Exhibit 10.1
SIXTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as of November 7, 2022 and is entered into by and among ACCO Brands Corporation, a Delaware corporation (“Holdings”), ACCO Brands Australia Holding Pty. Ltd. (the “Australian Borrower”), Bank of America, N.A., as administrative agent (in such capacity, the “Administrative Agent”) acting with the consent of each of the Consenting Lenders (as defined below), the Required Lenders and the Guarantors listed on the signature pages hereto, and is made with reference to that certain Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021 and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement” and the Credit Agreement as amended by the Amendment, the “Amended Credit Agreement”), by and among Holdings, certain Subsidiaries of Holdings from time to time party thereto, the lenders from time to time party thereto (the “Existing Lenders”) and the Administrative Agent. Unless otherwise stated, capitalized terms used herein without definition shall have the same meanings herein as set forth in the Amended Credit Agreement.
RECITALS
WHEREAS, pursuant to and in accordance with Section 11.01(a) of the Credit Agreement, the Lenders and the other parties hereto have agreed to amend the Credit Agreement on the terms set forth herein;
WHEREAS, each Existing Lender that executes and delivers a consent to this Amendment in the form of the “Term Loan Lender Consent” attached hereto as Annex I (a “Term Loan Lender Consent”) and makes either available election thereunder (i.e. (x) consenting and agreeing to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment), or (y) consenting and agreeing to this Amendment and the Amended Credit Agreement except for the changes related to SOFR (including without limitation, the SOFR Adjustment)) (collectively, the “Accepting Term Loan Lenders”), will in each case, by the fact of such execution and delivery, be deemed to have consented to the terms of this Amendment and the Amended Credit Agreement;
WHEREAS, each Existing Lender holding Revolving Credit Loans (the “Existing Revolving Credit Loans”) or unused Revolving Credit Commitments that executes and delivers a consent to this Amendment in the form of the “Revolving Credit Lender Consent” attached hereto as Annex II (a “Revolving Credit Lender Consent”, and the Revolving Credit Lender Consents together with the Term Loan Lender Consents, the “Lender Consents”) and makes either available election thereunder (i.e. (x) consenting and agreeing to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment), or (y) consenting and agreeing to this Amendment and the Amended Credit Agreement except for the changes related to SOFR (including without limitation, the SOFR Adjustment)) (collectively, the “Accepting Revolving Credit Lenders” and, together with the Accepting Term Loan Lenders, the “Consenting Lenders”) will, by the
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fact of such execution and delivery, be deemed to have consented to the terms of this Amendment and the Amended Credit Agreement; and
WHEREAS, the Administrative Agent, the L/C Issuers, the Swingline Lender, the Consenting Lenders and the Loan Parties are willing, on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement, to amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
On the terms and subject to the satisfaction (or waiver) of the conditions set forth in Section II hereof:
This Amendment shall become a binding agreement of the parties hereto and effective on the date (the “Sixth Amendment Effective Date”) on which the following conditions precedent have been satisfied or waived:
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Notwithstanding anything herein to the contrary, for purposes of determining compliance with the conditions specified in this Section II, each Consenting Lender shall be deemed satisfied with each document and each other matter required to be reasonably satisfactory to such Consenting Lender unless, prior to the Sixth Amendment Effective Date, the Administrative Agent receives notice from such Consenting Lender specifying such Consenting Lender’s objections.
In order to induce the Administrative Agent, the L/C Issuers, the Swing Line Lender and each of the Consenting Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein and the Amended Credit Agreement, each Loan Party represents and warrants on and as of the Sixth Amendment Effective Date to each of the Administrative Agent, the L/C Issuers, the Swing Line Lender and each of the Consenting Lenders as follows:
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Nothing in this Amendment extinguishes, novates or releases any right, claim, lien, security interest or entitlement of any of the Lenders or the Administrative Agent created by or contained in any of the Loan Documents nor is any Loan Party released from any covenant, warranty or obligation created by or contained herein or therein as modified hereby.
Each Loan Party hereby confirms its pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Loan Documents, including, without limitation, under each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is party, and agrees that, notwithstanding the effectiveness of this Amendment or any of the transactions contemplated thereby or by the Amended Credit Agreement, such pledges, grants of security interests and other obligations, and the terms of each of the Loan Documents, including, without limitation, under each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is a party, as supplemented, amended, amended and restated or otherwise modified in connection with this Amendment, the Amended Credit Agreement and the transactions contemplated hereby, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect and shall continue to secure all the Obligations.
Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Amended Credit Agreement, the Collateral Documents to which it is a party, the U.S. Obligations Guaranty, the Foreign Obligations Guaranty and this Amendment and consents to the amendment of the Credit Agreement and the other Loan Documents effected pursuant to this Amendment. Each Guarantor hereby confirms that each Loan Document, including each of the Pledge Agreements and the other Foreign Collateral
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Documents, to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with such Loan Documents the payment and performance of all “Obligations” and any other obligations under each such Loan Document, including each of the Pledge Agreements and the other Foreign Collateral Documents, to which it is a party (in each case, as such terms are defined in the applicable Loan Document as the same may be amended as contemplated hereby).
Each Guarantor acknowledges and agrees that each of the Loan Documents, including each of the Pledge Agreements and the other Foreign Collateral Documents, as the same may be amended as contemplated hereby to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Amendment.
Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to the Sixth Amendment Effective Date set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement and the other Loan Documents to which it is not a party effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment, the Amended Credit Agreement or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendments to the Amended Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
HOLDINGS AND U.S. BORROWER: ACCO BRANDS CORPORATION
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Executive Vice President and
Chief Financial Officer
AUSTRALIAN BORROWER:
Executed by ACCO BRANDS AUSTRALIA
HOLDING PTY. LTD. in accordance with
Section 127 of the Corporations Act 2001
/s/ Deborah A. O’Connor_________
Signature of director
Name: Deborah A. O’Connor, a Responsible officer for the above-referenced company | /s/ Pamela R. Schneider__________
Signature of director
Name: Pamela R. Schneider, a Responsible officer for the above-referenced company |
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
GUARANTORS: ACCO BRANDS CORPORATION
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Executive Vice President and Chief Financial Office
ACCO BRANDS USA LLC
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Executive Vice President and Chief Financial Officer
GENERAL BINDING LLC
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Vice President
ACCO BRANDS INTERNATIONAL, INC.
By: /s/ Deborah A. O’Connor_________ _
Name: Deborah A. O’Connor
Title: Vice President
ACCO EUROPE FINANCE HOLDINGS, LLC
By: /s/ Jagannath Bobji______________
Name: Jagannath Bobji
Title: Vice President
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
GBC INTERNATIONAL, INC.
By: /s/ Jagannath Bobji______________
Name: Jagannath Bobji
Title: Treasurer
ACCO INTERNATIONAL HOLDINGS, INC.
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Vice President
NESCHEN GBC GRAPHIC FILMS, LLC
By: /s/ Pamela R. Schneider_____________
Name: Pamela R. Schneider
Title: Supervisory Director
ESSELTE U.S. FV, LLC
By: /s/ Jagannath Bobji______________
Name: Jagannath Bobji
Title: Vice President and Treasurer
ESSELTE EUROPEAN HOLDINGS LLC
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Vice President and Treasurer
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
ESSELTE LLC
By: /s/ Jagannath Bobji______________
Name: Jagannath Bobji
Title: Vice President and Treasurer
ESSELTE HOLDINGS LLC
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Vice President and Treasurer
ELECTRA USA LLC
By: /s/ Deborah A. O’Connor_________
Name: Deborah A. O’Connor
Title: Vice President and Treasurer
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
Executed by ACCO BRANDS AUSTRALIA HOLDING PTY. LTD. in accordance with Section 127 of the Corporations Act 2001
/s/ Deborah A. O’Connor_________
Signature of director
Name: Deborah A. O’Connor, a Responsible officer for the above- referenced company
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/s/ Pamela R. Schneider_________
Signature of director
Name: Pamela R. Schneider, a Responsible officer for the above- referenced company |
Executed by ACCO BRANDS AUSTRALIA PTY. LTD. in accordance with Section 127 of the Corporations Act 2001
/s/ Pamela R. Schneider________
Signature of director
Name: Pamela R. Schneider, a Responsible officer for the above- referenced company
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[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
BANK OF AMERICA, N.A.,
as Administrative Agent, Term Lender, Revolving Credit Lender, Swing Line Lender and L/C Issuer
By: /s/ Jonathan M. Philips__________
Authorized Signatory
[Signature Page to Sixth Amendment to Third Amended and Restated Credit Agreement]
ANNEX I
TERM LENDER CONSENT TO SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[NAME OF TERM LENDER], as a Term Lender
By ______________________________
Name:
Title:
[[For Term Lenders requiring a second signature block]
By ______________________________
Name:
Title:]
PROCEDURE FOR TERM LENDERS:
The above-named Term Lender elects to:
OPTION A – CONSENT TO ENTIRE AMENDMENT: FORMCHECKBOX Consent and agree to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment).
OPTION B – PARTIAL CONSENT TO THE AMENDMENT: FORMCHECKBOX Except for the changes related to SOFR (including without limitation, the SOFR Adjustment), consent to the Amendment and the Amended Credit Agreement.
ANNEX II
REVOLVING CREDIT LENDER CONSENT TO SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
[NAME OF REVOLVING CREDIT LENDER], as a Revolving Credit Lender
By ______________________________
Name:
Title:
[[For Revolving Credit Lender requiring a second signature block]
By ______________________________
Name:
Title:]
PROCEDURE FOR REVOLVING CREDIT LENDERS:
The above-named Revolving Credit Lender elects to:
OPTION A – CONSENT TO ENTIRE AMENDMENT: FORMCHECKBOX Consent and agree to this Amendment and the Amended Credit Agreement (including without limitation, the effectiveness of SOFR as successor rate and the SOFR Adjustment).
OPTION B – PARTIAL CONSENT TO THE AMENDMENT: FORMCHECKBOX Except for the changes related to SOFR (including without limitation, the SOFR Adjustment), consent to the Amendment and the Amended Credit Agreement.
EXHIBIT A
Changes to the Credit Agreement
[To be attached]
Conformed Third Amended and Restated Credit Agreement
As amended by the First Amendment dated July 26, 2018,
the Second Amendment dated May 23, 2019
the Third Amendment dated May 1, 2020
the Fourth Amendment dated November 10, 2020
and the Fifth Amendment dated March 31, 2021
the Libor Transition Amendment dated December 8, 2021
and the Sixth Amendment dated Novmeber 7, 2022
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 27, 2017
AMONG
ACCO BRANDS CORPORATION
and
CERTAIN SUBSIDIARIES FROM TIME TO TIME PARTY HERETO,
as Borrowers
VARIOUS LENDERS,
BOFA SECURITIES, INC.,
BARCLAYS BANK PLC,
BMO CAPITAL MARKETS CORP,
PNC BANK, NATIONAL ASSOCIATION,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Bookrunners,
BARCLAYS BANK PLC,
BMO CAPITAL MARKETS CORP,
PNC BANK, NATIONAL ASSOCIATION,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Syndication Agents
CAPITAL ONE, NATIONAL ASSOCIATION
and
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
________________________________________________________
$600,000,000 multicurrency revolving Credit Facility
€252,750,000 eur term loan a Facility
$61,000,000 aud term loan a Facility
$100,000,000 usd term loan a Facility
________________________________________________________
CONTENTS
Page
Article 1 Definitions and Accounting Terms 3
Section 1.01 Defined Terms 3
Section 1.02 Other Interpretive Provisions 6466
Section 1.03 Accounting Terms 6567
Section 1.04 Rounding 6567
Section 1.05 Times of Day 6568
Section 1.06 Letter of Credit Amounts 6568
Section 1.07 Currency Equivalents Generally; Change of Currency 6568
Section 1.08 Additional Alternative Currencies 6668
Section 1.09 Additional Borrowers 6669
Section 1.10 Timing of Payment or Performance 6770
Section 1.11 Interest Rates 6770
Section 1.12 Limited Condition Acquisitions 6870
Article 2 The Commitments and Credit Extensions 6871
Section 2.01 The Loans 6871
Section 2.02 Borrowings, Conversions and Continuations of Loans 6972
Section 2.03 Letters of Credit 7174
Section 2.04 Swing Line Loans 8082
Section 2.05 Prepayments 8385
Section 2.06 Termination or Reduction of Commitments 8588
Section 2.07 Repayment of Loans 8688
Section 2.08 Interest 8790
Section 2.09 Fees 8891
Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 8991
Section 2.11 Evidence of Debt. 8992
Section 2.12 Payments Generally; Administrative Agent’s Clawback 9092
Section 2.13 Sharing of Payments by Lenders 9294
Section 2.14 Incremental Facilities 9295
Section 2.15 Cash Collateral 9698
Section 2.16 Defaulting Lenders 9799
Section 2.17 Nature of Obligations 99101
Article 3 Taxes, Yield Protection and Illegality 101103
Section 3.01 Taxes 101103
Section 3.02 Illegality 105107
Section 3.03 Inability to Determine Rates 105108
Section 3.04 Increased Costs; Reserves on EurodollarAgreed Currency Rate Loans, SARON Loans, GBP Daily Rate Loans and Canadian BA Rate Loans 107111
Section 3.05 Compensation for Losses 108112
Section 3.06 Mitigation Obligations; Replacement of Lenders. 109113
Section 3.07 Survival 110113
Article 4 Conditions Precedent 110114
Section 4.01 Conditions Precedent to the SpinCo Closing Date 110114
Section 4.02 Conditions Precedent to the Original Closing Date 110114
Section 4.03 Conditions to All Credit Extensions after the Original Closing Date 110114
Section 4.04 Conditions Precedent to Effectiveness of Second Amendment 110114
Section 4.05 Conditions Precedent to Effectiveness of Third Amendment to Amended and Restated Credit Agreement 111114
Section 4.06 Conditions Precedent to Effectiveness of Third Amendment to Second Amended and Restated Credit Agreement 111115
Article 5 Representations and Warranties 111115
Section 5.01 Existence, Qualification and Power 111115
Section 5.02 Authorization; No Contravention 111115
Section 5.03 Governmental Authorization; Other Consents 111115
Section 5.04 Binding Effect 112115
Section 5.05 Financial Statements; No Material Adverse Effect 112116
Section 5.06 Litigation 112116
Section 5.07 No Default 112116
Section 5.08 Ownership of Property; Liens 112116
Section 5.09 Environmental 113117
Section 5.10 Insurance 114118
Section 5.11 Taxes 114118
Section 5.12 ERISA Compliance 114118
Section 5.13 Subsidiaries; Equity Interests 115119
Section 5.14 Margin Regulations; Investment Company Act 116119
Section 5.15 Disclosure 116120
Section 5.16 Compliance with Laws 116120
Section 5.17 Taxpayer Identification Number 116120
Section 5.18 Intellectual Property; Licenses, Etc 116120
Section 5.19 Solvency 117120
Section 5.20 Collateral Documents 117120
Section 5.21 Senior Debt 117121
Section 5.22 Sanctioned Persons 117OFAC 121
Section 5.23 Foreign Corrupt Practices Act 117121
Section 5.24 Compliance with EU Bail-in Regulation 117121
Section 5.25 Anti-Corruption Laws 121
Article 6 Affirmative Covenants 117121
Section 6.01 Financial Statements 118121
Section 6.02 Certificates; Other Information 118122
Section 6.03 Notices 120124
Section 6.04 Preservation of Existence, Etc 121125
Section 6.05 Maintenance of Properties 121125
Section 6.06 Maintenance of Insurance 121125
Section 6.07 Compliance with Laws 122126
Section 6.08 Books and Records 122126
Section 6.09 Inspection Rights 122126
Section 6.10 Use of Proceeds 122126
Section 6.11 Covenant to Guarantee Obligations and Give Security 122126
Section 6.12 Compliance with Environmental Laws 123127
Section 6.13 Preparation of Environmental Reports 123127
Section 6.14 [Reserved] 124128
Section 6.15 Further Assurances 124128
Section 6.16 Ratings 124128
Section 6.17 PPSA Policies and steps 124128
Section 6.18 MIRE Events 124128
Section 6.19 Anti-Corruption Laws; Sanctions 128
Article 7 Negative Covenants 124128
Section 7.01 Liens 124129
Section 7.02 Investments 127131
Section 7.03 Indebtedness 129133
Section 7.04 Fundamental Changes 132136
Section 7.05 Dispositions 132136
Section 7.06 Restricted Payments 134138
Section 7.07 Change in Nature of Business 135139
Section 7.08 Transactions with Affiliates 135139
Section 7.09 Restrictive Agreements 136140
Section 7.10 Use of Proceeds 136140
Section 7.11 Financial Covenants 136140
Section 7.12 Amendments of Organization Documents 137141
Section 7.13 Accounting Changes 137141
Section 7.14 Prepayments of Indebtedness 137141
Section 7.15 Sale-Leaseback Transactions 137141
Section 7.16 Amendments of Indebtedness 137141
Section 7.17 Limitation on Activities of Australian Borrower 137142
Section 7.18 Sanctions 142
Section 7.19 Anti-Corruption Laws 142
Article 8 Events of Default and Remedies 138142
Section 8.01 Events of Default 138142
Section 8.02 Remedies Upon Event of Default 140144
Section 8.03 Application of Funds 141145
Article 9 Administrative Agent 141145
Section 9.01 Appointment and Authority 141145
Section 9.02 Rights as a Lender 141146
Section 9.03 Exculpatory Provisions 142146
Section 9.04 Reliance 142147
Section 9.05 Delegation of Duties 143147
Section 9.06 Resignation of Administrative Agent 143147
Section 9.07 Non-Reliance on Administrative Agent, the Arrangers and the Other Lenders 144148
Section 9.08 No Other Duties, Etc 144149
Section 9.09 Administrative Agent May File Proofs of Claim 144149
Section 9.10 Collateral and Guaranty Matters 145149
Section 9.11 Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements 146150
Section 9.12 Certain ERISA Matters 146151
Section 9.13 Recovery of Erroneous Payments 152
Article 10 Debt Allocation Mechanism 147152
Section 10.01 Implementation of DAM 147152
Section 10.02 Letters of Credit 148153
Section 10.03 Net Payments Upon Implementation of DAM Exchange 149154
Article 11 Miscellaneous 150155
Section 11.01 Amendments, Etc 150155
Section 11.02 Notices; Effectiveness; Electronic Communication 153158
Section 11.03 No Waiver; Cumulative Remedies; Enforcement 155160
Section 11.04 Expenses; Indemnity; Damage Waiver 155160
Section 11.05 Payments Set Aside 157162
Section 11.06 Successors and Assigns 158163
Section 11.07 Treatment of Certain Information; Confidentiality 162167
Section 11.08 Right of Setoff 163168
Section 11.09 Interest Rate Limitation 164168
Section 11.10 Integration 164169
Section 11.11 Survival of Representations and Warranties 164169
Section 11.12 Severability 165169
Section 11.13 Replacement of Lenders 165169
Section 11.14 Governing Law; Jurisdiction; Etc 165170
Section 11.15 Waiver of Jury Trial 166171
Section 11.16 No Advisory or Fiduciary Responsibility 167171
Section 11.17 Electronic Execution of Assignments and Certain Other Documents 167172
Section 11.18 USA PATRIOT Act 168172
Section 11.19 Judgment Currency 168173
Section 11.20 Holdings as Agent for Borrowers 168173
Section 11.21 Waiver of Sovereign Immunity 169173
Section 11.22 Independence of Covenants 169174
Section 11.23 Lenders as Perfection Agents 169174
Section 11.24 Effect of Amendment and Restatement of the Second Amended and Restated Credit Agreement 169174
Section 11.25 Ratification of Loan Documents 170174
Section 11.26 Swedish law Security Confirmation 170175
Section 11.27 Acknowledgement and Consent to Bail-In of EEAAffected Financial Institutions 170175
Section 11.28 Consent regarding Dissolution of ACCO Brands Colombia 171175
Section 11.29 Acknowledgement Regarding Any Supported QFCs 171175
SCHEDULES
1.01A | Existing Letters of Credit |
1.01B | Agreed Security Principles |
1.01C | Real Property Subject to Mortgage and Estoppel Requirements (Third Restatement Date) |
2.01 | Commitments and Applicable Percentages |
5.08(c) | Owned Real Property |
5.08(d)(i) | Leased Real Property (Lessee) |
5.08(d)(ii) | Leased Real Property (Lessor) |
5.11 | Tax Sharing Agreements |
5.13 | Subsidiaries; Other Equity Investments |
7.01(b) | Certain Liens |
7.02(h) | Certain Investments |
7.03 | Existing Indebtedness |
7.08 | Existing Affiliate Transactions |
11.02 | Administrative Agent’s Office; Certain Addresses for Notices |
EXHIBITS
| Form of |
A-1 | Committed Loan Notice |
A-2 | Conversion/Continuation Notice |
A-3 | Swing Line Loan Notice |
A-4 | Prepayment Notice |
A-5 | Swing Line Loan Prepayment Notice |
B | Revolving Credit Note |
C-1 | Australian Dollar Term A Note |
C-2 | Euro Term A Note |
C-3 | U.S. Dollar Term A Note |
C-4 | Term B Note |
D | Compliance Certificate |
E-1 | Assignment and Assumption |
E-2 | Administrative Questionnaire |
F | Incremental Joinder Agreement |
G-1 through G-4 | U.S. Tax Compliance Certificates |
H | Foreign Obligations Guaranty |
I | Borrower Joinder Agreement |
J | Estoppel |
K | U.S. Mortgage |
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of January 27, 2017 (this “Agreement”), among ACCO BRANDS CORPORATION, a Delaware corporation (“Holdings”), each Domestic Subsidiary of Holdings that becomes a party hereto pursuant to Section 1.09 by execution of a joinder hereto and is designated therein as a “U.S. Borrower” (together with Holdings, collectively, the “U.S. Borrowers”), ACCO Brands Australia Holding Pty. Ltd. (the “Australian Borrower”), each Foreign Subsidiary of Holdings that becomes a party hereto pursuant to Section 1.09 by execution of a joinder hereto and is designated therein as a “Foreign Borrower” (together with the Australian Borrower, collectively, the “Foreign Borrowers”; and the Foreign Borrowers together with the U.S. Borrowers, the “Borrowers”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as administrative agent (capitalized terms used but not defined in this preamble having the meaning given such terms in Article 1 below).
WITNESSETH
WHEREAS, Holdings entered into that certain Credit Agreement, dated as of March 26, 2012, among Holdings, certain Subsidiaries of Holdings party thereto from time to time, each lender from time to time party thereto, Barclays Bank PLC, as original administrative agent, and Bank of Montreal, as original multicurrency administrative agent (as amended by the First Amendment to Credit Agreement, dated December 10, 2012, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the Restatement Date (as defined below), the “Original Credit Agreement”);
WHEREAS, pursuant to the Original Credit Agreement, the Lenders (as defined in the Original Credit Agreement) extended credit in the form of (a) Term Loans (as defined in the Original Credit Agreement) on the Original Closing Date and the SpinCo Closing Date, as applicable, in an aggregate principal amount equal to $770,000,000 (or U.S. Dollar Equivalent thereof) and (b) Revolving Credit Loans (as defined in the Original Credit Agreement) at any time and from time to time prior to the applicable Maturity Date (as defined in the Original Credit Agreement) in an aggregate principal amount at any time outstanding not in excess of $250,000,000 (or U.S. Dollar Equivalent thereof);
WHEREAS, the Required Lenders (as defined in the Original Credit Agreement) and other parties to the Second Amendment to Credit Agreement agreed to amend and restate the Original Credit Agreement in its entirety to read as set forth in the Amended and Restated Credit Agreement dated as of May 13, 2013, among Holdings, certain Subsidiaries of Holdings from party thereto from time to time, each lender from time to time party thereto, Barclays Bank PLC, as original administrative agent, Bank of Montreal, as original multicurrency administrative agent, Bank of America, N.A., as successor administrative agent (as amended by the First Amendment to Amended and Restated Credit Agreement, dated July 19, 2013, as further amended by that Second Amendment to Credit Agreement, dated as of June 26, 2014, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Amended and Restated Credit Agreement”) to, among other things, (a) exchange and/or replace the existing U.S. Dollar Term A Loans (as defined in the Original Credit Agreement) with the Term A Loans, (b) prepay in full the Canadian Dollar Term A Loans (as defined in the Original Credit Agreement) to the extent not already paid, (c) prepay in full the existing Term B Loans (as defined in the Original Credit Agreement) and (d) replace the existing Revolving Credit Facilities (as defined in the Original Credit Agreement) with the Revolving Credit Facility and, in connection therewith, (1) the grants of security interests and Liens under and pursuant to the Loan Documents continued unaltered to secure, guarantee, support and otherwise benefit the Obligations of Holdings and the other Loan Parties under the Original Credit Agreement and each other Loan Document and each of the foregoing continued in full force and effect in accordance with its terms except as expressly amended thereby or by the Second Amendment, and
the parties thereto ratified and confirmed the terms thereof as being in full force and effect and unaltered by the Second Amendment and (2) it was agreed and understood that the Amended and Restated Credit Agreement did not constitute a novation, satisfaction, payment or reborrowing of any Obligation under the Original Credit Agreement or any other Loan Document except as expressly modified by the Amended and Restated Credit Agreement, nor did it operate as a waiver of any right, power or remedy of any Lender under any Loan Document;
WHEREAS, the Required Lenders (as defined in the Amended and Restated Credit Agreement) and other parties to the Third Amendment to Amended and Restated Credit Agreement agreed to amend and restate the Amended and Restated Credit Agreement in its entirety to read as set forth in the Second Amended and Restated Credit Agreement dated as of April 28, 2015, among Holdings, certain Subsidiaries of Holdings from time to time party thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative agent (as amended by the First Amendment to Second Amended and Restated Credit Agreement, dated July 7, 2015, as further amended by that Second Amendment and Additional Borrower Consent, dated as of May 1, 2016, and as further amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Second Amended and Restated Credit Agreement”) and to, among other things, (a) continue the existing Term A Loans (as defined in the Second Amended and Restated Credit Agreement), (b) make additional Term A Loans, (c) continue the Revolving Credit Facility (as defined below) and (d) make available additional Revolving Credit Commitments, and it was agreed by such parties that the “Obligations” under (and as defined in) the Amended and Restated Credit Agreement (including indemnification obligations) shall be governed by and deemed to be outstanding under the Second Amended and Restated Credit Agreement with the intent that the terms of the Second Amended and Restated Credit Agreement shall supersede the terms of the Amended and Restated Credit Agreement (which shall thereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Second Restatement Effective Date), and all references to the Original Credit Agreement or the Amended and Restated Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents continued unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrower and the other Loan Parties under the Original Credit Agreement, the Amended and Restated Credit Agreement and the Second Amended and Restated Credit Agreement and each other Loan Document and each of the foregoing continued in full force and effect in accordance with its terms except as expressly amended thereby or by the Third Amendment to Amended and Restated Credit Agreement, and the parties thereto ratified and confirmed the terms thereof as being in full force and effect and unaltered by the Third Amendment to Amended and Restated Credit Agreement and (2) it is agreed and understood that the Second Amended and Restated Credit Agreement did not constitute a novation, satisfaction, payment or re-borrowing of any Obligation under the Original Credit Agreement, the Amended and Restated Credit Agreement or any other Loan Document except as expressly modified by the Second Amended and Restated Credit Agreement, nor did it operate as a waiver of any right, power or remedy of any Lender under any Loan Document;
WHEREAS, the Required Lenders (as defined in the Second Amended and Restated Credit Agreement) and other parties to the Third Amendment have agreed to amend and restate the Second Amended and Restated Credit Agreement in its entirety to read as set forth in the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment and as further amended, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Third Amended and Restated Credit Agreement”) to, among other things, (a) reflect the repayment, in full, of the existing Term A Loans (as defined in the Second Amended and Restated Credit Agreement) on the Third Restatement Date, (b) continue the existing Australian Dollar Term A Loans (as defined below) as amended and restated by this Agreement, (c) establish a tranche of Euro-denominated Term A Loans in the form of the Euro Term A Loans, (d) continue the Revolving Credit Facility (as defined below) as
amended and restated by this Agreement and (e) make available additional Revolving Credit Commitments, and it has been agreed by such parties that the “Obligations” under (and as defined in) the Second Amended and Restated Credit Agreement (including indemnification obligations) shall be governed by and deemed to be outstanding under this Agreement with the intent that the terms of this Agreement shall supersede the terms of the Second Amended and Restated Credit Agreement (which shall hereafter have no further effect upon the parties thereto other than with respect to any action, event, representation, warranty or covenant occurring, made or applying prior to the Third Restatement Date), and all references to the Original Credit Agreement, the Amended and Restated Credit Agreement or the Second Amended and Restated Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof; provided that (1) the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrower and the other Loan Parties under the Original Credit Agreement, the Amended and Restated Credit Agreement, the Second Amended and Restated Credit Agreement and this Agreement and each other Loan Document and each of the foregoing shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby or by the Third Amendment, and the parties thereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement and (2) it is agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or re-borrowing of any Obligation under the Original Credit Agreement, the Amended and Restated Credit Agreement, the Second Amended and Restated Credit Agreement or any other Loan Document except as expressly modified by this Agreement, nor does it operate as a waiver of any right, power or remedy of any Lender under any Loan Document; and
WHEREAS, pursuant to the Second Amendment to Third Amended and Restated Credit Agreement (as defined below), Holdings has requested, and the Administrative Agent, the lenders party thereto and the other Persons party thereto have agreed, to amend this Agreement on the terms and conditions contained herein and pursuant to the Second Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Definitions and Accounting Terms
provided that (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (y) if the Agreed Currency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Anti-Cash Hoarding Prepayment Amount” has the meaning specified in Section 2.05.
“Anti-Cash Hoarding Prepayment Trigger Date” has the meaning specified in Section 2.05.
Pricing | Consolidated | EurodollarTerm SOFR / Daily SOFR / Agreed Currency Rate / SARON / GBP Daily Rate / Australian BBSR Rate /Canadian BA Rate / Daily LIBORSOFR / Australian Base Rate / Letter of Credit Fees (financial) | Base Rate | Letter of Credit Fees (commercial) | Letter of Credit Fees (performance) |
1 | > 4.50 to 1.00 | 2.50% | 1.50% | 0.55% | 1.250% |
2 | ≤ 4.50 to 1.00 and | 2.25% | 1.25% | 0.50% | 1.125% |
3 | ≤ 4.00 to 1.00 and > 3.50 to 1.00 | 2.00% | 1.00% | 0.45% | 1.000% |
4 | ≤ 3.50 to 1.00 and > 3.00 to 1.00 | 1.75% | 0.75% | 0.40 % | 0.875 % |
5 | ≤ 3.00 to 1.00 and > 2.00 to 1.00 | 1.50% | 0.50% | 0.30% | 0.750% |
6 | ≤ 2.00 to 1.00 | 1.25% | 0.25% | 0.25% | 0.625% |
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply).
“Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic marginal, special, supplemental, emergency or other reserves) are required to be maintained with respect thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D of the FRB) under regulations issued from time to time by the FRB or other applicable banking regulator. A Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credit for proration, exceptions or offsets that may be available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any change in the Applicable Reserve Requirement.
“Brazilian Real” and “BRL” means the lawful currency of the Brazil.
provided, that the foregoing definition shall be subject to the Agreed Security Principles. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or legal opinions with respect to particular assets or to obtain documentation from Persons not Affiliated with any Loan Party where it determines that perfection or the obtaining of such third party documentation cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
Pricing | Consolidated | Commitment Fee Rate |
1 | > 4.50 to 1.00 | 0.500% |
2 | ≤ 4.50 to 1.00 and > 4.00 to 1.00 | 0.375% |
3 | ≤ 4.00 to 1.00 and > 3.50 to 1.00 | 0.350% |
4 | ≤ 3.50 to 1.00 and > 3.00 to 1.00 | 0.300% |
5 | ≤ 3.00 to 1.00 and > 2.00 to 1.00 | 0.250% |
6 | ≤ 2.00 to 1.00 | 0.200% |
Any increase or decrease in the Commitment Fee Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered (and thereafter the Pricing Level otherwise determined in accordance with this definition shall apply).
“Daily LIBOR” means:
(i) the fluctuating rate of interest, which can change on each Business Day, equal LIBOR, or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 11:00 a.m., London time, two (2) Business Days prior to the date in question, for U.S. Dollar deposits with a term equivalent to a one (1) month term beginning on that date (in such case, the “LIBOR Rate”); and
(ii) (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate;
provided that (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (y) with respect to any Loan, the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Eurodollar Rate” means:
(i) for any Interest Period, with respect to any Credit Extension:
a) denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00 a.m. (London time) on the Interest Rate Determination Date, for deposits in the relevant currency, with a term equivalent to such Interest Period;
b) denominated in Euros, the rate per annum equal to the Euro Interbank Offered Rate (“EURIBOR”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “EURIBOR Rate”) at or about 11:00a.m. (Brussels, Belgium time) on the Interest Rate Determination Date with a term equivalent to such Interest Period;
c) denominated in a Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the relevant Lenders pursuant to Section 1.08; and
(ii) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m. (London time) determined two (2) Business Days prior to such date for Dollar deposits being delivered in the London interbank market for deposits in Dollars with a term of one (1) month commencing that day;
provided that (x) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (y) if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Eurodollar Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest at a rate based on the definition of “Eurodollar Rate”.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. Notwithstanding anything to the contrary contained herein, Permitted Pension Withdrawal Liability shall not constitute Indebtedness.
“LIBOR” has the meaning specified in the definition of “Eurodollar Rate”.
“LIBOR Quoted Currency” means each of the following currencies: U.S. Dollars; Euro; Pounds Sterling; Yen; and Swiss Franc; in each case as long as there is a published LIBOR rate with respect thereto.
“LIBOR Replacement Date” has the meaning specified in Section 3.03(b).
“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
“LIBOR Successor Rate” has the meaning specified in Section 3.03(b).
“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of Business Day, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.
“Related Adjustment” means, in determining any LIBOR Successor Rate, the first relevant available alternative set forth in the order below that can be determined by the Administrative Agent applicable to such LIBOR Successor Rate:
(A) the spread adjustment, or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the relevant Pre-Adjustment Successor Rate (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto) and which adjustment or method (x) is published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion or (y) solely with respect to Term SOFR, if not currently published, which was previously so recommended for Term SOFR and published on an information service acceptable to the Administrative Agent; or
(B) the spread adjustment that would apply (or has previously been applied) to the fallback rate for a derivative transaction referencing the ISDA Definitions (taking into account the interest period, interest payment date or payment period for interest calculated and/or tenor thereto).
The Commitments and Credit Extensions
Each Revolving Credit Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such
Borrower’s instructions or other irregularity, such Borrower will promptly notify the L/C Issuer. Each Revolving Credit Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(ii) In the event that at the end of any Business Day (other than, with respect to the proceeds of Revolving Loans and Swing Line Loans borrowed during the ten (10) Business Days immediately prior to date of the Pioneer Acquisition in order to fund the Pioneer Acquisition, the ten (10) Business Days immediately prior to the date of the Pioneer Acquisition), Revolving Credit Loans or Swing Line Loans are outstanding and the aggregate amount of cash and Cash Equivalents of the Loan Parties are in excess of $100,000,000 (such date, the “Anti-Cash Hoarding Prepayment Trigger Date”, and the amount of cash and Cash Equivalents exceeding $100,000,000 on such date, the “Anti-Cash Hoarding Prepayment Amount”), no later than two (2) Business Days after the Anti-Cash Hoarding Prepayment Trigger Date, the Revolving Credit Borrowers shall, notwithstanding Section 2.05(b)(vii), prepay first, Swing Line Loans and second, Revolving Credit Loans, in an aggregate principal amount equal to the lesser of (i) the Anti-Cash Hoarding Prepayment Amount and (ii) the amount of Revolving Credit Loans and Swing Line Loans outstanding on such date.
A notice of the Administrative Agent to any Lender, the L/C Issuer, Holdings or a Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error.
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
Taxes, Yield Protection and Illegality
Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 3.01(c)(ii). The agreements in this Section 3.01(c)(ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.
(a) Thereafter, (x) the obligation of the Lenders to make or maintain EurodollarAgreed Currency Rate Loans, SARON Loans, Australian BBSR Rate Loans, GBP Daily Rate Loans or Canadian BA Rate Loans (or such other applicable Loans in an Alternative Currency) shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar RateSOFR component of the Base Rate, the utilization of the Eurodollar RateSOFR component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.
Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of EurodollarAgreed Currency Rate Loans, SARON Loans, Australian BBSR Rate Loan, GBP Daily Rate Loans or Canadian BA Rate Loans (or such other applicable Loan in an Alternative Currency) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in U.S. Dollars (in the case of EurodollarAgreed Currency Rate Loans). Notwithstanding the foregoing, in the case of a pending request for a continuation in an Alternative Currency as to which the Administrative Agent has made the determination described in clause Section 3.03(a)(i) of the first sentence of this paragraph, Holdings, the Administrative Agent and the Required Lenders may establish a mutually acceptable alternative interest rate that reflects the all-in-costs of funds to such Lenders for funding Loans in the applicable currency and amount, and with the same Interest Period as the Canadian BA Rate Loan, GBP Daily Rate Loan or Australian BBSR Rate Loan (or such other applicable Loan in an Alternative Currency) being requested to be made or continued, as the case may be (the “Impacted Loans”) in which case such alternative rate of interest shall apply with respect to the Impacted Loans until (x) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause Section 3.03(a)(i) of the first sentence of this paragraph, (y) the Required Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans or (z) any Lender determines that any Law has made it unlawful or that any Governmental Authority has asserted that it is unlawful for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or change interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and Holdings written notice thereof.
(iii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over such administrator has made a public statement announcing that all Interest Periods and other tenors of LIBOR are no longer representative; or
(iv) syndicated loans currently being executed, or that include language similar to that contained in this Section 3.03, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, in the case of clauses (i)-(iii) above, on a date and time determined by the Administrative Agent (any such date, the “LIBORTerm SOFR Replacement Date”), which date shall be, in the case of Term SOFR Loans, at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and shall occur reasonably promptly upon the occurrence of any of the events or circumstances under clauses (i), (ii) or (iii) above and, solely with respect to clause (iiy) above, no later than the SOFR Scheduled Unavailability Date, LIBORTerm SOFR will be replaced hereunder and under any Loan Document with, subject to the proviso below, the first available alternative set forth in the order below Daily SOFR for any payment period for interest calculated that can be determined by the Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “LIBOR Successor Rate”; and any such rate before giving effect to the Related Adjustment, the “Pre-Adjustment Successor Rate”):.
(x) Term SOFR plus the Related Adjustment; and
(y) SOFR plus the Related Adjustment;
and in the case of clause (iv) above, the Borrower andNotwithstanding anything to the contrary herein, (A) if the Administrative Agent determines that Daily SOFR is not available on or prior to the Term SOFR Replacement Date, or (B) if the events or circumstances of the type described in Section 3.03(b)(i) or Section 3.03(b)(ii) have occurred with respect to the SOFR Successor Rate then in effect, then in each case, the Administrative Agent and the Borrower may amend this Agreement and the other Loan Documents solely for the purpose of replacing LIBOR under this Agreement and under any other Loan DocumentTerm SOFR or any then current SOFR Successor Rate in accordance with the definition of “LIBOR this Section 3(b) at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such alternative benchmark. and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “SOFR Successor Rate” and. Any such amendment willshall become effective at 5:00 p.m., on the fifth Business Day after the Administrative Agent shall have notifiedposted such proposed amendment to all Lenders and the Borrower of the occurrence of the circumstances described in clause (iv) above unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to the implementation of a LIBOR Successor Rate pursuant to such clause;such amendment.
provided that, if the Administrative Agent determines that Term SOFR has become available, is administratively feasible for the Administrative Agent and would have been identified as the Pre-Adjustment Successor Rate in accordance with the foregoing if it had been so available at the time that the LIBOR Successor Rate then in effect was so identified, and the Administrative Agent notifies the 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 Pre-Adjustment Successor Rate shall be Term SOFR and the LIBOR Successor Rate shall be Term SOFR plus the relevant Related Adjustment.
The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of (x) any occurrence of any of the events, periods or circumstances under clauses (i) through (iii) above, (y) a LIBOR Replacement Date and (z) the LIBOR Successor Rate.
Any LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, in no event will any LIBOR Successor Rate for any Loan be less than zero percent, for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such LIBOR Successor Rate Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
If the events or circumstances of the type described in 3.03(c)(i)-(iii) have occurred with respect to the LIBOR Successor Rate then in effect, then the successor rate thereto shall be determined in accordance with the definition of “LIBOR Successor Rate.
(c) Notwithstanding anything to the contrary herein, (i) after any such determination by the Administrative Agent or receipt by the Administrative Agent of any such notice described under Section 3.03(b)(i)-(iii), as applicable, if the Administrative Agent determines that none of the LIBOR Successor Rates is available on or prior to the LIBOR Replacement Date, (ii) if the events or circumstances described in Section 3.03(b)(iv) have occurred but none of the LIBOR Successor Rates is available, or (iii)or if the events or circumstances of the type described in Section 3.03(bc) (i)- or (iiiii) have occurred with respect to the LIBOR Successor Rate then in effect and the Administrative Agent determines that none of the LIBOR Successor Rates is available, then in each case, the Administrative Agent and the BorrowerBorrowers may amend this Agreement solely for the purpose of replacing LIBORthe Relevant Rate for an Agreed Currency or any then current LIBOR Successor Rate for an Agreed Currency in accordance with this Section 3.03 at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, (x) with another alternate benchmark rate reasonably acceptable to the Administrative Agent and the Borrowers giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks or (y) with another alternatewith an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar non-U.S. dollarcredit facilities syndicated and agented in the U.S. and denominated syndicated credit facilitiesin such Agreed Currency for such alternative benchmarks, and, in each case, including any Related Adjustments and any other mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollarcredit facilities syndicated and agented in the U.S. and denominated syndicated credit facilitiesin such Agreed Currency for such benchmarks, or any evolving or then existing convention for similar non-U.S. dollar denominated syndicated credit facilities for such benchmarks, as applicable, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For (and any such proposed rate, including for the avoidance of doubt, any such proposed rate and adjustments shall constitute a LIBORadjustment thereto, a “Non-SOFR Successor Rate. Any”, and collectively with the SOFR Successor Rate, each a “Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the BorrowerBorrowers unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders object to such amendment.
(d) If, at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, no LIBOR Successor Rate has been determined in accordance with clauses (b) or (c) of this Section 3.03 and the circumstances under clauses (b)(i) or (b)(iii) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate, until the LIBOR Successor Rate has been determined in accordance with clauses (b) or (c). Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar
Rate Loans (to the extent of the affected Eurodollar Rate Loans, Interest Periods, interest payment dates or payment periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.
The Administrative Agent will promptly (in one or more notices) notify the Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than zero percent, the Successor Rate will be deemed to be zero percent for the purposes of this Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such Conforming Changes to the Borrower and the Lenders reasonably promptly after such amendment becomes effective.
For purposes of this Section 3.03, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in the relevant Alternative Currency shall be excluded from any determination of Required Lenders.
and the result of any of the foregoing shall be to increase the cost to the Administrative Agent, the L/C Issuer or any Lender of making, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Administrative Agent, any Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of the Administrative Agent, such Lender or the L/C Issuer, the Borrowers will pay to the Administrative Agent, such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate the Administrative Agent, such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
including any foreign exchange losses or loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each EurodollarSOFR Loan, each Agreed Currency Rate Loan, each SARON Loan, each Australian BBSR Rate Loan, each GBP Daily Rate Loan or each Canadian BA Rate Loan, as applicable, made by it at the EurodollarSOFR, Agreed Currency Rate, Australian BBSR Rate or the Canadian BA Rate, as applicable, for such Loan by a matching deposit or other borrowing in the London, Australian, Canadian or other offshore interbank market, as applicable, for the applicable currency for a comparable amount and for a comparable period, whether or not such EurodollarSOFR Loan, Agreed Currency Rate Loan, SARON Loan, Australian BBSR Rate Loan, GBP Daily Rate Loan or Canadian BA Rate Loan was in fact so funded. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender, as specified in this Section 3.05, delivered to Holdings shall be conclusive absent manifest error.
Conditions Precedent
Each Request for Credit Extension (other than a Conversion/Continuation Notice) submitted by any Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.03(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
Representations and Warranties
Each Borrower represents and warrants to the Administrative Agent and the Lenders on the Second Amendment Closing Date (other than, with respect to the making of representations and warranties on the Second Amendment Closing Date, with respect to those Subsidiaries of Holdings listed on Schedule 6.11) and on the date of each Credit Extension as contemplated by Section 4.03(a) or otherwise that:
Affirmative Covenants
From and after the Second Amendment Closing Date, so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements and Specified Supply Chain Agreements as to which arrangements satisfactory to the applicable Cash Management Bank, Hedge Bank or Supply Chain Finance Bank shall have been made) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit (other than Letters of Credit, the L/C Obligations for which have been Cash Collateralized or as to which other arrangements satisfactory to the L/C Issuer have been made) shall remain outstanding, each Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03, 6.14 and 6.16) cause each of its Subsidiaries to:
As to any information contained in materials furnished pursuant to Section 6.02(c), Holdings shall not be required separately to furnish such information under paragraph (a) or (b) above, but the foregoing shall not be in derogation of the obligation of Holdings to furnish the information and materials described in paragraph (a) or (b) above at the times specified therein.
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) or referred to in Section 6.03(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (1) on which the applicable Borrower posts such documents or provides a link thereto on the applicable Borrower’s website on the Internet at the website address listed on Schedule 11.02; or (2) on which such documents are posted on the applicable Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) each Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) each Borrower shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above and, in any event, shall have no responsibility to monitor compliance by the Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, each Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States federal and state securities laws (“MNPI”) (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information” (and the Administrative Agent agrees that only Borrower Material marked “PUBLIC” will be made available on such portion of the Platform) and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform that is not designated “Public Side Information”.
Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall be accompanied by a statement of a Responsible Officer of the applicable Borrower setting forth details of the occurrence referred to therein and stating what action such Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
Negative Covenants
From and after the Second Amendment Closing Date, so long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent indemnification obligations as to which no claim has been asserted and obligations and liabilities under Secured Cash Management Agreements, Secured Hedge Agreements or Specified Supply Chain Agreements as to which arrangements satisfactory to the applicable Cash Management Bank, Hedge Bank or Supply Chain Finance Bank shall have been made) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit (other than Letters of Credit, the L/C Obligations for which have been Cash Collateralized or as to which other arrangements satisfactory to the L/C Issuer have been made) shall remain outstanding, no Borrower shall, nor shall it permit any of its Subsidiaries to, directly or indirectly:
Notwithstanding anything to contrary herein, no Subsidiary shall be permitted to guarantee the SpinCo Notes unless such Subsidiary also guarantees the Obligations.
Events of Default and Remedies
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower or any Guarantor under any Debtor Relief Law of the United States or any other jurisdiction designated by the Administrative Agent in the Borrower Joinder Agreement pursuant to which a Subsidiary is added as a Borrower in accordance with Section 1.09, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
Administrative Agent
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until it shall have received written notice from a Lender, the L/C Issuer or any Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default”.
No Agent or any of its Related Parties shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than, in the case of the Administrative Agent, to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Any resignation by an entity serving as the Administrative Agent pursuant to this Section 9.06 shall also constitute its resignation as the L/C Issuer and Swing Line Lender, if applicable. Upon the acceptance of a successor’s appointment as the Administrative Agent, as the case may be, hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, if applicable, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents and (iii) the successor L/C Issuer shall issue Letters of Credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
and any custodian, receiver, assignee, trustee, liquidator, administrator, Controller, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
Without limitation of any other provision in this Agreement, if at any time the Administrative Agent makes a payment hereunder in error to any Lender or any L/C Issuer (the “Credit Party”), whether or not in respect of an Obligation due and owing by the Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Credit Party receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith on demand the Rescindable Amount received by such Credit Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Each Credit
Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. The Administrative Agent shall inform each Credit Party promptly upon determining that any payment made to such Credit Party comprised, in whole or in part, a Rescindable Amount.
Debt Allocation Mechanism
Miscellaneous
and, provided, further, that (A) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document, in each case, relating to any Letter of Credit issued or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; and (C) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment) (provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient) and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer and, in respect of the Collateral Documents, any other Secured Party; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) each of the L/C Issuer and the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender, upon notice to the Administrative Agent, from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13) or (d) any Secured Party from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law unless the Administrative Agent has already done so or has stated that it will do so; provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c), and (d) of the preceding proviso and subject to Section
2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section 11.06, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.03 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 11.06.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. Subject to subsection (e) of this Section 11.06, each Loan Party agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.03 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 11.06. To the extent permitted by law, each Participant shall also be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrowers (such agency being solely for tax purposes), maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) and Proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
For purposes of this Section 11.07, “Information” means all information received from Holdings or any Subsidiary relating to Holdings or any Subsidiary or any of their respective businesses (including information regarding potential acquisitions or dispositions) other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a non-confidential basis prior to disclosure by Holdings or any Subsidiary; provided that in the case of information received from Holdings or any Subsidiary after the Original Closing Date such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
The Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning Holdings or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States federal and state securities Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
Each Lender and each L/C Issuer hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender or such L/C Issuer, as the case may be, as assignor, any Assignment and Assumption necessary to effectuate or document any assignment of such Lender’s or the L/C Issuer’s interests hereunder in the circumstances contemplated by this Section 11.13.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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EXHIBIT B
Exhibits A-1 to A-5 to the Credit Agreement
[To be attached]
EXHIBIT A-1 TO
CREDIT AGREEMENT
FORM OF COMMITTED LOAN NOTICE
[MM/DD/YY]
To: Bank of America, N.A., as Administrative Agent
Reference is made to the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of
July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021, the Sixth Amendment dated as of November [ ], 2022 and as it may further be amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among ACCO BRANDS CORPORATION (“Holdings”), certain Subsidiaries of Holdings from time to time party thereto, each Lender from time to time party thereto and BANK OF AMERICA, N.A., as Administrative Agent.
The undersigned (the “Borrower”) hereby requests (select one):
A Borrowing of [Australian Dollar][Euro][U.S. Dollar] Term [A][B] Loans on [INSERT BUSINESS DAY]
FORMCHECKBOX | [Term SOFR Loans, with an initial Interest Period of ________ month(s)]: | [$][€][___,___,___] |
FORMCHECKBOX | [Australian BBSR Rate Loans, with an initial Interest Period of ________ month(s)]: | AUD[___,___,___] |
FORMCHECKBOX | [Daily SOFR Loans or Base Rate Loans]: | $[___,___,___] |
A Borrowing of [Revolving Credit Loans] [Incremental Revolving Loans] on [INSERT BUSINESS DAY]
FORMCHECKBOX | Daily SOFR Loans or Base Rate Loans: | [$][___,___,___] |
FORMCHECKBOX | Term SOFR Loans, with an initial Interest Period of ________ month(s): | [$][___,___,___] |
FORMCHECKBOX | Canadian BA Rate Loans, with an initial Interest Period of ________ month(s): | Cdn.$[___,___,___] |
FORMCHECKBOX | Australian BBSR Rate Loans, with an initial Interest Period of ________ month(s): | AUD[___,___,___] |
The [Revolving Credit Borrowing] [Incremental Borrowing of Incremental Revolving Loans] requested herein complies with Section 2.01(e) of the Credit Agreement. |
The account of the Borrower to which the proceeds of the Loans are to be made available by the Administrative Agent to the Borrower are as follows:
Bank Name: _______________________
Bank Address: _______________________
ABA Number: _______________________
Account Number: _______________________
Attention: _______________________
Reference: _______________________
The Borrower hereby represents and warrants that the conditions specified in Sections 4.03(a) and (b) of the Credit Agreement shall be satisfied on and as of the date of the applicable Credit Extension.
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Date: [MM/DD/YY] [ACCO BRANDS CORPORATION]
[ACCO BRANDS AUSTRALIA HOLDING PTY. LTD.]
[REVOLVING CREDIT BORROWER],
as Borrower
By: ___________________________________
Name:
Title:
EXHIBIT A-2 TO
CREDIT AGREEMENT
FORM OF CONVERSION/CONTINUATION NOTICE
[MM/DD/YY]
To: Bank of America, N.A., as Administrative Agent
Reference is made to the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021, the Sixth Amendment dated as of November [ ], 2022 and as it may further be amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among ACCO BRANDS CORPORATION (“Holdings”), certain Subsidiaries of
Holdings from time to time party thereto, each Lender from time to time party thereto and BANK OF AMERICA, N.A., as Administrative Agent.
Pursuant to Section 2.02(a) of the Credit Agreement, the Borrower desires to convert or to continue the following Loans, each such conversion and/or continuation to be effective as of [_________], 20[__]:
1. [Australian Dollar][Euro][U.S. Dollar] Term [A][B] Loans:
[$][€][___,___,___] | Term SOFR Loans to be continued with an Interest Period of [____] month(s) |
|
|
[$][€][___,___,___] | Term SOFR Loans to be converted to Base Rate Loans
|
[$][€][___,___,___] | Term SOFR Loans to be converted to Daily SOFR Loans |
|
|
[$][€][___,___,___] | Base Rate Loans to be converted to Term SOFR Loans with an Interest Period of [____] month(s) |
AUD[___,___,___] | Australian BBSR Rate Loans to be continued with an Interest Period of [____] month(s) |
2. [Revolving Credit Loans] [Incremental Revolving Loans]:
[$][___,___,___] | Term SOFR Loans to be converted to Base Rate Loans
|
[$][___,___,___] | Term SOFR Loans to be converted to Daily SOFR Loans |
|
|
[$][___,___,___] | Term SOFR Loans to be continued with an Interest Period of [____] month(s) |
|
|
Cdn.$[___,___,___]
| Canadian BA Rate Loans to be continued with an Interest Period of [____] month(s) |
AUD[___,___,___]
| Australian BBSR Rate Loans to be continued with an Interest Period of [____] month(s) |
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Date: [MM/DD/YY] [ACCO BRANDS CORPORATION]
[ACCO BRANDS AUSTRALIA HOLDING PTY. LTD.] [REVOLVING CREDIT BORROWER],
as Borrower
By: ___________________________________
Name:
Title:
EXHIBIT A-3 TO
CREDIT AGREEMENT
FORM OF SWING LINE LOAN NOTICE
[MM/DD/YY]
To: Bank of America, N.A., as Swing Line Lender
C.C.: Bank of America, N.A., as Administrative Agent
Reference is made to the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021, the Sixth Amendment dated as of November [ ], 2022 and as it may further be amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among ACCO BRANDS CORPORATION (“Holdings”), certain Subsidiaries of Holdings from time to time party thereto, each Lender from time to time party thereto and BANK OF AMERICA, N.A., as Administrative Agent.
Pursuant to Section 2.04(b) of the Credit Agreement, the undersigned (the “Borrower”) hereby requests a Swing Line Loan:
1. On (a Business Day).
2. In the amount of [$][AUD] comprising [Daily SOFR Loans][Australian Base Rate Loans]. The Swing Line Borrowing requested herein complies with the requirements of Section 2.04 of the Credit Agreement.
The account of the Borrower to which the proceeds of the Swing Line Loans to be made available by the Swing Line Lender to the Borrower are as follows:
Bank Name: _______________________
Bank Address: _______________________
ABA Number: _______________________
Account Number: _______________________
Attention: _______________________
Reference: _______________________
The Borrower hereby represents and warrants that the conditions specified in Sections 4.03(a) and (b) of the Credit Agreement shall be satisfied on and as of the date of the applicable Credit Extension.
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Date: [MM/DD/YY] [U.S. Revolving Credit Borrower]
[AUSTRALIAN BORROWER],
as Borrower
By: ___________________________________
Name:
Title:
EXHIBIT A-4 TO
CREDIT AGREEMENT
FORM OF PREPAYMENT NOTICE
[MM/DD/YY]
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021, the Sixth Amendment dated as of November [ ], 2022 and as it may further be amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among ACCO BRANDS CORPORATION (“Holdings”), certain Subsidiaries of Holdings from time to time party thereto, each Lender from time to time party thereto and BANK OF AMERICA, N.A., as Administrative Agent.
The undersigned (the “Borrower”) hereby gives you notice pursuant to Section 2.05(a)(i) of the Credit Agreement that it shall be making an optional prepayment under the Credit Agreement:
(A) | Prepayment date |
|
(B) | Type of Borrowing being repaid | [[U.S. Dollar ][Australian Dollar][Euro] Term [A][B] Loan] |
(C) | Type of rate on Loan that is being prepaid | [Term SOFR Loans] [Daily SOFR Loans] [Base Rate Loans] [Canadian BA Rate Loans] [Australian BBSR Rate Loans]
|
(D) | Amount being prepaid |
|
(E) | Interest Periods |
|
(F) | Any voluntary prepayment set forth in this notice shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 of the Credit Agreement. Subject to Section 2.16 thereof, each such prepayment of the outstanding Term Loans pursuant to Section 2.05(a)(i) thereof shall be applied as directed by the applicable Borrower to the installments thereof. All payments made pursuant to Section 2.05(a) of the Credit Agreement shall be applied on a pro rata basis to each Lender holding Loans of the applicable Facility being prepaid.
|
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Date: [MM/DD/YY] [ACCO BRANDS CORPORATION]
[ACCO BRANDS AUSTRALIA HOLDING PTY. LTD.]
[REVOLVING CREDIT BORROWER],
as Borrower
By: ___________________________________
Name:
Title:
EXHIBIT A-5 TO
CREDIT AGREEMENT
FORM OF SWING LINE LOAN PREPAYMENT NOTICE
[MM/DD/YY]
To: Bank of America, N.A., as Swing Line Lender
C.C.: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to the Third Amended and Restated Credit Agreement, dated as of January 27, 2017 (as amended by the First Amendment to Third Amended and Restated Credit Agreement, dated as of July 26, 2018, the Second Amendment to Third Amended and Restated Credit Agreement, dated as of May 23, 2019, the Third Amendment to Third Amended and Restated Credit Agreement, dated as of May 1, 2020, the Fourth Amendment to Third Amended and Restated Credit Agreement, dated as of November 10, 2020, the Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of to March 31, 2021, the Libor Transition Amendment dated as of December 8, 2021, the Sixth Amendment dated as of November [ ], 2022 and as it may further be amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among ACCO BRANDS CORPORATION (“Holdings”), certain Subsidiaries of Holdings from time to time party thereto, each Lender from time to time party thereto and BANK OF AMERICA, N.A., as Administrative Agent.
The undersigned (the “Borrower”) hereby gives you notice pursuant to Section 2.05(a)(ii) of the Credit Agreement that it shall be making a prepayment under the Credit Agreement:
Swing Line Loan:
(A) | Prepayment date |
|
(B) | Amount being prepaid |
|
(C) | Type of Swing Line Loan being prepaid | [Daily SOFR Loan][Australian Base Rate Loan] |
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Date: [MM/DD/YY] [U.S. Revolving Credit Borrower]
[AUSTRALIAN BORROWER],
as Borrower
By: ___________________________________
Name:
Title: