EX-10.22 2 fy23q410kexhibit1022.htm EX-10.22 Document
Exhibit 10.22
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of March 9, 2023 (this “Third Amendment”), is entered into among SIGNET JEWELERS LIMITED, an exempted company incorporated under the Laws of Bermuda with registration number 42069 (“Holdings”), SIGNET GROUP LIMITED, a company incorporated in England and Wales with the company number 00477692 (the “Lead Administrative Borrower”), the other Borrowers (as defined in the Existing Credit Agreement referred to below) party hereto, the Lenders (as defined below) party hereto, and BANK OF AMERICA, N.A., as the Administrative Agent (as defined below) and the Collateral Agent (as defined below).
PRELIMINARY STATEMENTS
A.    Reference is made to that certain Credit Agreement, dated as of September 27, 2019 (as amended by that certain First Amendment to Credit Agreement, dated as of January 29, 2020, as further amended by that certain Second Amendment to Credit Agreement, dated as of July 28, 2021, and as further amended, amended and restated, extended, supplemented or otherwise modified in writing from time to time and in effect immediately prior to the effectiveness of this Third Amendment, the “Existing Credit Agreement”, and the Existing Credit Agreement, as amended by this Third Amendment, the “Amended Credit Agreement”), among (a) Holdings, (b) the Lead Administrative Borrower, (c) Signet Group Treasury Services, Inc., a Delaware corporation, Sterling Jewelers Inc., a Delaware corporation, Signet Trading Limited, a company incorporated in England and Wales with the company number 03768979, and Zale Canada Co., an unlimited company organized under the laws of the Province of Nova Scotia, each as a Lead Borrower and a Borrower, (d) each other Restricted Subsidiary of Holdings party thereto as a Lead Borrower or a Borrower, (e) the lenders from time to time party thereto (each a “Lender”, and collectively, the “Lenders”) and (f) Bank of America, N.A., as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent and security trustee (in such capacity, including any successor thereto, the “Collateral Agent”) under the Loan Documents.
B.    The Borrowers have requested that the Lenders agree to amend certain of the terms and provisions of the Existing Credit Agreement as specifically set forth in this Third Amendment.
C.    The undersigned Lenders, constituting all of the Lenders under the Existing Credit Agreement on the date hereof, are prepared to amend the Existing Credit Agreement, subject to the conditions and in reliance on the representations set forth herein.
Accordingly, in consideration of the premises and other good and valuable consideration, the parties hereto hereby agree as follows:
1.    Capitalized Terms. Capitalized terms used herein, including in preamble and the preliminary statements, and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement.



2.    Amendments to the Existing Credit Agreement.

(a)    Amended Credit Agreement. The Existing Credit Agreement (excluding the schedules and exhibits thereto, which shall remain in full force and effect, except as specifically amended and restated pursuant to Section 2(b) of this Third Amendment) is hereby amended as set forth in Annex A attached hereto such that all of the newly inserted double underlined text (indicated textually in the same manner as the following example: double-underlined text) and any formatting changes attached hereto shall be deemed to be inserted and all stricken text (indicated textually in the same manner as the following example: stricken text) shall be deemed to be deleted therefrom.
(b)    Amendments to Exhibits to the Existing Credit Agreement. Each of the following exhibits to the Existing Credit Agreement is hereby deleted in its entirety and replaced with the corresponding exhibits set forth in Annex B attached to this Third Amendment:
(i)    Exhibit C (Form of Notice of Borrowing); and
(ii)    Exhibit F (Form of Interest Election Request).
3.    Interest Rate Transition Arrangements. Each Borrowing of Revolving Loans denominated in Dollars that is outstanding under the Existing Credit Agreement immediately prior to the effectiveness of this Third Amendment and that consists of Eurocurrency Rate Loans (under and as defined in the Existing Credit Agreement), if any (each, an “Existing Eurocurrency Dollar Revolving Borrowing” and collectively, the “Existing Eurocurrency Dollar Revolving Borrowings”) shall continue to remain outstanding under the Existing Credit Agreement as a Borrowing of Eurocurrency Rate Loans (under and as defined in the Existing Credit Agreement) for the period from and after the Third Amendment Effective Date until the earlier of (a) the date the applicable Borrower elects to convert such Existing Eurocurrency Dollar Revolving Borrowing to a Borrowing of Base Rate Loans or to Term Rate Loans pursuant to Section 2.11 of the Amended Credit Agreement as if the relevant Eurocurrency Rate Loans were a Type of Loans available under the Amended Credit Agreement, (b) the date the applicable Borrower elects or is otherwise required to repay the Revolving Loans included in such Existing Eurocurrency Dollar Revolving Borrowing in accordance with the Amended Credit Agreement, and (c) the last day of the applicable “Interest Period” (as defined in the Existing Credit Agreement) with respect to such Existing Eurocurrency Dollar Revolving Borrowing. If, prior to the end of an “Interest Period” (as defined in the Existing Credit Agreement) applicable to any Existing Eurocurrency Dollar Revolving Borrowing, the applicable Borrower shall have failed to deliver an Interest Election Request in accordance with Section 2.11 of the Amended Credit Agreement requesting the conversion of the Revolving Loans included in such Existing Eurocurrency Dollar Revolving Borrowing to Revolving Loans of another Type available under the Amended Credit Agreement, then such Revolving Loans shall be automatically converted to Term Rate Loans with an Interest Period of one month upon the expiration of the applicable “Interest Period” (as defined in the Existing Credit Agreement) with respect thereto. All provisions of the Existing Credit Agreement applicable to Eurocurrency Rate Loans (as defined in the Existing Credit Agreement) shall remain in effect with respect to the Existing Eurocurrency Dollar Revolving Borrowings until such time as no such Existing Eurocurrency Dollar Revolving Borrowings remain outstanding.
4.    Conditions Precedent to Third Amendment. This Third Amendment shall become effective as of the date first written above (the “Third Amendment Effective Date”) upon the satisfaction of each of the following conditions precedent:
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(a)    Third Amendment. The Administrative Agent shall have received this Third Amendment, duly executed by (i) Holdings, (ii) each Borrower, (iii) each of the Lenders under the Existing Credit Agreement, (iv) each Issuer and (v) the Swing Loan Lender.
(b)    Costs and Expenses. The Administrative Agent and the Lenders (or their respective applicable affiliates) shall have received payment of all costs and expenses required to be paid or reimbursed by the Borrowers under the Amended Credit Agreement on or prior to the Third Amendment Effective Date; provided that invoices for any costs and expenses to be reimbursed on the Third Amendment Effective Date must be received at least three (3) Business Days prior to the Third Amendment Effective Date (except as otherwise reasonably agreed by the Lead Administrative Borrower) or otherwise such costs and expenses shall be paid no later than ten (10) days after the Third Amendment Effective Date.
Without limiting the generality of the provisions of Section 11.4 of the Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each Lender, to the extent such Person has signed this Third Amendment, shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Person (if any), unless the Administrative Agent shall have received notice from such Person prior to the proposed Third Amendment Effective Date specifying its objection thereto.
5.    Representations and Warranties. Holdings and each Borrower hereby represents and warrants to the Administrative Agent and the Lenders as of the Third Amendment Effective Date as follows:
(a)    Authorization; No Contravention. (i) The execution, delivery and performance by each Loan Party of this Third Amendment has been duly authorized by all necessary corporate or other organizational action, and (ii) neither the execution, delivery and performance by each Loan Party of this Third Amendment nor the consummation of the transactions contemplated by this Third Amendment will (A)  contravene the terms of any of such Person’s Constituent Documents, (B) result in any breach or contravention of, or the creation of any Lien upon any of the property or assets of such Person or any of the Restricted Subsidiaries (other than as permitted under Section 9.1 of the Amended Credit Agreement) under (1) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (2) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (C) violate any applicable Law; except with respect to any breach, contravention or violation (but not creation of Liens) referred to in clauses (B) and (C), to the extent that such breach, contravention or violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(b)    Binding Effect. This Third Amendment has been duly executed and delivered by each Loan Party that is party hereto. This Third Amendment constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity and principles of good faith and fair dealing.
(c)    Governmental Authorization. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Third Amendment, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect and (iii) those
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approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

6.    Survival of Representations and Warranties. All representations and warranties made by Holdings or any Borrower (in each case, on behalf of itself or the other Loan Parties) in this Third Amendment or other document delivered pursuant to this Third Amendment or in connection herewith shall survive the execution and delivery hereof. Such representations and warranties have been or will be relied upon by the Agents, each Issuer and each Lender, regardless of any investigation made by the Agents, any Issuer or any Lender or on their behalf and notwithstanding that any Agent, any Issuer or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
7.    Third Amendment as a Loan Document. This Third Amendment constitutes a “Loan Document” under the Amended Credit Agreement.
8.    Effect on Loan Documents. After giving effect to this Third Amendment on the Third Amendment Effective Date, the Amended Credit Agreement and the other Loan Documents shall be and remain in full force and effect in accordance with their terms and are hereby ratified and confirmed by Holdings and the Borrowers in all respects. The execution, delivery, and performance of this Third Amendment shall not operate as a waiver of any right, power, or remedy of any Agent or the Lenders under the Existing Credit Agreement or the other Loan Documents. Holdings and the Borrowers hereby acknowledge and agree that, after giving effect to this Third Amendment, all of its obligations and liabilities under the Existing Credit Agreement and the other Loan Documents to which it is a party, as such obligations and liabilities have been amended by this Third Amendment, are reaffirmed and remain in full force and effect. All references to the Existing Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to the Amended Credit Agreement. Nothing contained herein shall be construed as a novation of the Obligations outstanding under and as defined in the Existing Credit Agreement, which shall remain in full force and effect, except as modified hereby.
9.    Reaffirmation of Grant of Security Interests. Each of Holdings and each Borrower hereby reaffirms its grant to the Collateral Agent, for the benefit of the Secured Parties, of a continuing security interest in and Lien upon the Collateral of such Person, whether now owned or hereafter acquired or arising, and wherever located, all as provided in the Collateral Documents, and Holdings and each Borrower hereby reaffirms that the Obligations are and shall continue to be secured by the continuing security interest and Lien granted by such Person to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents.
10.    Limited Effect. The Lead Administrative Borrower and the Administrative Agent hereby confirm that certain Borrowing Base Certificates, contemplated to be delivered from time to time pursuant to Section 7.4(a)(i) of the Existing Credit Agreement with respect to Fiscal Months ended October 31, November 30 and December 31, were not received by the Administrative Agent. The Administrative Agent and the undersigned Lenders hereby confirm that any requirement to deliver the above-referenced monthly Borrowing Base Certificates, solely to the extent relating to any applicable Fiscal Month period ended prior to the Third Amendment Effective Date, was instead satisfied by delivery of quarterly Borrowing Base Certificates otherwise contemplated to be delivered pursuant to Section 7.4(a)(i) of the Existing Credit Agreement and that no Default or Event of Default shall have occurred and be continuing as a result of the failure to deliver the above-referenced monthly Borrowing Base Certificates (including as a result of any failure to notify the Administrative Agent or the Lenders thereof).
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This Third Amendment relates only to the specific matters expressly covered herein, shall not be considered to be an amendment or waiver of any rights or remedies that any Agent or any Lender may have under the Existing Credit Agreement or any other Loan Document (except as expressly set forth herein) or under applicable law, and shall not be considered to create a course of dealing or to otherwise obligate in any respect any Agent or any Lender to execute similar or other amendments or waivers or grant any amendments or waivers under the same or similar or other circumstances in the future.
11.    GOVERNING LAW, ETC. THIS THIRD AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS THIRD AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE PROVISIONS OF SECTION 12.12(D) OF THE AMENDED CREDIT AGREEMENT SHALL APPLY IN RELATION TO THIS THIRD AMENDMENT AS IF IT WAS SET OUT IN FULL IN THIS THIRD AMENDMENT, MUTATIS MUTANDIS.
12.    Counterparts. This Third Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Third Amendment by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Third Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Third Amendment and/or any document to be signed in connection with this Third Amendment and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to the Credit Agreement to be executed and delivered as of the date first above written.

SIGNET JEWELERS LIMITED,
as Holdings

By: /s/ Joan Hilson    
Name:    Joan Hilson
Title:    Chief Financial Officer

SIGNET GROUP LIMITED,
incorporated in England and Wales with company number 00477692, as the Lead Administrative Borrower and a Borrower
By: /s/ Joan Hilson    
Name:    Joan Hilson
Title:    Director

SIGNET GROUP TREASURY SERVICES INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    Secretary

STERLING JEWELERS INC.,
as a Borrower

By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

[Signature Page to Third Amendment to Credit Agreement]


SIGNET TRADING LIMITED,
incorporated in England and Wales with company number 03768979, as a Borrower
By: /s/ Benjamin Harris        
Name:    Benjamin Harris
Title:    Director


ZALE CANADA CO.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

STERLING INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

ZALE DELAWARE, INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President






[Signature Page to Third Amendment to Credit Agreement]


R2NET INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

R2NET MANUFACTURING INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

DIAMONDS DIRECT USA INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President

BLUE NILE, INC.,
as a Borrower
By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President







[Signature Page to Third Amendment to Credit Agreement]


BLUE NILE, LLC,
as a Borrower


By: /s/ Stash Ptak    
Name:    Stash Ptak
Title:    President
[Signature Page to Third Amendment to Credit Agreement]


BANK OF AMERICA, N.A.,
as Administrative Agent, Collateral Agent, Swing Loan Lender, a Lender and an Issuer
By: /s/ Courtney Kolb    
Name:    Courtney Kolb
Title:    Vice President


BANK OF AMERICA, N.A. (acting through its Canada branch), as a Swing Loan Lender, a Lender and an Issuer
By: /s/ Sylwia Durkiewicz    
Name:    Sylwia Durkiewicz
Title:    Vice President

[Signature Page to Third Amendment to Credit Agreement]


FIFTH THIRD BANK,
as a Lender and an Issuer
By: /s/ Geoffrey Jinnah    
Name:    Geoffrey Jinnah
Title:    AVP, Principal

[Signature Page to Third Amendment to Credit Agreement]


JPMORGAN CHASE BANK, N.A.,
as a Lender and an Issuer
By: /s/ Christopher A. Salek    
Name:    Christopher A. Salek
Title:    Executive Director


[Signature Page to Third Amendment to Credit Agreement]


JPMORGAN CHASE BANK, N.A.,
TORONTO BRANCH,
as a Lender and an Issuer
By: /s/ Auggie Marchetti    
Name:    Auggie Marchetti
Title:    Authorized Officer

[Signature Page to Third Amendment to Credit Agreement]


PNC BANK, NATIONAL ASSOCIATION,
as a Lender and an Issuer
By: /s/ Ralph Mielnik    
Name:    Ralph Mielnik
Title:    Assistant Vice President

[Signature Page to Third Amendment to Credit Agreement]


GOLDMAN SACHS BANK USA,
as a Lender
By: /s/ Keshia Leday    
Name:    Keshia Leday
Title:    Authorized Signatory

[Signature Page to Third Amendment to Credit Agreement]


REGIONS BANK,
as a Lender
By: /s/ Curtis Foye    
Name:    Curtis Foye
Title:    Director

[Signature Page to Third Amendment to Credit Agreement]


CITIZENS BANK, N.A.,
as a Lender
By: /s/ Peter M. Walther    
Name:    Peter M. Walther
Title:    Senior Vice President

[Signature Page to Third Amendment to Credit Agreement]


U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Carol Anderson    
Name:    Carol Anderson
Title:    Senior Vice President

[Signature Page to Third Amendment to Credit Agreement]


BANK OF MONTREAL, as a Lender


By: /s/ Kara Goodwin    
Name:    Kara Goodwin
Title:    Managing Director, Chicago Branch


By: /s/ Helen Alvarez-Hernandez    
Name:    Helen Alvarez-Hernandez
Title:    Managing Director


By: /s/ Richard Pittam    
Name:    Richard Pittam
Title:    Managing Director, on behalf of Bank of Montreal, London Branch

By: /s/ Scott Matthews    
Name:    Scott Matthews
Title:    Chief Financial Officer International, on behalf of Bank of Montreal, London Branch
[Signature Page to Third Amendment to Credit Agreement]


HSBC BANK USA, NATIONAL ASSOCIATION, as a Lender
By: /s/ Michael Mondazzi    
Name:    Michael Mondazzi
Title:    Senior Vice President

[Signature Page to Third Amendment to Credit Agreement]


BARCLAYS BANK PLC,
as a Lender
By: /s/ Koruthu Mathew    
Name:    Koruthu Mathew
Title:    VP
    
[Signature Page to Third Amendment to Credit Agreement]


ANNEX A
Amended Credit Agreement


[Please See Attached]





CREDIT AGREEMENT
dated as of September 27, 2019,
as amended on January 29, 2020,
as further amended on July 28, 2021
as further amended on March 9, 2023
among

SIGNET JEWELERS LIMITED,
as Holdings,

SIGNET GROUP LIMITED,
as the Lead Administrative Borrower, a Lead Borrower and a Borrower,

SIGNET GROUP TREASURY SERVICES, INC., STERLING JEWELERS INC.,
SIGNET TRADING LIMITED and ZALE CANADA CO.,
each as a Lead Borrower and a Borrower,

STERLING INC., ZALE DELAWARE, INC.,
R2NET INC. and R2NET MANUFACTURING INC.,
each as a Borrower,
THE OTHER BORROWERS FROM TIME TO TIME PARTY HERETO,

THE LENDERS AND ISSUERS FROM TIME TO TIME PARTY HERETO,

and
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
____________________________________
_________________________________________________

FIFTH THIRD BANK,
JPMORGAN CHASE BANK, N.A.
and PNC BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents,
CITIZENS BANK, N.A. and REGIONS BANK,
as Co-Documentation Agents,
BofA SECURITIES INC., FIFTH THIRD BANK,
JPMORGAN CHASE BANK, N.A. and PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners



Table of Contents
Page
ARTICLE I. DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS    1
SECTION 1.1    Defined Terms    1
SECTION 1.2    Other Interpretive Provisions    1032
SECTION 1.3    Accounting Terms    1053
SECTION 1.4    Rounding    1053
SECTION 1.5    Letter of Credit Amounts    1054
SECTION 1.6    References to Agreements, Laws, Etc    1054
SECTION 1.7    Times of Day; Timing of Payments and Performance    1054
SECTION 1.8    Pro Forma Calculations    1064
SECTION 1.9    Limited Condition Transactions    1076
SECTION 1.10    Exchange Rates; Currency Equivalents    1098
SECTION 1.11    Additional Alternative Currencies    111109
SECTION 1.12    Change of Currency    1120
SECTION 1.13    Interest Rates    1121
SECTION 1.14    Classification Among Negative Covenant Exceptions    1121
ARTICLE II. THE FACILITIES    1132
SECTION 2.1    The Commitments    1132
SECTION 2.2    Borrowing Procedures; Funding by Lenders    1143
SECTION 2.3    Swing Loans    1176
SECTION 2.4    Letters of Credit    121119
SECTION 2.5    Reduction and Termination of the Revolving Credit Commitments    131129
SECTION 2.6    Repayment of Loans    1310
SECTION 2.7    Evidence of Indebtedness    1321
SECTION 2.8    Optional Prepayments    1331
SECTION 2.9    Mandatory Prepayments    1343
SECTION 2.10    Interest    1354
SECTION 2.11    Conversions and Continuations of Loans    1365
SECTION 2.12    Fees    1387
SECTION 2.13    Payments and Computations    1398
SECTION 2.14    Joint and Several Liability; Additional Borrowers    1431
SECTION 2.15    Commitment Increases    1454
SECTION 2.16    Defaulting Lenders    1497
SECTION 2.17    Extensions of Loans    1510
SECTION 2.18    Designated Lenders    1565
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY    1565
SECTION 3.1    Taxes    1565
SECTION 3.2    United Kingdom Tax Matters    160159
SECTION 3.3    Illegality    1687
SECTION 3.4    Inability to Determine Rates    1698
SECTION 3.5    Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans        1721
SECTION 3.6    Funding Losses    1743
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SECTION 3.7    Matters Applicable to all Requests for Compensation    174
SECTION 3.8    Replacement of Lenders under Certain Circumstances    1754
SECTION 3.9    Survival    1776
ARTICLE IV. CONDITIONS PRECEDENT    1776
SECTION 4.1    Conditions Precedent to Effectiveness and Initial Credit Extensions    1776
SECTION 4.2    Conditions Precedent to Credit Extension After the Closing Date    1810
ARTICLE V. REPRESENTATIONS AND WARRANTIES    182
SECTION 5.1    Existence, Qualification and Power; Compliance with Laws    1832
SECTION 5.2    Authorization; No Contravention    1832
SECTION 5.3    Governmental Authorization    1832
SECTION 5.4    Binding Effect    183
SECTION 5.5    Financial Statements; No Material Adverse Effect    1843
SECTION 5.6    Litigation    1843
SECTION 5.7    Labor Matters    184
SECTION 5.8    Ownership of Property; Liens    184
SECTION 5.9    Environmental Matters    1854
SECTION 5.10    Taxes    1854
SECTION 5.11    ERISA and Pension Compliance    1854
SECTION 5.12    Subsidiaries    186
SECTION 5.13    Margin Regulations; Investment Company Act    1876
SECTION 5.14    Disclosure    1876
SECTION 5.15    Intellectual Property; Licenses, Etc    187
SECTION 5.16    Solvency    1887
SECTION 5.17    Anti-Corruption Laws and Sanctions    1887
SECTION 5.18    Collateral Documents    188
SECTION 5.19    Centre of Main Interests    188
SECTION 5.20    Senior Ranking    1898
SECTION 5.21    Affected Financial Institutions; Covered Entities    1898
ARTICLE VI. FINANCIAL COVENANT    1898
SECTION 6.1    Minimum Consolidated Fixed Charge Coverage Ratio    1898
ARTICLE VII. REPORTING AND MONITORING COVENANTS    189
SECTION 7.1    Financial Statements, Etc    189
SECTION 7.2    Certificates; Other Information    1910
SECTION 7.3    Notices    1943
SECTION 7.4    Borrowing Base Certificates    194
SECTION 7.5    Inventory Appraisals and Field Examinations    1965
ARTICLE VIII. AFFIRMATIVE COVENANTS    197
SECTION 8.1    Preservation of Existence, Etc    197
SECTION 8.2    Compliance with Laws, Etc    197
SECTION 8.3    Designation of Subsidiaries    1987
SECTION 8.4    Payment of Taxes, Etc    198
SECTION 8.5    Maintenance of Insurance    1998
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SECTION 8.6    Inspection Rights    1998
SECTION 8.7    Books and Records    200199
SECTION 8.8    Maintenance of Properties    200199
SECTION 8.9    Use of Proceeds    200199
SECTION 8.10    Compliance with Environmental Laws    200
SECTION 8.11    Covenant to Guarantee Obligations and Give Security    2010
SECTION 8.12    Cash Receipts    2043
SECTION 8.13    Further Assurances    2065
SECTION 8.14    People with Significant Control Regime    2076
SECTION 8.15    Anti-Corruption Laws and Sanctions    2076
SECTION 8.16    Compliance with Kimberley Process Certification Scheme    2076
SECTION 8.17    Post-Closing Obligations    2076
ARTICLE IX. NEGATIVE COVENANTS    2076
SECTION 9.1    Liens    2086
SECTION 9.2    Investments    2121
SECTION 9.3    Indebtedness    2153
SECTION 9.4    Fundamental Changes    2187
SECTION 9.5    Dispositions    2210
SECTION 9.6    Restricted Payments    2254
SECTION 9.7    Change in Nature of Business    2265
SECTION 9.8    Transactions with Affiliates    2275
SECTION 9.9    Burdensome Agreements    2287
SECTION 9.10    Changes in Fiscal Year    230229
SECTION 9.11    Prepayment, Etc    230229
SECTION 9.12    Modification of Junior Financing Agreements    2310
ARTICLE X. EVENTS OF DEFAULT    2310
SECTION 10.1    Events of Default    2310
SECTION 10.2    Remedies upon Event of Default    2343
SECTION 10.3    Application of Proceeds    2354
SECTION 10.4    Right to Cure    2376
SECTION 10.5    Actions in Respect of Letters of Credit; Cash Collateral    2387
ARTICLE XI. THE ADMINISTRATIVE AGENT    240239
SECTION 11.1    Appointment and Authorization    240239
SECTION 11.2    Rights as a Lender    2410
SECTION 11.3    Exculpatory Provisions    2410
SECTION 11.4    Reliance by the Administrative Agent    2421
SECTION 11.5    Delegation of Duties    2432
SECTION 11.6    Resignation of Administrative Agent and Collateral Agent    2432
SECTION 11.7    Non-Reliance on Administrative Agent and Other Lenders; Disclosure of Information by Agents    2443
SECTION 11.8    No Other Duties; Other Agents, Arrangers, Managers, Etc    2454
SECTION 11.9    Acceptable Intercreditor Agreements    2454
SECTION 11.10    Administrative Agent May File Proofs of Claim    2464
SECTION 11.11    Collateral and Guaranty Matters    2476
- iii -



SECTION 11.12    Secured Cash Management Agreements and Secured Hedge Agreements    2497
SECTION 11.13    Indemnification of Agents    250248
SECTION 11.14    Certain ERISA Matters    250249
SECTION 11.15    Security Trustee    2510
SECTION 11.16    Reports and Financial Statements    2531
SECTION 11.17    Canadian Anti-Money Laundering Legislation    2532
ARTICLE XII. MISCELLANEOUS    2543
SECTION 12.1    Amendments, Etc    2543
SECTION 12.2    Successors and Assigns    2586
SECTION 12.3    Costs and Expenses    2643
SECTION 12.4    Indemnities    2653
SECTION 12.5    Limitation of Liability    2665
SECTION 12.6    Right of Set-off    2675
SECTION 12.7    Sharing of Payments    2676
SECTION 12.8    Notices and Other Communications; Facsimile Copies    2686
SECTION 12.9    No Waiver; Cumulative Remedies    270269
SECTION 12.11    Binding Effect    2710
SECTION 12.12    Governing Law; Submission to Jurisdiction; Service of Process    2710
SECTION 12.13    Waiver of Jury Trial    2731
SECTION 12.14    Marshaling; Payments Set Aside    2732
SECTION 12.15    Execution in Counterparts; Integration; Effectiveness    2742
SECTION 12.16    Electronic Execution; Electronic Records; Counterparts    2742
SECTION 12.17    Confidentiality    2754
SECTION 12.18    Use of Name, Logo, etc    2765
SECTION 12.19    USA PATRIOT Act Notice; U.K    2775
SECTION 12.20    No Advisory or Fiduciary Responsibility    2786
SECTION 12.21    Severability    2787
SECTION 12.22    Survival of Representations and Warranties    2797
SECTION 12.23    Interest Rate Limitation    2797
SECTION 12.24    Time of the Essence    280278
SECTION 12.25    No Strict Construction    280278
SECTION 12.26    Acceptable Intercreditor Agreements    280278
SECTION 12.27    Keepwell    280278
SECTION 12.28    Acknowledgment and Consent to Bail-In of Affected Financial Institutions    280279
SECTION 12.29    Acknowledgement Regarding Any Supported QFCs    281279
SECTION 12.30    Judgment Currency    2820

- iv -



Schedules
Schedule I        -    Revolving Credit Commitments
Schedule II        -    Subsidiary Guarantors
Schedule 1.1A        -    Existing Letters of Credit
Schedule 1.1B        -    Credit Card Agreements
Schedule 4.1(a)    -    Closing Date Collateral Documents
Schedule 4.1(g)    -    Local Counsel Opinions
Schedule 5.11        -    Pension Plan Matters
Schedule 5.12        -    Subsidiaries and Other Equity Investments
Schedule 8.12        -    Deposit Accounts and Credit Card Processors
Schedule 8.17        -    Post-Closing Obligations
Schedule 9.1(b)    -    Existing Liens
Schedule 9.2(f)    -    Existing Investments
Schedule 9.3(b)    -    Existing Indebtedness
Schedule 9.8        -    Transactions with Affiliates
Schedule 9.9        -    Burdensome Agreements
Schedule 12.8        -    Administrative Agent’s Office, Certain Addresses for Notices

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Exhibits
Exhibit A        -    Form of Assignment and Assumption
Exhibit B-1        -    Form of Revolving Credit Note
Exhibit B-2        -    Form of FILO Note
Exhibit C        -    Form of Notice of Borrowing
Exhibit D        -    Form of Swing Loan Request
Exhibit E        -    Form of Joinder Agreement
Exhibit F        -    Form of Interest Election Request
Exhibit G        -    Form of Credit Card Notification
Exhibit H        -    Form of Borrowing Base Certificate
Exhibit I        -    Form of Senior Notes Intercreditor Agreement
Exhibit J        -    Form of Intercompany Subordination Agreement
Exhibit K-1 – K-4    -    Form of U.S. Tax Compliance Certificates
Exhibit L        -    Form of Compliance Certificate
Exhibit M        -    Form of Solvency Certificate
Exhibit N        -    Form of Information Certificate
- vi -



This CREDIT AGREEMENT, dated as of September 27, 2019, is entered into among (a) SIGNET JEWELERS LIMITED, an exempted company incorporated under the Laws of Bermuda with registration number 42069 (“Holdings”), (b) SIGNET GROUP LIMITED, a company incorporated in England and Wales with the company number 00477692 (the “Lead Administrative Borrower”), as a Lead Borrower (as defined herein) and a Borrower (as defined herein), (c) SIGNET GROUP TREASURY SERVICES, INC., a Delaware corporation, STERLING JEWELERS INC., a Delaware corporation, SIGNET TRADING LIMITED, a company incorporated in England and Wales with the company number 03768979 and  ZALE CANADA CO., an unlimited company organized under the laws of the Province of Nova Scotia, each as a Lead Borrower and a Borrower, (d) STERLING INC., an Ohio corporation, ZALE DELAWARE, INC., a Delaware corporation, R2NET INC., a Delaware corporation, and R2NET MANUFACTURING INC., a Delaware corporation, each as a Borrower, (e) each other Restricted Subsidiary (as defined herein) of Holdings party hereto as a Lead Borrower or a Borrower, (f) each Lender (as defined herein) from time to time party hereto and (g) BANK OF AMERICA, N.A., as administrative agent (in such capacity, including any successor thereto, the “Administrative Agent”) and as collateral agent and security trustee (in such capacity, including any successor thereto, the “Collateral Agent”) under the Loan Documents.
PRELIMINARY STATEMENTS
The Borrowers have requested that the Lenders provide a revolving credit facility and a first-in last-out term loan facility, and the Lenders have indicated their willingness to lend and the Issuers (as defined below) have indicated their willingness to issue letters of credit, 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, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1    Defined Terms.
As used in this Agreement, the following terms have the following meanings:
75% Cash Consideration Basket” has the meaning assigned to such term in Section 9.5(j).
ABL License” means the irrevocable license granted by the Loan Parties to the Administrative Agent pursuant to Section 4.01 of the U.S. Security Agreement or any other similar provision in any other Security Agreement.
Acceptable Intercreditor Agreement” means, (a) with respect to the Senior Notes Indebtedness or any Permitted Refinancing thereof (together with any other Indebtedness that is secured on a pari passu basis with the Senior Notes), the Senior Notes Intercreditor Agreement and (b) with respect to any other Indebtedness secured by any Liens on Collateral, any other intercreditor agreement the terms of which are reasonably acceptable to the Lead Administrative Borrower and the Administrative Agent.
Account” means (a) “accounts” as defined in Article 9 of the UCC or the PPSA, as applicable, (b) all amounts owing from Credit Card Issuers and Credit Card Processors and all rights under contracts relating to the creation or collection of such amounts and (c) all rights to



payment of a monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (ii) for services rendered or to be rendered, or (iii) arising out of the use of a credit or charge card or information contained on or for use with the card. The term “Account” does not include (1) rights to payment evidenced by chattel paper or an instrument, (2) commercial tort claims, (3) deposit accounts, (4) investment property, or (5) letter-of-credit rights or letters of credit.
Account Debtor” has the meaning given to such term in Article 9 of the UCC, and includes any Person obligated on an Account.
ACH” means automated clearing house transfers.
Additional English Security” has the meaning specified in Section 8.12(g).
Additional FILO Lender” has the meaning specified in Section 2.15(b).
Additional Revolving Lender” has the meaning specified in Section 2.15(a).
Adjustment Date” means the first day of each calendar quarter, commencing with the calendar quarter beginning on January 1, 2020.
Administrative Agent” has the meaning specified in the introductory paragraph to this Agreement, and shall include any branches or Affiliates of Bank of America in its or their capacity as Administrative Agent.
Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 12.8 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Lead Administrative 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 U.K. Financial Institution.
Affiliate” means, with respect to any Person, another Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. For the avoidance of doubt, none of the Arrangers, the Agents or their respective lending affiliates or any entity acting as an Issuer hereunder shall be deemed to be an Affiliate of Holdings, the Borrowers or any of their respective Subsidiaries.
Affirm” means Affirm Holdings, Inc. and its Subsidiaries.
Agent Parties” has the meaning specified in Section 12.8(d).
Agent-Related Persons” means the Agents, together with their respective Affiliates and branches and the officers, directors, employees, agents, attorney-in-fact, partners, trustees and advisors of such Persons and of such Persons’ Affiliates and branches.
Agents” means, collectively and without duplication, (a) the Administrative Agent, (b) the Collateral Agent, (c) each co-agent or sub-agent (if any) appointed by the
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Administrative Agent or the Collateral Agent from time to time pursuant to Section 11.5, and (d) the Arrangers.
Agreed Currency” means Dollars or any Alternative Currency, as applicable.
Agreed Security Principles” has the meaning specified in the definition of “Collateral and Guarantee Requirement”.
Aggregate Revolving Credit Commitments” means the Revolving Credit Commitments of all the Revolving Credit Lenders. As of the Second Amendment Effective Date, the Aggregate Revolving Credit Commitments are $1,500,000,000.
Agreement” means this Credit Agreement, as amended, restated, modified, replaced, extended, renewed or supplemented from time to time in accordance with the terms hereof.
Agreement Currency” has the meaning specified in Section 12.30.
Alternative Currency” means each of the following currencies: Euro, Sterling and Canadian Dollars, together with each other currency (other than Dollars) that is approved in accordance with Section 1.11; provided that for each Alternative Currency, such requested currency is an Eligible Currency.
Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
Alternative Currency Loan” means a Loan denominated in an Alternative Currency.
Alternative Currency Scheduled Unavailability Date” has the meaning specified in Section 3.4(c).
Alternative Currency Successor Rate” has the meaning specified in Section 3.4(c).
AML Legislation” has the meaning specified in Section 11.17.
Annual Financial Statements” means the audited consolidated balance sheets of Holdings and its Subsidiaries for the Fiscal Year ended February 2, 2019, and the related consolidated statements of operations, changes in stockholders’ equity and cash flows for Holdings and its Restricted Subsidiaries for the Fiscal Year then ended, including the notes thereto.
Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act of 1977, the Bribery Act of 2010 (U.K.), the Corruption of Foreign Public Officials Act (Canada) and all other applicable Laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
Anti-Money Laundering Laws” means the applicable Laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing
3


business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto.
Applicable Authority” means (a) with respect to SOFR, the SOFR Administrator or any Governmental Authority having jurisdiction over the Administrative Agent or the SOFR Administrator with respect to its publication of SOFR, in each case acting in such capacity and (b) with respect to any Alternative Currency, the applicable administrator for the Relevant Rate for such Alternative Currency or any Governmental Authority having jurisdiction over the Administrative Agent or such administrator with respect to its publication of the applicable Relevant Rate, in each case acting in such capacity.
Applicable Indebtedness” has the meaning specified in the definition of “Weighted Average Life to Maturity”.
Applicable LGP Preference Shares” means, as of any date of determination, the LGP Preference Shares that Holdings may be required by the holders thereof to redeem or repurchase on a date on or before the 91st day after such date of determination.
Applicable Margin” means:
(a)    with respect to the Revolving Credit Facility, Revolving Loans, Swing Loans and Letters of Credit:
(i)    from and after the Closing Date until the first Adjustment Date occurring thereafter, the applicable percentage set forth in the table below corresponding to Level II, and
(ii)    thereafter, the applicable percentage set forth in the table below based upon Average Historical Excess Availability as of the most recent Adjustment Date:
LevelAverage Historical Excess Availability
EurocurrencyTerm Rate Loans and SONIA Rate Loans
Base Rate Loans, Canadian Prime Rate Loans, and Canadian Base Rate LoansLetter of Credit Fees -Standby Letters of CreditLetter of Credit Fees - Documentary Letters of Credit
IGreater than or equal to 50% of the Aggregate Revolving Credit Commitments1.250%0.250%1.250%0.625%
IILess than 50% of the Aggregate Revolving Credit Commitments1.500%0.500%1.500%0.750%

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(b)    [reserved];
(c)    with respect to any Junior FILO Loans, Revolving Loans, Letters of Credit and Swing Loans under Revolving Credit Commitments of any Revolving Extension Series or FILO Loans under any FILO Extension Series, the “Applicable Margin” set forth in the Incremental FILO Amendment, Revolving Extension Amendment or the FILO Extension Amendment (as applicable) relating thereto.
The Applicable Margin shall be adjusted quarterly in accordance with each table above on each Adjustment Date for the period beginning on such Adjustment Date based upon the Average Historical Excess Availability as the Administrative Agent shall determine in good faith within ten (10) Business Days after such Adjustment Date. Any increase or decrease in the Applicable Margin resulting from a change in the Average Historical Excess Availability shall become effective as of the Adjustment Date. If any Borrowing Base Certificates are at any time restated or otherwise revised or if the information set forth in any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Loan Party under any Debtor Relief Laws, automatically and without further action by the Administrative Agent, any Lender or any Issuer). If at any time the Aggregate Revolving Credit Commitments shall have been terminated pursuant to Section 10.2, the Applicable Margin shall be the applicable percentages per annum in effect on the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section 10.2, with respect to any outstanding Obligations.
Applicable Time” means, with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
Appropriate Lender” means, at any time, (a) with respect to any of the FILO Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a FILO Loan or a Revolving Loan, respectively (or as applicable and as the context shall require, a Lender that has a Class of Commitments under the applicable Facility or holds a specified Class of Loans under the applicable Facility) at such time, (b) with respect to the Letter of Credit Sublimit, (i) each applicable Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.4, the Revolving Credit Lenders and (c) with respect to the Swing Loan Sublimit, (i) the Swing Loan Lender and (ii) if any Swing Loans are outstanding pursuant to Section 2.3, the Revolving Credit Lenders.
Approved Account Bank” means an Approved U.S. Account Bank, an Approved Bermuda Account Bank, an Approved Canadian Account Bank, Approved Irish Account Bank or an Approved U.K. Account Bank, as the context may require.
Approved Bermuda Account Bank” means a financial institution (or branch thereof) located in Bermuda at which any Loan Party maintains an Approved Bermuda Deposit Account.
Approved Bermuda Deposit Account” means each Deposit Account located in Bermuda in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.
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Approved Canadian Account Bank” means a financial institution (or branch thereof) located in Canada at which any Loan Party maintains an Approved Canadian Deposit Account.
Approved Canadian Deposit Account” means each Deposit Account located in Canada in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.
Approved Control Arrangements” means (a) with respect to any Deposit Account at a depository bank located in the United States, delivery of a Deposit Account Control Agreement, (b) with respect to any Deposit Account at a depository bank located in Canada, either (i) if acceptable to the relevant depository bank, delivery of a Deposit Account Control Agreement or (ii) other arrangements satisfactory to the Administrative Agent under applicable Law to create a perfected security interest in each Deposit Account (and all funds therein), and (c) with respect to any Deposit Account (including any English Collection Account) at a depository bank located in any Covered U.K. Jurisdiction, the Republic of Ireland or Bermuda, either (i) if acceptable to the relevant depository bank, delivery of a Deposit Account Control Agreement, or (ii) delivery of a notice of charge from the Collateral Agent or applicable Loan Party in customary form on the applicable depository bank and receipt of a written acknowledgement from the applicable depository bank confirming that it acknowledges the terms of the notice of charge and will comply with the terms thereof (which shall, in any event, specify that upon the occurrence of a Cash Dominion Period, the Administrative Agent shall be entitled to serve a notice on the depository bank notifying it that instructions in respect of such Deposit Account may only be given by the Administrative Agent).
Approved Deposit Account” means an Approved U.S. Deposit Account, an Approved Bermuda Deposit Account, an Approved Canadian Deposit Account, an Approved Irish Deposit Account or an Approved U.K. Deposit Account, as the context may require.
Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate or branch of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.
Approved Irish Account Bank” means a financial institution (or branch thereof) located in the Republic of Ireland at which any Loan Party maintains an Approved Irish Deposit Account.
Approved Irish Deposit Account” means each Deposit Account located in the Republic of Ireland in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.
Approved Securities Account” means each Securities Account in respect of which any Loan Party shall have entered into a Securities Account Control Agreement.
Approved Securities Intermediary” means a securities intermediary at which any Loan Party maintains an Approved Securities Account.
Approved U.K. Account Bank” means a financial institution (or branch thereof) located in a Covered U.K. Jurisdiction at which any Loan Party maintains an Approved U.K. Deposit Account.
Approved U.K. Deposit Account” means each Deposit Account located in a Covered U.K. Jurisdiction in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.
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Approved U.S. Account Bank” means a financial institution (or branch thereof) located in the United States at which any Loan Party maintains an Approved U.S. Deposit Account.
Approved U.S. Deposit Account” means each Deposit Account located in the United States in respect of which any Loan Party and the Collateral Agent shall have established an Approved Control Arrangement.
Arrangers” means BofA Securities Inc., Fifth Third Bank, JPMorgan Chase Bank, N.A. and PNC Capital Markets LLC, each in its capacity as a joint lead arranger and joint bookrunner under this Agreement.
Assets Acquisition Date” means, with respect to any assets acquired in a Permitted Acquisition or other Investment permitted by this Agreement, the date of the consummation of the applicable Permitted Acquisition or other Investment.
Assets Diligence Date” means, with respect to any assets acquired in a Permitted Acquisition or other Investment permitted by this Agreement or any assets that are held by a Subsidiary that is designated as a Borrower pursuant to Section 2.14(e), the earlier of (a) the date that is ninety (90) days after (x) in the case of assets acquired in a Permitted Acquisition or other Investment, the consummation of the applicable Permitted Acquisition or other Investment or (y) in the case of assets held by a newly designated Borrower, the date such Subsidiary becomes a Borrower hereunder, as applicable, and (b) the date Field Examinations and/or Inventory Appraisals requested by the Administrative Agent in its Permitted Discretion, as applicable, covering such assets is completed.
Assignee Group” means two or more Eligible Assignees that are Affiliates or branches of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
Assignment Tax” has the meaning specified in the definition of “Other Taxes”.
Attorney Costs” means all reasonable and documented fees, expenses and disbursements of any law firm or other external legal counsel.
Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
Availability Reserves” means (a) the Specified Litigation and Arbitration Reserve, (b) the LGP Preference Shares Reserve, (c) the Untendered Existing 2024 Notes Reserve and (d) without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent from time to
7


time determines in its Permitted Discretion as being appropriate (i) to reflect the impediments to the Collateral Agent’s ability to realize upon the assets included in the Revolving Borrowing Base or the FILO Borrowing Base, (ii) to reflect claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with the realization upon the assets included in the Revolving Borrowing Base or the FILO Borrowing Base, (iii) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Revolving Borrowing Base or the FILO Borrowing Base, the Collateral or the validity or enforceability of this Agreement or the other Loan Documents or any material remedies of the Secured Parties hereunder or thereunder, or (iv) to reflect the impediments to the Collateral Agent’s ability to realize upon the assets included in the Revolving Borrowing Base or the FILO Borrowing Base to the extent that an Event of Default then exists.  Without limiting the generality of the foregoing clause (d), such Availability Reserves may include (but are not limited to): (A) the Dilution Reserve; (B) the Canadian Priority Payables Reserve; (C) the Canadian Wage Earner Protection Act Reserve; (D) the English Priority Payables Reserve; (E) the Rent and Charges Reserve; (F) Customer Credit Liability Reserve; (G) reserves in respect of outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, and other Taxes which are pari passu to or would have priority over the interests of the Collateral Agent in the Current Asset Collateral; (H) reserves in respect of customs duties, and other costs to release imported Inventory; (I) during the continuance of a Cash Dominion Period, reserves in respect of salaries, wages and benefits due to employees of the Loan Parties; (J) reserves based on Liens permitted under Section 9.1 which are pari passu to or would have priority over the interests of the Collateral Agent in the Current Asset Collateral; (K) reserves in respect of Cash Management Obligations; provided that reserves of the type described in this clause (K) in respect of such Cash Management Obligations shall not be established unless either Excess Availability is less than $300,000,000 or an Event of Default is continuing; (L) reserves in respect of Obligations in respect of Secured Hedge Agreements; provided that reserves of the type described in this clause (L) in respect of such Obligations shall not be established unless either Excess Availability is less than $300,000,000 or an Event of Default is continuing; (M) reserves in respect of accrued and unpaid royalties payable in connection with Inventory of the Borrowers subject to intellectual property licensing arrangements with third parties; (N) reserves in respect of self-insured group health plan liabilities of the Loan Parties and their Subsidiaries; and (O) reserves in respect of accrued payables in respect of Inventory consigned to the Loan Parties and their Subsidiaries or that is subject to any title retention agreements. Any Availability Reserve established or modified by the Administrative Agent shall have a reasonable relationship to the circumstances, conditions, events or contingencies which are the basis for such Availability Reserve; provided that no Availability Reserve may be taken after the Closing Date pursuant to clause (d) above based on any circumstance, condition, event or contingency disclosed in writing in the Field Examination or the Inventory Appraisal delivered to the Administrative Agent prior to the Closing Date in connection with the Transactions or otherwise known to the Administrative Agent prior to the Closing Date (other than as described in clauses (A) through (O) in the second sentence above), unless such circumstance, condition, event or contingency has changed in any material adverse respect since the Closing Date.
Average Historical Excess Availability” means, at any Adjustment Date, the average daily Excess Availability for the Fiscal Quarter immediately preceding such Adjustment Date through the date immediately preceding such Adjustment Date.
Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
8


of the European Union, the implementing law, rule, regulation 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 Levy” means any amount payable by any Tax Indemnitee or any of its Affiliates on the basis of, or in relation to, its balance sheet or capital base or any part of that person or its liabilities or minimum regulatory capital or any combination thereof (including as required under Part 5 and Schedule 19 of the Finance Act 2011 (U.K.) (as amended) and any other levy or tax in any jurisdiction levied on a similar basis or for a similar purpose), to the extent applying to that Tax Indemnitee or its Affiliates as at the date that Tax Indemnitee became a party to this Agreement as a Lender, Issuer or Agent (as the case may be).
Bank of America” means Bank of America, N.A., a national banking association, acting in its individual capacity, and its successors and assigns.
Banker’s Acceptance” means a time draft or bill of exchange or other deferred payment obligation relating to a Documentary Letter of Credit which has been accepted by the Issuer.
Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate for such day, plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurocurrency RateTerm SOFR determined pursuant to clause (b) of the definition of “Term SOFR”, plus 1.00%; andprovided that, if the Base Rate as so determined shall be less than zero, then the Base Rate shall be deemed to be zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’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 Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.4(a), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
Base Rate Loan” means a Loan to a U.S. Borrower that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
Benchmark” means, initially, LIBOR; provided that, if a replacement of the Benchmark has occurred pursuant to Section 3.4(c), then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
Benchmark Replacement” means:
(1)    For purposes of Section 3.4(c)(i), the first alternative set forth below that can be determined by the Administrative Agent:
(a)    the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an
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Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration, or
(b)    the sum of: (i) Daily Simple SOFR and (ii) 0.26161% (26.161 basis points);
provided that, if initially LIBOR is replaced with the rate contained in clause (b) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Lead Administrative Borrower and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a) above; and
(2)    For purposes of Section 3.4(c)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Lead Administrative Borrower as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than 0.00%, the Benchmark Replacement will be deemed to be 0.00% for the purposes of this Agreement and the other Loan Documents. Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
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 “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent 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 determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease; provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.
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Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Bermuda” shall mean the Islands of Bermuda.
Bermuda Collateral” means the “Charged Property” (or equivalent term) as defined in any Bermuda Collateral Document.
Bermuda Collateral Documents” means, collectively, (a) the Bermuda Fixed and Floating Charge, and (b) each of the other debentures, fixed and floating charges, share charges, agreements, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and that are governed by the Laws of Bermuda.
Bermuda Fixed and Floating Charge” means the fixed and floating charge governed by the Laws of Bermuda, effective as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
BHC Act Affiliate” has the meaning specified in Section 12.29(b).
Board of Directors” means, for any Person, the board of directors (or equivalent governing body) of such Person or, if such Person does not have such a board of directors (or equivalent governing body) and is owned or managed by another entity or entities, the board of directors (or equivalent governing body) of such entity or entities.
BofA Securities” means BofA Securities, Inc.
Borrower Materials” has the meaning specified in Section 7.2.
Borrowers” means, collectively, (a) the Lead Administrative Borrower, (b) each Lead Borrower, (c) each wholly-owned Restricted Subsidiary of Holdings organized or incorporated in a Covered Loan Party Jurisdiction (other than Bermuda) that is identified as a Borrower on the signature pages hereto, and (d) each other wholly-owned Restricted Subsidiary of Holdings that becomes a Borrower hereunder in accordance with the terms of this Agreement. As of the Third Amendment Effective Date, the Borrowers include (i) the Lead Administrative Borrower, (ii) the Lead Borrowers, (iii) Blue Nile, Inc., a Delaware corporation, (iv) Blue Nile, LLC, a Delaware limited liability company, (v) Diamonds Direct USA Inc., a Delaware corporation, (vi) R2Net Inc., a Delaware corporation, (vii) R2Net Manufacturing Inc., a Delaware corporation, (viii) Sterling Inc., an Ohio corporation, and (ix) Zale Delaware, Inc., a Delaware corporation.
Borrowing” means a borrowing consisting of Loans of the same Class, Type and currency made, converted or continued on the same date and, in the case of EurocurrencyTerm Rate Loans, having the same Interest Period.
Borrowing Base Certificate” means a certificate of the Lead Administrative Borrower substantially in the form of Exhibit H, duly executed by a Responsible Officer of the Lead Administrative Borrower.
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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 jurisdiction where the Administrative Agent’s Office with respect to Obligations denominated in Dollars or Canadian Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day;
(a)    (b) if such day relates to any interest rate settings as to a EurocurrencyTerm Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such EurocurrencyTerm Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such EurocurrencyTerm Rate Loan, means a TARGET Day;
(b)    (c) if such day relates to any interest rate settings as to a EurocurrencyTerm Rate Loan denominated in Canadian Dollars, any fundings, disbursements, settlements and payments in Canadian Dollars in respect of any such EurocurrencyTerm Rate Loan, or any other dealings in Canadian Dollars to be carried out pursuant to this Agreement in respect of any such EurocurrencyTerm Rate Loan, means any such day on which dealings in deposits in Canadian Dollars are conducted by and between banks in the Toronto, Ontario interbank market for Canadian Dollars;
(c)    (d) if such day relates to any interest rate settings as to a SONIA Rate Loan, any fundings, disbursements, settlements and payments in Sterling in respect of any such SONIA Rate Loan, or any other dealings in Sterling to be carried out pursuant to this Agreement in respect of any such SONIA Rate Loan, means any such day other than a day on which banks are closed for general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom;
(d)    (e) if such day relates to any interest rate settings as to aan Alternative EurocCurrency Rate Loan denominated in a currency other than Dollars, Canadian Dollars or, Euro, or Sterling as to which interest is determined by reference to an interbank offered rate, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and
(e)    (f) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Canadian Dollars or, Euro, or Sterling in respect of aan Alternative EurocCurrency Rate Loan denominated in a currency other than Dollars, Canadian Dollars or, Euro, or Sterling, or any other dealings in any currency other than Dollars, Canadian Dollars or, Euro, or Sterling to be carried out pursuant to this Agreement in respect of any such Alternative EurocCurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
Business Optimization Initiative” means any asset sale, acquisition, merger, amalgamation, business combination, Investment, Disposition, operating improvement, restructuring, cost saving initiative and/or other similar initiative (including the entry into or renegotiation of, or in respect of which binding commitments have been entered for, any contract and/or other arrangement), any specified transaction and any plan.
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Canadian Base Rate” means, for any day, the per annum rate of interest equal to the highest of (a) the Federal Funds Rate for such day, plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America (acting through its Canada branch) in Toronto, Ontario as its “base rate” for commercial loans made by it in Dollars, such rate being a reference rate and not necessarily representing the lowest or best rate being charged to any customer, or (c) the Eurocurrency Rate (Term SOFR determined for a Credit Extension denominated in Dollars)pursuant to clause (b) of the definition of “Term SOFR”, plus 1.00%; andprovided that, if the Canadian Base Rate as so determined shall be less than zero, then the Canadian Base Rate shall be deemed to be zero for purposes of this Agreement. Any change in such rate announced by Bank of America (acting through its Canada branch) shall take effect at the opening of business on the day specified in the public announcement thereof. If the Canadian Base Rate is being used as an alternate rate of interest pursuant to Section 3.4, then the Canadian Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
Canadian Base Rate Loan” means a Loan to a Canadian Borrower that bears interest at a rate based on the Canadian Base Rate. All Canadian Base Rate Loans shall be denominated in Dollars.
Canadian Borrower” means any Borrower incorporated or organized under the Laws of Canada or a province or territory thereof.
Canadian Collateral” means the “Collateral” (or equivalent term) as defined in any Canadian Collateral Document.
Canadian Collateral Documents” means, collectively, (a) the Canadian Security Agreement, (b) the Canadian Security Agreement Supplements, (c) the Canadian Intellectual Property Security Agreements, (d) the Canadian Pledge Agreement and (e) each of the other agreements, deeds of hypothec, pledge agreements, mortgages, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and that are governed by the Laws of Canada or any province or territory thereof.
Canadian Defined Benefit Plan” means a Canadian Pension Plan that contains a “defined benefit provision”, as such term is defined in Section 147.1(1) of the ITA.
Canadian Dollar”, “CAD” and “CAD $” mean the lawful currency of Canada.
Canadian Intellectual Property Security Agreements” has the meaning specified in the Canadian Security Agreement.
Canadian Loan Party” means any Loan Party incorporated or organized under the Laws of Canada or a province or territory thereof.
Canadian Pension Event” means (a) the whole or partial withdrawal of a Canadian Loan Party from a Canadian Defined Benefit Plan during a plan year; (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan; (c) the treatment by a Governmental Authority of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (d) the appointment of a trustee by a Governmental Authority to administer a Canadian Defined Benefit Plan.
Canadian Pension Plan” means a pension plan that is required to be registered under applicable Canadian federal or provincial pension benefits standards legislation, and that is
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sponsored or maintained by any Loan Party in respect of its Canadian employees or former employees, but, for the avoidance of doubt, does not include any statutory plans such as the Canada Pension Plan and the Quebec Pension Plan.
Canadian Pledge Agreement” means the Canadian Pledge Agreement, dated as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
Canadian Prime Rate” means, for any day, a per annum rate equal to the highest of (a) the rate of interest in effect for such day as publicly announced from time to time by Bank of America (acting through its Canada branch) as its “prime rate” for commercial loans made by it in Canada in Canadian Dollars, such rate being a reference rate and not necessarily representing the lowest or best rate being charged to any customer, or (b) CDOR the rate per annum equal to CDOR for a term of one month commencing on such day, plus 1.00%; andprovided that, if the Canadian Prime Rate as so determined shall be less than zero, then the Canadian Prime Rate shall be deemed to be zero for purposes of this Agreement. Any change in such rate announced by Bank of America (acting through its Canada branch) shall take effect at the opening of business on the day specified in the public announcement thereof. If the Canadian Prime Rate is being used as an alternate rate of interest pursuant to Section 3.4, then the Canadian Prime Rate shall be as set forth in clause (a) and shall be determined without reference to clause (b) above.
Canadian Prime Rate Loan” means a Loan to a Canadian Borrower that bears interest at a rate based on the Canadian Prime Rate. All Canadian Prime Rate Loans shall be denominated in Canadian Dollars.
Canadian Priority Payables Reserve” means, as of any date of determination, an Availability Reserve in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect amounts secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority to the Liens of the Collateral Agent and/or for amounts which may represent costs relating to the enforcement of the Liens of the Collateral Agent, including any such amounts due and not paid for wages, vacation pay, severance pay, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the ITA, sales tax, goods and services tax, harmonized sales tax, excise tax, tax payable pursuant to Part IX of the Excise Tax Act (Canada) or similar applicable provincial legislation, government royalties, amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or movable property), all amounts due and not contributed, remitted or paid to any Canadian Pension Plans (including all unfunded wind up or solvency deficiency amounts), as required by the PBA, or under the Canada Pension Plan, and all amounts in respect of similar statutory or other claims, in each case, that would have or would reasonably be expected to have priority over or rank pari passu with any Liens of the Collateral Agent in Canada now or in the future, other than amounts included in the Canadian Wage Earner Protection Act Reserve.
Canadian Security Agreement” means the Canadian Security Agreement, dated as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
Canadian Security Agreement Supplement” has the meaning specified in the Canadian Security Agreement.
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Canadian Wage Earner Protection Act Reserve” means, as of any date of determination, an Availability Reserve in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect the amounts that may become due under the Wage Earner Protection Program Act (Canada) or secured by Section 81.3 or Section 81.4 of the Bankruptcy and Insolvency Act (Canada) with respect to the employees of any Loan Party employed in Canada which would give rise to a Lien with priority under applicable Law over the Liens of the Collateral Agent.
Capital Expenditures” means, for any period, the aggregate of (a) all amounts that would be reflected as additions to property, plant or equipment on a Consolidated statement of cash flows of Holdings and its Restricted Subsidiaries in accordance with GAAP and (b) the value of all assets under Capitalized Leases incurred by Holdings and its 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, substituted, 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 of plant, property or equipment or software to the extent financed with the Net Cash Proceeds of Dispositions that are not required to be applied to prepay the Loans, the Existing 2024 Notes, the Senior Notes or any Material Indebtedness, (iii) expenditures that are accounted for as capital expenditures by Holdings or any Restricted Subsidiary and that actually are paid for, or reimbursed to Holdings or any Restricted Subsidiary in cash or Cash Equivalents, by a Person other than Holdings or any Restricted Subsidiary and for which neither Holdings nor any Restricted Subsidiary has provided or is required to provide or incur, directly or indirectly, any consideration or obligation (other than rent) in respect of such expenditures to such Person or any other Person (whether before, during or after such period), including, without limitation, expenditures which are contractually required to be, and are, reimbursed to a Loan Party in cash by its landlords as tenant allowances during such period, (iv) expenditures to the extent constituting any portion of a Permitted Acquisition, (v) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (A) used or surplus equipment traded in at the time of such purchase, and (B) the Net Cash Proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business, provided that such portion of the purchase price in excess of the credit granted by the seller of such equipment for the equipment being traded in at such time or such Net Cash Proceeds, as applicable, shall not be excluded as “Capital Expenditures” hereunder, (vi) expenditures relating to the construction, acquisition, replacement, reconstruction, development, refurbishment, renovation or improvement of any property which has been transferred to a Person other than a Loan Party or any of its Restricted Subsidiaries during the same Fiscal Year in which such expenditures were made pursuant to a sale-leaseback transaction, to the extent of the Net Cash Proceeds received by a Loan Party or such Restricted Subsidiary pursuant to such sale-leaseback transaction, provided that such portion of the expenditures which exceed the Net Cash Proceeds received by a Loan Party or such Restricted Subsidiary pursuant to such sale-leaseback transaction shall not be excluded as “Capital Expenditures” hereunder, or (vii) expenditures financed with the proceeds of an issuance of Equity Interests of Holdings or a capital contribution to Holdings or Indebtedness permitted to be incurred hereunder, to the extent such expenditures are made within 365 days after the receipt of such proceeds.
Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized 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.
Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that for all purposes hereunder
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the amount of obligations under any Capitalized Lease shall be the Capitalized Lease Obligation with respect thereto; provided further that notwithstanding the foregoing, only those leases (assuming for purposes hereof that such leases were in existence prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”) that would have constituted Capitalized Leases or financing leases in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)”, shall be considered Capitalized Leases or financing leases hereunder, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith (other than the financial statements delivered pursuant to this Agreement.
Carrier Agreement” means an agreement in form and substance reasonably satisfactory to the Administrative Agent, among a Loan Party, a Permitted Carrier, and the Collateral Agent, in which such Permitted Carrier acknowledges that it has control over and holds any Inventory and the documents evidencing ownership of, or other shipping documents relating to, the subject Inventory or other property for the benefit of the Collateral Agent and agrees, upon notice from the Collateral Agent (which notice shall be delivered only upon the occurrence and during the continuance of an Event of Default), to hold and dispose of the subject Inventory and other property solely as directed by the Collateral Agent and which, in respect of any such agreement governed by the laws of any Covered U.K. Jurisdiction or the Republic of Ireland, includes a pledge over such shipping documents and Inventory granted by the relevant Loan Party.
Carval” means CarVal Investors.
Cash Collateral” shall have a meaning correlative to “Cash Collateralize” and shall include the proceeds of such cash collateral and other credit support.
Cash Collateralize” means to pledge and deposit with or deliver to the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent, an Issuer or the Swing Loan Lender (as applicable) and the Lenders, as collateral for Letter of Credit Obligations, Obligations in respect of Swing Loans, or obligations of the Revolving Credit Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable Issuer or Swing Loan Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent, (b) the Collateral Agent and (c) the applicable Issuer or the Swing Loan Lender (as applicable).
Cash Dominion Period” means (a) each period beginning on the date that Excess Availability shall have been less than the greater of (x) 10.0% of the Modified Revolving Loan Cap and (y) $100,000,000, in either case, for five (5) consecutive Business Days, and ending on the date Excess Availability shall have been equal to or greater than the greater of (x) 10.0% of the Modified Revolving Loan Cap and (y) $100,000,000, in each case, for twenty (20) consecutive calendar days or (b) upon the occurrence of a Specified Event of Default, the period that such Specified Event of Default shall be continuing; provided that a Cash Dominion Period shall be deemed continuing (even if Excess Availability exceeds the required amounts for twenty (20) consecutive calendar days) if a Cash Dominion Period has occurred and been discontinued on five (5) occasions in any twelve (12) month period. The termination of a Cash Dominion Period as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Period in the event that the conditions set forth in this definition again arise.
Cash Equivalents” means any of the following types of Investments, to the extent owned by Holdings or any Restricted Subsidiary:
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(a)    Dollars and each Alternative Currency;
(b)    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 and not for speculation;
(c)    readily marketable direct obligations issued or directly and fully and unconditionally guaranteed or insured by the (i) federal government of United States or any agency or instrumentality thereof, (ii) federal government of Canada or any agency or instrumentality thereof, or (iii) the government of the U.K. or any agency or instrumentality thereof, in each case, the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government and with maturities of one year or less from the date of acquisition;
(d)    (i) certificates of deposit, guaranteed investment certificates, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, (ii) demand deposits and bankers’ acceptances with maturities of one year or less and (iii) overnight bank deposits, in each case of (i) any Lender or (ii) any commercial bank organized under the Laws of any Covered Jurisdiction and having capital and surplus of not less than $500,000,000;
(e)    repurchase obligations for underlying securities of the types described in clauses (c) and (d) above or clause (g) below entered into with any financial institution meeting the qualifications specified in clause (d) above;
(f)    commercial paper rated at least P-2 by Moody’s or at least A-2 by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and in each case maturing within one year after the date of creation thereof;
(g)    marketable short-term money market and similar highly liquid funds 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 nationally recognized statistical rating agency);
(h)    readily marketable direct obligations issued by any state or commonwealth of the United States, any province of Canada or any other political subdivision or taxing authority in any Covered Jurisdiction having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of one year or less from the date of acquisition;
(i)    Investments with average maturities of one year 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 (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); and
(j)    investment funds investing substantially all of their assets in securities of the types described in clauses (a) through (i) above.
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (a) through (j) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings
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described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (j) and in this paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clause (a) above; provided that such amounts are converted into Dollars or an Alternative Currency as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.
Cash Management Bank” means, as of any date of determination, any Person that is an Agent, a Lender or an Affiliate or branch of a Lender on such date.
Cash Management Compliance Date” has the meaning specified in Section 8.12(a).
Cash Management Obligations” means obligations owed by Holdings or any Restricted Subsidiary in respect of or in connection with any Cash Management Services (a) provided by the Administrative Agent or any Affiliate or branch thereof or (b) designated by any other Cash Management Bank and the Lead Administrative Borrower in writing to the Administrative Agent as “Cash Management Obligations”.
Cash Management Services” means any agreement or arrangement to provide cash management services, including automated clearinghouse transfers, controlled disbursement accounts, treasury, depository, overdraft, lease financing or related services, supply chain financing, merchant services, credit card processing or credit or debit card, purchase card, electronic funds transfer and other cash management arrangements.
Cash Receipts” has the meaning specified in Section 8.12(d).
Cash Taxes” means, with respect to any Test Period, all Taxes paid or payable in cash by Holdings and its Restricted Subsidiaries during such Test Period.
Castlelake” means Castlelake, L.P.
CDOR” has the meaning specified in the definition of “EurocurrencyTerm Rate.”
Change in Law” means the occurrence, after Closing 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 Closing Date of a law, rule, regulation or treaty adopted prior to the Closing 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; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III or CRR, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.
Change of Control” means the earliest to occur of:
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(a)    any Person or Persons constituting a “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person and its Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of Equity Interests representing more than forty percent (40.0%) of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings; or
(b)    any “Change of Control” (or any comparable term) in (i) any of the Senior Notes Documents (or pursuant other Indebtedness secured on a pari passu basis with the Senior Notes Indebtedness) or (ii) any document governing Indebtedness for borrowed money having an individual outstanding principal amount in excess of Threshold Amount (including the amounts owing to all creditors under any combined or syndicated credit arrangement); or
(c)    (i) the Lead Administrative Borrower (including, for the avoidance of doubt, any Successor Borrower pursuant to Section 9.4(e)) ceases to be a direct wholly-owned Subsidiary of Holdings or (ii) except as otherwise permitted by this Agreement, any Borrower (other than the Lead Administrative Borrower) ceases to be a direct wholly-owned Subsidiary of Holdings or another Loan Party.
Charged Company” has the meaning specified in Section 4.1(o).
Class” (a) when used with respect to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, an Extended Revolving Credit Commitment of a given Revolving Extension Series, a FILO Incremental Commitment or a FILO Incremental Commitment for Junior FILO Loans, (b) when used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising such Borrowing, are Revolving Loans, Loans under Extended Revolving Credit Commitments of a given Revolving Extension Series, FILO Loans, Junior FILO Loans or Extended FILO Loans of a given FILO Extension Series, and (c) when used with respect to Lenders, refers to whether such Lenders have a Loan or Commitment with respect to a particular Class of Loans or Commitments. Junior FILO Loans and Loans under a Revolving Extension Series or FILO Extension Series that have different terms and conditions (together with the Commitments in respect thereof) from the initial Loans and Commitments  therefor, respectively, or from other Junior FILO Loans or Loans and Commitments under any other Revolving Extension Series or FILO Extension Series, as applicable, shall be construed to be in separate and distinct Classes.
Closing Date” has the meaning set forth in Section 4.1, which for purposes hereof is September 27, 2019.
CME” means CME Group Benchmark Administration Limited.
Co-Documentation Agents” means Citizens Bank, N.A., Goldman Sachs Bank USA and Regions Bank, in their respective capacities as co-documentation agents under this Agreement.
Co-Syndication Agents” means Fifth Third Bank, JPMorgan Chase Bank, N.A. and PNC Bank, National Association, in their respective capacities as co-syndication agents under this Agreement.
Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations thereunder.
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Collateral” means all the “Collateral” (or equivalent term) as defined in any Collateral Document, and shall include the U.S. Collateral, the Bermuda Collateral, the Canadian Collateral, the English Collateral and the Irish Collateral.
Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Collateral Agent executed by, as the case may be, (a) a bailee or other Person in possession of Collateral, and (b) any landlord of any premises leased by any Loan Party, pursuant to which, except as the Collateral Agent otherwise may agree, such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens on the Collateral held by such Person or located on such premises, (iii) agrees to provide the Collateral Agent with access to the Collateral held by such bailee or other Person or located in or on such premises for the purpose of conducting field exams, appraisals or a Liquidation, and (iv) makes such other agreements with the Collateral Agent as the Collateral Agent may reasonably require.
Collateral Agent” has the meaning specified in the introductory paragraph to this Agreement, and shall include any branches or Affiliates of Bank of America in its or their capacity as Collateral Agent.
Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a)    the Administrative Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant to Section 4.1(a)(iii) or pursuant to Section 8.11, Section 8.12, Section 8.13 or Section 8.17 at such time, duly executed by each Loan Party thereto;
(b)    all Obligations (including those pursuant to clauses (a) and (b) of the definition of Guaranty) shall have been unconditionally Guaranteed by (i) Holdings, (ii) each Borrower (other than with respect to its own obligations), (iii) each Restricted Subsidiary of Holdings that is a Wholly-Owned Subsidiary (other than (x) any Borrower or (y) any Excluded Subsidiary), including those Subsidiaries that are listed on Schedule II and (iv) any Restricted Subsidiary of Holdings (not included in clause (ii) or (iii) above) that Guarantees the Senior Notes Indebtedness, the Untendered Existing 2024 Notes Indebtedness or any Material Indebtedness of any Loan Party (or, in each case, any Permitted Refinancing thereof) (each such Subsidiary referred to in clauses (iii) and (iv) above, a “Subsidiary Guarantor”);
(c)    the Obligations and the Guaranty shall have been secured by a first-priority perfected security interest in substantially all Current Asset Collateral of each Loan Party, in each case, with the priority required by the Collateral Documents and Section 8.12 shall have been complied with;
(d)    the Obligations and the Guaranty shall have been secured by a perfected security interest (subject in priority only (i) to Liens permitted by Sections 9.1(p), (w), (ee) and (jj) and (ii) to any non-consensual Liens permitted by Section 9.1) in the following:
(i)    all Equity Interests of each Loan Party (other than the Equity Interests of Holdings and TXDC, L.P., a Texas limited partnership, and any successor thereto),
(ii)    all Equity Interests of each direct Subsidiary of any Loan Party (other than any such Subsidiary that is (A) not a Loan Party and (B)(I) a FSHCO or (II) a Foreign Subsidiary of a Domestic Subsidiary),
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(iii)    65% of the issued and outstanding voting Equity Interests and 100% of the issued and outstanding non-voting Equity Interests of each direct Subsidiary of any Loan Party that is (A) not a Loan Party and (B)(I) a FSHCO or (II) a Foreign Subsidiary of a Domestic Subsidiary; and
(e)    the Obligations and the Guaranty shall have been secured by a perfected security interest (subject in priority only (i) to Liens permitted by Sections 9.1(p), (w), (ee) and (jj) and (ii) to any non-consensual Liens permitted by Section 9.1) in substantially all other tangible and intangible personal property of each Loan Party other than the Current Asset Collateral.
Except as specifically set forth in Section 8.17, the Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date) where it reasonably determines to do so, in consultation with the Lead Administrative Borrower.
Notwithstanding the other provisions of this definition or anything in this Agreement or any other Loan Document to the contrary:
(a)    in no event shall the Collateral include any Excluded Assets; it being understood that no assets (including any assets that would otherwise constitute Excluded Assets) shall be excluded from any floating charge granted by any English Loan Party, the Specified Irish Subsidiary Guarantor or Holdings under any Bermuda Collateral Document, any English Collateral Document or any Irish Collateral Document, as applicable;
(b)    the other provisions of this definition shall not require the creation or perfection of Liens in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Restricted Subsidiary, if, and for so long as the Administrative Agent and the Lead Administrative Borrower reasonably agree in writing that the cost of creating or perfecting Liens in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees, exceeds the practical benefits to be obtained by the Lenders therefrom; it being understood that no assets shall be excluded from any floating charge granted by any English Loan Party, the Specified Irish Subsidiary Guarantor or Holdings under any Bermuda Collateral Document, any English Collateral Document or any Irish Collateral Document, as applicable, pursuant to this clause (b);
(c)    no Material Real Property shall be required to be subject to a Mortgage under the Laws of any Covered U.K. Jurisdiction or the Republic of Ireland;
(d)    the Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations otherwise set forth in this Agreement and in the Collateral Documents;
(e)    Deposit Account Control Agreements, Securities Account Control Agreements and perfection by “control” (as defined in the UCC) or any equivalent concept in any Covered Jurisdiction (other than in respect of certificated Equity Interests required to be pledged hereunder) shall not be required with respect to any Collateral, except to the extent required by Section 8.12, Section 3.03(b) of the U.S. Security Agreement or Section 3.03(b) of the Canadian Security Agreement;
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(f)    with respect to each Loan Party, except with respect to assets included in the Revolving Borrowing Base or FILO Borrowing Base in violation of the eligibility criteria applicable thereto, (i) no actions in any jurisdiction outside any Covered Jurisdiction or required by the Laws of any jurisdiction other than a Covered Jurisdiction shall be required in order to create any Liens in assets located or titled outside of any Covered Jurisdiction or to perfect such Liens, including any Intellectual Property registered in any jurisdiction that is not a Covered Jurisdiction and (ii) no security agreement, pledge agreement, mortgage, deed, charge or other collateral document governed by the Laws of any jurisdiction other than a Covered Jurisdiction shall be required; it being understood that no Loan Party will be required to take any action to perfect a Lien in the Collateral in any jurisdiction other than a Covered Jurisdiction, except for any actions required by the Administrative Agent or the Collateral Agent after the occurrence of a Cash Dominion Period to secure or perfect security over the Accounts of a Borrower included in the Revolving Borrowing Base or the FILO Borrowing Base owing by an Account Debtor located outside any Covered Jurisdiction or subject to an underlying contract governed by a law other than the law of any Covered Jurisdiction;
(g)    in no event shall any U.S. Loan Party be required to take any action with respect to the perfection of Liens in (i) assets subject to certificates of title or any aircraft or aircraft engine, (ii) letter-of-credit rights (as defined in the UCC), except to the extent constituting a Supporting Obligation (as defined in the UCC) for other Collateral, or (iii) commercial tort claims (as defined in the UCC) in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) less than $10,000,000, in each case of this clause (d), beyond the filing of UCC financing statements;
(h)    in no event shall any Loan Party be required to obtain any Collateral Access Agreement; provided that the foregoing shall not affect the right of the Administrative Agent to implement the Rent and Charges Reserves in accordance with the terms of this Agreement; and
(i)    notwithstanding anything to the contrary in any Collateral Document, unless requested in writing by the Administrative Agent, in no event shall any Loan Party be required to deliver certificates representing Pledged Equity of any Non-Operating Subsidiary.
In addition to the provisions outlined above, the provisions the Loan Documents relating to the creation or perfection of Liens, or the provision of Guarantees, by any Foreign Loan Party (other than a Canadian Loan Party) will be subject to the following principles (collectively, the “Agreed Security Principles”):
(a)    notification or other assignations or assignments to debtors (i) of receivables security (other than to the extent of a legend set forth in a promissory note evidencing one or more intercompany obligations of Holdings and its Restricted Subsidiaries) of security over goods held by third parties or (ii) of security over Intellectual Property, in each case, will only be provided (after consultation with the Lead Administrative Borrower) if an Event of Default or a Cash Dominion Period has occurred and is continuing (other than (A) customary filings of UCC financing statements, PPSA financing statements, MR01 filings with Companies House and (B) filings with the U.S. Patent and Trademark Office, the U.S. Copyright Office or the U.K. Intellectual Property Office, or in each case of clauses (A) and (B), analogous filings, actions or procedures or delivery of customary notices and acknowledgments under applicable Laws of a Covered Jurisdiction);
(b)    if any such Foreign Loan Party (other than a Canadian Loan Party) or any of its Subsidiaries grants security over its Intellectual Property, receivables or other assets, it shall be free to deal with those assets (including the proceeds thereof) in the ordinary course of
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its business (other than in respect of receivables while any Cash Dominion Period exists) and no such grant of security shall constitute an assignment in full of such Intellectual Property; and
(c)    the applicable Collateral Documents executed and delivered by any such Foreign Loan Party (other than a Canadian Loan Party) will only operate to create Liens in the Collateral rather than to impose new commercial obligations and, accordingly, will not contain any additional representations, covenants or other terms unless the same are strictly required for the creation or perfection of the Liens in the Collateral, and are no more onerous to any such applicable Foreign Loan Party than the corresponding terms of the other Collateral Documents.
Collateral Documents” means, collectively, (a) each Security Agreement, (b) each Guaranty, (c) each Mortgage, (d) each of the security agreements or other similar agreements delivered to the Administrative Agent or the Collateral Agent and the Lenders pursuant to Section 4.1(a)(iii), Section 8.11, Section 8.12, Section 8.13 or Section 8.17, (e) each Credit Card Notification, (f) each Lien Acknowledgment Agreement, (g) the Senior Notes Intercreditor Agreement, (h) each other Acceptable Intercreditor Agreement, (i) the Securities Account Control Agreements (if any), (j) the Deposit Account Control Agreements and any other documentation evidencing Approved Control Arrangements, and (k) each of the other agreements, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and shall include each U.S. Collateral Document, each Bermuda Collateral Document, each Canadian Collateral Document, each English Collateral Document and each Irish Collateral Document.
Collateral Monitoring Trigger Event” means the failure of the Borrowers to maintain Excess Availability of at least the greater of (x) $900,000,000 and (y) 75.0% of the Modified Revolving Loan Cap, in each case, for five (5) consecutive Business Days.
Combined Loan Cap” means, at any time, the sum of (a) the Modified Revolving Loan Cap and (b) the lesser of (i) the FILO Borrowing Base at such time and (ii) the Outstanding Amount of the FILO Term Loans at such time.
Comenity” means Comenity Bank or any of its Affiliates.
Commitments” means the Revolving Credit Commitments, the FILO Commitments, a FILO Incremental Commitment, or any combination thereof (as the context requires).
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Communication” means this Agreement, any Loan Document and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
Compliance Certificate” means a certificate substantially in the form of Exhibit L and which certificate shall in any event be a certificate of a Financial Officer (a) certifying as to whether a Default has occurred and is continuing and, if applicable, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (b) solely to the extent that a Monthly Borrowing Base Reporting Period occurred at any time during the Fiscal Quarter most recently ended prior to the delivery of such Compliance Certificate, setting forth a reasonably detailed calculation of the Consolidated Fixed Charge Coverage Ratio for the most recently completed Test Period, and (c) setting forth reasonably detailed calculations, in the case of financial statements delivered under Section 7.1 of the Net Cash Proceeds received during the
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applicable period by or on behalf of, Holdings or any of its Restricted Subsidiaries in respect of any Disposition subject to prepayment pursuant to Section 2.9(b).
Concentration Account” has the meaning specified in Section 8.12(d).
Conforming Changes” means, with respect to the use, administration of or any conventions associated with CDOR, EURIBOR, SOFR, SONIA or any proposed Successor Rate for an Agreed Currency, as applicable, any conforming changes to the definitions of “Base Rate”, “Canadian Base Rate”, “Canadian Prime Rate”, “SOFR”, “Term SOFR”, “Term Rate”, “SONIA”, “SONIA Rate”, and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the reasonable discretion of the Administrative Agent (in consultation with the Lead Administrative Borrower), to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice for such Agreed Currency (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate for such Agreed Currency exists, in such other manner of administration as the Administrative Agent (in consultation with the Lead Administrative Borrower) determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) on a consolidated basis in accordance with the applicable principles of consolidation under GAAP.
Consolidated Depreciation and Amortization Expense” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the total amount of depreciation and amortization expense of Holdings and its Restricted Subsidiaries, including the amortization of deferred financing fees or costs for such Test Period and determined in accordance with GAAP.
Consolidated EBITDA” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the Consolidated Net Income for such Test Period:
(a)    increased by (without duplication):
(i)    provision for taxes based on income or profits or capital, plus state, provincial, territorial, franchise, property or similar taxes and foreign withholding taxes and foreign unreimbursed value added taxes, of such Person for such Test Period (including, in each case, penalties and interest related to such taxes or arising from tax examinations), to the extent the same were deducted in computing Consolidated Net Income for such Test Period, plus
(ii)    (A) total interest expense of such Person for such Test Period and (B) bank fees and costs of surety bonds for such Test Period, in each case under this clause (B), in connection with financing activities and, in each case under clauses (A) and (B), to the extent the same were deducted in computing Consolidated Net Income for such Test Period, plus
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(iii)    Consolidated Depreciation and Amortization Expense for such Test Period, to the extent the same was deducted in computing Consolidated Net Income for such Test Period, plus
(iv)    any expenses or charges related to any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or the incurrence or repayment of Indebtedness permitted to be incurred hereunder including a refinancing thereof (whether or not successful) and any amendment or modification to the terms of any such transactions, including such fees, expenses or charges related to the Transactions, incurred during such Test Period, in each case, to the extent the same were deducted in computing Consolidated Net Income for such Test Period, plus
(v)    the amount of any restructuring charge or reserve deducted in such Test Period in computing Consolidated Net Income, including any one-time costs incurred in connection with (A) Permitted Acquisitions after the Closing Date or (B) the closing of any Stores or distribution centers after the Closing Date; plus
(vi)    the amount of costs relating to pre-opening and opening costs for Stores, signing, retention and completion bonuses, costs incurred in connection with any strategic initiatives, transition costs, consolidation and closing costs for Stores and costs incurred in connection with non-recurring (without, in any such case, limitation on the calculation hereof by Item 10(e) of Regulation S-K promulgated by the SEC) product and Intellectual Property development after the Closing Date, other business optimization expenses (including costs and expenses relating to business optimization programs), and new systems design and implementation costs and project start-up costs, plus
(vii)    any other non-cash charges including any write offs or write downs reducing such Consolidated Net Income for such Test Period (provided that, if any such non-cash charges represent an accrual or reserve for potential cash items in any future Test Period, (A) Holdings may determine not to add back such non-cash charge in the current Test Period and (B) to the extent Holdings decides to add back such non-cash charge, the cash payment in respect thereof in such future Test Period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior Test Period), plus
(viii)    the amount of any minority interest expense deducted in calculating Consolidated Net Income for such Test Period, plus
(ix)    the amount of Expected Costs Savings that are reasonably identifiable and factually supportable (in the good faith determination of the Lead Administrative Borrower) related to (A) the Transactions, (B) any Business Optimization Initiative consummated prior to or on the Closing Date and/or (C) any Business Optimization Initiative consummated after the Closing Date (in each case, net of the amount of actual amounts realized during such Test Period from such actions); provided that (1) with respect to clause (C), the relevant action resulting in (or substantial steps towards the relevant action that would result in) such Expected Costs Savings must either be taken or reasonably expected to be taken within eighteen (18) months after the determination to take such action and (2) amounts added back pursuant to this clause (ix) with respect to any Test Period shall not exceed 25% of Consolidated EBITDA for such Test Period
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(calculated prior to giving effect to any adjustments pursuant to this clause (ix)); plus
(x)    any (A) one-time fee, cost, charge or expense incurred during such Test Period in connection with regulatory fines or processes and (B) cost of, and payment of, actual or prospective litigations, legal settlements, fines, judgments or orders during such Test Period; plus
(xi)    any fee, cost, charge or expense incurred in connection with (A) lease buy-outs or termination fees in connection with Store closures and (B) contract terminations (including holdback amounts) during such Test Period; plus
(xii)    cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income in any Test Period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to clause (b) below for any previous Test Period and not added back, plus
(xiii)    any costs or expenses incurred by Holdings or any Restricted Subsidiary during such Test Period pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or stockholders agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Loan Parties or net cash proceeds of issuance of Equity Interests of the Loan Parties (other than Disqualified Equity Interests);
(b)    decreased by (without duplication):
(i)    any non-cash gains increasing Consolidated Net Income of such Person for such Test Period, excluding any gains that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior Test Period (other than such cash charges that have been added back to Consolidated Net Income in calculating Consolidated EBITDA in accordance with this definition), plus
(ii)    any non-cash gains with respect to cash actually received in a prior Test Period unless such cash did not increase Consolidated EBITDA in such prior Test Period.
Notwithstanding anything to the contrary contained herein, for purposes of determining Consolidated EBITDA under this Agreement for any Test Period that includes any of the Fiscal Quarters ended on or about October 31, 2018, January 30, 2019, April 30, 2019 and July 30, 2019, Consolidated EBITDA for such Fiscal Quarters shall be $11,218,000, $285,745,000, $68,132,000 and $166,035,000, respectively. For the avoidance of doubt, Consolidated EBITDA shall be calculated (whether pursuant to the immediately preceding sentence or otherwise), including pro forma adjustments, in accordance with Section 1.8 (provided that any such adjustments, when taken together with any such similar adjustments made in accordance with clause (a)(ix) above, shall not exceed 25% of Consolidated EBITDA for such Test Period (calculated prior to giving effect to such addbacks).
Consolidated Fixed Charge Coverage Ratio” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the ratio of (a) (i) Consolidated EBITDA for such Test Period, minus (ii) Capital Expenditures paid in cash during such Test Period and not financed with the proceeds of Indebtedness (other than Loans), minus
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(iii) Cash Taxes during such Test Period to (b) Debt Service Charges of or by Holdings and its Restricted Subsidiaries for such Test Period.
Consolidated Interest Charges” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the sum of (a) all cash interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (b) the cash portion of rent expense with respect to such period under Capitalized Lease Obligations that is treated as interest in accordance with GAAP, minus (c) cash interest income during such period, in each case of or by Holdings and its Restricted Subsidiaries on a Consolidated basis for such Test Period in accordance with GAAP. For purposes of the foregoing, interest expense shall exclude, for the avoidance of doubt, (i) one-time financing fees (including arrangement, amendment and contract fees), debt issuance costs, commissions and expenses, (ii) the amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses (including as a result of the effects of acquisition method accounting or pushdown accounting), (iii) any interest expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iv) penalties and interest relating to Taxes, and (v) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging (other than any interest rate hedging agreement or other derivative instrument), any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, all as calculated on a Consolidated basis in accordance with GAAP.
Consolidated Net Debt” means, as of any date of determination, (a) Consolidated Total Debt, minus (b) the amount of cash and Cash Equivalents on a consolidated balance sheet of Holdings and its Restricted Subsidiaries that are not “Restricted” for purposes of GAAP on such balance sheet; provided that Consolidated Net Debt shall not include the principal amount of any Indebtedness with respect to which an irrevocable deposit of the necessary funds for the payment, redemption or satisfaction of such Indebtedness has been made (and, for the avoidance of any doubt, such deposits shall not be included as cash and Cash Equivalents pursuant to clause (b) above).
Consolidated Net Income” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the aggregate of the Net Income of Holdings and its Restricted Subsidiaries for such Test Period and otherwise determined in accordance with GAAP; provided, however, that, without duplication,
(a)    any net after-tax extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, and Transaction Expenses, relocation costs, integration costs, facility consolidation and closing costs, severance costs and expenses and non-recurring compensation charges (without, in any such case, limitation on the calculation hereof by Item 10(e) of Regulation S-K promulgated by the SEC), shall be excluded,
(b)    the Net Income for such Test Period shall not include the cumulative effect of a change in accounting principles during such Test Period, whether effected through a cumulative effect adjustment or a retroactive application in each case in accordance with GAAP,
(c)    effects of adjustments (including the effects of such adjustments pushed down to the Lead Administrative Borrower and its Restricted Subsidiaries) in such Person’s Consolidated financial statements pursuant to GAAP (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue and debt line items thereof) resulting from the application of recapitalization accounting
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or purchase accounting, as the case may be, in relation to the Transactions or any consummated Permitted Acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(d)    any net after-tax income (loss) from disposed or discontinued operations and any net after-tax gains or losses on disposal of disposed or discontinued operations shall be excluded,
(e)    any net after-tax gains or losses (less all fees and expenses relating thereto) attributable to asset Dispositions or the other Disposition of any Equity Interests of any Person other than in the ordinary course of business, as determined in good faith by Holdings, shall be excluded,
(f)    the Net Income for such Test Period of any Person that is not a Restricted 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 Holdings and its Restricted Subsidiaries shall include 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 Test Period,
(g)    (i) any net unrealized gain or loss (after any offset) resulting in such Test Period from obligations in respect of Swap Contracts and the application of FASB Accounting Standards Codification 815 (Derivatives and Hedging), (ii) any net gain or loss resulting in such Test Period from currency translation gains or losses related to currency remeasurements of Indebtedness (including the net loss or gain (A) resulting from Swap Contracts for currency exchange risk and (B) resulting from intercompany Indebtedness) and all other foreign currency translation gains or losses to the extent such gain or losses are non-cash items, and (iii) any net after-tax income (loss) for such Test Period attributable to the early extinguishment or conversion of (A) Indebtedness, (B) obligations under any Swap Contracts or (C) other derivative instruments, shall be excluded,
(h)    any impairment charge or asset write-off, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(i)    any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, Permitted Acquisition or any sale, conveyance, transfer or other Disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as Holdings has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future Test Period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days), shall be excluded,
(j)    to the extent covered by insurance and actually reimbursed, or, so long as the Lead Administrative Borrower has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed within 365 days of the date of such determination (with a deduction in the applicable future Test Period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption shall be excluded, and
(k)    any non-cash (for such Test Period and all other Test Periods) compensation charge or expense, including any such charge or expense arising from the grants of
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stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs shall be excluded, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by, or to, management of Holdings or any of its Restricted Subsidiaries in connection with the Transactions, shall be excluded.
Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of Holdings and its Restricted Subsidiaries outstanding on such date, determined on a Consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereunder) consisting of (a) Indebtedness for borrowed money, (b) unreimbursed obligations in respect of drawn letters of credit, (c) obligations in respect of Capitalized Leases and (d) debt obligations evidenced by promissory notes or similar instruments; provided that Consolidated Total Debt shall not include Indebtedness in respect of (i) any letter of credit, except to the extent of unreimbursed obligations in respect of drawn letters of credit (provided that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Debt until three (3) Business Days after such amount is drawn (it being understood that any borrowing, whether automatic or otherwise, to fund such reimbursement shall be counted)) or (ii) obligations under Swap Contracts.
Constituent Documents” means (a) with respect to any corporation or company, the certificate or articles of incorporation, the certificate or articles of amalgamation, the bylaws and memorandum of association (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, incorporation or organization, memorandum of association (if applicable) and operating or limited liability company agreement (if applicable); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
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.
Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004 (U.K.).
Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
Cost” means the cost of purchases of Inventory determined according to the accounting policies used in the preparation of the Borrowers’ financial statements.
Covenant Trigger Event” means that Excess Availability on any day is less than the greater of (i) $100,000,000 and (ii) 10.0% of the Modified Revolving Loan Cap. For purposes hereof, the occurrence of a Covenant Trigger Event shall be deemed to be continuing until Excess Availability is equal to or greater than the greater of (i) $100,000,000 and (ii) 10.0% of the Modified Revolving Loan Cap, in each case, for thirty (30) consecutive calendar days, in which case a Covenant Trigger Event shall no longer be deemed to be continuing for purposes of
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this Agreement. The termination of a Covenant Trigger Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Trigger Event in the event that the conditions set forth in this definition again arise.
Covered Entity” has the meaning specified in Section 12.29(b).
Covered Jurisdiction” means each of (a) the United States, any state thereof or the District of Columbia, (b) Bermuda, (c) Canada or any province or territory thereof, (d) each Covered U.K. Jurisdiction and (e) the Republic of Ireland.
Covered Loan Party Jurisdiction” means each of (a) the United States, any state thereof or the District of Columbia, (b) Bermuda, (c) Canada or any province or territory thereof, (d) England and Wales, and (e) solely with respect to the Specified Irish Subsidiary Guarantor, the Republic of Ireland.
Covered Party” has the meaning specified in Section 12.29(a).
Covered U.K. Jurisdiction” means each of (a) England and Wales, (b) Scotland and (c) Northern Ireland. For the avoidance of doubt, the Isle of Man, the Bailiwick of Jersey and the Bailiwick of Guernsey are not a part of any Covered U.K. Jurisdiction for purposes of the Loan Documents.
Credit Card Agreements” means all agreements or arrangements now or hereafter entered into by any Loan Party, in each case with any Credit Card Issuer, Credit Card Processor, Specified Non-Recourse Private Label Provider or Specified Rent-to-Own Provider, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, including, but not limited to, the agreements or arrangements set forth on Schedule 1.1B.
Credit Card Issuer” means any Person (other than a Loan Party) who issues or whose members issue credit cards or debit cards (which may include “virtual” credit and debit cards), including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc., Novus Services, Inc., Affirm and any Specified Non-Recourse Private Label Provider.
Credit Card Notification” means, collectively, the notices to Credit Card Issuers, Credit Card Processors, Specified Non-Recourse Private Label Providers or Specified Rent-to-Own Providers who are parties to Credit Card Agreements, in substantially the form of Exhibit G, which Credit Card Notifications shall require the ACH or wire transfer no less frequently than each Business Day (and whether or not there are then any outstanding Obligations) to an Approved Deposit Account of all payments due from Credit Card Processors, Specified Non-Recourse Private Label Providers or Specified Rent-to-Own Providers.
Credit Card Processor” means any servicing or processing agent or any factor or financial intermediary who (a) facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to the Loan Parties’ sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer or (b) otherwise acquires goods or pays for services from the Loan Parties, as lessor of the subject goods to customers, and shall include any Specified Non-Recourse Private Label Provider and any Specified Rent-to-Own Provider.
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Credit Card Receivables” means, collectively, (a) all present and future rights of any Loan Party to payment from any Credit Card Issuer, Credit Card Processor, Specified Non-Recourse Private Label Provider, or other third party arising from sales of goods or rendition of services to customers who have purchased such goods or services using a credit or debit card (including “virtual” credit or debit cards), (b) all present and future rights of any Loan Party to payment from any Credit Card Issuer, Credit Card Processor, Specified Non-Recourse Private Label Provider, or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers, and (c) all present and future rights of any Loan Party to payment from any Specified Rent-to-Own Provider in connection with the sale of goods or rendition of services to such Specified Rent-to-Own Provider, as lessor of the subject goods to customers, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer, Credit Card Processor, Specified Non-Recourse Private Label Provider or Specified Rent-to-Own Provider under the Credit Card Agreements or otherwise, in each case above calculated net of prevailing interchange charges.
Credit Card Receivables Advance Rate” means (a) with respect to the determination of the Revolving Borrowing Base, 90.0%, and (b) with respect to the determination of the FILO Borrowing Base, 5.0%.
Credit Extension” means each of the following: (a) a Borrowing and (b) a L/C Credit Extension.
Credit Extension Conditions” means, in relation to any determination thereof at any time, the requirements that:
(a)    the Total Outstandings at such time shall not exceed the Combined Loan Cap at such time (other than as a result of any Protective Advance);
(b)    the Revolving Credit Outstandings at such time shall not exceed the Revolving Loan Cap at such time (other than as a result of any Protective Advance);
(c)    the Revolving Credit Exposure of any Revolving Credit Lender (other than the Revolving Credit Lender acting as the Swing Loan Lender) at such time shall not exceed the Revolving Credit Commitment of such Lender at such time (or, as applicable, the Revolving Credit Commitments of any applicable Class of such Revolving Credit Lender);
(d)    solely in connection with any Borrowing by an English Borrower, the Total Outstandings at the time of such Borrowing consisting of Credit Extensions made to the English Borrowers shall not exceed $400,000,000;
(e)    solely in connection with the Issuance of any Letter of Credit, the Letter of Credit Obligations at such time shall not exceed the Letter of Credit Sublimit; and
(f)    solely in connection with the making of any Swing Loans, the Swing Loan Obligations at such time shall not exceed the Swing Loan Sublimit.
CRR” means either CRR-EU or, as the context may require, CRR-UK.
CRR-EU” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and Regulation (EU) No 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.
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CRR-UK” means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.
Cure Amount” has the meaning specified in Section 10.4(b).
Cure Expiration Date” has the meaning set forth in Section 10.4(a).
Current Asset Collateral” means all the “ABL Priority Collateral” as defined in the Senior Notes Intercreditor Agreement, as attached hereto on the Closing Date.
Customer Credit Liabilities” means, at any time, the aggregate remaining balance at such time of (a) outstanding gift certificates and gift cards of the Loan Parties (or any Subsidiary that issues gift cards) entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory of the Loan Parties, (b) “bounceback” obligations of the Loan Parties, to the extent the Loan Parties may be liable for such obligations, (c) outstanding insurance card obligations of the Loan Parties, to the extent the Loan Parties may be liable for such obligations, and (d) outstanding merchandise credits and, to the extent not fully processed, customer refund obligations of the Loan Parties with respect to Inventory of the Loan Parties.
Customer Credit Liability Reserve” means a reserve in respect of Customer Credit Liabilities, customer deposits and layaway payments.
Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).
Debt Service Charges” means, with respect to Holdings and its Restricted Subsidiaries on a Consolidated basis for any Test Period, the sum of (a) Consolidated Interest Charges paid, or required to be paid, in cash for such Test Period, plus (b) scheduled principal payments made or required to be made on account of Indebtedness of the types set forth in clauses (a), (b), (c) and (f) of the definition of “Indebtedness” (excluding the Obligations but including, without limitation, Capitalized Lease Obligations) of or by Holdings and its Restricted Subsidiaries for such Test Period, in each case determined on a consolidated basis in accordance with GAAP.
Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Insolvency Act 1986 (U.K.), the Enterprise Act 2002 (U.K.), the Companies Act 1981 (Bermuda) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, adjustment, administration, composition, receivership, examinership, insolvency, reorganization, or similar debtor relief Laws of any Covered Jurisdiction from time to time in effect and affecting the rights of creditors generally.
Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would constitute an Event of Default.
Default Rate” means (a) when used with respect to Obligations under the FILO Facility an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin applicable to
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FILO Loans that are Base Rate Loans plus (iii) 2.0% per annum, or (b)(i) when used with respect to Obligations under the Revolving Credit Facility (other than Letter of Credit Fees), (A) the Base Rate plus (B) the Applicable Margin applicable to Revolving Loans that are Base Rate Loans plus (C) 2.0% per annum; provided that, with respect to the outstanding principal amount of any Revolving Loan (including any Swing Loan), the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Revolving Loan (giving effect to Section 2.10) plus 2.0% per annum, and (ii) when used with respect to Letter of Credit Fees, a rate equal to (A) the Applicable Margin for Standby Letters of Credit or Documentary Letters of Credit, as applicable, plus (B) 2.0% per annum, in each case of clause (a) and (b), to the fullest extent permitted by applicable Laws.
Default Right” has the meaning specified in Section 12.29(b).
Defaulting Lender” means, subject to Section 2.16(b), any Lender that,
(a)    has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Lead Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuer, the Swing Loan Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Loans) within two (2) Business Days of the date when due,
(b)    has notified the Lead Administrative Borrower, the Administrative Agent, an Issuer or the Swing Loan Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied),
(c)    has failed, within three (3) Business Days after written request by the Administrative Agent or the Lead Administrative Borrower, to confirm in writing to the Administrative Agent and the Lead Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Administrative Borrower), or
(d)    has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Governmental Authority acting in such a capacity (in each case of clause (i) or (ii), other than pursuant to an Undisclosed Administration) or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or any other Covered Jurisdiction or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
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Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Lead Administrative Borrower, each Issuer, the Swing Loan Lender and each other Lender promptly following such determination.
Defined Benefit Scheme” has the meaning specified in Section 5.11(e).
Deposit Account” means any checking or other demand deposit account maintained by the Loan Parties, including any “deposit accounts” within the meaning given to such term in Article 9 of the UCC. All funds in such Deposit Accounts shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in the Deposit Accounts.
Deposit Account Control Agreement” means a control agreement reasonably satisfactory to the Collateral Agent, executed by an institution maintaining a Deposit Account for a Loan Party, to perfect or evidence a Lien on, or control of, such account in favor of the Collateral Agent as security for the Obligations.
Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
Designated Lender” has the meaning set forth in Section 2.18.
Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by any Loan Party or a Restricted Subsidiary in connection with a Disposition pursuant to Section 9.5(j) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Lead Administrative Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within one-hundred eighty (180) days following the consummation of the applicable Disposition).
Dilution Factors” means, without duplication, with respect to any period, the aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs, charge-offs and other non-cash credits and account adjustments which are recorded to reduce Credit Card Receivables in a manner consistent with current and historical accounting practices of the Borrowers.
Dilution Ratio” means, for any relevant period of determination (as selected by the Administrative Agent in its Permitted Discretion), the amount (expressed as a percentage) equal to (a) the aggregate amount of the applicable Dilution Factors for such period with respect to Credit Card Receivables divided by (b) the aggregate amount of sales comprising such Credit Card Receivables for such period.
Dilution Reserve” means, at any time of determination, an Availability Reserve in an amount sufficient to reduce the advance rate against Eligible Credit Card Accounts Receivable by one (1) percentage point for each percentage point by which the applicable Dilution Ratio exceeds five percent (5%).
Direction” has the meaning specified in Section 3.2.
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Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction, any sale or issuance of Equity Interests in a Restricted Subsidiary or any sale, transfer, license, lease or other disposition effected pursuant to any Investment) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Equity Interests” means any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and all outstanding Letters of Credit (unless the Outstanding Amount of the Letter of Credit Obligations related thereto has been Cash Collateralized or back-stopped by a letter of credit in form and substance reasonably satisfactory to the applicable Issuer)), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after Latest Maturity Date at the time of issuance; provided that if such Equity Interests are issued pursuant to a plan for the benefit of employees of Holdings, the Borrowers or the Restricted Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by Holdings, the Borrowers or the Restricted Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
Disqualified Institution” means:
(a)    any Person that is a competitor of Holdings and its Restricted Subsidiaries and identified by the Lead Administrative Borrower in good faith in writing to the Administrative Agent from time to time after the Closing Date;
(b)    those financial institutions, other institutional lenders and investors and other entities that were identified by the Lead Administrative Borrower as such in writing to the Administrative Agent on or prior to August 26, 2019; and
(c)    any Affiliates of Persons described in the foregoing clauses (a) and (b) that are readily identifiable as such solely on the basis of their names (other than any such Affiliate that is a bank, financial institution or fund (other than a Person described in clause (b) above) that regularly invest in commercial loans or similar extensions of credit in the ordinary course of business and for which no personnel involved with the relevant competitor or Person referred to in clause (b) above make investment decisions);
provided that in no event shall any update to the list of Disqualified Institutions (i) be effective prior to two (2) Business Days after receipt thereof by the Administrative Agent or (ii) apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest under this Agreement or that is party to a pending trade.
Notwithstanding anything in the Loan Documents to the contrary, the Administrative Agent shall not be responsible (or have any liability) for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions thereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent shall not (i) be obligated to
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ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (ii) have any liability with respect to or arising out of any assignment or participation of Loans, FILO Commitments, Revolving Credit Exposure or Revolving Credit Commitments, or disclosure of confidential information, to any Disqualified Institution. The list of Disqualified Institutions may be made available by the Administrative Agent on the Platform and to prospective assignees and Participants (including Public Lenders).
Disqualifying Event has the meaning set forth in the definition of “Eligible Currency”.
Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons with the dividing Person either continuing or terminating its existence as part of the division including as contemplated under Section 18-217 of the Delaware Limited Liability Act for limited liability companies formed under Delaware law or any analogous action taken pursuant to any applicable Law with respect to any corporation, limited liability company, partnership or other entity. The word “Divide”, when capitalized shall have correlative meaning.
Document” has the meaning set forth in Article 9 of the UCC and, if applicable, includes a “document of title” as defined in the PPSA.
Documentary Letter of Credit” means any Letter of Credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by a Loan Party in the ordinary course of its business.
Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such other currency.
Dollars” and “$” mean lawful money of the United States.
Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under the Laws of Puerto Rico or any other territory).
Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Requisite Lenders.
Early Opt-in Election” means the occurrence of:
(a) a determination by the Administrative Agent, or a notification by the Lead Administrative Borrower to the Administrative Agent that the Lead Administrative Borrower has made a determination, that U.S. dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 3.4(c), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and
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(b) the joint election by the Administrative Agent and the Lead Administrative Borrower to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders.
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 Datemeans the date indicated in a document or agreement to be the date on which such document or agreement becomes effective, or, if there is no such indication, the date of execution of such document or agreement.
Electronic Record” and “Electronic Signature” have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
Eligible Assignee” means (a) a Lender or any of its Affiliates or branches; (b) a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates and branches, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Lender assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Lender’s rights in and to a material portion of such Lender’s portfolio of asset based credit facilities, and (e) any other Person that meets the requirements to be an assignee under Section 12.2(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 12.2(b)(iii)).  For the avoidance of doubt, any Disqualified Institution is subject to the last sentence of Section 12.2(b)(v).
Eligible Credit Card Receivables” means, as of the date of determination thereof, Credit Card Receivables due to the Borrowers on a non-recourse basis from a Specified Non-Recourse Private Label Provider, Specified Rent-to-Own Provider, Visa, Mastercard, American Express Co., Discover and other major Credit Card Processors reasonably acceptable to the Administrative Agent as arise in the ordinary course of business, which have been earned by performance and are deemed by the Administrative Agent in its Permitted Discretion to be included in the determination of Eligible Credit Card Receivables. In determining the amount to be so included in the calculation of the value of an Eligible Credit Card Receivable, the face amount thereof shall be reduced by, without duplication, to the extent not reflected in such face amount, (x) the amount of all customary fees and expenses in connection with any credit card or debit card arrangements or lease-purchase arrangements or similar financing arrangements, as applicable, required to be borne by any Loan Party and (y) the aggregate amount of all cash received in respect thereof but not yet applied by the applicable Borrower to reduce the amount of such Eligible Credit Card Receivable. Without limiting the foregoing, unless otherwise approved in writing by the Administrative Agent, none of the following shall be deemed to be Eligible Credit Card Receivables:
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(a)    any Credit Card Receivable that has been outstanding for more than five (5) Business Days from the date of sale of the Inventory giving rise to such Credit Card Receivable;
(b)    any Credit Card Receivable with respect to which a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (other than (i) Liens granted to the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents, (ii) Liens permitted under Sections 9.1(p), (w), (ee) and (jj) and (iii) Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent, in the case of this clause (iii), an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect thereof);
(c)    any Credit Card Receivable that is not subject to a first-priority security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents (other than Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent, an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect thereof), it being the intent that chargebacks in the ordinary course by a Credit Card Processor shall not be deemed violative of this clause;
(d)    any Credit Card Receivable that is disputed, or is with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback);
(e)    any Credit Card Receivable with respect to which, to the knowledge of any Loan Party, the applicable Credit Card Issuer or Credit Card Processor is the subject of a proceeding under any Debtor Relief Law or is a target of Sanctions;
(f)    any Credit Card Receivable that is due from a Credit Card Processor (x) that is not located in the Local Covered Jurisdiction of such Borrower that owns such Credit Card Receivable or (y) is an Affiliate of any Loan Party;
(g)    any Credit Card Receivable that arises from any private label credit card program or other similar credit program of a Borrower (other than any private label credit card program or similar program administered by a Specified Non-Recourse Private Label Provider or lease-purchase program administered by a Specified Rent-to-Own Provider); or
(h)    any Credit Card Receivable that is payable in any currency other than (i) with respect to the U.S. Borrowers or the Canadian Borrowers, Dollars or Canadian Dollars, or (ii) with respect to the English Borrowers, Dollars, Sterling or Euro.
Any Credit Card Receivables which are not Eligible Credit Card Receivables shall nevertheless be part of the Collateral.
Eligible Currency means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international interbank market available to the Lenders in such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the Lenders of any currency as an Alternative Currency, any change in currency controls or exchange regulations, or any change in the national or international financial, political or economic conditions in the country in which such currency is issued, results in, in the reasonable opinion of the Administrative Agent (in the case of any Loans to be denominated in an Alternative Currency) or the applicable Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being
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readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent no longer being readily calculable with respect to such currency, (c) providing such currency being impracticable for the Lenders or (d) such currency no longer being a currency in which the Requisite Lenders are willing to make such Credit Extensions (each of the foregoing clauses, a “Disqualifying Event), then the Administrative Agent shall promptly notify the Lenders and the Lead Administrative Borrower, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist; provided that each Alternative Currency shall be (and the Borrowers shall be authorized to treat each Alternative Currency as) an Eligible Currency unless and until the Lead Administrative Borrower receives notice of any Disqualifying Event with respect to such Alternative Currency (which notice may, for the avoidance doubt, be given in connection with any request for a Credit Extension denominated in such Alternative Currency). Within five (5) Business Days after receipt of such notice from the Administrative Agent, the applicable Borrower or Borrowers shall repay all Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.
Eligible Inventory” means, as of the date of determination thereof, items of Inventory of the Borrowers that are finished goods, merchantable and readily saleable to the public in the ordinary course and are deemed by the Administrative Agent in its Permitted Discretion to be included in the determination of Eligible Inventory. Without limiting the foregoing, unless otherwise approved in writing by the Administrative Agent, none of the following shall be deemed to be Eligible Inventory:
(a)    Inventory that is not owned solely by a Borrower, or with respect to which a Borrower does not have good and valid title thereto, free and clear of any Lien (other than (i) Liens granted to the Collateral Agent, for its benefit and the ratable benefit of the Secured Parties, pursuant to the Collateral Documents, (ii) Liens permitted under Sections 9.1(p), (w), (ee) and (jj) and (iii) Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent, in the case of this clause (iii), an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect thereof);
(b)    Inventory which is on consignment to a Borrower or which is consigned by a Borrower to a Person which is not a Borrower;
(c)    Inventory that is not located at (i) a warehouse facility used by a Borrower in the ordinary course of business or (ii) a property that is owned or leased by a Loan Party, which warehouse or other property, as applicable, is located (x) in the case of Inventory owned by a U.S. Borrower, in the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or Canada, (y) in the case of Inventory owned by a Canadian Borrower, in Canada or the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or (z) in the case of Inventory owned by an English Borrower, in a Covered U.K. Jurisdiction or the Republic of Ireland; provided that the following Inventory, which in each case, otherwise meets the criteria for Eligible Inventory shall not be excluded solely by the application of this clause (c): (x) Inventory of any U.S. Borrower which is in transit with a Permitted Carrier for a period not exceeding ten (10) days, within the United States or between the United States and Canada from a location of a U.S. Borrower or a Canadian Borrower (or a warehouse facility used by any such Person in the ordinary course of business) to a location of a U.S. Borrower or a Canadian Borrower, (y) Inventory of a Canadian Borrower which is in transit with a Permitted Carrier for a period not exceeding ten (10) days, within Canada or between the United States and Canada from a location of a U.S. Borrower or a Canadian Borrower (or a warehouse facility used by any such Person in the ordinary course of business) to a location of a U.S. Borrower or a Canadian Borrower and (z) Inventory of any English Borrower which is in transit with a Permitted Carrier for a period not exceeding ten (10) days, (i) within the Covered
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U.K. Jurisdictions or the Republic of Ireland or (ii) between a Covered U.K. Jurisdiction and the Republic of Ireland, in each case from a location of an English Borrower (or a warehouse facility used by an English Borrower in the ordinary course of business) to a location of an English Borrower;
(d)    Inventory that is comprised of goods which (i) are damaged, defective, “seconds” or otherwise unmerchantable (including incomplete or mismatched sets), (ii) have been returned or traded in by the buyer and are not in immediately saleable condition or are to be returned to the vendor, (iii) are work-in-process or raw materials (other than cut and finished diamonds and other gemstones and gold components), (iv) are obsolete or custom items or that constitute spare, tooling or replacement parts, (v) are promotional, marketing, packaging and shipping materials or supplies used or consumed in a Loan Party’s business, (vi) are not in compliance in all material respects with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, (vii) are bill and hold goods or (viii) are held not for sale to retail customers and designated to be sent to a third-party provider for melting process;
(e)    Inventory that is not located (i) in the case of Inventory owned by a U.S. Borrower, in the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or Canada, (ii) in the case of Inventory owned by a Canadian Borrower, in Canada or the United States (excluding, for the avoidance of doubt, the territories and possessions thereof) or (iii) in the case of Inventory owned by an English Borrower, in a Covered U.K. Jurisdiction or the Republic of Ireland;
(f)    Inventory that is not subject to a perfected first-priority security interest in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents, under the Laws of the Covered Jurisdiction where such Inventory is located (subject only to Liens permitted under Section 9.1 that are pari passu with or that have priority by operation of applicable Law over the Liens of the Collateral Agent (to the extent an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect thereof);
(g)    Inventory which consists of samples, labels, bags, packaging, and other similar non-merchandise categories;
(h)    Inventory as to which insurance in compliance with the provisions of Section 8.5 is not in effect;
(i)    Inventory which has been sold but not yet delivered or as to which a Loan Party or any Subsidiary has accepted a deposit;
(j)    Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third Person (i) which would require any consent of any third Person for the sale or disposition of that Inventory (which consent has not been obtained) or the payment of any monies to any third Person upon such sale or other disposition (to the extent of such monies) or (ii) from whom any Loan Party has received notice of a dispute in respect of such agreement, to the extent that the Administrative Agent determines, in its Permitted Discretion, that such dispute could be expected to prevent or impair the sale of such Inventory;
(k)    Inventory which is being Disposed of in a Store closing, “going-out-of-business” or similar sale; and
(l)    except to the extent and for so long as such Inventory is permitted to be included in the Revolving Borrowing Base pursuant to the definition of the Revolving
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Borrowing Base, Inventory acquired in a Permitted Acquisition or similar Investment, unless and until the Administrative Agent has completed or received (i) an appraisal of such Inventory from appraisers satisfactory to the Administrative Agent, and has established Inventory Reserves (if applicable) therefor, and (ii) such other due diligence as the Administrative Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent.
Any Inventory which is not Eligible Inventory shall nevertheless be part of the Collateral.
English Borrower” means any Borrower incorporated in England and Wales.
English Borrower DTTP Filing” means an HMRC Form DTTP2 duly completed and filed by an English Borrower, which (a) where it relates to a U.K. Treaty Lender that is a party to this Agreement as a Lender as at the Closing Date, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name on Schedule I, and (i) if the English Borrower is a Borrower under this Agreement as at the Closing Date, is filed with HMRC within thirty (30) days of the Closing Date, or (ii) if the English Borrower becomes a Borrower under Section 2.14, is filed with HMRC within thirty (30) days of the date on which that English Borrower becomes a Borrower under this Agreement: or (b) where it relates to a U.K. Treaty Lender that is not a party to this Agreement as a Lender as at the Closing Date, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a party to this Agreement as a Lender, and (i) if the English Borrower is a party to this Agreement on the date on which that Lender becomes a party to this Agreement as a Lender, is filed with HMRC within thirty (30) days of the date on which that U.K. Treaty Lender becomes a party to this Agreement as a Lender, or (ii) if the English Borrower becomes a Borrower under Section 2.14 after the date on which that Lender becomes a party to this Agreement as a Lender, is filed with HMRC within thirty (30) days of the date on which that English Borrower becomes a Borrower under this Agreement.
English Collateral” means the “Security Assets” (or equivalent term) as defined in any English Collateral Document, and which shall include assets located in Northern Ireland and Scotland, as contemplated in the English Collateral Documents.
English Collateral Documents” means, collectively, (a) the English Debenture, (b) the English Share Charge, and (c) each of the other debentures, share charges, agreements, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and that are governed by the Laws of England and Wales.
English Collection Account” means any Deposit Account of an English Loan Party into which collections of Accounts (including Credit Card Receivables) are deposited, which Deposit Account may be located in any Covered U.K. Jurisdiction or the Republic of Ireland.
English Debenture” means the debenture governed by the Laws of England and Wales, effective as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
English Loan Party” means any Loan Party incorporated under the Laws of England and Wales.
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English Priority Payables Reserve” means, as of any date of determination, an Availability Reserve, in such amount as the Administrative Agent may determine in its Permitted Discretion to reflect the full amount of any liabilities or amounts which (by virtue of any Liens or any statutory provision) rank or are capable of ranking pari passu with or in priority to the Liens of the Collateral Agent in any Covered U.K. Jurisdiction or the Republic of Ireland and/or for amounts which may represent costs relating to the enforcement of the Liens of the Collateral Agent in any Covered U.K. Jurisdiction or the Republic of Ireland (but only to the extent prescribed pursuant to English law and statute then in force in any Covered U.K. Jurisdiction or the Republic of Ireland), including (a) amounts due to employees in respect of unpaid wages and holiday pay, (b) the amount of all scheduled but unpaid pension contributions, (c) the “prescribed part” of floating charge realisations held for unsecured creditors, (d) the expenses and liabilities incurred by any receiver, administrator (or other insolvency officer) and any remuneration of such receiver, administrator (or other insolvency officer) and (e) to the extent applicable in accordance with English law and statute then in force in any Covered U.K. Jurisdiction or the Republic of Ireland, VAT or any other relevant taxes.
English Share Charge” means the share charge governed by the Laws of England and Wales, effective as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, in form and substance satisfactory to the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
Entitlement Holder” has the meaning given to such term in Article 8 of the UCC.
Entitlement Order” has the meaning given to such term in Article 8 of the UCC.
Environmental Claim” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations (other than internal reports prepared by any Loan Party or any of its Subsidiaries (a) in the ordinary course of such Person’s business or (b) as required in connection with a financing transaction or an acquisition or disposition of real estate) or proceedings with respect to any Environmental Liability (hereinafter “Claims”), including (i) any and all Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any Environmental Law and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief pursuant to any Environmental Law.
Environmental Laws” means any and all Laws relating to the protection of the environment or, to the extent relating to exposure to Hazardous Materials, human health.
Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of its 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 Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other
42


ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
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 together with any Loan Party is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any of their respective ERISA Affiliates 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 of their respective ERISA Affiliates from a Multiemployer Plan, written notification of any Loan Party or any of their respective ERISA Affiliates concerning the imposition of Withdrawal Liability or written notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA; (d) the filing under Section 4041(c) of ERISA of a notice of intent to terminate a Pension Plan, 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 by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) the imposition of any liability under Title IV of ERISA with respect to the termination of any Pension Plan or Multiemployer Plan, other than for the payment of plan contributions or PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any of their respective ERISA Affiliates; (f) the failure to satisfy the minimum funding standard (within the meaning of Section 302 of ERISA or Section 412 of the Code) with respect to a Pension Plan, whether or not waived, (g) the application for a minimum funding waiver under Section 302(c) of ERISA with respect to a Pension Plan; (h) the imposition of a lien under Section 303(k) of ERISA with respect to any Pension Plan; or (i) a determination that any Pension Plan is in “at risk” status (within the meaning of Section 303 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.
EURIBOR” has the meaning specified in the definition of “EurocurrencyTerm Rate.”
Euro” and “” mean the single currency of the Participating Member States.
Eurocurrency Rate” means:
(a) for any Interest Period with respect to any Credit Extension:
(i) denominated in Dollars, the rate per annum equal to the London Interbank Offered Rate for Dollar deposits (“LIBOR”), as administered by ICE Benchmark Administration Limited, or a comparable or successor rate approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the date that is two (2) Business Days
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prior to the commencement of such Interest Period (for delivery on the first day of such Interest Period), with a term equivalent to such Interest Period;
(ii) denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, on the date that is two (2) Business Days prior to the commencement of such Interest Period, with a term equivalent to such Interest Period;
(iii) denominated in Canadian dollars (other than Canadian Prime Rate Loans), the rate per annum equal to the Canadian Dealer Offered Rate (“CDOR”), or a comparable or successor rate approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:00 a.m., Toronto, Ontario time, on the date of commencement of the applicable Interest Period, with a term equivalent to such Interest Period; or
(iv) denominated in any other Alternative Currency (other than Sterling) (to the extent such Loans denominated in such currency will bear interest at a term rate), the term rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.11(a) plus the adjustment (if any) determined by the Administrative Agent and the relevant Lenders pursuant to Section 1.11(a).
(b) for any interest rate calculation with respect to a Base Rate Loan or a Canadian Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m. (London time) determined two (2) Business Days prior to such date for Dollar deposits being delivered in the London interbank market for deposits in Dollars with a term of one month commencing that day;
(c) for any interest rate calculation with respect to a Canadian Prime Rate Loan on any date, the rate per annum equal to CDOR, at or about 10:00 a.m., Toronto, Ontario time determined on such date for banker’s acceptances in Canadian Dollars with a term of one month commencing on such date;
provided that, (i) subject to Section 3.4(c), to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided further that, to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii) if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency (other than Sterling). All Loans denominated in an Alternative Currency (other than Canadian Dollars or Sterling) must be Eurocurrency Rate Loans.
Event of Default” has the meaning specified in Section 10.1.
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Excess Availability” means, at any time, (a) the Revolving Loan Cap at such time minus (b) the aggregate Revolving Credit Outstandings at such time.
Exchange Act” means the Securities Exchange Act of 1934, as amended.
Excluded Assets” means:
(a)    (i) any fee-owned real property that is not Material Real Property and (ii) any leasehold interest in real property;
(b)    any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (except to the extent such prohibition or restriction is ineffective under the UCC, the PPSA or other applicable Law) other than Proceeds thereof, the assignment of which is expressly deemed effective under the UCC, the PPSA or other applicable Law notwithstanding such prohibition;
(c)    any asset the granting of a security interest in which is prohibited or restricted by applicable Law (including any requirement to obtain the consent of any Governmental Authority (unless such consent has been received));
(d)    any Excluded Equity Interest;
(e)    pledges and security interests in agreements, licenses or leases that are prohibited or restricted by such agreement, licenses or (including any requirement to obtain the consent of any Governmental Authority or of any other third party (other than Holdings or any Affiliate of Holdings), unless such consent has been received), to the extent prohibited or restricted thereby (except to the extent such prohibition or restriction is ineffective under the UCC, the PPSA or other applicable Law) other than Proceeds thereof, the assignment of which is expressly deemed effective under the UCC, the PPSA or other applicable Law notwithstanding such prohibition;
(f)    any “intent-to-use” (or similar) trademark application prior to the filing and acceptance of a “Statement of Use”, “Amendment to Allege Use” or similar filing with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use (or similar) trademark application under applicable Law;
(g)    any asset subject to a purchase money security interest, Capitalized Lease Obligations or similar arrangement, in each case, permitted under this Agreement and to the extent the grant of a security interest herein would violate or invalidate such purchase money, Capitalized Lease Obligation or similar arrangement or create a right of termination in favor of any other party thereto (other than Holdings or any affiliate of Holdings), other than Proceeds and Accounts arising therefrom;
(h)    any asset of a Restricted Subsidiary acquired by Holdings or any Restricted Subsidiary pursuant to a Permitted Acquisition or other similar Investment which has (at the time of such Permitted Acquisition or similar investment) been financed with Indebtedness permitted to be incurred pursuant to this Agreement as assumed Indebtedness (and not incurred in contemplation of such Permitted Acquisition or such similar Investment) and any Restricted Subsidiary thereof that Guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits such assets from being pledged to secure the Obligations;
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(i)    any asset the grant or perfection of a security interest thereon would be reasonably likely to result in material and adverse Tax consequences as reasonably determined by the Lead Administrative Borrower in consultation with the Administrative Agent (including as a result of the operation of Section 956 of the Code or any similar law or regulation);
(j)    any asset to the extent that the burden or cost of the grant or perfection of a security interest thereon would be excessive in light of the practical benefit afforded to the Lenders thereby (as reasonably determined by the Lead Administrative Borrower and the Administrative Agent); and
(k)    with respect to Covered Jurisdictions (other than the United States, any state thereof or the District of Columbia or Canada or any province or territory thereof), all other assets specifically described in the Security Agreement governed by the laws of such Covered Jurisdiction as being excluded from the grant of a Lien in favor of the Collateral Agent;
provided that Excluded Assets shall not include any Proceeds of Excluded Assets unless such Proceeds otherwise constitute Excluded Assets.
Excluded Equity Interests” means:
(a)    other than with respect to the Equity Interest of any Loan Party, more than 65% of the issued and outstanding Equity Interests entitled to vote of each Subsidiary that is (i) not a Loan Party and (ii)(A) a FSHCO or (B) a Foreign Subsidiary of a Domestic Subsidiary;
(b)    any Equity Interest of any Person that (i) is not a Wholly-Owned Subsidiary or (ii) is an Unrestricted Subsidiary;
(c)    any Equity Interest if, to the extent and for so long as the pledge of such Equity Interest hereunder is prohibited by any applicable Law, including any requirement to obtain the consent of any Governmental Authority (other than to the extent that any such prohibition would be rendered ineffective pursuant to the UCC, PPSA or any other applicable Law); provided that such Equity Interest shall cease to be an Excluded Equity Interest pursuant to this clause (c) at such time as such prohibition ceases to be in effect;
(d)    any Equity Interest the grant or perfection of a security interest in which would be reasonably likely to result in material and adverse Tax consequences as reasonably determined by the Lead Administrative Borrower in consultation with the Administrative Agent (including as a result of the operation of Section 956 of the Code or any similar law or regulation);
(e)    any Margin Stock; and
(f)    any Equity Interests to the extent that the burden or cost of the grant or perfection of a security interest thereon would be excessive in light of the practical benefit afforded to the Lenders thereby (as reasonably determined by the Lead Administrative Borrower and the Administrative Agent);
provided that, for the avoidance of doubt, the Equity Interests of Holdings and TXDC, L.P., a Texas limited partnership, and any successor thereto, shall constitute Excluded Equity Interests.
Excluded Subsidiary” means:
(a)    any Subsidiary that is not a Wholly-Owned Subsidiary that is a Restricted Subsidiary of Holdings;
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(b)    any Subsidiary that is organized or incorporated under the Laws of a jurisdiction that is not a Covered Loan Party Jurisdiction or that is incorporated under the Laws of Bermuda;
(c)    any Foreign Subsidiary that is organized or incorporated under the Laws of a jurisdiction that is a Covered Loan Party Jurisdiction (other than the United States, any state of the United States of America or the District of Columbia) and that is a direct or indirect Subsidiary of a Domestic Subsidiary;
(d)    any FSHCO;
(e)    any Subsidiary that is not a Material Subsidiary;
(f)    any Subsidiary that is prohibited or restricted from providing a Guaranty by (i) applicable Law or (ii) any Contractual Obligation that, in the case of this clause (ii), exists on the Closing Date or at the time such Subsidiary becomes a Subsidiary and was not incurred in contemplation of such Subsidiary’s acquisition;
(g)    any Subsidiary for which the provision of a Guaranty would require a governmental (including regulatory) or third party consent (other than from any Loan Party or any Affiliate thereof), approval, license or authorization that is required on the Closing Date or at the time of the acquisition of such Subsidiary (unless such consent, approval, license or authorization has been received);
(h)    any Subsidiary where the provision of a Guaranty would result in material and adverse Tax consequences to Holdings, the Lead Administrative Borrower and/or any of its direct or indirect Restricted Subsidiaries (as reasonably determined in good faith by the Lead Administrative Borrower in consultation with the Administrative Agent);
(i)    any Subsidiary that is special purpose securitization vehicle (or similar entity);
(j)    any Subsidiary that is a not-for-profit organization;
(k)    any Subsidiary that is subject to regulation as an insurance company;
(l)    any subsidiary acquired by Holdings or any Restricted Subsidiary pursuant to a Permitted Acquisition or other similar Investment which has (at the time of such Permitted Acquisition or similar Investment) been financed with Indebtedness permitted to be incurred pursuant to this Agreement as assumed indebtedness (and not incurred in contemplation of such Permitted Acquisition or similar Investment) and any Restricted Subsidiary thereof that Guarantees such Indebtedness, in each case to the extent, and so long as, such Indebtedness prohibits such Subsidiary from becoming a Subsidiary Guarantor;
(m)    any Unrestricted Subsidiary; and
(n)    any Subsidiary to the extent that the burden or cost of providing a Guaranty would be excessive in light of the practical benefit afforded to the Lenders thereby (as reasonably determined by the Lead Administrative Borrower and the Administrative Agent);
provided that, notwithstanding the foregoing or any other provision of any Loan Document to the contrary (x) the Specified Irish Subsidiary Guarantor shall be deemed not to be an “Excluded Subsidiary” so long as the Specified Irish Subsidiary Guarantor holds any Equity Interests of any other Loan Party (it being understood and agreed that joinder of the Specified Irish Subsidiary
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Guarantor as a Loan Party under the Loan Documents does not result in material adverse Tax consequences for any other Loan Party) and (y) no Loan Party shall subsequently be deemed to be an Excluded Subsidiary, unless the Lead Administrative Borrower shall have first complied with the provisions of Section 7.4(b), to the extent applicable.
Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party under the Guaranty of, or the grant under a Loan Document by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 12.27 and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the guaranty of such Loan Party, or grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such guaranty or security interest becomes illegal.
Excluded Taxes” means, with respect to any Agent, any Lender, any Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) any tax on such recipient’s net income (however denominated), gains or profits (or franchise tax or minimum tax imposed in lieu of such tax on net income or profits) and capital taxes imposed by a jurisdiction as a result of such recipient being organized or having its principal office or applicable Lending Office located in such jurisdiction or any political subdivision thereof (including, for the avoidance of doubt, any backup withholding in respect of such a tax under section 3406 of the Code) or as a result of any other present or former connection between such recipient and the jurisdiction (including as a result of such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than a connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction specifically contemplated by, or enforced, any Loan Documents, (b) any branch profits tax under Section 884(a) of the Code, or any similar tax, imposed by any jurisdiction described in clause (a), (c) with respect to any Foreign Lender (other than any Foreign Lender becoming a party hereto pursuant to the Borrowers’ request under Section 3.8), any U.S. federal withholding tax that is imposed on amounts payable to such Foreign Lender pursuant to a Law in effect at the time such Foreign Lender becomes a party hereto (or where the Foreign Lender is a partnership for U.S. federal income tax purposes, pursuant to a Law in effect on the later of the date on which such Foreign Lender becomes a party hereto or the date on which the affected partner becomes a partner of such Foreign Lender) or designates a new Lending Office or experiences a change in circumstances (other than a Change in Law), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment or change in circumstances), to receive additional amounts from a Loan Party with respect to such withholding tax pursuant to Section 3.1, (d) any withholding tax attributable to such recipient’s failure to comply with Section 3.1(c), (e) any U.S. federal withholding tax imposed as a result of such recipient’s failure to establish a complete exemption under FATCA, (f) any Canadian withholding tax that would not have been imposed but for the recipient (A) not dealing at arm’s length (within the meaning of the ITA) with any Loan Party or (B) being a specified shareholder (as defined in subsection 18(5) of the ITA) of any Loan Party or not dealing at arm’s length with such a specified shareholder for purposes of the ITA, and (g) any interest, additions to taxes and penalties with respect to any taxes described in clauses (a) through (f) of this definition.
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Existing 2024 Notes” means, collectively, the 4.70% senior unsecured notes due 2024 issued by the Existing 2024 Notes Issuer, in an original aggregate principal amount of $400,000,000, in favor of the holders thereof pursuant to the Existing 2024 Notes Indenture.
Existing 2024 Notes Documents” means, collectively, (a) the Existing 2024 Notes Indenture, (b) the Existing 2024 Notes (including any Untendered Existing 2024 Notes), (c) the guarantees in respect of the Untendered Existing 2024 Notes Indebtedness and (d) the other documents, instruments or agreement entered into in connection with any of the foregoing, in each case, as the same may be amended, modified, supplemented or replaced in accordance therewith and with this Agreement.
Existing 2024 Notes Indenture” means that certain Indenture, dated as of May 19, 2014, by and among the Existing 2024 Notes Issuer, the guarantors party thereto and the Existing 2024 Notes Trustee, as amended, supplemented or otherwise modified and as the same may be amended, modified, supplemented or replaced on or after the Closing Date in accordance therewith and with this Agreement.
Existing 2024 Notes Issuer” means Signet UK Finance PLC, a public limited company incorporated under the Laws of England and Wales with the company number 09002729.
Existing 2024 Notes Repurchase” means (a) the purchase by the Existing 2024 Notes Issuer of any Existing 2024 Notes that are tendered pursuant to the Existing 2024 Notes Tender Offer and/or (b) the repurchase, redemption, defeasance and/or discharge by the Existing 2024 Notes Issuer of any Existing 2024 Notes, in each case, on or prior to the Closing Date.
Existing 2024 Notes Tender Offer” means the Existing 2024 Notes Issuer’s tender offer with respect to the Existing 2024 Notes launched prior to the Closing Date.
Existing 2024 Notes Trustee” means Deutsche Bank Trust Company Americas, as Trustee under the Existing 2024 Notes Indenture, together with any of its successors or assigns in such capacity.
Existing Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of July 14, 2016, by and among Holdings, the Subsidiaries of Holdings party thereto as borrowers or guarantors, the lenders and other parties party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended, supplemented or otherwise modified prior to the Closing Date.
Existing Credit Agreement Refinancing” means the refinancing and repayment of the Indebtedness outstanding under the Existing Credit Agreement, the termination of all commitments under the Existing Credit Agreement and termination and release of guarantees in connection therewith.
Existing FILO Tranche” has the meaning specified in Section 2.17(f).
Existing Letter of Credit” means any letter of credit previously issued for the account of any Loan Party that is outstanding on the Closing Date and listed on Schedule 1.1A.
Existing Revolver Tranche” has the meaning specified in Section 2.17(a).
Expected Cost Savings” means pro forma “run rate” expected cost synergies, cost savings, operating expense reductions and operational improvements.
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Extended FILO Loans” has the meaning specified in Section 2.17(f).
Extended Revolving Credit Commitments” has the meaning specified in Section 2.17(a).
Extending FILO Lender” has the meaning specified in Section 2.17(g).
Extending Revolving Credit Lender” has the meaning specified in Section 2.17(b).
Facility” means the Revolving Credit Facility or the FILO Facility, as the context may require. The term “Facilities” shall mean the Revolving Credit Facility and the FILO Facility, collectively.
FATCA” means Sections 1471 through 1474 of the Code as in effect on the date hereof (including, for the avoidance of doubt, any agreements between governmental authorities implementing such provisions, any law implementing such agreements and any agreements entered into pursuant to Section 1471(b)(1) of the Code) and any amended or successor provisions that are substantively comparable and not materially more onerous to comply with (and, in each case, any regulations promulgated thereunder or official interpretations thereof).
FATCA Deduction” means a deduction or withholding from a payment under a Loan Document required by FATCA.
FATCA Exempt Party” means a party to this Agreement that is entitled to receive payments free from any FATCA Deduction.
Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
Federal Reserve Board” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
Fee Letters” means, collectively, (a) the Amended and Restated BofA Fee Letter, dated as of the Closing Date, by and among the Loan Parties party thereto, BofA Securities, and Bank of America; (b) the JLA Fee Letter, dated as of August 26, 2019, by and among the Loan Parties party thereto and the Arrangers; and (c) each Arranger Fee Letter, dated as of August 26, 2019, by and among the Loan Parties party thereto and the Arranger party thereto, in each case, as amended, amended and restated, supplemented or replaced and in effect from time to time.
Field Examination” has the meaning specified in Section 7.5(b).
FILO Borrowing Base” means, as of the date of determination thereof, an amount equal to:
(a)    the face amount of Eligible Credit Card Receivables, multiplied by the Credit Card Receivables Advance Rate; plus
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(b)    the Net Recovery Percentage of Eligible Inventory, multiplied by the Inventory Advance Rate, multiplied by the Cost of Eligible Inventory, net of Inventory Reserves attributable to Eligible Inventory; minus
(c)    the then amount of all Availability Reserves (provided that such Availability Reserves shall not be duplicative of Availability Reserves maintained against the Revolving Borrowing Base).
The FILO Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 7.4, as adjusted to give effect to Reserves following such delivery. Notwithstanding the foregoing to contrary, in respect of any English Borrower that has been an English Borrower for fewer than twelve (12) months, in no event shall the aggregate amount of Eligible Credit Card Receivables and Eligible Inventory of such English Borrower included in the FILO Borrowing Base exceed the aggregate principal amount of all Loans that have been borrowed by such English Borrower or are being borrowed by such English Borrower concurrently with such determination in reliance on the FILO Borrowing Base. The FILO Borrowing Base shall be reported in accordance with Section 1.10(c).
The establishment or increase of any Availability Reserve will be limited to the exercise by the Administrative Agent of its Permitted Discretion, upon (other than with respect to the establishment of the Dilution Reserve, the Specified Litigation and Arbitration Reserve, the LGP Preference Shares Reserve, the Untendered Existing 2024 Notes Reserve or any Availability Reserve established on the Closing Date; it being understood that, for the avoidance of doubt, the Borrower shall receive at least five (5) Business Days’ prior written notice before any increase in the Dilution Reserve, the Specified Litigation and Arbitration Reserve, the LGP Preference Shares Reserve, the Untendered Existing 2024 Notes Reserve or any Availability Reserve established on the Closing Date, in each case, resulting from a change in the methodology, previously utilized or otherwise set forth herein, for calculating any such Availability Reserve) at least five (5) Business Days’ prior written notice (which may be made by electronic mail) to the Lead Administrative Borrower (which written notice will include a reasonably detailed description of the Reserve being established or increased); provided that, notwithstanding the foregoing to the contrary, no such prior written notice shall be required for changes to any Availability Reserves resulting solely by virtue of mathematical calculations of the amount of the Availability Reserves in accordance with the methodology of calculation previously utilized or if an Event of Default is continuing; provided further that, during such five (5) Business Day period, (i) the Borrowers agree not to borrow in excess of the Revolving Borrowing Base after giving effect to such new or modified Reserves, except to the extent of any Credit Extensions made in good faith to pay costs and expenses in the ordinary course of business on a non-accelerated basis, and (ii) the Administrative Agent shall, upon the Lead Administrative Borrower’s request, discuss any such Availability Reserve or modification to an Availability Reserve with the Lead Administrative Borrower, and the Borrowers may take any action that may be required so that the event, condition or matter that is the basis for such Availability Reserve or modification no longer exists or exists in a manner that would result in the establishment of a lower Availability Reserve or result in a lesser increase in any existing Availability Reserve, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent. Notwithstanding anything to the contrary herein, (a) the amount of any such Availability Reserve or change in an Availability Reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such Availability Reserve or change, and (b) no such Availability Reserve or change shall be duplicative of any other Reserve or change or items that are already accounted for through eligibility criteria or collection or advance rates.
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FILO Commitment” means, with respect to each FILO Lender, such FILO Lender’s FILO Incremental Commitment, if any.
FILO Deficiency Reserve” means, at any time, a reserve established (against the Revolving Borrowing Base) by the Administrative Agent at such time in an amount equal to the sum of (a) the amount (if any) by which the aggregate outstanding principal amount of the FILO Loans (other than Junior FILO Loans) exceeds the FILO Borrowing Base and (b) the amount (if any) by which the aggregate outstanding principal amount of the Junior FILO Loans exceeds the borrowing base applicable thereto (as and to the extent set forth in the Incremental FILO Amendment applicable thereto).
FILO Extension” means any establishment of Extended FILO Loans pursuant to Section 2.17 and the applicable FILO Extension Amendment.
FILO Extension Amendment” has the meaning specified in Section 2.17(h).
FILO Extension Election” has the meaning specified in Section 2.17(g).
FILO Extension Request” has the meaning specified in Section 2.17(f).
FILO Extension Series” has the meaning specified in Section 2.17(f).
FILO Facility” means any FILO Incremental Commitments and the provisions herein related to the FILO Loans and FILO Extended Loans. As of the Second Amendment Effective Date, the aggregate amount of the FILO Facility is $0.
FILO Incremental Commitment” has the meaning specified in Section 2.15(b).
FILO Incremental Facility” has the meaning set forth in Section 2.15(b).
FILO Incremental Junior Commitment” has the meaning set forth in Section 2.15(b).
FILO Incremental Loan” has the meaning specified in Section 2.15(b).
FILO Lender” means each Lender that has a FILO Commitment or holds a FILO Loan.
FILO Loans” means, collectively, any FILO Incremental Loans including any Junior FILO Loans, and including any such Loan under a FILO Extension Series. As of the Second Amendment Effective Date, the aggregate outstanding amount of the FILO Loans is $0.
FILO Maturity Date” means the earliest of (a) the Scheduled Termination Date for FILO Loans for the applicable Class of such Loans, (b) the Revolving Credit Termination Date, and (c) the date on which the Obligations become due and payable pursuant to Section 10.2.
FILO Note” means a promissory note made by the Borrowers, substantially in the form of Exhibit B-2, in favor of a FILO Lender, evidencing the FILO Loans made by such FILO Lender to the Borrowers.
FILO Outstandings” means, at any particular time, the principal amount of the FILO Loans outstanding at such time.
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Financial Asset” has the meaning given to such term in Article 8 of the UCC.
Financial Officer” means, with respect to any Loan Party, the chief financial officer, treasurer or controller of such Loan Party or, with respect to an English Loan Party or the Specified Irish Subsidiary Guarantor, any statutory director of such English Loan Party or the Specified Irish Subsidiary Guarantor with duties consistent with the duties of a chief financial officer, treasurer or controller. Any document delivered hereunder that is signed by a Financial 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 Financial Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Financial Performance Projections” means (a) the projected Consolidated balance sheets, statements of income and cash flows of Holdings and its Restricted Subsidiaries, and (b) projected forecasts of Excess Availability, in each case, prepared by management of Holdings, in form, and with results and assumptions, reasonably satisfactory to the Arrangers (i) for each Fiscal Quarter for each of the four Fiscal Quarters following the Closing Date, and (ii) on an annual basis thereafter through the fifth anniversary of the Closing Date, and in each case, giving effect to the Transactions.
Financial Support Direction” means a financial support direction issued by the Pension Regulator under section 43 of the Pensions Act 2004 (U.K.).
Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally consist of either four (4) or five (5) weeks in accordance with the fiscal accounting calendar of Holdings and its Subsidiaries.
Fiscal Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall generally consist of thirteen (13) weeks or fourteen (14) weeks in accordance with the fiscal accounting calendar of Holdings and its Subsidiaries.
Fiscal Year” means any period of twelve (12) consecutive months ending on the Saturday closest to January 31 of each calendar year.
Foreign Lender” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
Foreign Loan Party” means any Loan Party that is not a U.S. Loan Party, including each English Loan Party, each Canadian Loan Party, the Specified Irish Subsidiary Guarantor and Holdings.
Foreign Plan” means any material employee benefit plan, program or agreement maintained or contributed to by, or entered into with, Holdings or any Subsidiary of Holdings with respect to employees employed outside the United States or Canada, other than any Defined Benefit Scheme).
Foreign Subsidiary” means any direct or indirect Subsidiary that is not a Domestic Subsidiary.
Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, (a) with respect to an Issuer, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit Obligations to the extent that such Defaulting Lender’s Revolving Commitment Percentage of such outstanding Letter of Credit Obligations has not been reallocated pursuant to Section 2.16(a)(iv) or Cash Collateralized pursuant to Section 2.16(c), and (b) with respect to the Swing Loan Lender, such Defaulting
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Lender’s Revolving Commitment Percentage of Swing Loans to the extent that such Defaulting Lender’s Revolving Commitment Percentage of Swing Loans has not been reallocated pursuant to Section 2.16(a)(iv) or Cash Collateralized pursuant to Section 2.16(c).
FSHCO” means any Domestic Subsidiary that (a) has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more Foreign Subsidiaries, or (b) has no material assets other than Equity Interests (or Equity Interests and Indebtedness) of one or more other FSHCOs.
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 of its activities.
GAAP” means generally accepted accounting principles in the United States or the U.K. (as applicable), as in effect from time to time; provided, however, that (a) accounting for leases shall be determined in accordance with generally accepted accounting principles in the United States as in effect on the Closing Date and (b) if the Lead Administrative Borrower notifies the Administrative Agent that the Loan Parties request an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof (including through the adoption of IFRS) on the operation of such provision (or if the Administrative Agent notifies the Lead Administrative Borrower that the Requisite Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof (including through the adoption of IFRS), then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
General Asset Sale Basket” has the meaning assigned to such term in Section 9.5(i).
General Restricted Debt Payment Basket” has the meaning assigned to such term in Section 9.11(ii).
Genesis” means Genesis Financial Solution, including Genesis Financial Solution, acting through the Bank of Missouri.
Governmental Authority” means the government of the United States, Canada, the U.K. or any other nation, or of any political subdivision thereof, whether state, provincial, territorial, municipal or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
Granting Lender” has the meaning specified in Section 12.2(g).
Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or monetary other obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other
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financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or monetary other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness for borrowed money). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
Guaranty” means, collectively, (a) that certain Guaranty, dated as of the Closing Date, among the Loan Parties, the Administrative Agent and the Collateral Agent on behalf of the Secured Parties and (b) each other guaranty and guaranty supplement delivered pursuant to Section 8.11.
Hazardous Materials” means all explosive or radioactive substances or wastes, all substances, wastes, contaminants or pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, and radon gas, regulated pursuant to any Environmental Law.
Hedge Bank” means, as of any date of determination, (a) any Person that is a Lender or an Affiliate or branch of a Lender on such date or (b) any Person who (i) was a Lender or an Affiliate or branch of a Lender at the time the applicable Swap Contract was entered into and who is no longer a Lender or an Affiliate or branch of a Lender, (ii) is, and at all times remains, in compliance with the provisions of Section 11.12, and (iii) agrees in writing that the Agents and the other Secured Parties shall have no duty to such Person (other than the payment of any amounts to which such Person may be entitled under Section 10.3 and acknowledges that the Agents and the other Secured Parties may deal with the Loan Parties and the Collateral as they deem appropriate (including the release of any Loan Party or all or any portion of the Collateral) without notice or consent from such Person, whether or not such action impairs the ability of such Person to be repaid the Secured Obligations under the Secured Hedge Agreements) and agrees to be bound by Sections 11.12, in each case such Person being a party to a Secured Hedge Agreement.
HMRC” means H.M. Revenue & Customs.
Holdings” has the meaning specified in the preamble to this Agreement.
Impacted Loans” has the meaning specified in Section 3.4(a).
Incremental Availability” means, at any time of determination, an amount equal to the greater of (a) $600,000,000 minus the aggregate amount of the sum of (i) all Revolving Commitment Increases, and (ii) all FILO Incremental Facilities, in each case, made or established prior to such time pursuant to Section 2.15 or 2.16, as applicable, in reliance on this clause (a), and (b) the amount by which the Revolving Borrowing Base at such time exceeds the Aggregate Revolving Loan Commitments at such time.
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Incremental FILO Amendment” has the meaning specified in Section 2.15(b).
Incremental FILO Availability” has the meaning specified in Section 2.15(b).
Incremental Revolving Amendment” has the meaning specified in Section 2.15(a).
Incremental Revolving Availability” has the meaning specified in Section 2.15(a).
Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)    the maximum amount (after giving effect to any prior drawings or reductions that may have been reimbursed) of all outstanding letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable and accrued expenses payable in the ordinary course of business, (ii) any earn-out obligation until such obligation is not paid after becoming due and payable and (iii) accruals for payroll and other liabilities accrued in the ordinary course of business);
(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse, provided that if such Indebtedness has not been assumed by such Person, the amount of Indebtedness under this clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value (as determined by such Person in good faith) of the property encumbered thereby;
(f)    all Attributable Indebtedness;
(g)    all obligations of such Person in respect of Disqualified Equity Interests; and
(h)    all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, (x) the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would be included in the calculation of Consolidated Total Debt, (y) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date, and (z) loans and advances
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made by Loan Parties to Restricted Subsidiaries that are not Loan Parties which have a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and which are made in the ordinary course of business shall not be deemed “Indebtedness” hereunder (except for purposes of Sections 9.2(c) and 9.3(d)) solely to the extent that such intercompany loans and advances are evidenced by one or more notes in form and substance reasonably satisfactory to the Administrative Agent and pledged as Collateral.
Indemnified Liabilities” has the meaning specified in Section 12.4.
Indemnitees” has the meaning specified in Section 12.4.
Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Borrowers, qualified to perform the task for which it has been engaged and that is independent of the Borrowers and its Affiliates.
Information” has the meaning specified in Section 12.17.
Information Certificate means, collectively, (a) that certain Information Certificate, dated as of the Closing Date, executed by- each of the Loan Parties, and (b) each other information certificate (or update to the which shall be delivered by any Loan Party pursuant to the terms hereof, in each case, substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent.
Insolvency Regulation” means the Council Regulation (EU) No. 2015/848 of 20 May 2015 on insolvency proceedings (recast).
Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, Internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing), indicia and other source and/or business identifiers, all of the goodwill related thereto, and all registrations and applications for registrations thereof; works of authorship and other copyrighted works (including copyrights for computer programs), and all registrations and applications for registrations thereof; inventions (whether or not patentable) and all improvements thereto; patents and patent applications, together with all continuances, continuations, divisions, revisions, extensions, reissuances, and reexaminations thereof; industrial design applications and registered industrial designs; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; all rights to sue and recover at law or in equity for any past, present or future infringement, dilution or misappropriation, or other violation thereof; and all common law and other rights throughout the world in and to all of the foregoing.
Intellectual Property Security Agreement” means a U.S. Intellectual Property Security Agreement or a Canadian Intellectual Property Security Agreement, as the context may require.
Intercompany Subordination Agreement” means an agreement executed by Holdings and each of its relevant Restricted Subsidiaries, in substantially the form of Exhibit J.
Interest Coverage Ratio” means, for any Test Period, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case for such Test Period.
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Interest Election Request” means a notice of (a) a conversion of Loans from one Type to the other, or (b) a continuation of EurocurrencyTerm Rate Loans, in each case, pursuant to Section 2.11, which shall be substantially in the form of Exhibit F or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of a Lead Borrower.
Interest Period” means, as to each EurocurrencyTerm Rate Loan, the period commencing on the date such EurocurrencyTerm Rate Loan is disbursed or converted to or continued as a EurocurrencyTerm Rate Loan and ending on the date that is (a) one month thereafter, (b) solely with respect to Loans interest with respect to which is determined by reference to CDOR, two months thereafter, (c) three months thereafter, or (d) other than with respect to Loans interest with respect to which is determined by reference to CDOR, six months thereafter, in each case of clause (a) through (d), subject to availability for the interest rate applicable to the relevant currency, or (e) to the extent consented to by each applicable Lender (and subject to availability for the interest rate applicable to the relevant currency), twelve months (or such period of less than one month as may be consented to by each applicable Lender), as selected by the Borrowers in its Notice of Borrowing or Interest Election Request; 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 (or, in the case of a one-week Interest Period, in another calendar week), in which case such Interest Period shall end on the immediately preceding Business Day;
(b)    any Interest Period (other than an Interest Period having a duration of less than one month) 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 Scheduled Termination Date of the Class of Loans of which the EurocurrencyTerm Rate Loan is a part.
Inventory” means, individually and collectively, (a) “Inventory” as defined in Article 9 of the UCC, and (b) “Inventory” as defined in the PPSA.
Inventory Advance Rate” means (a) with respect to the Revolving Borrowing Base, (i) during any Seasonal Inventory Advance Period, 92.5% and (ii) at all other times, 90.0%, and (b) with respect to the FILO Borrowing Base, 5.0%.
Inventory Appraisal” has the meaning specified in Section 7.5(a).
Inventory Reserves” means (a) such reserves as may be established from time to time by the Administrative Agent, in its Permitted Discretion, with respect to changes in the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors as negatively affect the market value of the Eligible Inventory, (b) Shrink Reserves, and (c) contra Inventory load.
Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition (including without limitation by merger, amalgamation or otherwise) of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity
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participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, in the case of Holdings and its Restricted Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business) or (c) the purchase or other acquisition (in one transaction or a series of transactions, including without limitation by merger, amalgamation or otherwise) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured at the time made (which, in the case of any Investment constituting the contribution of an asset or property (other than cash or Cash Equivalents), shall be based on the Lead Administrative Borrower’s good faith estimate of the fair market value of such asset or property at the time such Investment is made)), without adjustment for subsequent changes in the value of such Investment, net of any return representing a return of capital with respect to such Investment.
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 an equivalent rating by any other nationally recognized statistical rating agency selected by Holdings.
IP Rights” has the meaning specified in Section 5.15.
Irish Collateral” means the “Security Assets” (or equivalent term) as defined in any Irish Collateral Document.
Irish Collateral Documents” means, collectively, (a) the Irish Debenture, and (b) each of the other debentures, share charges, agreements, instruments or documents that creates or purports to create a Lien to secure the Obligations or a Guarantee of the Obligations, in each case, in favor of the Administrative Agent or the Collateral Agent for the benefit of the Secured Parties, and that are governed by the Laws of the Republic of Ireland.
Irish Debenture” means the debenture governed by the Laws of the Republic of Ireland, effective as of the Closing Date, among the Loan Parties party thereto and the Collateral Agent, as may be amended, amended and restated, restated, supplemented or otherwise modified from time to time.
IRS” means the Internal Revenue Service of the United States.
ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
Issue” means, with respect to any Letter of Credit, to issue, extend the expiry of, amend, renew or increase the maximum face amount (including by deleting or reducing any scheduled decrease in such maximum face amount) of, such Letter of Credit. The terms “Issued”, “Issuing” and “Issuance” shall have a corresponding meaning.
Issuer” means each of Bank of America, Fifth Third Bank, JPMorgan Chase Bank, N.A. and PNC Bank National Association and each Revolving Credit Lender that (a) is listed on the signature pages hereof as an “Issuer” or (b) hereafter becomes an Issuer with the approval of the Administrative Agent and the Lead Administrative Borrower by agreeing pursuant to an agreement with and in form and substance satisfactory to the Administrative Agent and the Lead Administrative Borrower to be bound by the terms hereof applicable to Issuers (and in the case of any resignation, subject to and in accordance with Section 12.2(h)). Any Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by
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Affiliates or branches of such Issuer, in which case the term “Issuer” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch (it being agreed that such Issuer shall, or shall cause such Affiliate or branch to comply with the requirements of Section 2.4 with respect to such Letters of Credit). At any time there is more than one Issuer, any singular references to Issuer shall mean any Issuer, each Issuer, the Issuer that has issued the applicable Letter of Credit, or all Issuers, as the context may require.
Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an Issuer and the Loan Parties (or any of their Subsidiaries) or in favor of such Issuer and relating to such Letter of Credit.
Issuer Sublimit” means, as of the Second Amendment Effective Date, (i) $25,000,000, in the case of Bank of America, (ii) $25,000,000, in the case of Fifth Third Bank, (iii) $25,000,000, in the case of JPMorgan Chase Bank, N.A., (iv) $25,000,000, in the case of PNC Bank National Association, and (v) such amount as shall be designated to the Administrative Agent and the Lead Administrative Borrower in writing by any other Issuer; provided that any Issuer shall be permitted at any time to increase (to an amount not exceeding the Letter of Credit Sublimit) upon providing three (3) Business Days’ prior written notice thereof to the Administrative Agent and the Lead Administrative Borrower.
ITA” means the Income Tax Act (Canada).
Joinder Agreement” shall mean a joinder agreement, substantially in the form of Exhibit E.
Joint Venture” means (a) any Person which would constitute an “equity method investee” of any Loan Party or any Restricted Subsidiary and (b) any Person in whom any Loan Party or any Restricted Subsidiary beneficially owns any Equity Interest that is not a Restricted Subsidiary (other than an Unrestricted Subsidiary).
Joint Venture Investments” means Investments in any Joint Venture or Unrestricted Subsidiary in an aggregate amount not to exceed the greater of (a) $80,000,000 and (b) 15% of Consolidated EBITDA as of the most recently ended Test Period, determined on a Pro Forma Basis.
Judgment Currency” has the meaning specified in Section 12.30.
Junior FILO Loans” has the meaning specified in Section 2.15(b).
Junior Financing” means any third party Indebtedness for borrowed money that is subordinated in right of payment to the Obligations expressly by its terms (other than (x) Indebtedness among Holdings, the Borrowers and their Restricted Subsidiaries, (y) for the avoidance of doubt, the Senior Notes and (z) to the extent constituting Indebtedness, obligations of Holdings relating to the LGP Preference Shares).
Junior Financing Documentation” means any documentation governing any Junior Financing.
Kimberley Process Certification Scheme” means the joint government certification system for the certification of rough diamonds pursuant to United Nations General Assembly Resolution 55/56 and all related rules and regulations promulgated by any Governmental Authority, including the United Nations.
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Landlord Lien Jurisdiction” means Washington, Virginia, Pennsylvania and any state, province (including the province of Quebec to the extent a hypothec has been granted by a Loan Party to a landlord), territory or other jurisdiction (including any such jurisdiction in a Covered U.K. Jurisdiction or the Republic of Ireland) in which, at any time, a landlord’s claim for rent has priority (notwithstanding any contractual provision to the contrary) by operation of applicable Law over the Lien of the Collateral Agent on any of the Collateral.
Latest Maturity Date” means, at any date of determination, the latest Scheduled Termination Date applicable to any Class of Loans or Commitments hereunder at such time, including the latest termination date of any Extended Revolving Credit Commitment or any Extended FILO Loans, as further extended in accordance with this Agreement from time to time.
Laws” means, collectively, all applicable international, foreign, federal, state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities and executive orders, 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.
L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
LCT Election” has the meaning specified in Section 1.9(a).
LCT Test Date” mean, with respect to any Limited Condition Transaction,
(a)    that is an acquisition or other similar Investment, the date the definitive agreement for such acquisition or other similar Investment is entered into,
(b)    that is an acquisition as to which the U.K. City Code on Takeovers and Mergers (or any equivalent thereof under the Law of any other applicable jurisdiction) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of a target of such acquisition is made (or the equivalent notice under such equivalent Laws in such other applicable jurisdiction),
(c)    that is a Restricted Payment, the date of the declaration of such Restricted Payment, or
(d)    that is a payment to be made pursuant to Section 9.11, the date of delivery of irrevocable (which may be conditional) notice with respect to such payment.
Lead Administrative Borrower” has the meaning specified in the introductory paragraph to this Agreement.
Lead Borrower” means (a) with respect to the U.S. Borrowers, Signet Treasury and Sterling Jewelers, (b) with respect to the Canadian Borrowers, Zale Canada, and (c) with respect to the English Borrowers, Signet Group and Signet Trading.
Leases” means, with respect to any Person, all of those leasehold estates in real property of such Person, as lessee, as such may be amended, supplemented or otherwise modified from time to time.
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Lender” means the Swing Loan Lender, each Revolving Credit Lender and each FILO Lender. The term “Lender” shall include any Designated Lender who has funded any Credit Extension.
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 Lead Administrative Borrower and the Administrative Agent which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
Letter of Credit” means any Banker’s Acceptance or any letter of credit Issued (or deemed Issued) pursuant to Section 2.4 and any Existing Letter of Credit. A Letter of Credit may be a Documentary Letter of Credit or a Standby Letter of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.
Letter of Credit Application” means an application and agreement for the Issuance of a Letter of Credit in the form from time to time in use by the applicable Issuer.
Letter of Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed on the applicable Reimbursement Date or refinanced as a Revolving Loan. All Letter of Credit Borrowings shall be denominated in Dollars.
Letter of Credit Expiration Date” means, as to any applicable Issuer, the date that is the earlier to occur of (a) five (5) Business Days prior to the Scheduled Termination Date for the applicable Class of Revolving Credit Commitments maintained by such Issuer (in its capacity as a Revolving Credit Lender hereunder) (or, if such day is not a Business Day, the next preceding Business Day) and (b) the Revolving Credit Termination Date.
Letter of Credit Fee” has the meaning specified in Section 2.12(b)(ii).
Letter of Credit Obligations” means, at any time, the aggregate of all liabilities at such time of any Loan Party to all Issuers with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations at such time and (b) the Letter of Credit Undrawn Amounts at such time.
Letter of Credit Sublimit” means $75,000,000, as such amount may be increased or reduced in accordance with the provisions of this Agreement. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Commitments.
Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn Stated Amount of all Letters of Credit outstanding at such time.
LGP Investment Agreement” means that certain Investment Agreement, dated as of August 24, 2016, by and among Holdings, Green Equity Investors VI, L.P. and Green Equity Investors Side VI, L.P.
LGP Preference Shares” means the Series A Convertible Preference Shares of Holdings, par value $0.01 per share, issued to Green Equity Investors VI, L.P. Green Equity Investors Side VI, L.P., LGP Associates VI-A LLC and LGP Associates VI-B LLC, each an affiliate of Leonard Green & Partners, L.P., pursuant to the LGP Investment Agreement, for an aggregate purchase price of $625,000,000, or $1,000 per share.
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LGP Preference Shares Reserve” means, at any time of determination during an LGP Preference Shares Reserve Period, an Availability Reserve in an amount equal to the sum of (a) the “Stated Value” (as defined in Schedule A attached to the LGP Investment Agreement) as of such time of all outstanding Applicable LGP Preference Shares, plus (b) the amount of all accrued, but unpaid, Dividends (as defined in Schedule A attached to the LGP Investment Agreement) on such outstanding Applicable LGP Preference Shares described in clause (a) above (other than any Regular Dividends (as defined in Schedule A attached to the LGP Investment Agreement) included in such Stated Value), in each case, through such time of determination. For the avoidance of doubt, the amount of any LGP Preference Shares Reserve shall be reduced from time to time during any LGP Preference Shares Reserve Period to give effect to (a) any redemption or repurchase by Holdings of the LGP Preference Shares made during such LGP Preference Shares Reserve Period (including any payments made with the proceeds of Loans hereunder) to the extent such payments are permitted hereunder, (b) any conversion of the LGP Preference Shares to common Equity Interests of Holdings and (c) any extension of the date on which LGP Preference Shares are required to be repurchased or redeemed by Holdings such that such shares no longer constitute Applicable LGP Preference Shares.
LGP Preference Shares Reserve Period” means the period commencing on the 91st day prior to the earliest date on which the holders of any Applicable LGP Preference Shares may require Holdings to redeem or repurchase such Applicable LGP Preference Shares and ending on the date that is the earlier to occur of (a) the date of the redemption or repurchase in full of all Applicable LGP Preference Shares and (b) the date on which the date holders of the Applicable LGP Preference Shares are permitted to require Holdings to repurchase or redeem the Applicable LGP Preference Shares is extended to a date such that such shares no longer constitute Applicable Preference Shares.
LIBOR” has the meaning specified in the definition of “Eurocurrency Rate.”
Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing); provided, that in no event shall an operating lease in and of itself be deemed a Lien.
Lien Acknowledgment Agreement” means each Collateral Access Agreement and Carrier Agreement.
Limited Condition Transaction” means (a) any Restricted Payment, acquisition or other Investment (including any Permitted Acquisition) permitted hereunder by Holdings or one or more of its Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (b) any repayment, repurchase or refinancing of Indebtedness with respect to which a notice of repayment (or similar notice) has been delivered, which may be conditional, and in each case of clause (a) or (b), which is designated as a Limited Condition Transaction by the Lead Administrative Borrower in writing to the Administrative Agent on or before the LCT Test Date applicable thereto.
Liquidation” means the exercise by the Collateral Agent or the Administrative Agent of those rights and remedies accorded to the Collateral Agent or the Administrative Agent under the Loan Documents and applicable Law as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Collateral Agent or the
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Administrative Agent, of any public, private or “going out of business” sale or other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
Loan” means any loan made by any Lender pursuant to this Agreement, including, without limitation, Swing Loans, Revolving Loans and FILO Loans.
Loan Documents” means, collectively, this Agreement, the Revolving Credit Notes, the FILO Notes, any Incremental FILO Amendment, any Incremental Revolving Amendment, any Revolving Extension Amendment, any FILO Extension Amendment, the Guaranty, each Fee Letter, the Collateral Documents, the Issuer Documents, each Information Certificate and each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.
Loan Parties” means, collectively, (a) Holdings, (b) the Borrowers and (c) each Subsidiary Guarantor.
Local Covered Jurisdiction” means with respect to (a) any U.S. Loan Party, the United States, any state thereof or the District of Columbia, (b) Holdings, Bermuda, (c) any Canadian Loan Party, Canada or any province or territory thereof, and (d) any English Loan Party, England and Wales.
London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurodollar market.
Margin Stock” has the meaning set forth in Regulation U of the Board of Governors of the United States Federal Reserve System, or any successor thereto.
Master Agreement” has the meaning specified in the definition of “Swap Contract.”
Material Adverse Effect” means any event, circumstance or condition that has had a materially adverse effect on (a) the business, operations, assets, liabilities (actual or contingent) or financial condition of Holdings and its Subsidiaries, taken as a whole, (b) the ability of the Loan Parties (taken as a whole) to perform their respective material payment obligations under any Loan Document to which any of the Loan Parties is a party or (c) the rights and remedies of the Lenders, the Collateral Agent or the Administrative Agent (taken as a whole) under any Loan Document.
Material Deposit Accounts” has the meaning specified in Section 8.12(a).
Material Indebtedness” means Indebtedness for borrowed money having an individual outstanding principal amount in excess of $25,000,000 (including the amounts owing to all creditors under any combined or syndicated credit arrangement).
Material Intellectual Property” means any Intellectual Property owned or licensed by a Loan Party or a Restricted Subsidiary that is reasonably necessary (as determined by the Administrative Agent in its Permitted Discretion) in connection with the enforcement of any rights or remedies with respect to the Collateral, including such Intellectual Property the sale, assignment, pledge, transfer, contribution or other disposition of which could reasonably be expected to adversely affect the ability of the Administrative Agent to sell or otherwise liquidate the assets included in the Revolving Borrowing Base or the FILO Borrowing Base or the amount the Administrative Agent or the Collateral Agent is able to realize upon any such sale or
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Liquidation (it being understood that such Intellectual Property shall not constitute “Material Intellectual Property” if, after giving effect to the relevant sale, assignment, pledge, transfer, contribution or other disposition, the Loan Parties no longer own Inventory or other assets previously included in the calculation of the Revolving Borrowing Base or the FILO Borrowing Base relating to such Intellectual Property).
Material Junior Financing” means, at any time of determination, Junior Financing with an individual principal amount equal to the greater of (a) $25,000,000 (including all amounts owing to creditors under any combined or syndicated credit arrangement) and (b) 4.5% of Consolidated EBITDA as of the most recently ended Test Period, determined on a Pro Forma Basis.
Material Real Property” means any real property located in a Covered Jurisdiction (other than the United States) owned by a Loan Party with a fair market value in excess of $7,500,000, as reasonably determined by the Lead Administrative Borrower.
Material Real Property Collateral Requirements” means, with respect to any Material Real Property subject to a Mortgage, the following, in form and substance reasonably satisfactory to the Administrative Agent and received by the Administrative Agent: (a) a mortgagee title policy (or binder therefor) covering the Collateral Agent’s interest under the Mortgage, in a form and amount and by an insurer reasonably acceptable to the Administrative Agent, which must be fully paid on such effective date of such policy, (b) a survey of such Material Real Property, (c) a written opinion of local counsel relating to the Mortgage and with respect to such other matters as the Administrative Agent may reasonably request and (d) such other evidence that all other actions that the Administrative Agent may reasonably deem necessary or desirable in order to create valid and subsisting Liens on the Material Real Property described in the Mortgage has been taken.
Material Subsidiary” means, at any date of determination, each Restricted Subsidiary of Holdings (a) whose total assets at the last day of the most recent Test Period were equal to or greater than 2.5% of Total Assets at such date or (b) whose gross revenues for such Test Period were equal to or greater than 2.5% of the Consolidated gross revenues of Holdings and its Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that if, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties solely because they do not meet the thresholds set forth in clauses (a) or (b) comprise in the aggregate more than 5.0% of Total Assets as of the end of the most recently ended Fiscal Quarter of Holdings or more than 5.0% of the consolidated gross revenues of Holdings and its Restricted Subsidiaries for the most recently ended Test Period, then the Lead Administrative Borrower shall (i) deem one or more of such Restricted Subsidiaries as “Material Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) by the date specified in Section 8.11, comply with (or cause to be complied with) the provisions of Sections 8.11, 8.12 and 8.13 applicable to any such Restricted Subsidiary.
Maximum Rate” has the meaning specified in Section 12.23.
Modified Revolving Loan Cap” means, at any time, the Revolving Loan Cap (calculated without giving effect to any FILO Deficiency Reserve).
Monthly Borrowing Base Reporting Period” means each period beginning on the date that Excess Availability shall have been less than the greater of (x) 50.0% of the Modified Revolving Loan Cap and (y) $600,000,000, in either case, for five (5) consecutive Business Days, and ending on the date Excess Availability shall have been equal to or greater than the greater of (x) 50.0% of the Modified Revolving Loan Cap and (y) $600,000,000, in each case,
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for thirty (30) consecutive calendar days. The termination of a Monthly Borrowing Base Reporting Period as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Monthly Borrowing Base Reporting Period in the event that the conditions set forth in this definition again arise.
Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
Mortgages” means, collectively, the deeds of trust, trust deeds, deeds of hypothec and mortgages made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Lenders, in form and substance reasonably satisfactory to the Administrative Agent, including any such Mortgages executed and delivered pursuant to Sections 8.11 or 8.13.
Multiemployer Plan” means any multiemployer plan as defined in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any Loan Party or any of their respective ERISA Affiliates makes or is obligated to make contributions, or during the preceding five plan years has made or been obligated to make contributions.
Net Cash Proceeds” means:
(a)    with respect to the Disposition of any asset by Holdings or any of its Restricted Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash and Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents), (B) the out-of-pocket fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by Holdings or such Restricted Subsidiary in connection with such Disposition, (C) in the case of any Disposition by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (C)) attributable to minority interests and not available for distribution to or for the account of Holdings or a wholly-owned Restricted Subsidiary as a result thereof, (D) taxes paid or reasonably estimated to be payable in connection therewith (including taxes imposed on the distribution or repatriation of any such Net Cash Proceeds), provided that to the extent that the actual taxes are less than such estimate, the excess shall constitute Net Cash Proceeds, and (E) any funded reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by Holdings or any Restricted Subsidiary 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, it being understood that “Net Cash Proceeds” shall include the amount of any reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in this clause (E); provided that, so long as no Cash Dominion Period has occurred and is continuing hereunder, no net cash proceeds calculated in accordance with the foregoing realized in any Fiscal Year shall constitute Net Cash Proceeds under this clause (a) in such Fiscal Year until the aggregate amount of all such net cash proceeds in such Fiscal Year shall exceed $10,000,000 (and thereafter only net cash proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); and
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(b)    (i) with respect to the incurrence or issuance of any Indebtedness by Holdings or any Restricted Subsidiary or any Permitted Equity Issuance by Holdings or any Restricted Subsidiary, the excess, if any, of (A) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (B) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by Holdings or such Restricted Subsidiary in connection with such incurrence or issuance and (ii) with respect to any Permitted Equity Issuance, the amount of cash from such Permitted Equity Issuance contributed to the capital of the Loan Parties.
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.
New Lender” has the meaning specified in Section 3.2(e).
Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA for such Test Period.
Net Recovery Percentage” means the fraction, expressed as a percentage, (a) the numerator of which is the amount equal to the recovery on the aggregate amount of the Inventory at such time on a “going out of business sale” basis as set forth in the most recent Inventory Appraisal received by the Administrative Agent in accordance with Section 7.5, net of operating expenses, liquidation expenses and commissions, and (b) the denominator of which is the applicable original cost of the aggregate amount of the Inventory subject to such Inventory Appraisal. The Net Recovery Percentage for any category of Inventory used in determining the Revolving Borrowing Base and the FILO Borrowing Base shall be based on the applicable percentage in the most recent Inventory Appraisal conducted as set forth in Section 7.5.
New Revolving Commitment Lenders” has the meaning specified in Section 2.17(c).
Non-Consenting Lender” has the meaning specified in Section 3.8.
Non-Excluded Taxes” means all Taxes other than Excluded Taxes and Other Taxes.
Non-Loan Party” means any Restricted Subsidiary of Holdings that is not a Loan Party.
Non-Operating Subsidiary” means, at any date of determination, each Restricted Subsidiary of Holdings that is not a Material Subsidiary.
Notice of Borrowing” means a notice of Borrowing pursuant to Section 2.2, which shall be substantially in the form of Exhibit C or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of a Lead Borrower.
Notice of Intent to Cure” has the meaning specified in Section 7.2(a).
Obligations” means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by
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assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and expenses that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and expenses are allowed claims in such proceeding, (b) obligations of any Loan Party or any Restricted Subsidiary arising under any Secured Hedge Agreement, and (c) Cash Management Obligations. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents (and any of their Subsidiaries to the extent they have obligations under the Loan Documents) include the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit, reimbursement obligations, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party under any Loan Document; provided that Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.
Obligations Payment Date” means the date on which (a) the Obligations have been paid in full in cash and in the required currency (other than (i) contingent indemnification obligations and other obligations of the Loan Parties that expressly survive the termination of the Loan Documents for which no claim has been asserted and (ii) Obligations in respect of Secured Hedge Agreements and Cash Management Obligations, in each case, not yet due and payable; unless the Administrative Agent has received written notice, at least two (2) Business Days prior to the proposed Obligations Payment Date, stating that arrangements reasonably satisfactory to the applicable Hedge Bank or Cash Management Bank, as the case may be, in respect thereof have not been made), (b) all Letters of Credit shall have expired or terminated (or been Cash Collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuer), (c) all Letter of Credit Obligations have been reduced to zero (or Cash Collateralized or backstopped in a manner reasonably satisfactory to the applicable Issuer) and (d) all lending commitments under this Agreement and the other Loan Documents have been terminated.
OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
OID” means original issue discount.
Other Rate Early Opt-in” means the Administrative Agent and the Lead Administrative Borrower have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (a) an Early Opt-in Election and (b) Section 3.4(c)(ii) and clause (2) of the definition of “Benchmark Replacement”.
Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any other excise or property Taxes arising from any payment made under any Loan Document or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document excluding, in each case, any such tax that result from an Assignment and Assumption, grant of a participation, transfer or assignment to or designation of a new applicable Lending Office or other office for receiving payments under any Loan Document (an “Assignment Tax”), but only if (1) such Assignment Tax is imposed as a result of a present or former connection of the assignor or assignee and the jurisdiction imposing such Assignment Tax (other than a connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction specifically contemplated by, or enforced, any Loan Documents) and (2) the assignment, participation, etc., giving rise to such Assignment Tax did not take place at the request of the Borrowers.
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Outstanding Amount” means (a) with respect to the Revolving Loans, FILO Loans and Swing Loans on any date, the Dollar Equivalent amount of the aggregate Outstanding Amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Loans (including any refinancing of Letter of Credit Obligations as a Revolving Loan), FILO Loans and Swing Loans, as the case may be, occurring on such date; and (b) with respect to any Letter of Credit Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such Letter of Credit Obligations on such date after giving effect to any related extension of any Letter of Credit occurring on such date and any other changes thereto as of such date, including as a result of any reimbursements of outstanding Letter of Credit Obligations (including any refinancing of outstanding Letter of Credit Obligations under related Letters of Credit or related extensions of any Letters of Credit as a Revolving Loan) or any reductions in the maximum amount available for drawing under related Letters of Credit taking effect on such date.
Overadvance” means a Credit Extension to the extent that, immediately after giving effect thereto, Excess Availability is less than zero.
Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, an Issuer, or the Swing Loan Lender, as applicable, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.
Participant” has the meaning specified in Section 12.2(d).
Participant Register” has the meaning specified in Section 12.2(e).
Participating Member State” means any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
Payment Conditions” means, at any time of determination, with respect to any Payment Conditions Transaction, the requirements that:
(a)    as of the date of any such Payment Conditions Transaction, and after giving effect to such Payment Conditions Transaction, no Specified Event of Default shall exist or have occurred and be continuing or would result from such Payment Conditions Transaction;
(b)    as of the date of any such Payment Conditions Transaction, on a Pro Forma Basis, and after giving effect to such Payment Conditions Transaction, either:
(i)    (x) Excess Availability, for the thirty (30) consecutive day period ending immediately prior such Payment Condition Transaction, shall have been not less than 15.0% of the Modified Revolving Loan Cap, and (y) Excess Availability, on the date of such Payment Condition Transaction, shall not be less than 15.0% of the Modified Revolving Loan Cap; or
(ii)    (x) Excess Availability, for the thirty (30) consecutive day period ending immediately prior such Payment Condition Transaction, shall have been not less than 12.5% of the Modified Revolving Loan Cap, (y) Excess Availability,
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on the date of such Payment Condition Transaction, shall not be less than 12.5% of the Modified Revolving Loan Cap, and (z) the Consolidated Fixed Charge Coverage Ratio based on the most recently ended Test Period, shall not be less than 1.00 to 1.00.
In each case with respect to any Payment Conditions Transaction, the Lead Administrative Borrower shall have delivered to the Administrative Agent, in accordance with Section 7.2(e), a certificate of a Responsible Officer of the Lead Administrative Borrower as described in Section 7.2(e).
Payment Conditions Transaction” means any Investment (including any Permitted Acquisition), any incurrence of Indebtedness, any Restricted Payment, any payment made pursuant to Section 9.11 or any other transaction that in each case is subject to the satisfaction of the Payment Conditions.
PBA” means the Pension Benefits Act (Ontario) or any other Canadian federal or provincial pension benefits standards legislation applicable to a Canadian Pension Plan.
PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
Pension Plan” means 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 Title IV of ERISA and is sponsored or maintained by any Loan Party or any of their respective ERISA Affiliates or to which any Loan Party or any of their respective ERISA Affiliates contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions in the preceding five plan years.
Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004 (U.K.).
Permitted Acquisition” means the purchase or other acquisition by Holdings or any of its Restricted Subsidiaries of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, a Store or Equity Interests in a Person that, upon the consummation thereof, will be a wholly-owned Restricted Subsidiary of the Borrowers (including as a result of a merger, amalgamation or consolidation); provided that, with respect to each such purchase or other acquisition:
(a)    both before and after giving effect thereto, no Event of Default has occurred and is continuing;
(b)    to the extent required by the Collateral and Guarantee Requirement, the property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and each applicable Loan Party and any newly created or acquired Subsidiary (and, to the extent required under the Collateral and Guarantee Requirement, the Subsidiaries of such created or acquired Subsidiary) shall be a Loan Party, and shall have complied with the requirements of Section 8.11, 8.12 and 8.13, within the times specified therein (for the avoidance of doubt, this clause (ii) shall not override any provisions of the Collateral and Guarantee Requirement);
(c)    except to the extent the Permitted Acquisition is of (x) any Person that on the date of such Permitted Acquisition is (or will concurrently therewith) become a Loan Party or (y) assets that on the date of such Permitted Acquisition shall be owned by a Loan Party, the
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Borrowers are in compliance, on a Pro Forma Basis after giving effect to such transaction, with the Payment Conditions; and
(d)    the Lead Administrative Borrower shall have delivered to the Administrative Agent, in accordance with Section 7.2(e), a certificate of a Responsible Officer of the Lead Administrative Borrower as described in Section 7.2(e).
Permitted Carrier” means (a) from and after the Closing Date until the date that is ninety (90) days after the Closing Date, a carrier (including armored car carrier) or third party logistics provider acceptable to the Administrative Agent in its Permitted Discretion, to the extent the Loan Parties are using commercially reasonable efforts during such time period to obtain a Carrier Agreement with respect to the Inventory to be handled by such Person; (b) from and after the date that is ninety (90) days after the Closing Date, (i) a carrier (including armored car carrier) or third party logistics provider acceptable to the Administrative Agent in its Permitted Discretion that has executed and delivered a Carrier Agreement or (ii) a carrier (including armored car carrier) or third party logistics provider that is approved by the Administrative Agent in writing in its Permitted Discretion, to the extent that the Loan Parties are unable to obtain a Carrier Agreement with such carrier or third party logistics provider after their use of commercially reasonable efforts to do so; provided that, with respect to this clause (ii), an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect of all charges and other obligations owing to any such Person; and (c) a third party logistics provider that is approved by the Administrative Agent in writing in its Permitted Discretion; provided that an Availability Reserve is maintained against the Revolving Borrowing Base or FILO Borrowing Base in respect of all charges and other obligations owing to any such Person.
Permitted Discretion” means a determination made by the Administrative Agent or the Collateral Agent (as applicable) in good faith in the exercise of its reasonable (from the perspective of a secured asset-based lender) business judgment.
Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests of Holdings, in each case to the extent permitted hereunder.
Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium (including tender premiums) thereon plus fees and expenses (including upfront fees and OID) reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 9.3(b) and (e), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Sections 9.3(e), at the time thereof, no Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, (i) such modification, refinancing, refunding, renewal, replacement or extension shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (ii) the terms and conditions (excluding as to subordination, pricing, premiums and optional prepayment
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or redemption provisions) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer of Holdings delivered to the Administrative Agent at least five (5) 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 Holdings 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 Holdings within such five Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended and no additional obligors become liable for such Indebtedness, and (e) in the case of any Permitted Refinancing in respect of the Senior Notes Indebtedness and Indebtedness under the Existing 2024 Notes Documents (to the extent the Existing 2024 Notes Documents are then secured), such Permitted Refinancing is secured only by assets pursuant to one or more security agreements permitted by and subject to an Acceptable Intercreditor Agreement (or another intercreditor agreement containing terms that are at least as favorable to the Secured Parties as those contained in such Acceptable Intercreditor Agreement).
Person” means any natural person, corporation, limited liability company, unlimited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
Plan” means any material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Foreign Plan, established by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any of their respective ERISA Affiliates.
Platform” has the meaning specified in Section 7.2.
Pledged Debt means, collectively, (a) the “Pledged Debt” (as defined in the U.S. Security Agreement) and (b) the “Pledged Debt” (as defined in the Canadian Security Agreement).
Pledged Equity means, collectively, (a) the “Pledged Equity” (as defined in the U.S. Security Agreement), (b) the “Pledged Equity” (as defined in the Canadian Security Agreement), and (c) the “Shares” (as defined in the English Share Charge and the English Debenture) or any equivalent term in any other English Collateral Document.
PPSA” means the Personal Property Security Act (Ontario), including the regulations thereto and related Minister’s Orders, provided that, if perfection or the effect of perfection or non-perfection or the priority of any Lien created hereunder or under any other Loan Document on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in any applicable jurisdiction in Canada, “PPSA” means the Personal Property Security Act or such other applicable legislation (including, the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test or covenant or calculation hereunder, or the calculation of Consolidated EBITDA
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hereunder, the determination or calculation of such test, covenant, ratio or Consolidated EBITDA (including in connection with Specified Transactions) in accordance with Section 1.8.
Pro Forma Financial Statements means the unaudited pro forma Consolidated balance sheet and the related pro forma Consolidated statement of income and cash flows of Holdings and its Restricted Subsidiaries as of and for the twelve (12) month period ending on the last day of the most recently completed four Fiscal Quarter period ended at least forty-five (45) days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the statement of income and cash flows).
Proceeds” has the meaning given to such term in Article 9 of the UCC and, if applicable, in the PPSA.
Proceeds of Crime Act means the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), as amended from time to time and all regulations thereunder.
Progressive” means Prog Leasing, LLC and its NPRTO subsidiaries.
Projections” has the meaning specified in Section 7.1(d).
Protective Advance” means any Credit Extension (including any such Credit Extension resulting in an Overadvance) made or deemed to exist by the Administrative Agent, in its discretion, which:
(a)    is made to maintain, protect or preserve the Collateral and/or the Loan Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Loan Parties; or
(b)    is made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation; or
(c)    is made to pay any other amount chargeable to any Loan Party hereunder; and
(d)    together with all other Protective Advances then outstanding, shall not (i) exceed five percent (5%) of the Revolving Borrowing Base at any time or (ii) unless a Liquidation is taking place, remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Requisite Lenders otherwise agree; provided, however, that the foregoing shall not (i) modify or abrogate any of the provisions regarding the Lenders’ obligations with respect to Letters of Credit or with respect to Swing Loans, or (ii) result in any claim or liability against the Administrative Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances, and such Unintentional Overadvances shall not reduce the amount of Protective Advances allowed hereunder.
PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public Lender” has the meaning specified in Section 7.2.
QFC” has the meaning specified in Section 12.29(b).
QFC Credit Support” has the meaning specified in Section 12.29.
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Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
Quarterly Borrowing Base Reporting Period” means any period that is not a Monthly Borrowing Base Reporting Period or Weekly Borrowing Base Reporting Period.
Quarterly Financial Statements” means the unaudited Consolidated balance sheets and related statements of income, and cash flows of Holdings and its Restricted Subsidiaries for the most recent Fiscal Quarters after the date of the Annual Financial Statements and ended at least forty-five (45) days before the Closing Date.
Ratable Portion” and “Pro Rata Share” means (a) in respect of the FILO Facility, with respect to any FILO Lender at any time, the percentage (carried out to the ninth decimal place) of the FILO Facility represented by, as applicable and as the context may require, (x) the principal amount of such FILO Lender’s FILO Loans, (y) FILO Loans of any applicable Class, in each case, (after giving effect to any FILO Incremental Loans made or to be made with respect to any FILO Incremental Commitment of such FILO Lender) or (z) on or prior to the date of any funding under a FILO Incremental Commitment, such FILO Lender’s FILO Incremental Commitment of any Class at such time, and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at any time, its Revolving Commitment Percentage.  If the Revolving Credit Termination Date shall have occurred, or if the Revolving Credit Commitments have expired, then the Ratable Portion and Pro Rata Share of each Revolving Credit Lender in respect of any Class of the Revolving Credit Facility shall be determined based on the Ratable Portion and Pro Rata Share of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect (including, with respect to any such Class), giving effect to any subsequent assignments.  The initial Ratable Portion and Pro Rata Share of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule I or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The Ratable Portion and Pro Rata Share of each Lender shall be determined by the Administrative Agent and shall be conclusive absent manifest error.
Recipient” has the meaning specified in Section 3.2.
Register” has the meaning specified in Section 12.2(c).
Reimbursement Date” has the meaning specified in Section 2.4(f)(i).
Reimbursement Obligations” means, as and when matured, the obligation of any Borrower to pay, on the date payment is made or scheduled to be made to the beneficiary under each such Letter of Credit, all amounts of each drafts and other requests for payments drawn under Letters of Credit, and all other matured reimbursement or repayment obligations of any Borrower to any Issuer with respect to amounts drawn under Letters of Credit.
Related Indemnified Person” of an Indemnitee means (a) any controlling person or controlled affiliate of such Indemnitee, (b) the respective directors, officers, or employees of such Indemnitee or any of its controlling persons or controlled affiliates and (c) the respective agents of such Indemnitee or any of its controlling persons or controlled affiliates, in the case of this clause (c), acting at the instructions of such Indemnitee, controlling person or such controlled affiliate; provided that each reference to a controlled affiliate or controlling person in
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this definition shall pertain to a controlled affiliate or controlling person involved in the negotiation or syndication of the Facilities.
Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
Relevant Governmental Body means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.
Relevant Party” has the meaning specified in Section 3.2.
Relevant Rate” means with respect to any Credit Extension denominated in (a) Dollars, Term SOFR, (b) Sterling, the SONIA Rate, (c) Euros, EURIBOR, and (d) Canadian Dollars, CDOR, as applicable. With respect to any Credit Extension denominated in Dollars, any Term SOFR Successor Rate in effect from time to time shall constitute a Relevant Rate for purposes of clause (a) above and with respect to any Credit Extension denominated in an Alternative Currency specified in clauses (b) through (d) above (or any Alternative Currency that may be added to this Agreement pursuant to Section 1.11), the applicable Alternative Currency Successor Rate in effect from time to time shall constitute a Relevant Rate for purposes of the applicable clause above (or for purposes of any Alternative Currency that may be added to this Agreement pursuant to Section 1.11).
Rent and Charges Reserves” means the aggregate of (a) all rent and other amounts (including common area maintenance charges) owing by any Loan Party, that is not paid when due, to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person who possesses or is in control of any Current Asset Collateral or could assert a Lien on any Current Asset Collateral which is pari passu with or would have priority over the Liens of the Collateral Agent in such Current Asset Collateral, and (b) in the case of Inventory located at a leased premise located (i) in Landlord Lien Jurisdictions or (ii) that are distribution centers or warehouses, in each case, as long as no Event of Default is continuing, a reserve equal to two (2) months’ rent and other charges payable to any such Person, unless such Person has executed a Collateral Access Agreement.
Reportable Event” means, with respect to any Pension Plan, 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.
Reports” has the meaning specified in Section 11.16(b).
Requisite FILO Lenders” means, collectively, FILO Lenders having more than 50.0% of the FILO Outstandings; provided that the portion of the FILO Loans held by any Defaulting Lender shall be excluded for purposes of making a determination of Requisite FILO Lenders.
Requisite Lenders” means, collectively, Lenders having more than 50.0% of the sum of (i) the Aggregate Revolving Credit Commitments (or, after the Revolving Credit Termination Date, the Revolving Credit Outstandings) plus (ii) the FILO Outstandings; provided that the unused Revolving Credit Commitment of, and the portion of the Loans and outstanding Letters of Credit held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Lenders.
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Requisite Revolving Lenders” means, collectively, Revolving Credit Lenders having more than 50.0% of the Aggregate Revolving Credit Commitments (or, after the Revolving Credit Termination Date, the Revolving Credit Outstandings); provided that the unused Revolving Credit Commitment of, and the portion of the Loans and outstanding Letters of Credit held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Revolving Lenders, provided, further, that the amount of any participation in any Swing Loan and Reimbursement Obligations that any Defaulting Lender has failed to fund that have not been reallocated to and funded by another non-Defaulting Lender shall be deemed to be held by the Lender that is the Swing Loan Lender or Issuer, as the case may be, in making such determination.
Requisite Supermajority Revolving Lenders” means, collectively, Revolving Credit Lenders having more than 66.7% of the Aggregate Revolving Credit Commitments (or, after the Revolving Credit Termination Date, the Revolving Credit Outstandings); provided that the unused Revolving Credit Commitment of, and the portion of the Loans and outstanding Letters of Credit held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Supermajority Revolving Lenders, provided, further, that the amount of any participation in any Swing Loan and Reimbursement Obligations that any Defaulting Lender has failed to fund that have not been reallocated to and funded by another non-Defaulting Lender shall be deemed to be held by the Lender that is the Swing Loan Lender or Issuer, as the case may be, in making such determination.
Rescindable Amount” has the meaning specified in Section 2.13(e).
Reserves” means, without duplication, all Availability Reserves and all Inventory Reserves.
Resolution Authority” means an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.
Responsible Officer” means the chief executive officer or any Financial Officer of a Loan Party or any statutory director of an English Loan Party or the Specified Irish Subsidiary Guarantor and, solely for purposes of the execution and delivery of the Loan Documents on or after the Closing Date, any authorized officer of a Loan Party identified on incumbency certificates as such, and solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest (including the LGP Preference Shares) of Holdings or any of its Restricted Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Holdings’ or such Restricted Subsidiaries’ stockholders, partners or members (or the equivalent Persons thereof) other than (i) the payment of compensation in the ordinary course of business to holders of any such Equity Interests who are employees or service providers of Holdings or any Restricted Subsidiary solely in their capacity as employees or service providers and (ii) other than payments of intercompany indebtedness permitted under this Agreement, unless such payments are made in the form of
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dividends or other distributions that would otherwise be classified as Restricted Payments hereunder.
Restricted Subsidiary” means any Subsidiary of Holdings other than an Unrestricted Subsidiary.
Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Loan denominated in an Alternative Currency, (ii) with respect to a SONIA Rate Loan, each scheduled date for the payment of interest thereon pursuant to Section 2.10(b), (iii) each date of a continuation of a EurocurrencyTerm Rate Loan denominated in an Alternative Currency pursuant to Section 2.11, and (iiiiv) such additional dates as the Administrative Agent shall determine or the Requisite Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of Issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of any payment by the applicable Issuer under any Letter of Credit denominated in an Alternative Currency, (iii) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing Date, and (iv) such additional dates as the Administrative Agent or the applicable Issuer shall determine or the Requisite Lenders shall require.
Revolving Borrowing Base” means, as of the date of determination thereof, an amount equal to:
(a)    the face amount of Eligible Credit Card Receivables, multiplied by the Credit Card Receivables Advance Rate; plus
(b)    the Net Recovery Percentage of Eligible Inventory, multiplied by the Inventory Advance Rate, multiplied by the Cost of Eligible Inventory, net of Inventory Reserves attributable to Eligible Inventory; minus
(c)    the FILO Deficiency Reserve; minus
(d)    the then amount of all Availability Reserves.
The Revolving Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 7.4, as adjusted to give effect to Availability Reserves and to reflect the commencement or termination of a Seasonal Inventory Advance Period, in each case, following such delivery. Notwithstanding the foregoing to contrary, in respect of any English Borrower that has been an English Borrower for fewer than twelve (12) months, in no event shall the aggregate amount of Eligible Credit Card Receivables and Eligible Inventory of such English Borrower included in the Revolving Borrowing Base exceed the aggregate principal amount of all Loans that have been borrowed by such English Borrower or are being borrowed by such English Borrower concurrently with such determination in reliance on the Revolving Borrowing Base. The Revolving Borrowing Base shall be reported in accordance with Section 1.10(c).
The establishment or increase of any Availability Reserve will be limited to the exercise by the Administrative Agent of its Permitted Discretion, upon (other than with respect to the establishment of the Dilution Reserve, the Specified Litigation and Arbitration Reserve, the LGP Preference Shares Reserve, the Untendered Existing 2024 Notes Reserve or any Availability Reserve established on the Closing Date; it being understood that, for the avoidance of doubt, the Borrower shall receive at least five (5) Business Days’ prior written notice before any increase in the Dilution Reserve, the Specified Litigation and Arbitration Reserve, the LGP Preference Shares Reserve, the Untendered Existing 2024 Notes Reserve or any Availability Reserve established on the Closing Date, in each case, resulting from a change in the
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methodology, previously utilized or otherwise set forth herein, for calculating any such Availability Reserve) at least five (5) Business Days’ prior written notice (which may be made by electronic mail) to the Lead Administrative Borrower (which written notice will include a reasonably detailed description of the Reserve being established or increased); provided that, notwithstanding the foregoing to the contrary, no such prior written notice shall be required for changes to any Availability Reserves resulting solely by virtue of mathematical calculations of the amount of the Availability Reserves in accordance with the methodology of calculation previously utilized or if an Event of Default is continuing; provided further that, during such five (5) Business Day period, (i) the Borrowers agree not to borrow in excess of the Revolving Borrowing Base after giving effect to such new or modified Reserves, except to the extent of any Credit Extensions made in good faith to pay costs and expenses in the ordinary course of business on a non-accelerated basis, and (ii) the Administrative Agent shall, upon the Lead Administrative Borrower’s request, discuss any such Availability Reserve or modification to an Availability Reserve with the Lead Administrative Borrower, and the Borrowers may take any action that may be required so that the event, condition or matter that is the basis for such Availability Reserve or modification no longer exists or exists in a manner that would result in the establishment of a lower Availability Reserve or result in a lesser increase in any existing Availability Reserve, in each case, in a manner and to the extent reasonably satisfactory to the Administrative Agent. Notwithstanding anything to the contrary herein, (a) the amount of any such Availability Reserve or change in an Availability Reserve shall have a reasonable relationship to the event, condition or other matter that is the basis for such Availability Reserve or change, and (b) no such Availability Reserve or change shall be duplicative of any other Reserve or change or items that are already accounted for through eligibility criteria or collection or advance rates.
Notwithstanding anything to the contrary in this Agreement, until the Assets Diligence Date, the assets acquired in any Permitted Acquisition or other Investment permitted by this Agreement and the assets that are held by any Subsidiary that is designated as an additional Borrower pursuant to Section 2.14(e) may be included in the Revolving Borrowing Base if a Field Examination and/or an Inventory Appraisal, as applicable, covering such assets is not complete, up to an aggregate amount (for all such acquired assets and assets of a newly designated Borrower) not greater than 10.0% of the Revolving Borrowing Base (as in effect prior to the applicable Assets Acquisition Date or date of designation, as applicable, and prior to giving effect to the inclusion of other acquired assets or assets of a newly designated Borrower, as applicable, in reliance on this sentence prior to the relevant Assets Diligence Date). To the extent a Field Examination and/or an Inventory Appraisal, as applicable, covering such assets is not complete as of the date that is 91 days after the Assets Acquisition Date or date of designation, as applicable, the Revolving Borrowing Base shall not include any assets acquired in the relevant acquisition or similar investment or any assets of such newly designated Borrower, as applicable, until a Field Examination and/or an Inventory Appraisal, as applicable, covering such assets has been completed (at which time the Lead Administrative Borrower will be permitted to deliver an updated Borrowing Base Certificate reflecting the inclusion of such assets in the Revolving Borrowing Base). The Administrative Agent shall take such actions as are reasonably required to obtain any such Field Examination and/or an Inventory Appraisal, it being understood that any such Field Examination and/or an Inventory Appraisal shall not be subject to (and shall not be included in) the limitations set forth in Section 7.5 on the number of Field Examinations and Inventory Appraisals that the Administrative Agent is permitted to conduct or for which the Administrative Agent is entitled to be reimbursed in any period.
Revolving Commitment Increase” has the meaning specified in Section 2.15(a).
Revolving Commitment Increase Lender” has the meaning specified in Section 2.15(a).
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Revolving Commitment Percentage” means, with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment or, as the context may require, Revolving Credit Commitment of any applicable Class at such time, subject (in each case) to adjustment as provided in Section 2.16(a)(iv).  If the Revolving Credit Termination Date shall have occurred, or if the Revolving Credit Commitments have expired, then the Revolving Commitment Percentage of each Revolving Credit Lender in respect of any Class of the Revolving Credit Facility shall be determined based on the Revolving Commitment Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect (including, with respect to any such Class), giving effect to any subsequent assignments.
Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the commitment of such Revolving Credit Lender to make Revolving Loans and acquire interests in other Revolving Credit Outstandings expressed as an amount representing the maximum principal amount of the Revolving Loans to be made by such Revolving Credit Lender under this Agreement, as such commitment may be (a) reduced from time to time pursuant to this Agreement, (b) reduced or increased from time to time pursuant to (i) assignments by or to such Revolving Credit Lender pursuant to an Assignment and Assumption, or (ii) a Revolving Commitment Increase or (iii) extended from time to time pursuant to a Revolving Extension Amendment. The amount of each Revolving Credit Lender’s Revolving Credit Commitment on the Second Amendment Effective Date is set forth on Schedule I under the caption “Revolving Credit Commitment,” as amended to reflect each Assignment and Assumption, Incremental Revolving Amendment or Revolving Extension Amendment, in each case executed by such Revolving Credit Lender. The aggregate amount of the Revolving Credit Commitments as of the Second Amendment Effective Date is $1,500,000,000.
Revolving Credit Exposure” means, as to each Lender, the sum of the Outstanding Amount of such Lender’s Revolving Loans, its Pro Rata Share of Protective Overadvances, its Pro Rata Share of the Letter of Credit Obligations and its Pro Rata Share of the Swing Loan Obligations at such time.
Revolving Credit Facility” means the Revolving Credit Commitments and the provisions herein related to the Revolving Loans, Swing Loans and Letters of Credit, and Loans under Extended Revolving Credit Commitments.
Revolving Credit Lender” means each Lender that (a) has a Revolving Credit Commitment, (b) holds a Revolving Loan or (c) participates in any Letter of Credit or Swing Loan.
Revolving Credit Note” means a promissory note made by the Borrowers, substantially in the form of Exhibit B-1, in favor of a Revolving Credit Lender, evidencing the Revolving Loans made by such Revolving Credit Lender to the Borrowers.
Revolving Credit Outstandings” means, at any particular time, the sum of (a) the principal amount of the Revolving Loans outstanding at such time, (b) the Letter of Credit Obligations outstanding at such time and (c) the principal amount of the Swing Loans outstanding at such time.
Revolving Credit Termination Date” means the earliest of (a) with respect to Revolving Credit Commitments of any Class, the Scheduled Termination Date for Revolving Commitments of such Class, (b) the earliest maturity date under the Senior Notes, (c) the date of termination of all of the Revolving Credit Commitments pursuant to Section 2.5 and (d) the date on which the Obligations become due and payable pursuant to Section 10.2.
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Revolving Extension” means any establishment of Extended Revolving Credit Commitments pursuant to Section 2.17 and the applicable Revolving Extension Amendment.
Revolving Extension Amendment” has the meaning specified in Section 2.17(d).
Revolving Extension Election” has the meaning specified in Section 2.17(b).
Revolving Extension Request” has the meaning specified in Section 2.17(a).
Revolving Extension Series” has the meaning specified in Section 2.17(a).