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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Kronos Worldwide Inc | NYSE:KRO | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|
0.40 | 3.52% | 11.77 | 11.96 | 11.35 | 11.40 | 386,137 | 21:00:08 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2.):
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Acquisition of Remaining Joint Venture Interest in LPC
Pursuant to a Purchase and Sale Agreement dated as of July 16, 2024 (the “Effective Date”) among Kronos Worldwide, Inc. (“Kronos”), Kronos Louisiana, Inc. (“KLA”), Venator Materials PLC and Venator Investments Ltd. (the “Purchase and Sale Agreement”), Kronos’ wholly-owned subsidiary KLA acquired the 50% joint venture interest in Louisiana Pigment Company, L.P. (“LPC”) held by Venator Investments, Ltd., effective as of the Effective Date. Prior to the acquisition, KLA held a 50% joint venture interest in LPC. Following the acquisition, LPC is an indirect, wholly-owned subsidiary of Kronos. Kronos acquired the 50% joint venture interest that it did not already own for an upfront cash payment of $185 million (subject to working capital adjustments) and a potential earn-out payment of up to $15 million based on aggregate consolidated net income before interest expense, income taxes and depreciation expense, or EBITDA, of Kronos during a two-year period comprising calendar years 2025 and 2026. The aggregate EBITDA tiers for the two-year earn-out period are $650 million and $730 million, with $5 million of the earnout payable if Kronos achieves $650 million in aggregate consolidated EBITDA, and a maximum of $15 million payable if aggregate EBITDA is $730 million or greater for the period. If Kronos achieves aggregate consolidated EBITDA between $650 million and $730 million, the payment of the additional $10 million is pro-rated between the two targets. The earn-out is payable at the earliest in April 2027.
The acquisition was financed through a borrowing of approximately $132 million under Kronos’ global revolving credit facility with the remainder paid with cash on hand. Kronos will report LPC as a wholly-owned subsidiary beginning with its third quarter Form 10-Q filing.
A copy of the Purchase and Sale Agreement is attached as Exhibit 10.1 to this Current Report and is incorporated herein by reference. The foregoing description of the Purchase and Sale Agreement does not purport to be complete and is qualified in its entirety by reference to the Purchase and Sale Agreement.
Amendment to Credit Agreement
On July 17, 2024, Kronos together with its direct or indirect operating subsidiaries KLA, Kronos (US), Inc., Kronos Canada, Inc., Kronos Europe NV, and Kronos Titan GmbH, entered into an amendment (the “Second Amendment”) to its Credit Agreement dated as of April 20, 2021 (the “Credit Agreement”) with Wells Fargo Bank, National Association, as administrative agent, and the lenders a party thereto.
Among other things, the Second Amendment (a) increases the maximum borrowings under the Credit Agreement’s asset-based revolving credit facility (the “Global Revolver”) from $225 million to $300 million, (b) extends the maturity date of the Global Revolver to July 2029, and (c) expands the agreement to include LPC (as defined below) and LPC’s receivables and certain of its inventories in the borrowing base. Giving effect to the Second Amendment, the Credit Agreement:
Kronos will pay an upfront fee of 50 basis points plus other customary ancillary fees for completion of the Second Amendment. Within thirty days from the completion of the transaction described above, LPC and Kronos LPC, LLC will become guarantors and pledgors under the Credit Agreement.
A copy of the Second Amendment is attached as Exhibit 10.2 to this Current Report and is incorporated herein by reference. The foregoing description of the Second Amendment does not purport to be complete and is qualified in its entirety by reference to the Second Amendment.
Item 2.02Results of Operations and Financial Condition.
Preliminary Second Quarter 2024 Update
The preliminary, unaudited financial information for the second quarter and expectations for the full fiscal year 2024 included in this Current Report on Form 8-K are based on information available to management of Kronos as of July 17, 2024. It remains subject to change based on management’s ongoing review of the second quarter and first six months results. The actual results remain subject to the completion of the preparation of management’s and the audit committee’s reviews and Kronos’ other financial closing procedures as well as the completion of the preparation of Kronos’ consolidated financial results for the three and six-month periods ended June 30, 2024. During that process, management may identify items that would require Kronos to make adjustments, which could be material, to the information presented in this Current Report on Form 8-K. While Kronos does not expect its actual results for the three-month period ended June 30, 2024 will vary materially from the preliminary, unaudited financial results presented in this Current Report on Form 8-K, there can be no assurance that these estimates will be realized or that the sales, EBITDA, or capital expenditure amounts for the three-month period ended June 30, 2024, cash balance at the end of that period, or operating results during that period will equal or fall within the ranges of the values set forth below. Actual results could be materially different and are affected by the risk factors and uncertainties identified in this Current Report on Form 8-K and in Kronos’ filings with the Securities and Exchange Commission. For these or other reasons, the actual results for this period could differ materially from these preliminary estimates.
Kronos expects to report net sales for the second quarter of 2024 in the range of $495 million to $510 million compared to net sales of $443.2 million reported in the second quarter of 2023 and $478.8 million in the first quarter of 2024. The expected increase in net sales in the second quarter is primarily due to the effect of higher sales volumes in all major markets. TiO2 sales volumes in the second quarter of 2024 are expected to be approximately 134,000 metric tons which is 29% higher than the second quarter of 2023 and 3% higher than the first quarter of 2024. Compared to the second quarter of 2023 the increase in net sales was somewhat offset by lower average TiO2 selling prices; however, compared to the first quarter of 2024 slightly higher average TiO2 selling prices favorably impacted net sales. TiO2 production volumes in the second quarter of 2024 are expected to be approximately 137,000 metric tons, which is 54% higher than the second quarter of 2023 and 13% higher than the first quarter of 2024.
Kronos expects second quarter 2024 EBITDA, a non-GAAP financial measure, to be in the range of $49 million to $56 million compared to EBITDA of $3.6 million for the second quarter of 2023 and $31.7 million for the first quarter of 2024. The second quarter 2024 EBITDA is impacted by approximately $2 million of charges related to workforce reductions as a result of the shut-down of Kronos’ sulfate production line in Canada described in more detail below. Kronos expects capital expenditures to be in the range of $3 million to $4 million for the second quarter of 2024 compared to $18 million for the second quarter of 2023 and $5 million for the first quarter of 2024. As of June 30, 2024, Kronos had cash, cash equivalents and restricted cash of between $135 million and $145 million, compared with $127.3 million as of March 31, 2024, with total liquidity as of June 30, 2024 of between $360 million and $370 million, inclusive of committed amounts under Kronos’ $225 million Global Revolver (availability of which is subject to a borrowing base and prior to giving effect to the Second Amendment described above). Excluding the effects of changes in currency exchange rates, Kronos’ outstanding long-term debt balances at June 30, 2024 are unchanged from balances reported at March 31, 2024.
Full Year 2024 Outlook
During the second quarter of 2024 customer demand continued to improve across all major markets, although overall demand levels remain below historical averages. Based on the recently improved demand and Kronos’ expectation that demand will continue to improve in 2024, along with the severe demand contraction Kronos experienced during most of 2023, Kronos expects sales volumes in 2024 to exceed 2023 sales volumes. Kronos has increased production rates in line with the current and expected near-term improved demand and believes its production rates for the remainder of 2024 will continue to be higher than comparable periods in 2023. Kronos has implemented TiO2 selling price increases, which need to continue to be realized to achieve margins more in-line with historical levels.
Throughout 2023, Kronos implemented cost reduction initiatives designed to improve its long-term cost structure, including targeted workforce reductions. In April 2024, Kronos announced plans to close the sulfate process line at its facility in Canada, which will further improve gross margins after the charges (primarily non-cash) related to the closure are recognized in the second and third quarters. In this regard, in addition to the approximately $2 million in cash charges related to workforce reductions noted above, Kronos expects to recognize non-cash charges of approximately $10 million in the second quarter and approximately $5 million in the third
quarter related to accelerated depreciation. Raw material, energy and other input costs have generally improved compared to 2023. While the full positive impact of input cost improvements and cost reduction efforts are not yet fully reflected in Kronos’ gross margin, Kronos did experience improved gross margins during the second quarter that it expects to build on over the remainder of the year as it replaces higher cost inventory with lower cost inventory produced in 2024. Overall, if Kronos experiences improved demand, higher selling prices and lower production costs, including lower unabsorbed fixed costs, as it currently anticipates, Kronos expects to report higher operating results for the full year of 2024 as compared to 2023.
Non-GAAP Financial Information
Kronos discloses EBITDA, which is also used by Kronos’ management to assess the performance of its TiO2 operations. Kronos believes disclosure of EBITDA, taken in conjunction with Kronos’ results under GAAP, provides useful information to investors because it allows investors to analyze the performance of its TiO2 operations in the same way that Kronos’ management assesses performance. Kronos defines EBITDA as net income (loss) before interest expense, income taxes, and depreciation and amortization expense.
Because Kronos has not yet completed its quarter-end closing process and because of the forward-looking nature of the estimates and assumptions included in the expected EBITDA range presented above for the second quarter of 2024, management does not have specific quantifications of the amounts that would be required to provide a reconciliation of net income, the most directly comparable financial measure calculated and presented in accordance with GAAP, to EBITDA for the three-month period ended June 30, 2024. Kronos believes there is a degree of variability with respect to certain of the GAAP measures and certain adjustments made to arrive at the relevant non-GAAP measure that precludes it from providing an accurate preliminary estimate of a GAAP to non-GAAP reconciliation without unreasonable effort or expense. As a result, Kronos believes providing estimates of the amounts that would be required to reconcile the range of its expected EBITDA would imply a degree of precision that would be confusing or misleading to investors for the reasons identified above. Kronos intends to present its final EBITDA for the three and six-month periods ended June 30, 2024, with a reconciliation to net income, when it releases its earnings report for such periods.
Forward-Looking Statements
The statements in this Current Report on Form 8-K relating to matters that are not historical facts are forward-looking statements that represent management’s beliefs and assumptions based on currently available information. These forward-looking statements include, among others, statements regarding the potential effect of the LPC acquisition, expected second quarter 2024 results and management’s outlook for 2024 including the realization of potential cost savings. Although Kronos believes the expectations reflected in such forward-looking statements are reasonable, it cannot give any assurances that these expectations will prove to be correct. Such statements by their nature involve substantial risks and uncertainties that could significantly impact expected results, and actual future results could differ materially from those described in such forward-looking statements. The factors that could cause actual future results to differ materially include, but are not limited to, the following:
● | Future supply and demand for our products |
● | Our ability to realize expected cost savings from strategic and operational initiatives |
● | Our ability to integrate acquisitions, including LPC, into our operations and realize expected synergies and innovations |
● | The extent of the dependence of certain of our businesses on certain market sectors |
● | The cyclicality of our business |
● | Customer and producer inventory levels |
● | Unexpected or earlier-than-expected industry capacity expansion |
● | Changes in raw material and other operating costs (such as energy and ore costs) |
● | Changes in the availability of raw materials (such as ore) |
● | General global economic and political conditions that harm the worldwide economy, disrupt our supply chain, increase material and energy costs, reduce demand or perceived demand for our TiO2 products, or impair our ability to operate our facilities (including changes in the level of gross domestic product in various regions of the world, natural disasters, terrorist acts, global conflicts, and public health crises) |
● | Operating interruptions (including, but not limited to, labor disputes, leaks, natural disasters, fires, explosions, unscheduled or unplanned downtime, transportation interruptions, certain regional and world events or economic conditions, and public health crises) |
● | Technology related disruptions (including, but not limited to, cyber-attacks; software implementation, upgrades or improvements; technology processing failures; or other events) related to our technology infrastructure that could impact our ability to continue operations, or at key vendors which could impact our supply chain, or at key customers which could impact their operations and cause them to curtail or pause orders |
● | Competitive products and substitute products |
● | Customer and competitor strategies |
● | Potential consolidation of our competitors |
● | Potential consolidation of our customers |
● | The impact of pricing and production decisions |
● | Competitive technology positions |
● | Potential difficulties in upgrading or implementing accounting and manufacturing software systems |
● | The introduction of trade barriers or trade disputes |
● | Fluctuations in currency exchange rates (such as changes in the exchange rate between the U.S. dollar and each of the euro, the Norwegian krone, and the Canadian dollar and between the euro and the Norwegian krone), or possible disruptions to our business resulting from uncertainties associated with the euro or other currencies |
● | Our ability to renew or refinance credit facilities or other debt instruments in the future |
● | Changes in interest rates |
● | Our ability to maintain sufficient liquidity |
● | The ultimate outcome of income tax audits, tax settlement initiatives, or other tax matters, including future tax reform |
● | Our ability to utilize income tax attributes, the benefits of which may or may not have been recognized under the more-likely-than-not recognition criteria |
● | Environmental matters (such as those requiring compliance with emission and discharge standards for existing and new facilities) |
● | Government laws and regulations and possible changes therein including new environmental, health, safety, sustainability, or other regulations (such as those seeking to limit or classify TiO2 or its use) |
● | Pending or possible future litigation or other actions. |
Except as required by law, Kronos undertakes no obligation to update such statements to reflect events or circumstances arising after the date of this Current Report on Form 8-K and cautions investors not to place undue reliance on any such forward-looking statements.
Item 2.03Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information under Item 1.01 above relating to the Second Amendment and the financing of the acquisition of the 50% joint venture interest in LPC is incorporated into this Item 2.03 by reference.
Item 7.01Regulation FD Disclosure.
The registrant hereby furnishes the information set forth in its press release dated July 17, 2024, a copy of which is attached hereto as Exhibit 99.1 and incorporated herein by reference.
The press release the registrant furnishes as Exhibit 99.1 to this current report is not deemed “filed” for purposes of section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. Registration statements or other documents filed with the U.S. Securities and Exchange Commission shall not incorporate this information by reference, except as otherwise expressly stated in such filing.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits |
10.1 |
10.2 |
99.1Press Release, dated July 17, 2024, issued by Kronos Worldwide, Inc.
104Cover Page Interactive Data File (embedded within Inline XBRL document).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
KRONOS WORLDWIDE, INC. | ||
(Registrant) | ||
Date: July 17, 2024 | By: | /s/ Tim C. Hafer |
Tim C. Hafer, | ||
Executive Vice President and Chief Financial Officer |
Execution Version
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made effective as of July 16, 2024 (the “Effective Date”), by and between Kronos Louisiana, Inc., a corporation organized under the laws of the State of Delaware (“Kronos Partner”), Kronos Worldwide, Inc., a corporation organized under the laws of the State of Delaware (“Kronos Parent” and together with Kronos Partner, “Kronos”), Venator Investments Ltd., a limited liability company organized under the laws of the Cayman Islands (“Venator Partner” and together with Kronos Partner, the “Partners”), Venator Materials PLC, a public limited company organized under the laws of England and Wales (“Venator Parent” and together with Venator Partner, “Venator”) and Louisiana Pigment Company, L.P., a limited partnership organized under the laws of Delaware (the “Joint Venture”). Kronos Partner, Kronos Parent, Venator Partner, Venator Parent and the Joint Venture may each be individually referred to as a “Party” and collectively referred to as the “Parties”. Capitalized terms used and not defined herein shall have the respective meanings assigned to such terms in the Joint Venture Agreement (as defined below).
RECITALS
WHEREAS, Kronos Partner and Venator Partner are parties to that certain Joint Venture Agreement, dated as of October 18, 1993 (as amended, the “Joint Venture Agreement”), pursuant to which the Kronos Partner and the predecessor to Venator Partner formed the Joint Venture, Kronos Partner is party to that certain Kronos Offtake Agreement, dated as of October 18, 1993 and Venator Partner is party to that certain Tioxide Americas Offtake Agreement, dated as of October 18, 1993 (the “Venator Offtake Agreement”);
WHEREAS, each of Kronos Partner and Venator Partner owns a 50% Percentage Interest (as defined in the Joint Venture Agreement) in the Joint Venture;
WHEREAS, Venator Partner desires to sell and transfer its 50% Percentage Interest in the Joint Venture (consisting of a 25% general partner interest and a 25% limited partner interest) (collectively, the “Venator Interest”) to Kronos Partner, and Kronos Partner wishes to purchase and acquire the Venator Interest; and
WHEREAS, Venator Partner and Kronos Partner have agreed that Venator Partner shall sell, and Kronos Partner shall purchase, the Venator Interest on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties, intending to be legally bound hereby, agree to the foregoing and as follows:
1.1 | Purchase and Sale. At the Closing, Venator Partner shall sell and transfer the Venator Interest to Kronos Partner, free and clear of all Encumbrances, other than transfer restrictions arising under applicable securities laws or the governing documents of the Joint Venture (including the Joint Venture Agreement) and any Encumbrances created by Kronos Partner or Kronos Parent, and Kronos Partner shall purchase and acquire the Venator Interest from Venator Partner for US$185,000,000, minus the Pre-Closing Venator Receivable/Payable Net Balance Amount, (the “Closing Consideration”). |
US-DOCS151952090.11
1.2 | For the avoidance of doubt, except as expressly set forth in this Agreement, as part of the transactions contemplated by this Agreement, Venator Partner shall convey to Kronos Partner, and Kronos Partner shall receive from Venator Partner, (i) all rights, claims and credits arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of Venator Partner in respect of the Venator Interest, the Joint Venture Agreement, or the Joint Venture; and (ii) all rights, claims, credits, causes of action, rights to indemnification and contribution or rights of setoff against third parties in favor of Venator Partner in respect of the Venator Interest, the Joint Venture Agreement, or the Joint Venture. |
1.3 | Payment of the Closing Consideration. No later than July 17, 2024, Kronos Partner shall pay the Closing Consideration to Venator Partner by wire transfer of immediately available funds to the account or accounts identified by Venator Partner prior to the Closing. |
1.4 | Transfer of Venator Interest. The Parties hereby agree to execute and deliver at the Closing an assignment instrument, in a form reasonably acceptable to the Parties, sufficient to evidence that the transfer of the Venator Interest to Kronos Partner has occurred (the “Assignment Agreement”), although the failure to execute any such document evidencing the Closing will not affect the validity and effectiveness of the transfer and assignment of the Venator Interest at the Closing. |
2.1 | Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place with an effective date of July 16, 2024 (the “Closing Date”) remotely by exchange of documents and signatures (or their electronic counterparts). For purposes of the Post-Closing Adjustment, the consummation of the transactions contemplated by this Agreement shall be deemed to occur at the Stoppage Time. |
2.2 | Pre-Closing Procedures and Closing Deliverables. |
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(i) | complete the actions set forth on Schedule 2 (the “Pre-Closing Procedures”); and |
(i) | the Closing Consideration, by wire transfer of immediately available funds to the account or accounts identified by Venator Partner prior to the Closing; and |
(ii) | the Assignment Agreement, duly executed by Kronos Partner. |
2.3 | Working Capital Adjustment. |
(ii) | the Closing Venator Receivable/Payable Net Balance Amount; and |
(iii) | Final Consideration. |
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(i) | “Closing Working Capital” means (a) the Current Assets, minus (b) the Current Liabilities, determined as of the applicable times identified in Schedule 2 on the Closing Date. |
(ii) | “Current Assets” means the current assets of the Joint Venture, which shall only include the line items set forth under the heading “Total Current Assets” in the form balance sheet contained in the Blue Book Template, determined using the Blue Book Principles. Current Assets shall exclude any and all Destroyed Venator Packaging. |
(iii) | “Current Liabilities” means the current liabilities of the Joint Venture, which shall only include the line items set forth under the heading “Total Current Liabilities” in the form balance sheet contained in the Blue Book Template, determined using the Blue Book Principles. |
(iv) | “Target Working Capital Amount” means US$80,000,000.00. For explanatory purposes only, the foregoing amount is representative of 100% of the working capital of the Joint Venture, and corresponds to US$40,000,000 working capital estimate on a per partner basis. |
(v) | “Working Capital Adjustment Amount” means the amount (which may be positive or negative) equal to (i) the Closing Working Capital minus the Target Working Capital Amount, (ii) divided by two. |
(vi) | “Closing Venator Receivable/Payable Net Balance Amount” means the amount (which may be positive or negative) equal to the Joint Venture’s accounts payable to Venator Partner, minus its accounts receivable from Venator Partner, determined as of the Stoppage Time in accordance with the Pre-Closing Procedures. |
(vii) | “Final Consideration” means (i) $185,000,000, plus (ii) the Closing Venator Receivable/Payable Net Balance Amount, plus (iii) the Working Capital Adjustment Amount. |
(i) | Examination. After receipt of the Closing Working Capital Statement, Venator Partner shall have 30 days (the “Working Capital Review Period”) to review the Closing Working Capital Statement. |
(ii) | Objection. On or prior to the last day of the Working Capital Review Period, Venator Partner may object to the Closing Working Capital Statement by delivering to Kronos Partner a written statement setting forth Venator Partner’s objections in reasonable detail, indicating each disputed item or amount and the basis for Venator Partner’s disagreement therewith (the “Statement of Objections”). If Venator Partner fails to deliver the Statement of Objections before the expiration of the Working Capital Review Period, the Closing Working |
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Capital Statement and the Post-Closing Adjustment, as the case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Venator Partner. If Venator Partner delivers the Statement of Objections before the expiration of the Working Capital Review Period, Kronos Partner and Venator Partner shall negotiate in good faith to resolve such objections within 30 days after the delivery of the Statement of Objections (the “Resolution Period”), and, if the same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes as may have been previously agreed in writing by Kronos Partner and Venator Partner, shall be final and binding. |
(iii) | Resolution of Disputes. If Venator Partner and Kronos Partner fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (“Disputed Amounts”) shall be submitted for resolution to the New York office of Grant Thornton or, if Grant Thornton is unable to serve, Kronos Partner and Venator Partner shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants other than the accountants of the Parties (the “Independent Accountants”). The Independent Accountants shall be directed to render a written report, acting as experts and not as arbitrators, on Disputed Amounts and make any adjustments to the Post-Closing Adjustment, as the case may be, and the Closing Working Capital Statement. If Disputed Amounts are submitted to the Independent Accountant, Kronos Partner and Venator Partner shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the Disputed Amounts as the Independent Accountant may reasonably request. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountants shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Closing Working Capital Statement and the Statement of Objections, respectively. |
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and their adjustments to the Post-Closing Adjustment shall be conclusive and binding upon the parties hereto. |
2.4 | Earn-Out. |
Threshold | Average Annual EBITDA Threshold: | Earn-Out Payment (prior to tax withholding): |
1 | Less than US$325,000,000 | $0 |
2 | Equal to or greater than US$325,000,000, but less than US$365,000,000 | US$5,000,000, plus an amount equal to: a) US$10,000,000; multiplied by b) Average Annual EBITDA minus US$325,000,000, divided by US$40,000,000. |
3 | Equal to or greater than US$365,000,000 | US$15,000,000 (the “Maximum Earn-Out Payment”) |
The Earn-Out Payments listed above are not cumulative, and Venator Partner shall be entitled only to the Earn-Out Payment corresponding to the applicable Average Annual EBITDA threshold achieved. For example, if the Average Annual EBITDA were US$350,000,000, the Earn-Out Payment (prior to tax withholding) to Venator Partner would be US$11,250,000.
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(ii) | “Audited Financial Statements” means the Kronos Parent audited financial statements consisting of the balance sheet of Kronos Parent as of December 31 in each of the years 2025 and 2026 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the fiscal years then ended, in each case, as included in Kronos Parent’s Form 10-K filings for such fiscal years. |
(iii) | “Average Annual EBITDA” means sum of EBITDA for the fiscal years ended December 31, 2025 and 2026, divided by two. |
(iv) | “Earn-Out Period” means the period beginning on January 1, 2025 and ending on December 31, 2026. |
(i) | On or before the date which is 90 days after the last day of the Earn-Out Period, such date, the “Earn-Out Calculation Delivery Date”, Kronos Partner shall prepare and deliver to Venator Partner a written statement (the “Earn-Out Calculation Statement”) setting forth in reasonable detail its determination of EBITDA for each of the calendar years during the Earn-Out Period and its calculation of the resulting Earn-Out Payment (the “Earn-Out Calculation”). |
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be final and binding on the parties hereto. If Venator Partner timely delivers an Earn-Out Calculation Objection Notice, Kronos Partner and Venator Partner shall negotiate in good faith to resolve the disputed items and agree upon the Earn-Out Payment. If Kronos Partner and Venator Partner are unable to reach agreement within thirty (30) days after such an Earn-Out Calculation Objection Notice has been given, all unresolved disputed items shall be referred to the office of Grant Thornton or, if Grant Thornton is unable to serve, Kronos Partner and Venator Partner shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants other than Venator Partner’s accountants or Kronos Partner’s accountants, who, acting as experts and not arbitrators, shall resolve the unresolved disputed items. The Independent Accountant shall be directed to render a written report on the unresolved disputed items with respect to the Earn-Out Calculation as promptly as practicable, but in no event greater than forty-five (45) days (or such other time period as the parties may agree to in writing) after such submission to the Independent Accountant, and to resolve only those unresolved disputed items set forth in the Earn-Out Calculation Objection Notice. If unresolved disputed items are submitted to the Independent Accountant, Kronos Partner and Venator Partner shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountant may reasonably request. The Independent Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by Kronos Partner and Venator Partner, and not by independent review. The resolution of the dispute and the calculation of EBITDA for each of the calendar years during the Earn-Out Period that is the subject of the applicable Earn-Out Calculation Objection Notice by the Independent Accountant shall be final and binding on the parties hereto. The fees and expenses of the Independent Accountant shall be borne by Venator Partner and Kronos Partner in proportion to the amounts by which their respective calculations of the Earn-Out Payment differ from the Earn-Out Payment as finally determined by the Independent Accountant. |
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Venator Partner and Venator Parent, as applicable, hereby represent and warrant to Kronos as of the Effective Date and Closing that:
3.1 | Organization. Venator Partner is a limited liability company duly organized, validly existing, and in good standing under the laws of the Cayman Islands. Venator Parent is a public limited company duly organized, validly existing and in good standing under the laws of England and Wales. |
3.2 | Authorization. Each of Venator Partner and Venator Parent has the requisite power and authority and has taken all action necessary to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform their respective obligations hereunder, and no other proceedings on the part of Venator are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by Venator and is the valid and binding obligation of Venator, enforceable against Venator in accordance with its terms. Each of Venator Partner and Venator Parent is in full possession, custody and control of its respective assets (including without limitation and with respect to Venator Partner, the Venator Interest), and Venator Partner has the power to convey the Venator Interest without the approval of any third party, court, or other tribunal. |
3.3 | No Conflict. The execution and delivery by each of Venator Partner and Venator Parent of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or result in a breach of any provision of the organizational documents of either Venator Partner or Venator Parent; (ii) result in a breach of any agreement to which either Venator Partner and Venator Parent is a party, respectively, that would impair the performance of each of their respective obligations hereunder (taking into account, for the avoidance of doubt, the effect of Section 6.5); or (iii) violate any Law applicable to either Venator Partner or Venator Parent. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority. “Governmental Authority” means any federal, state, local or foreign government or |
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political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court or tribunal of competent jurisdiction. |
3.4 | Venator Interest. The Venator Interest is beneficially owned by Venator Partner, free and clear of all Encumbrances, other than transfer restrictions arising under applicable securities laws or the governing documents of the Joint Venture (including the Joint Venture Agreement) and any Encumbrances created by Kronos Partner or Kronos Parent. Venator Partner is the record owner of and has good and valid title to the Venator Interest. |
3.5 | Sufficiency of Funds. Venator has sufficient funds to consummate the transactions, to perform its obligations hereunder (including all payments to be made by it in connection herewith) and to pay all of its expenses related to this Agreement and the transactions contemplated hereto, including the payment in cash of all fees and expenses payable by Venator in connection with the transactions contemplated by this Agreement (the “Venator Transaction Payment Obligations”). Venator has not incurred any obligation, commitment, restriction or liability of any kind, and is not contemplating or aware of any obligation, commitment or restriction of any kind, in either case, which would reasonably be expected to impair or adversely affect its ability to make the Venator Transaction Payment Obligations. |
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3.10 | No Additional Representations and Warranties. Except for the express representations and warranties provided in this ARTICLE III, none of Venator Partner, any of its affiliates (including Venator Parent), or any of its or their respective directors, officers, employees, stockholders, partners, members or other representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to Venator Partner or the Venator Interest to Kronos Partner, any of its affiliates (including Kronos Parent) or its or their respective directors, officers, employees, stockholders, partners, members or other representatives, and Venator Partner, on behalf of itself and its affiliates (including Venator Parent) hereby disclaims any such other representations or warranties. Neither Venator Partner nor Venator Parent shall be liable in respect of the accuracy or completeness of any such information provided to Kronos Partner, any of its affiliates (including Kronos Parent) or their respective directors, officers, employees, stockholders, partners, members or other representatives other than the express representations and warranties provided in this ARTICLE III. |
Kronos Partner and Kronos Parent, as applicable, hereby represent and warrant to Venator as of the Effective Date and Closing that:
4.1 | Organization. Kronos Partner is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. Kronos Parent is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. |
4.2 | Authorization. Each of Kronos Partner and Kronos Parent has the requisite power and authority and has taken all action necessary to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform their respective obligations hereunder, and no other proceedings on the part of Kronos are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by Kronos and is the valid and binding obligation of Kronos, enforceable against Kronos in accordance with its terms. |
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4.3 | No Conflict. The execution and delivery by each of Kronos Partner and Kronos Parent of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (i) conflict with or result in a breach of any provision of the organizational documents of either Kronos Partner or Kronos Parent; (ii) result in a breach of any agreement to which either Kronos Partner or Kronos Parent is a party, respectively, that would impair the performance of its obligations hereunder; or (iii) violate any Law or regulation applicable to either Kronos Partner or Kronos Parent. |
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4.9 | No Additional Representations and Warranties. Except for the express representations and warranties provided in this ARTICLE III, none of Venator Partner, any of its affiliates (including Venator Parent), or any of its or their respective directors, officers, employees, stockholders, partners, members or other representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to Venator Partner or the Venator Interest to Kronos Partner, any of its affiliates (including Kronos Parent) or its or their respective directors, officers, employees, stockholders, partners, members or other representatives, and Venator Partner, on behalf of itself and its affiliates (including Venator Parent) hereby disclaims any such other representations or warranties. Neither Venator Partner nor Venator Parent shall be liable in respect of the accuracy or completeness of any such information provided to Kronos Partner, any of its affiliates (including Kronos Parent) or their respective directors, officers, employees, stockholders, partners, members or other representatives other than the express representations and warranties provided in this ARTICLE III. |
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6.1 | Tax Considerations. |
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into as of July 17, 2024, by and among the lenders identified on the signature pages hereof ("Existing Lenders"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, "Agent"), DEUTSCHE BANK AG, CANADA BRANCH, DEUTSCHE BANK AG NEW YORK BRANCH (together with Deutsche Bank AG, Canada Branch, the "New Lenders"; and together with the Existing Lenders, the "Lenders"), KRONOS WORLDWIDE, INC., a Delaware corporation ("Worldwide"), KRONOS LOUISIANA, INC., a Delaware corporation ("Kronos Louisiana"), KRONOS (US), INC., a Delaware corporation ("Kronos US"; together with Worldwide and Kronos Louisiana, are referred to hereinafter each individually as a "US Borrower", and individually and collectively, jointly and severally, as the "US Borrowers"), KRONOS CANADA, INC., a Canadian corporation ("Canadian Borrower"), KRONOS EUROPE NV, a public limited company (naamloze vennootschap / société anonyme) ("Belgian Borrower") and KRONOS TITAN GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) ("German Borrower"; together with US Borrowers, Canadian Borrower and Belgian Borrower, are referred to hereinafter each individually as a "Borrower", and individually and collectively as the "Borrowers").
WHEREAS, the Borrowers, Agent and Existing Lenders are parties to that certain Credit Agreement dated as of April 20, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement in certain respects, in each case, subject to the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:
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[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized and delivered as of the date first above written.
US BORROWERS: | KRONOS WORLDWIDE, INC., Chief Financial Officer |
| KRONOS LOUISIANA, INC., Chief Financial Officer |
| KRONOS (US), INC., Chief Financial Officer |
CANADIAN BORROWER | KRONOS CANADA, INC., Chief Financial Officer |
Signature Page to Second Amendment to Credit Agreement
BELGIAN BORROWER | KRONOS EUROPE NV, |
GERMAN BORROWER | KRONOS TITAN GMBH, By:/s/ Rainer Gruber |
Signature Page to Second Amendment to Credit Agreement
AGENT AND LENDERS | WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent, as Lead Arranger, and as Book Runner and as a Lender WELLS FARGO BANK, NATIONAL ASSOCIATION, LONDON BRANCH, as a Lender WELLS FARGO CAPITAL FINANCE (UK) LIMITED, as a Lender |
| |
Signature Page to Second Amendment to Credit Agreement
| DEUTSCHE BANK AG NEW YORK BRANCH, as a New Lender By:/s/ Stephen Lapidus |
| DEUTSCHE BANK AG, CANADA BRANCH, as a New Lender By:/s/ Edward Salibian |
Signature Page to Second Amendment to Credit Agreement
CONSENT AND REAFFIRMATION
The undersigned hereby (i) acknowledges receipt of a copy of the foregoing Second Amendment to Credit Agreement (the "Amendment"); (ii) consents to each Borrower's execution and delivery of the Amendment; (iii) agrees to be bound by the Amendment; and (iv) affirms that nothing contained therein shall modify in any respect whatsoever any Loan Documents (other than as specifically provided in the Amendment) to which the undersigned is a party and reaffirms that the Loan Documents to which it is a party shall continue to remain in full force and effect. Although the undersigned has been informed of the matters set forth herein and has acknowledged and agreed to same, the undersigned understands that Agent and Lenders have no obligation to inform the undersigned of such matters in the future or to seek the undersigned's acknowledgment or agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.
Kronos International, Inc. (i) confirms to each of the Secured Parties that the German Global Assignment Agreement and the German Security Transfer Agreement, to the extent it is a party to those agreements, shall remain in full force and effect and the amendments made to the Loan Documents by the Amendment shall not affect the validity (Wirksamkeit) and enforceability (Vollstreckbarkeit) of the German Global Assignment Agreement in any way, (ii) agrees, that upon and after the effectiveness of the Amendment, the German Global Assignment Agreement and the German Security Transfer Agreement shall secure any and all of the Obligations (including, without limitation, any such obligations owed to the Agent under the parallel debt undertaking under section 2.18 (Parallel Debt (German Law Provisions)) of the Credit Agreement and any such other obligation or liability to pay damages) which are or may become payable or owing in accordance with the Credit Agreement (including, but not limited to, any obligation based on unjust enrichment (ungerechtfertigte Bereicherung) or tort (Delikt)) (the "Amended Secured Obligations", regardless of the definition of "Secured Obligations" contained in the German Global Assignment Agreement and/ or the German Security Transfer Agreement, including any amounts which exceed the obligations secured by the German Global Assignment Agreement and/ or the German Security Transfer Agreement prior to the date of the Amendment, and (iii) in particular with respect to the provisions of section 1210 paragraph 1 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch) hereby (A) confirms to each of the Secured Parties, that the German Bank Account Pledge Agreements shall remain in full force and effect and the amendments made to the Loan Documents by the Amendment shall not affect the validity (Wirksamkeit) and enforceability (Vollstreckbarkeit) of the German Bank Account Pledge Agreements in any way and (B) agrees, that upon and after the effectiveness of this Amendment, the German Bank Account Pledge Agreements shall secure any and all of the Amended Secured Obligations, regardless of the definition of "Secured Obligations" contained in the German Bank Account Pledge Agreements, including any amounts which exceed the obligations secured by the German Bank Account Pledge Agreements prior to the date of the Amendment.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation on and as of the date of the Amendment.
| KRONOS INTERNATIONAL, INC. Chief Financial Officer |
Signature Page to Consent and Reaffirmation to Second Amendment to Credit Agreement
EXHIBIT A
See attached
|
CREDIT AGREEMENT
by and among
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Lead Arranger,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Sole Book Runner,
THE LENDERS THAT ARE PARTIES HERETO
as the Lenders,
KRONOS WORLDWIDE, INC., KRONOS LOUISIANA, INC., KRONOS (US), INC.,
KRONOS CANADA, INC., KRONOS EUROPE NV and KRONOS TITAN GMBH
as Borrowers
Dated as of April 20, 2021
as amended by that certain First Amendment to Credit Agreement dated as of May 8, 2023 and that certain Second Amendment to Credit Agreement dated as of July 17, 2024
|
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EXHIBITS AND SCHEDULES
Exhibit A-1Form of Assignment and Acceptance
Exhibit B-1Form of Borrowing Base Certificate
Exhibit B-2Form of German Borrowing Base Certificate
Exhibit B-3Form of Bank Product Provider Agreement
Exhibit C-1Form of Compliance Certificate
Exhibit L-1Form of Non-Base Rate Notice
Exhibit P-1Form of Perfection Certificate
Schedule A-1Agent's Account
Schedule A-2Authorized Persons
Schedule C-1Commitments
Schedule D-1Designated Account
Schedule P-1Permitted Investments
Schedule P-2Permitted Liens
Schedule 3.1Conditions Precedent
Schedule 3.6Conditions Subsequent
Schedule 4.1(b)Capitalization of Borrowers
Schedule 4.1(c)Capitalization of Borrowers' Subsidiaries
Schedule 4.1(d)Subscriptions, Options, Warrants, Calls
Schedule 4.6Litigation
Schedule 4.10Employee Benefits
Schedule 4.11Environmental Matters
Schedule 4.14Permitted Indebtedness
Schedule 4.25Location of Inventory
Schedule 5.1Financial Statements, Reports, Certificates
Schedule 5.2Collateral Reporting
Schedule 6.5Nature of Business
Schedule 6.10Affiliate Transaction
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THIS CREDIT AGREEMENT (this "Agreement"), is entered into as of April 20, 2021, by and among the lenders identified on the signature pages hereto (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a "Lender", as that term is hereinafter further defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders (in such capacity, together with its successors and assigns in such capacity, "Agent"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as lead arranger (in such capacity, together with its successors and assigns in such capacity, the "Lead Arranger"), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as sole book runner (in such capacity, together with its successors and assigns in such capacity, the "Sole Book Runner"), KRONOS WORLDWIDE, INC., a Delaware corporation ("Worldwide" ), KRONOS LOUISIANA, INC., a Delaware corporation ("Kronos Louisiana" ), KRONOS (US), INC., a Delaware corporation ("Kronos US"; together with Worldwide and Kronos Louisiana, are referred to hereinafter each individually as a "US Borrower", and individually and collectively, jointly and severally, as the "US Borrowers"), KRONOS CANADA, INC., a Canadian corporation ("Canadian Borrower"), KRONOS EUROPE NV, a public limited <liability >company (naamloze vennootschap / société anonyme) ("Belgian Borrower") and KRONOS TITAN GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) ("German Borrower"; together with US Borrowers, Canadian Borrower and Belgian Borrower, are referred to hereinafter each individually as a "Borrower", and individually and collectively as the "Borrowers").
The parties agree as follows:
"Acceptable Appraisal" means, with respect to an appraisal of Inventory, the most recent appraisal of such property received by Agent (a) from an appraisal company satisfactory to Agent, (b) the scope and methodology (including, to the extent relevant, any sampling procedure employed by such appraisal company) of which are satisfactory to Agent, and (c) the results of which are satisfactory to Agent, in each case, in Agent's Permitted Discretion.
"Account" means (a) in respect of a US Borrower, an account (as that term is defined in the Code), (b) in respect of Canadian Borrower, an account (as that term is defined in the PPSA), (c) in respect of Belgian Borrower, all its right, title and interest from time to time in and to all debts of any nature and all other rights to receive money (excluding bank accounts), now or in the future due, owed or payable to it and (d) in respect of German Borrower, all Forderungen (as this term is used in the German Civil Code), and, in each case, also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of or (b) for services rendered or to be rendered.
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"Account Debtor" means any Person who is obligated on an Account, chattel paper, or a general intangible.
"Accounting Changes" means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).
"Acquired Indebtedness" means Indebtedness of a Person whose assets or Equity Interests are acquired by a Borrower or any Loan Party Subsidiary in a Permitted Acquisition; provided, that such Indebtedness (a) is either purchase money Indebtedness or a vendor hypothec or a Finance Lease with respect to Equipment or mortgage or hypothec financing with respect to Real Property, (b) was in existence prior to the date of such Permitted Acquisition, (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition, and (d) no Loan Party (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness.
"Acquisition" means (a) the purchase or other acquisition by a Borrower or a Loan Party Subsidiary of all or substantially all of the assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the Equity Interests of any other Person.
<"Acquisition Documents" means the Acquisition Agreement and all other documents related thereto and executed in connection therewith.>
"Additional Documents" has the meaning specified therefor in Section 5.12 of this Agreement.
"Adjusted Term <SOFR>CORRA" means, for purposes of any calculation, the rate per annum equal to (a) Term <SOFR>CORRA for such calculation plus (b) the Term <SOFR>CORRA Adjustment; provided that if Adjusted Term <SOFR>CORRA as so determined shall ever be less than the Floor, then Adjusted Term <SOFR>CORRA shall be deemed to be the Floor.
"Adjusted Term SOFR" means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
"Administrative Borrower" has the meaning specified therefor in Section 17.13.
"Administrative Questionnaire" has the meaning specified therefor in Section 13.1(a).
"Affected Financial Institution" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
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"Affected Lender" has the meaning specified therefor in Section 2.13(b) of this Agreement.
"Affiliate" means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" means the possession, directly or indirectly through one or more intermediaries, of the power to direct the management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise; provided, that, for purposes of the definition of Eligible Accounts and Section 6.10 of this Agreement: (a) any Person which owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person.
"Agent" has the meaning specified therefor in the preamble to this Agreement.
"Agent-Related Persons" means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.
"Agent's Applicable Account" means the Agent's US Account, Agent's Canadian Account, Agent's Belgian Account and/or the Agent's German Account, as the context requires.
"Agent's Belgian Account" means the Deposit Account identified on Schedule A-1 as Agent's Belgian Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).
"Agent's Canadian Account" means the Deposit Account identified on Schedule A-1 as Agent's Canadian Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).
"Agent's German Account" means the Deposit Account identified on Schedule A-1 as Agent's German Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).
"Agent's US Account" means the Deposit Account identified on Schedule A-1 as Agent's US Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).
"Agent's Liens" means the Liens granted by each Loan Party to Agent under the Loan Documents and securing the Obligations or any part thereof.
"Agreement" means this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
"Anti-Corruption Laws" means the FCPA, the U.K. Bribery Act of 2010, the Corruption of Foreign Public Officials Act (Canada), as amended, and all other applicable laws and
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regulations or ordinances concerning or relating to bribery or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
"Anti-Money Laundering Laws" means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto and includes Canadian Anti-Money Laundering & Anti-Terrorism <Laws>Legislation.
"Applicable Currency" means Dollars; provided, that with respect to Canadian Revolving Loans and other Obligations denominated in Canadian Dollars, Applicable Currency means Canadian Dollars and, with respect to Belgian Revolving Loans, German Revolving Loans and other Obligations denominated in Euros, Applicable Currency means Euros.
"Applicable Margin" means, as of any date of determination and with respect to Base Rate Loans or Non-Base Rate Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Average Excess Availability of Borrowers for the most recently completed calendar quarter; provided, that for the period from the Closing Date through and including <June 30>December 31, <2021>2024, the Applicable Margin shall be set at the margin in the row styled "Level <I>II"; provided further, that any time an Event of Default has occurred and is continuing, the Applicable Margin shall be set at the margin in the row styled "Level III":
Level | Average Excess Availability | Applicable Margin Relative to Base Rate Loans other than EUR Base Rate Loans (the "Base Rate Margin") | Applicable Margin Relative to Non-Base Rate Loans and EUR Base Rate Loans (the "Non-Base Rate Margin") |
I | > 66 2/3% of the Maximum Revolver Amount | 0.50 percentage points | 1.50 percentage points |
II | < 66 2/3% of the Maximum Revolver Amount and > 33 1/3% of the Maximum Revolver Amount | 0.75 percentage points | 1.75 percentage points |
III | < 33 1/3% of the Maximum Revolver Amount | 1.00 percentage points | 2.00 percentage points |
The Applicable Margin shall be re-determined as of the first day of each calendar quarter of Borrowers.
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"Applicable Unused Line Fee Percentage" means, as of any date of determination, the applicable percentage set forth in the following table that corresponds to the Average Revolver Usage of Borrowers for the most recently completed calendar quarter; provided, that for the period from the Closing Date through and including <June 30>December 31, <2021>2024, the Applicable Unused Line Fee Percentage shall be set at the rate in the row styled "Level II"; provided further, that any time an Event of Default has occurred and is continuing, the Applicable Unused Line Fee Percentage shall be set at the margin in the row styled "Level II":
Level | Average Revolver Usage | Applicable Unused Line Fee Percentage |
I | > 50% of the Maximum Revolver Amount | 0.25 percentage points |
II | < 50% of the Maximum Revolver Amount | 0.375 percentage points |
The Applicable Unused Line Fee Percentage shall be re-determined on the first date of each calendar quarter by Agent.
"Application Event" means the occurrence of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(ii) of this Agreement.
"Assignee" has the meaning specified therefor in Section 13.1(a) of this Agreement.
"Assignment and Acceptance" means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement.
"Authorized Person" means any one of the individuals identified as an officer of a Borrower on Schedule A-2 to this Agreement, or any other individual identified by Administrative Borrower as an authorized person and authenticated through Agent's electronic platform or portal in accordance with its procedures for such authentication.
"Availability" means, as of any date of determination, the amount that Borrowers are entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding Revolver Usage).
"Available Revolver Increase Amount" means, as of any date of determination, an amount equal to the result of (a) $50,000,000 minus (b) the aggregate principal amount of Increases to the Revolver Commitments previously made pursuant to Section 2.14 of this Agreement.
"Available Tenor" means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to the Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to the Agreement, in each
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case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of "Interest Period" pursuant to Section 2.12(d)(iii)(D).
"Average Excess Availability" means, with respect to any period, the aggregate amount of Availability for each day in such period (calculated as of the end of each respective Business Day) divided by the number of days in such period.
"Average Revolver Usage" means, with respect to any period, the sum of the aggregate amount of Revolver Usage for each Business Day in such period (calculated as of the end of each respective Business Day) divided by the number of Business Days in such period.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
"Bail-In Legislation" means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
"Bank Product Collateralization" means, with respect to the US Bank Product Obligations, the Canadian Bank Product Obligations, the Belgian Bank Product Obligations or the German Bank Product Obligations, as applicable, providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) in the Applicable Currency to be held by Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by Agent in its Permitted Discretion as sufficient to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product Obligations (other than Hedge Obligations).
"Bank Product Obligations" means the US Bank Product Obligations, the Canadian Bank Product Obligations, the Belgian Bank Product Obligations and/or the German Bank Product Obligations, as the context requires.
"Bank Product Provider" means <Wells Fargo>any Lender or any of its Affiliates (including Wells Fargo), including each of the foregoing in its capacity, if applicable, as a Hedge Provider, that enters into a Canadian Bank Product Agreement, US Bank Product Agreement, Belgian Bank Product Agreement, German Bank Product Agreement or a Hedge Agreement<.>; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person (a) on or prior to the Second Amendment Closing Date (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided on or prior to the Second Amendment Closing Date, or (b) on or prior to the date that is 10 days after the provision of such Bank Product to a Loan Party or its Subsidiaries (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Second Amendment Closing Date; provided further, that if, at any time, a Lender ceases to be a Lender under this
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Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it so ceases to be a Lender hereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations.
"Bank Product Provider Agreement" means an agreement in substantially the form attached hereto as Exhibit B-3 to this Agreement, in form and substance satisfactory to Agent, duly executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.
"Bank Product Reserves" means the US Bank Product Reserves, Canadian Bank Product Reserves, Belgian Bank Product Reserves and/or the German Bank Product Reserves, as the context requires.
"Bankruptcy Code" means (i) title 11 of the United States Code, (ii) the Bankruptcy and Insolvency Act (Canada), (iii) the Companies Creditors Arrangement Act (Canada), (iv) the Winding-Up and Restructuring Act (Canada), (v) the Canada Business Corporations Act (Canada) and any other corporate statutes to the extent such statute is used by a Person to propose an arrangement involving the compromise of the claims of its creditors, and (vi) any similar legislation in a relevant jurisdiction, in each case as applicable and as in effect from time to time.
"Base Rate" means the US Base Rate; provided, that with respect to Canadian Obligations denominated in Canadian Dollars, Base Rate means the Canadian Base Rate and with respect to Belgian Obligations or German Obligations denominated in Euros, Base Rate means the EUR Base Rate.
"Base Rate Loan" means each portion of the Revolving Loans that bears interest at a rate determined by reference to the applicable Base Rate.
"Base Rate Margin" has the meaning set forth in the definition of Applicable Margin.
"Belgian Availability" means, as of any date of determination, the amount that Belgian Borrower is entitled to borrow as Belgian Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding Belgian Revolver Usage).
"Belgian Bank Product" means any one or more of the following financial products or accommodations extended to a Belgian Loan Party by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called "purchase cards", "procurement cards" or "p-cards")), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
"Belgian Bank Product Agreements" means those agreements entered into from time to time by a Belgian Loan Party with a Bank Product Provider in connection with the obtaining of any of the Belgian Bank Products.
"Belgian Bank Product Obligations" means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by Belgian Loan Parties to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now
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existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by a Bank Product Provider to Belgian Loan Parties.
"Belgian Bank Product Reserves" means, as of any date of determination, those reserves that Agent deems in its Permitted Discretion necessary or appropriate to establish (based upon the Bank Product Providers' determination of the liabilities and obligations of Belgian Loan Parties in respect of Belgian Bank Product Obligations) in respect of Belgian Bank Products then provided or outstanding.
"Belgian Borrowing" means a borrowing consisting of Belgian Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Belgian Swing Lender in the case of a Belgian Swing Loan, or by Agent in the case of an Belgian Extraordinary Advance.
"Belgian Borrowing Base" means, as of any date of determination, the result of:
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"Belgian Canadian Availability Usage" means, as at any date of determination, the Dollar Equivalent of the amount by which the Belgian Revolver Usage exceeds the Belgian Borrowing Base (without giving effect to clause (e) of the definition thereof).
"Belgian Canadian Guaranty Agreement" means, with respect to Belgian Borrower, a General Continuing Guaranty dated as of even date with this Agreement, executed and delivered by Belgian Borrower, and with respect to any Subsidiary of Worldwide that become a Belgian Guarantor after the date of this Agreement, a General Continuing Guaranty executed and delivered by such Belgian Guarantor, in each case, in form and substance reasonably satisfactory to Agent, pursuant to which Belgian Borrower and any such Belgian Guarantor, if applicable, guarantees the Canadian Obligations in an amount not in excess of the Belgian Canadian Guaranty Limit applicable to Belgian Borrower or such Belgian Guarantor.
"Belgian Canadian Guaranty Limit" means, with respect to Belgian Borrower or any Subsidiary of Worldwide that becomes a Belgian Guarantor after the date of this Agreement, an amount at any time equal to but not exceeding the greater of (a) an amount equal to 80% of the Net Assets of Belgian Borrower or such Belgian Guarantor, as applicable, calculated on the basis of the latest available audited financial statements of Belgian Borrower or such Belgian Guarantor, as of the date on which a demand is made by Agent under the applicable Belgian Canadian Guaranty Agreement for payment by Belgian Borrower or such Belgian Guarantor, of the Canadian Obligations, and (b) an amount equal to 80% of the Net Assets of Belgian Borrower or such Belgian Guarantor, as applicable, calculated on the basis of the latest available audited financial statements of Belgian Borrower or such Belgian Guarantor, as of the date of execution and delivery of the applicable Belgian Canadian Guaranty Agreement by Belgian Borrower or such Belgian Guarantor.
"Belgian Designated Account" means the Belgian Deposit Account of Belgian Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Belgian Borrower located at Belgian Designated Account Bank that has been designated as such, in writing, by Belgian Borrower to Agent).
"Belgian Designated Account Bank" has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within Belgium that has been designated as such, in writing, by Belgian Borrower to Agent).
"Belgian Dilution" means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the amount of (a) bad debt write-downs, discounts (other than customary early payment discounts), advertising allowances, credits, or other dilutive items with respect to Belgian Borrower's Accounts during such period, by (b) Belgian Borrower's billings with respect to Accounts during such period.
"Belgian Dilution Reserve" means, as of any date of determination, an amount sufficient to reduce the advance rate against Belgian Eligible Accounts by 1 percentage point for each percentage point by which Belgian Dilution is in excess of 5%.
"Belgian Eligible Accounts" means those Accounts created by Belgian Borrower in the ordinary course of its business, that arise out of Belgian Borrower's sale of goods or rendition of services, that comply with each of the representations and warranties respecting Belgian Eligible
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Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, Belgian Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. Belgian Eligible Accounts shall not include the following:
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"Belgian Eligible Finished Goods Inventory" shall mean Inventory that qualifies as Belgian Eligible Inventory and consists of first quality finished goods held for sale in the ordinary course of Belgian Borrower's business.
"Belgian Eligible Inventory" means Inventory of Belgian Borrower, that complies with each of the representations and warranties respecting Belgian Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination or appraisal performed
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by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with Belgian Borrower's historical accounting practices. An item of Inventory shall not be included in Belgian Eligible Inventory if:
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"Belgian Eligible Raw Material Inventory" shall mean Inventory that qualifies as Belgian Eligible Inventory and consists of goods that are first quality raw materials.
"Belgian Extraordinary Advances" has the meaning specified therefor in Section 2.3(d)(iii) of this Agreement.
"Belgian Guarantor" means each Subsidiary of Worldwide organized under the laws of Belgium that is or becomes a guarantor of all or any part of the Belgian Obligations.
"Belgian Hedge Obligations" means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of any Belgian Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
"Belgian Issuing Bank" means Wells Fargo London or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender's sole discretion, to become a Belgian Issuing Bank for the purpose of issuing Belgian Letters of Credit pursuant to Section 2.11C of this Agreement, and Belgian Issuing Bank shall be a Lender.
"Belgian Letter of Credit" means a letter of credit (as that term is defined in the Code) issued for the account of Belgian Borrower pursuant to the terms of this Agreement by Belgian Issuing Bank.
"Belgian Letter of Credit Disbursement" means a payment made by Belgian Issuing Bank pursuant to a Belgian Letter of Credit.
"Belgian Letter of Credit Exposure" means, as of any date of determination with respect to any Lender, such Lender's participation in the Belgian Letter of Credit Usage pursuant to Section 2.11C(e) on such date.
"Belgian Letter of Credit Fee" has the meaning specified therefor in Section 2.6(b) of this Agreement.
"Belgian Letter of Credit Indemnified Costs" has the meaning specified therefor in Section 2.11C(f) of this Agreement.
"Belgian Letter of Credit Related Person" has the meaning specified therefor in Section 2.11C(f) of this Agreement.
"Belgian Letter of Credit Sublimit" means €15,000,000
"Belgian Letter of Credit Usage" means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding Belgian Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to Belgian Letters of Credit which remain unreimbursed or which have not been paid through a Belgian Revolving Loan.
"Belgian Loan Account" has the meaning specified therefor in Section 2.9 of this Agreement.
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"Belgian Loan Party" means Belgian Borrower or any Belgian Guarantor.
"Belgian Maximum Revolver Amount" means the lesser of (x) €30,000,000 decreased by the amount of reductions in the Belgian Revolver Commitments made in accordance with Section 2.4(c) of this Agreement and (y) the <US >Maximum Revolver Amount less the sum of US Revolver Usage, Canadian Revolver Usage and German Revolver Usage at such time at such time.
"Belgian Obligations" means (a) all loans (including the Belgian Revolving Loans (inclusive of Belgian Extraordinary Advances and Belgian Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Belgian Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Belgian Loan Account pursuant to this Agreement), obligations (including indemnification obligations) of any Belgian Loan Party, fees (including the fees provided for in the Fee Letter) of any Belgian Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any Belgian Loan Party, guaranties of any Belgian Loan Party, and all covenants and duties of any other kind and description owing by any Belgian Loan Party, in each of the foregoing cases, arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Belgian Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Belgian Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the Belgian Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Belgian Obligations of Belgian Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Belgian Revolving Loans, (ii) interest accrued on the Belgian Revolving Loans, (iii) the amount necessary to reimburse Belgian Issuing Bank for amounts paid or payable pursuant to Belgian Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, in each case, in respect of Belgian Letters of Credit, (v) Lender Group Expenses of any Belgian Loan Party, (vi) fees payable by any Belgian Loan Party under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Belgian Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Belgian Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
"Belgian Overadvance" means, as of any date of determination, that the Belgian Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11C.
"Belgian Protective Advances" has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
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"Belgian Qualifying Lender" means, in respect of any interest payment made by Belgian Borrower under this Agreement, a Lender which is beneficially entitled to interest payable to that Lender, and which is:
(a) | a credit institution (within the meaning of Article 105, 1° a) of the Royal Decree implementing the Belgian Income Tax Code 1992) that is resident in Belgium for Belgian tax purposes or which is acting through a facility office in Belgium; |
(b) | a professional investor (within the meaning of Article 105, 3° of the Royal Decree implementing the Belgian Income Tax Code 1992) which is a company resident for tax purposes in Belgium or which is acting through a Belgian establishment with which the Loan is effectively connected; |
(c) | a credit institution (within the meaning of Article 107, §2, 5°, a), second dash of the Royal Decree implementing the Belgian Income Tax Code 1992) that is acting through its head office and is resident for tax purposes in: |
(d) | a credit institution (within the meaning of Article 107, §2, 5°, a), second dash of the Royal Decree implementing the Belgian Income Tax Code 1992) that is acting through a facility office that itself qualifies as a credit institution (within the meaning of Article 107, §2, 5°, a), second dash of the Royal Decree implementing the Belgian Income Tax Code 1992) that is located in: |
(e) | a Belgian Treaty Lender. |
"Belgian Revolver Commitment" means, with respect to each Revolving Lender, its Belgian Revolver Commitment, and, with respect to all Revolving Lenders, their Belgian Revolver Commitments, in each case as set forth beside such Revolving Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Belgian Revolver Usage" means, as of any date of determination, the sum of (a) the amount of outstanding Belgian Revolving Loans (inclusive of Belgian Swing Loans and Belgian Protective Advances), plus (b) the amount of the Belgian Letter of Credit Usage.
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"Belgian Revolving Loan Exposure" means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Belgian Revolver Commitments, the amount of such Lender's Belgian Revolver Commitment, and (b) after the termination of the Belgian Revolver Commitments, the aggregate outstanding principal amount of the Belgian Revolving Loans of such Lender.
"Belgian Revolving Loans" has the meaning specified therefor in Section 2.1(c) of this Agreement.
"Belgian Security Agreement" means the pledge agreement dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by the Belgian Borrower to the Agent.
"Belgian Security Documents" means the Belgian Security Agreement, and any other Loan Document that creates a Lien on the Collateral and executed and delivered by a Loan Party to the Agent.
"Belgian Swing Lender" means Wells Fargo Capital Finance (UK) Limited or any other Lender that, at the request of Belgian Borrower and with the consent of Agent agrees, in such Lender's sole discretion, to become the Belgian Swing Lender under Section 2.3(b) of this Agreement.
"Belgian Swing Loan" has the meaning specified therefor in Section 2.3(b) of this Agreement.
"Belgian Swing Loan Exposure" means, as of any date of determination with respect to any Lender, such Lender's Pro Rata Share of the Belgian Swing Loans on such date.
"Belgian Treaty Lender" means a Lender which (i) is treated for the purposes of a relevant Tax treaty as a resident of a jurisdiction having a Tax treaty with Belgium which makes provision for full exemption from Tax imposed by Belgium on interest (ii) does not carry on a business in Belgium through a permanent establishment with which that Lender's participation in a Loan is effectively connected; and (iii) is entitled to the benefits of that Tax treaty and meets all other conditions (subject to the completion of any necessary procedural formalities) which must be fulfilled under the relevant Tax treaty and under applicable domestic tax laws (including any principal purpose, limitation on benefits or other anti-abuse test) in order for that Lender to benefit from a full exemption from Tax on interest imposed by Belgium.
"Belgian Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this Agreement.
"Belgian US Availability Usage" means, as of any date of determination, the Dollar Equivalent of the amount by which the Belgian Revolver Usage exceeds the Belgian Borrowing Base (without giving effect to clause (d) of the definition thereof).
"Benchmark" means, initially, the Term SOFR Reference Rate and EURIBOR, as applicable; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate, EURIBOR or the then-current Benchmark, then "Benchmark" means the
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applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12(d)(iii)(A).
"Benchmark Replacement" means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by Agent and Administrative Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the then-current Benchmark for United States dollar-denominated syndicated credit facilities or Euro-denominated syndicated credit facilities, as applicable and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than the Floor, the Benchmark Replacement shall be deemed to be the Floor for the purposes of this Agreement.
"Benchmark Replacement Adjustment" means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Agent and Administrative Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for United States dollar-denominated syndicated credit facilities or Euro-denominated syndicated credit facilities, as applicable, at such time.
"Benchmark Replacement Date" means the earlier to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, the "Benchmark Replacement Date" will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable
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event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
"Benchmark Transition Event" means the occurrence of one or more of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, if the then-current Benchmark has any Available Tenors, a "Benchmark Transition Event" will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
"Benchmark Transition Start Date" means in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
"Benchmark Unavailability Period" means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii) and (y) ending at the time that a Benchmark Replacement has
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replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii).
"Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulations.
"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.
"Benefit Plan" means a "defined benefit plan" (as defined in Section 3(35) of ERISA) for which any Borrower or any of its Subsidiaries or ERISA Affiliates has been an "employer" (as defined in Section 3(5) of ERISA) within the past six years.
"BHC Act Affiliate" of a Person means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.
"Board of Directors" means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).
"Board of Governors" means the Board of Governors of the Federal Reserve System of the United States (or any successor).
"Borrower" and "Borrowers" have the respective meanings specified therefor in the preamble to this Agreement.
"Borrower Materials" has the meaning specified therefor in Section 17.9(c) of this Agreement.
"Borrowing" means a borrowing consisting of Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by Agent in the case of an Extraordinary Advance.
"Borrowing Base Certificate" means a certificate in the form of Exhibit B-1 or Exhibit B-2, as applicable.
"Borrowing Base Company" means (a) US Borrowers, (b) Canadian Borrower, (c) German Borrower, (d) Belgian Borrower and (e) at any time after LPC becomes a Loan Party in accordance with Section 5.11, LPC.
"Business Day" means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of California, except that, (a) if a determination of a Business Day shall relate to a EURIBOR Rate Loan, the term "Business Day" shall also exclude any day which is not a TARGET Day with respect to Euros (as determined by the Agent in good faith), (b) if a determination of a Business Day shall relate to a Canadian Revolving Loan or Canadian Letter of Credit (including a request therefor), the term "Business Day" also shall exclude any day on which commercial banks are authorized or required to close in Toronto, Ontario, Canada, and (c) if a determination of a Business Day shall relate to a Belgian Revolving Loan, German Revolving Loan, Belgian Letter of Credit or German Letter of Credit (including a request therefor), the term "Business
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Day" also shall exclude any day on which banks are authorized or required to close in London, England.
"CAM Exchange" has the meaning specified therefor in Section 9.3(a) of this Agreement.
"CAM Exchange Date" has the meaning specified therefor in Section 9.3(a) of this Agreement.
"CAM Percentage" has the meaning specified therefor in Section 9.3(d) of this Agreement.
"Canadian Anti-Money Laundering & Anti-Terrorism <Laws>Legislation" means Part II.1 of the Criminal Code (Canada), The Proceeds of Crime (Money Laundering) and Terrorist Financing Act, (Canada) and the United Nations Act (Canada) or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act.
"Canadian Availability" means, as of any date of determination, the Dollar Equivalent amount that Canadian Borrower is entitled to borrow as Canadian Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding Canadian Revolver Usage).
"Canadian Bank Product" means any one or more of the following financial products or accommodations extended to a Canadian Loan Party by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called "purchase cards", "procurement cards" or "p-cards")), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
"Canadian Bank Product Agreements" means those agreements entered into from time to time by a Canadian Loan Party with a Bank Product Provider in connection with the obtaining of any of the Canadian Bank Products.
"Canadian Bank Product Obligations" means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by Canadian Loan Parties to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by a Bank Product Provider to Canadian Loan Parties.
"Canadian Bank Product Reserves" means, as of any date of determination, those reserves that Agent deems in its Permitted Discretion necessary or appropriate to establish (based upon the Bank Product Providers' determination of the liabilities and obligations of Canadian Loan
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Parties in respect of Canadian Bank Product Obligations) in respect of Canadian Bank Products then provided or outstanding.
"Canadian Base Rate" means, <for>on any day, <a>the rate per annum equal to the greatest of (a) <1.00 percent per annum, (b) the CDOR Rate existing on such day (which rate shall be calculated based upon an Interest Period of 1 month), plus 1 percentage point>the Floor, (b) Adjusted Term CORRA for a one-month tenor as in effect on such day (provided that this clause (b) shall not be applicable during any period in which Adjusted Term CORRA is unavailable, unascertainable or illegal) plus 1.0%, and (c) the <“>"prime rate<”>" for Canadian Dollar commercial loans made in Canada as reported by <Thomson >Reuters under Reuters Instrument Code <CAPRIME=> on the <“>"CA Prime Rate (Domestic Interest Rate) – Composite Display<”>" page (or any successor page or such other commercially available service or source (including the Canadian Dollar <“>"prime rate<”>" announced by a Schedule I bank under the Bank Act (Canada)<) > as <the >Agent may designate from time to time)<. Each determination of the Canadian Base Rate shall be made by the Agent and shall be conclusive in the absence of manifest error.>). Any change in the Base Rate due to a change in the foregoing rate shall be effective as of the opening of business on the effective day of such change.
"Canadian Belgian Availability Usage" means, at any date of determination, the Dollar Equivalent of the amount by which the Canadian Revolver Usage exceeds the Canadian Borrowing Base (without giving effect to clause (d) of the definition thereof).
"Canadian Borrowing" means a borrowing consisting of Canadian Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Canadian Swing Lender in the case of a Canadian Swing Loan, or by Agent in the case of an Canadian Extraordinary Advance.
"Canadian Borrowing Base" means, as of any date of determination, the result of:
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<"Canadian CDOR Rate" means the greater of (a) 0.25 percent per annum, and (b) the average rate per annum as reported on the Reuters Screen CDOR Page (or any successor page or such other page or commercially available service displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances as the Agent may designate from time to time, or if no such substitute service is available, the rate quoted by a Schedule I bank under the Bank Act (Canada) selected by the Agent at which such bank is offering to purchase Canadian Dollar bankers’ acceptances) as of 10:00 a.m. Eastern (Toronto) time on the date of commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the CDOR Rate Loan requested (whether as an initial CDOR Rate Loan or as a continuation of a CDOR Rate Loan or as a conversion of a Base Rate Loan to a CDOR Rate Loan) by Canadian Borrower in accordance with this Agreement (and, if any such reported rate is below zero, then the rate determined pursuant to this clause (b) shall be deemed to be zero). Each determination of the CDOR Rate shall be made by the Agent and shall be conclusive in the absence of manifest error.>
<"Canadian CDOR Rate >Loan" means each portion of a Canadian Revolving Loan that bears interest at a rate determined by reference to the applicable <Canadian CDOR Rate.>
"Canadian Defined Benefit Pension Plan" means any Canadian Pension Plan which contains a "defined benefit provision" as defined in subsection 147.1(1) of the Income Tax Act (Canada).
"Canadian Designated Account" means the Canadian Deposit Account of Canadian Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Canadian Borrower located at Canadian Designated Account Bank that has been designated as such, in writing, by Canadian Borrower to Agent).
"Canadian Designated Account Bank" has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within Canada that has been designated as such, in writing, by Canadian Borrower to Agent).
"Canadian Dilution" means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the amount of (a) bad debt write-downs, discounts (other than customary early payment discounts), advertising allowances, credits, or other dilutive items with respect to Canadian Borrower's Accounts during such period, by (b) Canadian Borrower's billings with respect to Accounts during such period.
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"Canadian Dilution Reserve" means, as of any date of determination, an amount sufficient to reduce the advance rate against Canadian Eligible Accounts by 1 percentage point for each percentage point by which Canadian Dilution is in excess of 5%.
"Canadian Dollar Equivalent" means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Canadian Dollars as determined by Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date as determined by Agent) for the purchase of Canadian Dollars with Dollars.
"Canadian Dollars" or "Cdn$" means the lawful currency of Canada, as in effect from time to time.
"Canadian Eligible Accounts" means those Accounts created by Canadian Borrower in the ordinary course of its business, that arise out of Canadian Borrower's sale of goods or rendition of services, that comply with each of the representations and warranties respecting Canadian Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, Canadian Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. Canadian Eligible Accounts shall not include the following:
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"Canadian Eligible Finished Goods Inventory" shall mean Inventory that qualifies as Canadian Eligible Inventory and consists of first quality finished goods held for sale in the ordinary course of Canadian Borrower's business.
"Canadian Eligible Inventory" means Inventory of Canadian Borrower, that complies with each of the representations and warranties respecting Canadian Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with Canadian Borrower's historical accounting practices. An item of Inventory shall not be included in Canadian Eligible Inventory if:
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"Canadian Eligible Raw Material Inventory" shall mean Inventory that qualifies as Canadian Eligible Inventory and consists of goods that are first quality raw materials.
"Canadian Extraordinary Advances" has the meaning specified therefor in Section 2.3(d)(iii) of this Agreement.
"Canadian Guarantee and Security Agreement" means a Canadian Guarantee and Security Agreement dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by each Canadian Loan Party and each other Loan Party having Collateral located in Canada to Agent.
"Canadian Guarantor" means each Subsidiary of Worldwide organized under the laws of Canada or any province or territory thereof that is or becomes a guarantor of all or any part of the Canadian Obligations.
"Canadian Hedge Obligations" means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of any Canadian Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
"Canadian Issuing Bank" means WF Canada or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender's sole discretion, to become a Canadian Issuing Bank for the purpose of issuing Canadian Letters of Credit or Canadian Reimbursement Undertakings pursuant to Section 2.11B of this Agreement, and Canadian Issuing Bank shall be a Lender.
"Canadian Letter of Credit" means a letter of credit (as that term is defined in the Code) issued for the account of Canadian Borrower pursuant to the terms of this Agreement by Canadian Issuing Bank or Canadian Underlying Issuer.
"Canadian Letter of Credit Disbursement" means a payment made by Canadian Issuing Bank pursuant to a Canadian Letter of Credit or a Canadian Reimbursement Undertaking.
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"Canadian Letter of Credit Exposure" means, as of any date of determination with respect to any Lender, such Lender's participation in the Canadian Letter of Credit Usage pursuant to Section 2.11B(e) on such date.
"Canadian Letter of Credit Fee" has the meaning specified therefor in Section 2.6(b) of this Agreement.
"Canadian Letter of Credit Indemnified Costs" has the meaning specified therefor in Section 2.11B(f) of this Agreement.
"Canadian Letter of Credit Related Person" has the meaning specified therefor in Section 2.11B(f) of this Agreement.
"Canadian Letter of Credit Sublimit" means the lesser of (x) $25,000,000 and (y) $50,000,000 less US Letter of Credit Usage.
"Canadian Letter of Credit Usage" means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding Canadian Letters of Credit, plus (b) the aggregate amount of outstanding Canadian Reimbursement Undertakings and any other reimbursement obligations with respect to Canadian Letters of Credit which remain unreimbursed or which have not been paid through a Canadian Revolving Loan.
"Canadian Loan Account" has the meaning specified therefor in Section 2.9 of this Agreement.
"Canadian Loan Party" means Canadian Borrower or any Canadian Guarantor.
"Canadian Maximum Revolver Amount" means the lesser of (x) $<25,000,000>35,000,000 decreased by the amount of reductions in the Canadian Revolver Commitments made in accordance with Section 2.4(c) of this Agreement and (y) the <US >Maximum Revolver Amount less the sum of US Revolver Usage, German Revolver Usage and Belgian Revolver Usage at such time.
"Canadian Obligations" means (a) all loans (including the Canadian Revolving Loans (inclusive of Canadian Extraordinary Advances and Canadian Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement (including Canadian Reimbursement Undertakings) or indemnification obligations with respect to Canadian Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Canadian Loan Account pursuant to this Agreement), obligations (including indemnification obligations) of any Canadian Loan Party, fees (including the fees provided for in the Fee Letter) of any Canadian Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any Canadian Loan Party, guaranties of any Canadian Loan Party, and all covenants and duties of any other kind and description owing by any Canadian Loan Party, in each of the foregoing cases, arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect,
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absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Canadian Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Canadian Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the Canadian Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Canadian Obligations of Canadian Borrowers under the Loan Documents include the obligation to pay (i) the principal of the Canadian Revolving Loans, (ii) interest accrued on the Canadian Revolving Loans, (iii) the amount necessary to reimburse Canadian Issuing Bank or Canadian Underlying Issuer, as applicable, for amounts paid or payable pursuant to Canadian Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, in each case, in respect of Canadian Letters of Credit, (v) Lender Group Expenses of any Canadian Loan Party, (vi) fees payable by any Canadian Loan Party under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Canadian Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the Canadian Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
"Canadian Overadvance" means, as of any date of determination, that the Canadian Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11B.
"Canadian Pension Plans" means each pension plan that is a "registered pension plan" (as defined in the Income Tax Act (Canada)) or that is required to be registered under, or is subject to other Canadian federal or provincial law with respect to pension benefit standards and that is maintained or contributed to, or to which there is or may be an obligation to contribute by a Loan Party or a Loan Party Subsidiary, for its employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.
"Canadian Priority Payables Reserves" means, without duplication, reserves (determined from time to time by Agent in its Permitted Discretion) for: (a) the amount past due and owing by any Canadian Loan Party, or the accrued amount for which such Canadian Loan Party has an obligation to remit, to a Governmental Authority or other Person pursuant to any applicable law, rule or regulation, in respect of (i) goods and services taxes, harmonized sales taxes, other sales taxes, employee income taxes, municipal taxes and other taxes payable or to be remitted or withheld; (ii) workers' compensation or employment insurance; (iii) federal Canada Pension Plan and other statutory pension plan contributions; (iv) vacation or holiday pay; and (v) other like charges and demands to the extent that any Governmental Authority or other Person may claim a Lien, security interest, hypothec, trust, deemed trust or other claim ranking or capable of ranking in priority to or pari passu with one or more of the Liens granted in the Loan Documents (such as certain claims by employees for unpaid wages and other amounts payable under the Wage Earner Protection Program Act (Canada)); and (b) the aggregate amount of any other liabilities of any Canadian Loan Party (i) in respect of which a trust or deemed trust has been or may be imposed on any Collateral to provide for payment, or (ii) in respect of unpaid or unremitted pension plan contributions, including normal cost contributions, special payments and, without duplication, amounts representing any unfunded liability, solvency deficiency or wind-up deficiency whether or not due with respect to a Canadian Pension Plan, or (iii) which are secured by a Lien, security interest, pledge, charge, right or claim on
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any Collateral, or (iv) in respect of directors and officers, debtor-in-possession financing, administrative charges, critical supplier charges or shareholder charges; in all cases, pursuant to any applicable law, rule or regulation only to the extent such Lien, trust, security interest, hypothec, pledge, charge, right or claim ranks or, in the Permitted Discretion of Agent, is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Loan Documents; in each case net of the aggregate amount of all restricted cash held or set aside by such Canadian Loan Party for the payment of such obligations.
"Canadian Protective Advances" has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
"Canadian Reference Bank" means Royal Bank of Canada or such other bank named in Schedule 1 of the Bank Act (Canada) that is designated by the Agent from time to time as the Canadian Reference Bank for the purposes of this Agreement.
<“>"Canadian Reimbursement Undertaking<”>" has the meaning set forth in Section 2.11B(a) of this Agreement.
"Canadian Revolver Commitment" means, with respect to each Revolving Lender, its Canadian Revolver Commitment, and, with respect to all Revolving Lenders, their Canadian Revolver Commitments, in each case as set forth beside such Revolving Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Canadian Revolver Usage" means, as of any date of determination, the sum of (a) the amount of outstanding Canadian Revolving Loans (inclusive of Canadian Swing Loans and Canadian Protective Advances), plus (b) the amount of the Canadian Letter of Credit Usage.
"Canadian Revolving Loan Exposure" means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Canadian Revolver Commitments, the amount of such Lender's Canadian Revolver Commitment, and (b) after the termination of the Canadian Revolver Commitments, the aggregate outstanding principal amount of the Canadian Revolving Loans of such Lender.
"Canadian Revolving Loans" has the meaning specified therefor in Section 2.1(b) of this Agreement.
"Canadian Security Documents" means the Canadian Guarantee and Security Agreement, the Quebec Security Documents and any other Loan Document governed by the laws of a Canadian province that creates a Lien on the Collateral and executed and delivered by a Canadian Loan Party or any other Loan Party having Collateral in Canada to the Agent.
"Canadian Swing Lender" means WF Canada or any other Lender that, at the request of Canadian Borrower and with the consent of Agent agrees, in such Lender's sole discretion, to become the Canadian Swing Lender under Section 2.3(b) of this Agreement.
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"Canadian Swing Loan" has the meaning specified therefor in Section 2.3(b) of this Agreement.
"Canadian Swing Loan Exposure" means, as of any date of determination with respect to any Lender, such Lender's Pro Rata Share of the Canadian Swing Loans on such date.
<“>"Canadian Underlying Issuer<”>" means The Toronto-Dominion Bank or one of its Affiliates or such other Person that is acceptable to the Agent in its Permitted Discretion.
<“>"Canadian Underlying Letter of Credit<”>" means a Canadian Letter of Credit that has been issued by a Canadian Underlying Issuer.
"Canadian Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this Agreement.
"Capital Expenditures" means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding, without duplication (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time, (b) expenditures made during such period to consummate one or more Permitted Acquisitions, (c) capitalized software development costs to the extent such costs are deducted from net earnings under the definition of EBITDA for such period, and (d) expenditures during such period that, pursuant to a written agreement, are reimbursed by a third Person (excluding any Borrower or any of its Affiliates).
"Capitalized Lease Obligation" means that portion of the obligations under a Finance Lease that is required to be capitalized in accordance with GAAP.
"Cash Equivalents" means (a) Domestic Cash Equivalents; and (b) Foreign Cash Equivalents.
"Cash Management Services" means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other cash management arrangements.
"CFC" means a controlled foreign corporation as defined in Section 957 of the IRC, in which any Loan Party or direct or indirect owner of a Loan Party is a "United States shareholder" within the meaning of Section 951(b) of the IRC.
"Change in Law" means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, (c) any new, or adjustment to, requirements prescribed by the Board
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of Governors for "Eurocurrency Liabilities" (as defined in Regulation D of the Board of Governors), requirements imposed by the Federal Deposit Insurance Corporation, or similar requirements imposed by any domestic or foreign governmental authority or resulting from compliance by Agent or any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority and related in any manner to the EURIBOR, <Canadian CDOR Rate>Adjusted Term CORRA, CORRA, Term CORRA, SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or (d) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act (or any European equivalent regulation (such as the European Market and Infrastructure Regulation)) and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, including CRR and <CRRII>CRR II, shall, in each case, be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued.
"Change of Control" means that:
"Closing Date" means the date of the making of the initial Revolving Loan (or other extension of credit) under this Agreement.
"Code" means the New York Uniform Commercial Code, as in effect from time to time.
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"Collateral" means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents.
"Collateral Access Agreement" means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in any Borrower's or its Subsidiaries' books and records, or Inventory, in each case, in form and substance reasonably satisfactory to Agent.
"Commitment" means, with respect to each Lender, its US Revolver Commitment, its Canadian Revolver Commitment, its Belgian Revolver Commitment or its German Revolver Commitment, as the context requires, and, with respect to all Lenders, their Revolver Commitments, as the context requires, in each case as such Dollar amounts, Canadian Dollar amounts or Euro amounts, as applicable, are set forth beside such Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"Compliance Certificate" means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by a financial officer (chief financial officer, treasurer or controller) of Administrative Borrower to Agent.
"Confidential Information" has the meaning specified therefor in Section 17.9(a) of this Agreement.
"Conforming Changes" means, with respect to either the use or administration of the then-current Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of "US Base Rate," the definition of "Canadian <CDOR Rate", the definition of "Canadian >Base Rate," the definition of "EUR Base Rate," the definition of "Business Day," the definition of "U.S. Government Securities Business Day", the definition of "Interest Period" or any similar or analogous definition (or the addition of a concept of "interest period"), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.12(b)(ii) and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
"Consolidated Net Income" means, for any period, the net income (or loss) of Worldwide and its consolidated Subsidiaries for such period, determined on a consolidated basis, without duplication, in accordance with GAAP; provided, that in calculating Consolidated Net Income of Worldwide and its consolidated Subsidiaries for any period, there shall be excluded (a) the
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net income (or loss) of any Person (other than a Subsidiary which shall be subject to clause (c) below), in which Worldwide or any consolidated Subsidiary of Worldwide has a joint interest with a third party, except to the extent such net income is actually paid in cash to Worldwide or any consolidated Subsidiary of Worldwide by dividend or other distribution during such period, (b) the net income (or loss) of any Person accrued prior to the date it becomes a consolidated Subsidiary of Worldwide or is merged into or consolidated with Worldwide or any of its consolidated Subsidiaries or that Person's assets are acquired by Worldwide or any of its consolidated Subsidiaries except to the extent included pursuant to the foregoing clause (a), (c) the net income (if positive), of any Subsidiary of Worldwide to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary to Worldwide or any consolidated Subsidiary of Worldwide of such net income is restricted by contract, operation of law or otherwise; provided, however, that if such Subsidiary is able despite such restriction to distribute income or transfer cash to the referent Person by way of an intercompany loan or otherwise, then such income or cash, to the extent of such ability, shall not be excluded pursuant to this clause (c), and (d) non-cash gains or losses attributable solely to fluctuations in currency values and related income tax effects, in either case related to intercompany notes and accounts payable existing prior to or as of the Closing Date and payable to Worldwide or any of its consolidated Subsidiaries.
"Consolidated Total Indebtedness" means, as of any date of determination with respect to Worldwide and its consolidated Subsidiaries on a consolidated basis without duplication, the sum of all Indebtedness of Worldwide and its consolidated Subsidiaries that is set forth under clauses (a), (c), (f), (g) and (h) (with respect to (h) only to the extent the guaranty obligations are Indebtedness under clauses (a), (c), (f) and (g)) of the definition of "Indebtedness".
"Consolidated Total Leverage Ratio" means, as of any date of determination, the ratio of (a) an amount equal to (i) the Consolidated Total Indebtedness on such date minus (ii) the unrestricted cash and Cash Equivalents of Worldwide and its consolidated Subsidiaries on a consolidated basis on such date in an aggregate principal amount not to exceed $150,000,000 to (b) EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.
"Control Agreement" means a control agreement (which may be by way of notice to and acknowledgement from the relevant account bank), in form and substance reasonably satisfactory to Agent, executed and delivered by a Borrower or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account).
"CORRA" means a rate equal to the Canadian Overnight Repo Rate Average as administered and published by the CORRA Administrator.
"CORRA Administrator" means the Bank of Canada (or a successor administrator of CORRA, as selected by Agent in its reasonable discretion).
"CORRA Loan" means each portion of a Canadian Revolving Loan that bears interest at a rate determined by reference to the applicable Adjusted Term CORRA (other than pursuant to clause (b) of the definition of "Canadian Base Rate").
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"Covenant Testing Period" means a period (a) commencing on the last day of the fiscal month of Worldwide most recently ended on or prior to an Excess Availability Trigger Date and for which Agent has received financial statements required to be delivered pursuant to Schedule 5.1 and (b) ending on the first day after such Excess Availability Trigger Date that no Default or Event of Default shall have occurred and be continuing and Excess Availability has equaled or exceeded the Minimum Excess Availability Amount for 60 consecutive days.
"Covered Entity" means any of the following:
(a)a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(b)a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(c)a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
"Covered Party" has the meaning specified therefor in Section 17.18 of this Agreement.
"CRR" means either CRR-EU or, as the context may require, CRR-UK.
"CRR-EU" means regulation 575/2013 of the European Union on prudential requirements for credit institutions and investment firms and regulation 2019/876 of the European Union amending Regulation (EU) No 575/2013 and all delegated and implementing regulations supplementing that Regulation.
"CRR-UK" means CRR-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.
"CRR II" means either CRR II-EU or, as the context may require, CRR II-UK.
"CRR II-EU" means regulation 2019/876 amending CRR-EU as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012 and all delegated and implementing regulations supplementing that Regulation.
"CRR II-UK" means CRR II-EU as amended and transposed into the laws of the United Kingdom by the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 and as amended by the Capital Requirements (Amendment) (EU Exit) Regulations 2019.
"Default" means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.
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"Defaulting Lender" means any Lender that (a) has failed to fund any amounts required to be funded by it under this Agreement within 1 Business Day of the date that it is required to do so under this Agreement (including the failure to make available to Agent amounts required pursuant to a Settlement or to make a required payment in connection with a Letter of Credit Disbursement), (b) notified Borrowers, Agent, or any Lender in writing that it does not intend to comply with all or any portion of its funding obligations under this Agreement, (c) has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements generally (as reasonably determined by Agent) under which it has committed to extend credit, (d) failed, within 1 Business Day after written request by Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund any amounts required to be funded by it under this Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it under this Agreement within 1 Business Day of the date that it is required to do so under this Agreement, unless the subject of a good faith dispute, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent or (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, receiver-manager, conservator, trustee, or custodian or appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, receiver-manager, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.
"Defaulting Lender Rate" means (a) with respect to US Obligations, (i) for the first 3 days from and after the date the relevant payment is due, the US Base Rate, and (ii) thereafter, the interest rate then applicable to US Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto), (b) with respect to Canadian Obligations, (i) for the first 3 days from and after the date the relevant payment is due, the Canadian <CDOR>Base Rate (if such Canadian Obligations are denominated in Canadian Dollars) or the US Base Rate (if such Canadian Obligations are denominated in Dollars), and (ii) thereafter, the interest rate then applicable to Canadian Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto), and (c) with respect to Belgian Obligations and German Obligations, (i) for the first 3 days from and after the date the relevant payment is due, EURIBOR, and (ii) thereafter, the interest rate then applicable to Belgian Revolving Loans and German Revolving Loans (respectively) that are Base Rate Loans (inclusive of the Non-Base Rate Margin applicable thereto).
"Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
"Deposit Account" means any deposit account (as that term is defined in the Code) and/or with respect to any Deposit Account located outside of the United States, any bank account with a deposit function.
"Disqualified Equity Interests" shall mean any Equity Interest that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders
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thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date.
"Dollar Equivalent" means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in another currency, the equivalent amount thereof in Dollars as determined by Agent, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date determined by Agent) for the purchase of Dollars with such currency.
"Dollars" or "$" means United States dollars.
"Domestic Cash Equivalents" means:
(a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof,
(b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor's Rating Group ("S&P") or Moody's Investors Service, Inc. ("Moody's"),
(c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody's,
(d) certificates of deposit, time deposits, overnight bank deposits or bankers' acceptances maturing within one year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $500,000,000,
(e) cash and other securities deposited in Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation,
(f) repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or recognized securities dealer having combined capital and surplus of not less than $500,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above,
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(g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and
(h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above.
"Drawing Document" means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.
"EBITDA" means, for any period, the sum of the following determined on a consolidated basis, without duplication, for Worldwide and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following, without duplication, to the extent deducted in determining Consolidated Net Income for such period: (i) any accrual for federal, state, local or foreign income and franchise taxes in respect of such period, (ii) Interest Expense for such period, and (iii) amortization, depreciation and other non-cash charges for such period (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future), (iv) extraordinary losses during such period (excluding extraordinary losses from discontinued operations) and (v) Transaction Costs less (c) any extraordinary gains during such period.
"EEA Financial Institution" means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
"EEA Member Country" means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
"EEA Resolution Authority" means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
"Eligible Accounts" means the US Eligible Accounts, Canadian Eligible Accounts, Belgian Eligible Accounts and/or the German Eligible Accounts, as the context requires.
"Eligible Inventory" means the US Eligible Inventory, Canadian Eligible Inventory, Belgian Eligible Inventory and/or the German Eligible Inventory, as the context requires.
"Eligible Transferee" means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any Lender; and (b) (i) a commercial bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof;
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provided that (A) (x) such bank is acting through a branch or agency located in the United States or (y) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; (d) any other entity (other than a natural person) that is an "accredited investor" (as defined in Regulation D under the Securities Act or under applicable Canadian securities legislation) that extends credit or buys loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies, and having total assets in excess of $1,000,000,000; and (f) during the continuation of an Event of Default, any other Person approved by Agent.
"Employee Benefit Plan" means any employee benefit plan within the meaning of Section 3(3) of ERISA (a) that is maintained for employees of any Loan Party or any ERISA Affiliate, (b) that has at any time within the preceding six (6) years been maintained for the employees of any Loan Party or any current or former ERISA Affiliate, (c) to which any Loan Party or any ERISA Affiliate makes contributions or is required to make contributions, (d) to which any Loan Party or any ERISA Affiliate has made or has been required to make contributions at any time within the preceding six (6) years or (e) to which any Loan Party to any ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability, contingent or otherwise.
"Environmental Action" means any written complaint, summons, citation, directive, order, litigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Borrower, any Loan Party Subsidiary, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any Loan Party Subsidiary, or any of their predecessors in interest.
"Environmental Law" means any applicable federal (including the federal government of Canada), state, provincial, territorial, municipal or local statute, law, rule having the force and effect of law, regulation, ordinance, code, binding and enforceable written policy or rule of common law now or hereafter in effect and in each case as amended, or any binding and enforceable judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on any Loan Party or any Loan Party Subsidiary, relating to the environment, Hazardous Materials affecting employee health, or Hazardous Materials, in each case as amended from time to time. Without limitation, Environmental Law includes the Resource Conservation and Recovery Act ("RCRA"), the Canadian Environmental Protection Act (Canada), the Fisheries Act (Canada), the Transportation of Dangerous Goods Act (Canada) and the Ontario Water Resources Act (Ontario).
"Environmental Liabilities" means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.
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"Environmental Lien" means any Lien in favor of any Governmental Authority for Environmental Liabilities.
"Equipment" means equipment (as that term is defined in the Code or, to the extent applicable, the PPSA).
"Equity Interest" means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred stock, or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any US Loan Party under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any US Loan Party under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any US Loan Party is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any US Loan Party and whose employees are aggregated with the employees of such US Loan Party under IRC Section 414(o).
"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
"EUR Base Rate" means, as to any day, the greater of (a) the Floor per annum, and (b) (i) the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for a thirty (30) day period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Refinitiv's TREP screen as of 11:00 a.m., London time, <on>two Business Days prior to such day (or, for any day that is not a Business Day, two Business Days prior to the immediately preceding Business Day) (or any replacement Refinitiv's TREP page which displays that rate) (and, if any such rate is below zero, EUR Base Rate shall be deemed to be zero) and (ii) if the rate referenced above is not available, <“>"EUR Base Rate<”>" shall mean the rate per annum equal to the rate at which the Agent (or such other bank or banks as may be designated by the Agent in consultation with Administrative Borrower) is offered deposits in Euros at approximately 11:00 a.m., London time, on such day, for a thirty (30) day period and in an amount comparable to the amount of such Base Rate Loan to be outstanding during such a thirty (30) day period (or such other amount as the Agent may reasonably determine). Each determination of EUR Base Rate shall be made by Agent and shall be conclusive in the absence of manifest error.
"EUR Base Rate Loan" means each portion of the Revolving Loans that bears interest at a rate determined by reference to the applicable EUR Base Rate.
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"EURIBOR" means the greater of (a) the Floor per annum, and (b) (i) the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Refinitiv's TREP screen (or any replacement Refinitiv's TREP page which displays that rate) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the EURIBOR Rate Loan requested (whether as an initial EURIBOR Rate Loan or as a continuation of a EURIBOR Rate Loan or as a conversion of a Base Rate Loan to a EURIBOR Rate Loan) by Borrowers in accordance with this Agreement (and, if any such rate is below zero, EURIBOR shall be deemed to be zero) and (ii) if the rate referenced above is not available, <“>"EURIBOR<”>" shall mean, with respect to each day during each Interest Period pertaining to EURIBOR Rate Loans comprising part of the same Borrowing, the rate per annum equal to the rate at which the Agent (or such other bank or banks as may be designated by the Agent in consultation with Administrative Borrower) is offered deposits in Euros at approximately 11:00 a.m., London time, two Business Days prior to the first day of such Interest Period, for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of such EURIBOR Rate Loan to be outstanding during such Interest Period (or such other amount as the Agent may reasonably determine). Each determination of EURIBOR shall be made by Agent and shall be conclusive in the absence of manifest error.
"EURIBOR Rate Loan" means each portion of a Revolving Loan that bears interest at a rate determined by reference to EURIBOR.
"Euro" or "€" means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
"Euro Denominated Loan" means a Revolving Loan denominated in Euro.
"Euro Equivalent" means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Euros as determined by Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date as determined by Agent) for the purchase of Euros with Dollars.
"Event of Default" has the meaning specified therefor in Section 8 of this Agreement.
"Excess" has the meaning specified therefor in Section 2.14 of this Agreement.
"Excess Availability" means, as of any date of determination, the amount equal to Availability.
"Excess Availability Trigger Date" means any date Borrowers fail to maintain the Minimum Excess Availability Amount.
"Excess Belgian Availability" means, as of any date of determination, the lesser of (x) the amount by which the Belgian Borrowing Base (without giving effect to clauses (d) and (e) of the definition thereof) exceeds Belgian Revolver Usage and (y) the Belgian Canadian Guaranty Limit.
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"Excess Canadian Availability" means, as of any date of determination, the amount by which the Canadian Borrowing Base (without giving effect to clause (d) of the definition thereof) exceeds Canadian Revolver Usage.
"Excess US Availability" means, as of any date of determination, the amount by which the US Borrowing Base exceeds US Revolver Usage.
"Exchange Act" means the Securities Exchange Act of 1934, as in effect from time to time.
"Excluded Accounts" has the meaning specified therefor in the US Guaranty and Security Agreement.
"Excluded Swap Obligation" means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 2.15), or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party's failure for any reason to constitute an "eligible contract participant" as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
"Excluded Taxes" means (i) any Tax imposed on the net income or net profits of any Lender or any Participant (including any branch profits Taxes or franchise Taxes imposed in lieu of a Tax on net income or profits), in each case (A) imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender's or such Participant's principal office is located, or (B) that are Other Connection Taxes; (ii) Taxes that would not have been imposed but for a Lender's or a Participant's failure to comply with the requirements of Section 16.2 of this Agreement, (iii) any United States federal withholding Taxes that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except that Excluded Taxes shall not include (A) any amount that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of this Agreement, if any, with respect to such withholding Tax at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), and (B) additional United States federal withholding Taxes that may be imposed after the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, treaty, order or other decision or Change in Law with respect to any of the foregoing by any Governmental Authority; (iv) any German federal withholding Taxes that would be imposed on amounts payable to a Lender not tax resident in Germany based upon the applicable withholding rate in effect at the time such lender becomes a party to this Agreement (or designates a new lending office), except that Excluded Taxes shall not include (A) any amount that such lender (or its assignor, if any) was
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previously entitled to receive pursuant to Section 16.1 of this Agreement, if any, with respect to such withholding Tax at the time such lender becomes a party to this Agreement (or designates a new lending office), and (B) additional German federal withholding Taxes that may be imposed after the time such lender becomes a party to this Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, treaty, order or other decision or Change in Law with respect to any of the foregoing by any Governmental Authority; (v) any Taxes imposed under the Income Tax Act (Canada) payable by virtue of a Lender being a Person with whom a Canadian Loan Party does not deal at arm’s length for purposes of the Income Tax Act (Canada) or being a <“>"specified non-resident shareholder<”>" (as that term is defined in subsection 18(5) of the Income Tax Act (Canada)) of a Canadian Loan Party or a Person not dealing at arm’s length with such a <“>"specified non-resident shareholder<”>" for purposes of the Income Tax Act (Canada), in each case of this clause (v) other than where the non-arm’s length relationship arises, or where such Lender is a <“>"specified non-resident shareholder<”>" of a Canadian Loan Party, as a result of having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document; (vi) in relation to the Belgian Borrower, any withholding Tax due as a consequence of the relevant Lender not being a Belgian Qualifying Lender, or ceasing to be a Belgian Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Tax treaty, or any published practice or published concession of any relevant taxing authority; and (vii) any federal withholding Taxes imposed under FATCA.
"Existing Credit Facilities" means, collectively, (i) that certain Credit Agreement dated as of June 18, 2012, as amended, among Wells Fargo Capital Finance, LLC, as agent, the lenders party thereto, US Borrowers and Canadian Borrower and (ii) that certain Facility Agreement dated as of June 25, 2002, as amended, among German Borrower, Belgian Borrower and certain other Foreign Subsidiaries of Worldwide party thereto as Borrowers or Guarantors, Kronos Denmark APS, as Security Provider, Deutsche Bank AG, as Mandated Lead Arranger, Deutsche Bank Luxembourg S.A., as Agent and Security Agent, KBC Bank NV, as Fronting Bank and the other lenders party thereto.
"Extraordinary Advances" means the US Extraordinary Advances, Canadian Extraordinary Advances, Belgian Extraordinary Advances and/or the German Extraordinary Advances, as the context requires.
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, and (c) any intergovernmental agreement entered into by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement entered into in connection therewith).
"FCPA" means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
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"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).
"Fee Letter" means that certain amended and restated fee letter, dated as of <even date with this Agreement>the Second Amendment Closing Date, among US Borrowers and Agent, in form and substance reasonably satisfactory to Agent.
"Finance Lease" means any "finance lease" as such term is used in the Financial Accounting Standards Board's Accounting Standards Update No. 2016-02 Leases (Topic 842).
"Fixed Charges" means, with respect to any fiscal period and with respect to Worldwide and its Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense paid in cash during such period, (b) principal payments in respect of Indebtedness that are required to be paid during such period, and (c) all federal, state, provincial, local and foreign income taxes paid during such period, and (d) all Restricted Payments paid (whether in cash or other property, other than common Equity Interest) during such period.
"Fixed Charge Coverage Ratio" means, with respect to any fiscal period and with respect to Worldwide and its Subsidiaries determined on a consolidated basis in accordance with GAAP, the ratio of (i) EBITDA for such period minus Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such period, to (ii) Fixed Charges for such period.
"Floor" means a rate of interest equal to 0.25%.
"Foreign Cash Equivalents" means, in the case of any Subsidiary (other than a US Loan Party or a Subsidiary of Worldwide organized under the laws of the United States or a political subdivision thereof that is not a Loan Party), investments denominated in the currency of the jurisdiction in which such Subsidiary is organized or in Dollars, has its principal place of business or otherwise conducts business operations which are of substantially the same type as the items specified in the definition of Domestic Cash Equivalents, including, without limitation, cash and other securities denominated in Dollars or such other currencies and deposited in Deposit Accounts maintained with internationally recognized banks organized under the laws of jurisdictions in which such Subsidiary is organized customarily used by Persons similar in size to Worldwide for cash management purposes in jurisdictions outside the United States that (i) have a combined capital and surplus of not less than $500,000,000 (calculated at the then applicable exchange rate) or (ii) are otherwise deemed acceptable by Agent.
"Foreign Lender" means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30).
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"Foreign Subsidiary" means any Subsidiary of Worldwide that is not organized under the laws of the United States, any state thereof, the District of Columbia, Canada or any province or territory thereof.
"Funding Date" means the date on which a Borrowing occurs.
"Funding Losses" has the meaning specified therefor in Section 2.12(b)(ii) of this Agreement.
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.
"German Account Pledge <Agreement>Agreements" means (i) the first ranking pledge agreement over the bank accounts of German Borrower dated <as of even date with this Agreement>April 20 2021, in form and substance reasonably satisfactory to Agent, executed and delivered by German Borrower to the Agent<.> and (ii) the first ranking pledge agreement over the bank accounts of Kronos International, Inc. dated April 19, 2022, in form and substance reasonably satisfactory to Agent, executed and delivered by Kronos International, Inc. to the Agent.
"German Availability" means, as of any date of determination, the amount that German Borrower are entitled to borrow as German Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding German Revolver Usage).
"German Bank Product Agreements" means those agreements entered into from time to time by German Borrower with a Bank Product Provider in connection with the obtaining of any of the German Bank Products.
"German Bank Product Obligations" means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by German Borrower to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by a Bank Product Provider to German Borrower.
"German Bank Product Reserves" means, as of any date of determination, those reserves that Agent deems in its Permitted Discretion necessary or appropriate to establish (based upon the Bank Product Providers' determination of the liabilities and obligations of German Borrower in respect of German Bank Product Obligations) in respect of German Bank Products then provided or outstanding.
"German Borrowing" means a borrowing consisting of German Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by German Swing Lender in the case of a German Swing Loan, or by Agent in the case of an German Extraordinary Advance.
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"German Borrowing Base" means, as of any date of determination, the result of:
"German Borrowing Base Certificate" means a certificate in the form of Exhibit B-2.
"German Designated Account" means the German Deposit Account of German Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of German Borrower located at German Designated Account Bank that has been designated as such, in writing, by German Borrower to Agent).
"German Designated Account Bank" has the meaning specified therefor in Schedule D-1 to this Agreement (or such other bank that is located within Germany that has been designated as such, in writing, by German Borrower to Agent).
"German Dilution" means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the amount of (a) bad debt write-downs, discounts (other than customary early payment discounts), advertising allowances, credits, or other dilutive items with respect to German Borrower's Accounts during such period, by (b) German Borrower's billings with respect to Accounts during such period.
"German Dilution Reserve" means, as of any date of determination, an amount sufficient to reduce the advance rate against German Eligible Accounts by 1 percentage point for each percentage point by which German Dilution is in excess of 5%.
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"German Eligible Accounts" means those Accounts created by German Borrower in the ordinary course of its business, that arise out of German Borrower's sale of goods or rendition of services, that comply with each of the representations and warranties respecting German Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, German Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. German Eligible Accounts shall not include the following:
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"German Eligible Finished Goods Inventory" shall mean Inventory that qualifies as German Eligible Inventory and consists of first quality finished goods held for sale in the ordinary course of German Borrower's business.
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"German Eligible Inventory" means Inventory of German Borrower, that complies with each of the representations and warranties respecting German Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with German Borrower's historical accounting practices. An item of Inventory shall not be included in German Eligible Inventory if:
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"German Eligible Raw Material Inventory" shall mean Inventory that qualifies as German Eligible Inventory and consists of goods that are first quality raw materials.
"German Extraordinary Advances" has the meaning specified therefor in Section 2.3(d)(iii) of this Agreement.
"German Global Assignment Agreement" means the security assignment agreement granted by German Borrower over its present and future receivables, dated <as of even date with this Agreement>April 20, 2021, in form and substance reasonably satisfactory to Agent, executed and delivered by German Borrower to the Agent.
"German Hedge Obligations" means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of German Borrower arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
"German Issuing Bank" means Wells Fargo London or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender's sole discretion, to become a German Issuing Bank for the purpose of issuing German Letters of Credit pursuant to Section 2.11D of this Agreement, and German Issuing Bank shall be a Lender.
"German Letter of Credit" means a letter of credit (as that term is defined in the Code) issued for the account of German Borrower pursuant to the terms of this Agreement by German Issuing Bank.
"German Letter of Credit Disbursement" means a payment made by German Issuing Bank pursuant to a German Letter of Credit.
"German Letter of Credit Exposure" means, as of any date of determination with respect to any Lender, such Lender's participation in the German Letter of Credit Usage pursuant to Section 2.11D(e) on such date.
"German Letter of Credit Fee" has the meaning specified therefor in Section 2.6(b) of this Agreement.
"German Letter of Credit Indemnified Costs" has the meaning specified therefor in Section 2.11D(f) of this Agreement.
"German Letter of Credit Related Person" has the meaning specified therefor in Section 2.11D(f) of this Agreement.
"German Letter of Credit Sublimit" means €20,000,000.
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"German Letter of Credit Usage" means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding German Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to German Letters of Credit which remain unreimbursed or which have not been paid through a German Revolving Loan.
"German Line Cap" means, as of any date of determination, the lesser of (a) the German Maximum Revolver Amount, and (b) the German Borrowing Base as of such date of determination.
"German Loan Account" has the meaning specified therefor in Section 2.9 of this Agreement.
"German Maximum Revolver Amount" means the lesser of (x) €60,000,000 decreased by the amount of reductions in the German Revolver Commitments made in accordance with Section 2.4(c) of this Agreement and (y) the <US >Maximum Revolver Amount less the sum of US Revolver Usage, Canadian Revolver Usage and Belgian Revolver Usage at such time.
"German Monthly Reporting Event" means if at any time German Revolver Usage is greater than 25% of the German Line Cap.
"German Monthly Reporting Period" means the period commencing after the continuance of a German Monthly Reporting Event and continuing until the date when no German Monthly Reporting Event has occurred for 30 consecutive days.
"German Obligations" means (a) all loans (including the German Revolving Loans (inclusive of German Extraordinary Advances and German Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to German Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the German Loan Account pursuant to this Agreement), obligations (including indemnification obligations) of German Borrower, fees (including the fees provided for in the Fee Letter) of German Borrower, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of German Borrower, guaranties of German Borrower, and all covenants and duties of any other kind and description owing by German Borrower, in each of the foregoing cases, arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that German Borrower is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all German Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the German Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the German Obligations of German Borrowers under the Loan Documents include the obligation to pay (i) the principal of the German Revolving Loans, (ii) interest accrued on the German Revolving Loans, (iii) the amount necessary to reimburse German Issuing Bank for amounts paid or payable pursuant to German Letters
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of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, in each case, in respect of German Letters of Credit, (v) Lender Group Expenses of German Borrower, (vi) fees payable by German Borrower under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by German Borrower under any Loan Document. Any reference in this Agreement or in the Loan Documents to the German Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
"German Overadvance" means, as of any date of determination, that the German Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11D.
"German Protective Advances" has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
"German Revolver Commitment" means, with respect to each Revolving Lender, its German Revolver Commitment, and, with respect to all Revolving Lenders, their German Revolver Commitments, in each case as set forth beside such Revolving Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"German Revolver Usage" means, as of any date of determination, the sum of (a) the amount of outstanding German Revolving Loans (inclusive of German Swing Loans and German Protective Advances), plus (b) the amount of the German Letter of Credit Usage.
"German Revolving Loan Exposure" means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the German Revolver Commitments, the amount of such Lender's German Revolver Commitment, and (b) after the termination of the German Revolver Commitments, the aggregate outstanding principal amount of the German Revolving Loans of such Lender.
"German Revolving Loans" has the meaning specified therefor in Section 2.1(d) of this Agreement.
"German Security Documents" means the German Account Pledge Agreement, the German Global Assignment Agreement, the German Security Transfer Agreement, and any other Loan Document that creates a Lien on the Collateral and executed and delivered by a Loan Party to the Agent.
"German Security Transfer Agreement" means the security transfer agreement relating to all current assets (Umlaufvermögen) pursuant to section 266 paragraph (2) lit. (B) I no. (1) to and including (3) German Commercial Code (Handelsgesetzbuch) dated <as of even date with this Agreement>April 20, 2021, in form and substance reasonably satisfactory to Agent, executed and delivered by German Borrower to the Agent.
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"German Swing Lender" means Wells Fargo London or any other Lender that, at the request of German Borrower and with the consent of Agent agrees, in such Lender's sole discretion, to become the German Swing Lender under Section 2.3(b) of this Agreement.
"German Swing Loan" has the meaning specified therefor in Section 2.3(b) of this Agreement.
"German Swing Loan Exposure" means, as of any date of determination with respect to any Lender, such Lender's Pro Rata Share of the German Swing Loans on such date.
"German Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this Agreement.
"German Weekly Reporting Event" means if at any time the Dollar Equivalent of German Excess Availability is less than the greater of (a) 15% of the German Line Cap, and (b) $8,000,000.
"German Weekly Reporting Period" means the period commencing after the continuance of an German Weekly Reporting Event for 3 consecutive Business Days and continuing until the date when no German Weekly Reporting Event has occurred for 30 consecutive days.
"Governing Documents" means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person.
"Governmental Authority" means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
"Guarantors" means US Guarantors, Canadian Guarantors, and Belgian Guarantors.
"Hazardous Materials" means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable Environmental Laws as "hazardous substances," "hazardous materials," "hazardous wastes," "toxic substances," or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.
"Hedge Agreement" means a "swap agreement" as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.
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"Hedge Obligations" means US Hedge Obligations, Canadian Hedge Obligations, Belgian Hedge Obligations and/or German Hedge Obligations, as the context requires.
"Hedge Provider" means Wells Fargo or any of its Affiliates with respect to US Hedge Obligations, Canadian Hedge Obligations, Belgian Hedge Obligations and/or German Hedge Obligations.
"Increase" has the meaning specified therefor in Section 2.14.
"Increase Date" has the meaning specified therefor in Section 2.14.
"Increase Joinder" has the meaning specified therefor in Section 2.14.
"Indebtedness" as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Finance Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables and accrued liabilities incurred in the ordinary course of business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses), (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.
"Indemnified Liabilities" has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Person" has the meaning specified therefor in Section 10.3 of this Agreement.
"Indemnified Taxes" means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.
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"Insolvency Proceeding" means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other provincial, state or federal (including the federal government of Canada) bankruptcy or insolvency law, each as now and hereafter in effect, any successors to such statutes, and any similar laws in any jurisdiction including, without limitation, any laws relating to assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief and any law permitting a debtor to obtain a stay or a compromise of the claims of its creditors.
"Intercompany Purchase" means a purchase of goods made by any Loan Party from any Subsidiary of Worldwide (including another Loan Party).
"Intercompany Subordination Agreement" means an intercompany subordination agreement, dated as of even date with this Agreement, executed and delivered by each Borrower, each of the Loan Party Subsidiaries, and Agent, the form and substance of which is reasonably satisfactory to Agent.
"Interest Expense" means, for any period, the sum of the following determined on a consolidated basis, without duplication, for the Borrowers and their Subsidiaries in accordance with GAAP, interest expense (including, without limitation, interest expense attributable to Finance Leases and all net payment obligations pursuant to Hedge Agreements attributable to Indebtedness) for such period.
"Interest Period" means, with respect to each Non-Base Rate Loan, a period commencing on the date of the making of such Non-Base Rate Loan (or the continuation of a Non-Base Rate Loan or the conversion of a Base Rate Loan to a Non-Base Rate Loan) and ending 1 or 3 months thereafter in respect of SOFR Loans, <Canadian CDOR Rate>CORRA Loans or EURIBOR Rate Loans; provided, that (a) interest shall accrue at the applicable rate based upon the Non-Base Rate from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (b) Borrowers may not elect an Interest Period which will end after the Maturity Date, and (c) no tenor that has been removed from this definition pursuant to Section 2.12(d)(iii)(D) shall be available for specification in any Non-Base Rate Notice or conversion or continuation notice; provided further, that for Non-Base Rate Loans (<but not CDOR Rate Loans) (>A) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day and (B) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1 or 3 months after the date on which the Interest Period began.
"Inventory" means inventory (as that term is defined in the Code or, to the extent applicable, the PPSA).
"Inventory Reserves" means, as of any date of determination, (a) Landlord Reserves, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including reserves for slow moving Inventory and
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Inventory shrinkage) with respect to the US Eligible Inventory, Canadian Eligible Inventory, Belgian Eligible Inventory, and German Eligible Inventory.
"Investment" means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.
"IRC" means the Internal Revenue Code of 1986, as in effect from time to time.
"ISP" means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any version or revision thereof accepted by the Issuing Bank or Canadian Underlying Issuer for use.
"Issuer Document" means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of Issuing Bank or Canadian Underlying Issuer and relating to such Letter of Credit.
"Issuing Bank" means US Issuing Bank, Canadian Issuing Bank, Belgian Issuing Bank and/or German Issuing Bank, as the context requires.
"Landlord Reserve" means, (a) as to each leased or third party location at which a Borrower has Inventory or books and records located and as to which a Collateral Access Agreement has not been received by Agent, a reserve in an amount determined in Agent's Permitted Discretion which (i) in respect of leased locations, shall not exceed the greater of (x) the number of months rent for which the landlord will have, under applicable law, a Lien in the Inventory of such Borrower to secure the payment of rent or other amounts under the lease relative to such location, or (y) 3 months rent under the lease relative to such location, or (ii) in respect of any third party locations, 3 months costs under the relevant agreement with such third party relevant to such location, but, in each case, not to exceed the value of Inventory located at such leased or third party location that is included in the US Borrowing Base, the Canadian Borrowing Base, the Belgian Borrowing Base and the German Borrowing Base and (b) a reserve for 18 months rent and costs in respect of German leased locations at which a Borrower has Inventory or books and records located.
"Lender" has the meaning set forth in the preamble to this Agreement, shall include Issuing Bank and the Swing Lender, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 13.1 of this Agreement and "Lenders" means each of the Lenders or any one or more of them.
"Lender Group" means each of the Lenders (including Issuing Bank and the Swing Lender) and Agent, or any one or more of them.
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"Lender Group Expenses" means all (a) costs or expenses (including taxes and insurance premiums) required to be paid by any Loan Party or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) documented out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group's transactions with each Loan Party and its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Agent's customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Agent's customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable, documented out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 5.7(c) of this Agreement, (h) Agent's and Lenders' reasonable, documented costs and expenses (including reasonable and documented attorneys' fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent's Liens in and to the Collateral, or the Lender Group's relationship with any Loan Party or any of its Subsidiaries, (i) Agent's reasonable and documented costs and expenses (including reasonable and documented attorneys' fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to CUSIP, DXSyndicate™, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and (j) Agent's and each Lender's reasonable and documented costs and expenses (including reasonable and documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a "workout," a "restructuring," or an Insolvency Proceeding concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the Collateral.
"Lender Group Representatives" has the meaning specified therefor in Section 17.9 of this Agreement.
"Lender-Related Person" means, with respect to any Lender, such Lender, together with such Lender's Affiliates, officers, directors, employees, attorneys, and agents.
"Letter of Credit" means a letter of credit (as that term is defined in the Code) issued by Issuing Bank.
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"Letter of Credit" means a US Letter of Credit, a Canadian Letter of Credit, a Belgian Letter of Credit and/or a German Letter of Credit, as the context requires.
"Letter of Credit Collateralization" means with respect to the US Letter of Credit Usage, the Canadian Letter of Credit Usage, the Belgian Letter of Credit Usage or the German Letter of Credit Usage, as applicable, either (a) providing cash collateral in the Applicable Currency (pursuant to documentation reasonably satisfactory to Agent, including provisions that specify that the applicable Letter of Credit Fees and all fees, charges and commissions provided for in this Agreement (including any fronting fees) will continue to accrue while the applicable Letters of Credit are outstanding) to be held by Agent for the benefit of the applicable Revolving Lenders in an amount equal to 103% of the then existing applicable Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the applicable Letters of Credit, in form and substance reasonably satisfactory to Agent and the applicable Issuing Bank, terminating all of such beneficiaries' rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent in the Applicable Currency, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 103% of the then existing applicable Letter of Credit Usage (it being understood that the applicable Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the applicable Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).
"Letter of Credit Disbursement" means a US Letter of Credit Disbursement, a Canadian Letter of Credit Disbursement, a Belgian Letter of Credit Disbursement and/or a German Letter of Credit Disbursement, as the context requires.
"Letter of Credit Exposure" means the US Letter of Credit Exposure, the Canadian Letter of Credit Exposure, the Belgian Letter of Credit Exposure and/or the German Letter of Credit Exposure, as the context requires.
"Letter of Credit Fees" means the US Letter of Credit Fees, the Canadian Letter of Credit Fees, the Belgian Letter of Credit Fees and/or the German Letter of Credit Fees, as the context requires.
"Letter of Credit Usage" means the US Letter of Credit Usage, the Canadian Letter of Credit Usage, the Belgian Letter of Credit Usage and/or the German Letter of Credit Usage, as the context requires.
"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, hypothec, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Finance Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
"Line Cap" means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and (b) the sum of the US Borrowing Base, Canadian Borrowing Base, Belgian Borrowing Base and the German Borrowing Base as of such date of determination.
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"Loan" shall mean any Revolving Loan, Swing Loan, or Extraordinary Advance made (or to be made) hereunder.
"Loan Account" means the US Loan Account, the Canadian Loan Account, the Belgian Loan Account and/or the German Loan Account, as the context requires.
"Loan Documents" means this Agreement, the Control Agreements, any Borrowing Base Certificates, the Fee Letter, the US Guaranty and Security Agreement, the Intercompany Subordination Agreement, any Issuer Documents, the Letters of Credit, the Canadian Security Documents, the Belgian Security Documents, the German Security Documents, any guaranties executed by any Loan Party, any note or notes executed by any Borrower in connection with this Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by Borrowers or any of their Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically excluding Bank Product Agreements).
"Loan Parties" means the US Loan Parties, the Canadian Loan Parties, the Belgian Loan Parties and/or the German Borrower, as the context requires.
"Loan Party Subsidiary" means each Subsidiary of Worldwide that is a Loan Party and each other Material Subsidiary of Worldwide that is organized under the laws of the United States, any state thereof, the District of Columbia, Canada, any province or territory thereof or Belgium.
"LPC" means Louisiana Pigment Company, L.P., a Delaware limited partnership.
"LPC Acquisition" means the acquisition of all of the Equity Interests of LPC by Kronos Louisiana on the Second Amendment Closing Date pursuant to the terms of the LPC Purchase Agreement.
"LPC Purchase Agreement" means the Purchase and Sale Agreement dated as of July 16, 2024 by and among Kronos Louisiana, Worldwide, Venator Investments Ltd., Venator Materials PLC, and LPC, pursuant to which Venator Investments Ltd. is selling and transferring to Kronos Louisiana all of the Equity Interests in LPC held by Venator Investments Ltd.
"Margin Stock" as defined in Regulation U of the Board of Governors as in effect from time to time.
"Material Adverse Effect" means (a) a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition of Borrowers and the Loan Party Subsidiaries, taken as a whole, (b) a material impairment of Borrowers' and the Loan Party Subsidiaries' ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group's ability to enforce the Obligations or realize upon the Collateral (other than as a result of as a result of an action taken or not taken that is solely in the control of Agent), or (c) a material impairment of the enforceability or priority of Agent's Liens with respect to all or a material portion of the Collateral other than as a result of an action or failure to act on the part of any Borrower or any Loan Party Subsidiary.
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"Material Subsidiary" means (a) a wholly owned Subsidiary of Worldwide with (1) net sales that are equal to or greater than 5.0% of the consolidated net sales of Worldwide and its consolidated Subsidiaries for the most recent fiscal quarter for which a consolidated income statement of Worldwide and its consolidated Subsidiaries is available or (2) assets that are equal to or greater than 5.0% of the total assets of Worldwide and its consolidated Subsidiaries as of the end of the most recent fiscal quarter for which a consolidated balance sheet of Worldwide and its consolidated Subsidiaries is available and (b) Kronos LPC, LLC, a Delaware limited liability company.
"Maturity Date" means the earlier of (i) <April 20, 2026>July 17, 2029 and (ii) 90 days prior to the final maturity of the Notes Debt (or, to the extent the Notes Debt is repaid in full with proceeds of Refinancing Indebtedness, 90 days prior to the final maturity of such Refinancing Indebtedness).
"Maximum Revolver Amount" means $<225,000,000>300,000,000, decreased by the amount of reductions in the Revolver Commitments made in accordance with Section 2.4(c) of this Agreement.
"Minimum Excess Availability Amount" means, as of any date of determination, the greater of (a) 10% of the Line Cap and (b) $<20,000,000>27,000,000.
"Monthly Reporting Event" means if at any time Revolver Usage is greater than 25% of the Line Cap.
"Monthly Reporting Period" means the period commencing after the continuance of a Monthly Reporting Event and continuing until the date when no Monthly Reporting Event has occurred for 30 consecutive days.
"Moody's" has the meaning specified therefor in the definition of Domestic Cash Equivalents.
"Multiemployer Plan" means any multiemployer plan within the meaning of Section 3(37) of ERISA with respect to which any Loan Party, any Loan Party Subsidiary, or any of their ERISA Affiliates has an obligation to contribute or otherwise has any liability.
"Net Assets" means, in relation to Belgian Borrower or any Belgian Guarantor, if applicable, netto actief/actif net as defined in article 5:142 or 7:212 (as the case may be) of the BCCA, it being understood that (i) any financial indebtedness owed by Belgian Borrower or such Belgian Guarantor to other Loan Parties will not be taken into account for the purpose of calculating Belgian Borrower’s or such Belgian Guarantor’s liabilities (schulden/dettes) and, (ii) in the event of a dispute on the amount of Net Assets, a certificate of such amount from the statutory auditors of Belgian Borrower or such Belgian Guarantor (or, if these are not available, an independent firm of accountants of international reputation) shall be conclusive, save in case of manifest error.
"Net Recovery Percentage" means, as of any date of determination, the percentage of the book value of Borrowers' Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent appraisal received by Agent from an Acceptable Appraisal.
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<"Non-Base Rate Deadline>" has the meaning specified therefor in Section 2.12(<b)(i) of this Agreement.>
"Non-Base Rate< Notice>" means a written notice in the form of Exhibit L-1the Adjusted Term SOFR, EURIBOR or the Adjusted Term CORRA.
"Non-Base Rate <Option>Deadline" has the meaning specified therefor in Section 2.12(<a>b)(i) of this Agreement.
<"Non-Base Rate" means >the Adjusted Term SOFR, EURIBOR or the <Canadian CDOR Rate.>
"Non-Base Rate Loan" means each portion of a Revolving Loan that bears interest at a rate determined by reference to the applicable Non-Base Rate.
"Non-Base Rate Margin" has the meaning set forth in the definition of Applicable Margin.
"Non-Base Rate Notice" means a written notice in the form of Exhibit L-1.
"Non-Base Rate Option" has the meaning specified therefor in Section 2.12(a) of this Agreement.
"Non-Consenting Lender" has the meaning specified therefor in Section 14.2(a) of this Agreement.
"Non-Defaulting Lender" means each Lender other than a Defaulting Lender.
"Non-Cooperative Jurisdiction" means a tax haven country, a low-tax jurisdiction or a non-cooperative jurisdiction, within the meaning of Article 307, §1/2 of the Belgian Income Tax Code 1992 or any successor provision.
"Non-Defaulting Lender" means each Lender other than a Defaulting Lender.
"Notes Debt" means Indebtedness under the Notes Documents.
"Notes Documents" means Notes Indenture and all agreements, documents and instruments executed and/or delivered pursuant thereto or in connection therewith.
"Notes Indenture" means that certain Indenture among Kronos International, Inc., as Issuer, the guarantors named therein, Deutsche Bank Trust Company Americas, as trustee and collateral agent and Deutsche Bank Trust Company Americas, as paying agent, transfer agent and registrar, as amended or modified from time to time in compliance with the terms hereof.
"Notification Event" means (a) the occurrence of a "reportable event" described in Section 4043 of ERISA for which the 30-day notice requirement has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate from a Pension Plan during a plan year in which it was a "substantial employer" as defined in Section
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4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC or any Pension Plan or Multiemployer Plan administrator, (e) any other event or condition that would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant to the IRC or ERISA in connection with any Employee Benefit Plan or the existence of any facts or circumstances that could reasonably be expected to result in the imposition of a Lien, (g) the partial or complete withdrawal of any Loan Party or ERISA Affiliate from a Multiemployer Plan (other than any withdrawal that would not constitute an Event of Default under Section 8.12), (h) any event or condition that results in the reorganization or insolvency of a Multiemployer Plan under Sections of ERISA, (i) any event or condition that results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings to terminate or to appoint a trustee to administer a Multiemployer Plan under ERISA, (j) any Pension Plan being in "at risk status" within the meaning of IRC Section 430(i), (k) any Multiemployer Plan being in "endangered status" or "critical status" within the meaning of IRC Section 432(b) or the determination that any Multiemployer Plan is or is expected to be insolvent or in reorganization within the meaning of Title IV of ERISA, (l) with respect to any Pension Plan, any Loan Party or ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e), (m) an "accumulated funding deficiency" within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA) or the failure of any Pension Plan or Multiemployer Plan to meet the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA), in each case, whether or not waived, (n) the filing of an application for a waiver of the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA) with respect to any Pension Plan or Multiemployer Plan, (o) the failure to make by its due date a required payment or contribution with respect to any Pension Plan or Multiemployer Plan, (p) any event that results in or could reasonably be expected to result in a liability by a Loan Party pursuant to Title I of ERISA or the excise tax provisions of the IRC relating to Employee Benefit Plans or any event that results in or could reasonably be expected to result in a liability to any Loan Party or ERISA Affiliate pursuant to Title IV of ERISA or Section 401(a)(29) of the IRC, or (q) any of the foregoing is reasonably likely to occur in the following 30 days.
"Obligations" means the US Obligations, the Canadian Obligations, the Belgian Obligations and/or the German Obligations, as the context requires.
"OFAC" means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
"Optional Monthly Borrowing Base Period" means at any time when Borrowing Base Certificates are only required to be delivered quarterly under this Agreement, Borrowers may elect, in their sole discretion, to deliver Borrowing Base Certificates monthly, with it being understood that in making this election to deliver optional monthly Borrowing Base Certificates all Borrowers must (a) provide Borrowing Base Certificates monthly for the fiscal month selected and (b) continue to provide monthly Borrowing Base Certificates for all remaining months through the end of the fiscal quarter in which the Borrowers made such election. At the conclusion of each Optional Monthly
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Borrowing Base Period, the frequency of Borrowing Base Certificate submissions shall revert to as otherwise provided in Schedule 5.2.
"Originating Lender" has the meaning specified therefor in Section 13.1(e) of this Agreement.
<“>"Other Connection Taxes<”>" means, with respect to any Lender or Participant, Taxes imposed as a result of a present or former connection between such Lender or Participant and the jurisdiction imposing such Tax (other than connections arising from such Lender or Participant having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes" means all present or future stamp, court, excise, or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document; provided, however, for the avoidance of doubt, Other Taxes shall not include any Other Connection Taxes imposed with respect to an assignment by a Lender after the date hereof (other than an assignment (i) by a Tax Lender, or (ii) at the request of any Loan Party, or (iii) during an Event of Default specified in Section 8.1(b), 8.4, 8.5, or 8.8).
"Overadvance" means a US Overadvance, a Canadian Overadvance, a Belgian Overadvance and/or a German Overadvance, as the context requires.
"Parallel Debt" has the meaning specified therefor in Section 2.18 of this Agreement.
"Participant" has the meaning specified therefor in Section 13.1(e) of this Agreement.
"Participant Register" has the meaning set forth in Section 13.1(i) of this Agreement.
"Patriot Act" has the meaning specified therefor in Section 4.13 of this Agreement.
"Payment Conditions" means, at the time of determination with respect to a proposed payment to fund a Specified Transaction, that:
(i)the Dollar Equivalent of Excess Availability after giving effect to such proposed payment and Specified Transaction, in each case, is not less than the greater of (1) 17.5% of the Line Cap, and (2) $<35,000,000>46,000,000, or
(ii)both (A) the Fixed Charge Coverage Ratio of Worldwide and its consolidated Subsidiaries is equal to or greater than 1.0:1.00 for the trailing 12 month period most recently ended for which financial statements are required to have been delivered to Agent
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pursuant to Schedule 5.1 to this Agreement (or which financial statements are included in the 10-K or 10-Q most recently filed by Worldwide with the SEC) (calculated on a pro forma basis as if such proposed payment is a Fixed Charge made on the last day of such 12 month period (it being understood that such proposed payment shall also be a Fixed Charge made on the last day of such 12 month period for purposes of calculating the Fixed Charge Coverage Ratio under this clause (ii) for any subsequent proposed payment to fund a Specific Transaction)), and (B) Excess Availability after giving effect to such proposed payment and Specified Transaction, in each case, is not less than the greater of (X) 12.5% of the Line Cap, and (Y) $<25,000,000>33,000,000, and
"PBGC" means the Pension Benefit Guaranty Corporation or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code.
"Perfection Certificate" means a certificate in the form of Exhibit P-1.
"Permitted Acquisition" means <any>the LPC Acquisition and any other Acquisition so long as:
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"Permitted Discretion" means a determination made in good faith in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment by Agent.
"Permitted Dispositions" means:
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"Permitted Holder" means (a) Lisa K. Simmons or Thomas C. Connelly, or members of the families of Lisa K. Simmons or Thomas C. Connelly, including their spouses and/or their descendants, whether natural or adopted (collectively, the <“>"Simmons Family Members<”>"), (b) any trust established primarily for the benefit of the Simmons Family Members (<“>"Simmons Trust<”>"), (c) trustees acting in such capacity, or beneficiaries of a Simmons Trust to the extent of the beneficial interest therein and for so long as such Simmons Trust exists, (d) any employee plan or pension fund of Worldwide or any of its Subsidiaries, (e) any Person holding Equity Interests for or pursuant to the terms of such plan or fund and (f) any Person controlled by, or any group made up of, any one or more Persons specified in the foregoing clauses (a) through (e).
"Permitted Indebtedness" means:
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"Permitted Intercompany Advances" means loans made by (a) any US Loan Party, German Borrower, Canadian Loan Party or Belgium Loan Party to any US Loan Party (or loans to any Subsidiary of Worldwide that the proceeds thereof are substantially concurrently used to make loans or Restricted Payments to, or Investments in, any US Loan Party), (b) any subsidiary of Worldwide that is not a Loan Party to a Loan Party, (c) any subsidiary of Worldwide that is not a Loan Party to any other subsidiary of Worldwide that is not a Loan Party, (d) any Loan Party to Worldwide or any Subsidiary of Worldwide so long as the Payment Conditions are met, (e) any Loan Party to German Borrower, any Canadian Loan Party or any Belgian Loan Party, and (f) any Loan Party to a subsidiary of Worldwide that is not a Loan Party, provided that in the case of clauses (e) and (f) of this section, if the Payment Conditions cannot be satisfied at the time any such loan is made, (i) immediately after giving effect to the making of such loan, the aggregate outstanding principal amount of all such loans (by type, not by the borrower) made pursuant to clauses (e) and (f) of this section at a time when the Payment Conditions were not satisfied, shall not exceed the greater of (x) $100,000,000 and (y) 5% of the total assets of Worldwide and its consolidated Subsidiaries at such time, and (ii) at the time of the making of any such loan, no Event of Default shall have occurred and be continuing or shall result therefrom.
"Permitted Investments" means:
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"Permitted Liens" means
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"Permitted Protest" means the right of any Borrower or any Loan Party Subsidiary to protest any Lien (other than any Lien that secures the Obligations), Taxes (other than payroll Taxes or Taxes that are the subject of a United States federal tax lien or a requirement to pay issued by a Canadian Governmental Authority), or rental payment, provided that (a) a reserve with respect to such obligation is established on such Borrower's or such Loan Party Subsidiary's books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by such Borrower or such Loan Party Subsidiary, as applicable, in good faith, and (c) while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of Agent's Liens.
"Permitted Purchase Money Indebtedness" means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred after the Closing Date and at the time of, or within 90 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of the greater of (i) $100,000,000 and (ii) 5% of the total assets of Worldwide and its consolidated Subsidiaries at such time.
"Person" means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.
"Platform" has the meaning specified therefor in Section 17.9(c) of this Agreement.
"Post-Increase Revolver Lenders" has the meaning specified therefor in Section 2.14 of this Agreement.
"PPSA" means the Personal Property Security Act (Ontario) and the regulations thereunder, as from time to time in effect; provided, however, if attachment, perfection or priority of Agent's Lien on any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than the laws of the Province of Ontario, "PPSA" means those personal property security laws in such other jurisdiction in Canada (including the Civil Code of Quebec and the regulation respecting the register of personal and movable real rights promulgated thereunder) for the purposes of the provisions hereof relating to such attachment, perfection or priority and for the definitions related to such provisions.
"Pre-Increase Revolver Lenders" has the meaning specified therefor in Section 2.14 of this Agreement.
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"Projections" means Borrowers' forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Borrowers' historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.
"Pro Rata Share" means, as of any date of determination:
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"Protective Advances" means the US Protective Advances, the Canadian Protective Advances, the Belgian Protective Advances and/or the German Protective Advances, as the context requires.
"Public Lender" has the meaning specified therefor in Section 17.9(c) of this Agreement.
"QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).
"QFC Credit Support" has the meaning specified therefor in Section 17.18 of this Agreement.
"Qualified Cash" means, as of any date of determination, the amount of unrestricted cash and Domestic Cash Equivalents of US Loan Parties that is in Deposit Accounts or in Securities Accounts, or any combination thereof, and which such Deposit Account or Securities Account is the subject of a Control Agreement and is maintained by a branch office of the bank or securities intermediary located within the United States.
"Qualified Equity Interest" means and refers to any Equity Interests issued by Worldwide (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.
"Quebec Security Documents" means any hypothecs and all other security documents governed by the laws of the Province of Quebec, each in form and substance reasonably satisfactory to Agent, executed and delivered by each Loan Party having tangible Collateral or its registered office located in the Province of Quebec to the Agent.
"Real Property" means any estates or interests in real property now owned or hereafter acquired by any Borrower or one of its Loan Party Subsidiaries and the improvements thereto.
"Receivable Reserves" means, as of any date of determination, those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including reserves for rebates, discounts, warranty claims, and returns) with respect to the US Eligible Accounts, Canadian Eligible Accounts, Belgian Eligible Accounts, and/or the German Eligible Accounts.
"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
<"Reference Period" has the meaning set forth in the definition of EBITDA.>
"Refinancing Indebtedness" means refinancings, renewals, or extensions of Indebtedness so long as:
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"Register" has the meaning set forth in Section 13.1(h) of this Agreement.
"Registered Loan" has the meaning set forth in Section 13.1(h) of this Agreement.
"Regulation" means Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast).
"Regulatory Authority" has the meaning specified therefor in Section 17.9 of this Agreement.
"Related Fund" means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.
"Relevant Governmental Body" means (a) the Board of Governors or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors or the Federal Reserve Bank of New York, or any successor thereto< and>, (b) with respect to Term CORRA, the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada, or any successor thereto, and (c) with respect to EURIBOR, the European Money Markets Institute or any successor thereto.
"Remedial Action" means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.
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"Replacement Lender" has the meaning specified therefor in Section 2.13(b) of this Agreement.
"Report" has the meaning specified therefor in Section 15.17 of this Agreement.
"Required Availability" means that the sum of (a) Excess Availability, plus (b) Qualified Cash exceeds $50,000,000.
"Required Lenders" means, at any time, Lenders having or holding more than 50% of the sum of the aggregate Dollar Equivalent of Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders, and (ii) at any time there are 2 or more Lenders, "Required Lenders" must include at least 2 Lenders (who are not Affiliates of one another).
"Reserves" means, as of any date of determination, those reserves (other than Receivable Reserves, Bank Product Reserves, and Inventory Reserves) that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including reserves with respect to (a) sums that any Borrower or any Loan Party Subsidiary is required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (b) amounts owing by Borrowers or any Loan Party Subsidiary to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to the Agent's Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral, (c) to the extent such amounts are given priority under applicable law, any VAT or other sales tax invoiced but not paid to the relevant tax authority, (d) an amount of 9% of the aggregate value of the Accounts and Inventory of the German Borrower payable to a potential insolvency administrator, (e) the costs and expenses of any insolvency administrator or in connection with any other claims and liabilities that Agent determines will need to be satisfied in connection with any enforcement of the Collateral, and (f) amounts owed to the German Borrower’s and Belgian Borrower's payroll providers, including SD WORX GMBH and Attentia) with respect to the US Borrowing Base, Canadian Borrowing Base, Belgian Borrowing Base and/or German Borrowing Base. Without limiting the foregoing, Agent may establish Canadian Priority Payables Reserves with respect to the Canadian Borrowing Base and/or the Canadian Maximum Revolver Amount.
"Resolution Authority" means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
"Restricted Payment" means to (a) declare or pay any dividend or make any other payment or distribution, directly or indirectly, on account of Equity Interests issued by Worldwide or any of its Subsidiaries (including any payment in connection with any merger, amalgamation or consolidation involving Worldwide) or to the direct or indirect holders of Equity Interests issued by Worldwide or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by Worldwide or any of its Subsidiaries), or (b) purchase, redeem, make any sinking fund or similar payment, or otherwise acquire or retire for value (including
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in connection with any merger, amalgamation or consolidation involving Worldwide) any Equity Interests issued by Worldwide or any of its Subsidiaries, and (c) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of Worldwide now or hereafter outstanding.
"Revaluation Date" means (a) with respect to any Revolving Loan denominated in Canadian Dollars or Euros, each of the following: (i) each date of a Borrowing of such Revolving Loan, (ii) each date of a continuation of such Revolving Loan pursuant to Section 2.12, and (iii) such additional dates as Agent shall determine or the Required Lenders shall require, (b) with respect to any Letter of Credit denominated in Canadian Dollars or Euros, each of the following: (i) each date of issuance of such Letter of Credit, (ii) each date of an amendment of such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by an Issuing Bank under such Letter of Credit, and (iv) such additional dates as Agent or an Issuing Bank shall determine or the Required Lenders shall require, and (c) with respect to any other Obligations denominated in Canadian Dollars or Euros, each date as Agent shall determine unless otherwise prescribed in this Agreement or any other Loan Documents.
"Revolver Commitments" means the US Revolver Commitments, the Canadian <Revolving>Revolver Commitments, the Belgian <Revolving>Revolver Commitments and/or the German <Revolving>Revolver Commitments, as the context requires.
"Revolver Usage" means the US Revolver Usage, the Canadian Revolver Usage, the Belgian Revolver Usage and/or the German Revolver Usage, as the context requires.
"Revolving Lender" means a Lender that has a Revolving Loan Commitment or that has an outstanding Revolving Loan.
"Revolving Loan Exposure" means the US Revolving Loan Exposure, the Canadian Revolving Loan Exposure, the Belgian Revolving Loan Exposure and/or the German Revolving Loan Exposure, as the context requires.
"Revolving Loans" means a US Revolving Loan, a Canadian Revolving Loan, a Belgian Revolving Loan and/or a German Revolving Loan, as the context requires.
"Sanctioned Entity" means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.
"Sanctioned Person" means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.
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"Sanctions" means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the Government of Canada, (d) the European Union or any European Union member state, (e) Her Majesty's Treasury of the United Kingdom, or (f) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates.
"S&P" has the meaning specified therefor in the definition of Domestic Cash Equivalents.
"SEC" means the United States Securities and Exchange Commission and any successor thereto.
"Second Amendment Closing Date" means July 17, 2024.
"Secured Parties" means the Agent, the Lead Arranger, the Sole Bookrunner and the Lenders and each means a "Secured Party".
"Securities Account" means a securities account (as that term is defined in the Code).
"Securities Act" means the Securities Act of 1933, as amended from time to time, and any successor statute.
"Settlement" has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
"Settlement Date" has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.
"SOFR" means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
"SOFR Administrator" means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
"SOFR Loan" means each portion of a Revolving Loan that bears interest at a rate determined by reference to Adjusted Term SOFR (other than pursuant to clause (c) of the definition of "Base Rate").
"Solvent" means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person's debts (including contingent liabilities) is less than all of such Person's assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, and (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will
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incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is "solvent" or not "insolvent" or an "insolvent person", as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances or insolvency. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
"Specified Transaction" means any Permitted Acquisition, Permitted Investment, Permitted Intercompany Advance, permitted Restricted Payment or permitted prepayment of Indebtedness with respect to which the Payment Conditions are required to be satisfied as a condition to the making or consummation of such Permitted Acquisition, Permitted Investment, Permitted Intercompany Advance, permitted Restricted Payment or permitted prepayment of Indebtedness.
"Spot Rate" means, for a currency, the rate determined by Agent to be the rate quoted by Wells Fargo acting in such capacity as the spot rate for the purchase by Wells Fargo of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. (New York time) on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided, that Agent may obtain such spot rate from another financial institution designated by Agent if Wells Fargo acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
"STA" means the Securities Transfer Act, 2006 (Ontario) or to the extent applicable, comparable legislation in other Canadian provinces.
"Standard Letter of Credit Practice" means, for Issuing Bank or Canadian Underlying Issuer, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Bank or Canadian Underlying Issuer issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.
"Subsidiary" of a Person means a corporation, partnership, limited liability company, unlimited liability company or other entity in which that Person directly or indirectly owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership, limited liability company, or other entity.
"Supported QFC" has the meaning specified therefor in Section 17.18 of this Agreement.
<"Swing Lender" means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent agrees, in such Lender's sole discretion, to become the Swing Lender under Section 2.3(b) of this Agreement.>
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"Supermajority Lenders" means, at any time, Lenders having or holding more than 66 2/3% of the sum of the aggregate Dollar Equivalent of Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders, and (ii) at any time there are 2 or more Lenders, "Supermajority Lenders" must include at least 2 Lenders (who are not Affiliates of one another).
"Swap Obligation" means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.
"Swing Lender" means the US Swing Lender, the Canadian Swing Lender, the Belgian Swing Lender and/or the German Swing Lender, as the context requires.
"Swing Loan" means the US Swing Loan, the Canadian Swing Loan, the Belgian Swing Loan and/or the German Swing Loan, as the context requires.
"Swing Loan Exposure" means the US Swing Loan Exposure, the Canadian Swing Loan Exposure, the Belgian Swing Loan Exposure and/or the German Swing Loan Exposure, as the context requires.
"Tall Pines" means Tall Pines Insurance Company, a Vermont corporation.
"TARGET Day" means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system is open for the settlement of payments denominated in Euros.
"Taxes" means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto.
"Tax Lender" has the meaning specified therefor in Section <14.1.2>14.2(a) of this Agreement.
"Termination Event" means (a) a "Reportable Event" described in Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC, (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of a Lien pursuant to Section 412 or 430 of the IRC or Section 302 or 4068 of ERISA, (g) the partial or complete withdrawal of any Loan Party or any ERISA Affiliate from a Multiemployer Plan (other than any complete withdrawal that would not constitute an Event of Default under Section 8.12), (h) any event or condition which results in the reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, (i) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of
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ERISA or the institution by the PBGC of proceedings to terminate or to appoint a trustee to administer a Multiemployer Plan under Section 4042 of ERISA, (j) any Pension Plan being in "at risk status" within the meaning of IRC Section 430(i), (k) any Multiemployer Plan being in "endangered status" or "critical status" within the meaning of IRC Section 432(b), (l) with respect to any Pension Plan, any Loan Party or any ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e); or (m) any event that causes any Loan Party or any of their ERISA Affiliates to incur liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the IRC.
"Term CORRA Adjustment" means a percentage equal to 0.29547% per annum.
"Term CORRA Administrator" means CanDeal Benchmark Administration Services Inc. ("CanDeal") or, in the reasonable discretion of Agent, TSX Inc. or an affiliate of TSX Inc. as the publication source of the CanDeal/TMX Term CORRA benchmark that is administered by CanDeal (or a successor administrator of the Term CORRA Reference Rate selected by Agent in its reasonable discretion).
"Term CORRA Reference Rate" means, for an applicable tenor, the forward-looking term rate based on CORRA.
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"Term SOFR Adjustment" means a percentage equal to 0.10% per annum.
"Term SOFR Administrator" means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Agent in its reasonable discretion).
"Term SOFR Reference Rate" means the forward-looking term rate based on SOFR.
"Tier 1 Jurisdiction" means the United States, Canada, Australia, Austria, Belgium, Denmark, Finland, France, Germany, Hong Kong, Israel, Japan, Luxembourg, New Zealand, the Netherlands, Norway, Singapore Sweden and Switzerland.
"Tier 2 Jurisdiction" means the British Virgin Islands, Cayman Islands, Cyprus, Italy, Malaysia, Mexico, Poland, Portugal, Spain and Taiwan.
"Transaction Costs" means all transaction fees, charges, premiums and other amounts related to the transactions contemplated hereby to occur on the Closing Date and any Permitted
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Acquisitions (including, without limitation, any financing fees, merger and acquisition fees, call premiums, legal fees and expenses, due diligence fees or any other fees and expenses in connection therewith), in each case to the extent paid within six (6) months of the date of this Agreement or such Permitted Acquisition, as applicable, and approved by the Agent in its reasonable discretion.
"UCP" means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any version or revision thereof accepted by Issuing Bank for use.
"United States" means the United States of America.
"Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this Agreement.
"UK Financial Institution" means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
"UK Resolution Authority" means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
"US Availability" means, as of any date of determination, the amount that US Borrowers are entitled to borrow as US Revolving Loans under Section 2.1 of this Agreement (after giving effect to the then outstanding US Revolver Usage).
"US Bank Product" means any one or more of the following financial products or accommodations extended to a Loan Party (other than a Canadian Loan Party, Belgian Loan Party or German Borrower) by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called "purchase cards", "procurement cards" or "p-cards")), (b) payment card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.
"US Bank Product Agreements" means those agreements entered into from time to time by a Loan Party (other than a Canadian Loan Party, Belgian Loan Party or German Borrower) with a Bank Product Provider in connection with the obtaining of any of the US Bank Products.
"US Bank Product Obligations" means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by Administrative Borrower or the Loan Party Subsidiaries (other than a Canadian Loan Party, Belgian Loan Party or German Borrower) to any Bank Product Provider pursuant to or evidenced by a US Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all US Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the US Bank Products provided by such Bank Product Provider to
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Administrative Borrower or its Subsidiaries (other than a Canadian Loan Party, Belgian Loan Party or German Borrower).
"US Bank Product Reserves" means, as of any date of determination, those reserves that Agent in its Permitted Discretion deems necessary or appropriate to establish (based upon the Bank Product Providers' determination of the liabilities and obligations of Loan Parties (other than any Canadian Loan Party, Belgian Loan Party or German Borrower) in respect of US Bank Product Obligations) in respect of US Bank Products then provided or outstanding.
"US Base Rate" means, for any day, the greatest of (a) the Federal Funds Rate in effect on such day plus ½%, (b) Term SOFR for a one month tenor in effect on such day, plus 1%, provided that this clause (b) shall not be applicable during any period in which Term SOFR is unavailable or unascertainable, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its "prime rate" in effect on such day, with the understanding that the "prime rate" is one of Wells Fargo's base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate (and, if any such announced rate is less than zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero).
"US Borrowers" shall have the meaning specified therefor in the preamble to this Agreement.
"US Borrowing" means a borrowing consisting of US Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by US Swing Lender in the case of a US Swing Loan, or by Agent in the case of an US Extraordinary Advance.
"US Borrowing Base" means, as of any date of determination, the result of:
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provided, that, until the earlier of the date Agent and the Lenders complete a field examination with respect to the Accounts of LPC satisfactory to Agent in its Permitted Discretion and an Acceptable Appraisal with respect to Inventory of LPC (the "Borrowing Base Effective Date") and the occurrence of the 90th day after the Second Amendment Closing Date (the "Deemed Borrowing Base Expiration Date"), the US Borrowing Base shall be deemed to be the US Deemed Borrowing Base; provided, further, (i) if the Borrowing Base Effective Date does not occur on or before the Deemed Borrowing Base Expiration Date, LPC Accounts and Inventory shall be excluded from the US Borrowing Base on and after such day until the occurrence of the Borrowing Base Effective Date; and (ii) on and after the Borrowing Base Effective Date, LPC's eligible assets shall be included in the Borrowing Base as provided above.
"US Borrowing Base Company" means (a) US Borrowers and (b) at any time after LPC becomes a Loan Party in accordance with Section 5.11, LPC.
"US Deemed Borrowing Base" means, as of any date of determination, the result of:
"US Designated Account" means the US Deposit Account of Administrative Borrower identified on Schedule D-1 to this Agreement (or such other Deposit Account of Administrative Borrower located at US Designated Account Bank that has been designated as such, in writing, by Administrative Borrower to Agent).
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"US Designated Account Bank" has the meaning specified therefor in Schedule D-2 to this Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Administrative Borrower to Agent).
"US Dilution" means, as of any date of determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the Dollar amount of (a) bad debt write-downs, discounts (other than customary early payment discounts), advertising allowances, credits, or other dilutive items with respect to US Borrowers' Accounts during such period, by (b) US Borrowers' billings with respect to Accounts during such period.
"US Dilution Reserve" means, as of any date of determination, an amount sufficient to reduce the advance rate against US Eligible Accounts by 1 percentage point for each percentage point by which US Dilution is in excess of 5%.
"US Eligible Accounts" means those Accounts created by a US <Borrower>Borrowing Base Company in the ordinary course of its business, that arise out of such US <Borrower's>Borrowing Base Company's sale of goods or rendition of services, that comply with each of the representations and warranties respecting US Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, US Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. US Eligible Accounts shall not include the following:
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"US Eligible Finished Goods Inventory" shall mean Inventory that qualifies as US Eligible Inventory and consists of first quality finished goods held for sale in the ordinary course of US <Borrowers>Borrowing Base Companies' business.
"US Eligible Inventory" means Inventory of a US <Borrower>Borrowing Base Company, that complies with each of the representations and warranties respecting US Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent's Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with US <Borrowers>Borrowing Base Companies' historical accounting practices. An item of Inventory shall not be included in US Eligible Inventory if:
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"US Eligible Raw Material Inventory" shall mean Inventory that qualifies as US Eligible Inventory and consists of goods that are first quality raw materials.
"US Extraordinary Advances" has the meaning specified therefor in Section 2.3(d)(iii) of this Agreement.
"U.S. Government Securities Business Day" means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.3(a), 2.3(c) and 2.12(b), in each case, such day is also a Business Day.
"US Guarantor" means (a) US Borrowers and (b) each Subsidiary of a US Borrower organized under the laws of a State of the United States or the District of Columbia that is or becomes a guarantor of all or a part of the US Obligations.
"US Guaranty and Security Agreement" means a guaranty and security agreement, dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by each of the US Borrowers and each of the US Guarantors to Agent.
"US Hedge Obligations" means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of Borrowers or their Subsidiaries (other than any Canadian Loan Party, Belgian Loan Party or German Borrower) arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.
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"US Issuing Bank" means Wells Fargo or any other Lender that, at the request of Borrowers and with the consent of Agent, agrees, in such Lender's sole discretion, to become a US Issuing Bank for the purpose of issuing US Letters of Credit pursuant to Section 2.11A of this Agreement, and US Issuing Bank shall be a Lender.
"US Letter of Credit" means a letter of credit (as that term is defined in the Code) issued for the account of a US Borrower pursuant to the terms of this Agreement by US Issuing Bank.
"US Letter of Credit Disbursement" means a payment made by US Issuing Bank pursuant to a US Letter of Credit.
"US Letter of Credit Exposure" means, as of any date of determination with respect to any Lender, such Lender's participation in the US Letter of Credit Usage pursuant to Section 2.11A(e) on such date.
"US Letter of Credit Fee" has the meaning specified therefor in Section 2.6(b) of this Agreement.
"US Letter of Credit Indemnified Costs" has the meaning specified therefor in Section 2.11A(f) of this Agreement.
"US Letter of Credit Related Person" has the meaning specified therefor in Section 2.11A(f) of this Agreement.
"US Letter of Credit Sublimit" means $50,000,000 less Canadian Letter of Credit Usage.
"US Letter of Credit Usage" means, as of any date of determination, the sum of (a) the aggregate undrawn amount of all outstanding US Letters of Credit, plus (b) the aggregate amount of outstanding reimbursement obligations with respect to US Letters of Credit which remain unreimbursed or which have not been paid through a US Revolving Loan.
"US Loan Account" has the meaning specified therefor in Section 2.9 of this Agreement.
"US Loan Party" means any US Borrower or any US Guarantor.
"US Maximum Revolver Amount" means $<225,000,000>300,000,000 increased, as provided in Section 2.14 and decreased by the amount of reductions in the US Revolver Commitments made in accordance with Section 2.4(c) of this Agreement.
"US Obligations" means (a) all loans (including the US Revolving Loans (inclusive of US Extraordinary Advances and US Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to US Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the US Loan Account pursuant to this Agreement), obligations (including indemnification obligations) of any US Loan
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Party, fees (including the fees provided for in the Fee Letter) of any US Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any US Loan Party, guaranties of any US Loan Party, and all covenants and duties of any other kind and description owing by any US Loan Party, in each of the foregoing cases, arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any US Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all US Bank Product Obligations; provided that, anything to the contrary contained in the foregoing notwithstanding, the US Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the US Obligations under the Loan Documents include the obligation to pay (i) the principal of the US Revolving Loans, (ii) interest accrued on the US Revolving Loans, (iii) the amount necessary to reimburse US Issuing Bank for amounts paid or payable pursuant to US Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, in each case, in respect of any US Letter of Credit, (v) Lender Group Expenses, (vi) fees payable by any US Loan Party under this Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any US Loan Party under any Loan Document. Any reference in this Agreement or in the Loan Documents to the US Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.
"US Overadvance" means, as of any date of determination, that the US Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11A.
"US Protective Advances" has the meaning specified therefor in Section 2.3(d)(i) of this Agreement.
"US Revolver Commitment" means, with respect to each Revolving Lender, its US Revolver Commitment, and, with respect to all Revolving Lenders, their US Revolver Commitments, in each case as set forth beside such Revolving Lender's name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.
"US Revolver Usage" means, as of any date of determination, the sum of (a) the amount of outstanding US Revolving Loans (inclusive of US Swing Loans and US Protective Advances), plus (b) the amount of the US Letter of Credit Usage.
"US Revolving Loan Exposure" means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the US Revolver Commitments, the amount of such Lender's US Revolver Commitment, and (b) after the termination of the US Revolver Commitments, the aggregate outstanding principal amount of the US Revolving Loans of such Lender.
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"US Revolving Loans" has the meaning specified therefor in Section 2.1(a) of this Agreement.
"U.S. Special Resolution Regimes" has the meaning specified therefor in Section 17.18 of this Agreement.
"US Swing Lender" means Wells Fargo or any other Lender that, at the request of US Administrative Borrower and with the consent of Agent agrees, in such Lender's sole discretion, to become the US Swing Lender under Section 2.3(b) of this Agreement.
"US Swing Loan" has the meaning specified therefor in Section 2.3(b) of this Agreement.
"US Swing Loan Exposure" means, as of any date of determination with respect to any Lender, such Lender's Pro Rata Share of the US Swing Loans on such date.
"US Unused Line Fee" has the meaning specified therefor in Section 2.10(b) of this Agreement.
"VAT" means (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
"Voidable Transfer" has the meaning specified therefor in Section 17.8 of this Agreement.
"Weekly Reporting Event" means if at any time the Dollar Equivalent of Excess Availability is less than the greater of (a) 15% of the Line Cap, and (b) $<30,000,000>40,000,000.
"Weekly Reporting Period" means the period commencing after the continuance of a Weekly Reporting Event for 3 consecutive Business Days and continuing until the date when no Weekly Reporting Event has occurred for 30 consecutive days.
"Wells Fargo" means Wells Fargo Bank, National Association, a national banking association.
"Wells Fargo London" means Wells Fargo Bank, National Association, London Branch.
"WF Canada" means Wells Fargo Capital Finance Corporation Canada.
"Withdrawal Liability" means liability with respect to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Write-Down and Conversion Powers" means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to
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time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Canadian personal property security and other laws (including, without limitation, the PPSA, the Bills of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), in all cases for the extension, preservation or betterment of the security and rights of the Collateral, (ii) all references in this Agreement to "Article 8" shall be deemed to refer also to applicable Canadian securities transfer laws (including, without limitation, the STA), (iii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under the PPSA, (iv) all references to the United States of America, or to any subdivision, department, agency or instrumentality thereof shall be deemed to refer also to Canada, or to any subdivision, department, agency or instrumentality thereof, and (v) all references to federal or state securities law of the United States shall be deemed to refer also to analogous federal (where applicable) and provincial securities laws in Canada.
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Belgian Letters of Credit and German Letters of Credit, providing Letter of Credit Collateralization, (c) in the case of obligations with respect to US Bank Products, Canadian Bank Products, Belgian Bank Products and German Bank Products (other than Hedge Providers), providing Bank Product Collateralization, (d) the receipt by Agent of cash collateral in the Applicable Currency in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including reasonable attorneys' fees and legal expenses), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the payment or repayment in full in immediately available funds in the Applicable Currency of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders. Any reference herein to any Person shall be construed to include such Person's successors and assigns. Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.
(a) | For purposes of this Agreement and the other Loan Documents, the Dollar Equivalent of any Revolving Loans, Letters of Credit, other Obligations and other references to amounts denominated in a currency other than Dollars |
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shall be determined in accordance with the terms of this Agreement. Such Dollar Equivalent shall become effective as of such Revaluation Date for such Revolving Loans, Letters of Credit and other Obligations and shall be the Dollar Equivalent employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur for such Revolving Loans, Letters of Credit and other Obligations. Except as otherwise expressly provided herein, the applicable amount of any currency for purposes of the Loan Documents (including for purposes of financial statements and all calculations in connection with the covenants, including the financial covenants) shall be the Dollar Equivalent thereof. |
(b) | Wherever in this Agreement and the other Loan Documents in connection with a borrowing, conversion, continuation or prepayment of a Revolving Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Revolving Loan or Letter of Credit is denominated in Canadian Dollars or Euros, such amount shall be the relevant Canadian Dollar Equivalent or Euro Equivalent, as applicable, of such Dollar amount (rounded to the nearest Canadian Dollars or Euros, as applicable, with 0.5 of a unit being rounded upward). |
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composition of any Conforming Changes. Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to a Borrower. Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
(i) | such Lender's US Revolver Commitment, or |
(ii) | such Lender's Pro Rata Share of an amount equal to the lesser of: |
(A) | the amount equal to (1) the US Maximum Revolver Amount less (2) the sum of (v) the US Letter of Credit Usage at such time, plus (w) the principal amount of US Swing Loans outstanding at such time, plus (x) the Dollar Equivalent of the Canadian Revolver Usage at such time plus (y) the Dollar Equivalent of the Belgian Revolver Usage at such time plus (z) the Dollar Equivalent of the German Revolver Usage at such time, and |
(B) | the amount equal to (1) the US Borrowing Base as of such date (based upon the US Borrowing Base set forth in the most recent Borrowing Base Certificate delivered by Borrowers to Agent) less the sum of (2) the US Letter of Credit Usage at such time, plus the principal amount of US Swing Loans outstanding at such time plus the Dollar Equivalent of the Belgian US Availability Usage. |
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(A) | the amount equal to (1) the Canadian Maximum Revolver Amount less (2) the sum of (x) the Canadian Letter of Credit Usage at such time plus (y) the principal amount of Canadian Swing Loans outstanding at such time, and |
(B) | the amount equal to (1) the Canadian Borrowing Base as of such date (based upon the Canadian Borrowing Base set forth in the most recent Borrowing Base Certificate delivered by Borrowers to Agent) less the sum of (2) the Canadian Letter of Credit Usage at such time, plus the principal amount of the Canadian Swing Loans outstanding at such time plus the Dollar Equivalent of the Belgian Canadian Availability Usage. |
(A) | the amount equal to (1) the Belgian Maximum Revolver Amount less (2) the sum of (x) the Belgian Letter of Credit Usage at such time plus (y) the principal amount of Belgian Swing Loans outstanding at such time, and |
(B) | the amount equal to (1) the Belgian Borrowing Base as of such date (based upon the Belgian Borrowing Base set forth in the most recent Borrowing Base Certificate delivered by Borrowers |
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to Agent) less the sum of (2) the Belgian Letter of Credit Usage at such time, plus the principal amount of the Belgian Swing Loans outstanding at such time plus the Euro Equivalent of the Canadian Belgian Availability Usage at such time. |
(A) | the amount equal to (1) the German Maximum Revolver Amount less (2) the sum of (x) the German Letter of Credit Usage at such time plus (y) the principal amount of German Swing Loans outstanding at such time, and |
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A. | such Defaulting Lender's Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (v) the sum of all Non-Defaulting Lenders' US Revolving Loan Exposures plus such Defaulting Lender's US Swing Loan Exposure and US Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' US Revolver Commitments, (w) the sum of all Non-Defaulting Lenders' Canadian Revolving Loan Exposures plus such Defaulting Lender's Canadian Swing Loan Exposure and Canadian Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' Canadian Revolver Commitments, (x) the sum of all Non-Defaulting Lenders' Belgian Revolving Loan Exposures plus such Defaulting Lender's Belgian Swing Loan Exposure and Belgian Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' Belgian Revolver Commitments, (y) the sum of all Non-Defaulting Lenders' German Revolving Loan Exposures plus such Defaulting Lender's German Swing Loan Exposure and German Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' German |
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Revolver Commitments, and (z) the conditions set forth in Section 3.2 are satisfied at such time; |
B. | if the reallocation described in clause (A) above cannot, or can only partially, be effected, the applicable Borrowers shall within one Business Day following notice by the Agent (x) first, prepay such Defaulting Lender's applicable Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) and (y) second, cash collateralize such Defaulting Lender's applicable Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrowers shall not be obligated to cash collateralize any Defaulting Lender's Letter of Credit Exposure if such Defaulting Lender is also an Issuing Bank; |
C. | if the applicable Borrowers cash collateralize any portion of such Defaulting Lender's Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), such Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting Lender's Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized; |
D. | to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders' Letter of Credit Exposure; |
F. | so long as any Lender is a Defaulting Lender, no Swing Lender shall be required to make any Swing Loan and no Issuing Bank shall be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender's Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii) or (y) the applicable Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the applicable Swing Lender or Issuing Bank, as applicable, and Borrowers to eliminate such Swing Lender's or Issuing Bank's risk with respect to the Defaulting Lender's participation in such Swing Loans or Letters of Credit; and |
G. | Agent may release any cash collateral provided by Borrowers pursuant to this Section 2.3(g)(ii) to the applicable Issuing Bank and such Issuing Bank may |
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apply any such cash collateral to the payment of such Defaulting Lender's Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by the applicable Borrowers in respect of its Letter of Credit Usage. |
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(A) | All payments in respect of US Obligations and all proceeds of Collateral securing the US Obligations received by Agent shall be applied as follows: |
(1) | first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents in respect of the US Obligations, until paid in full, |
(2) | second, to pay any fees or premiums then due to Agent under the Loan Documents in respect of the US Obligations until paid in full, |
(3) | third, to pay interest due in respect of all US Protective Advances until paid in full, |
(4) | fourth, to pay the principal of all US Protective Advances until paid in full, |
(5) | fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents in respect of the US Obligations, until paid in full, |
(6) | sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents in respect of the US Obligations until paid in full, |
(7) | seventh, to pay interest accrued in respect of the US Swing Loans until paid in full, |
(8) | eighth, to pay the principal of all US Swing Loans until paid in full, |
(9) | ninth, ratably, to pay interest accrued in respect of the US Revolving Loans until paid in full, |
(10) | tenth, ratably |
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(12) | twelfth, ratably to pay any other US Obligations other than US Obligations owed to Defaulting Lenders (including being paid, ratably, to the Bank Product Providers on account of all amounts then due and payable in respect of US Bank Product Obligations, with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers (other than Hedge Obligations), as Bank Product Collateralization (which Bank Product Collateralization may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to US Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such US Bank Product Obligations are paid or otherwise satisfied in full, the Bank Product Collateralization held by Agent in respect of such US Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(ii), beginning with tier (A)(1) hereof), |
(13) | thirteenth, ratably to pay any US Obligations owed to Defaulting Lenders; and |
(14) | fourteenth, to US Borrowers (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law. |
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B. | All payments in respect of Canadian Obligations and all proceeds of Collateral securing the Canadian Obligations received by Agent shall be applied as follows: |
(1) | first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents in respect of the Canadian Obligations, until paid in full, |
(2) | second, to pay any fees or premiums then due to Agent under the Loan Documents in respect of the Canadian Obligations until paid in full, |
(3) | third, to pay interest due in respect of all Canadian Protective Advances until paid in full, |
(4) | fourth, to pay the principal of all Canadian Protective Advances until paid in full, |
(6) | sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents in respect of the Canadian Obligations until paid in full, |
(7) | seventh, to pay interest accrued in respect of the Canadian Swing Loans until paid in full, |
(8) | eighth, to pay principal of all Canadian Swing Loans until paid in full, |
(9) | ninth, ratably, to pay interest accrued in respect of the Canadian Revolving Loans until paid in full, |
(10) | tenth, ratably |
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(11) | eleventh, ratably to pay any other Canadian Obligations other than Canadian Obligations owed to Defaulting Lenders (including being paid, ratably, to the Bank Product Providers on account of all amounts then due and payable in respect of Canadian Bank Product Obligations, with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers (other than Hedge Providers), as Bank Product Collateralization (which Bank Product Collateralization may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Canadian Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Canadian Bank Product Obligations are paid or otherwise satisfied in full, the Bank Product Collateralization held by Agent in respect of such Canadian Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(ii), beginning with tier (B)(1) hereof), |
(12) | twelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders; and |
(13) | thirteenth, to Canadian Borrower (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law. |
C. | All payments in respect of Belgian Obligations and all proceeds of Collateral securing the Belgian Obligations received by Agent shall be applied as follows: |
(1) | first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents in respect of the Belgian Obligations, until paid in full, |
(2) | second, to pay any fees or premiums then due to Agent under the Loan Documents in respect of the Belgian Obligations until paid in full, |
(3) | third, to pay interest due in respect of all Belgian Protective Advances until paid in full, |
(4) | fourth, to pay the principal of all Belgian Protective Advances until paid in full, |
(5) | fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents in respect of the Belgian Obligations, until paid in full, |
(6) | sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents in respect of the Belgian Obligations until paid in full, |
(7) | seventh, to pay interest accrued in respect of the Belgian Swing Loans until paid in full, |
(8) | eighth, to pay principal of all Belgian Swing Loans until paid in full, |
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(9) | ninth, ratably, to pay interest accrued in respect of the Belgian Revolving Loans until paid in full, |
(10) | tenth, ratably |
(12) | twelfth, ratably to pay any Belgian Obligations owed to Defaulting Lenders; and |
(13) | thirteenth, to Belgian Borrower (to be wired to the Belgian Designated Account) or such other Person entitled thereto under applicable law. |
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D. | All payments in respect of German Obligations and all proceeds of Collateral securing the German Obligations received by Agent shall be applied as follows: |
(1) | first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents in respect of the German Obligations, until paid in full, |
(2) | second, to pay any fees or premiums then due to Agent under the Loan Documents in respect of the German Obligations until paid in full, |
(3) | third, to pay interest due in respect of all German Protective Advances until paid in full, |
(4) | fourth, to pay the principal of all German Protective Advances until paid in full, |
(5) | fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents in respect of the German Obligations, until paid in full, |
(6) | sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents in respect of the German Obligations until paid in full, |
(7) | seventh, to pay interest accrued in respect of the German Swing Loans until paid in full, |
(8) | eighth, to pay principal of all German Swing Loans until paid in full, |
(9) | ninth, ratably, to pay interest accrued in respect of the German Revolving Loans until paid in full, |
(10) | tenth, ratably |
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(12) | twelfth, ratably to pay any German Obligations owed to Defaulting Lenders; and |
(13) | thirteenth, to German Borrower (to be wired to the German Designated Account) or such other Person entitled thereto under applicable law. |
Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party.
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(a) | Interest Rates. Except as provided in Section 2.6(c), |
(i) | all US Revolving Loans and all US Obligations (except for undrawn US Letters of Credit and all US Bank Product Obligations) that have been charged to the US Loan Account pursuant to the terms hereof shall bear interest as follows: |
(1) | if the relevant US Obligation is a Non-Base Rate Loan, at a per annum rate equal to the Adjusted Term SOFR plus the Non-Base Rate Margin, and |
(2) | otherwise, at a per annum rate equal to the US Base Rate plus the Base Rate Margin; and |
(ii) | all Canadian Revolving Loans and all Canadian Obligations (except for undrawn Canadian Letters of Credit and all Canadian Bank Product Obligations) that have been charged to the Canadian Loan Account pursuant to the terms hereof shall bear interest as follows: |
(1) | if the relevant Canadian Obligation is a Non-Base Rate Loan denominated in Dollars, at a per annum rate equal to the Adjusted Term SOFR plus the Non-Base Rate Margin, |
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(3) | otherwise if the relevant Canadian Obligation is denominated in Canadian Dollars, at a per annum rate equal to the Canadian Base Rate plus the Base Rate Margin and, if the relevant Canadian Obligation is denominated in Dollars, at a per annum rate equal to the US Base Rate plus the Base Rate Margin. |
(iii) | all Belgian Revolving Loans and all Belgian Obligations (except for undrawn Belgian Letters of Credit and all Belgian Bank Product Obligations) that have been charged to the Belgian Loan Account pursuant to the terms hereof shall bear interest as follows: |
(1) | if the relevant Belgian Obligation is a Non-Base Rate Loan at a rate per annum equal to EURIBOR plus the Non-Base Rate Margin, and |
(2) | otherwise, at a rate per annum rate equal to the EUR Base Rate plus the Non-Base Rate Margin. |
(iv) | all German Revolving Loans and all German Obligations (except for undrawn German Letters of Credit and all German Bank Product Obligations) that have been charged to the German Loan Account pursuant to the terms hereof shall bear interest as follows: |
(1) | at a rate per annum equal to EURIBOR plus the Non-Base Rate Margin, and |
(2) | otherwise, at a rate per annum rate equal to the EUR Base Rate plus the Non-Base Rate Margin. |
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with a Belgian Revolver Commitment), a Letter of Credit fee (the "Belgian Letter of Credit Fee") (which fee shall be in addition to the fees, charges, commissions, and costs set forth in Section 2.11C(j)) that shall accrue at a per annum rate equal to the Non-Base Rate Margin times the undrawn amount of all outstanding Belgian Letters of Credit. German Borrower shall pay Agent (for the ratable benefit of the Revolving Lenders with a German Revolver Commitment), a Letter of Credit fee (the "German Letter of Credit Fee") (which fee shall be in addition to the fees, charges, commissions, and costs set forth in Section 2.11D(j)) that shall accrue at a per annum rate equal to the Non-Base Rate Margin times the undrawn amount of all outstanding German Letters of Credit. |
(c) | Default Rate. Upon the occurrence and during the continuation of an Event of Default and at the election of Agent or the Required Lenders, |
(i) | all Revolving Loans and all Obligations (except for undrawn Letters of Credit and Bank Product Obligations) that have been charged to the applicable Loan Account pursuant to the terms hereof shall bear interest at a per annum rate equal to 2 percentage points above the per annum rate otherwise applicable thereunder, and |
(ii) | the applicable Letter of Credit Fee shall be increased to 2 percentage points above the per annum rate otherwise applicable hereunder. |
(d) | Payment. |
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(e) | Computation. All interest and fees chargeable under the Loan Documents shall be computed on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period during which the interest or fees accrue, other than for Base Rate Loans which shall be calculated on the basis of 365 or 366 day year, as applicable, and actual days elapsed. In the |
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event the Base Rate is changed from time to time hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately shall be increased or decreased by an amount equal to such change in the Base Rate. |
(f) | Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the highest rate permissible under any law that a court of competent jurisdiction shall, in a final determination, deem applicable. Borrowers and the Lender Group, in executing and delivering this Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated within it; provided, that, anything contained herein to the contrary notwithstanding, if such rate or rates of interest or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of the date of this Agreement, Borrowers are and shall be liable only for the payment of such maximum amount as is allowed by law, and payment received from Borrowers in excess of such legal maximum, whenever received, shall be applied to reduce the principal balance of the applicable Obligations to the extent of such excess. |
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maintain the US Designated Account with the US Designated Account Bank for the purpose of receiving the proceeds of the US Revolving Loans requested by US Borrowers and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and US Borrowers, any US Revolving Loan requested by US Borrowers and made by Agent or the Lenders hereunder shall be made to the US Designated Account. Canadian Borrower agrees to establish and maintain the Canadian Designated Account with the Canadian Designated Account Bank for the purpose of receiving the proceeds of the Canadian Revolving Loans requested by Canadian Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and Canadian Borrower, any Canadian Revolving Loan requested by Canadian Borrower and made by Agent or the Lenders hereunder shall be made to the Canadian Designated Account. Belgian Borrower agrees to establish and maintain the Belgian Designated Account with the Belgian Designated Account Bank for the purpose of receiving the proceeds of the Belgian Revolving Loans requested by Belgian Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and Belgian Borrower, any Belgian Revolving Loan requested by Belgian Borrower and made by Agent or the Lenders hereunder shall be made to the Belgian Designated Account. German Borrower agrees to establish and maintain the German Designated Account with the German Designated Account Bank for the purpose of receiving the proceeds of the German Revolving Loans requested by German Borrower and made by Agent or the Lenders hereunder. Unless otherwise agreed by Agent and German Borrower, any German Revolving Loan requested by German Borrower and made by Agent or the Lenders hereunder shall be made to the German Designated Account.
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hereunder or under the other Loan Documents, including, accrued interest, fees and expenses, and Lender Group Expenses with respect thereto. In accordance with Section 2.7, the Belgian Loan Account will be credited with all payments received by Agent from Belgian Borrower or for Belgian Borrower's account. Agent shall maintain an account on its books in the name of German Borrower (the "German Loan Account") on which German Borrower will be charged, all German Revolving Loans (including German Extraordinary Advances and German Swing Loans) made by Agent, German Swing Lender or the Lenders to German Borrower or for German Borrower's account, the German Letters of Credit issued or arranged by German Issuing Bank for German Borrower's account that are payment (and not contingent) Obligations, and with all other German Obligations hereunder or under the other Loan Documents, including, accrued interest, fees and expenses, and Lender Group Expenses with respect thereto. In accordance with Section 2.7, the German Loan Account will be credited with all payments received by Agent from German Borrower or for German Borrower's account. Agent shall make available to Borrowers monthly statements regarding the Loan Accounts, including the principal amount of the Revolving Loans, interest accrued hereunder, fees accrued or charged hereunder or under the other Loan Documents, and a detailed itemization of all charges and expenses constituting Lender Group Expenses accrued hereunder or under the other Loan Documents, and each such statement, absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an account stated between Borrowers and the Lender Group unless, within 60 days after Agent first makes such a statement available to Borrowers, Borrowers shall deliver to Agent written objection thereto describing the error or errors contained in such statement. Agent shall also make available to Borrowers daily on-line access to the Loan Accounts and shall update the Loan Accounts on a daily basis.
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provided, that such indemnity shall not be available to any US Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii) above to the extent that such US Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the US Letter of Credit Related Person claiming indemnity. US Borrowers hereby agree to pay the US Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11A(f). If and to the extent that the obligations of US Borrowers under this Section 2.11A(f) are unenforceable for any reason, US Borrowers agree to make the maximum contribution to the US Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.11A(g) above, the foregoing shall not release US Issuing Bank from such liability to US Borrowers as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against US Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of US Borrowers to US Issuing Bank arising under, or in connection with, this Section 2.11A or any US Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to US Issuing Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any US Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify US Borrowers, and US Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate US Issuing Bank or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to US Revolving Loans that are Base Rate Loans thereunder; provided, that (A) US Borrowers shall not be required to provide any compensation pursuant to this Section 2.11A(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to US Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11A(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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2.11B.Canadian Letters of Credit.
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provided, that such indemnity shall not be available to any Canadian Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii) above to the extent that such Canadian Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Canadian Letter of Credit Related Person claiming indemnity. Canadian Borrower hereby agrees to pay the Canadian Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11B(f). If and to the extent that the obligations of Canadian Borrower under this Section 2.11B(f) are unenforceable for any reason, Canadian Borrower agrees to make the maximum contribution to the Canadian Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.11B(g) above, the foregoing shall not release Canadian Issuing Bank or Canadian Underlying Issuer from such liability to Canadian Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Canadian Issuing Bank or Canadian Underlying Issuer following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of Canadian Borrower to Canadian Issuing Bank or Canadian Underlying Issuer arising under, or in connection with, this Section 2.11B or any Canadian Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to Canadian Issuing Bank, Canadian Underlying Issuer or any other member of the Lender Group of issuing, making, participating in, or maintaining any Canadian Letter of Credit, or Canadian Reimbursement Undertaking or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Canadian Borrower, and Canadian Borrower shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate Canadian Issuing Bank, Canadian Underlying Issuer or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Canadian Revolving Loans that are Base Rate Loans hereunder; provided, that (A) Canadian Borrower shall not be required to provide any compensation pursuant to this Section 2.11B(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Canadian Borrower, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11B(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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2.11C.Belgian Letters of Credit.
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provided, that such indemnity shall not be available to any Belgian Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii) above to the extent that such Belgian Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Belgian Letter of Credit Related Person claiming indemnity. Belgian Borrower hereby agrees to pay the Belgian Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11C(f). If and to the extent that the obligations of Belgian Borrower under this Section 2.11C(f) are unenforceable for any reason, Belgian Borrower agrees to make the maximum contribution to the Belgian Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.11C(g) above, the foregoing shall not release Belgian Issuing Bank from such liability to Belgian Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Belgian Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of Belgian Borrower to Belgian Issuing Bank arising under, or in connection with, this Section 2.11C or any Belgian Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to Belgian Issuing Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any Belgian Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Belgian Borrower, and Belgian Borrower shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate Belgian Issuing Bank or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Belgian Revolving Loans that are Base Rate Loans hereunder; provided, that (A) Belgian Borrower shall not be required to provide any compensation pursuant to this Section 2.11C(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Belgian Borrower, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11C(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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2.11D.German Letters of Credit.
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provided, that such indemnity shall not be available to any German Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii) above to the extent that such German Letter of Credit Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the German Letter of Credit Related Person claiming indemnity. German Borrower hereby agrees to pay the German Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11D(f). If and to the extent that the obligations of German Borrower under this Section 2.11D(f) are unenforceable for any reason, German Borrower agrees to make the maximum contribution to the German Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.11D(g) above, the foregoing shall not release German Issuing Bank from such liability to German Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against German Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of German Borrower to German Issuing Bank arising under, or in connection with, this Section 2.11D or any German Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to German Issuing Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any German Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify German Borrower, and German Borrower shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate German Issuing Bank or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to German Revolving Loans that are Base Rate Loans hereunder; provided, that (A) German Borrower shall not be required to provide any compensation pursuant to this Section 2.11D(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to German Borrower, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11D(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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(A) | Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, Agent and Administrative Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after Agent has posted such proposed amendment to all affected Lenders and Administrative Borrower so long as Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of the then-current Benchmark with a Benchmark Replacement pursuant to this Section 2.12(d)(iii) will occur prior to the applicable Benchmark Transition Start Date. |
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(B) | Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, 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 or any other Loan Document. |
(C) | Notices; Standards for Decisions and Determinations. Agent will promptly notify Administrative Borrower and the Lenders of (1) the implementation of any Benchmark Replacement and (2) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. Agent will notify Administrative Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.12(d)(iii)(D) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Agent or any Lender (or group of Lenders) pursuant to this Section 2.12(d)(iii) including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.12(d)(iii). |
(D) | Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of |
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(E) | Benchmark Unavailability Period. Upon Administrative Borrower's receipt of notice of the commencement of a Benchmark Unavailability Period, (1) Administrative Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans or EURIBOR Rate Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Administrative Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans and (2) any outstanding affected SOFR Loans or EURIBOR Rate Loans will be deemed to have been converted to Base Rate Loans at the end of the applicable Interest Period. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. |
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Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, solely to the extent that a court of competent jurisdiction finally determines that the calculation or determination of interest payable by Canadian Borrower in respect of the Obligations pursuant to this Agreement and the other Loan Documents shall be governed by the laws of any province of Canada and the federal laws of Canada:
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provided that the total amount which may become due under the Parallel Debt of the German Borrower under this Section 2.18 will never exceed the total amount which may become due under the Corresponding Obligations of the German Borrower respectively.
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forth on Schedule 3.1 (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent ).
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which case, a new notice shall be required to be sent in connection with any subsequent termination), and (b) Borrowers may extend the date of termination at any time with the consent of Agent (which consent shall not be unreasonably withheld or delayed).
In order to induce the Lender Group to enter into this Agreement, each Borrower makes the following representations and warranties to the Lender Group which shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the Closing Date, and shall be true, correct, and complete, in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), as of the date of the making of each Revolving Loan (or other extension of credit) made thereafter, as though made on and as of the date of such Revolving Loan (or other extension of credit) (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date) and such representations and warranties shall survive the execution and delivery of this Agreement:
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instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
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information was provided. The Projections delivered to Agent on January 20, 2021 represent, and as of the date on which any other Projections are delivered to Agent, such additional Projections represent, Borrowers' good faith estimate, on the date such Projections are delivered, of the Loan Parties' and their Subsidiaries' future performance for the periods covered thereby based upon assumptions believed by Borrowers to be reasonable at the time of the delivery thereof to Agent (it being understood that such Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries, and no assurances can be given that such Projections will be realized, and although reflecting Borrowers' good faith estimate, projections or forecasts based on methods and assumptions which Borrowers believed to be reasonable at the time such Projections were prepared, are not to be viewed as facts, and that actual results during the period or periods covered by the Projections may differ materially from projected or estimated results). As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
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quality, free from known defects, and (b) not excluded as ineligible by virtue of one or more of the excluding criteria (other than any Agent-discretionary criteria) set forth in the definition of US Eligible Inventory, Canadian Eligible Inventory, Belgian Eligible Inventory or German Eligible Inventory, as applicable.
Each Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations:
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acquittance for any payments that may be payable thereunder, and to execute any and all receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies.
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is organized under the laws of Canada or any province thereof, cause such new Material Subsidiary to become a Canadian Guarantor and to provide to Agent a guaranty of the Obligations of the Canadian Loan Parties, and to enter into such security agreements< agreements>, as well as appropriate PPSA financing statements or financing change statements, all in form and substance reasonably satisfactory to Agent sufficient to grant Agent first priority Liens (subject to Permitted Liens) in and to the Deposit Accounts (other than Excluded Accounts), Accounts, Inventory and related assets of such newly formed or acquired Material Subsidiary as security for the Obligations of the Canadian Loan Parties, and provide to Agent all other documentation, including one or more opinions of counsel reasonably satisfactory to Agent, which, in its reasonable opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above, and (c) if such new Material Subsidiary is organized under the laws of Belgium, cause such new Material Subsidiary to become a Belgian Guarantor and to provide to Agent a guaranty of the Obligations of the Belgian Loan Parties, and to enter into such security agreements, all in form and substance reasonably satisfactory to Agent sufficient to grant Agent first priority Liens (subject to Permitted Liens) in and to the Deposit Accounts (other than Excluded Accounts), Accounts, Inventory and related assets of such newly formed or acquired Material Subsidiary as security for the Obligations of the Belgian Loan Parties, and provide to Agent all other documentation, including one or more opinions of counsel reasonably satisfactory to Agent, which, in its reasonable opinion, is appropriate with respect to the execution and delivery of the applicable documentation referred to above; provided, that, for the avoidance of doubt (i) no such new Material Subsidiary that is organized under the laws of the <United States or any state thereof, shall be required to guaranty the Obligations of the Canadian Loan Parties or to grant any Liens on its assets as security for the Obligations of the Canadian Loan Parties, (ii) no such new Material Subsidiary that is organized under the laws of the >Canada or any province thereof, shall be required to guaranty the Obligations of the US Loan Parties or the German Borrower or to grant any Liens on its assets as security for the Obligations of the US Loan Parties or the German Borrower, (<iii>ii) no such new Material Subsidiary that is organized under the laws of Belgium, shall be required to guaranty the Obligations of the US Loan Parties or the German Borrower, or to grant any Liens on its assets as security for the Obligations of the US Loan Parties or the German Borrower, and (<iv>iii) no such new Material Subsidiary that is organized under the laws of Germany or under the laws of any jurisdiction other than the United States, any state thereof, Canada, any province thereof or Belgium, shall be required to guaranty any of the Obligations of the Loan Parties or to grant to Agent any Liens on its assets. Any document, agreement, or instrument executed or issued by any new Material Subsidiary or any existing Loan Party pursuant to this Section 5.11 shall constitute a Loan Document.
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deliver any reasonably requested Additional Documents pursuant to the terms of this Agreement within a reasonable period of time following the request to do so, each Borrower and each other Loan Party hereby authorizes Agent to execute any such Additional Documents in the applicable Loan Party's name and authorizes Agent to file such executed Additional Documents in any appropriate filing office. In furtherance of, and not in limitation of, the foregoing, each Loan Party shall take such actions as Agent may reasonably request from time to time to ensure that the Obligations are guarantied by the Guarantors and are secured by substantially all of the Deposit Accounts, Accounts, Inventory and related assets of each Loan Party (subject to exceptions and limitations contained in the Loan Documents with respect to CFCs); provided, that, (w) the US Loan Parties shall not guaranty the Canadian Obligations or grant a Lien in any of its assets to secure the Canadian Obligations, (x) the Canadian Loan Parties shall not guaranty the US Obligations or German Obligations or grant a Lien in any of its assets to secure the US Obligations or German Obligations, (y) the Belgian Loan Parties shall not guaranty the US Obligations or German Obligations or grant a Lien in any of its assets to secure the US Obligations or German Obligations, and (z) the German Borrower shall not guaranty the US Obligations, Belgian Obligations or Canadian Obligations or grant a Lien in any of its assets to secure the US Obligations, Belgian Obligations or Canadian Obligations. Notwithstanding anything to the contrary contained herein (including Section 5.11 hereof and this Section 5.12) or in any other Loan Document, Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary that qualifies as a "legal entity customer" under the Beneficial Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and Agent has completed its Patriot Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary, the results of which shall be satisfactory to Agent.
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Each Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations:
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business activities; provided, that the foregoing shall not prevent any Borrower and any Loan Party Subsidiary from engaging in any business that is reasonably related or ancillary to their business.
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Each Borrower covenants and agrees that, until termination of all of the Commitments and payment in full of the Obligations, Worldwide and its consolidated Subsidiaries will:
Any one or more of the following events shall constitute an event of default (each, an "Event of Default") under this Agreement:
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or any Loan Party Subsidiary's Indebtedness involving an aggregate amount of $20,000,000 or more, and such default (i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by such third Person, irrespective of whether exercised, to accelerate the maturity of such Loan Party's or such Loan Party Subsidiary's obligations thereunder;
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Effect or (y) a Lien on the assets of any Loan Party under Section 303(k) or Section 4068 of ERISA or Section 430(k) of the IRC, or (iv) any Loan Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan and incurs a withdrawal liability which could have a Material Adverse Effect.
The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default described in Section 8.4 or Section 8.5, in addition to the remedies set forth above, without any notice to Borrowers or any other Person or any act by the Lender Group, the Commitments shall automatically
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terminate and the Obligations (other than the Bank Product Obligations), inclusive of the principal of, and any and all accrued and unpaid interest and fees in respect of, the Loans and all other Obligations (other than the Bank Product Obligations), whether evidenced by this Agreement or by any of the other Loan Documents, shall automatically become and be immediately due and payable and Borrowers shall automatically be obligated to repay all of such Obligations in full (including Borrowers being obligated to provide (and Borrowers agrees that they will provide) (1) Letter of Credit Collateralization to Agent to be held as security for Borrowers' reimbursement obligations in respect of drawings that may subsequently occur under issued and outstanding Letters of Credit and (2) Bank Product Collateralization to be held as security for Borrowers' or Loan Party Subsidiaries' obligations in respect of outstanding Bank Products), without presentment, demand, protest, or notice or other requirements of any kind, all of which are expressly waived by Borrowers.
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and guarantees at any time held by the Lender Group on which any Borrower may in any way be liable.
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Indemnified Liability as to which Borrowers were required to indemnify the Indemnified Person receiving such payment, the Indemnified Person making such payment is entitled to be indemnified and reimbursed by Borrowers with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY OTHER PERSON. Notwithstanding any of the foregoing to the contrary, (x) Canadian Borrower's indemnity shall be limited to matters relating to the Canadian Obligations and Canadian Borrower, and shall not extend to US Obligations German Obligations, US Loan Parties or German Borrower, (y) Belgian Borrower's indemnity shall be limited to matters relating to the Belgian Obligations and Belgian Borrower, and shall not extend to US Obligations, German Obligations, US Loan Parties or German Borrower, and (z) German Borrower's indemnity shall be limited to matters relating to the German Obligations and German Borrower, and shall not extend to US Obligations, Canadian Obligations, Belgian Obligations, US Loan Parties, Canadian Loan Parties or Belgian Loan Parties.
Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement or any other Loan Document shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email addresses as a party may designate in accordance herewith), or telefacsimile. In the case of notices or demands to any Borrower or Agent, as the case may be, they shall be sent to the respective address set forth below:
If to Borrowers: | KRONOS WORLDWIDE, INC. |
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with copies to: | KRONOS WORLDWIDE, INC. |
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with further copies to: | LOCKE LORD LLP |
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If to Agent: | WELLS FARGO BANK, NATIONAL ASSOCIATION |
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Any party hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other party. All notices or demands sent in accordance with this Section 11, shall be deemed received on the earlier of the date of actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a) notices sent by overnight courier service shall be deemed to have been given when received, (b) notices 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) and (c) notices by electronic mail shall be deemed received upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "return receipt requested" function, as available, return email or other written acknowledgment).
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(A) | Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless they object thereto by written notice to Agent within 5 Business Days after having received notice thereof; and |
(B) | Agent, Swing Lender, and Issuing Bank. |
Notwithstanding the above and unless an Event of Default is outstanding, no assignment or transfer, in relation to all or any portion of a Lender’s rights and duties under the Loan Documents with respect to Belgian Borrower may be carried out without the prior consent of Belgian Borrower if, at the time of transfer or assignment, the new Lender or assignee is incorporated in, having its place of effective management in, or acting through a permanent establishment in, or is otherwise acting from or through a bank account held in, a Non-Cooperative Jurisdiction. If Belgian
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Borrower receives a written request, Belgian Borrower will have the obligation to duly consider such request. Within 5 (five) Business Days following the receipt of such written request, Belgian Borrower may, in its sole discretion, either grant its written consent or request additional information reasonably demonstrating that the relevant new Lender is not to be considered as an artificial construction within the meaning of article 198, §1, 10° of the Belgian Income Tax Code 1992. The Belgian Borrower will be deemed to have granted its consent if Belgian Borrower has not granted its consent or has not requested any such additional information within five Business Days. If Belgian Borrower has requested any such additional information and does not receive additional information which is reasonably satisfactory to Belgian Borrower, Belgian Borrower will have the right to refuse its consent. If Belgian Borrower receives such additional information and such additional information is reasonably satisfactory to Belgian Borrower, Belgian Borrower will grant its written consent. Belgian Borrower will be deemed to have granted consent if Belgian Borrower has not notified its refusal within 10 (ten) Business Days following the receipt of such additional information.
(A) | no assignment may be made to a natural person, |
(B) | no assignment may be made to a Loan Party, or an Affiliate of a Loan Party, |
(D) | each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement; |
(E) | the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender |
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in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee. |
(F) | unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent's separate account, a processing fee in the amount of $3,500; and |
(G) | the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the "Administrative Questionnaire"). |
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telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be indemnified to its reasonable satisfaction by the Lenders (and, if it so elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers).
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taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of each Borrower or any other Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Borrower or any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does not have any duty or responsibility, either initially or on a continuing basis (except to the extent, if any, that is expressly specified herein) to provide such Lender (or Bank Product Provider) with any credit or other information with respect to any Borrower, its Affiliates or any of their respective business, legal, financial or other affairs, and irrespective of whether such information came into Agent's or its Affiliates' or representatives' possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement).
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Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.
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in its capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of Agent (if any) to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participant of any other Lender. Except as provided in Section 15.8, no member of the Lender Group shall have any liability for the acts of any other member of the Lender Group. No Lender shall be responsible to any Borrower or any other Person for any failure by any other Lender (or Bank Product Provider) to fulfill its obligations to make credit available hereunder, nor to advance for such Lender (or Bank Product Provider) or on its behalf, nor to take any other action on behalf of such Lender (or Bank Product Provider) hereunder or in connection with the financing contemplated herein.
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German Borrower, or (c) German Borrower to indemnify any Tax Indemnitee for Taxes arising from payments made or failed to be made by any US Loan Party, Canadian Loan Party or Belgian Loan Party.
In addition, any Lender, if reasonably requested by Administrative Borrower or Agent, shall deliver such other documentation prescribed by applicable law or reasonably
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requested by Administrative Borrower or Agent as will enable Administrative Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
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committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Guarantors.
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or the amount thereof that such member of the Lender Group or Bank Product Provider elects to repay, restore, or return (including pursuant to a settlement of any claim in respect thereof), and as to all reasonable costs, expenses, and attorneys' fees of such member of the Lender Group or Bank Product Provider related thereto, (i) the liability of the Loan Parties with respect to the amount or property paid, refunded, restored, or returned will automatically and immediately be revived, reinstated, and restored and will exist, and (ii) Agent's Liens securing such liability shall be effective, revived, and remain in full force and effect, in each case, as fully as if such Voidable Transfer had never been made. If, prior to any of the foregoing, (A) Agent's Liens shall have been released or terminated, or (B) any provision of this Agreement shall have been terminated or cancelled, Agent's Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability. This provision shall survive the termination of this Agreement and the repayment in full of the Obligations.
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herein provided, or (ii) the Lender Group's relying on any instructions of the Administrative Borrower, except that Borrowers will have no liability to the relevant Agent-Related Person or Lender-Related Person under this Section 17.13 with respect to any liability that has been finally determined by a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Agent-Related Person or Lender-Related Person, as the case may be.
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resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States). In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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[Signature pages to follow.]
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AGENT AND LENDERS | Its Authorized Signatory Its Authorized Signatory Its Authorized Signatory |
|
KRONOS WORLDWIDE, INC. ANNOUNCES ACQUISITION OF JOINT VENTURE INTEREST, AMENDMENT TO REVOLVING CREDIT FACILITY AND QUARTERLY DIVIDEND
DALLAS, TEXAS – July 17, 2024 – Kronos Worldwide, Inc. (NYSE: KRO) made the following announcements today:
Acquisition of Remaining Joint Venture Interest in LPC
Effective July 16, 2024, Kronos Worldwide, Inc. (“Kronos”) has acquired the 50% joint venture interest in Louisiana Pigment Company, L.P. (“LPC”) previously held by Venator Investments, Ltd. Prior to the acquisition, Kronos, through a wholly-owned subsidiary, held a 50% joint venture interest in LPC. Following the acquisition, LPC is an indirect, wholly-owned subsidiary of Kronos. Kronos acquired the 50% joint venture interest that it did not already own for an upfront cash payment of $185 million (subject to working capital adjustments) and a potential earn-out payment of up to $15 million based on Kronos’ aggregate consolidated net income before interest expense, income taxes and depreciation and amortization expense, or EBITDA, during a two-year period comprising calendar years 2025 and 2026.
“This acquisition is a one-of-a-kind opportunity for Kronos to add value to our customers and better serve the North American market,” said James M. Buch, Kronos Chief Executive Officer. “With full ownership of the LPC facility, Kronos will expand its product offerings and increase sales to new and existing customers while recognizing significant synergies including commercial, overhead and supply chain optimization. By implementing process innovations to increase capacity and improve efficiency using proven technology utilized at other Kronos facilities, we will be better positioned to serve our customers. LPC is the newest chloride-process TiO2 production facility operating in the Western world and we are excited to fully integrate LPC as part of Kronos and to invest in the future of this world class facility.”
Kronos previously operated LPC as a joint venture with Venator Materials or predecessors of Venator Materials since 1993. LPC is located near Lake Charles, LA with a current estimated annual production capacity of 156,000 metric tons. The acquisition was financed with cash on-hand and borrowings under Kronos’ global revolving credit facility. Kronos will report LPC as a wholly-owned subsidiary beginning with its third quarter Form 10-Q filing. Kronos may continue to evaluate and explore additional financing opportunities, subject to market conditions.
Amendment to the Revolving Credit Facility
In connection with its acquisition of the 50% joint venture interest and to support Kronos’ general liquidity needs, Kronos has also completed an amendment to its $225 million global revolving credit facility with Wells Fargo. Among other things, the amendment increases the maximum borrowing amount from $225 million to $300 million, extends the maturity date to 2029 and expands the facility to include LPC and LPC’s receivables and certain of its inventories in the borrowing base.
Third Quarter Dividend
Kronos’ board of directors has declared a quarterly dividend of five cents ($0.05) per share on its common stock, a decrease of fourteen cents ($0.14) per share as compared to the second quarter of 2024, payable on September 19, 2024, to stockholders of record at the close of business on September 6, 2024. Commenting on the dividend Mr. Buch said, “The reduced dividend rate will allow Kronos to focus on maintaining a strong balance sheet while continuing to evaluate strategic investment opportunities. In addition to strengthening liquidity and providing the flexibility to absorb increased debt service costs, working capital needs and capital improvements from the acquisition
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of the 50% interest in the LPC joint venture, the new dividend rate will give Kronos an opportunity to focus on reducing leverage. Going forward we will continue to evaluate the appropriateness of the dividend based on progress towards these priorities, results of operations and other relevant factors.”
Kronos Worldwide, Inc. is a major international producer of titanium dioxide products.
Forward-Looking Statements
The statements in this press release relating to matters that are not historical facts are forward-looking statements that represent management's beliefs and assumptions based on currently available information. These forward-looking statements include, among others, statements about the potential effects of the LPC acquisition, including expected synergies, innovation and other benefits, statements about the effect of the reduction of the dividend in the third quarter and statements about future dividend payments. Although Kronos believes the expectations reflected in such forward-looking statements are reasonable, it cannot give any assurances that these expectations will prove to be correct. Such statements by their nature involve substantial risks and uncertainties that could significantly impact expected results, and actual future results could differ materially from those described in such forward-looking statements. The factors that could cause actual future results to differ materially include, but are not limited to, the following:
● | Future supply and demand for our products |
● | Our ability to realize expected cost savings from strategic and operational initiatives |
● | Our ability to integrate acquisitions, including LPC, into our operations and realize expected synergies and innovations |
● | The extent of the dependence of certain of our businesses on certain market sectors |
● | The cyclicality of our business |
● | Customer and producer inventory levels |
● | Unexpected or earlier-than-expected industry capacity expansion |
● | Changes in raw material and other operating costs (such as energy and ore costs) |
● | Changes in the availability of raw materials (such as ore) |
● | General global economic and political conditions that harm the worldwide economy, disrupt our supply chain, increase material and energy costs or reduce demand or perceived demand for our TiO2 products or impair our ability to operate our facilities (including changes in the level of gross domestic product in various regions of the world, natural disasters, terrorist acts, global conflicts and public health crises) |
● | Operating interruptions (including, but not limited to, labor disputes, leaks, natural disasters, fires, explosions, unscheduled or unplanned downtime, transportation interruptions, certain regional and world events or economic conditions and public health crises) |
● | Technology related disruptions (including, but not limited to, cyber-attacks; software implementation, upgrades or improvements; technology processing failures; or other events) related to our technology infrastructure that could impact our ability to continue operations, or at key vendors which could impact our supply chain, or at key customers which could impact their operations and cause them to curtail or pause orders |
● | Competitive products and substitute products |
● | Customer and competitor strategies |
● | Potential consolidation of our competitors |
● | Potential consolidation of our customers |
● | The impact of pricing and production decisions |
● | Competitive technology positions |
● | Potential difficulties in upgrading or implementing accounting and manufacturing software systems |
● | The introduction of trade barriers or trade disputes |
● | Fluctuations in currency exchange rates (such as changes in the exchange rate between the U.S. dollar and each of the euro, the Norwegian krone and the Canadian dollar and between the euro and the Norwegian krone), or possible disruptions to our business resulting from uncertainties associated with the euro or other currencies |
● | Our ability to renew or refinance credit facilities or other debt instruments in the future |
● | Changes in interest rates |
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● | Our ability to maintain sufficient liquidity |
● | The ultimate outcome of income tax audits, tax settlement initiatives or other tax matters, including future tax reform |
● | Our ability to utilize income tax attributes, the benefits of which may or may not have been recognized under the more-likely-than-not recognition criteria |
● | Environmental matters (such as those requiring compliance with emission and discharge standards for existing and new facilities) |
● | Government laws and regulations and possible changes therein including new environmental, health, safety, sustainability or other regulations (such as those seeking to limit or classify TiO2 or its use) |
● | Pending or possible future litigation or other actions. |
Should one or more of these risks materialize (or the consequences of such a development worsen), or should the underlying assumptions prove incorrect, actual results could differ materially from those forecasted or expected. Kronos disclaims any intention or obligation to update or revise any forward-looking statement whether as a result of changes in information, future events or otherwise, except as required by law.
* * * * *
Investor Relations Contact
Bryan A. Hanley
Senior Vice President and Treasurer
Tel. 972-233-1700
3
Document and Entity Information |
Jul. 16, 2024 |
---|---|
Cover [Abstract] | |
Document Type | 8-K |
Document Period End Date | Jul. 16, 2024 |
Entity Registrant Name | KRONOS WORLDWIDE, INC. |
Entity Incorporation, State or Country Code | DE |
Entity File Number | 1-31763 |
Entity Tax Identification Number | 76-0294959 |
Entity Address, Address Line One | 5430 LBJ Freeway |
Entity Address, Adress Line Two | Suite 1700 |
Entity Address, City or Town | Dallas |
Entity Address State Or Province | TX |
Entity Address, Postal Zip Code | 75240-2620 |
City Area Code | 972 |
Local Phone Number | 233-1700 |
Written Communications | false |
Soliciting Material | false |
Pre-commencement Tender Offer | false |
Pre-commencement Issuer Tender Offer | false |
Title of 12(b) Security | Common Stock |
Trading Symbol | KRO |
Security Exchange Name | NYSE |
Entity Emerging Growth Company | false |
Entity Central Index Key | 0001257640 |
Amendment Flag | false |
Document Information |
Jul. 16, 2024 |
---|---|
Document Information: | |
Document Type | 8-K |
Amendment | false |
CIK | 0001257640 |
Registrant Name | KRONOS WORLDWIDE, INC. |
Period End Date | Jul. 16, 2024 |
1 Year Kronos Worldwide Chart |
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