revolving Loans” as defined in the ABL Credit Agreement, or other loans borrowed under the ABL Credit Agreement.

 

ABL Priority Collateral” means, collectively, all “ABL Priority Collateral” as defined in the Intercreditor Agreement.

 

Acceptable Discount” has the meaning specified in Section 2.05(a)(iii)(D)(2).

 

Acceptable Prepayment Amount” has the meaning specified in Section 2.05(a)(iii)(D)(3).

 

Acceptance and Prepayment Notice” means a notice of the Borrower’s acceptance of the Acceptable Discount in substantially the form of Exhibit Q attached hereto.

 

Acceptance Date” has the meaning specified in Section 2.05(a)(iii)(D)(2).

 

ACH” means automated clearing house transfers.

 

Acquired Indebtedness” means, with respect to any specified Person, (a) Indebtedness of any other Person existing at the time such other Person is merged or amalgamated with or into or became a Restricted Subsidiary of such specified Person, including Indebtedness incurred in connection with, or in contemplation of, such other Person merging or amalgamating with or into or becoming a Restricted Subsidiary of such specified Person, and (b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

 

Acquisition” means, with respect to a specified Person, (a) an Investment in or a purchase of a 50% or greater interest in the Capital Stock of any other Person, (b) a purchase or acquisition of all or substantially all of the assets of any other Person, (c) a purchase or acquisition of a real estate portfolio or Stores from any other Person or assets constituting a business unit, line of business or division of any other Person, or (d) any merger, amalgamation or consolidation of such Person with any other Person or other transaction or series of transactions resulting in the acquisition of all or substantially all of the assets, or a 50% or greater interest in the Capital Stock of, any Person, in each case in any transaction or group of transactions which are part of a common plan.

 

Act” has the meaning set forth in Section 10.20.

 

Additional Assets” means (a) any asset used or useful in a Similar Business, including any such asset acquired through any capital expenditure, (b) the Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Borrower or another Restricted Subsidiary or is merged or amalgamated with or into the Borrower or another Restricted Subsidiary and that is primarily engaged in a Similar Business, (c) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary that is primarily engaged in a Similar Business, (d) all or substantially all of the assets of a Similar Business or (e) any other asset that replaces an asset that is the subject of an Asset Sale.

 

Additional First Lien Indebtedness” has the meaning specified in the definition of Additional First Lien Intercreditor Agreement.

 

7

 

 

Additional First Lien Intercreditor Agreement” means an(x) the Pari Passu Intercreditor Agreement executed by the Administrative Agent, the Collateral Agent, the 2027 Senior Secured Notes Trustee, the 2027 Senior Secured Notes Collateral Agent and the Loan Parties, substantially in the form of Exhibit T and/or (y) any other intercreditor agreement among the Administrative Agent, the Collateral Agent and one or more Senior Representatives for applicable holders of Permitted First Priority Refinancing Debt or any other Indebtedness permitted by Section 7.03 that is secured by Permitted Liens on the Collateral that are pari passu (but without regard to control of remedies) with the Liens on the Collateral securing the Obligations (“Additional First Lien Indebtedness”) providing that, inter alia, the Liens on the Collateral as between the Collateral Agent (for the benefit of the Secured Parties) and one or more Senior Representatives (for the benefit of any such Senior Representatives and the applicable holders of Permitted First Priority Refinancing Debt or Additional First Lien Indebtedness, as the case may be) shall be pari passu (but without regard to control of remedies), in each case, as such intercreditor agreement may be amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof. TheAny Additional First Lien Intercreditor Agreement referred to in clause (y) above shall be in a form customary for transactions of the type contemplated thereby and otherwise reasonably satisfactory to the Administrative Agent and the Borrower and, to the extent agreed to by the Collateral Agent, one or more Senior Representatives for the applicable holders of Permitted First Priority Refinancing Debt or Additional First Lien Indebtedness, as the case may be, and the ABL Collateral Agent, may be in the form of an amendment and restatement of the Intercreditor Agreement.

 

Additional Incremental Lender” has the meaning specified in Section 2.17(c).

 

Additional Junior Lien Indebtedness” has the meaning specified in the definition of Additional Junior Lien Intercreditor Agreement.

 

Additional Junior Lien Intercreditor Agreement” means an intercreditor agreement among the Administrative Agent, the Collateral Agent, the 2027 Senior Secured Notes Trustee, the 2027 Senior Secured Notes Collateral Agent (if applicable) and one or more Senior Representatives for applicable holders of Permitted Junior Priority Refinancing Debt or any other Indebtedness permitted by Section 7.03 that is secured by Permitted Liens on the Collateral that are junior to the Liens on the Collateral securing the Obligations (“Additional Junior Lien Indebtedness”) providing that, inter alia, the Liens on the Collateral in favor of one or more Senior Representatives (for the benefit of any such Senior Representatives and the applicable holders of Permitted Junior Priority Refinancing Debt or Additional Junior Lien Indebtedness, as the case may be) shall be junior to the Liens on the Collateral in favor of the Collateral Agent (for the benefit of the Secured Parties), as such intercreditor agreement may be amended, modified, restated and/or supplemented from time to time in accordance with the terms hereof and thereof. The Additional Junior Lien Intercreditor Agreement shall be in a form customary for transactions of the type contemplated thereby and otherwise reasonably satisfactory to the Administrative Agent and the Borrower and, to the extent agreed to by the Collateral Agent, one or more Senior Representatives for the applicable holders of Permitted Junior Priority Refinancing Debt or Additional Junior Lien Indebtedness, as the case may be, and the ABL Collateral Agent, may be in the form of an amendment and restatement of the Intercreditor Agreement.

 

Additional Lender” means, at any time, any bank or other financial institution or institutional lender (other than any such bank, financial institution or institutional lender that is a Lender at such time) that agrees to provide any portion of Credit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment in accordance with Section 2.15, provided that each Additional Lender shall be subject to the approval of (x) the Administrative Agent, to the extent that each such Additional Lender is not then an existing Lender, an Affiliate of a then existing Lender or an Approved Fund and to the extent such consent, if any, would be required under Section 10.07(b) for an assignment of Loans to such Additional Lender (such approval not to be unreasonably withheld or delayed), and (y) the Borrower.

 

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Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. Unless the context otherwise requires, the term “Administrative Agent” as used herein and in the other Loan Documents shall include the Collateral Agent.

 

Administrative Agent’s Office” means the Administrative Agent’s address and account as set forth on Schedule 10.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

 

Affiliate Transaction” has the meaning set forth in Section 7.07(a).

 

Agent-Related Persons” means the Agents and the Arrangers, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.

 

Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Co-Documentation Agents and the Supplemental Administrative Agents (if any).

 

Aggregate Commitments” means the Commitments of all the Lenders.

 

Agreement” means this Credit Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

 

Agreement Currency” has the meaning provided in Section 10.21.

 

Allocated 2018 Replacement2020 Refinancing Term B Loan Conversion Amount” shall mean, with respect to each Lender holding 20162018 Replacement Term B-1B Loans that is a 20182020 Converting ReplacementRefinancing Term B Loan Lender, the amount determined by the ThirdFourth Amendment Lead Arrangers and the Borrower as the final amount of such Lender’s 20182020 Converted ReplacementRefinancing Term B Loans on the ThirdFourth Amendment Effective Date and notified to each such Lender by the ThirdFourth Amendment Lead Arrangers on or before the ThirdFourth Amendment Effective Date. The “Allocated 2018 Replacement2020 Refinancing Term B Loan Conversion Amount” of any Lender shall not exceed (but may be less than) the aggregate principal amount of 20162018 Replacement Term B-1B Loans held by such Lender immediately prior to the effectiveness of the ThirdFourth Amendment on the ThirdFourth Amendment Effective Date. All such determinations made by the ThirdFourth Amendment Lead Arrangers and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders, and the ThirdFourth Amendment Lead Arrangers shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct by the ThirdFourth Amendment Lead Arrangers (as determined in a final non-appealable judgment of a court of competent jurisdiction).

 

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Ancillary Document” has the meaning specified in Section 10.11.

 

Allocated Replacement Term B-1 Loan Conversion Amount” shall mean, with respect to each Lender holding Term B Loans that is a 2016 Converting Replacement Term B-1 Loan Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such Lender’s 2016 Converted Replacement Term B-1 Loans on the Initial Second Amendment Effective Date and notified to each such Lender by the Administrative Agent promptly following the Initial Second Amendment Effective Date. The “Allocated Replacement Term B-1 Loan Conversion Amount” of any Lender shall not exceed (but may be less than) the aggregate principal amount of Term B Loans held by such Lender immediately prior to the effectiveness of the Second Amendment on the Initial Second Amendment Effective Date. All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders and the Administrative Agent shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct by the Administrative Agent (as determined in a final non-appealable judgment of a court of competent jurisdiction).

 

Allocated Replacement Term B-2 Loan Conversion Amount” shall mean, with respect to each Lender holding Incremental 2014 Term Loans that is a 2016 Converting Replacement Term B-2 Loan Lender, the amount determined by the Administrative Agent and the Borrower as the final amount of such Lender’s 2016 Converted Replacement Term B-2 Loans on the Initial Second Amendment Effective Date and notified to each such Lender by the Administrative Agent promptly following the Initial Second Amendment Effective Date. The “Allocated Replacement Term B-2 Loan Conversion Amount” of any Lender shall not exceed (but may be less than) the aggregate principal amount of Incremental 2014 Term Loans held by such Lender immediately prior to the effectiveness of the Second Amendment on the Initial Second Amendment Effective Date. All such determinations made by the Administrative Agent and the Borrower shall, absent manifest error, be final, conclusive and binding on the Borrower and the Lenders and the Administrative Agent shall have no liability to any Person with respect to such determination absent gross negligence or willful misconduct by the Administrative Agent (as determined in a final non-appealable judgment of a court of competent jurisdiction).

 

Applicable Discount” has the meaning specified in Section 2.05(a)(iii)(C)(2).

 

Applicable Rate” means a percentage per annum equal to (a) with respect to Term B Loans, (i) for Eurocurrency Rate Loans, 2.75%, and (ii) for Base Rate Loans, 1.75%; (b) with respect to Incremental 2014 Term Loans, (i) for Eurocurrency Rate Loans, 3.00%, and (ii) for Base Rate Loans, 2.00%; (c) with respect to 2016 Replacement Term B-1 Loans (after giving effect to the 2016 Replacement Term Loan Conversion), (i) for Eurocurrency Rate Loans, 2.75% and (ii) for Base Rate Loans, 1.75%; and (d) with respect to 2018 Replacement Term B Loans (after giving effect to the 2018 Replacement Term B Loan Conversion), (i) for Eurocurrency Rate Loans, 2.50%, and (ii) for Base Rate Loans, 1.50%.

 

Anti-Corruption Laws” means the Laws of the United States and Canada from time to time in effect relating to bribery or corruption.

 

Anti-Money Laundering Laws” means the Laws of the United States and Canada from time to time in effect relating to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.

 

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Applicable Rate” means a percentage per annum equal to (a) for Eurocurrency Rate Loans, 3.50%, and (b) for Base Rate Loans, 2.50%.

 

Notwithstanding the foregoing, (x) the Applicable Rate in respect of Incremental Term Loans of any Class, Extended Term Loans of any Extension Series or Refinancing Term Loans of any Refinancing Series shall be the applicable percentages per annum provided pursuant to the relevant Incremental Amendment, Extension Amendment or Refinancing Amendment, as the case may be, and (y) the Applicable Rate in respect of certain Loans shall be increased as, and to the extent, necessary to comply with the provisions of Section 2.17.

 

Appropriate Lender” means, at any time, with respect to Loans of any Class, the Lenders of such Class.

 

Approved Fund” means any Fund that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

 

Arrangers” means (a) with respect to the Term B Loans, Deutsche Bank Securities Inc., Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Goldman Sachs Bank USA, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc., and Wells Fargo Securities, LLC, each in its capacity as a Joint Bookrunner and a Co-Lead Arranger under this Agreement; (b) with respect to the Incremental 2014 Term Loans, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Barclays Bank PLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit Suisse Securities (USA) LLC, Morgan Stanley Senior Funding, Inc., Wells Fargo Securities, LLC, Guggenheim Securities Holdings, LLC and Macquarie Capital (USA) Inc., each in its capacity as a Joint Bookrunner and a Co-Lead Arranger under the First Amendment; (c) with respect to the 2016 Replacement Term B-1 Loans, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, Goldman Sachs Bank USA and SunTrust Robinson Humphrey, Inc., each in its capacity as a Joint Bookrunner and a Co-Lead Arranger under the Second Amendment; and (d) with respect to the 2018 Replacement Term B Loans, JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, Deutsche Bank Securities Inc. and Goldman Sachs Bank USA, each in its capacity as a Joint Lead Arranger and Joint Bookrunner under the Third Amendment.; and (e) with respect to the 2020 Refinancing Term B Loans, JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, BofA Securities, Inc., Truist Bank, Bank of Montreal, Barclays Bank, Citizens Bank, Credit Suisse Loan Funding LLC, Fifth Third Bank, National Association, Goldman Sachs Bank USA, UBS Securities LLC and U.S. Bank National Association, each in its capacity as a Joint Lead Arranger and Joint Bookrunner under the Fourth Amendment.

 

Asset Sale” means (a) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Borrower or any of its Restricted Subsidiaries (each referred to in this definition as a “disposition”) or (b) the issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a single transaction or a series of related transactions (other than directors’ qualifying shares and shares issued to foreign nationals as required under applicable law); in each case, other than:

 

(i)                any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out property or equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale in the ordinary course of business (it being understood that the sale of inventory or goods (or other assets) in bulk in connection with the closing of any number of Stores in the ordinary course of business shall be considered a sale in the ordinary course of business);

 

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(ii)               the disposition of all or substantially all of the assets of the Borrower in a manner permitted pursuant to Section 7.06 or any disposition that constitutes a Change of Control;

 

(iii)              the making of any Restricted Payment that is permitted to be made, and is made, under Section 7.02 or the making of any Permitted Investment;

 

(iv)              any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $25,000,000the greater of (x) $50,000,000 and (y) 7.75% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period;

 

(v)               any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower;

 

(vi)              to the extent allowable under Section 1031 of the Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business;

 

(vii)             the lease, assignment, sublease, license or sublicense of any real or personal property in the ordinary course of business;

 

(viii)            any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;

 

(ix)               foreclosures on or expropriations of assets;

 

(x)               (A) sales of accounts receivable, or participations therein, in connection with any Receivables Facility, or (B) the disposition of an account receivable in connection with the collection or compromise thereof in the ordinary course of business and not as part of a financing transaction;

 

(xi)              the granting of a Lien that is a Permitted Lien;

 

(xii)             the issuance by a Restricted Subsidiary of Preferred Stock or Disqualified Stock that is permitted by Section 7.03; and

 

(xiii)            any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the ClosingFourth Amendment Effective Date, including asset securitizations permitted by this Agreement and any Sale and Lease-Back Transaction.

 

Asset Sale/Casualty Event Offer” has the meaning set forth in Section 2.05(c)(iii).

 

Assignees” has the meaning specified in Section 10.07(b).

 

Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit E attached to the Existing Credit Agreement.

 

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Attorney Costs” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel.

 

Auction Agent” means (a) the Administrative Agent or (b) any other financial institution or advisor employed by the Borrower (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Discounted Term Loan Prepayment pursuant to Section 2.05(a)(iii); provided that the Borrower shall not designate the Administrative Agent as the Auction Agent without the written consent of the Administrative Agent (it being understood that the Administrative Agent shall be under no obligation to agree to act as the Auction Agent); provided, further, that neither the Borrower nor any of its Affiliates may act as the Auction Agent.

 

Audited Financial Statements” means the audited consolidated balance sheets of the Borrower and its Subsidiaries as of each of January 28, 2012, January 29, 2011 and January 30, 2010, and the related audited consolidated statements of income, stockholders’ equity and cash flows for the Borrower and its Subsidiaries for the fiscal years ended January 28, 2012, January 29, 2011 and January 30, 2010, respectively, as any of the foregoing may have been restated.

 

Available Incremental Amount” has the meaning specified in Section 2.17(d)(iv).

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Bank Products” means any supply chain finance services including, without limitation, trade payable services and supplier accounts receivable and drafts/bills of exchange purchases; credit or debit cards; purchase cards or merchant account lines of credit.

 

Base Rate” means, for any day, a fluctuating rate per annum equal to the highestgreatest of (a) the Federal FundsPrime Rate plus 1/2 of 1%in effect on such day, (b) the rate of interestNYFRB Rate in effect foron such day as publicly announced from time to time by the Administrative Agent as its “prime rate”plus ½ of 1% and (c) the Eurocurrency Rate for a Eurocurrency Rate Loan denominated in Dollars with anone month Interest Period of one month commencing on such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1%. The “prime rate” is a rate set by the Administrative Agent based upon various factors including the Administrative Agent’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change. In no event shall the Base Rate be less than 0.00%.; provided that for the purpose of this definition, the Eurocurrency Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 3.03(b)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than 1.75%, such rate shall be deemed to be 1.75% for purposes of this Agreement.

 

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Base Rate Loan” means a Loan that bears interest based on the Base Rate.

 

Benchmark Replacement” means the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBO Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 0.00%, the Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its sole discretion.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the LIBO Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBO Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time (for the avoidance of doubt, such Benchmark Replacement Adjustment shall not be in the form of a reduction to the Applicable Rate).

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent, in its reasonable discretion in consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent, in consultation with the Borrower, determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent, in consultation the Borrower, decides is reasonably necessary in connection with the administration of this Agreement).

 

Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate:

 

(1)        in the case of clause (1) or (2) of the definition of “Benchmark Transition Event”, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBO Rate permanently or indefinitely ceases to provide the LIBO Rate; or

 

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(2)        in the case of clause (3) of the definition of “Benchmark Transition Event”, the date of the public statement or publication of information referenced therein.

 

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate:

 

(1)        a public statement or publication of information by or on behalf of the administrator of the LIBO Rate announcing that such administrator has ceased or will cease to provide the LIBO Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate;

 

(2)        a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Rate, a resolution authority with jurisdiction over the administrator for the LIBO Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBO Rate, which states that the administrator of the LIBO Rate has ceased or will cease to provide the LIBO Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate; or

 

(3)        a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate announcing that the LIBO Rate is no longer representative.

 

Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

 

Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance with Section 3.03 and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder pursuant to Section 3.03.

 

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”

 

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.

 

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Board of Directors” means (a) with respect to a corporation, the board of directors of the corporation, (b) with respect to a partnership, the board of directors of the general partner of the partnership and (c) with respect to any other Person, the board or committee of such Person serving a similar function.

 

Borrower” has the meaning provided in the introductory paragraph of this Agreement; provided that when used in the context of determining the fair market value of an asset or liability under this Agreement, “Borrower” shall, unless otherwise expressly stated, be deemed to mean the Board of Directors of the Borrower when the fair market value of such asset or liability is equal to or in excess of $200,000,000 (unless otherwise expressly stated), in which case the determination of the Board of Directors shall be deemed conclusive for purposes of this Agreement.

 

Borrower Guaranty” means the Borrower Guaranty made by the Borrower in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit F-1 attached to the Existing Credit Agreement.

 

Borrower Offer of Specified Discount Prepayment” means the offer by any Company Party to make a voluntary prepayment of Loans at a Specified Discount to par pursuant to Section 2.05(a)(iii)(B).

 

Borrower Solicitation of Discount Range Prepayment Offers” means the solicitation by any Company Party of offers for, and the corresponding acceptance by a Lender of, a voluntary prepayment of Loans at a specified range of discounts to par pursuant to Section 2.05(a)(iii)(C).

 

Borrower Solicitation of Discounted Prepayment Offers” means the solicitation by any Company Party of offers for, and the subsequent acceptance, if any, by a Lender of, a voluntary prepayment of Loans at a discount to par pursuant to Section 2.05(a)(iii)(D).

 

Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and Class and, in the case of Eurocurrency Rate Loans, having the same Interest Period, made by each of the Lenders having Commitments of the respective Class pursuant to Section 2.01 or under any Incremental Amendment, Extension Amendment or Refinancing Amendment; provided that, immediately following the incurrence of the 20162020 New ReplacementRefinancing Term B-1B Loans, the 2016 Converted Replacement Term B-1 Loans, the 2016 New Replacement Term B-2 Loans and the 2016 Converted Replacement Term B-2incurrence of the 2020 Converted Refinancing Term B Loans and the consummation of the 2016 Replacement Term B-1 Loan Conversion, the 2016 Replacement Term B-2 Loan Conversion and the 2016 Replacement Term2020 Refinancing Term B Loan Conversion, in each case, on the Initial SecondFourth Amendment Effective Date, the term “Borrowing” shall include the consolidated “borrowing” of 20162020 New Replacement Term B-1 Loans, the 2016 Converted Replacement Term B-1 Loans, the 2016 New Replacement Term B-2 Loans and the 2016 Converted Replacement Term B-2 Loans as described in Section 2.08(e); provided further that, immediately following the incurrence of the 2018 New Replacement Term B Loans, the 2018 Converted ReplacementRefinancing Term B Loans and the consummation of the 2018 Replacement Term B Loan Conversion, in each case, on the Third Amendment Effective Date, the term “Borrowing” shall include the consolidated “borrowing” of 2018 New Replacement Term B Loans and the 2018 Converted Replacement Term B2020 Converted Refinancing Term B Loans as described in Section 2.08(e).

 

Borrowing Base” means the “Borrowing Base” as defined in, and calculated in accordance with, the ABL Credit Agreement.

 

 

 

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and if such day relates to any interest rate settings as to a Eurocurrency Rate Loan, any fundings, disbursements, settlements and payments in respect of any such Eurocurrency Rate Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

 

Canadian Guarantee” means, collectively, (a) the Canadian Guarantee made by the Canadian Subsidiary Guarantors in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit F-2 attached to the Existing Credit Agreement and (b) each othereach guaranty and Guaranty Supplement delivered by a Canadian Subsidiary Guarantor pursuant to Section 6.11.

 

Canadian Security Agreement” means, collectively, (a) the Security Agreement executed by the Canadian Subsidiary Guarantors, substantially in the form of Exhibit G-2 attached to the Existing Credit Agreement, and (b) any Deed of Immovable and Moveable Hypothec, together with, in each case, each other any security agreement, security agreement supplement or hypothec executed and delivered by a Canadian Subsidiary Guarantor pursuant to Section 6.11.

 

Canadian Subsidiary” means any Subsidiary that is organized under the laws of Canada or any province thereof.

 

Canadian Subsidiary Guarantors” means, collectively, (i) Michaels of Canada ULC and (ii) each othereach Canadian Subsidiary of the Borrower that, in the sole discretion of the Borrower, shall have entered into thea Canadian Guarantee and complied with the requirements of clause (b) of the definition of “Collateral and Guarantee Requirement”.

 

Capital Expenditures” means, for any period, the aggregate of (a) all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries and (b) the value of all assets under (or subject to) CapitalizedFinance Lease Obligations incurred by the Borrower and the Restricted Subsidiaries during such period; provided that the term “Capital Expenditures” shall not include (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of plant, property or equipment or software to the extent financed with the proceeds of Asset Sales that are not required to be applied to prepay Loans pursuant to Section 2.05(c), (iv) expenditures that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for by a Person other than the Borrower or any Restricted Subsidiary, to the extent neither the Borrower nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period), (v) the book value of any asset owned by the Borrower or any Restricted Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period without a corresponding expenditure actually having been made in such period, provided that (A) any expenditure necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in which such expenditure actually is made and (B) such book value shall have been included in Capital Expenditures when such asset was originally acquired, (vi) expenditures that constitute Acquisitions permitted hereunder, (vii) any expenditure which but for this clause (vii) would otherwise constitute a “Capital Expenditure”, to the extent financed with the proceeds of the sale or issuance of any Equity Interests of the Borrower or (viii) that portion of interest on Indebtedness incurred for Capital Expenditures which is paid in cash and capitalized in accordance with GAAP during such period.

 

 

 

 

Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.

 

Capital Stock” means (a) in the case of a corporation, shares in the capital of such corporation; (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock; (c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

 

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided, that all obligations of any Person that are or would be characterized as operating lease obligations in accordance with GAAP immediately prior to the Subsequent Second Amendment Effective Date (whether or not such operating lease obligations were in effect on such date) shall continue to be accounted for as operating lease obligations (and not as Capitalized Lease Obligations) for purposes of this Agreement regardless of any change in GAAP following the Subsequent Second Amendment Effective Date that would otherwise require such obligations to be recharacterized as Capitalized Lease Obligations.

 

Cash Collateral Account” means a blocked account at JPMorgan Chase Bank, N.A. (or another commercial bank selected in compliance with Section 9.09) in the name of the Administrative Agent and under the sole dominion and control of the Administrative Agent, and otherwise established in a manner reasonably satisfactory to the Administrative Agent.

 

Cash Equivalents” means:

 

(a)             United States dollars and Canadian dollars;

 

(b)             (i) euro or any national currency of any participating member state of the EMU; or

 

    (ii)       in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business;

 

(c)             securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;

 

 

 

 

(d)             certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and, in the case of any Foreign Subsidiary that is a Restricted Subsidiary, $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks, and in each case in a currency permitted under clauses (a) or (b) above;

 

(e)             repurchase obligations for underlying securities of the types described in clauses (c) and (d) entered into with any financial institution meeting the qualifications specified in clause (d) above and in each case in a currency permitted under clauses (a) or (b) above;

 

(f)              commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P and in each case maturing within 24 months after the date of creation thereof and in each case in a currency permitted under clauses (a) or (b) above;

 

(g)             marketable short term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency) and in each case maturing within 24 months after the date of creation thereof and in each case in a currency permitted under clauses (a) or (b) above;

 

(h)             readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;

 

(i)              Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moody’s with maturities of 24 months or less from the date of acquisition and in each case in a currency permitted under clauses (a) or (b) above;

 

(j)              Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s and in each case in a currency permitted under clauses (a) or (b) above;

 

(k)             investment funds investing substantially all of their assets in securities of the type described in clauses (a) through (j) above; and

 

(l)              credit card receivables and debit card receivables so long as same are payable by a financial institution and are considered “cash equivalents” in accordance with GAAP and are so reflected on the Borrower’s balance sheet.

 

Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (a) and (b) above, provided that such amounts are converted into any currency listed in clauses (a) and (b) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.

 

Cash Management Services” means any cash management services or foreign exchange facilities, including, without limitation: (a) ACH transactions; (b) controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services; (c) credit or debit cards; (d) credit card processing services; and (e) purchase cards.

 

 

 

 

Casualty Event” means any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.

 

CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as subsequently amended.

 

CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

 

CFC” means a “controlled foreign corporation” within the meaning of Section 957(a) of the Code.

 

Change in Law” means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty (excluding the taking effect after the Restatement Effective Date of a law, rule, regulation or treaty adopted prior to the Restatement Effective Date), (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority. It is understood and agreed that (i) the Dodd–Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173), all Laws relating thereto, all interpretations and applications thereof and any compliance by a Lender with any request or directive relating thereto and (ii) 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 regulatory authorities, in each case pursuant to Basel III, shall, in each case, for the purposes of this Agreement, be deemed to be adopted and taking effect subsequent to the Restatement Effective Date.

 

Change of Control” means the occurrence of any of the following after the RestatementFourth Amendment Effective Date:

 

(a)             the sale, lease or transfer, in one or a series of related transactions (other than by way of merger or consolidation), of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to any Person other than one or more Permitted Holders; or

 

(b)             the Borrower becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by (i) any Person (other than any Holding Company or one or more Permitted Holders) or (ii) Persons (other than any Holding Company or one or more Permitted Holders) that together are (1) a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), or (2) acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) as a group in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Borrower or any of its direct or indirect parent companiesParent Companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Borrower, in each case, other than in connection with any transaction or series of transactions in which Holdco shall become the Wholly-Owned Subsidiary of a Holding Company; or

 

 

 

 

(c)             any “Change of Control” (or any comparable term) in any document pertaining to (i) the ABL Credit Agreement, (ii) the 2027 Senior Unsecured Notes, the 20202027 Senior SubordinatedSecured Notes, Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness (except to the extent incurred pursuant to a Refinancing Amendment), other Indebtedness (other than any Loan) or any Refinancing Indebtedness in respect of the foregoing, in each case with an aggregate outstanding principal amount in excess of the Threshold Amount or (iii) any Disqualified Stock with an aggregate liquidation preference in excess of the Threshold Amount.;

 

provided that (x) for purposes of this definition the phrase “Person” or “group” shall exclude any employee benefit plan of such “Person” or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (y) notwithstanding anything to the contrary in this definition or any provision of the Exchange Act, (A) if any group includes one or more Permitted Holders or any Holding Company, the issued and outstanding Equity Interests of the Borrower, directly or indirectly owned by any Permitted Holder or Holding Company that is part of such group shall not be treated as being beneficially owned by such group or any other member of such group for purposes of this definition, (B) a Person or group shall be deemed not to beneficially own securities subject to an equity or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the securities in connection with the transactions contemplated by such agreement and (C) a Person or group will be deemed not to beneficially own the Equity Interests of another Person as a result of its ownership of Equity Interests or other securities of such other Person’s parent (or related contractual rights) unless it owns 50% or more of the Voting Stock of such Person’s parent.

 

Civil Code” means the Civil Code of Quebec and all regulations thereunder, as amended from time to time, and any successor statutes.

 

Class” (a) when used with respect to Lenders, refers to whether such Lenders have Loans or Commitments with respect to a particular Class of Loans or Commitments; (b) when used with respect to Commitments, refers to whether such Commitments are Term B Commitments, 2016 New Replacement Term B-1 Loan Commitments, 2016 New Replacement Term B-2 Loan Commitments, 2018 New Replacement2020 New Refinancing Term B Loan Commitments, Incremental Term Commitments of a given Incremental Series, Extended Term Commitments of a given Extension Series, Refinancing Term Commitments of a given Refinancing Series, in each case not designated part of another existing Class; and (c) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are 2020 New Refinancing Term B Loans, 2016 New Replacement Term B-1 Loans, 2016 Converted Replacement Term B-1 Loans, 2016 Replacement Term B-1 Loans, 2016 New Replacement Term B-2 Loans, 2016 Converted Replacement Term B-2 Loans, 2016 Replacement Term B-2 Loans, 2018 New Replacement2020 Converted Refinancing Term B Loans, 2018 Converted Replacement2020 Refinancing Term B Loans, 2018 Replacement Term B Loans, Incremental Term Loans, Extended Term Loans made pursuant to a given Extension Series, or Refinancing Term Loans made pursuant to a given Refinancing Series, in each case not designated part of another existing Class; provided that, (i) with respect to a Borrowing of 20162020 New Replacement Term B-1 Loans incurred on the Initial Second Amendment Effective Date, the 2016 New Replacement Term B-1 Loans shall constitute a separate “Class” at the time of the incurrence thereof; (ii) immediately after the incurrence of 2016 New Replacement Term B-1 Loans and the consummation of the 2016 Replacement Term B-1 Loan Conversion on the Initial Second Amendment Effective Date (and immediately prior to the consummation of the 2016 Replacement Term Loan Conversion), all 2016 New Replacement Term B-1 Loans and all 2016 Converted Replacement Term B-1 Loans shall constitute a single “Class” of 2016 Replacement Term B-1 Loans for all purposes of this Agreement and the other Loan Documents; (iii) with respect to a Borrowing of 2016 New Replacement Term B-2 Loans incurred on the Initial Second Amendment Effective Date, the 2016 New Replacement Term B-2 Loans shall constitute a separate “Class” at the time of the incurrence thereof; (iv) immediately after the incurrence of 2016 New Replacement Term B-2 Loans and the consummation of the 2016 Replacement Term B-2 Loan Conversion on the Initial Second Amendment Effective Date (and immediately prior to the consummation of the 2016 Replacement Term Loan Conversion), all 2016 New Replacement Term B-2 Loans and all 2016 Converted Replacement Term B-2 Loans shall constitute a single “Class” of 2016 Replacement Term B-2 Loans for all purposes of this Agreement and the other Loan Documents; (v) immediately after the transactions described in preceding clauses (ii) and (iv), all 2016 Replacement Term B-2 Loans shall convert into, and become, 2016 Replacement Term B-1 Loans pursuant to the 2016 Replacement Term Loan Conversion and shall, together with all 2016 New Replacement Term B-1 Loans and all 2016 Converted Replacement Term B-1 Loans, constitute a single “Class” of 2016 Replacement Term B-1 Loans for all purposes of this Agreement and the other Loan Documents; (vi) with respect to a Borrowing of 2018 New ReplacementRefinancing Term B Loans incurred on the ThirdFourth Amendment Effective Date, the 20182020 New ReplacementRefinancing Term B Loans shall constitute a separate “Class” at the time of the incurrence thereof; and (viiix) immediately after the incurrence of 20182020 New ReplacementRefinancing Term B Loans and the consummation of the 2018 Replacement2020 Refinancing Term B Loan Conversion on the ThirdFourth Amendment Effective Date, all 20182020 New ReplacementRefinancing Term B Loans and all 20182020 Converted ReplacementRefinancing Term B Loans shall constitute a single “Class” of 2018 Replacement2020 Refinancing Term B Loans for all purposes of this Agreement and the other Loan Documents. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have different terms and conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.

 

 

 

 

Closing Date” means October 31, 2006.

 

Closing Date Transaction” means the “Transaction” as defined in the Existing Credit Agreement.

 

Closing Date Transaction Expenses” means the “Transaction Expenses” as defined in the Existing Credit Agreement.

 

Code” means the U.S. Internal Revenue Code of 1986, as amended, and rules and regulations related thereto.

 

Co-Documentation Agent” means Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Goldman Sachs Bank USA, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley Senior Funding, Inc., and Wells Fargo Securities, LLC, each as a Co-Documentation Agent under this Agreement.

 

Collateral” means all the “Collateral” as defined in any Collateral Document and shall include the Mortgaged Properties.

 

Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Collateral Agent executed by (a) a bailee or other Person in possession of Collateral, and (b) each landlord of real property leased by any Loan Party, pursuant to which such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such real property, (iii) agrees to furnish the Collateral Agent with access to the Collateral in such Person’s possession or on the real property for the purposes of conducting a liquidation and (iv) makes such other agreements with the Collateral Agent as the Collateral Agent may reasonably require.

 

 

 

 

Collateral Agent” means the Administrative Agent, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.

 

Collateral and Guarantee Requirement” means, at any time, the requirement that:

 

(a)             the Administrative Agent shall have received (v) each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.01(a)(iii) of the Existing Credit Agreement, pursuant to Section 4.01 of this Agreement, or pursuant to Section 6.11 at such time as is designated therein, (w) the Intercreditor Agreement, (x) the Additional First Lien Intercreditor Agreement (if then in effect), (y) the Additional Junior Lien Intercreditor Agreement (if then in effect), and (z) any other intercreditor agreement entered into pursuant to the terms of this Agreement (if then in effect), in each case duly executed by each Loan Party thereto;

 

(b)             all Obligations shall have been unconditionally guaranteed by the Borrower (in the case of Obligations under clause (y) of the first sentence of the definition thereof), each Restricted Subsidiary that is a Domestic Subsidiary and not an Excluded Subsidiary and, after the formation thereof, Holdco;

 

(c)             all guarantees issued or to be issued in respect of the 2020 Senior Subordinated Notes shall be subordinated to the Guaranties to the same extent that the 2020 Senior Subordinated Notes are subordinated to the Obligations[reserved];

 

(d)             the Obligations and the Guaranties shall have been secured by a first priority security interest (subject to the terms of the Intercreditor Agreement, the Additional First Lien Intercreditor Agreement (if then in effect), the Additional Junior Lien Intercreditor Agreement (if then in effect) and any other intercreditor agreement entered into pursuant to the terms of this Agreement (if then in effect)) in all Equity Interests (other than Equity Interests of Unrestricted Subsidiaries and any Equity Interest of any Restricted Subsidiary pledged to secure Indebtedness permitted under Section 7.03(b)(xix)) of each Wholly Owned Subsidiary directly owned by any Guarantor; provided that pledges of voting Equity Interests of each Foreign Subsidiary (including each Foreign Subsidiary held by a Canadian Subsidiary Guarantor (if any)) and each Domestic Subsidiary that is described in clause (e)(ii) of the definition of Excluded Subsidiary shall be limited to 65% of the total combined voting power of all Equity Interests of such Foreign Subsidiary at any time; provided further that in the case of any Canadian Subsidiary Guarantor that owns Equity Interests in a Foreign Subsidiary, the pledge of voting Equity Interests of such Canadian Subsidiary Guarantor shall be limited to 65% of the total combined voting power of all Equity Interests of such Canadian Subsidiary Guarantor (or, if such Canadian Subsidiary Guarantor is an unlimited liability company, such lesser percentage as is acceptable to the Collateral Agent);

 

(e)             except to the extent otherwise permitted hereunder or under any Collateral Document, the Obligations and the Guaranties shall have been secured by a security interest in, and mortgages on, substantially all tangible and intangible assets of the Borrower and each other Guarantor (including accounts, inventory, equipment, investment property, contract rights, intellectual property, other general intangibles, owned real property and proceeds of the foregoing), in each case, with the priority required by the Collateral Documents, the Intercreditor Agreement, the Additional First Lien Intercreditor Agreement (if then in effect), the Additional Junior Lien Intercreditor Agreement (if then in effect) and any other intercreditor agreement entered into pursuant to the terms of this Agreement (if then in effect); provided that security interests in real property shall be limited to the Mortgaged Properties;

 

 

 

 

(f)              none of the Collateral shall be subject to any Liens other than Liens permitted by Section 7.04; and

 

 

(g)             the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each owned property required to be delivered pursuant to Section 6.11 (the “Mortgaged Properties”) duly executed and delivered by the record owner of such property, (ii) a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid first priority Lien on the property described therein (subject to the applicable provisions of the Intercreditor Agreement, the Additional First Lien Intercreditor Agreement (if then in effect), the Additional Junior Lien Intercreditor Agreement (if then in effect) and any other intercreditor agreement entered into pursuant to the terms of this Agreement (if then in effect)), free of any other Liens except as expressly permitted by Section 7.04, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request, (iii) such existing surveys, existing abstracts, existing appraisals and other documents as the Administrative Agent may reasonably request with respect to any such Mortgaged Property and (iv) to the extent required by applicable law, flood certificates covering each Mortgaged Property in form and substance reasonably acceptable to the Collateral Agent, certified to the Collateral Agent in its capacity as such and certifying whether or not such Mortgaged Property is located in a flood hazard zone by reference to the applicable FEMA map.

 

The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as, in the reasonable judgment of the Collateral Agent (confirmed in writing by notice to the Borrower), the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom. The Collateral Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

 

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Restatement Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and the Borrower.

 

Collateral Documents” means, collectively, the Security Agreement, the Mortgages, the Canadian Security Agreement (if any), each of the mortgages, collateral assignments, Security Agreement Supplements, Guarantor Consent and Reaffirmation, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent and the Lenders pursuant to Section 6.11 or Section 6.13 and each of the other agreements, instruments or documents that creates or purports to create or affirm a Lien or Guaranty in favor of the Collateral Agent for the benefit of the Secured Parties.

 

 

 

 

Commercial Letter of Credit Facility” means, with respect to the Borrower or any of its Restricted Subsidiaries, a facility or other arrangement with any ABL Lender or any Affiliate of any such ABL Lender (or any Person that was an ABL Lender or an Affiliate of any such ABL Lender at the time the applicable agreement providing for such facility or other arrangement was entered into) providing for the issuance of commercial letters of credit, including any instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals or restatements thereof and any facility or arrangement with any ABL Lender or any Affiliate of any such ABL Lender (or any Person that was an ABL Lender or an Affiliate of any such ABL Lender at the time the applicable agreement providing for such facility or other arrangement was entered into) that replaces all or any part of such facility or arrangement, including any such facility or arrangement that increases the aggregate face value of commercial letters of credit to be issued thereunder, whether by the same or any other issuing bank which is an ABL Lender or an Affiliate of any such ABL Lender (or any Person that was an ABL Lender or an Affiliate of any such ABL Lender at the time the applicable agreement providing for such facility or other arrangement was entered into).

 

Commitment” means a Term B Commitment, a 2016 New Replacement Term B-1 Loan Commitment, a 2016 New Replacement Term B-2 Loan Commitment, a 2018 New Replacement2020 New Refinancing Term B Loan Commitment, an Incremental Term Commitment of a given Incremental Series, an Extended Term Commitment of a given Extension Series, or a Refinancing Term Commitment of a given Refinancing Series, as the context may require.

 

Committed Loan Notice” means a notice of (a) a Borrowing with respect to a given Class of Loans, (b) a conversion of Loans of a given Class from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A attached hereto.

 

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

Company Parties” means the collective reference to any Holdco (after the formation thereof), the Borrower and their Subsidiaries, and “Company Party” means any one of them.

 

Compensation Period” has the meaning specified in Section 2.12(c)(ii).

 

Compliance Certificate” means a certificate substantially in the form of Exhibit D attached hereto.

 

Consolidated Depreciation and Amortization Expense” means, with respect to any Person for any period, the total amount of depreciation and amortization expense of such Person and its Restricted Subsidiaries, including the amortization of intangible assets, deferred financing fees, debt issuance costs, commissions, fees and expenses and the amortization of Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.

 

 

 

 

Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

 

(a)                consolidated interest expense of such Person and its Restricted Subsidiaries forpaid or payable in respect of such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par,; (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or, bank guarantees, bankers acceptances, or any similar facility or financing and hedging agreements; (iii) non-cash interest payments (but excluding any non cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP),; (iv) the interest component of CapitalizedFinance Lease Obligations, and (v) net payments, if any, made (less net payments, if any, received) pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (A) penalties and interest related to taxes,; (B) any additional interest with respect to any Indebtedness due to the failure to comply with any registration rights agreement relating to such Indebtedness, (C) amortization of deferred financing fees, debt issuance costs, discounted liabilities, commissions, fees and expenses,; (DC) any expensing of bridge, commitment and other financing fees,; (E) any prepayment premium or penalty, and (FD) commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility; (E) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting); (F) any prepayment premium or penalty; (G) agency and trustee fees paid to any agent or trustee under any credit facilities or other debt instruments or documents, (H) fees and costs associated with obtaining Hedging Obligations and breakage costs in respect of Hedging Obligations related to interest rates and (I) any lease, rental or other expense in connection with a Non-Finance Lease Obligation); plus

 

(b)                consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less

 

(c)                interest income of such Person and its Restricted Subsidiaries for such period.

 

For purposes of this definition, interest on a CapitalizedFinance Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Personthe Borrower to be the rate of interest implicit in such CapitalizedFinance Lease Obligation in accordance with GAAP.

 

Consolidated Net Income” means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication,

 

(a)             any after-tax effect of extraordinary, non–recurring or unusual gains or, income, losses, expenses or charges (less all fees and expenses relating thereto) or expenses, Closing Date Transaction Expenses to the extent incurred on or prior to December 31, 2007,Fourth Amendment Transaction Expenses, severance costs, relocation costs, costs related to the Perfect Store Initiative, Hybrid Distribution Network Costs, pre-opening, opening, consolidation and closing costs for any facilities (including Stores), signing, retention or completion bonuses or recruiting costs, transition costs, costs incurred in connection with acquisitions after the Closing Date(whether or not consummated), restructuring costs, Specified Legal Expenses, integration and systems establishment costs, and curtailments or modifications to pension and post–retirement employee benefit plans shall be excluded,

 

(b)             the Net Income for such period shall not include the cumulative effect of a change in accounting principles during such period,

 

(c)             any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,

 

 

 

 

(d)             any after–tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions other than in the ordinary course of business, as determined in good faith by the Borrower, shall be excluded,

 

(e)             the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the Borrower shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period by such Person,

 

(f)              solely for the purpose of determining the amount available for Restricted Payments under clause (iii)(A) of Section 7.02(a) hereof, the Net Income for such period of any Restricted Subsidiary (other than any Subsidiary Guarantor) shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived,; provided that Consolidated Net Income of the Borrower will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) to the Borrower or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,

 

(g)             effects of adjustments (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries) resulting from the application of purchase accounting (including, but not limited to, adjustments in the merchandise inventory, property and equipment, intangible assets, goodwill, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to the Closing Date Transaction or any consummated acquisition or investment) or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,

 

(h)             any after–tax effect of income (loss) from the early extinguishment or conversion of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,

 

(i)              any impairment charge or asset write-off or write-down, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,

 

(j)              any non-cash compensation charge or expense including any such charge or expense arising from the grant of stock appreciation or similar rights, stock options, restricted stock or other equity-incentive programs shall be excluded,

 

(k)             any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of Indebtedness, issuance of Equity Interests (including in any initial public offering of the Borrower or Holdco), refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Closing Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,

 

 

 

 

(l) accruals and reserves that are established within twelve months after the Closing Date that are so required to be established as a result of the Transaction in accordance with GAAP shall be excluded,

 

(l)      (m) any unrealized net gain or loss (after any offset) resulting in such period from currency transaction or translation gains or losses including those related to currency remeasurements of Indebtedness (including any net loss or gain resulting from (i) Swap Contracts for currency exchange risk and (ii) resulting from intercompany indebtedness) and any other foreign currency transaction or translation gains and losses, to the extent such gains or losses are non-cash items, shall be excluded, and

 

(n)       any unrealized net gains and losses (after any offset) resulting from Swap Contracts or embedded derivatives that require similar accounting treatment and the application of Accounting Standards Codification Topic No. 815, Derivatives and Hedging shall be excluded.

 

In addition, to the extent not already included in the Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any Permitted Investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder.

 

Notwithstanding the foregoing, for the purpose of Section 7.02 only (other than Section 7.02(a)(iii)(D)), there shall be excluded from Consolidated Net Income any income arising from any sale or other disposition of Restricted Investments made by the Borrower and its Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Borrower and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted Investments by the Borrower or any of its Restricted Subsidiaries, any sale of the stock of an Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each case only to the extent such amounts increase the amount of Restricted Payments permitted pursuant to Section 7.02(a)(iii)(D).

 

Consolidated Secured Debt Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Total Indebtedness of the Borrower and its Restricted Subsidiaries that is secured by Liens as at the last day of the Relevant Reference Period minus (ii) the aggregate amount of Unrestricted cash and Cash Equivalents included on the consolidated balance sheet of the Borrower and any Restricted Subsidiaries as of such date to (b) the Borrower’s EBITDA for the Relevant Reference Period. Notwithstanding anything to the contrary herein, for purposes of the calculation of the Consolidated Secured Debt Ratio used in determining the availability of Incremental Facilities or Incremental Equivalent Debt, (i) any Incremental Facilities or Incremental Equivalent Debt that are or is unsecured and any refinancing thereofthat is incurred under clause (C) of “Available Incremental Amount” and any refinancings thereof pursuant to Section 7.03(b)(xxii)(B), (xxiii) or (xxiv) shall nevertheless be deemed to be secured on a pari passu basis with the 2018 Replacement2020 Refinancing Term B Loans and (ii) any cash proceeds of any Incremental Facility or Incremental Equivalent Debt then being incurred will not be netted for purposes of determining compliance with the Consolidated Secured Debt Ratio.

 

 

 

 

Consolidated Total Indebtedness” means, as at any date of determination, an amount equal to the remainder of (i) the sum of, without duplication, (a) the aggregate amount of all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries on a consolidated basis consisting only of Indebtedness for borrowed money, Obligations in respect of CapitalizedFinance Lease Obligations and debt obligations evidenced by promissory notes, bonds, debentures, letters of credit, bankers’ acceptances and similar instrumentspurchase money Indebtedness (and excluding, for the avoidance of doubt, (x) any undrawn letters of credit, bank guarantees and bankers’ acceptances and reimbursement obligations thereunder, except to the extent of reimbursement obligations in respect of commercial and tradedrawn standby letters of credit andwhich have not been reimbursed within three Business Days, (y) all obligations relating to Receivables Facilities), and (z) Hedging Obligations) and (b) the aggregate amount of all outstanding Disqualified Stock of the Borrower and all Preferred Stock of its Restricted Subsidiaries on a consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences and maximum fixed repurchase prices, in each case determined on a consolidated basis in accordance with GAAP, and (c) any Contingent Obligations of the Borrower and its Restricted Subsidiaries in respect of the obligations described in clauses (a) and (b) above, less(ii) the aggregate amount of Unrestricted cash and Cash Equivalents included on the consolidated balance sheet of the Borrower and any Restricted Subsidiaries as of such date. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock or Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be determined pursuant to this Agreement, and if such price is based upon, or measured by, the fair market value of such Disqualified Stock or Preferred Stock, such fair market value shall be determined reasonably and in good faith by the Borrower.

 

Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) (i) Consolidated Total Indebtedness of the Borrower and its Restricted Subsidiaries as at the last day of the Relevant Reference Period minus(ii) the aggregate amount of Unrestricted cash and Cash Equivalents included on the consolidated balance sheet of the Borrower and any Restricted Subsidiaries as of such date to (b) the Borrower’s EBITDA for the Relevant Reference Period.

 

Consolidated Working Capital” means, at any date, the excess of (a) the sum of all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries at such date over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and the Restricted Subsidiaries on such date, including deferred revenue but excluding in each case, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans, ABL Loans and CapitalizedFinance Lease Obligations, to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.

 

Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.

 

Contract Consideration” has the meaning set forth in the definition of “Excess Cash Flow”.

 

 

 

 

Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

Control” has the meaning specified in the definition of “Affiliate.”

 

Controlled Investment Affiliate” means, as to any Person, any other Person, other than any Investor, which directly or indirectly is in control of, is controlled by, or is under common control with such Person and is organized by such Person (or any Person controlling such Person) primarily for making direct or indirect equity or debt investments in the Borrower and/or other companies.

 

Corrective Extension Amendment” has the meaning provided in Section 2.16.

 

Covered Entity” means any of the following:

 

a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

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 in Section 10.27.

 

Credit Agreement Refinancing Indebtedness” means any (a) Permitted First Priority Refinancing Debt, (b) Permitted Junior Priority Refinancing Debt, (c) Permitted Unsecured Refinancing Debt or (d) other Indebtedness incurred pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace, repurchase, retire or refinance, in whole or part, then existing Loans of a given Class (including any successive Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”); provided that (i) such exchanging, extending, renewing, replacing, repurchasing, retiring or refinancing Indebtedness is in an original aggregate principal amount (or accreted value, if applicable) not greater than the aggregate principal amount (or accreted value, if applicable) of the Refinanced Debt except by an amount equal to unpaid accrued interest and premium (including tender premiums) and penalties thereon plus other reasonable amounts paid, and fees, expenses and original issue discount reasonably incurred, in connection with such exchanging, extending, renewing, replacing, repurchasing, retiring or refinancing Indebtedness, (ii) such Indebtedness has an equal or a later maturity and a Weighted Average Life to Maturity equal to or greater than that of the Refinanced Debt (other than due to prior scheduled amortization or prepayments of the Refinanced Debt), and (iii) unless such Credit Agreement Refinancing Indebtedness is incurred solely by means of extending or renewing then existing Indebtedness described in clause (a), (b) or (c) above without resulting in any Net Proceeds, such Refinanced Debt shall be repaid, repurchased, retired, defeased or satisfied and discharged with 100% of the Net Proceeds from any Credit Agreement Refinancing Indebtedness, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained.

 

Debt Prepayment” means the prepayment by the Borrower on the Closing Date of any and all Indebtedness outstanding under the Prior Credit Agreement.

 

 

 

 

 

Debtor Relief Laws” means the Bankruptcy Code of the United States, the Companies’ Creditors Arrangement Act of Canada, the Bankruptcy and Insolvency Act of Canada, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Declined Excess Proceeds” has the meaning specified in Section 2.05(c)(v).

 

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.

 

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 any Lender that (a) has failed to fund any portion of the Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, unless the subject of a good faith dispute or subsequently cured, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, unless the subject of a good faith dispute or subsequently cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

 

Designated Non-cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Borrower, less the amount of Cash Equivalents received in connection with a subsequent sale, redemption, repurchase of or collection or payment on, such Designated Non-cash Consideration.

 

Designated Preferred Stock” means Preferred Stock of the Borrower or any parent company thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Borrower or the applicable parent company thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in Section 7.02(a)(iii).

 

Designation Effective Date” has the meaning specified in the definition of “Disqualified Institution”.

 

Discount Prepayment Accepting Lender” has the meaning specified in Section 2.05(a)(iii)(B)(2).

 

Discount Range” has the meaning specified in Section 2.05(a)(iii)(C)(1).

 

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Discount Range Prepayment Amount” has the meaning specified in Section 2.05(a)(iii)(C)(1).

 

Discount Range Prepayment Notice” means a written notice of a Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Section 2.05(a)(iii)(C) substantially in the form of Exhibit M attached hereto.

 

Discount Range Prepayment Offer” means the irrevocable written offer by a Lender, substantially in the form of Exhibit N attached hereto, submitted in response to an invitation to submit offers following the Auction Agent’s receipt of a Discount Range Prepayment Notice.

 

Discount Range Prepayment Response Date” has the meaning specified in Section 2.05(a)(iii)(C)(1).

 

Discount Range Proration” has the meaning specified in Section 2.05(a)(iii)(C)(3).

 

Discounted Prepayment Determination Date” has the meaning specified in Section 2.05(a)(iii)(D)(3).

 

Discounted Prepayment Effective Date” means in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offer or Borrower Solicitation of Discounted Prepayment Offer, five (5) Business Days following the Specified Discount Prepayment Response Date, the Discount Range Prepayment Response Date or the Solicited Discounted Prepayment Response Date, as applicable, in accordance with Section 2.05(a)(iii)(B)(1), Section 2.05(a)(iii)(C)(1) or Section 2.05(a)(iii)(D)(1), respectively, unless a shorter period is agreed to between the Borrower and the Auction Agent.

 

Discounted Term Loan Prepayment” has the meaning specified in Section 2.05(a)(iii)(A).

 

Disposition” has the meaning set forth in the definition of “Excess Cash Flow”.

 

Disqualified Institutions” means (a) any banks, financial institutions or other Persons separately identified in writing by the Borrower to the Fourth Amendment Lead Arrangers prior to September 9, 2020 or as mutually agreed between the Borrower and the Administrative Agent on and after the Fourth Amendment Effective Date, or to any affiliates of such banks, financial institutions or other Persons that are readily identifiable as affiliates solely by virtue of their names or that are identified to the Administrative Agent in writing by the Borrower from time to time (it being understood that no such identification after the Fourth Amendment Effective Date shall apply retroactively to disqualify any parties that have previously acquired a valid assignment or participation interest in the 2020 Refinancing Term B Loans), (b) any competitors of the Borrower or any of its Subsidiaries identified in writing by the Borrower to the Administrative Agent from time to time (and affiliates of such Persons that are readily identifiable as affiliates solely by virtue of their names or that are identified to the Administrative Agent in writing by the Borrower from time to time (other than bona fide diversified debt funds primarily investing in commercial loans, notes, bonds or similar extensions of credit or securities in the ordinary course of business and whose managers have fiduciary duties to the investors therein independent of or in addition to their duties to such competitor or any of its Affiliates)) (it being understood that no such identification after the date hereof shall apply retroactively to disqualify any parties that have previously acquired a valid assignment or participation interest in the 2020 Refinancing Term B Loans) or (c) to Excluded Affiliates; provided that, notwithstanding anything herein to the contrary, (i) “Disqualified Institution” shall exclude any Person identified by the Borrower as no longer being a “Disqualified Institution” by written notice to the Administrative Agent, and (ii) in no event shall the designation of any Person as a Disqualified Institution apply (x) to disqualify any Person until three (3) Business Days after such Person shall have been identified in writing to the Administrative Agent via electronic mail submitted to JPMDQ_Contact@jpmorgan.com (or to such other address as the Administrative Agent may designate to the Borrower from time to time) (the “Designation Effective Date”), or (y) retroactively to disqualify any Person that, prior to the Designation Effective Date, has acquired an assignment or participation interest under this Agreement.

 

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Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, (a) matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale, so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable), in whole or in part, or (b) provides for the scheduled payments of dividends in cash, in each case prior to the date 91 days after the earlier of the Latest Maturity Date at the time such Disqualified Stock is first issued or the date Loans are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.

 

Disposition” has the meaning set forth in the definition of “Excess Cash Flow”.

 

Disqualified Institutions” means any banks, financial institutions or other Persons separately identified by the Borrower to the Arrangers in writing prior to the Restatement Effective Date.

 

Dollar” and “$” mean lawful money of the United States.

 

Domestic Subsidiary” means (i) any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia and (ii) unless otherwise expressly provided herein, each Canadian Subsidiary that, in the sole discretion of the Borrower, elects to become (and, upon such election, becomes) a Canadian Subsidiary Guarantor.

 

Domestic Subsidiary Guarantors” means, collectively, each Domestic Subsidiary of the Borrower that is not a Canadian Subsidiary and that shall have entered into the Subsidiary Guaranty and complied with the requirements of clause (b) of the definition of “Collateral and Guarantee Requirement”.

 

Early Opt-in Election” means, if the then-current Benchmark is LIBO Rate, the occurrence of:

 

(1)(i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 3.03 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate, and

 

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(2)(i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

 

EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person and its Restricted Subsidiaries for such period.:

 

(a)             increased (without duplication) by:

 

(i)                 provision for taxes based on income or profits or capital (including pursuant to any tax sharing or tax distribution arrangements), including, without limitation federal, state, local, provincial, foreign, excise, franchise, property and similar taxes (such as the Pennsylvania capital tax and Texas margin tax) and foreign withholding taxes ofand foreign unreimbursed value added taxes (including, in each case, penalties and interest related to such taxes or arising from tax examinations) of or with respect to such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus

 

(ii)               Fixed Charges of such Person for such period plus bank fees and costs of surety bonds in connection with financing activities, plus amounts excluded from Consolidated Interest Expense as set forth in clauses (A), (B), (C), (D), (E) and, (F), (G) and (H) in the definition thereof, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus

 

(iii)             Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same was deducted (and not added back) in computing Consolidated Net Income; plus

 

(iv)              any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, Permitted Investment, acquisition, disposition, recapitalization or any other transaction, including the incurrence of Indebtedness permitted to be incurrednot prohibited by this Agreement (including any refinancing or amendment thereof) (in each case, whether or not successful) (including any such transaction occurring prior to, on, or after, the Fourth Amendment Effective Date), including (A) such fees, expenses or charges related to this Agreement andthe Previous Transactions or the Transactions, including with respect to the ABL Credit Agreement, the 2027 Senior Unsecured Notes, the 2027 Senior Secured Notes and this Agreement, and (B) any amendment or other modification of theany documentation related to the ABL Credit Agreement, the other ABL Loan Documents, the 2027 Senior Unsecured Notes, the 20202027 Senior SubordinatedSecured Notes, this Agreement, the other Loan Documents, the ABL Credit Agreement and theany other ABL Loan Documentspermitted Indebtedness, in each case, deducted (and not added back) in computing Consolidated Net Income; plus

 

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(v)                the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Incomecosts, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings (including sourcing), operating expense reductions, operating improvements, product margin synergies and product cost and other synergies and similar initiatives, integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, restructuring costs (including those related to tax restructurings), charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives, operating expense reductions, business optimization and other restructuring costs, charges, accruals, reserves and expenses (including, without limitation, inventory optimization programs, software development costs, the opening, closure, relocation and/or consolidation of facilities and plants, unused warehouse space costs, costs related to entry into new markets, and consulting and other professional fees, signing or retention costs, retention or completion charges or bonuses, relocation expenses, severance payments, curtailments and modifications to or losses on settlement of pension and post-retirement employee benefit plans, excess pension charges, pension related charges under FASB ASC 715, accretion of asset retirement obligations in accordance with FASB ASC 410, contract termination costs, future lease commitments, new system design and implementation costs and project startup costs and expenses attributable to the implementation of cost savings initiatives and professional and consulting fees incurred in connection with any of the foregoing); plus

 

(vi)              any other non cash charges, expenses or losses, including (v) any write-offs or write-downs, (w) equity-based awards compensation expense, (x) losses on sales, disposals or abandonment of, or any impairment charge or asset write off related to, intangible assets, long-lived assets and investments in debt and equity securities, (y) all losses from investments recorded using the equity method, and (z) other non-cash charges, non-cash expenses or non-cash losses, in each case reducing Consolidated Net Income for such period (provided that if any such non-cash charges, expenses or losses represent an accrual or reserve for potential cash items in any future period, (1) the Borrower may determine not to add back such non-cash charge in the current period and (2) to the extent the Borrower does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent), and excluding amortization of a prepaid cash item that was paid in a prior period); plus

 

(vii)            the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity or non-controlling interests of third parties in any non-Wholly Owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus

 

(viii)          the amount of management, monitoring, consulting, transaction, advisory and other fees (including termination fees) and related indemnities and expenses paid or accrued in such period to the Investors to the extent otherwise permitted under Section 7.07 and to the extent deducted (and not added back) in such period in computing Consolidated Net Income; plus

 

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(ix)              the amount of “run rate” net cost savings, synergies and operating expense reductions projected by the Borrower in good faith to be realized as a result of specified actions taken, committed to be taken or with respect to which substantial steps have been taken or are expected in good faith to be taken no later than eighteen (18) months after the end of the period (calculated on a pro forma basis as though such cost savings, operating expense reductions and/or synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and/or synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (x) such cost savings, synergies and operating expense reductions are reasonably identifiable and factually supportable (it is understood and agreed that “run-rate” means the full recurring benefit for a period that is associated with any action taken, committed to be taken or with respect to which substantial steps have been taken or are expected to be taken) and (y); provided that the aggregate amount of cost savings added pursuant to this clause (ix) shall not exceed 10.025.0% of EBITDA determined on a pro forma basis for any four consecutive quarter period (which adjustments may be incremental to pro forma adjustments made pursuant to Section 1.10); plus

 

(x)                the amount of loss on sale of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility; plus

 

(xi)              (i) any charges, costs or expense, expenses, accruals or reserves incurred by the Borrower or a Restricted Subsidiary pursuant to any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or agreement or, pension plan or other long-term or post-employment benefit, any stock subscription or shareholder agreement, or any distributor equity plan or agreement, including any fair value adjustments that may be required under liquidity puts for such arrangements and (ii) any charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by management of the Borrower, any Parent Company and/or any of its subsidiaries, in each case to the extent that such cost orcharges, costs, expenses, accruals or reserves are funded with cash proceeds contributed to the capital of the Borrower or net cash proceeds of anas a result of capital contribution or as a result of the sale or issuance of Equity Interests of the BorrowerCapital Stock (other than Disqualified Stock) of the Borrower solely to the extent that such net cash proceeds are excluded from the calculation set forth in Section 7.02(a)(iii); plus

 

(xii)            any net loss from disposed or discontinued operations; plus

 

(xiii)          cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing EBITDA or Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of EBITDA pursuant to clause (b) below for any previous period and not added back; andplus

 

(xiv)         earn-out and contingent consideration obligations incurred or accrued in connection with any acquisition or other Permitted Investment and paid or accrued during such period and on similar acquisitions and Permitted Investments completed prior to the Fourth Amendment Effective Date; plus

 

(xv)           with respect to any joint venture that is not a Restricted Subsidiary, an amount equal to the proportion of those items described in clauses (i) to (iii) above relating to such joint venture corresponding to such Person’s and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary); plus

 

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(xvi)         at the option of the Borrower, (A) the excess of GAAP rent expense over actual cash rent paid, including the benefit of lease incentives (in the case of a charge) during such period due to the use of straight line rent or the application of fair value adjustments made as a result of recapitalization or purchase accounting, in each case, for GAAP purposes, (B) the non-cash amortization of tenant allowances and (C) the cash portion of sublease rentals received by such Person; provided that, in each case, if any such non-cash charge represents an accrual or reserve for potential cash items in any future period, such Person may determine not to add back such non-cash charge in the current period; plus

 

(xvii)       the amount of travel expenses, payroll taxes, indemnification payments, director’s fees and any other charges, costs, expenses, accruals or reserves incurred in connection with, or amounts payable to, any director of the Board of Directors of the Borrower or its parent entities in connection with such director serving as a member of such board of directors and performing his or her duties in respect thereof; and

 

(b)             decreased (without duplication), in each case to the extent included in arriving at such Consolidated Net Income, by:

 

(i)                 non–cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase EBITDA in such prior period, plus

 

(ii)               any net income from disposed or discontinued operations; and

 

(c)             increased or decreased by (without duplication), as applicable, any adjustments resulting from the application of FASB Interpretation No. 45 (Guarantees).

 

For purposes of calculating EBITDA for any period, the impact of changes in estimates for inventory cost capitalization and the initial adoption of an accounting policy for gift card breakage made in the fourth quarter of fiscal year 2005 shall be excluded.

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

 

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

Effective Date Refinancing” has the meaning specified in Section 10.23.

 

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Effective Yield” means, as to any Loans of any Class, the effective yield on such Loans as determined by the Administrative Agent, taking into account the applicable interest rate margins, any interest rate floors or similar devices and all fees, including upfront or similar fees or original issue discount (amortized over the shorter of (x) the remaining life of such Loans and (y) the four years following the date of incurrence thereof) payable generally to Lenders making such Loansor other institutions providing such Indebtedness, but excluding (i) any arrangement, underwriting, structuring, commitment or other similarunused line, success, advisory, ticking and commitment fees payable in connection therewith (regardless of whether shared or paid, in whole or in part, with or to any or all lenders), (ii) other fees payable in connection therewith that are not generally shared with thepaid to all relevant Lenders and customarylenders providing such Indebtedness of such type and (iii) if applicable, consent or waiver fees for an amendment paid generally to consenting or waiving Lenders. For purposes of calculating the Effective Yield of the 2016 Replacement Term B-1 Loans pursuant to Section 2.17(e)(ii), the original issue discount of the 2016 Replacement Term B-1 Loans shall be deemed to be 0.075%. For purposes of calculating the Effective Yield of the 2018 Replacement2020 Refinancing Term B Loans pursuant to Section 2.17(e)(iii)ii) or determining whether a “Repricing Transaction” has occurred, the original issue discount of the 2018 Replacement2020 Refinancing Term B Loans shall be deemed to be 0.001.50%.

 

Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

 

Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b); provided that in any event, “Eligible Assignee” shall not include any natural person.

 

EMU” means the economic and monetary union as contemplated in the Treaty on European Union.

 

Environmental Laws” means any and all Federal, state, provincial, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution, the protection of the environment, natural resources, or, to the extent relating to exposure to Hazardous Materials, human health or to the release of any materials into the environment, including those related to Hazardous Materials, air emissions and discharges to waste or public systems.

 

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

 

Equity Contributions” means the contribution on the Closing Date of cash in an aggregate amount of not less than $1,630,000,000 to the MergerCos as common equity and/or preferred equity.

 

Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

 

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Equity Offering” means any public or private sale of common stock or Preferred Stock of the Borrower or any of its direct or indirect parent companiesParent Companies (excluding Disqualified Stock), other than (a) public offerings with respect to the Borrower’s or any direct or indirect parent company’sParent Company’s common stock registered on Form S-8; (b) issuances to any Subsidiary of the Borrower; and (c) any such public or private sale that constitutes an Excluded Contribution.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control, together with any Loan Party within the meaning of, is treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

 

ERISA Event” means, in the case of a Plan or Multiemployer Plan subject to ERISA, (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or; (d) the receipt by any Loan Party or any ERISA Affiliate of written notification that a Multiemployer Plan is in reorganization, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA) or in endangered or critical status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (de) the filing of a written notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings in writing by the PBGC to terminate a Pension Plan or Multiemployer Plan; (ef) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (fg) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate or (gh) the failure of any Pension Plan to satisfy the minimum funding standard required for any plan year or part thereof under SectionSections 412 or 430 of the Code or Section 302 of ERISA or a waiver of such standard or extension of any amortization period is sought or granted under Section 412 of the Code or Section 302 or 303 or 304 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.

 

euro” means the single currency of participating member states of the EMU.

 

Eurocurrency” when used in reference to any Loan or Borrowing, means that such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Eurocurrency Rate.

 

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Eurocurrency Rate” means, for any Interest Period with respect to any Eurocurrency Rate Loan, the rate per annum determined by the Administrative Agent, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of such Interest Period by reference to the ICE Benchmark Administration Interest Settlement Rates for deposits in Dollars (as set forth by any service selected by the Administrative Agent which has been nominated by the ICE Benchmark Administration as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provision of this definition, the “Eurocurrency Rate” shall be the interest rate per annum, determined by the Administrative Agent to be a rate at which the Administrative Agent could borrow funds in the London interbank market in London, England at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the beginning of such Interest Period, were it to do so by asking for and then accepting offers in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loans for which the Eurocurrency Rate is then being determined and with maturities comparable to such Interest Periodan interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided, further, that, (i) solely with respect to the 2016 Replacement Term B-1 Loans and the 2018 Replacement2020 Refinancing Term B Loans, the Eurocurrency Rate shall be deemed to not be less than 1.000.75% per annum and (ii) in no event shall the Eurocurrency Rate be less than 0.00%.

 

Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate.

 

Event of Default” has the meaning specified in Section 8.01.

 

Excess Cash Flow” means, for any period, an amount equal to the excess of:

 

(a)             the sum, without duplication, of:

 

(i)                 Consolidated Net Income for such period,

 

(ii)               an amount equal to the amount of all non-cash charges incurred during such period, to the extent deducted in arriving at such Consolidated Net Income, but excluding any such non-cash charges and expenses representing an accrual or reserve for potential items in any future period and excluding amortization of a prepaid cash item that was paid in a prior period,

 

(iii)             decreases in Consolidated Working Capital and long-term account receivables for such period (other than any such decreases arising from Acquisitions by the Borrower and the Restricted Subsidiaries completed during such period), and

 

(iv)              an amount equal to the aggregate net non-cash loss on the sale, lease, transfer or other disposition (each, a “Disposition”) of assets by the Borrower and its Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; over

 

(b)             the sum, without duplication, of:

 

(i)                 an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and cash losses, charges and expenses added back to Consolidated Net Income pursuant to clauses (a) through (n) of the definition thereof,

 

(ii)               without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the amount of Capital Expenditures made in cash during such period, except to the extent that such Capital Expenditures were financed with the proceeds of Indebtedness of the Borrower or the Restricted Subsidiaries,

 

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(iii)             the aggregate amount of all principal payments of Indebtedness of the Borrower and the Restricted Subsidiaries (including (A) the principal component of payments in respect of CapitalizedFinance Lease Obligations, (B) the amount of any mandatory prepayment of Loans pursuant to Section 2.05(c) with the proceeds of an Asset Sale, to the extent such Asset Sale resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase and (C) the amount of all voluntary prepayments of Loans made pursuant to Section 2.05(a)(iii), in an amount equal to the discounted amount actually paid in cash in respect of the principal amount of such Loans, but excluding all other prepayments of Loans) made during such period (other than (x) in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder and (y) in respect of any Other Applicable Indebtedness, to the extent such principal payment reduces the amount owing to the Lenders under Section 2.05(b)(i) pursuant to the proviso set forth therein), except to the extent financed with the proceeds of other Indebtedness of the Borrower or the Restricted Subsidiaries,

 

(iv)              an amount equal to the aggregate net non-cash gain on the Disposition of assets by the Borrower and the Restricted Subsidiaries during such period (other than Dispositions in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income,

 

(v)                increases in Consolidated Working Capital and long-term account receivables for such period (other than any such increases arising from Acquisitions by the Borrower and the Restricted Subsidiaries during such period),

 

(vi)              cash payments by the Borrower and the Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and the Restricted Subsidiaries other than Indebtedness,

 

(vii)            the amount of Investments and Acquisitions made during such period pursuant to clauses (c), (e), (h) and (m) of the definition of Permitted Investments to the extent such Investments and Acquisitions were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries,

 

(viii)          the amount of Restricted Payments paid during such period pursuant to Sections 7.02(a), 7.02(b)(iv), (x), (xi), (xiii), (xv), (xix) and (xx) to the extent such Restricted Payments were financed with internally generated cash flow of the Borrower and the Restricted Subsidiaries; provided, however, that in the case of Restricted Payments made pursuant to Section 7.02(a), the deduction pursuant to this clause (viii) shall not exceed an amount equal to Consolidated Net Income for such period,

 

(ix)              the aggregate amount of expenditures actually made by the Borrower and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees), to the extent that such expenditures were not expensed during such period,

 

(x)                the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are required to be made in connection with any prepayment of Indebtedness,

 

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(xi)              without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration (to the extent to be funded by internally generated cash) required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Acquisitions or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Acquisitions or Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,

 

(xii)            the amount of cash taxes paid and, without duplication, cash distributions for payment of taxes, in such period, to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period, and

 

(xiii)          cash expenditures made in respect of Swap Contracts to the extent not reflected in the computation of Consolidated Net Income for such period.

 

Excess Cash Flow Period” shall mean each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending on January 2729, 20142022.

 

Excess Proceeds” has the meaning set forth in Section 2.05(c)(ii).

 

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

Excluded Affiliate” means any members of any deal team of any Agent or Affiliates of such Agent that are engaged as principals primarily in private equity, mezzanine financing or venture capital, other than a limited number of senior employees who are required, in accordance with industry regulations or such Agent’s or Affiliate’s internal policies and procedures to act in a supervisory capacity and the Agents’ and Affiliates’ respective internal legal, compliance, risk management, credit or investment committee members.

 

Excluded Contribution” means net cash proceeds, marketable securities or Qualified Proceeds received by the Borrower from (a) contributions to its common equity capital, and (b) the sale (other than to a Subsidiary of the Borrower or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Borrower, in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Borrower on the date such capital contributions are made or the date such Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in Section 7.02(a)(iii).

 

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Excluded Subsidiary” means (a) any Subsidiary that is not a Wholly-Owned Subsidiary, (b) any Receivables Subsidiary, (c) each Subsidiary listed on Schedule 1.01E hereto, (d) any Subsidiary that is prohibited by applicable Law or Contractual Obligation existing on the Restatement Effective Date (or, in the case of any Subsidiary acquired after the Restatement Effective Date, any Contractual Obligation in existence at the time of the acquisition of such Subsidiary but not entered into in contemplation thereof) from guaranteeing the Obligations, (e) any Domestic Subsidiary that is (i) a Subsidiary of a Foreign Subsidiary that is a CFC or (ii) a Foreign Subsidiary Holding Company, (f) any Restricted Subsidiary acquired pursuant to an Acquisition permitted hereunder financed with Secured Indebtedness incurred pursuant to Section 7.03(b)(xix) and each Restricted Subsidiary thereof that guarantees such Indebtedness; provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (f) if such Secured Indebtedness is repaid or becomes unsecured or if such Restricted Subsidiary ceases to guarantee such Secured Indebtedness, as applicable, (g) any Immaterial Subsidiary and (h) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Borrower), the cost or other consequences (including any adverse tax consequences) of providing a Guaranty shall be excessive in view of the benefits to be obtained by the Lenders therefrom.

 

Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof or obligations thereunder) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty, obligations or security interest is or becomes illegal.

 

Executive Order” means Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)).

 

Existing Credit Agreement” has the meaning specified in the preliminary statements to this Agreement.

 

Existing Term Loan Tranche” has the meaning provided in Section 2.16.

 

Extended Term Commitments” means one or more commitments hereunder to convert Loans under an Existing Term Loan Tranche to Extended Term Loans of a given Extension Series pursuant to an Extension Amendment.

 

Extended Term Loans” has the meaning provided in Section 2.16.

 

Extending Term Lender” has the meaning provided in Section 2.16. 

 

Extension” means any establishment of Extended Term Commitments and Extended Term Loans pursuant to Section 2.16 and the applicable Extension Amendment.

  

Extension Amendment” has the meaning provided in Section 2.16.

 

Extension Election” has the meaning provided in Section 2.16.

  

Extension Minimum Condition” means a condition to consummating any Extension that a minimum amount (to be determined and specified in the relevant Extension Request, in the Borrower’s sole discretion) of any or all applicable Classes of Loans be submitted for Extension.

  

Extension Request” has the meaning provided in Section 2.16.

 

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Extension Series” has the meaning provided in Section 2.16.

  

Facility” or “Facilities” means the Loans made pursuant to Section 2.01, a given Class of Incremental Term Loans, a given Extension Series of Extended Term Loans, or a given Refinancing Series of Refinancing Term Loans, as the context may require.

  

Fair Market Value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Borrower in good faith; provided that if the fair market value is equal to or exceeds $200,000,000, such determination shall be made by the Board of Directors of the Borrower, in which case the determination of the Board of Directors shall be deemed conclusive for purposes of this Agreement.

 

FATCAmeans sections 1471, 1472, 1473 and 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 promulgated thereunder and published guidance with respect thereto and any agreements entered into pursuant to Section 1471(b)(1) of the Code or otherwise pursuant to any of the foregoing.

 

Federal Funds Effective Rate means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.

 

Finance Lease” shall mean, as applied to any Person, any lease of any property (whether real, personal, or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to be, accounted for as a finance lease on the balance sheet of that Person.

 

Finance Lease Obligation” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a Finance Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided that Finance Lease Obligations shall, for the avoidance of doubt, exclude all Non-Finance Lease Obligations.

 

Financial Incurrence Test” has the meaning set forth in Section 1.10(g).

 

First Amendment” means that certain First Amendment to Amended and Restated Credit Agreement, dated as of June 10, 2014, by and among the Borrower, the Guarantors party thereto, the various Lenders party thereto and the Administrative Agent.

 

First Amendment Effective Date” has the meaning provided in the First Amendment.

 

Fixed Amounts” has the meaning set forth in Section 1.10(g).

 

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Fixed Basket” has the meaning set forth in Section 1.10(g).

 

Fixed Charge Coverage Ratio” means, with respect to any Person for any Relevant Reference Period, the ratio of EBITDA of such Person for such Relevant Reference Period to the Fixed Charges of such Person for such Relevant Reference Period.

 

Fixed Charge Coverage Ratio Incurrence Test” means, at a given date of determination, that the Fixed Charge Coverage Ratio for the Relevant Reference Period would have been at least 2.00 to 1.00, determined on a pro forma basis after giving effect to the incurrence of $1.00 of additional Indebtedness or the issuance of Disqualified Stock or Preferred Stock with a liquidation preference of $1.00 (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been issued, as the case may be, and the application of the proceeds therefrom had occurred at the beginning of such Relevant Reference Period..

 

Fixed Charges” means, with respect to any Person for any period, the sum, without duplication, of (a) Consolidated Interest Expense of such Person for such period; (b) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such period; and (c) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period.

 

Foreign Lender” has the meaning specified in Section 10.15(a).

 

Foreign Subsidiary” means any direct or indirect Restricted Subsidiary of the Borrower which (a) is not a Domestic Subsidiary or (b) is set forth on Schedule 1.01F.

 

Foreign Subsidiary Holding Company” means any Restricted Subsidiary substantially all of whose assets consist of (a) Equity Interests or (b) Equity Interests and Indebtedness, in either case, of one or more Foreign Subsidiaries that are CFCs (or one or more Domestic Subsidiaries that are Foreign Subsidiary Holding Companies).

 

Fourth Amendment” means that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of October 1, 2020, by and among the Borrower, the Guarantors party thereto, the various Lenders (including each 2020 New Refinancing Term B Loan Lender and each 2020 Converting Refinancing Term B Loan Lender) party thereto, the Administrative Agent and the Fourth Amendment Lead Arrangers.

 

Fourth Amendment Effective Date” has the meaning provided in the Fourth Amendment.

 

Fourth Amendment Lead Arranger” means, collectively, JPMorgan Chase Bank, N.A. Wells Fargo Securities, LLC, BofA Securities, Inc., Truist Bank, Bank Of Montreal, Barclays Bank, Citizens Bank, Credit Suisse Loan Funding LLC, Fifth Third Bank, National Association, Goldman Sachs Bank USA, UBS Securities LLC and U.S. Bank National Association.

 

Fourth Amendment Transactions” means the transactions related to or incidental to, consisting of or in connection with (a)the execution and delivery of the Fourth Amendment, (b) the refinancing of the 2018 Replacement Term B Loans, (c) the making of the 2020 Refinancing Term B Loans on the Fourth Amendment Effective Date and (d) the payment of any fees or expenses incurred or paid by the Borrower or any Restricted Subsidiary in connection therewith.

 

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Fourth Amendment Transaction Expenses” means any fees or expenses incurred or paid by the Borrower or any Restricted Subsidiary in connection with the Fourth Amendment Transactions.

 

FRB” means the Board of Governors of the Federal Reserve System of the United States or any successor thereto.

 

Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.

 

Funded Debt” means all Indebtedness of the Borrower and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

 

GAAP” means generally accepted accounting principles in the United States which are in effect (a) for purposes of Sections 5.05(a)(i), 6.01 and 6.09 only, for the accounting period in respect of which reference to GAAP is being made, and (b) for all other purposes, on the ClosingFourth Amendment Effective Date.

 

Governmental Authority” means any nation or government, any state, provincial, municipal or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Granting Lender” has the meaning specified in Section 10.07(h).

 

guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.

 

Guarantor Consent and Reaffirmationmeans, collectively, (a) the Guarantor Consent and Reaffirmation executed by each Subsidiary Guarantor, substantially in the form of Exhibit R attached hereto and (b) the Canadian Guarantor Consent and Reaffirmation executed by the Canadian Subsidiary Guarantors, substantially in the form of Exhibit S attached hereto.

 

Guarantors” means the Borrower, each Subsidiary Guarantor and, on and after the execution and delivery of the Holdco Guaranty, Holdco.

 

Guaranty” means, collectively, the Borrower Guaranty, the Subsidiary Guaranty, the Canadian Guarantee and, on and after the execution and delivery thereof,(if any) and the Holdco Guaranty.

 

Guaranty Supplement” has the meaning provided in the respective Guaranty.

 

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or 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.

 

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Hedge Bank” means any Person that is a Lender or an Affiliate of a Lender at the time it enters into a Secured Hedge Agreement, in its capacity as a party thereto, and such Person’s successors and assigns.

 

Hedging Obligations” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate, commodity price or currency risks either generally or under specific contingencies.

 

Highfields” means Highfields Capital I LP, Highfields Capital II LP and Highfields Capital III LP and each Affiliate thereof (excluding portfolio companies of any of the foregoing).

 

Holdco” means a holding company to be formed as the direct parent company of the Borrower, the primary purpose of which is to own the Capital Stock of the Borrower.Michaels Funding, Inc., a Delaware corporation, or any successor thereto that guarantees the Obligations.

 

Holdco Guaranty” means the guaranty to be made (or, after execution and delivery, made)made by Holdco in favor of the Administrative Agent on behalf of the Secured Parties substantially in the form of Exhibit F-1 attached to the Existing Credit Agreement (with appropriate modifications to reference Holdco) and otherwise in a form and substance reasonably satisfactory to the Administrative Agent.

 

Holding Company” means any Person so long as such Person directly or indirectly holds 100% of the total voting power of the Voting Stock of the Borrower, and at the time such Person acquired such voting power, no (a) Person (other than a Permitted Holder) or (b) Persons (other than any one or more Permitted Holders) constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), including any such group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), shall have beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of such Person.

 

Hybrid Distribution Network Costs” shall mean costs associated with the implementation of enhancements to the Borrower’s and its Restricted Subsidiaries' distribution network intended to increase the Borrower's and its Restricted Subsidiaries' basic merchandise inventories that are shipped through distribution centers.

 

Identified Participating Lenders” has the meaning specified in Section 2.05(a)(iii)(C)(3).

 

Immaterial Subsidiary” means a Subsidiary of the Borrower for which (a) the assets of such Subsidiary constitute less than or equal to 1% of Total Assets and collectively with all Immaterial Subsidiaries, less than or equal to 5% of Total Assets, and (b) the revenues of such Subsidiary account for less than or equal to 1% of Total Revenues and collectively with all Immaterial Subsidiaries, less than or equal to 5% of Total Revenues.

 

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Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including, in each case, adoptive relationships) and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.

 

Impacted Interest Period” has the meaning specified in the definition of “LIBO Rate”.

 

Increased Loan” has the meaning specified in Section 10.23.

 

incur” has the meaning specified in Section 7.03.

 

Incremental 2014 Term Loan” has the meaning provided in the First Amendment.

 

Incremental 2014 Term Commitment” has the meaning provided in the First Amendment.

 

Incremental Amendment” has the meaning specified in Section 2.17(f).

 

Incremental Equivalent Debt” has the meaning specified in Section 7.03(b)(xxii).

 

Incremental Facility” means any Facility consisting of a given Class of Incremental Term Loans and/or Incremental Term Loan Commitments.

 

Incremental Facility Closing Date” has the meaning specified in Section 2.17(d).

 

Incremental Loan Request” has the meaning specified in Section 2.17(a).

 

Incremental Series” means all Incremental Term Loans and Incremental Term Commitments that are established pursuant to the same Incremental Amendment (or any subsequent Incremental Amendment to the extent that such Incremental Amendment expressly provides that the Incremental Term Loans or Incremental Commitments provided for therein are intended to be a part of any previously established “Incremental Series”) and that provide for the same interest margins, “floor” and amortization schedule.

 

Incremental Term Commitments” has the meaning specified in Section 2.17(a).

 

Incremental Term Lenders” has the meaning specified in Section 2.17(c).

 

Incremental Term Loan” has the meaning specified in Section 2.17(b).

 

Indebtedness” means, with respect to any Person at a particular time, without duplication:

 

(a)             any indebtedness (including principal and premium) of such Person, whether or not contingent:

 

(i)                 in respect of borrowed money;

 

(ii)               evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);

 

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(iii)             representing the balance deferred and unpaid balance of the purchase price of any property or services (including CapitalizedFinance Lease Obligations) due more than 12 months after such property is acquired, except (A) any such balance that constitutes an obligation in respect of a commercial letter of credit, a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business andor consistent with industry practice, (B) any earn-out obligations until such obligation becomesis reflected as a liability on the balance sheet (excluding any footnotes thereto) of such Person in accordance with GAAP and is not paid within 60 days after becoming due and payable and (C) accruals for payroll and other liabilities accrued in the ordinary course of business; or

 

(iv)              representing the net obligations under any Hedging Obligations;

 

if and to the extent that any of the foregoing Indebtedness (other than obligations in respect of letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP; provided, that Indebtedness of any Parent Company appearing upon the balance sheet of the Borrower solely by reason of push-down accounting under GAAP will be excluded;

 

(b)             to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the obligations of the type referred to in clause (a) of a third Person (whether or not such items would appear upon the balance sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business or consistent with industry practice; and

 

(c)             to the extent not otherwise included, the obligations of the type referred to in clause (a) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person and whether or not such obligations would appear upon the balance sheet of such Person;; provided that the amount of such Indebtedness will be the lesser of (i) the fair market value of such asset at thesuch date of determination and (ii) the amount of such Indebtedness so securedof such other Person; and

 

(d)           all obligations of such Person in respect of Disqualified Capital Stock;

 

provided, however, that notwithstanding the foregoing, Indebtedness shall be deemed not to include (x1) Contingent Obligations incurred in the ordinary course of business or consistent with industry practice, (y2) obligations under or in respect of Receivables Facilities or, (z3) reimbursement obligations under or in respect of commercial letters of credit., (4) accrued expenses, (5) deferred or prepaid revenues, (6) asset retirement obligations and obligations in respect of reclamation and workers’ compensation (including pensions and retiree medical care) and (7) Non-Finance Lease Obligations; provided, further, that Indebtedness will be calculated without giving effect to the effects of Accounting Standards Codification Topic No. 815, Derivatives and Hedging, and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such Indebtedness.

 

Indemnified Liabilities” has the meaning set forth in Section 10.05.

 

Indemnitees” has the meaning set forth in Section 10.05.

 

Indemnified Taxes” means all Taxes and all Other Taxes.

 

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Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Borrower, qualified to perform the task for which it has been engaged.

 

Information” has the meaning specified in Section 10.08.

 

Initial Second Amendment Effective Date” has the meaning specified in the Second Amendment.

 

Intercompany Note” means the Intercompany Note, substantially in the form attached as Exhibit J attached to the Existing Credit Agreement, as amended, supplemented or otherwise modified from time to time.

 

Intercreditor Agreement” means the Amended and Restated Intercreditor Agreement executed by the Collateral Agent, the ABL Collateral Agent and the 2027 Senior Secured Notes Collateral Agent and acknowledged by the Loan Parties, substantially in the form of Exhibit H attached to the Existing Creditthis Agreement after giving effect to the Fourth Amendment.

 

Interest Payment Date” means, (a) as to any Loan of any Class other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the applicable Maturity Date of the Facility under which such Loan was made; provided that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan of any Class, the last Business Day of each January, April, July and October and the applicable Maturity Date of the Facility under which such Loan was made.

 

Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter, or to the extent agreed to by each Lender of such Eurocurrency Rate Loan,  nine or twelve months thereafter, or to the extent agreed to by the Administrative Agent, less than one month thereafter, as selected by the Borrower in its Committed Loan Notice; provided that:

 

(a)             any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(b)             any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)             no Interest Period shall extend beyond the applicable Maturity Date for the Class of Loans of which such Eurocurrency Rate Loan is a part.

 

Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB– (or the equivalent) by S&P, or, in either case, an equivalent rating by any other Rating Agency.

 

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Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which that LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time.

 

Investment Grade Securities” means (a) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents), (b) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries, (c) investments in any fund that invests exclusively in investments of the type described in clauses (a) and (b) which fund may also hold immaterial amounts of cash pending investment or distribution, and (d) corresponding instruments in countries other than the United States customarily utilized for high quality investments.

 

Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, credit card and debit card receivables constituting Cash Equivalents, trade credit, advances to customers, commission, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Borrower in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. For purposes of the definition of “Unrestricted Subsidiary” and Section 7.02, (a) “Investments” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (i) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less (ii) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and (b) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Borrower.

 

Investors” means Bain Capital, LLC and The Blackstone Group LP, each of their respective Affiliates and any investment funds advised or managed by any of the foregoing, but not including, however, any portfolio companies of any of the foregoing; provided, that, for purposes of the definitions of “EBITDA” and “Sponsor Management Agreement” only, the term “Investors” shall include Highfields.

 

The amount of any Investment outstanding at any time will be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by the Borrower or a Restricted Subsidiary in respect of such Investment (provided that, with respect to amounts received other than in the form of cash or Cash Equivalents, such amount shall be equal to the Fair Market Value of such consideration).

 

Investor” means any of (a) Bain Capital Private Equity, LP and/or any of its Affiliates (including, as applicable, investment vehicles, related funds, general partners thereof and limited partners thereof, but solely to the extent any such limited partners are directly or indirectly participating as investors pursuant to a side-by-side investing arrangement, but excluding, however, any portfolio company of any of the foregoing) and (b) The Blackstone Group LP and/or any of its Affiliates (including, as applicable, investment vehicles, related funds, general partners thereof and limited partners thereof, but solely to the extent any such limited partners are directly or indirectly participating as investors pursuant to a side-by-side investing arrangement, but excluding, however, any portfolio company of any of the foregoing).

 

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IP Rights” has the meaning set forth in Section 5.15.

 

IRS” means the United States Internal Revenue Service.

 

ITA” means the Income Tax Act (Canada) and the regulations promulgated thereunder, as amended from time to time.

 

Judgment Currency” has the meaning provided in Section 10.21.

 

Junior Financing Documentation” shall mean the 2020 Senior Subordinated Notes, the 2020 Senior Subordinated Notes Indenture and the documentation governing any other Subordinated Indebtedness of the Borrower or any of its Restricted Subsidiaries.

 

Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time, including the latest maturity date of any Incremental Term Loan, any Incremental Term Commitment, any Refinancing Term Loan, any Refinancing Term Commitment, any Extended Term Loan or any Extended Term Commitment, in each case as extended in accordance with this Agreement from time to time.

 

Laws” means, collectively, all international, foreign, Federal, state, provincial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

LCT Test Date” has the meaning specified in Section 1.10(g).

 

Lender” or “Term Lender” means each lender from time to time party hereto, including (i) each lender that has a Term B Commitment, 2016 New Replacement Term B-1 Loan Commitment, 2016 New Replacement Term B-2 Loan Commitment, 2018 New Replacement2020 New Refinancing Term B Commitment, Incremental Term Commitment pursuant to a given Incremental Series, Refinancing Term Commitment pursuant to a given Refinancing Series or Extended Term Commitment pursuant to a given Extension Series; (ii) each lender that has an outstanding Loan at such time; (iii) each 2016 Replacement Term B-1 Loan Lender and each 2016 Replacement Term B-2 Loan Lender; (iv) each 2018 Replacement2020 Refinancing Term B Loan Lender, (vvi) each Replacement Lender and its respective successors and assigns as permitted hereunder and (vivii) each Person that shall become a party hereto pursuant to an Incremental Amendment or a Refinancing Amendment and its respective successors and assigns as permitted hereunder, each of which is referred to herein as a “Lender”.

 

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Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

 

LIBO Rate” means, with respect to any Eurocurrency Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated Rate.

 

LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for the purposes of this Agreement.

 

Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code or registration statement under the PPSA (or equivalent statutes) of any jurisdiction, including the Civil Code; provided that in no event shall an operating lease (or other lease in respect of Non-Finance Lease Obligation) be deemed to constitute a Lien.

 

Limited Condition Transaction” shall mean (i) any permitted Acquisition or, other permitted acquisition or other permitted Investment (in each case including any such transaction that is subject to a letter of intent or purchase agreement) whose consummation is not conditioned on the availability of, or on obtaining, third party financing and, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment, in each case, of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (iii) any disposition or other sale or conveyance of assets or property and (iv) any Restricted Payment.

 

Loan” means the term loans made by the Lenders on the Restatement Effective Date, the Initial Second Amendment Effective Date or the ThirdFourth Amendment Effective Date to the Borrower pursuant to Section 2.01, any Extended Term Loan, any Incremental Term Loan, any Refinancing Term Loan (including the 2020 Refinancing Term B Loans) or any Replacement Term Loan (including the 2016 Replacement Term B-1 Loans and, prior to the 2016 Replacement Term Loan Conversion, the 2016 Replacement Term B-2 Loans and the 2018 Replacement Term Loans), as the context may require.

 

Loan Documents” means, collectively, (a) this Agreement, (b) the First Amendment, (c) the Second Amendment, (d) the Third Amendment, (e) the NotesFourth Amendment, (f) the GuarantyNotes, (g) the Guaranty, (h) any Refinancing Amendment, Incremental Amendment or Extension Amendment, (hi) the Intercreditor Agreement, (i) the Collateral Documents, (j) on and after the execution and delivery thereof,j) the Additional First Lien Intercreditor Agreement, and (k) the Collateral Documents, and (l) on and after the execution and delivery thereof, the Additional Junior Lien Intercreditor Agreement.

 

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Loan Parties” means, collectively, the Borrower and each Guarantor.

 

LTM Determination Notification” shall mean a written notification delivered to the Administrative Agent, at the Borrower’s option, no later than two (2) Business Days (or such shorter period of time as agreed by the Administrative Agent in its reasonable discretion) prior to any LCT Test Date (a) informing the Administrative Agent that the Borrower intends to make the calculations of the ratios, tests or baskets set forth in Section 1.10(f) on the basis of the Borrower’s financial performance over the last twelve fiscal months and not on the basis of the Borrower’s financial performance over the last four fiscal quarters and (b) if not previously delivered to the Administrative Agent, including monthly financials for each fiscal month in such twelve month period.

 

Management Stockholders” means any members of management (and their Controlled Investment Affiliates and Immediate Family Members) of the Borrower (or any Parent Company thereof) who are holders of Equity Interests of any Parent Company of the Borrower on the Fourth Amendment Effective Date.

 

Master Agreement” has the meaning specified in the definition of “Swap Contract.”

 

Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material adverse effect on the validity or enforceability of this Agreement or any other Loan Document, taken as a whole, or (c) a material adverse effect on the rights and remedies of the Lenders under any Loan Document.

 

Maturity Date” means (a) with respect to the 2018 Replacement2020 Refinancing Term B Loans, January 28, 2023October 1, 2027; provided, however, that the “Maturity Date” of the 2020 Refinancing Term B Loans will automatically become April 15, 2027 (the “Springing Maturity Date”) if as of April 15, 2027 the then aggregate outstanding principal amount of all of the Borrower’s 2027 Senior Unsecured Notes (and Refinancing Indebtedness in respect thereof that, in any case, has a final scheduled maturity date or requires scheduled amortization or payments of principal (other than with respect to a change of control, asset sale and event of loss mandatory offers to purchase or mandatory prepayments or customary acceleration rights after an event of default) prior to December 31, 2027) exceeds $100,000,000, (b) with respect to any Class of Extended Term Loans, the final maturity date as specified in the applicable Extension Request accepted by the respective Lender or Lenders, (c) with respect to any Class of Refinancing Term Loans, the final maturity date as specified in the applicable Refinancing Amendment and (d) with respect to any Class of Incremental Term Loans, the final maturity date as specified in the applicable Incremental Amendment; provided that, in each case, if such day is not a Business Day, the applicable Maturity Date shall be the Business Day immediately succeeding such day.

  

Maximum Rate” has the meaning specified in Section 10.10.

 

Merger Consideration” means the total funds required to consummate the Recapitalization.

 

MergerCos” has the meaning set forth in the preliminary statements to this Agreement.

 

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Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.

 

Mortgage” means, collectively, the deeds of trust, trust deeds, hypothecs, charges and mortgages of real property or interests therein made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably satisfactory to the Collateral Agent (taking account of relevant local Law matters), and any other mortgages executed and delivered pursuant to Section 6.11.

 

Mortgage Policies” has the meaning specified in Section 6.13(b)(ii).

 

Mortgaged Properties” has the meaning specified in paragraph (g) of the definition of “Collateral and Guarantee Requirement”.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

 

Net Proceeds” means:

 

(a)             with respect to any Asset Sale or Casualty Event, the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of such Asset Sale or Casualty Event, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in respect of such Asset Sale or Casualty Event, net of the direct costs relating to such Asset Sale or Casualty Event and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Indebtedness that is secured by the asset subject to such Asset Sale or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Asset Sale or Casualty Event (other than as required by Section 2.05(c)) and any deduction of appropriate amounts to be provided by the Borrower or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Borrower or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post–employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction provided, however, that, upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described above, or if such liabilities have not been satisfied in cash and such reserve is not reversed within three hundred and sixty five (365) days after such Asset Sale or Casualty Event, “Net Proceeds” shall include the amount of such reserve; and

 

(b)             with respect to the incurrence or issuance of any Indebtedness or Capital Stock by the Borrower or any Restricted Subsidiary, the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by the Borrower or such Restricted Subsidiary in connection with such incurrence or issuance.

 

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Non-Consenting Lenders” has the meaning specified in Section 3.07(c).

 

Non-Finance Lease Obligation” means a lease obligation that is not required to be accounted for as a finance lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For the avoidance of doubt, a straight-line or operating lease shall be considered a Non-Finance Lease Obligation.

 

Non-Fixed Basket” has the meaning set forth in Section 1.10(g).

 

Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit C attached hereto (with such modifications thereto as may be necessary to reflect differing Classes of Loans), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from the Loans of a given Class made by such Lender.

 

NPL” means the National Priorities List under CERCLA.

 

NYFRB” means the Federal Reserve Bank of New York.

 

NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.

 

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement.

 

Obligations” means all (x) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party and its Subsidiaries arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and (y) obligations of any Loan Party and its Subsidiaries arising under any Secured Hedge Agreement, in each of clauses (x) and (y) including interest and fees that accrue after the commencement by or against any Loan Party or Subsidiary of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that the Obligations shall not include any Excluded Swap Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and of their Subsidiaries to the extent they have obligations under the Loan Documents) include (a) the obligation (including guarantee obligations) to pay principal, interest, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party or its Subsidiaries under any Loan Document and (b) the obligation of any Loan Party or any of its Subsidiaries to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party or such Subsidiary.

 

Offered Amount” has the meaning specified in Section 2.05(a)(iii)(D)(1).

 

Offered Discount” has the meaning specified in Section 2.05(a)(iii)(D)(1).

 

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Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Borrower.

 

Officer’s Certificate” means a certificate signed on behalf of the Borrower by an Officer of the Borrower, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Borrower, that meets any applicable requirements set forth in this Agreement.

 

Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Administrative Agent. The counsel may be an employee of or counsel to the Borrower or the Administrative Agent.

 

Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any unlimited liability company, the memorandum of association; and (d) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

Original Eurocurrency Borrowing” has the meaning specified in Section 2.08(e).

 

Other Applicable Indebtedness” has the meaning specified in Section 2.05(c)(i)(A)(I).

 

Other Taxes” has the meaning specified in Section 3.01(b).

 

Outstanding Amount” means with respect to the Loans of any Class, on any date, the outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Loans of such Class occurring on such date.

 

Outstanding Term Loans” has the meaning set forth in the preliminary statements to this Agreement.

  

Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.

 

Parent Company” means any Person that is a direct or indirect parent (which may be organized as, among other things, a partnership) of the Borrower.

 

Participant” has the meaning specified in Section 10.07(e).

 

Participating Lender” has the meaning specified in Section 2.05(a)(iii)(C)(2).

 

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PBA” means the Pension Benefits Act (Ontario) or similar legislation of any other Canadian federal or provincial jurisdiction, and the regulations promulgated thereunder, as amended from time to time.

 

PBGC” means the Pension Benefit Guaranty Corporation or any Governmental Authority of another jurisdiction exercising similar functions in respect of any Pension Plan of a Loan Party (including the Pension Benefit Guarantee Fund of Ontario).

 

Pension Event” means (a) the whole or partial withdrawal of a Loan Party or any Subsidiary from a Pension Plan during a Pension Plan year; or (b) the filing of a notice of interest to terminate in whole or in part a Pension Plan or the treatment of a Pension Plan amendment 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 appointed to administer a Pension Plan; or (d) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of trustee to administer, any Pension Plan.

 

Pension Plan” means (a) any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to SectionSections 412 and 430 of the Code or Section 302 or Title IV of ERISA, or (b) Pension Planany defined benefit pension plan covered by any other Laws (including the PBA and the ITA) and, in either case, that is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other planplan with two or more contributing sponsors described in SectionSections 4063 or 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.

 

Perfect Store Initiative” shall mean the initiative related to the Borrower'sBorrower’s and its Restricted Subsidiaries' store standardization and remodeling program, pursuant to which retail store layouts will be modified into a configuration intended to enhance the customer in-store experience.

 

Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and Cash Equivalents between the Borrower or any of its Restricted Subsidiaries and another Person; provided that any Net Proceeds received must be applied in accordance with Section 2.05(c).

 

Permitted Debt” has the meaning specified in Section 7.03(b).

  

Permitted First Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes or loans; provided that (i) such Indebtedness is secured by (A) the TL Priority Collateral on a pari passu first-lien basis (but without regard to the control of remedies) with the Secured Obligations and (B) the ABL Priority Collateral on a pari passu second-lien basis (but without regard to the control of remedies) with the Secured Obligations, and is not secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of any Class of Loans (including portions of any Class of Loans), (iii) such Indebtedness (and the Liens securing the same) are permitted by the terms of the ABL Credit Agreement and the Intercreditor Agreement (in each case, to the extent the ABL Credit Agreement and the Intercreditor Agreement are then in effect),[reserved], (iv) such Indebtedness does not mature or have scheduled amortization or payments of principal (other than customary offers to purchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred, (v) the security agreements relating to such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) such Indebtedness is not guaranteed by any Subsidiaries other than the Subsidiary Guarantors, and (vii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the Additional First Lien Intercreditor Agreement, provided that if such Indebtedness is the initial Permitted First Priority Refinancing Debt incurred by the Borrower, then the Borrower, the Subsidiary Guarantors, the Administrative Agent, the Collateral Agent and the Senior Representative for such Indebtedness shall have executed and delivered the Additional First Lien Intercreditor Agreement. Permitted First Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

 

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Permitted Holder” means any of (i) any Investor and the Management Stockholders and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing or any Holding Company are members (provided that, in the case of such group and without giving effect to the existence of such group or any other group, the Investors, the Investors’ Affiliates and the Management Stockholders, collectively, have beneficial ownership of more than 50.0% of the aggregate ordinary voting power of the outstanding Voting Stock of the Borrower or any Parent Company thereof), (ii)  any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any Parent Company of the Borrower, acting in such capacity and (iii) any Holding Company.

 

Permitted Foreign Restructuring” means the transfer or other Disposition of the Capital Stock of certain Foreign Subsidiaries (as elected by the Borrower) by the Borrower or its Subsidiaries to a Foreign Subsidiary of the Borrower and, in the case of Michaels of Canada, ULC, the re-designation by the Borrower of Michaels of Canada, ULC as a Foreign Subsidiary (which may occur only if no Event of Default then exists or would arise therefrom). For the avoidance of doubt, upon consummation of the Permitted Foreign Restructuring, Michaels of Canada, ULC shall be an Excluded Subsidiary hereunder and shall no longer be required to be a Loan Party hereunder and shall be released from the Canadian Guarantee and the Canadian Security Agreement shall be terminated.

 

Permitted Holder” means any of the Investors and members of management of the Borrower (or its direct parent) who are holders of Equity Interests of the Borrower (or any of its direct or indirect parent companies) on the Restatement Effective Date.

 

Permitted Investments” means:

 

(a)             any Investment in the Borrower or any of its Restricted Subsidiaries;

 

(b)             any Investment in cash and Cash Equivalents or Investment Grade Securities;

 

(c)             any Investment by the Borrower or any of its Restricted Subsidiaries in a Person that is engaged in a Similar Business if as a result of such Investment:

 

(i)                 such Person becomes a Restricted Subsidiary; or

 

(ii)               such Person, in one transaction or a series of related transactions, is merged, amalgamated or consolidated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary,

 

and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, consolidation or transfer;

 

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(d)             any Investment in securities or other assets not constituting cash, Cash Equivalents or Investment Grade Securities and received in connection with an Asset Sale made pursuant to Section 7.01 or any other disposition of assets not constituting an Asset Sale;

 

(e)             any Investment existing on the RestatementFourth Amendment Effective Date and any extension, modification, replacement or renewal of any such Investment, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the RestatementFourth Amendment Effective Date (or as subsequently amended or otherwise modified in a manner not disadvantageous to the Lenders in any material respect);

 

(f)              any Investment acquired by the Borrower or any of its Restricted Subsidiaries (i) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable, or (ii) as a result of a foreclosure by the Borrower or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;

 

(g)             Hedging Obligations permitted under Section 7.03(b)(x);

 

(h)             any Investment in a Similar Business having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (h) that are at that time outstanding, not to exceed the greater of (x) $125,000,000 and (y) 6.50 % of Total Assets300,000,000 and (y) 47% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(i)              Investments the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of the Borrower or any of its direct or indirect parent companiesParent Companies; provided, however, that such Equity Interests will not increase the amount available for Restricted Payments under Section 7.02(a)(iii);

 

(j)              guarantees of Indebtedness of the Borrower or any Restricted Subsidiary permitted under Section 7.03, performance guarantees and Contingent Obligations in the ordinary course of business and the creation of liens on the assets of the Borrower or any of its Restricted Subsidiaries in compliance with the covenant described in Section 7.04;

 

(k)             any transaction to the extent it constitutes an Investment that is permitted and made in accordance with the provisions of Section 7.07(b) (except transactions described in clauses (ii), (v) and (ix) thereof);

 

(l)              Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment;

 

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(m)           additional Investments having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (m) that are at that time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of, or have not been subsequently sold or transferred for cash or marketable securities), not to exceed the greater of (x) $150,000,000 and (y) 7.90% of Total Assets300,000,000 and (y) 47% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (in each case, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);

 

(n)             Investments relating to a Receivables Subsidiary that, in the good faith determination of the Borrower are necessary or advisable to effect any Receivables Facility;

 

(o)             advances to, or guarantees of Indebtedness of, employees not in excess of the greater of (x) $15,000,000 and (y) 2.5% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period outstanding at any one time, in the aggregate;

 

(p)             loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business or consistent with past practices or to fund such Person’s purchase of Equity Interests of the Borrower or any direct or indirect parent companyParent Company thereof; and

 

(q)             Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons.

 

Permitted Junior Priority Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of secured notes or loans; provided that (i) such Indebtedness is secured by Liens on the Collateral that are junior to the Liens securing the Secured Obligations and is not secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of any Class of Loans (including portions of any Class of Loans), (iii) such Indebtedness (and the Liens securing the same) are permitted by the terms of the ABL Credit Agreement, the Intercreditor Agreement and the Additional First Lien Intercreditor Agreement (in each case, to the extent the ABL Credit Agreement, the Intercreditor Agreement and the Additional First Lien Intercreditor Agreement are then in effect),[reserved], (iv) such Indebtedness does not mature or have scheduled amortization or payments of principal (other than customary offers to purchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred, (v) the security agreements relating to such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (vi) such Indebtedness is not guaranteed by any Subsidiaries other than the Subsidiary Guarantors, and (vii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to the Additional Junior Lien Intercreditor Agreement, provided that if such Indebtedness is the initial Permitted Junior Priority Refinancing Debt incurred by the Borrower, then the Borrower, the Subsidiary Guarantors, the Administrative Agent, the Collateral Agent and the Senior Representative for such Indebtedness shall have executed and delivered the Additional Junior Lien Intercreditor Agreement. Permitted Junior Priority Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

 

Permitted Liens” means, with respect to any Person:

 

(a)             pledges, deposits or security by such Person under workmen’s compensation laws, unemployment insurance, employers’ health tax and other social security or statutory laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent or deposits, in each case incurred in the ordinary course of business;

 

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(b)             Liens imposed by law, such as landlords’, carriers’, warehousemen’s, materialmen’s, repairmen’s and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate actions or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;

 

(c)             Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or that remain payable without penalty or which are being contested in good faith by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP, or for property taxes on property that the Borrower or one of its Subsidiaries has determined to abandon if the sole recourse for such tax, assessment, charge, levy or claim is to such property;

 

(d)             Liens in favor of issuers of performance, surety, bid, indemnity, warranty, release, appeal or similar bonds or with respect to other regulatory requirements or letters of credit or bankers’ acceptances issued, and completion guarantees provided for, in each case pursuant to the request of and for the account of such Person in the ordinary course of its business or consistent with past practice prior to the RestatementFourth Amendment Effective Date;

 

(e)             minor survey exceptions, minor encumbrances, ground leases, easements or reservations of, or rights of others for, licenses, rights–of–way, servitudes, sewers, electric lines, drains, telegraph and telephone and cable television lines, gas and oil pipelines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially impair their use in the operation of the business of such Person;

 

(f)              Liens securing Indebtedness permitted to be incurred pursuant to Section 7.03(b)(iv), (xviii) or (xix); provided that (x) Liens securing Indebtedness permitted to be incurred pursuant to Section 7.03(b)(iv) extend only to the property or equipment (or assets affixed or appurtenant thereto and additions and accessions) being financed or refinanced under such clause (b)(iv), replacements of such property, equipment or assets, and additions and accessions and in the case of multiple financings of assets provided by any lender, other assets financed by such lender and in each case, proceeds and products thereof, (y) Liens securing Indebtedness permitted to be incurred pursuant to Section 7.03(b)(xviii) extend only to the assets of Foreign Subsidiaries and (z) Liens securing Indebtedness permitted to be incurred pursuant to Section 7.03(b)(xix) are solely on acquired property or the assets of the acquired entity, as the case may be;

 

(g)             Liens existing on the RestatementFourth Amendment Effective Date and set forth in Schedule 7.04;

 

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(h)             Liens existing on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Borrower or any of its Restricted Subsidiaries;

 

(i)              Liens existing on property at the time the Borrower or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Borrower or any of its Restricted Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition, merger, amalgamation or consolidation; provided, further, however, that the Liens may not extend to any other property owned by the Borrower or any of its Restricted Subsidiaries;

 

(j)              Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Borrower or another Restricted Subsidiary permitted to be incurred in accordance with Section 7.03;

 

(k)             Liens securing Hedging Obligations so long as the related Indebtedness is permitted to be incurred under this Agreement;

 

(l)              Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

 

(m)            leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Borrower or any of its Restricted Subsidiaries and do not secure any Indebtedness;

 

(n)             Liens arising from Uniform Commercial Code (or equivalent statutes) financing statements or PPSA registration statements or recordation filings regarding operating leases or consignments entered into by the Borrower and its Restricted Subsidiaries in the ordinary course of business;

 

(o)             Liens in favor of the Borrower or any Subsidiary Guarantor;

 

(p)             Liens on equipment of the Borrower or any of its Restricted Subsidiaries granted in the ordinary course of business to the Borrower’s clients at which such equipment is located;

 

(q)             Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;

 

(r)              Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (f), (g), (h) and (i); provided, however, that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (f), (g), (h) and (i) at the time the original Lien became a Permitted Lien under this Agreement, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;

 

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(s)             deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business;

 

(t)              other Liens securing obligations not exceeding $50,000,000the greater of (x) $325,000,000 and (y) 50% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period at any one time outstanding;

 

(u)             Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h), so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;

 

(v)             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 in the ordinary course of business;

 

(w)            Liens (i) of a collection bank arising under Section 4–210 of the Uniform Commercial Code on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;

 

(x)              Liens deemed to exist in connection with Investments in repurchase agreements or other Cash Equivalents permitted under Section 7.03; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreement or other Cash Equivalent;

 

(y)             Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

 

(z)             Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(aa)           (i) Liens securing the Obligations, (ii) Liens securing obligations in respect of Bank Products and (iii) Liens securing obligations in respect of Cash Management Services;

 

(bb)           Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted under this Agreement;

 

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(cc)           the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by the Borrower or any of its Restricted Subsidiaries or by a statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or periodic payments as a condition to the continuance thereof;

  

(dd)           restrictive covenants affecting the use to which real property may be put, provided, however, that the covenants are complied with;

 

(ee)           security given to a public utility or any municipality or Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business;

 

(ff)             zoning by-laws and other land use restrictions, including, without limitation, site plan agreements, development agreements and contract zoning agreements;

 

(gg)           Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

 

(hh)           [Reserved];

 

(ii)              rights of a seller of unpaid goods in respect of such goods at common law or under the Bankruptcy and Insolvency Act (Canada) and other applicable legislation;

 

(jj)             the reservations, limitations, provisos and conditions, if any, expressed in any original grants from the crown under Canadian law and any statutory exceptions to title under Canadian law;

 

(kk)           customary transfer restrictions and purchase options in joint venture and similar agreements;

 

(ll)             (x) Liens created pursuant to the ABL Collateral Documents securing (i) Indebtedness incurred pursuant to Section 7.03(b)(i)(x) and (ii) obligations in respect of any Commercial Letter of Credit Facility, in each case, so long as the same is at all times subject to the Intercreditor Agreement and (y) Liens securing obligations in respect of any Receivables Facilities;

 

(mm)         (x) Liens incurred to secure any Indebtedness or any obligation in respect thereof permitted to be incurred pursuant to Section 7.03; provided that, with respect to Liens securing obligations permitted under this clause (mm), at the time of incurrence and after giving pro forma effect thereto, (i) to the extent secured by the Collateral, such obligations are secured on either a pari passu or junior basis with the Obligations, and (ii) no Event of Default shall have occurred and be continuing and (iii) the Consolidated Secured Debt Ratio would be no greater than 3.25 to 1.00 as of the last day of the Relevant Reference Period and (y) Liens securing obligations in respect of any Refinancing Indebtedness in respect of Indebtedness described in sub-clause (x) of this clause (mm); provided, that in the case of any Additional First Lien Indebtedness, such Indebtedness shall be subject to the Additional First Lien Intercreditor Agreement and, in the case of any Additional Junior Lien Indebtedness, such Indebtedness shall be subject to the Additional Junior Lien Intercreditor Agreement; and

 

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(nn)             Liens on the Collateral securing obligations in respect of (i) Permitted First Priority Refinancing Debt (and Permitted Refinancings thereof), (ii) Permitted Junior Priority Refinancing Debt (and Permitted Refinancings thereof), and (iii) Incremental Equivalent Debt (and Permitted Refinancings thereof)., in each case in this clause (nn), so long as the same is at all times subject to the Additional First Lien Intercreditor Agreement, the Additional Junior Lien Intercreditor Agreement and/or the Intercreditor Agreement, as applicable; and

 

(oo)             (x) Liens on Collateral created pursuant to the 2027 Senior Secured Notes Collateral Documents, securing Indebtedness incurred pursuant to Section 7.03(b)(i)(z) and (y) Liens on Collateral securing any Permitted Refinancing thereof incurred pursuant to Section 7.03(b)(i)(z), in each case in this clause (oo), so long as the same is at all times subject to the Additional First Lien Intercreditor Agreement and/or the Additional Junior Lien Intercreditor Agreement, as applicable.

 

For purposes of this definition, the term “Indebtedness” shall be deemed to include interest and other amounts payable on such Indebtedness.

 

Permitted Refinancing” means, with respect to any Person, any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness (“Refinanced Indebtedness”) of such Person (including, for the avoidance of doubt, any one or more successive modifications, replacements, refinancings, refundings, renewals or extensions); provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, replaced, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium (including tender premiums) thereon plus other reasonable amounts paid (including original issue discount and upfront fees), and fees and expenses reasonably incurred, in connection with such modification, replacement, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder,; (b) such modification, replacement, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has (except by virtue of prior scheduled amortization or prepayments of the Indebtedness being modified, replaced, refinanced, refunded, renewed or extended) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, replaced, refinanced, refunded, renewed or extended,; (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, replaced, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, replacement, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, replaced, refinanced, refunded, renewed or extended, (e) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, replaced, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, replaced, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), (f); (d) [reserved]; (e) any such modification, replacement, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended,; (gf) in the case of a “Permitted Refinancing” of Permitted First Priority Refinancing Debt, or of Indebtedness incurred pursuant to Section 7.03(b)(i)(z), such Indebtedness meets the requirements of clauses (i), (iii), (v), (vi) and (vii) of the definition of “Permitted First Priority Refinancing Debt” (or if such Indebtedness is to be secured on a junior basis to the Obligations or to be unsecured, the requirements of succeeding clause (hg) or (ih) below, as applicable),; (hg) in the case of a “Permitted Refinancing” of Permitted Junior Priority Refinancing Debt, such Indebtedness meets the requirements of clauses (i), (iii), (v), (vi) and (vii) of the definition of “Permitted FirstJunior Priority Refinancing Debt” (or if such Indebtedness is to be unsecured, the requirements of succeeding clause (ih) below) and, (ih) in the case of a “Permitted Refinancing” of Permitted Unsecured Refinancing Debt or of Indebtedness incurred pursuant to Section 7.03(b)(ii), such Indebtedness meets the requirements of clauses (iviii) and (viv) of the definition of “Permitted Unsecured Refinancing Debt” and (i) in the case of a “Permitted Refinancing” of Incremental Equivalent Debt, such Indebtedness meets the requirements of clauses (4) through (9) and clause (13) of Section 7.03(b)(xxii).

 

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Permitted Unsecured Refinancing Debt” means unsecured Indebtedness incurred by the Borrower in the form of one or more series of unsecured notes or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of any Class of Loans (including portions of any Class of Loans), (iiiii) such Indebtedness does not mature or have scheduled amortization or payments of principal (other than customary offers to purchase and prepayment events upon a change of control, asset sale or event of loss and a customary acceleration right after an event of default) prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred, (iviii) such Indebtedness is not guaranteed by any Subsidiaries other than the Subsidiary Guarantors, and (viv) such Indebtedness is not secured by any Lien on any property or assets of the CompanyBorrower or any Subsidiary. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

 

Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, joint stock company, trust, unincorporated organization, Governmental Authority or other entity.

 

Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, any ERISA Affiliate.

 

Pledged Debt” has the meaning specified in the Security Agreement.

 

Pledged Equity” has the meaning specified in the Security Agreement.

 

PPSA” means the Personal Property Security Act of Ontario (or any successor statute) or similar legislation of any other Canadian jurisdiction, including, without limitation, the Civil Code of Quebec, the laws of which are required by such legislation to be applied in connection with the issue, perfection, enforcement, opposability, validity or effect of security interests.

 

Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution, or winding up.

 

Previous Transactions” means the execution and delivery of the 2027 Senior Unsecured Notes Indenture (including any supplements thereto), the issuance of the 2027 Senior Unsecured Notes, and the transactions contemplated by or in furtherance of the issuance of the 2027 Senior Unsecured Notes (including the use of proceeds thereof, including any refinancing Indebtedness).

 

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Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the FRB in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the FRB (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

 

Prior Credit Agreement” means the “Existing Credit Agreement” as defined in the Existing Credit Agreement.

 

Pro Rata Share” means, with respect to each Lender, (i) at or prior to the funding on the Restatement Effective Date, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments of all Lenders at such time; (ii) on the Firston the Fourth Amendment Effective Date (immediately prior to the funding of the Incremental 2014 Term Loans and the termination of the Incremental 2014 Term Commitments on such date) and for purposes of Section 2.02(b) only, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the Incremental 2014 Term Commitment of such Lender at such time and the denominator of which is the aggregate amount of all Incremental 2014 Term Commitments of all Lenders at such time; (iii) on the Initial Second Amendment Effective Date (immediately prior to the funding of the 2016 New Replacement Term B-1 Loans and the termination of the 2016 New Replacement Term B-1 Loan Commitments on such date) and for purposes of Section 2.02(b) only, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the 2016 New Replacement Term B-1 Loan Commitment of such Lender at such time and the denominator of which is the aggregate amount of all 2016 New Replacement Term B-1 Loan Commitments of all Lenders at such time, (iv) on the Initial Second Amendment Effective Date (immediately prior to the funding of the 2016 New Replacement Term B-2 Loans and the termination of the 2016 New Replacement Term B-2 Loan Commitments on such date) and for purposes of Section 2.02(b) only, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the 2016 New Replacement Term B-2 Loan Commitment of such Lender at such time and the denominator of which is the aggregate amount of all 2016 New Replacement Term B-2 Loan Commitments of all Lenders at such time; (v) on the Third Amendment Effective Date (immediately prior to the funding of the 2018 New Replacement2020 New Refinancing Term B Loans and the termination of the 20182020 New ReplacementRefinancing Term B Loan Commitments on such date) and for purposes of Section 2.02(b) only, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the amount of the 20182020 New ReplacementRefinancing Term B Loan Commitment of such Lender at such time and the denominator of which is the aggregate amount of all 20182020 New ReplacementRefinancing Term B Loan Commitments of all Lenders at such time; and (viii) at any other time and for all other purposes, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the principal amount of the Loans of the applicable Class of such Lender at such time and the denominator of which is the aggregate principal amount of the Loans of the applicable Class of all Lenders at such time.

 

Proceeds of Crime Act” means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the regulations promulgated thereunder, as amended from time to time.

 

Projections” shall have the meaning set forth in Section 6.01(c).

 

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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.

 

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 provided in Section 10.27.

 

Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Qualifying Lender” has the meaning specified in Section 2.05(a)(iii)(D)(3).

 

Qualified Proceeds” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided that the fair market value of any such assets or Capital Stock shall be determined by the Borrower in good faith.

 

Rating Agencies” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the case may be.

 

Recapitalization” has the meaning set forth in the preliminary statements to this Agreement.

 

Recapitalization Agreement” means the Agreement and Plan of Merger, dated as of June 30, 2006, between the MergerCos, Bain Paste Finco, LLC, Blackstone Paste Finco, LLC, and the Borrower, as amended by that certain First Amendment to Agreement and Plan of Merger, dated as of September 1, 2006.

 

Receivables Facility” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Borrower or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Borrower or any of its Restricted Subsidiaries sells its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn sells its accounts receivable to a Person that is not a Restricted Subsidiary.

 

Receivables Fees” means distributions or payments made directly or by means of discounts with respect to any accounts receivable or participation interest therein issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Receivables Facility.

 

Receivables Subsidiary” means any Subsidiary formed for the purpose of, and that solely engages only in one or more Receivables Facilities and other activities reasonably related thereto.

 

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Refinanced Indebtedness” has the meaning specified in the definition of “Permitted Refinancing” set forth herein.

 

Refinanced Term Loans” has the meaning specified in Section 10.01.

 

Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being incurred pursuant thereto, in accordance with Section 2.15.

 

Refinancing Facility Closing Date” has the meaning set forth in Section 2.15.

 

Refinancing Indebtedness” has the meaning set forth in Section 7.03(b)(xiii).

 

Refinancing Series” shall mean all Refinancing Term Loans or Refinancing Term Commitments that are established pursuant to the same Refinancing Amendment (or any subsequent Refinancing Amendment to the extent such Refinancing Amendment expressly provides that the Refinancing Term Loans or Refinancing Term Commitments provided for therein are intended to be a part of any previously established Refinancing Series) and that provide for the same interest margins and amortization schedule.

 

Refinancing Term Commitments” means one or more term loan commitments hereunder that fund Refinancing Term Loans of the applicable Refinancing Series hereunder pursuant to a Refinancing Amendment.

 

Refinancing Term Lenders” means, at any time, any Lender that has a Refinancing Term Commitment of a given Refinancing Series or a Refinancing Term Loan of a given Refinancing Series at such time.

 

Refinancing Term Loans” means one or more term loans hereunder that result from a Refinancing Amendment.

 

Refunding Capital Stock” has the meaning set forth in Section 7.02(b)(ii)(A).

 

Register” has the meaning set forth in Section 10.07(d).

 

Registered Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act of 1933, substantially identical notes (having the same guarantees) issued in a dollar for dollar exchange therefor pursuant to an exchange offer registered with the SEC.

 

Regulation D” shall mean Regulation D of the FRB as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

 

Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business, provided that any assets received by the Borrower or a Restricted Subsidiary in exchange for assets transferred by the Borrower or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

 

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Relevant Governmental Body” means the FRB or the NYFRB, or a committee officially endorsed or convened by the FRB or the NYFRB, or any successor thereto.

 

Relevant Reference Period” means (i) in the case of any determination of EBITDA and, Consolidated Total Indebtedness and Unrestricted cash and Cash Equivalents (and any component definitions used therein) for purposes of computing (x) the Consolidated Secured Debt Ratio for the purposes of the definition of "Applicable Rate", the then most recently ended period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, and (y) the Consolidated Total Leverage Ratio for purposes of Section 2.05(b)(i) and the definition of “Required Percentage” of Excess Cash Flow, the Excess Cash Flow Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(a) and (ii) in the case of any determination of (1) the Fixed Charge Coverage Ratio, (2) the Fixed Charge Coverage Ratio Incurrence Test, (3) the Consolidated Secured Debt Ratio, or (4) the Consolidated Total Leverage Ratio (other than as used in the definition of “Required Percentage”), (and the component definitions used in any of the foregoing), the Test Period then most recently ended for which internal financial statements are available immediately preceding the date on which the Specified Transaction for which such calculation is being made shall occur.

 

Replacement Term Loans” has the meaning specified in Section 10.01.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the thirty (30) day notice period has been waived, and includes a Pension Event.

 

Repricing Transaction” (a) any prepayment, repayment, refinancing, conversion, substitution or replacement of all or a portion of the Loans of a given Class with the incurrence by the Borrower of any Indebtedness (including any ReplacementRefinancing Term Loans (including, for the avoidance of doubt, the 2016 Replacement Term B-1 Loans and the 2018 Replacement Term B Loans)) that is broadly marketed or syndicated to banks and other institutional investors in financings similar to the facilities provided for in this Agreement, the primary purpose of which is to reduce the Effective Yield of such Indebtedness relative to the Effective Yield of such Loans of a given Class so prepaid, repaid, refinanced, converted, substituted or replaced and (b) any amendment to this Agreement the primary purpose of which is to reduce the Effective Yield applicable to the Loans of a given Class; but excluding, in any such case, any refinancing of Loans of a given Class in connection with a Change of Control and any prepayment, refinancing, conversion, substitution or replacement of such Loans in connection with a Transformative Acquisition, Transformative Disposition or dividend recapitalization. Any such determination by the Administrative Agent as contemplated by preceding clauses (a) and (b) shall be conclusive and binding on all Lenders holding Loans of the applicable Class.

 

Required Facility Lenders” means, as of any date of determination, with respect to one or more Facilities, Lenders having more than 50% of the sum of (a) the Total Outstandings under such Facility or Facilities and (b) the aggregate unused Commitments under such Facility or Facilities; provided that the unused Commitments of, and the portion of the Total Outstandings under such Facility or Facilities held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Facility Lenders.

 

Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

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Required Percentage” shall mean, with respect to any Excess Cash Flow Period, 50%; provided, that (a) if the Consolidated Total Leverage Ratio at the end of the applicable Excess Cash Flow Period is less than 6.00:1.00 but greater than or equal to 5.00:1.00, such percentage shall be 25%, and (b) if the Consolidated Total Leverage Ratio at the end of the applicable Excess Cash Flow Period is less than 5.00:1.00, such percentage shall be 0%.

 

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and, as to any document delivered on the RestatementFourth Amendment Effective Date, any secretary or assistant secretary of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

Restatement Effective Date” means January 28, 2013, the date on which all of the conditions precedent to the amendment and restatement of the Existing Credit Agreement shall have been satisfied.

 

Restricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any of its Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Borrower or of any such Subsidiary (unless such appearance is related to the Loan Documents or Liens created thereunder), (ii) are subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the Secured Parties (except for those Liens in favor of the ABL Collateral Agent for the benefit of the ABL Lenders, nonconsensual Liens described in the definition of Permitted Liens and Liens described in clauses (w) and (z)(i) and (z)(ii) of the definition of Permitted Liens, and Liens securing Permitted First Priority Refinancing Debt, Permitted Junior Priority Refinancing Debt or any Additional First Lien Indebtedness or Additional Junior Lien Indebtedness permitted by this Agreement) or (iii) are not otherwise generally available for use by the Borrower or such Subsidiary..

 

Restricted Investment” means an Investment other than a Permitted Investment.

 

Restricted Payments” has the meaning specified in Section 7.02(a).

 

Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the Borrower (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary; provided, however, that upon the occurrence of an Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary”.

 

S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business.

 

Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the Borrower or any of its Restricted Subsidiaries of any real or tangible personal property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to a third Person in contemplation of such leasing.

 

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Same Day Funds” means, with respect to disbursements and payments, immediately available funds in Dollars.

 

Sanctions Laws and Regulations” means any sanctions or requirements imposed by, or based upon the obligations or authorities set forth in, the Act, the Executive Order, the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control, and any similar law, regulation, or executive order enacted in the United States after the date of this Agreement.

 

Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

 

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or, any European Union member state, or Her Majesty’s Treasury of the United Kingdom, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b).

 

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) United States Governmental Authorities (including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the United States Department of State and the United States Department of Commerce), (b) the United Nations Security Council, the European Union, any European Union member state or, Her Majesty’s Treasury of the United Kingdom or (c) Canadian Governmental Authorities.

 

Sanctions Target” means any target of Sanctions, including: (a) Persons on any list of targets identified or designated pursuant to any Sanctions, (b) Persons, countries, or territories that are the target of any territorial or country-based Sanctions program, (c) Persons that are a target of Sanctions due to their ownership or control by any Sanctions Target(s), or (d) vessels and aircraft that are designated under any Sanctions program.

 

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

Second Amendment” shall mean that certain Second Amendment to Amended and Restated Credit Agreement, dated as of September 28, 2016, among the Borrower, the Guarantors party thereto, the Administrative Agent, the Collateral Agent and certain of the Lenders (including each 2016 New Replacement Term B-1 Loan Lender, each 2016 Converting Replacement Term B-1 Loan Lender, each 2016 New Replacement Term B-2 Loan Lender and each 2016 Converting Replacement Term B-2 Loan Lender).

 

Secured Hedge Agreement” means any Swap Contract permitted under Article VII that is entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank and with respect to which, at or prior to the time that such Swap Contract is entered into, the Borrower (or another Loan Party) and the Hedge Bank party thereto (except in the case of the Administrative Agent) shall have delivered written notice to the Administrative Agent that such Swap Contract has been entered into and that it constitutes a “Secured Hedge Agreement” entitled to the benefits of the Collateral Documents, the Intercreditor Agreement, the Additional First Lien Intercreditor Agreement (if then in effect), and the Additional Junior Lien Intercreditor Agreement (if then in effect).

 

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Secured Indebtedness” means any Indebtedness of the Borrower or any of its Restricted Subsidiaries secured by a Lien.

 

Secured Obligations” has the meaning specified in the Security Agreement.

 

Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks, the Supplemental Administrative Agent and each Supplemental Administrative Agent appointed by the Administrative Agent from time to time pursuant to Section 9.13.

 

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

Security Agreement” means, collectively, the Security Agreement executed by the Loan Parties, substantially in the form of Exhibit G-1 attached to the Existing Credit Agreement, together with each other security agreement supplement executed and delivered pursuant to Section 6.11.

 

Security Agreement Supplement” has the meaning specified in the Security Agreement or the Canadian Security Agreement, as applicable.

 

Senior Notes” means $1,000,000,000 in aggregate principal amount of the Borrower’s 7¾% senior unsecured notes due 2018 (as reduced by any prepayment, redemption or retirement thereof).

 

Senior Notes Indenture” means the Indenture for the Senior Notes, dated as of October 21, 2010, providing for the issuance by the Borrower of $800,000,000 aggregate principal amount of its 7¾% senior unsecured notes due 2018, as amended by that certain Supplemental Indenture, dated as of September 27, 2012, providing for the issuance by the Borrower of an additional $200,000,000 aggregate principal amount of its 7¾% senior unsecured notes due 2018, and as otherwise amended, supplemented or modified from time to time.

 

Senior Representative” means, with respect to any series of Permitted First Priority Refinancing Debt, Permitted Junior Priority Refinancing Debt, secured Incremental Equivalent Debt or other secured Indebtedness permitted to be incurred under Section 7.03, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

 

Similar Business” means any business conducted or proposed to be conducted by the Borrower and its Restricted Subsidiaries on the RestatementFourth Amendment Effective Date or any business that is a reasonable extension, development or expansion of any of the foregoing or is similar, reasonably related, incidental or ancillary thereto (including, for avoidance of doubt, any sourcing companies created in connection with any of the foregoing).

 

Solicited Discounted Prepayment Amount” has the meaning specified in Section 2.05(a)(iii)(D)(1).

 

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Solicited Discounted Prepayment Notice” means a written notice of the Borrower of Solicited Discounted Prepayment Offers made pursuant to Section 2.05(a)(iii)(D) substantially in the form of Exhibit O attached hereto.

 

Solicited Discounted Prepayment Offer” means the irrevocable written offer by each Lender, substantially in the form of Exhibit P attached hereto, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.

 

Solicited Discounted Prepayment Response Date” has the meaning specified in Section 2.05(a)(iii)(D)(1).

 

Solicited Discount Proration” has the meaning specified in Section 2.05(a)(iii)(D)(3).

 

Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

SPC” has the meaning specified in Section 10.07(h).

 

Specified Discount” has the meaning specified in Section 2.05(a)(iii)(B)(1).

 

Specified Discount Prepayment Amount” has the meaning specified in Section 2.05(a)(iii)(B)(1).

 

Specified Discount Prepayment Notice” means a written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to Section 2.05(a)(iii)(B) substantially in the form of Exhibit K attached hereto.

 

Specified Discount Prepayment Response” means the irrevocable written response by each Lender, substantially in the form of Exhibit L attached hereto, to a Specified Discount Prepayment Notice.

 

Specified Discount Prepayment Response Date” has the meaning specified in Section 2.05(a)(iii)(B)(1).

 

Specified Discount Proration” has the meaning specified in Section 2.05(a)(iii)(B)(3).

 

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Specified Legal Expenses” means all attorneys' and experts' fees and expenses and all other costs and expenses paid or payable in connection with investigating or defending or preparing to investigate or defend any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative or investigative) arising out of or related to (i) the Borrower’s compensation practices (including option grants) prior to the Closing Date, (ii) any disclosure or alleged lack of disclosure on the part of the Borrower or any of its directors or officers regarding the beneficial ownership of any securities of the Borrower prior to the Closing Date by any such director or officer (or any trust established for the benefit of any such director or officer or any family member thereof), (iii) any transaction prior to the Closing Date involving any securities of the Borrower alleged to have been engaged in by any such Person, (iv) any alleged deficiencies in the Borrower’s financial reporting, internal control over financial reporting or disclosure controls prior to the Closing Date and procedures relating to any of the foregoing, and (v) any alleged bad faith, breach of fiduciary duty or other act or omission on the part of any director or officer of the Borrower relating to any of the foregoing, together in each case with all damages, losses, liabilities, judgments, fines, penalties and amounts paid in settlement arising out of or incurred in connection with any of the foregoing (including all amounts paid to or on behalf of other Persons in connection with any of the foregoing pursuant to any indemnification agreements, arrangements or obligations).

 

Specified Representations” means the representations and warranties set forth in Sections 5.01(a) (with respect to organizational existence only), 5.02 (a), 5.04, 5.13, 5.16, 5.17 and 5.19.

 

Specified Transaction” means, with respect to any period, (i) any Investment that results in a Person becoming a Restricted Subsidiary; (ii) any designation of a Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary; (iii) any permitted Acquisition; (iv) any Disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary; (v) any Investment in, Acquisition of or Disposition of assets constituting a business unit, line of business or division of, or all or substantially all of the assets of, another Person or all or substantially all of the Capital Stock of another Person, in each case, whether by merger, consolidation, amalgamation or otherwise; (vi) any Restricted Payment; (vii) any borrowing of any Incremental Term Loan or any Loan pursuant to a Term Loan Increase; or (viii) any other transaction that by the terms of this Agreement requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a pro forma basis or giving pro forma effect to any such transaction.

 

Sponsor Management Agreement” means the management agreements between certain of the management companies associated with the Investors and the Borrower, as in effect on the Closing Date and as amended, supplemented, amended and restated, replaced or otherwise modified from time to time after the date hereof, provided, however, that the terms of any such amendment, supplement, amendment and restatement or replacement agreement are not, taken as a whole, less favorable to the Lenders in any material respect than the agreement in effect on the Closing Date.

 

Springing Maturity Date” has the meaning set forth in the definition of “Maturity Date”.

 

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB to which the Administrative Agent is subject with respect to the Eurocurrency Rate, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentage shall include those imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

Store” means any retail store (which includes any real property, fixtures, equipment, inventory and other property related thereto) operated, or to be operated, by any Loan Party.

 

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Submitted Amount” has the meaning specified in Section 2.05(a)(iii)(C)(1).

 

Submitted Discount” has the meaning specified in Section 2.05(a)(iii)(C)(1).

 

Subordinated Indebtedness” means, with respect to the Obligations, any Indebtedness of the Borrower or any Guarantor which is by its terms subordinated in right of payment to the Obligations (including, in the case of a Guarantor, Obligations of such Guarantor under its Guaranty).

 

Subsequent Second Amendment Effective Date” has the meaning specified in the Second Amendment.

 

Subsidiary” means, with respect to any Person (a) any corporation, association, unlimited liability company, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person at such time; and (b) any partnership, joint venture, limited liability company or similar entity of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (y) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

Subsidiary Guarantors” means, collectively, the Domestic Subsidiary Guarantors and the Canadian Subsidiary Guarantors (if any).

 

Subsidiary Guaranty” means, collectively, (a) the Subsidiary Guaranty made by the Domestic Subsidiary Guarantors in favor of the Administrative Agent on behalf of the Secured Parties, substantially in the form of Exhibit F-1 attached to the Existing Credit Agreement and (b) each other guaranty and Guaranty Supplement delivered pursuant to Section 6.11.

 

Successor Borrower” has the meaning set forth in Section 7.06(a)(i).

 

Successor Guarantor” has the meaning set forth in Section 7.06(c)(i)(A).

 

Supplemental Administrative Agent” has the meaning specified in Section 9.13 and “Supplemental Administrative Agents” shall have the corresponding meaning.

 

Supported QFC” has the meaning provided in Section 10.27.

 

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

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Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

Taxes” has the meaning specified in Section 3.01(a).

 

Term B Commitments” means, as to each Term Lender, its obligation to make a Term B Loan to the Borrower pursuant to Section 2.01(a) in an aggregate amount not to exceed the amount specified opposite such Lender’s name in Schedule 2.01 hereto under the caption “Term B Loan Commitment” as of the Restatement Effective Date or in the Assignment and Assumption Agreement pursuant to which such Term Lender becomes a party hereto, as applicable, as such commitment may be (a) reduced from time to time pursuant to Section 2.05 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term Lender pursuant to an Assignment and Assumption Agreement, (ii) an Incremental Amendment, (iii) a Refinancing Amendment or (iv) an Extension Amendment. The initial amount of each Term Lender’s Term B Commitment is specified in Schedule 2.01 hereto under the caption “Term Commitment” as of the Restatement Effective Date or, otherwise, in the Assignment and Assumption Agreement, Incremental Amendment, Refinancing Amendment or Extension Amendment, pursuant to which such Lender shall have assumed its Commitment, as the case may be. The initial aggregate amount of the Term B Commitments is $1,640,000,000.

 

Term B Loan” means the term loans made by the Lenders on the Restatement Effective Date to the Borrower pursuant to Section 2.01(a) (as in effect immediately prior to the Fourth Amendment Effective Date).

 

Term Loan Increase” has the meaning specified in Section 2.17(a).

 

Test Period” shall mean, on any date of determination, the period of four consecutive fiscal quarters of the Borrower then most recently ended (taken as one accounting period).

 

Third Amendment” means that certain Third Amendment to Amended and Restated Credit Agreement, dated as of May 23, 2018, by and among the Borrower, the Guarantors party thereto, the various Lenders (including each 2018 New Replacement Term B Loan Lender and each 2018 Converting Replacement Term B Loan Lender) party thereto, the Administrative Agent and the Third Amendment Lead Arrangers.

 

Third Amendment Effective Date” has the meaning provided in the Third Amendment.

 

Third Amendment Lead Arranger” has the meaning provided in the Third Amendment.

 

Threshold Amount” means $75,000,000, on any date of determination, the greater of (x) $100,000,000 and (y) 15.5% of EBITDA (calculated on a pro forma basis) of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period.

 

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TL Priority Collateral” means all “Term Loan Priority Collateral” as defined in the Intercreditor Agreement.

 

Total Assets” means the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Borrower or such other Person as may be expressly stated and calculated on a pro forma basis in respect of any test or covenant hereunder.

 

Total Outstandings” means, at any time, the aggregate Outstanding Amount of all Loans or all Loans under a given Facility, as applicable.

 

Total Revenues” means, at any time, the total revenues of the Borrower and its Restricted Subsidiaries on a consolidated basis for the most recently ended Test Period, calculated on a pro forma basis in respect of any test or covenant hereunder.

 

Transaction” means the transactions related to or incidental to, consisting of or in connection with (a) the refinancing of the Existing Credit Agreement and the other transactions contemplated thereby, (b) the making of the Borrowings hereunder on the Restatement Effective Date, (c) the execution and delivery by the Loan Parties of the Loan Documents to which they are a party, (d) the redemption of a portion of the 2016 Senior Subordinated Notes and (e) the payment of the Transaction Expenses.

 

Transaction Expenses” means any fees or expenses incurred or paid by the Borrower or any Restricted Subsidiary in connection with the Transaction, including payments to officers, employees and directors as change of control payments, severance payments, special or retention bonuses and charges for repurchase or rollover of, or modifications to, stock options in connection therewith.

 

Transformative Acquisition” means any acquisition by the Borrower or any of its Restricted Subsidiaries of an unrelated third party that is either (a) is not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or, (b) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under the Loan Documents for the continuation and/or expansion of their combined operations following such consummation (as determined by the Borrower acting in good faith) or (c) in connection with which the Borrower upsizes the 2020 Refinancing Term B Loans (including through an increase in the Class of the 2020 Refinancing Term B Loans or through the incurrence of another Class of Loans).

 

Transformative Disposition” shall mean a sale or other disposition of assets (or series of sales or other dispositions of assets) (including Equity Interests, and including by way of a merger or consolidation) accounting for greater than or equal to 30% of EBITDA (calculated on a pro forma basis) of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period.

 

Treasury Capital Stock” has the meaning set forth in Section 7.02(b)(ii)(A).

 

Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within 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.

 

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UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

 

Unaudited Financial Statements” has the meaning set forth in Section 4.01(c).

 

Unfunded Pension Liability” means, at a point in time, the excess of a Pension Plan’s benefit liabilities, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to applicable laws for the applicable plan year and includes any unfunded liability or solvency deficiency as determined for the purposes of the PBA.

 

Uniform Commercial Code” means the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

United States” and “U.S.” mean the United States of America.

 

Unrestricted” shall mean, when referring to cash or Cash Equivalents of the Borrower or any of its Subsidiaries, that such cash or Cash Equivalents are not Restricted.

 

Unrestricted Subsidiary” means (a) any Subsidiary of the Borrower which at the time of determination is an Unrestricted Subsidiary (as designated by the Borrower, as provided below) and (b) any Subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Subsidiary of the Borrower (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Borrower or any Subsidiary of the Borrower (other than solely any Subsidiary of the Subsidiary to be so designated); provided that

 

(i)                 any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Borrower;

 

(ii)               such designation complies with the covenant described under Section 7.02;

 

(iii)             each of (A) the Subsidiary to be so designated and (B) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Borrower or any Restricted Subsidiary; and

 

(iv)              immediately after giving effect to such designation, no Default shall have occurred and be continuing.

 

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The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, (I) no Default shall have occurred and be continuing and (II) either (A) the Borrower could satisfy the Fixed Charge Coverage Ratio Incurrence Test, on a pro forma basis taking into account such designation or (B) immediately after giving pro forma effect to such designation, as if such designation had occurred at the beginning of the applicable four-quarter period, the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries would be greater than the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction.

 

Any such designation by the Borrower shall be notified by the Borrower to the Administrative Agent by promptly filing with the Administrative Agent a copy of the resolution of the Board of Directors of the Borrower or any committee thereof giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.

 

U.S. Special Resolution Regimes” has the meaning provided in Section 10.27.

 

Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

 

Weighted Average Life to Maturity” means, when applied to any Indebtedness, Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing (a) the sum of the products of the number of years from the date of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by the amount of such payment; by (b) the sum of all such payments.

 

Wholly–Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares and shares issued to foreign nationals as required under applicable law) shall at the time be owned by such Person or by one or more Wholly–Owned Subsidiaries of such Person or by such Person and one or more Wholly–Owned Subsidiaries of such Person.

 

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.

 

SECTION 1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)             The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.

 

(b)            (i)           The words “herein”, “hereto”, “hereof” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Document as a whole and not to any particular provision thereof.

 

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(ii)             Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears.

 

(iii)            The term “including” is by way of example and not limitation. The word “or” is not exclusive.

 

(iv)           The term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.

 

(c)             In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.

 

(d)            Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(e)            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 Québec, (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 Québec, (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”.

 

SECTION 1.03. Accounting Terms. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP, except as otherwise specifically prescribed herein.

 

(b)                [Reserved].Notwithstanding anything in this Agreement to the contrary, unless the Borrower has notified the Administrative Agent in writing that this clause (b) shall not apply with respect to an applicable Test Period on or prior to the delivery of financial statements for such Test Period pursuant to Section 6.01, each provision under this Agreement, shall, in each case, be determined without giving effect to ASC 842 (Leases), except that financial statements delivered pursuant to Section 6.01 may be prepared in accordance with GAAP (including giving effect to ASC 842 (Leases)) as in effect at the time of such delivery).

 

(c)                The principal amount of any non-interest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP.

 

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SECTION 1.04. Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to be permitted under 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).

 

SECTION 1.05. References to Agreements, Laws, Etc.. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.

 

SECTION 1.06. Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

SECTION 1.07. Timing of Payment or Performance. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.

 

SECTION 1.08. Currency Equivalents Generally. Any amount specified in this Agreement (other than in Articles II, IX and X) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the rate of exchange quoted by the Reuters World Currency Page for the applicable currency at 11:00 a.m. (London time) on such day (or, in the event such rate does not appear on any Reuters World Currency Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower, or, in the absence of such agreement, such rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Dollars for delivery two Business Days later). For purposes of calculating the Consolidated Secured Debt Ratio and Consolidated Total Leverage Ratio, the equivalent in Dollars of any Indebtedness denominated in a currency other than Dollars will reflect the currency translation effects, determined in accordance with GAAP, of Swap Contracts for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such other Indebtedness.

 

SECTION 1.09. Change of Currency. Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify with the Borrower’s consent to appropriately reflect a change in currency of any country and any relevant market conventions or practices relating to such change in currency.

 

SECTION 1.10. Pro Forma and Other Calculations.

 

(a)           Notwithstanding anything to the contrary herein, financial ratios and tests, including the Consolidated Secured Debt Ratio, the Consolidated Total Leverage Ratio, Fixed Charge Coverage Ratio, and compliance with covenants determined by reference to EBITDA or Total Assets, shall be calculated in the manner prescribed by this Section 1.10; provided, however, that notwithstanding anything to the contrary in clauses (b), (c), (d), (e) or (f) of this Section 1.10, when calculating (i) the Consolidated Total Leverage Ratio for purposes of Section 2.05(b)(i) and determining the Required Percentage of Excess Cash Flow or (ii) the Consolidated Secured Debt Ratio for purposes of the definition of “Applicable Rate”, the events described in this Section 1.10 that occurred subsequent to the end of the applicable Excess Cash Flow Period or applicable Relevant Reference Period, respectively, shall not be given pro forma effect.

 

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(b)           For purposes of calculating any financial ratio or test or compliance with any covenant determined by reference to EBITDA or Total Assets, Specified Transactions (with any incurrence or repayment of any Indebtedness in connection therewith to be subject to clause (d) of this Section 1.10) that have been made (i) during the applicable Relevant Reference Period or (ii) other than as described in the proviso to clause (a) above, subsequent to such Relevant Reference Period and prior to or simultaneously with the event for which the calculation of any such ratio or test, or any such calculation of EBITDA or Total Assets, is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in EBITDA and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Relevant Reference Period (or, in the case of Total Assets, on the last day of the applicable Relevant Reference Period). If since the beginning of any applicable Relevant Reference Period any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any of the Restricted Subsidiaries since the beginning of such Relevant Reference Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.10, then such financial ratio or test (or EBITDA or Total Assets) shall be calculated to give pro forma effect thereto in accordance with this Section 1.10.

 

(c)           Whenever pro forma effect is to be given to a Specified Transaction, the pro forma calculations shall be made in good faith by a Responsible Officer of the Borrower and may include, for the avoidance of doubt, the amount of “run-rate” cost savings, synergies and operating expense reductions projected by the Borrower in good faith to be realized as a result of specified actions taken or with respect to which substantial steps have been taken or are expected in good faith to be taken (calculated on a pro forma basis as though such cost savings, operating expense reductions and synergies had been realized on the first day of such period and as if such cost savings, operating expense reductions and synergies were realized during the entirety of such period and such that “run-rate” means the full recurring benefit for a period that is associated with any action taken or for which substantial steps have been taken or are expected to be taken (including any savings expected to result from the elimination of a public target’s compliance costs with public company requirements) net of the amount of actual benefits realized during such period from such actions), and any such adjustments shall be included in the initial pro forma calculations of such financial ratios or tests relating to such Specified Transaction (and in respect of any subsequent pro forma calculations in which such Specified Transaction or cost savings, operating expense reductions and synergies are given pro forma effect) and during any applicable subsequent Relevant Reference Period for any subsequent calculation of such financial ratios and tests; provided that (A) such amounts are reasonably identifiable and factually supportable in the good faith judgment of the Borrower, (B) such actions are taken or substantial steps with respect to such actions are or are expected to be taken no later than eighteen (18) months after the date of such Specified Transaction and (C) no amounts shall be added to the extent duplicative of any amounts that are otherwise added back in computing EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period.

 

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(d)          In the event that (w) the Borrower or any Restricted Subsidiary incurs (including by assumption or guarantees) or repays (including by repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment) any Indebtedness (in each case, other than Indebtedness incurred or repaid under any revolving credit facility or line of credit in the ordinary course of business for working capital purposes) or (x) the Borrower or any Restricted Subsidiary issues, repurchases or redeems Disqualified Stock, (i) during the applicable Relevant Reference Period or (ii) subject to clause (a) above, subsequent to the end of the applicable Relevant Reference Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then such financial ratio or test shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock, in each case to the extent required, as if the same had occurred on the last day of the applicable Relevant Reference Period (except in the case of the Fixed Charge Coverage Ratio (or similar ratio), in which case such incurrence, assumption, guarantee, repurchase, redemption, repayment, retirement, discharge, defeasance or extinguishment of Indebtedness or such issuance, repurchase or redemption of Disqualified Capital Stock will be given effect as if the same had occurred on the first day of the applicable Relevant Reference Period).

 

(e)           If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Fixed Charge Coverage Ratio (or similar ratio) is made had been the applicable rate for the applicable entire period (taking into account any interest hedging arrangements applicable to such Indebtedness). Interest on a Capitalized Lease shall be deemed to accrue at an interest rate reasonably determined in good faith by a Responsible Officer of the Borrower to be the rate of interest implicit in such Capitalized Lease in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower or any applicable Restricted Subsidiary may designate.

 

(f)            In connection with any action being taken in connection with the consummation of a Limited Condition Transaction, for purposes of:

 

(i)                determining pro forma compliance with any provision of this Agreement which requires the calculation of any financial ratio or test, including the Consolidated Secured Debt Ratio, the Fixed Charge Coverage Ratio and the Consolidated Total Leverage Ratio; orFinancial Incurrence Test;

 

(ii)               testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of EBITDA or Total Assets); or

 

(iii)              determining the accuracy or compliance of any representation or warranty or the existence of any Default or Event of Default,

 

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in each case under this clause (f), at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder shall be deemed to be either (x) the date that the definitive agreement or irrevocable notice, as applicable, for such Limited Condition Transaction is entered into or (y) the date that such Limited Condition Transaction is consummated (any such date selected by the Borrower, anotherwise effective (theLCT Test Date”), and if, after giving pro forma effect to the applicable Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof), the, the Borrower or any of its Restricted Subsidiaries would have been permitted to take such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with; provided that (x) the Borrower may, in lieu of calculating any ratio, test or basket for purposes of clause (f)(i) or (f)(ii) above in connection with a Limited Condition Transaction, elect to calculate such ratio, test or basket for purposes of clauses (f)(i) and (f)(ii) above in respect of the last twelve fiscal months of the Borrower for which monthly financial statements are internally available by delivering an LTM Determination Notification) and (y) if financial statements for one or more subsequent fiscal quarters (or, if the Borrower has delivered an LTM Determination Notification, subsequent fiscal months) or fiscal years, as applicable, shall have become available prior to the consummation of the applicable Limited Condition Transaction, the Borrower may elect, in its sole discretion, to re-determine availability under any applicable ratio, test or basket for purposes of clause (f)(i) and (f)(ii) above on the basis of such financial statements, in which case, such date of redetermination shall thereafter be deemed to be the applicable LCT Test Date of such ratio, test or basket for purposes of clause (f)(i) and (f)(ii) above. For the avoidance of doubt, (i) if the Borrower has electedmade an LCT Test Date that is the date that the definitive agreement for a Limited Condition Transaction is entered intoElection and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date would have failed to have been satisfied as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in EBITDA, Consolidated Interest Expense or Total Assets, at or prior to the consummation of the relevant Limited Condition Transactiontransaction or action, such baskets, tests or ratios will not be deemed not to have failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the relevantand (ii) such ratios, tests or baskets shall not be tested at the time of consummation of such Limited Condition Transaction, unless the Borrower elects in its sole discretion to test such ratio, test or basket on the date such Limited Condition Transaction is permitted to be consummated under this Agreementinstead of the LCT Test Date. If the Borrower has electedmade an LCT Test Date that is the date that the definitive agreement for aElection for any Limited Condition Transaction is entered into, then in connection with any calculation of any ratio, test or basket with respect to any subsequent event or transaction occurring after the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires or date for redemption, repurchase, defeasance, satisfaction and discharge or repayment or otherwise specified in an irrevocable notice for such Limited Condition Transaction is terminated, expires or passes, as applicable, without consummation of such Limited Condition Transaction (a “Subsequent Transaction”) in connection with which a ratio, test or basket availability calculation must be made on a pro forma basis or giving pro forma effect to such Subsequent Transaction, for purposes of determining whether such ratio, test or basket availability has been complied with under this Agreement (and whether such Subsequent Transaction is permitted under this Agreement or any Loan Document), any such ratio, test or basket shall be required to be satisfied on a pro forma basis (x) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated.

 

(g)               With respect to (x) any amounts incurred or transactions entered into (or consummated) in reliance on a basket (any such basket, a “Fixed Basket”) of this Agreement (including any revolving loan and, to the extent established or incurred under clause (A) or (B) of “Available Incremental Amount”, Incremental Term Loans and Incremental Equivalent Debt) that does not require compliance with a Financial Incurrence Test (any such amounts, including for the avoidance of doubt, any grower component based on EBITDA or Total Assets, the “Fixed Amounts”), in each case under this clause (x), substantially concurrently with (y) any amounts incurred or transactions entered into (or consummated) in reliance on a basket (any such basket, a “Non-Fixed Basket”) of this Agreement (including Incremental Term Loans and Incremental Equivalent Debt incurred or established under clause (C) of “Available Incremental Amount” that requires compliance with a financial ratio or test (including the Consolidated Total Leverage Ratio, the Consolidated Secured Debt Ratio and the Fixed Charge Coverage Ratio) (any such financial ratio or test, a “Financial Incurrence Test”), it is understood and agreed that the amounts in clause (x) shall be disregarded in the calculation of the Financial Incurrence Test applicable to the amounts in clause (y); provided that, notwithstanding anything else provided herein, any amounts incurred or transactions entered into (or consummated) in reliance on a basket of this Agreement that is expressly limited by a fixed-dollar limitation (including any grower component based on a percentage of EBITDA or Total Assets) and that includes, as a condition to incurring (or consummating) applicable amounts or transactions, in reliance on such basket limited by a fixed-dollar limitation, a requirement of compliance with a Financial Incurrence Test shall constitute a “Fixed Amount” hereunder.

 

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(h)               For purposes of determining compliance with the covenants set forth in Article VII, in the event that any Lien, Investment, Indebtedness, Disqualified Stock or preferred Capital Stock, disposition or other sale or transfer of assets, Restricted Payment, Affiliate transaction, Contractual Requirement, or prepayment or redemption of Indebtedness (or, in each case of any of the foregoing, any portion thereof) meets the criteria of one, or more than one, of the applicable baskets of the applicable covenant (including within any sub-clauses, sub-categories or sub-items under this Agreement) then permitted pursuant to any clause of subsection of Article VII, as applicable, such transaction (or portion thereof) at any time shall be permitted under one or more of such baskets of such covenant (including within any sub-clauses, sub-categories or sub-items under this Agreement) at the time of such transaction or incurrence thereof or at any later time from time to time, in each case, as determined by the Borrower in its sole discretion at such time, and the Borrower may, in its sole discretion, classify and reclassify and, from time to time, later divide, classify or reclassify, such Lien, Investment, Indebtedness, Disqualified Stock or preferred Capital Stock, disposition or other sale or transfer of assets, Restricted Payment, Affiliate transaction, Contractual Requirement, or prepayment or redemption of Indebtedness (or, in each case of any of the foregoing, any portion thereof) among such applicable baskets of such covenant (including any sub-clauses, sub-categories or sub-items under this Agreement), as applicable, in any manner not expressly prohibited by this Agreement (and, for the avoidance of doubt, will only be required to include such transaction or incurrence in such of the applicable baskets of such covenant (including any sub-clauses, sub-categories or sub-items under this Agreement) as determined by Borrower at such time); provided that, notwithstanding the foregoing (x) all Indebtedness outstanding under the ABL Loan Documents incurred in reliance on Section 7.03(b)(i) will at all times be deemed to be outstanding in reliance on Section 7.03(b)(i), (y) all Indebtedness outstanding under the 2027 Senior Unsecured Notes Indenture on the Fourth Amendment Effective Date will at all times be deemed to be outstanding in reliance on Section 7.03(b)(ii) and (z) all Indebtedness outstanding under the 2027 Senior Secured Notes Indenture on the Fourth Amendment Effective Date will at all times be deemed to be outstanding in reliance on Section 7.03(b)(i).

 

(i)                 If any Lien, Investment, Indebtedness, Disqualified Stock or preferred Capital Stock, disposition or other sale or transfer of assets, Restricted Payment, Affiliate transaction, Contractual Requirement, prepayment or redemption of Indebtedness or other transaction or action is incurred, issued or consummated in reliance on a Basket measured by reference to a percentage of EBITDA or Total Assets, and any such Lien, Investment, Indebtedness, Disqualified Stock or preferred Capital Stock, disposition or other sale or transfer of assets, Restricted Payment, Affiliate transaction, Contractual Requirement, prepayment or redemption of Indebtedness or other transaction or action would subsequently exceed the applicable percentage of EBITDA or Total Assets, as applicable, under such basket if calculated based on the EBITDA or Total Assets, as applicable, on a later date (including the date of any refinancing), such percentage of EBITDA or Total Assets, as applicable, will be deemed not to be exceeded; provided that, in the case of refinancing any Indebtedness, Disqualified Stock or preferred Capital Stock (and any related Lien) in reliance on this clause (i), the principal amount of such refinancing Indebtedness, Disqualified Stock or preferred Capital Stock does not exceed the aggregate outstanding principal amount, accreted value or liquidation preference of the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock, plus the amount of any unused commitments thereunder, plus accrued interest, fees, expenses, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock, plus underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of such Indebtedness, Disqualified Stock or preferred Capital Stock and the incurrence or issuance of such refinancing Indebtedness, Disqualified Stock or preferred Capital Stock.

 

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SECTION 1.11. Divisions. 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 and acquired on the first date of its existence by the holders of its Equity Interests at such time.

 

SECTION 1.12. Interest Rates; LIBOR Notification. The interest rate on Eurocurrency Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Section 3.03(b) and (c) provide a mechanism for (a) determining an alternative rate of interest if the LIBO Rate is no longer available or in the other circumstances set forth in Section 3.03(b) and (b) modifying this Agreement to give effect to such alternative rate of interest. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

 

ARTICLE II

The Commitments and Credit Extensions

 

SECTION 2.01. The Loans. Subject to the terms and conditions set forth herein, or in the First Amendment, the Second Amendment or the ThirdFourth Amendment, as applicable:

 

(a)           On the Restatement Effective Date, each Lender severally agrees to make to the Borrower Term B Loans denominated in Dollars in a principal amount equal to such Lender’s Term B Commitment on (and as of) the Restatement Effective Date.

 

(b)           On the First Amendment Effective Date, each Lender severally agrees to make to the Borrower Incremental 2014 Term Loans denominated in Dollars in a principal amount equal to such Lender’s Incremental 2014 Term Commitment on (and as of) the First Amendment Effective Date.

 

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(c)           On the Initial Second Amendment Effective Date, (A) each Lender holding Term B Loans that is a 2016 Converting Replacement Term B-1 Loan Lender severally agrees that, without further action by any party to this Agreement, a portion of such Lender’s Term B Loans equal to such Lender’s Allocated Replacement Term B-1 Loan Conversion Amount shall automatically be converted into a 2016 Converted Replacement Term B-1 Loan to the Borrower in Dollars and in like principal amount, (B) each 2016 New Replacement Term B-1 Loan Lender severally agrees to make a 2016 New Replacement Term B-1 Loan to the Borrower on the Initial Second Amendment Effective Date denominated in Dollars in a principal amount not to exceed its 2016 New Replacement Term B-1 Loan Commitment, (C) each Lender holding Incremental 2014 Term Loans that is a 2016 Converting Replacement Term B-2 Loan Lender severally agrees that, without further action by any party to this Agreement, a portion of such Lender’s Incremental 2014 Term Loans equal to such Lender’s Allocated Replacement Term B-2 Loan Conversion Amount shall automatically be converted into a 2016 Converted Replacement Term B-2 Loan to the Borrower in Dollars and in like principal amount and (D) each 2016 New Replacement Term B-2 Loan Lender severally agrees to make a 2016 New Replacement Term B-2 Loan to the Borrower on the Initial Second Amendment Effective Date denominated in Dollars in a principal amount not to exceed its 2016 New Replacement Term B-2 Loan Commitment. Immediately following the incurrence of the 2016 Replacement Term B-1 Loans and the 2016 Replacement Term B-2 Loans, in each case, on the Initial Second Amendment Effective Date (and the application of the proceeds thereof as provided in Section 4(a)(vi) of the Second Amendment), all such 2016 Replacement Term B-2 Loans shall be converted into 2016 Replacement Term B-1 Loans pursuant to the 2016 Replacement Term Loan Conversion.

 

(a)           [Reserved].

 

(b)           [Reserved].

 

(c)           [Reserved].

 

(d)           [Reserved].

 

(de)         On the ThirdFourth Amendment Effective Date, (A) each Lender holding 20162018 Replacement Term B-1B Loans that is a 20182020 Converting ReplacementRefinancing Term B Loan Lender severally agrees that, without further action by any party to this Agreement, a portion of such Lender’s 20162018 Replacement Term B-1B Loans equal to such Lender’s Allocated 2018 Replacement2020 Refinancing Term B Loan Conversion Amount shall automatically be converted into a 20182020 Converted ReplacementRefinancing Term B Loan to the Borrower in Dollars and in like principal amount and (B) each 20182020 New ReplacementRefinancing Term B Loan Lender severally agrees to make a 20182020 New ReplacementRefinancing Term B Loan to the Borrower on the ThirdFourth Amendment Effective Date denominated in Dollars in a principal amount not to exceed its 20182020 New ReplacementRefinancing Term B Loan Commitment.

 

(ef)          Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

 

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SECTION 2.02. Borrowings, Conversions and Continuations of Loans. (a) Each Borrowing, each conversion of Loans of a given Class from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s delivery of an irrevocable noticeCommitted Loan Notice to the Administrative Agent, which may be given by telephone. Each such noticeCommitted Loan Notice must be received by the Administrative Agent not later than 12:30 p.m. (New York, New York time) (i) three (3) Business Days prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans or any conversion of Base Rate Loans to Eurocurrency Rate Loans, and (ii) one (1) Business Day before the requested date of any Borrowing of Base Rate Loans or conversion of any Eurocurrency Rate Loans to Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by deliveryCommitted Loan Notice must be delivered to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $2,500,000 or a whole multiple of $500,000 in excess thereof, or such other amount as requested by the Borrower from time to time and agreed to by Administrative Agent in its sole discretion. Each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, or such other amount as requested by the Borrower from time to time and agreed to by Administrative Agent in its sole discretion. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing (and the applicable Class thereof), a conversion of Loans of a given Class from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

 

(a)               Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata Share of the applicable Class of Loans or Commitments, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation described in Section 2.02(a). In the case of each Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.01 (or in any applicable Extension Amendment, Incremental Amendment or Refinancing Amendment) and Section 4.02, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

 

(b)                Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan unless the Borrower pays the amount due, if any, under Section 3.05 in connection therewith. During the existence of an Event of Default, the Administrative Agent or the Required Lenders may require by written notice to the Borrower that no Loans may be converted to or continued as Eurocurrency Rate Loans.

 

(c)                The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. The determination of the Eurocurrency Rate by the Administrative Agent shall be conclusive in the absence of manifest error. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in the Administrative Agent’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

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(d)                After giving effect to all Borrowings, all conversions of Loans of a given Class from one Type to the other, and all continuations of Loans of a given Class as the same Type, there shall not be more than eight (8) Interest Periods in effect (or such greater number as may be acceptable to the Administrative Agent); provided that after the establishment of any new Class of Loans pursuant to an Incremental Amendment, Refinancing Amendment or Extension Amendment, the number of Interest Periods otherwise permitted by this Section 2.02(e) shall increase by three (3) Interest Periods for each applicable Class so established.

 

(e)                The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

 

(f)                 No conversion of (i) outstanding 2018 Replacement Term B Loans into 2016 Converted Replacement Term B-1 Loans pursuant to the 2016 Replacement Term B-1 Loan Conversion, (ii) outstanding Incremental 2014 Term Loans into 2016 Converted Replacement Term B-2 Loans pursuant to the 2016 Replacement Term B-2 Loan Conversion, (iii) outstanding 2016 Replacement Term B-2 Loans into 2016 Replacement Term B-1 Loans pursuant to the 2016 Replacement Term Loan Conversion or (iv) outstanding 2016 Replacement Term B-1 Loans into 2018 Converted Replacement2020 Converted Refinancing Term B Loans pursuant to the 2018 Replacement2020 Refinancing Term B Loan Conversion shall, in any case, constitute a voluntary or mandatory payment, prepayment or commitment reduction for purposes of this Agreement.

 

SECTION 2.03. [RESERVED].

 

SECTION 2.01. [RESERVED].

 

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SECTION 2.02. Prepayments. (a) Optional. (i) The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay any Class or Classes of Loans in whole or in part without premium or penalty; provided that (1) such notice must be received by the Administrative Agent not later than 12:30 p.m. (New York, New York time) (A) three (3) Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (B) one (1) Business Day prior to any date of prepayment of Base Rate Loans; (2) any prepayment of Eurocurrency Rate Loans shall be in a principal amount of $2,500,000 or a whole multiple of $500,000 in excess thereof; (3) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding; and (4) any prepayment of Term B Loans made prior to the first anniversary of the Restatement Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee described in Section 2.09(b); (5) any prepayment of Incremental 2014 Term2020 Refinancing Term B Loans made on or prior to the six-month anniversary of the FirstFourth Amendment Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Section 2.09(c); (6) any prepayment of 2016 Replacement Term B-1 Loans made on or prior to the six-month anniversary of the Initial Second Amendment Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Section 2.09(d) and (7) any prepayment of 2018 Replacement Term B Loans made on or prior to the six-month anniversary of the Third Amendment Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Section 2.09(eb). Each such notice shall specify the date and amount of such prepayment, the Class(es) and Type(s) of Loans to be prepaid (such Class(es) and Type(s) of Loans to be selected by the Borrower) and the manner in which the Borrower elects to have such prepayment applied to scheduled repayments of Loans of a given Class required pursuant to Section 2.07; provided that in the event such notice fails to specify the manner in which the respective prepayment shall be applied to scheduled repayments of such Class of Loans required pursuant to Section 2.07, such prepayment of such Class of Loans shall be applied in direct order of maturity to scheduled repayments thereof required pursuant to Section 2.07. The Administrative Agent will promptly notify each Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest thereon, together with any additional amounts required pursuant to Section 3.05. Each prepayment of the Loans of a given Class pursuant to this Section 2.05(a) shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares; provided that, notwithstanding anything to the contrary herein, (x) 20162020 Converted ReplacementRefinancing Term B-1B Loans outstanding on the Initial SecondFourth Amendment Effective Date immediately after the 2016 Replacement2020 Refinancing Term B-1B Loan Conversion and immediately prior to the prepayment of 2018 Replacement Term B Loans not subject to the 2016 Replacement2020 Refinancing Term B-1B Loan Conversion with the Net Proceeds of 20162020 New ReplacementRefinancing Term B-1B Loans shall not be subject to ratable prepayment on the Initial SecondFourth Amendment Effective Date with Term B Loans, (y) 2016 Converted Replacement Term B-2 Loans outstanding on the Initial Second Amendment Effective Date immediately after the 2016 Replacement Term B-2 Loan Conversion and immediately prior to the prepayment of Incremental 2014 Term Loans not subject to the 2016 Replacement Term B-2 Loan Conversion with the Net Proceeds of 2016 New Replacement Term B-2 Loans shall not be subject to ratable prepayment on the Initial Second Amendment Effective Date with Incremental 2014 Term Loans and (z) 2018 Converted Replacement Term B Loans outstanding on the Third Amendment Effective Date immediately after the 2018 Replacement Term B Loan Conversion and immediately prior to the prepayment of 2016 Replacement Term B-1 Loans not subject to the 2018 Replacement Term B Loan Conversion with the Net Proceeds of 2018 New Replacement Term B Loans shall not be subject to ratable prepayment on the Third Amendment Effective Date with 2016 Replacement Term B-12018 Replacement Term B Loans. Notwithstanding anything to the contrary herein, no notice contemplated by this Section 2.05(a) shall be required in connection with any voluntary prepayment of Term B Loans and Incremental 2014 Term Loans contemplated by the Second Amendment or any voluntary prepayment of 2016 Replacement Term B-12018 Replacement Term B Loans contemplated by the ThirdFourth Amendment.

 

(ii)       Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(a)(i) if such prepayment would have resulted from a refinancing of all or a portion of the outstanding Loans of a given Class, which refinancing shall not be consummated or shall otherwise be delayed.

 

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(iii)      Notwithstanding anything in any Loan Document to the contrary, so long as (x) no Event of Default has occurred and is continuing and (y) no proceeds of ABL Loans or Incremental Term Loans are used for this purpose, any Company Party may prepay the outstanding Loans (which shall, for the avoidance of doubt, be automatically and permanently canceled immediately upon such prepayment) (or any Holdco, the Borrower or any of its Subsidiaries may purchase such outstanding Loans and immediately cancel them) on the following basis:

 

(A)      Any Company Party shall have the right to make a voluntary prepayment of Loans at a discount to par pursuant to a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers (any such prepayment, the “Discounted Term Loan Prepayment”), in each case made in accordance with this Section 2.05(a)(iii); provided that no Company Party shall initiate any action under this Section 2.05(a)(iii) in order to make a Discounted Term Loan Prepayment unless (I) at least ten (10) Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by a Company Party on the applicable Discounted Prepayment Effective Date; or (II) at least three (3) Business Days shall have passed since the date the Company Party was notified that no Term Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of any Company Party’s election not to accept any Solicited Discounted Prepayment Offers.

 

(B)       (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time offer to make a Discounted Term Loan Prepayment by providing the Auction Agent with five (5) Business Days’ notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Loans on an individual tranche basis, (II) any such offer shall specify the aggregate principal amount offered to be prepaid (the “Specified Discount Prepayment Amount”) with respect to each applicable tranche, the tranche or tranches of Loans subject to such offer and the specific percentage discount to par (the “Specified Discount”) of such Loans to be prepaid (it being understood that different Specified Discounts and/or Specified Discount Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.05(a)(iii)(B)), (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Term Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three (3) Business Days upon notice by the Company Party to the Auction Agent) (the “Specified Discount Prepayment Response Date”).

 

(2)       Each Term Lender receiving such offer shall notify the Auction Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its applicable then outstanding Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount and the tranches of such Lender’s Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Term Lender whose Specified Discount Prepayment Response is not received by the Auction Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the applicable Borrower Offer of Specified Discount Prepayment.

 

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(3)       If there is at least one (1) Discount Prepayment Accepting Lender, the relevant Company Party will make a prepayment of outstanding Loans pursuant to this paragraph (B) to each Discount Prepayment Accepting Lender on the Discounted Prepayment Effective Date in accordance with the respective outstanding amount and tranches of Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to subsection (2) above; provided that, if the aggregate principal amount of Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective principal amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Auction Agent (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Auction Agent shall promptly, and in any case within three (3) Business Days following the Specified Discount Prepayment Response Date, notify (I) the relevant Company Party of the respective Term Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, and the aggregate principal amount and the tranches of Loans to be prepaid at the Specified Discount on such date and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the principal amount, tranche and Type of Loans of such Term Lender to be prepaid at the Specified Discount on such date. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Company Party and such Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

(C)       (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Discount Range Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate principal amount of the relevant Loans (the “Discount Range Prepayment Amount”), the tranche or tranches of Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the principal amount of such Loans with respect to each relevant tranche of Loans willing to be prepaid by such Company Party (it being understood that different Discount Ranges and/or Discount Range Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.05(a)(iii)(C)), (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by a Company Party shall remain outstanding through the Discount Range Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Lenders (which date may be extended for a period not exceeding three (3) Business Days upon notice by the Company Party to the Auction Agent) (the “Discount Range Prepayment Response Date”). Each Term Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Term Lender is willing to allow prepayment of any or all of its then outstanding Loans of the applicable tranche or tranches and the maximum aggregate principal amount and tranches of such Lender’s Loans (the “Submitted Amount”) such Term Lender is willing to have prepaid at the Submitted Discount. Any Term Lender whose Discount Range Prepayment Offer is not received by the Auction Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Loans at any discount to their par value within the Discount Range.

 

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(2)       The Auction Agent shall review all Discount Range Prepayment Offers received on or before the applicable Discount Range Prepayment Response Date and shall determine (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the Applicable Discount and Loans to be prepaid at such Applicable Discount in accordance with this subsection (C). The relevant Company Party agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by the Auction Agent within the Discount Range by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par within the Discount Range being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate principal amount equal to the lower of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Term Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Submitted Amount (subject to any required proration pursuant to the following subsection (3)) at the Applicable Discount (each such Term Lender, a “Participating Lender”).

 

(3)       If there is at least one (1) Participating Lender, the relevant Company Party will prepay the respective outstanding Loans of each Participating Lender on the Discounted Prepayment Effective Date in the aggregate principal amount and of the tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the principal amount of the relevant Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Auction Agent (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Auction Agent shall promptly, and in any case within five (5) Business Days following the Discount Range Prepayment Response Date, notify (I) the relevant Company Party of the respective Term Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount of the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate principal amount and tranches of Loans to be prepaid at the Applicable Discount on such date, (III) each Participating Lender of the aggregate principal amount and tranches of such Term Lender to be prepaid at the Applicable Discount on such date, and (IV) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the relevant Company Party and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

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(D)       (1) Subject to the proviso to subsection (A) above, any Company Party may from time to time solicit Solicited Discounted Prepayment Offers by providing the Auction Agent with five (5) Business Days’ notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of such Company Party, to (x) each Term Lender and/or (y) each Term Lender with respect to any Class of Loans on an individual tranche basis, (II) any such notice shall specify the maximum aggregate amount of the Loans (the “Solicited Discounted Prepayment Amount”) and the tranche or tranches of Loans the applicable Company Party is willing to prepay at a discount (it being understood that different Solicited Discounted Prepayment Amounts may be offered with respect to different tranches of Loans and, in such event, each such offer will be treated as a separate offer pursuant to the terms of this Section 2.05(a)(iii)(D)), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $1,000,000 in excess thereof and (IV) each such solicitation by a Company Party shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Auction Agent will promptly provide each Appropriate Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., on the third Business Day after the date of delivery of such notice to such Term Lenders (which date may be extended for a period not exceeding three (3) Business Days upon notice by the Company Party to the Auction Agent) (the “Solicited Discounted Prepayment Response Date”). Each Term Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which such Term Lender is willing to allow prepayment of its then outstanding Loan and the maximum aggregate principal amount and tranches of such Loans (the “Offered Amount”) such Term Lender is willing to have prepaid at the Offered Discount. Any Term Lender whose Solicited Discounted Prepayment Offer is not received by the Auction Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Loans at any discount.

 

(2)       The Auction Agent shall promptly provide the relevant Company Party with a copy of all Solicited Discounted Prepayment Offers received on or before the Solicited Discounted Prepayment Response Date. Such Company Party shall review all such Solicited Discounted Prepayment Offers and select the largest of the Offered Discounts specified by the relevant responding Term Lenders in the Solicited Discounted Prepayment Offers that is acceptable to the Company Party in its sole discretion (the “Acceptable Discount”), if any. If the Company Party elects, in its sole discretion, to accept any Offered Discount as the Acceptable Discount, then in no event later than by the third Business Day after the date of receipt by such Company Party from the Auction Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this subsection (2) (the “Acceptance Date”), the Company Party shall submit an Acceptance and Prepayment Notice to the Auction Agent setting forth the Acceptable Discount. If the Auction Agent shall fail to receive an Acceptance and Prepayment Notice from the Company Party by the Acceptance Date, such Company Party shall be deemed to have rejected all Solicited Discounted Prepayment Offers.

 

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(3)       Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, within three (3) Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Auction Agent will determine (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) the aggregate principal amount and the tranches of Loans (the “Acceptable Prepayment Amount”) to be prepaid by the relevant Company Party at the Acceptable Discount in accordance with this Section 2.05(a)(iii)(D). If the Company Party elects to accept any Acceptable Discount, then the Company Party agrees to accept all Solicited Discounted Prepayment Offers received by Auction Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Term Lender that has submitted a Solicited Discounted Prepayment Offer with an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Loans equal to its Offered Amount (subject to any required pro-rata reduction pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The Company Party will prepay outstanding Loans pursuant to this subsection (D) to each Qualifying Lender in the aggregate principal amount and of the tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the principal amount of the Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Auction Agent (in consultation with such Company Party and subject to rounding requirements of the Auction Agent made in its sole reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Auction Agent shall promptly notify (I) the relevant Company Party of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the tranches to be prepaid, (II) each Term Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Loans and the tranches to be prepaid at the Applicable Discount on such date, (III) each Qualifying Lender of the aggregate principal amount and the tranches of such Term Lender to be prepaid at the Acceptable Discount on such date, and (IV) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Auction Agent of the amounts stated in the foregoing notices to such Company Party and Term Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to such Company Party shall be due and payable by such Company Party on the Discounted Prepayment Effective Date in accordance with subsection (F) below (subject to subsection (J) below).

 

(E)       In connection with any Discounted Term Loan Prepayment, the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of customary and documented fees and out-of-pocket expenses from a Company Party in connection therewith.

 

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(F)       If any Loan is prepaid in accordance with paragraphs (B) through (D) above, a Company Party shall prepay such Loans on the Discounted Prepayment Effective Date, without premium or penalty. The relevant Company Party shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s Office in immediately available funds not later than 11:00 a.m. on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the relevant tranche of Loans on a pro-rata basis across such installments. The Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Loans pursuant to this Section 2.05(a)(iii) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, and shall be applied to the relevant Loans of such Term Lenders in accordance with their respective Pro Rata Share or other applicable share hereunder. The aggregate principal amount of the tranches and installments of the relevant Loans outstanding shall be deemed reduced by the full par value of the aggregate principal amount of the tranches of Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term Loan Prepayment.

 

(G)       To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Section 2.05(a)(iii), established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the applicable Company Party.

 

(H)      Notwithstanding anything in any Loan Document to the contrary, for purposes of this Section 2.05(a)(iii), each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.

 

(I)        Each of the Company Parties and the Term Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this Section 2.05(a)(iii) by itself or through any Affiliate of the Auction Agent and expressly consents to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this Section 2.05(a)(iii) as well as activities of the Auction Agent.

 

(J)        Each Company Party shall have the right, by written notice to the Auction Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is revoked pursuant to the preceding clauses, any failure by such Company Party to make any prepayment to a Lender, as applicable, pursuant to this Section 2.05(a)(iii) shall not constitute a Default or Event of Default under Section 8.01 or otherwise).

 

(iv)      In connection with the incurrence of 2016 New Replacement Term B-1 Loans pursuant to Section 2.01(c)(B) and the repayment of Term B Loans with the proceeds thereof, the Lenders and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower shall be obligated to pay to each 2016 Non-Converting Replacement Term B-1 Loan Lender all breakage or other costs of the type referred to in Section 3.05 (if any) incurred or suffered in connection with the repayment of the outstanding Term B Loans of such 2016 Non-Converting Replacement Term B-1 Loan Lender with the proceeds of 2016 New Replacement Term B-1 Loans (it being understood that breakage or other costs of the type referred to in Section 3.05 (if any) shall not be payable to 2016 Converting Replacement Term B-1 Loan Lenders in connection with (x) the 2016 Replacement Term B-1 Loan Conversion or (y) any Term B Loans of such 2016 Converting Replacement Term B-1 Loan Lender which are not subject to the 2016 Replacement Term B-1 Loan Conversion and which are prepaid with the proceeds of the 2016 New Replacement Term B-1 Loans).

 

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(v)       In connection with the incurrence of 2016 New Replacement Term B-2 Loans pursuant to Section 2.01(c)(D) and the repayment of Incremental 2014 Term Loans with the proceeds thereof, the Lenders and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower shall be obligated to pay to each 2016 Non-Converting Replacement Term B-2 Loan Lender all breakage or other costs of the type referred to in Section 3.05 (if any) incurred or suffered in connection with the repayment of the outstanding Incremental 2014 Term Loans of such 2016 Non-Converting Replacement Term B-2 Loan Lender with the proceeds of 2016 New Replacement Term B-2 Loans (it being understood that breakage or other costs of the type referred to in Section 3.05 (if any) shall not be payable to 2016 Converting Replacement Term B-2 Loan Lenders in connection with (x) the 2016 Replacement Term B-2 Loan Conversion or (y) any Incremental 2014 Term Loans of such 2016 Converting Replacement Term B-2 Loan Lender which are not subject to the 2016 Replacement Term B-2 Loan Conversion and which are prepaid with the proceeds of the 2016 New Replacement Term B-2 Loans).

 

(viiv)   In connection with the incurrence of 20182020 New ReplacementRefinancing Term B Loans pursuant to Section 2.01(de)(B) and the repayment of 20162018 Replacement Term B-1B Loans with the proceeds thereof, the Lenders and the Borrower hereby agree that, notwithstanding anything to the contrary contained in this Agreement, the Borrower shall be obligated to pay to each 20182020 Non-Converting ReplacementRefinancing Term B Loan Lender all breakage or other costs of the type referred to in Section 3.05 (if any) incurred or suffered in connection with the repayment of the outstanding 2016 Replacement Term B-1 Loans of such 2018 Non-Converting2018 Replacement Term B Loans of such 2020 Non-Converting Refinancing Term B Loan Lender with the proceeds of 20182020 New ReplacementRefinancing Term B Loans (it being understood that breakage or other costs of the type referred to in Section 3.05 (if any) shall not be payable to 20182020 Converting ReplacementRefinancing Term B Loan Lenders in connection with (x) the 2018 Replacement2020 Refinancing Term B Loan Conversion or (y) any 20162018 Replacement Term B-1B Loans of such 20182020 Converting ReplacementRefinancing Term B Loan Lender which are not subject to the 2018 Replacement2020 Refinancing Term B Loan Conversion and which are prepaid with the proceeds of the 20182020 New ReplacementRefinancing Term B Loans).

 

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(b)                (a) Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall cause to be prepaid an aggregate principal amount of Loans in an amount equal to (A) the Required Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus (B) the aggregate amount of all voluntary prepayments of Loans (excluding prepayments pursuant to Section 2.05(a)(iii)with respect to any such prepayments or repurchases below par, with credit given for the actual amount of the cash payment) or other Indebtedness permitted hereunder that is secured on a pari passu basis with the Obligations (with corresponding commitment reductions in the case of any such Indebtedness that is revolving Indebtedness) during such Excess Cash Flow Period to the extent such prepayments are not funded with the proceeds of Indebtedness.; provided however, that the Borrower may use a portion of such Excess Cash Flow to prepay or repurchase any Other Applicable Indebtedness to the extent the documents governing such Indebtedness require such a prepayment or repurchase thereof with Excess Cash Flow, in each case in an amount not to exceed the lesser of (i) the amount required under the documents governing such Indebtedness and (ii) a pro rata payment amount based on the outstanding principal amounts of such Indebtedness and the Loans.

 

(ii)               (A) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower shall cause to be prepaid an aggregate principal amount of Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Proceeds.

 

(B) If the Borrower incurs or issues any Credit Agreement Refinancing Indebtedness (other than solely by means of extending or renewing then existing Credit Agreement Refinancing Indebtedness of the type described in clause (a), (b) or (c) of the definition thereof without resulting in any Net Proceeds), the Borrower shall prepay an aggregate principal amount of Loans in an amount equal to 100% of the Net Proceeds of such Credit Agreement Refinancing Indebtedness on the date such Credit Agreement Refinancing Indebtedness is incurred or issued. Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under Section 2.05(b)(ii)(B) if such prepayment would have resulted from the incurrence of issuance of Credit Agreement Refinancing Indebtedness, which incurrence or issuance shall not be consummated or shall otherwise be delayed.

 

(iii)               The amount of each principal repayment of Loans made as required by this Section 2.05(b) shall be applied pro rata to each Class of Loans (based upon the then outstanding principal amounts of the respective Classes of Loans); provided, that (A) any prepayment of Loans with the Net Proceeds of, or in exchange for, Credit Agreement Refinancing Indebtedness may be applied to the applicable Class or Classes of Refinanced Debt selected by the Borrower, and (B) at the request of the Borrower, in lieu of such application on a pro rata basis among all Classes of Loans, such prepayment may be applied to any Class of Loans so long as the Maturity Date of such Class of Loans (or such Classes of Loans) precedes the Maturity Date of each other Class of Loans then outstanding or, in the event more than one Class of Loans shall have an identical Maturity Date, to such Classes on a pro rata basis. Each prepayment of Loans of a given Class pursuant to this Section 2.05(b) shall be applied in direct order of maturity to scheduled repayments of such Loans required pursuant to Section 2.07 and each such prepayment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Shares.

 

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(iv)              The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clauses (i) and (ii) of this Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment and shall specify the Class(es) and Type(s) of Loans to be prepaid (such Class(es) and Type(s) of Loans to be selected by the Borrower in accordance with Section 2.05(b)(iii)). The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.

 

(c)                (b) Asset Sale/Casualty Event Offer to Purchase. (i) Within 450 days after the receipt of any Net Proceeds of any Asset Sale or Casualty Event in respect of TL Priority Collateral, the Borrower or the applicableany Restricted Subsidiary, at its option, may apply cash in an amount equal to the Net Proceeds from such Asset Sale or Casualty Event (A) (I) if the assets subject to the respective Asset Sale or Casualty Event constituted TL Priority Collateral (x) to make an offer to the Appropriate Lenders to prepay Loans in accordance with the procedures set forth below for an Asset Sale/Casualty Event Offer, with each such prepayment pursuant to this Section 2.05(c) to be applied ratably to each Class of Loans then outstanding; provided that, at the request of the Borrower, in lieu of such application on a pro rata basis among all Classes of Loans, such prepayment may be applied to any Class of Loans so long as the Maturity Date of such Class of Loans (or such Classes of Loans) precedes the Maturity Date of each other Class of Loans then outstanding or, in the event more than one Class of Loans shall have an identical Maturity Date, to such Classes on a pro rata basis, or (y) to prepay, purchase, redeem or permanently reduce (or make an offer to purchase, prepay, redeem or permanently reduce) Permitted First Priority Refinancing Debt, the 2027 Senior Secured Notes, Incremental Equivalent Debt that is secured by a Lien on the Collateral that ranks on a pari passu basis (without regard to control of remedies) with the Obligations or other Indebtedness permitted by Section 7.03 that is secured by a Lien on the Collateral that ranks on a pari passu basis (without regard to control of remedies) with the Obligations (or, in each case, any Indebtedness pursuant to a Permitted Refinancing in respect thereof that is secured by a Lien on the Collateral that ranks on a pari passu basis (without regard to control of remedies) with the Obligations) pursuant to the terms of the documentation governing such Indebtedness, in each case under this clause (y), with such Net Proceeds from such Asset Sale or Casualty Event (such Permitted First Priority Refinancing Debt, Incremental Equivalent Debt or other Indebtedness permitted by Section 7.03 that is incurred after the Restatement Effective Date or, in each case, any Indebtedness pursuant to a Permitted Refinancing in respect thereof and secured by a Permitted Lien on a pari passu basis (without regard to control of remedies) with the Obligations (Indebtedness set forth under this clause (y), collectively, Other Applicable Indebtedness”)); provided, however, that in connection with any prepayment, redemption, reduction, repayment or purchase of Indebtedness pursuant to clause (I)(y), (1) the Borrower or such Restricted Subsidiary shall permanently retire such Indebtedness and, in the case of obligations under revolving credit facilities or other similar Indebtedness, shall correspondingly permanently reduce commitments with respect thereto (other than obligations owed to the Borrower or a Restricted Subsidiary) and (2) the Borrower or such Restricted Subsidiary will equally and ratably reduce the amount of Indebtedness outstanding under this Agreement by, at its option, prepaying Loans in accordance with Section 2.05(a) or making an offer to all Appropriate Lenders to prepay their Loans in accordance with the procedures set forth below for an Asset Sale/Casualty Event Offer, or (II) if the assets subject to the respective Asset Sale or Casualty Event constituted ABL Priority Collateral, to repay outstanding ABL Loans as, and to the extent, required by any “cash sweep” provisions in the ABL Credit Agreement, or (B) so long as no Event of Default then exists, to acquire Additional Assets; provided, however, that, if the assets subject to the respective Asset Sale or Casualty Event constituted TL Priority Collateral, any such Additional Assets so acquired shall constitute TL Priority Collateral and concurrently with their acquisition shall be added to the Collateral securing the Secured Obligations in accordance with the provisions of Section 6.11 and the Collateral Documents, and provided, further, that to the extent such Additional Assets constitute the Capital Stock of any Person that is required to become a Guarantor pursuant to the Collateral and Guarantee Requirement and Section 6.11, the assets of such Person that may be used or useful in a Similar Business are, in accordance with the provisions of Section 6.11 and the Collateral Documents, concurrently with the acquisition added to the Collateral securing the Secured Obligations. Notwithstanding the foregoing, if during such 450-day period (provided that (X) if an offer to purchase, prepay, redeem or permanently reduce any Loan or Other Applicable Indebtedness is made, whether or not accepted by the holders of such Indebtedness, the amount of such offer shall be deemed not to be Net Proceeds for purposes of determining Excess Proceeds following such offer and (Y) if the holder of any Loan or Other Applicable Indebtedness declines the prepayment, redemption or purchase of such Indebtedness owed to it from such Net Proceeds, such declined amount will be deemed not to be Net Proceeds for purposes of determining Excess Proceeds; provided, further, that any such declined amounts under this sub-clause (Y), together with any offered amounts not accepted for purchase pursuant to sub-clause (X) above shall constitute “Declined Amounts”); or (B) to acquire Additional Assets; provided that in the case of this clause (B), a binding commitment or a binding letter of intent will be treated as a permitted application of the Net Proceeds from the date of such commitment or binding letter of intent so long as the Borrower or a Restricted Subsidiary enters into a definitivesuch commitment or binding agreement committing it to applyletter of intent with the good faith expectation that such Net Proceeds of any Asset Sale or Casualty Event to acquire Additional Assets pursuant to clause (B) of this Section 2.05(c), then, so long as no Event of Default then exists, such 450-day period will be extended with respect to the amount of Net Proceeds so committed untilwill be applied to satisfy such commitment or binding letter of intent within 180 days of such commitment or binding letter of intent (or, if later, 450 days after the receipt of such Net Proceeds are required to be applied in accordance with such agreement (but such extension will in no event be for a period longer than 180 days) (or, if earlier, the date of termination of such agreement).) (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then such Net Proceeds will constitute Excess Proceeds.

 

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(ii)                Any Net Proceeds from the Asset Sale or the Casualty Event, as the case may be, that are not invested or applied as provided and within the time period set forth in Section 2.05(c)(i) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $100,000,000, the Borrower shall (x) make an offer within ten (10) Business Days after the date that Excess Proceeds exceed $100,000,000 to all Appropriate Lenders in accordance with the procedures set forth below for an Asset Sale/Casualty Event Offer, to prepay the maximum aggregate principal amount of Loans that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at a prepayment price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of prepayment in accordance with the terms contemplated in this Section 2.05(c); and (y) prepay all the Loans of such Lenders properly accepting such offer of prepayment in accordance with such Asset Sale/Casualty Event Offer (subject to the proration provisions set forth in paragraph (v) of this Section 2.05(c)). The Borrower may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale or a Casualty Event, as the case may be, by making an Asset Sale/Casualty Event Offer with respect to such Net Proceeds prior to the expiration of the relevant 450-day period or with respect to Excess Proceeds of $100,000,000 or less.

 

(iii)               An “Asset Sale/Casualty Event Offer” means a notice delivered to the Administrative Agent (which will promptly furnish such notice to the Appropriate Lenders) stating:

 

(I)        that an Asset Sale/Casualty Event Offer is being made pursuant to this Section 2.05(c) and that such Lender has the right to require the Borrower to prepay all or a portion of such Lender’s applicable Class(es) of Loans (subject to the proration provisions set forth in paragraph (v) of this Section 2.05(c)) at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of prepayment; and

 

(II)       the prepayment date (which shall be no earlier than thirty (30) days nor later than sixty (60) days from the date such notice is mailed).

 

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(iv)              On the prepayment date, the Borrower (subject to the proration provisions set forth in paragraph (v) of this Section 2.05(c)) shall prepay the applicable Class(es) of Loans of all Appropriate Lenders who accept the Asset Sale/Casualty Event Offer at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date of prepayment. If at the time of any prepayment pursuant to this Section 2.05(c) there shall be outstanding Borrowings of different Types or Eurocurrency Rate Loans with different Interest Periods, and if some but not all Lenders shall have accepted such Asset Sale/Casualty Event Offer, then the aggregate amount of such prepayment shall be allocated ratably to each outstanding Borrowing that comprises the Loans of the accepting Lenders. All prepayments of Loans under this Section 2.05(c) shall be subject to Section 2.05(d).

 

(v)                To the extent that the aggregate amount of the Loans accepted pursuant to an Asset Sale/Casualty Event Offer is less than the Excess Proceeds, the Borrower may use any remaining Excess Proceeds, together with any Declined Amounts, for general corporate purposes (any such remaining Excess Proceeds, together with any Declined Amounts, collectively, “Declined Excess Proceeds”), subject to the terms of this Agreement. If the aggregate principal amount of the Loans accepted in an Asset Sale/Casualty Event Offer exceeds the amount of Excess Proceeds, the prepayment shall be applied against such Loans on a pro rata basis based on the principal amount of the Loans tendered for acceptance. Upon completion of any such Asset Sale/Casualty Event Offer, the amount of Excess Proceeds related to such Asset Sale/Casualty Event Offer shall be reset to zero (regardless of whether or not there are any remaining Excess Proceeds upon such completion).

 

(vi)              Pending the final application of any Net Proceeds pursuant to this Section 2.05(c), the Borrower or the applicable Restricted Subsidiary may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Agreement.

 

(vii)              Each prepayment of Loans pursuant to this Section 2.05(c) shall be applied in direct order of maturity to scheduled repayments of Loans required pursuant to Section 2.07.

 

(d)                (c) Funding Losses, Etc. All prepayments under this Section 2.05 shall be made together with, in the case of any such prepayment of a Eurocurrency Rate Loan on a date prior to the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.05. Notwithstanding any of the other provisions of Section 2.05, so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made under this Section 2.05, prior to the last day of the Interest Period therefor, in lieu of making any payment pursuant to this Section 2.05 in respect of any such Eurocurrency Rate Loan prior to the last day of the Interest Period therefor, the Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.05. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section 2.05.

 

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SECTION 2.03. Termination of Commitments. The Term B Commitments of each Term Lender shall be automatically and permanently reduced to $0 upon the making of such Lender’s Term B Loan pursuant to Section 2.01(a). The Incremental 2014 Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 upon the making of such Term Lender’s Incremental 2014 Term Loan pursuant to the First Amendment on the First Amendment Effective Date. The 2016 New Replacement Term B-1 Loan2020 New Refinancing Term B Loan Commitment of each 20162020 New ReplacementRefinancing Term B-1B Loan Lender shall be automatically and permanently reduced to $0 upon the making of such 20162020 New Replacement Term B-1 Loan Lender’s 2016 New Replacement Term B-1 Loan pursuant to the Second Amendment on the Initial Second Amendment Effective Date. The 2016 New Replacement Term B-2 Loan Commitment of each 2016 New Replacement Term B-2 Loan Lender shall be automatically and permanently reduced to $0 upon the making of such 2016 New Replacement Term B-2 Loan Lender’s 2016 New Replacement Term B-2 Loan pursuant to the Second Amendment on the Initial Second Amendment Effective Date. The 2018 New Replacement Term B Loan Commitment of each 2018 New Replacement Term B Loan Lender shall be automatically and permanently reduced to $0 upon the making of such 2018 New ReplacementRefinancing Term B Loan Lender’s 20182020 New ReplacementRefinancing Term B Loan pursuant to the ThirdFourth Amendment on the ThirdFourth Amendment Effective Date.

 

SECTION 2.04. Amortization of Loans.

 

(a)                The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders holding 2018 Replacement2020 Refinancing Term B Loans (i) on the last Business Day of each July, October, January and April, an aggregate amount equal to 0.25% of (A) the aggregate initial principal amount of 2020 Refinancing Term B Loans outstanding on the Restatement Effective Date plus (B) the aggregate initial principal amount of Incremental 2014 Term Loans outstanding on the FirstFourth Amendment Effective Date (as such scheduled amortization amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05 or in connection with any Extension as provided in Section 2.16) and (ii) on the Maturity Date for 2018 Replacement2020 Refinancing Term B Loans, the aggregate principal amount of all such 2018 Replacement2020 Refinancing Term B Loans outstanding on such date.

 

(b)               The amount of any such payment set forth in clause (a) above shall be adjusted to account for the addition of any Incremental Term Loans, Extended Term Loans or Refinancing Term Loans to contemplate (i) the reduction in the aggregate principal amount of any Loans that were paid down in connection with the incurrence of such Incremental Term Loans, Extended Term Loans or Refinancing Term Loans, and (ii) any increase to payments to the extent and as required pursuant to the terms of any applicable Incremental Amendment, Extension Amendment or Refinancing Amendment.

 

SECTION 2.05. Interest(a). (a) Subject to the provisions of Section 2.08(b), (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable Borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

 

(b)                (a) The Borrower shall pay interest on past due amounts hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c)                (b) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

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(d)                (c) All computations of interest hereunder shall be made in accordance with Section 2.10.

 

(e)                (d) Notwithstanding anything to the contrary contained in the definition of “Interest Period” or elsewhere in this Agreement, (i) each Eurocurrency Borrowing of 20162018 Replacement Term B-1B Loans existing on the ThirdFourth Amendment Effective Date immediately prior to the 2018 Replacement2020 Refinancing Term B Loan Conversion (each, an “Original Eurocurrency Borrowing”), shall, upon the occurrence of the 2018 Replacement2020 Refinancing Term B Loan Conversion be deemed to be a new Eurocurrency Borrowing of 2018 Replacement2020 Refinancing Term B Loans for all purposes of this Agreement; (ii) each such newly-deemed Eurocurrency Borrowing of 2018 Replacement2020 Refinancing Term B Loans shall be subject to the same Interest Period (and Eurocurrency Rate) as the Original Eurocurrency Borrowing to which it relates (as if no new Eurocurrency Borrowing had in fact occurred); (iii) the 20182020 New ReplacementRefinancing Term B Loans shall be initially incurred pursuant to a single Borrowing of Eurocurrency Loans which shall be added to (and thereafter be deemed to constitute a part of) each such newly-deemed Eurocurrency Borrowing of 2018 Replacement2020 Refinancing Term B Loans described in preceding subclause (i) on a pro rata basis (based on the relative sizes of such newly-deemed Eurocurrency Borrowings of 2018 Replacement2020 Refinancing Term B Loans), which such Borrowing shall be subject to (x) an Interest Period that commences on the ThirdFourth Amendment Effective Date and ends on the last day of the Interest Period of the applicable Original Eurocurrency Borrowing to which it is added as contemplated above by this clause (iii) and (y) the same Eurocurrency Rate applicable to the Original Eurocurrency Borrowing to which it is added as contemplated above by this clause (iii); and (iv) in connection with the 2018 Replacement2020 Refinancing Term B Loan Conversion and the incurrence of 20182020 New ReplacementRefinancing Term B Loans pursuant to Section 2.01(de)(B), the Administrative Agent shall (and is hereby authorized to) take all appropriate actions to ensure that all Lenders with outstanding 2018 Replacement2020 Refinancing Term B Loans (after giving effect to the 2018 Replacement2020 Refinancing Term B Loan Conversion and the incurrence of 20182020 New ReplacementRefinancing Term B Loans pursuant to Section 2.01(de)(B) participate in each newly-deemed Eurocurrency Borrowing of 2018 Replacement2020 Refinancing Term B Loans based on their respective pro rata shares.

 

SECTION 2.06. Fees. (a) The Borrower shall pay to the Agents such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever (except as expressly agreed between the Borrower and the applicable Agent).

 

(b)               At the time of the effectiveness of any Repricing Transaction that is consummated on or prior to the first anniversary of the Restatement Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding Term B Loans that are either prepaid, refinanced, substituted, replaced or otherwise subjected to a repricing reduction in connection with such Repricing Transaction (including each Lender that withholds its consent to such Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of all Term B Loans prepaid, refinanced, substituted or replaced (or converted) in connection with such Repricing Transaction and (y) in the case of a Repricing Transaction described in clause (b) of the definition thereof, the aggregate principal amount of all Term B Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be due and payable upon the date of the effectiveness of such Repricing Transaction.

 

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(c)       At the time of the effectiveness of any Repricing Transaction that is consummated on or prior to the six-month anniversary of the First Amendment Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding Incremental 2014 Term Loans that are either prepaid, refinanced, substituted, replaced, converted or otherwise subjected to a pricing reduction in connection with such Repricing Transaction (including each Lender that withholds its consent to such Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of all such Incremental 2014 Term Loans prepaid, refinanced, substituted, replaced or converted in connection with, or otherwise subject to, such Repricing Transaction and (y) in the case of a Repricing Transaction of the type described in clause (b) of the definition thereof, the aggregate principal amount of all such Incremental 2014 Term Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be earned, due and payable upon the date of the effectiveness of such Repricing Transaction.

 

(d)       At the time of the effectiveness of any Repricing Transaction that is consummated on or prior to the six-month anniversary of the Initial Second Amendment Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding 2016 Replacement Term B-1 Loans that are either prepaid, refinanced, substituted, replaced, converted or otherwise subjected to a pricing reduction in connection with such Repricing Transaction (including each Lender that withholds its consent to such Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of all such 2016 Replacement Term B-1 Loans prepaid, refinanced, substituted, replaced or converted in connection with, or otherwise subject to, such Repricing Transaction and (y) in the case of a Repricing Transaction of the type described in clause (b) of the definition thereof, the aggregate principal amount of all such 2016 Replacement Term B-1 Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be earned, due and payable upon the date of the effectiveness of such Repricing Transaction.

 

(eb)       At the time of the effectiveness of any Repricing Transaction that is consummated on or prior to the six-month anniversary of the ThirdFourth Amendment Effective Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with outstanding 2018 Replacement2020 Refinancing Term B Loans that are either prepaid, refinanced, substituted, replaced, converted or otherwise subjected to a pricing reduction in connection with such Repricing Transaction (including each Lender that withholds its consent to such Repricing Transaction and is replaced as a Non-Consenting Lender under Section 3.07), a fee in an amount equal to 1.0% of (x) in the case of a Repricing Transaction of the type described in clause (a) of the definition thereof, the aggregate principal amount of all such 2018 Replacement2020 Refinancing Term B Loans prepaid, refinanced, substituted, replaced or converted in connection with, or otherwise subject to, such Repricing Transaction and (y) in the case of a Repricing Transaction of the type described in clause (b) of the definition thereof, the aggregate principal amount of all such 2018 Replacement2020 Refinancing Term B Loans outstanding on such date that are subject to an effective pricing reduction pursuant to such Repricing Transaction. Such fees shall be earned, due and payable upon the date of the effectiveness of such Repricing Transaction.

 

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SECTION 2.07. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agent’s “prime rate” shall be made on the basis of a year of three hundred and sixty-five (365) days or three hundred and sixty-six (366) days, as applicable, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a three hundred and sixty (360) day year and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

SECTION 2.08. Evidence of Indebtedness. (a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and evidenced by one or more entries in the Register maintained by the Administrative Agent, acting solely for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the Borrower, in each case in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be prima facie evidence absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note or Notes payable to such Lender, which shall evidence such Lender’s Loans of the applicable Class or Classes in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(a)                On and after the Initial SecondFourth Amendment Effective Date, each 20162020 Converting ReplacementRefinancing Term B-1B Loan Lender which holds a promissory note with respect to 2018 Replacement Term B Loans shall be entitled to surrender such promissory note to the Borrower against delivery of a new promissory note with respect to its 20162020 Converted ReplacementRefinancing Term B-1B Loans, completed in conformity with this Section 2.11; provided that if any such promissory note is not so surrendered, then from and after the Initial SecondFourth Amendment Effective Date, such promissory note shall be deemed to evidence the 20162020 Converted ReplacementRefinancing Term B-1B Loans into which the 2018 Replacement Term B Loans theretofore evidenced by such promissory note have been converted pursuant to the 2016 Replacement2020 Refinancing Term B-1B Loan Conversion.

 

(b)                On and after the Initial Second Amendment Effective Date, each 2016 Converting Replacement Term B-2 Loan Lender which holds a promissory note with respect to Incremental 2014 Term Loans shall be entitled to surrender such promissory note to the Borrower against delivery of a new promissory note with respect to its 2016 Converted Replacement Term B-2 Loans, completed in conformity with this Section 2.11; provided that if any such promissory note is not so surrendered, then from and after the Initial Second Amendment Effective Date, such promissory note shall be deemed to evidence the 2016 Converted Replacement Term B-2 Loans into which the Incremental 2014 Term Loans theretofore evidenced by such promissory note have been converted pursuant to the 2016 Replacement Term B-2 Loan Conversion.

 

(e)                On and after the Third Amendment Effective Date, each 2018 Converting Replacement Term B Loan Lender which holds a promissory note with respect to 2016 Replacement Term B-1 Loans shall be entitled to surrender such promissory note to the Borrower against delivery of a new promissory note with respect to its 2018 Converted Replacement Term B Loans, completed in conformity with this Section 2.11; provided that if any such promissory note is not so surrendered, then from and after the Third Amendment Effective Date, such promissory note shall be deemed to evidence the 2018 Converted Replacement Term B Loans into which the 2016 Replacement Term B-1 Loans theretofore evidenced by such promissory note have been converted pursuant to the 2018 Replacement Term B Loan Conversion.

 

 

 

 

(b)               (d) Entries made in good faith by the Administrative Agent in the Register pursuant to Section 2.11(a), and by each Lender in its account or accounts pursuant to Sections 2.11(a), shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement and the other Loan Documents, absent manifest error; provided that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement and the other Loan Documents.

 

SECTION 2.09. Payments Generally. (a) All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. on the relevant date shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.

 

(a)                If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next succeeding calendar month, such payment shall be made on the immediately preceding Business Day.

 

(b)                Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in Same Day Funds, then:

 

(i)                 if the Borrower failed to make such payment, each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in Same Day Funds at the Federal Funds Effective Rate from time to time in effect; and

 

 

 

 

(ii)               if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.

 

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent manifest error.

 

(c)                If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d)                The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan.

 

(e)                Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(f)                 Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be applied, the Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders ratably in accordance with such Lender’s pro rata share of the Outstanding Amount of all Classes of Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or other Obligations then owing to such Lender.

 

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SECTION 2.10. Sharing of Payments. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans pro rata with each of them; provided that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrower agrees that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.13 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.13 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.

 

SECTION 2.11. Provisions Applicable to Canadian Loan Parties. (a) For the purposes of the Interest Act (Canada), to the extent applicable, whenever any interest payable by a Canadian Subsidiary Guarantor is calculated on the basis of a period of time other than a year of 365 or 366 days, as applicable, the annual rate of interest to which each rate of interest utilized pursuant to such calculation is equivalent is such rate so utilized multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by the number of days in such calculation.

 

(a)                Notwithstanding any provision herein to the contrary, in no event will the aggregate “interest” (as defined in section 347 of the Criminal Code (Canada)) payable by a Canadian Loan Party under any Loan Document exceed the maximum effective annual rate of interest on the “credit advanced” (as defined in that section 347) permitted under that section and, if any payment, collection or demand pursuant to such Loan Document in respect of “interest” (as defined in that section 347) is determined to be contrary to the provisions of such section 347, such payment, collection or demand will be deemed to have been made by mutual mistake of such Canadian Loan Party, the Administrative Agent and the applicable Lender or Lenders and the amount of such payment or collection will be refunded to such Canadian Loan Party only to the extent of the amount which is greater than the maximum effective annual rate permitted by such laws. For purposes of determining compliance with such section 347, the effective annual rate of interest will be determined in accordance with generally accepted actuarial practices and principles over the term of this Agreement and, in the event of dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent will be prima facie evidence for the purposes of such determination.

 

(b)                For the purposes of the Interest Act (Canada), to the extent applicable, the principle of deemed reinvestment of interest will not apply to any interest calculation under the Loan Documents, and the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields.

 

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SECTION 2.12. Refinancing Amendments At any time after the RestatementFourth Amendment Effective Date, the Borrower may obtain from any Lender or any Additional Lender Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class(es) of the Loans then outstanding under this Agreement (which for this purpose will be deemed to include any then outstanding Class(es) of Loans, Extended Term Loans, Refinancing Term Loans or Incremental Term Loans), in the form of Refinancing Term Loans or Refinancing Term Commitments, in each case pursuant to a Refinancing Amendment; provided that, (i) the terms, provisions and documentation of the Refinancing Term Loans and Refinancing Term Loan Commitments of any Class shall be as agreed between the Borrower and the applicable Lender or Additional Lender providing such Refinancing Term Commitments, and except as otherwise set forth herein, to the extent not identical to (or constituting a part of) any Class of Term Loans existing on the closing date of such Credit Agreement Refinancing Indebtedness (i)the “Refinancing Facility Closing Date”), shall either, at the option of the Borrower, (x) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower) or (y) if not consistent with the terms of the corresponding Class of Term Loans not be materially more restrictive to the Borrower (as determined by the Borrower), when taken as a whole, than the terms of the applicable Class of Term Loans being refinanced or replaced (except (1) covenants or other provisions applicable only to periods after the Maturity Date of the 2020 Refinancing Term B Loans (as of the applicable Refinancing Facility Closing Date) of such Class being refinanced and (2) pricing (as to which any “most-favored nation” provision shall not apply), fees, rate floors, premiums, optional prepayment or redemption terms (which shall be determined by the Borrower)) unless the Lenders under the Term Loans existing on the Refinancing Facility Closing Date, receive the benefit of such more restrictive terms in such Credit Agreement Refinancing Indebtedness, (ii) will rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (ii) have such pricing and optional prepayment terms as may be agreed by the Borrower and the Lenders thereof, and (iii) except as otherwise provided in Sections 2.05(a)(i), 2.05(b)(iii) and 2.05(c)(i) or as may be agreed to by the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness in the respective Refinancing Amendment, each Class of Refinancing Term Loans shall be prepaid and repaid (or offered to be repaid in the case of Section 2.05(c)) on a pro rata basis with all voluntary prepayments and mandatory prepayments (other than amortization payments) of the other Classes of Loans and (iv) otherwise be treated hereunder no more favorably, including with respect to covenants and events of default, than the Refinanced Debt; provided further that the terms and conditions applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants or other provisions that are agreed between the Borrower and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement Refinancing Indebtedness is issued, incurred or obtained. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in such Refinancing Amendment and Section 4.02 and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Collateral Agent (including Mortgage amendments) in order to ensure that the Credit Agreement Refinancing Indebtedness is provided with the benefit of the applicable Loan Documents. Each tranche of Credit Agreement Refinancing Indebtedness incurred under this Section 2.15 shall be in an aggregate principal amount that is not less than $50,000,000. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to a Refinancing Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans and/or Refinancing Term Commitments), (ii) provide certain class protection to the Lenders and Additional Lenders providing such Credit Agreement Refinancing Indebtedness with respect to voluntary prepayments and mandatory prepayments, (iii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the second paragraph of Section 10.01 and (iv) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section, and the Required Lenders hereby expressly authorize the Administrative Agent to enter into any such Refinancing Amendment.

 

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SECTION 2.13. Extended Term Loans.

 

(a)             The Borrower may at any time and from time to time request that all or a portion of the Loans of a given Class (each, an “Existing Term Loan Tranche”) be amended to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Loans (any such Loans which have been so amended, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.16. In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders under the applicable Existing Term Loan Tranche) (each, an “Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall (x) be identical as offered to each Lender under such Existing Term Loan Tranche (including as to the proposed interest rates and fees payable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with all relevant Lenders) and offered pro rata to each Lender under such Existing Term Loan Tranche and (y) be identical to the Loans undereither, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined in good faith by the Borrower) or (B) if not consistent with the terms of the applicable Existing Term Loan Tranche to which such amended Extended Term Loans relate, except that: (i), shall not be materially more restrictive to the Loan Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Tranche unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Tranche receive the benefit of such more restrictive terms or (y) any such provisions only apply after the Maturity Date of the 2020 Refinancing Term B Loans; provided, however, that (1) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization payments of principal of the Term Loans of such Existing Term Loan Tranche, to the extent provided in the applicable (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.07 or in the Extension Amendment; (ii), as the Effective Yieldcase may be, with respect to the Extended Term Loans (whether in the form of interest rate margin, upfront fees, original issue discount or otherwise) may be different than the Effective Yield for the Loans of such Existing Term Loan Tranche, in each case, to the extent provided in the applicable Extension Amendment ; (iii) the Extension Amendment may provide for other covenants and terms that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of the Extension Amendment (immediately prior to the establishment of such Extended Term Loans); and (iv) Extended Term Loans may have optional prepayment terms (including call protection) as may be agreed by the Borrower and the Lenders thereof; provided, however, that (A) no Event of Default shall have occurred and be continuing at the time a Term Loan Extension Request is delivered to Lenders, (B) in no event shall the Maturity Date of any Extended Term Loans of a given Extension Series at the time of establishment thereof be earlier than the then Latest Maturity Date of any other Loans then outstanding hereunder, (C)from which such Extended Term Loans were converted) (it being understood that the Weighted Average Life to Maturity of any Extended Term Loans of a given Extension Series at the time of establishment thereof shall be no shorter than the remaining Weighted Average Life to Maturity of any otherthe Existing Term Loan Tranche (as originally in effect prior to any amortization or prepayments thereto) and (D) anyfrom which such Extended Term Loans (and the Liens securing the same) shall be permitted by the terms of the ABL Credit Agreement and the Intercreditor Agreement (in each case, to the extent the ABL Credit Agreement and the Intercreditor Agreement are then in effect)