Exhibit 10.1

Execution Copy

SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

This SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT (this “ Agreement ”), dated as of December 14, 2018, is by and among MATTEL, INC., a Delaware corporation (the “ Company ”), each of the other Borrowers and Guarantors party hereto, the Lenders signatory hereto and BANK OF AMERICA, N.A., as Administrative Agent, Collateral Agent and Australian Security Trustee.

RECITALS

A. WHEREAS , the Borrowers, Guarantors, Lenders and Administrative Agent have previously entered into that certain Syndicated Facility Agreement dated as of December 20, 2017 (as amended, restated, supplemented or otherwise modified immediately prior to the Second Amendment Effective Date (as defined below), the “ Existing Credit Agreement ”); and

B. WHEREAS , the Borrowers have requested that the Lenders and Administrative Agent agree to amend certain provisions of the Existing Credit Agreement, and the Lenders and Administrative Agent are willing to do so, but only to the extent and subject to the limitations set forth in this Agreement.

NOW, THEREFORE , in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions . Initially capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings given thereto in the Existing Credit Agreement, as amended by the terms of this Agreement (as so amended, and as may be further amended, restated, amended and restated, modified, supplemented or replaced from time to time, the “ Credit Agreement ”).

ARTICLE II

AMENDMENTS TO CREDIT AGREEMENT

2.1 Each of the parties hereto agrees that, as of the Second Amendment Effective Date (as defined below), the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text ) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text ) as set forth in the pages of the Existing Credit Agreement attached as Exhibit A hereto.

ARTICLE III

CONDITIONS TO EFFECTIVENESS

3.1 Closing Conditions . This Agreement shall become effective upon satisfaction of the following conditions precedent (in each case, in form and substance reasonably acceptable to the Administrative Agent) (the date of satisfaction of all such conditions being referred to herein as the “ Second Amendment Effective Date ”):

(a) Executed Agreement . The Administrative Agent shall have received a copy of this Agreement duly executed by each of the Borrowers, the Guarantors, the Lenders and the Administrative Agent, Collateral Agent and Australian Security Trustee.

(b) Other Closing Documents . The Administrative Agent shall have received such other documents, instruments, and agreements listed on Exhibit B attached hereto.

(c) No Default . After giving effect to this Agreement, no Default or Event of Default shall exist.

(d) Fees and Expenses . On the Second Amendment Effective Date, the Company shall have paid all reasonable and documented out-of-pocket expenses required to be reimbursed by the Company to the Administrative Agent, the Joint Lead Arrangers and Issuing Banks (without duplication) in each case arising in connection with this Agreement to the extent invoiced at least two Business Days prior to the Second Amendment Effective Date.

(e) “Know Your Customer” Requirements . Upon the reasonable request of any Lender made at least one Business Day prior to the Second Amendment Effective Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act.

(f) Beneficial Ownership Certification . At least one Business Day prior to the Second Amendment Effective Date, any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Credit Party.

ARTICLE IV

MISCELLANEOUS

4.1 Amended Terms . On and after the Second Amendment Effective Date, all references to the Credit Agreement in each of the Credit Documents shall hereafter mean the Existing Credit Agreement as amended by this Agreement. Except as specifically amended hereby, the Existing Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

4.2 Representations and Warranties of Credit Parties . Each of the Credit Parties represents and warrants as follows:

(a) Such Credit Party has the corporate, partnership, limited liability company, unlimited liability company or similar organizational power and authority, as the case may be, to execute, deliver and perform the terms and provisions of this Agreement and has taken all necessary corporate, partnership, limited liability company, unlimited liability company or similar organizational action, as the case may be, to authorize the execution, delivery and performance by it of this Agreement. Such Credit Party has duly executed and delivered this Agreement, and, subject to the Legal Reservations, this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar law generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

(b) Neither the execution, delivery or performance by such Credit Party of this Agreement, nor compliance by it with the terms and provisions hereof, (i) will contravene any provision of any Requirement of Law, other than any Requirement of Law the violation of which could not reasonably be expected to result in a Material Adverse Effect, (ii) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under (with due notice or lapse of time or both), or result in the creation or imposition of (or the obligation to create

or impose) any material Lien (except pursuant to the Security Documents) upon any of the material property or assets of such Credit Party or any of its respective Restricted Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument, in each case to which such Credit Party or any of its Restricted Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject, the violation of which could reasonably be expected to result in a Material Adverse Effect (including, for the avoidance of doubt, the Senior Unsecured Note Indentures), (iii) will violate any provision of the certificate or articles of incorporation, certificate of formation, limited liability company agreement or by-laws (or equivalent organizational documents), as applicable, of such Credit Party or (iv) will require any approval of stockholders of any Person, in each case that has not been obtained and is in full force and effect.

(c) No order, consent, approval, license, authorization or validation of, or filing, recording or registration (including Australian PPSA registration) with (except for (i) those that have otherwise been obtained or made on or prior to the Second Amendment Effective Date and which remain in full force and effect on the Second Amendment Effective Date, (ii) filings which are necessary to perfect the security interests and Liens created under the Security Documents to the extent required by the Collateral and Guarantee Requirement, or (iii) filings of periodic reports and other documents under the Exchange Act and other applicable Requirements of Law), or exemption by, any governmental or public body or authority, or any subdivision thereof, is required to be obtained or made by, or on behalf of, such Credit Party to authorize, or is required to be obtained or made by, or on behalf of, such Credit Party in connection with, the execution, delivery and performance of this Agreement, in each case other than any orders, consents, approvals, licenses, authorizations or validations of, or filings, recordings or registrations, the failure to have or make could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

(d) Immediately after giving effect to this Agreement, no Default or Event of Default shall exist.

(e) Each of the representations and warranties made by any Credit Party set forth in Section 7 of the Credit Agreement or in any other Credit Document are true and correct in all material respects (without duplication of any materiality standard set forth in any such representation or warranty) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such date (without duplication of any materiality standard set forth in any such representation or warranty).

4.3 Reaffirmation of Obligations .

(a) Each Credit Party hereby ratifies the Existing Credit Agreement and other Credit Documents to which such Credit Party is a party and acknowledges and reaffirms (i) that it is bound by all terms of the Credit Agreement and the other Credit Documents applicable to it and (ii) that it is responsible for the observance and full performance of its respective Obligations (to the extent specified in the Credit Agreement and the other Credit Documents applicable to it). Without limiting the generality of the foregoing, all security interests, pledges, assignments and other Liens and Guarantees previously granted by any Credit Party pursuant to the Credit Documents executed and delivered in connection with the Existing Credit Agreement are hereby confirmed, reaffirmed, ratified, renewed and continued, and all such security interests, pledges, assignments and other Liens and Guarantees, in each case, unless expressly terminated, superseded or discharged on and after the Second Amendment Effective Date, shall remain in full force and effect as security for the Obligations of such Credit Party on and after the Second Amendment Effective Date.

(b) The Initial German Borrower (i) confirms to each of the Foreign Guaranteed Creditors that the German Global Assignment Agreement shall remain in full force and effect and the extension made to the Credit Documents by this Agreement shall not affect the validity ( Wirksamkeit ) and enforceability ( Vollstreckbarkeit ) of the German Global Assignment Agreement in any way, (ii) agrees, that from the Second Amendment Effective Date, the German Global Assignment Agreement shall secure any and all of the Foreign Obligations (including, without limitation, any such obligations owed to the Collateral Agent under the parallel debt undertaking under Section 11.19 ( Parallel Debt Undertaking ) 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 “ Extended Secured Obligations ”), regardless of the definition of “Secured Obligations” contained in the German Global Assignment Agreement, including any amounts which exceed the obligations secured by the German Global Assignment Agreement prior to the date of this Agreement, (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 Foreign Guaranteed Creditors, that the German Bank Account Pledge shall remain in full force and effect and the extension made to the Credit Documents by this Agreement shall not affect the validity ( Wirksamkeit ) and enforceability ( Vollstreckbarkeit ) of the German Bank Account Pledge in any way and (B) agrees, that from the Second Amendment Effective Date, the German Bank Account Pledge shall secure any and all of the Extended Secured Obligations, regardless of the definition of “Secured Obligations” contained in the German Bank Account Pledge, including any amounts which exceed the obligations secured by the German Bank Account Pledge prior to the date of this Agreement.

(c) Except as expressly stated, nothing in this Agreement, (i) prejudices or adversely affects any right, power, discretion or remedy arising under any Australian Security Document or the Australian Security Trust Deed, or (ii) discharges, releases or otherwise affects any liability or obligation arising under any Australian Security Document or the Australian Security Trust Deed.

4.4 Credit Document . This Agreement shall constitute a Credit Document under the terms of the Credit Agreement.

4.5 Expenses . Borrowers agree to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Joint Lead Arrangers and Issuing Banks (without duplication) in each case in connection with this Agreement, including the reasonable and documented fees, charges and disbursements of counsel in accordance with, and to the extent set forth in, Section 12.01 of the Credit Agreement.

4.6 Entirety . This Agreement and the other Credit Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

4.7 Counterparts; Facsimile . This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Agreement by facsimile or other electronic means (including in “.pdf” or “.tif” format) shall be effective as an original.

4.8 No Actions, Claims, Etc . As of the date hereof, each of the Credit Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Credit Agreement or any other Credit Document on or prior to the date hereof.

4.9 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

4.10 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial; Judicial Reference Provision . The governing law, submission to jurisdiction, venue, waiver of jury trial and judicial reference provisions set forth in Section 12.07 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis , except that Section  4.3(b) of this Agreement and any non-contractual obligations arising out of or in connection with it are governed by German law.

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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed on the date first above written.

BORROWERS :

 

SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

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EXECUTED by MATTEL PTY LTD (ACN		)
000 660 962) in accordance with section 127(1) of		)
the Corporations Act 2001 (Cwlth):		)
		)
		)
		)
/s/ David Wright		)		/s/ Peter Cantwell
Signature of director		)		Signature of company secretary
		)
		)
DAVID WRIGHT		)		PETER CANTWELL
Name of director		)		Name of company secretary

SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

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GUARANTORS :

 

SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

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LENDERS :

 

SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

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SECOND AMENDMENT TO SYNDICATED FACILITY AGREEMENT

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EXHIBIT A

Amendments to Existing Credit Agreement

EXHIBIT A to the Second Amendment

Composite copy reflecting amendments made pursuant to

First Amendment to Syndicated Facility Agreement dated as of June 1, 2018; and

Second Amendment to Syndicated Facility Agreement dated as of December 14, 2018

EXECUTION VERSION

$1,600,000,000

SYNDICATED FACILITY AGREEMENT

Dated as of December 20, 2017,

among

MATTEL, INC.,

as a U.S. Revolving Borrower

MATTEL CANADA INC.,

as Initial Canadian Borrower,

MATTEL FRANCE,

as Initial French Borrower,

MATTEL ESPANA, S.A.,

as Initial Spanish Borrower,

MATTEL EUROPA B.V.

MATTEL U.K. LIMITED

HIT ENTERTAINMENT LIMITED

GULLANE (THOMAS) LIMITED

and

MATTEL GMBH

as Initial European (GNU) Borrowers,

MATTEL PTY LTD,

as Initial Australian Borrower,

Certain of the Company’s subsidiaries from time to time party hereto as Borrowers and Guarantors,

VARIOUS LENDERS,

BANK OF AMERICA, N.A.,

as GLOBAL ADMINISTRATIVE AGENT, COLLATERAL AGENT and AUSTRALIAN SECURITY TRUSTEE

 

 

CITIBANK, N.A.

and

WELLS FARGO BANK, N.A.,

as JOINT LEAD ARRANGERS, JOINT BOOKRUNNERS AND CO-SYNDICATION AGENTS,

HSBC BANK USA, NATIONAL ASSOCIATION,

MIZUHO BANK, LTD.,

MUFG UNION BANK, N.A.

and

ROYAL BANK OF CANADA

as JOINT LEAD ARRANGERS, JOINT BOOKRUNNERS AND CO-DOCUMENTATION AGENTS

TABLE OF CONTENTS

 

				Page
SECTION 1.		DEFINITIONS AND ACCOUNTING TERMS			3
1.01.		Defined Terms			3
1.02.		Terms Generally			112 116
1.03.		Uniform Commercial Code and PPSA			113 116
1.04.		Exchange Rates; Currency Equivalent			113 117
1.05.		Interpretation (Quebec)			114 117
1.06.		Currency Fluctuations			114 118
1.07.		Interpretation (the Netherlands)			115 119
1.08.		Australian Terms			116 119
1.09.		Interpretation (France)			116 119
1.10.		Additional Alternative Currencies			117 121
1.11.		Change of Currency			118 121
1.12.		Letter of Credit Amounts			118 122
1.13.		Accounting Terms			118 122
1.14.		Pro Forma and Other Calculations			119 123
1.15.		Interpretation (Spain)			121 125
1.16.		BAMLI Merger			122 126
1.17.		Divisions			126
SECTION 2.		AMOUNT AND TERMS OF CREDIT			122 126
2.01.		Commitments			122 126
2.02.		Loans			123 127
2.03.		Borrowing Procedure			126 130
2.04.		Evidence of Debt; Repayment of Loans			127 131
2.05.		Fees			129 133
2.06.		Interest on Loans			130 134
2.07.		Termination and Reduction of Commitments and FILO Borrowing Base			133 138
2.08.		Interest Elections			135 139
2.09.		Optional and Mandatory Prepayments of Loans			137 141
2.10.		Payments Generally; Pro Rata Treatment; Sharing of Setoffs			141 146

 

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(continued)

 

				Page
2.11.		Defaulting Lenders			143 147
2.12.		Swingline Loans			145 150
2.13.		Letters of Credit			148 153
2.14.		Settlement Among Lenders			157 161
2.15.		Revolving A Commitment Increase			158 162
2.16.		Borrower Representative			160 165
2.17.		Overadvances			160 165
2.18.		Protective Advances			162 166
2.19.		Extensions of Revolving A Loans and Revolving A Commitments			164 168
2.20.		Adjustment of Revolving A Commitments			167 171
2.21.		Subsidiary Borrowers			168 172
2.22.		Reserves			169 174
SECTION 3.		YIELD PROTECTION, ILLEGALITY AND REPLACEMENT OF LENDERS			171 175
3.01.		Increased Costs, Illegality, etc.			171 175
3.02.		Compensation			174 178
3.03.		Change of Lending Office			175 179
3.04.		Replacement of Lenders			175 179
SECTION 4.		TAXES			176 180
4.01.		Net Payments			176 180
4.02.		VAT			180 184
4.03.		United Kingdom Tax Matters			181 186
4.04.		Public Offer			188 193
SECTION 5.		CONDITIONS PRECEDENT TO CREDIT EVENTS ON THE APPLICABLE CLOSING DATE			190 194
5.01.		U.S. and Canada			190 194
5.02.		France			194 198
5.03.		European (GNU)			196 200
5.04.		Spain			198 202
5.05.		Australia			200 204

 

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TABLE OF CONTENTS

(continued)

 

				Page
SECTION 6.		CONDITIONS PRECEDENT TO ALL CREDIT EVENTS			202 206
6.01.		Notice of Borrowing			202 206
6.02.		Availability			202 206
6.03.		No Default			202 206
6.04.		Representations and Warranties			202 206
SECTION 7.		REPRESENTATIONS AND WARRANTIES			202 207
7.01.		Organizational Status			202 207
7.02.		Power and Authority			203 207
7.03.		No Violation			203 207
7.04.		Approvals			204 208
7.05.		Financial Statements; Financial Condition; Projections			204 208
7.06.		Litigation			204 209
7.07.		True and Complete Disclosure			205 209
7.08.		Use of Proceeds; Margin Regulations			205 209
7.09.		Tax Returns and Payments			205 210
7.10.		ERISA			206 210
7.11.		The Security Documents			206 211
7.12.		Title to Real Estate			208 212
7.13.		Subsidiaries			208 212
7.14.		Compliance with Statutes; Sanctions; Patriot Act; Anti-Corruption Laws			208 212
7.15.		Investment Company Act			209 213
7.16.		Environmental Matters			209 213
7.17.		Labor Relations			209 214
7.18.		Intellectual Property			210 214
7.19.		Centre of Main Interests			210 214
7.20.		Borrowing Base Certificate			210 214
7.21.		Dutch Works Councils Act			210 215
7.22.		Canadian Pension Plans			210 215
7.23.		U.K. Pensions			211 215
7.24.		Beneficial Ownership Certification			216

 

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SECTION 8.		AFFIRMATIVE COVENANTS			211 216
8.01.		Information Covenants			211 216
8.02.		Books, Records and Inspections			215 220
8.03.		Maintenance of Property; Insurance			216 221
8.04.		Existence; Franchises			217 222
8.05.		Compliance with Statutes, etc.			218 223
8.06.		Compliance with Environmental Laws			218 223
8.07.		ERISA			218 223
8.08.		U.K. Pensions			219 224
8.09.		Canadian Pension Plans			219 224
8.10.		Payment of Taxes			220 224
8.11.		Material Contracts			220 224
8.12.		Use of Proceeds			220 225
8.13.		Centre of Main Interests			220 225
8.14.		Reserved			220 225
8.15.		Additional Security; Further Assurances; etc.			220 225
8.16.		Post-Closing Actions			222 226
8.17.		Dutch Works Councils Act			222 227
8.18.		Certain Additional Account Security Actions and Additional Inventory Security Actions			222 227
8.19.		Designation of Unrestricted Subsidiaries and Restricted Non-Credit Party Subsidiaries			222 227
8.20.		Collateral Monitoring and Reporting			224 229
SECTION 9.		NEGATIVE COVENANTS			228 233
9.01.		Liens			228 233
9.02.		Dispositions			232 237
9.03.		Restricted Payments and Prepayment of Indebtedness			234 239
9.04.		Indebtedness			238 243
9.05.		Investments			241 247
9.06.		Transactions with Affiliates			244 250

 

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9.07.		Modifications of Debt Documents, Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.			245 251
9.08.		Burdensome Agreements			246 251
9.09.		Business; Fiscal Year			247 253
9.10.		Liabilities of Initial Dutch Borrower			248 253
9.11.		Merger, Consolidation or Sale of All or Substantially All Assets			248 253
9.12.		Financial Covenant			250 256
9.13.		Canadian Pension Plans			250 256
9.14.		Independence of Covenants			251 256
SECTION 10.		EVENTS OF DEFAULT AND REMEDIES			251 256
10.01.		Events of Default			251 256
10.02.		Application of Funds			255 260
SECTION 11.		THE ADMINISTRATIVE AGENT			260 266
11.01.		Appointment and Authorization			260 266
11.02.		Delegation of Duties			262 267
11.03.		Liability of Agents			262 267
11.04.		Reliance by the Agents			262 268
11.05.		Notice of Default			263 268
11.06.		Credit Decision; Disclosure of Information by the Agents			263 269
11.07.		Indemnification of the Agents			264 269
11.08.		Administrative Agent, Collateral Agent and Australian Security Trustee in Its Individual Capacity			264 270
11.09.		Successor Agents			265 270
11.10.		Administrative Agent May File Proofs of Claim			266 271
11.11.		Collateral and Guarantee Matters			266 272
11.12.		Bank Product Providers			267 272
11.13.		The Collateral Agent and the Australian Security Trustee			267 272
11.14.		Withholding Taxes			267 272
11.15.		Quebec Representative			267 273

 

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11.16.		Appointment of Collateral Agent as security trustee for U.K. Security Documents			268 273
11.17.		French Receivables Assignment Agreement			271 276
11.18.		Australian Security Trust Deed			271 277
11.19.		Parallel Debt Undertaking			272 277
11.20.		ERISA			274 280
11.21.		Payments in respect of French Borrowers and French Guarantors			276 282
SECTION 12.		MISCELLANEOUS			277 282
12.01.		Payment of Expenses, etc.			277 282
12.02.		Right of Setoff			278 284
12.03.		Notices			279 284
12.04.		Benefit of Agreement; Assignments; Participations, etc.			279 285
12.05.		No Waiver; Remedies Cumulative			281 287
12.06.		[Reserved]			282 287
12.07.		GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL; JUDICIAL REFERENCE PROVISION			282 287
12.08.		Counterparts			284 290
12.09.		Headings Descriptive			285 290
12.10.		Amendment or Waiver; etc.			285 290
12.11.		Survival			290 296
12.12.		Domicile of Loans			290 296
12.13.		Release of Collateral or Guarantors			290 296
12.14.		Confidentiality			292 297
12.15.		USA Patriot Act Notice			293 299
12.16.		U.K. “Know your customer” checks			293 299
12.17.		Waiver of Sovereign Immunity			294 299
12.18.		Canadian Anti-Money Laundering Legislation			294 300
12.19.		Absence of Fiduciary Relationship			295 300
12.20.		Electronic Signatures			295 300
12.21.		Judgment Currency			295 301

 

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12.22.		Dutch Credit Party Representation			295 301
12.23.		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			296 301
12.24.		Severability			296 302
12.25.		Canadian Severability			296 302
12.26.		Contracting Out of the Australian PPSA Provisions			297 302
12.27.		Limitations on Revolving B Collateral			297 302
SECTION 13.		U.S . CREDIT PARTY GUARANTEE			297 303
13.01.		The Guarantee			297 303
13.02.		Bankruptcy			298 303
13.03.		Nature of Liability			298 304
13.04.		Independent Obligation			299 304
13.05.		Authorization			299 304
13.06.		Reliance			300 305
13.07.		Subordination			300 305
13.08.		Waiver			300 306
13.09.		Maximum Liability			301 306
13.10.		Payments			301 307
SECTION 14.		FOREIGN CREDIT PARTY GUARANTEE			301 307
14.01.		The Guarantee			301 307
14.02.		Bankruptcy			302 308
14.03.		Nature of Liability			302 308
14.04.		Independent Obligation			303 309
14.05.		Authorization			303 309
14.06.		Reliance			304 310
14.07.		Subordination			304 310
14.08.		Waiver			305 310
14.09.		Maximum Liability			306 311
14.10.		Payments			307 313

 

-vii-

SCHEDULE 1.01A		Unrestricted Subsidiaries
SCHEDULE 1.01B		Existing Letters of Credit
SCHEDULE 1.01C		Immaterial Subsidiaries
SCHEDULE 1.01D		Initial Closing Date Restricted Non-Credit Party Subsidiaries
SCHEDULE 1.01E		Debt to be Repaid
SCHEDULE 1.01F		Initial Closing Date U.S. Intellectual Property
SCHEDULE 1.01H		Initial Closing Date Pledged Equity
SCHEDULE 2.01A		Revolving A Commitments (Initial Closing Date)
SCHEDULE 2.01B		Revolving A Commitments (Global Closing Date)
SCHEDULE 2.01C		Revolving B Commitments
SCHEDULE 5.15		Initial Closing Date Mortgaged Property
SCHEDULE 7.13		Subsidiaries
SCHEDULE 7.22		Canadian Pension Plans
SCHEDULE 8.16		Post-Closing Actions
SCHEDULE 8.20(d)		Deposit Accounts
SCHEDULE 9.01(h)		Existing Liens
SCHEDULE 9.04(d)		Existing Indebtedness
SCHEDULE 9.05(g)		Existing Investments
SCHEDULE 9.06(h)		Existing Affiliate Transactions
SCHEDULE 12.03		Administrative Agent/Collateral Agent Notices
EXHIBIT A-1		Form of Notice of Borrowing
EXHIBIT A-2		Form of Notice of Conversion/Continuation
EXHIBIT B-1		Form of U.S. Revolving A Note
EXHIBIT B-2		Form of Canadian Revolving Note
EXHIBIT B-3		Form of French Revolving Note
EXHIBIT B-4		Form of European (GNU) Revolving Note
EXHIBIT B-5		Form of Spanish Revolving Note
EXHIBIT B-6		Form of Australian Revolving Note
EXHIBIT B-7		Form of U.S. Swingline Note
EXHIBIT B-8		Form of Canadian Swingline Note
EXHIBIT B-9		Form of French Swingline Note
EXHIBIT B-10		Form of European (GNU) Swingline Note
EXHIBIT B-11		Form of Australian Swingline Note
EXHIBIT B-12		Form of Spanish Swingline Note
EXHIBIT B-13		Form of Revolving B Note
EXHIBIT C-1		Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships (Or Disregarded Entities) For U.S. Federal Income Tax Purposes)
EXHIBIT C-2		Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships (Or Disregarded Entities) For U.S. Federal Income Tax Purposes)
EXHIBIT C-3		Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships (Or Disregarded Entities) For U.S. Federal Income Tax Purposes)

 

-viii-

EXHIBIT C-4		Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships (Or Disregarded Entities) For U.S. Federal Income Tax Purposes)
EXHIBIT D		Form of Borrowing Base Certificate
EXHIBIT E-1		Form of Credit Party Joinder Agreement
EXHIBIT E-2		Form of Foreign Joinder Agreement
EXHIBIT F		Form of Solvency Certificate
EXHIBIT G		Form of Compliance Certificate
EXHIBIT H		Form of Assignment and Assumption Agreement
EXHIBIT I		Form of Assignment Notice
EXHIBIT J		Form of Borrower Designation Request and Assumption Agreement
EXHIBIT K		Form of Borrower Designation Notice
EXHIBIT L		Form of Intercompany Subordination Agreement

 

-ix-

THIS SYNDICATED FACILITY AGREEMENT, dated as of December 20, 2017, among (i) MATTEL, INC., a Delaware corporation (the “ Company ”; as hereinafter further defined), MATTEL SALES CORP., a California corporation (“ Mattel Sales ”), MATTEL DIRECT IMPORT, INC., a Delaware corporation (“ Mattel Direct Import ”), FISHER-PRICE, INC., a Delaware corporation (“ Fisher-Price ”), AMERICAN GIRL BRANDS, LLC, a Delaware limited liability company (“ American Girl Brands ”), AMERICAN GIRL RETAIL, INC., a Delaware corporation (“ American Girl Retail ”), AMERICAN GIRL PUBLISHING, INC., a Wisconsin corporation (“ American Girl Publishing ”), and MATTEL REALTY CORPORATION, a Delaware corporation (“ Mattel Realty ” together with the Company, Mattel Sales, Mattel Direct Import, Fisher-Price, American Girl Brands, American Girl Retail and American Girl Publishing, the “ Initial U.S. Borrowers ”; as hereinafter further defined), (ii) MATTEL CANADA INC., a corporation formed under the laws of the Province of Ontario (the “ Initial Canadian Borrower ”; as hereinafter further defined), (iii) MATTEL FRANCE, a French limited liability company ( soci é t é par actions simplifi é e ) having its registered office at 1/3/5 allée des Fleurs, Parc de la Cerisaie 94260 Fresnes – France, and registered with the Trade and Companies Registry of Créteil under the number 692 039 688 RCS Créteil (the “ Initial French Borrower ”; as hereinafter further defined), (iv) MATTEL ESPANA, S.A., a corporation formed under the laws of Spain (the “ Initial Spanish Borrower ”; as hereinafter further defined), (v) MATTEL EUROPA B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) under Netherlands law, having its corporate seat at Amsterdam (address: Gondel 1, 2nd floor, 1186 MJ Amstelveen, the Netherlands, and registered with the Dutch trade register under number: 33237928 (the “ Initial Dutch Borrower ”; as hereinafter further defined), MATTEL U.K. LIMITED, a company incorporated in England and Wales with company number 01471442 (“ Mattel U.K. ”), HIT ENTERTAINMENT LIMITED, a company incorporated in England and Wales with company number 02341947 (“ HiT ”), GULLANE (THOMAS) LIMITED, a company incorporated in England and Wales with company number 01555168 (“ Gullane ”, together with Mattel U.K. and HiT, the “ Initial U.K. Borrowers ”; as hereinafter further defined), and MATTEL GMBH, a German corporation ( Gesellschaft mit beschr ä nkter Haftung ) having its registered office at Solmstrasse 4, 60486 Frankfurt am Main, Germany, and registered with the Frankfurt, Germany Commercial Register under HRB 99273 (the “ Initial German Borrower ”; as hereinafter further defined, together with the Initial Dutch Borrower and the Initial U.K. Borrowers, the “ Initial European (GNU) Borrowers ”; as hereinafter further defined), (vi) MATTEL PTY LTD, an Australian proprietary limited company with ACN 000 660 962 (the “ Initial Australian Borrower ”; as hereinafter further defined), (vii) each of the other Borrowers (as hereinafter defined) and Guarantors (as hereinafter defined) party hereto from time to time, (viii) the Lenders party hereto from time to time, (ix) BANK OF AMERICA, N.A., as Administrative Agent under the U.S. Revolving A Subfacility, the Revolving B Facility, the Canadian Revolving Subfacility, the French Revolving Subfacility, the Spanish Revolving Subfacility, the European (GNU) Revolving Subfacility and the Australian Revolving Subfacility (in such capacity, the “ Global Administrative Agent ”; as hereinafter further defined), as a U.S. Issuing Bank, a Canadian Issuing Bank (acting through its Canadian branch), a European (GNU) Issuing Bank and an Australian Issuing Bank, and as the U.S. Swingline Lender, the Canadian Swingline Lender (acting through its Canadian branch), the European (GNU) Swingline Lender and the Australian Swingline Lender, (x) BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED (together with its permitted successors and permitted assigns, “ BAMLI ”), as a French Issuing Bank, a Spanish Issuing Bank, the French Swingline Lender and the Spanish Swingline Lender, and (xi) BANK OF AMERICA, N.A, as Collateral Agent (in such capacity, the “ Collateral Agent ”; as hereinafter further defined) and Australian Security Trustee (in such capacity, the “ Australian Security Trustee ”; as hereinafter further defined). All capitalized terms used herein and defined in Section  1.01 are used herein as therein defined.

 

1

W I T N E S S E T H:

WHEREAS, on the Initial Closing Date (a) the Revolving Borrowers have requested that the Revolving A Lenders extend credit in the form of Revolving A Loans in an aggregate principal amount at any time outstanding not to exceed $1,306,000,000, consisting of (i) a U.S. Revolving A Subfacility in an initial aggregate principal amount of $1,256,000,000 (the “ U.S. Revolving A Subfacility ”) and (ii) a Canadian Revolving Subfacility in an initial aggregate principal amount of $50,000,000 (the “ Canadian Revolving Subfacility ”), and (b) the Revolving Borrowers have requested that the Issuing Banks issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed (i) the U.S. LC Sublimit under the U.S. Revolving A Subfacility and (ii) the Canadian LC Sublimit under the Canadian Revolving Subfacility and; (c) the Revolving Borrowers have requested the Swingline Lenders to extend credit in the form of Swingline Loans in an aggregate principal amount at any time outstanding not to exceed (i) in the case of the U.S. Revolving A Subfacility, 10% of the U.S. Revolving A Commitment, and (ii) in the case of the Canadian Revolving Subfacility, 10% of the Canadian Revolving Commitment; and (d) the U.S. Revolving Borrowers have requested that the Revolving B Lenders extend credit in the form of Revolving B Loans in an aggregate principal amount at any time outstanding not to exceed $294,000,000 (the “ Revolving B Facility ”);

WHEREAS, on the French Closing Date the Revolving Borrowers have requested that (a) the U.S. Revolving A Subfacility be reduced by $40,000,000; (b) the Revolving A Lenders extend credit in the form of Revolving A Loans under a French Revolving Subfacility in an initial aggregate principal amount of $40,000,000 (the “ French Revolving Subfacility ”); (c) the Issuing Banks also issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed the French LC Sublimit under the French Revolving Subfacility; and (c) the Swingline Lenders also extend credit in the form of Swingline Loans under the French Revolving Subfacility in an aggregate principal amount at any time outstanding not to exceed 10% of the French Revolving Commitment;

WHEREAS, on the Spanish Closing Date the Revolving Borrowers have requested that (a) the U.S. Revolving A Subfacility be reduced by $30,000,000; (b) the Revolving A Lenders extend credit in the form of Revolving A Loans under a Spanish Revolving Subfacility in an initial aggregate principal amount of $30,000,000 (the “ Spanish Revolving Subfacility ”); (c) the Issuing Banks also issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed the Spanish LC Sublimit under the Spanish Revolving Subfacility; and (c) the Swingline Lenders also extend credit in the form of Swingline Loans under the Spanish Revolving Subfacility in an aggregate principal amount at any time outstanding not to exceed 10% of the Spanish Revolving Commitment;

 

2

WHEREAS, on the European (GNU) Closing Date the Revolving Borrowers have requested that (a) the U.S. Revolving A Subfacility be reduced by $280,000,000; (b) the Revolving A Lenders extend credit in the form of Revolving A Loans under a European (GNU) Revolving Subfacility in an initial aggregate principal amount of $280,000,000 (the “ European (GNU) Revolving Subfacility ”); (c) the Issuing Banks also issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed the European (GNU) LC Sublimit under the European (GNU) Revolving Subfacility; and (c) the Swingline Lenders also extend credit in the form of Swingline Loans under the European (GNU) Revolving Subfacility in an aggregate principal amount at any time outstanding not to exceed 10% of the European (GNU) Revolving Commitment; and

WHEREAS, on the Australian Closing Date the Revolving Borrowers have requested that (a) the U.S. Revolving A Subfacility be reduced by $50,000,000; (b) the Revolving A Lenders extend credit in the form of Revolving A Loans under an Australian Revolving Subfacility in an initial aggregate principal amount of $50,000,000 (the “ Australian Revolving Subfacility ”); (c) the Issuing Banks also issue Letters of Credit in an aggregate Stated Amount at any time outstanding not to exceed the Australian LC Sublimit under the Australian Revolving Subfacility; and (c) the Swingline Lenders also extend credit in the form of Swingline Loans under the Australian Revolving Subfacility in an aggregate principal amount at any time outstanding not to exceed 10% of the Australian Revolving Commitment.

NOW THEREFORE, the Revolving A Lenders are willing to extend such revolving credit to the Revolving Borrowers, the Swingline Lenders are willing to make Swingline Loans to the Revolving Borrowers, the Issuing Banks are willing to issue Letters of Credit for the account of the Revolving Borrowers and the Revolving B Lenders are willing to extend such revolving credit to the U.S. Revolving Borrowers, in each case, on the terms and subject to the conditions set forth herein.

Section 1. Definitions and Accounting Terms .

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

“ Acceptable Intercreditor Agreement ” shall mean an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent in their Permitted Discretion.

“ Account Debtor ” shall mean any Person who may become obligated to another Person under, with respect to, or on account of, an Account.

“ Account Debtor Approved Countries ” shall mean the United States, Canada, the Netherlands, Germany, France, the United Kingdom, Spain, Australia, Hong Kong, New Zealand, Norway, Singapore, Switzerland, and any other member state of the European Union as of April 30, 2004, excluding Greece, and, solely in the case of a Purchased Account, Italy, Poland, and any other country or territory approved in writing by the Administrative Agent in its sole discretion, on terms and conditions reasonably satisfactory to the Administrative Agent, in each case together with any state or province or territory thereof (as applicable); provided , that during the continuance of a Cash Dominion Period, the Administrative Agent may, in its Permitted Discretion and as a condition to such jurisdiction remaining an Account Debtor Approved Country, require that Borrowers provide local law security documentation in respect of Accounts of Account Debtors organized outside of the jurisdiction of organization of such Borrowers to ensure that the Administrative Agent has a duly perfected and enforceable Lien under the applicable law of such jurisdiction.

 

3

“ Accounts ” shall mean with respect to any Person, any of such Person’s accounts receivable arising from the sale of goods or supply of services, including the right to payment of any interest or other finance charges, late payment or delinquency charges and any extension or collection fees, and including all “accounts,” as such term is defined in the UCC or with respect to (a) any Australian Credit Party, as defined in the Australian PPSA, (b) any Canadian Credit Party, as defined in the PPSA, (c) any French Credit Party, all cr é ances (as this term is used in the French Civil Code), (d) any Dutch Borrower or Dutch Finco Borrower , all vorderingen (as used in the Dutch Civil Code), or (e) any German Borrower, all Forderungen (as this term is used in the German Civil Code), in any such case in which any Person now or hereafter has rights, including all rights to payment for goods sold or leased or for services rendered.

“ ACH ” shall mean automated clearing house transfers.

“ Acquired Entity or Business ” shall mean either (a) the assets constituting a business, division or product line of any Person not already a Subsidiary of the Company or (b) the Equity Interests of any Person, which Person shall, as a result of the respective acquisition, become a Restricted Subsidiary of the Company (or shall be merged, consolidated or amalgamated with and/or into the Company or a Restricted Subsidiary of the Company).

“ ADI Account ” shall have the meaning provided in Section 10 of the Australian PPSA.

“ ADI Account Control Deed ” means an ADI Account Control Deed over an ADI Account to be executed by each institution maintaining an ADI Account (other than an Excluded Account) for a Borrower or any other Credit Party, in each case as required by, and in accordance with the terms of Section  8.20 and in form and substance reasonably satisfactory to the Administrative Agent.

“ Additional Account Security Actions ” shall mean that a Borrower has provided security documentation (in form and substance satisfactory to the Administrative Agent in its Permitted Discretion and at the reasonable request of the Administrative Agent) in respect of Accounts of Account Debtors organized or incorporated outside of the jurisdiction of organization or incorporation of such Borrower or governed by the laws of a jurisdiction other than such Borrower’s jurisdiction of organization or incorporation to ensure that the Collateral Agent or Australian Security Trustee, as applicable, has a duly perfected and enforceable Lien under the applicable law of such jurisdiction.

“ Additional Inventory Security Actions ” shall mean that a Dutch Borrower has provided security documentation (in form and substance satisfactory to the Administrative Agent in its Permitted Discretion and at the reasonable request of the Administrative Agent) in respect of its Inventory governed by the laws of the jurisdiction in which such Inventory is located to ensure that the Collateral Agent has a duly perfected and enforceable Lien under the applicable law of such jurisdiction.

“ Additional Lenders ” shall have the meaning provided in Section  2.15(b) .

 

4

“Additional Purchased Account Security Actions” shall mean that the Dutch Finco Borrower has provided (a) security documentation (in form and substance satisfactory to the Administrative Agent in its Permitted Discretion and at the reasonable request of the Administrative Agent) in respect of Purchased Accounts of the applicable Account Debtors to ensure that the Collateral Agent or Australian Security Trustee, as applicable, has a duly perfected and enforceable Lien under the applicable law of the jurisdiction of organization or incorporation of the Dutch Finco Borrower and (if applicable) of such Account Debtors and/or the applicable law of the jurisdiction governing such Purchased Accounts, in each case, as reasonably requested by the Administrative Agent, (b) reaffirmation documentation (in form and substance satisfactory to the Administrative Agent in its Permitted Discretion and at the reasonable request of the Administrative Agent) in respect of the Guarantees, to the extent applicable, and (c) such other documents, instruments and agreements as are reasonably requested by the Administrative Agent in connection with the applicable Purchased Accounts, including, without limitation, copies (with originals to follow promptly upon the request of the Administrative Agent) of the applicable purchase agreements and true sale opinions in respect of such Purchased Accounts, evidence that the terms set forth in such true sale opinion(s) required to be satisfied in order that the applicable purchase of Purchased Accounts be deemed a true sale have been satisfied, and a Collection Account Addendum covering any Collection Accounts into which collection proceeds of such Purchased Accounts may be remitted, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

“ Adjustment Date ” shall mean the first day of each of January, April, July and October, as applicable.

“ Administrative Agent ” shall mean the Global Administrative Agent and shall include any successor thereto appointed pursuant to Section  11.09 ; provided that in each instance in this Agreement or any other Credit Document that provides for the Administrative Agent to exercise its discretion (including the establishment or modification of Reserves or the exercise of Permitted Discretion) or provides for the Administrative Agent to provide any consent, determination or other judgment with regard to any action or inaction under this Agreement or any other Credit Document, any such exercise of discretion, consent, determination, judgment, action or inactions of the referenced “Administrative Agent” shall be exercised, given, made or undertaken only at the direction and with the consent of the Global Administrative Agent.

“ Affiliate ” of any specified Person shall mean, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlling ,” “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; provided , however , that neither the Administrative Agent nor any Lender (nor any Affiliate thereof) shall be considered an Affiliate of the Company or any Subsidiary thereof as a result of this Agreement, the extensions of credit hereunder or its actions in connection therewith.

“ Affiliate Transaction ” shall have the meaning provided in Section  9.06 .

 

5

“ Agent-Related Persons ” shall mean the Administrative Agent, the Collateral Agent, the Australian Security Trustee, their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of the Administrative Agent, the Collateral Agent, the Australian Security Trustee and their respective Affiliates.

“ Agents ” shall mean the Administrative Agent, the Collateral Agent and the Australian Security Trustee.

“ Agreement ” shall mean this Syndicated Facility Agreement.

“ Agreement Currency ” shall have the meaning provided in Section  12.21 .

“ Alternative Currency ” shall mean Canadian Dollars, Euros, Sterling, Australian Dollars and any other currency (other than Dollars) that is approved in accordance with Section  1.10 .

“ Alternative Currency Equivalent ” shall mean, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“ AML Legislation ” shall have the meaning provided in Section  12.18 .

“ Amortization Event ” shall mean, with respect to any fiscal quarter, that the Consolidated Net Leverage Ratio, calculated as of the end of the most recently ended Test Period for which Section 8.01 Financials have been delivered, is greater than 4.50 to 1.00.

“ Anti-Terrorism Laws ” shall mean any Requirement of Law in any jurisdiction applicable to the Company and its Subsidiaries and relating to terrorism or money laundering any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, including the PATRIOT Act, the Criminal Code R.S.C. 1985, c. c-46, as amended, the United Nations Act, R.S.C. 1985 c. u-2, as amended, 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, the PCMLTFA, the Canadian Sanction Laws and the DMLTFPA.

“ Applicable Margin ” shall mean the per annum percentage set forth below, as determined by the Average Availability as of the most recent Adjustment Date:

 

Level		Average Availability (percentage of Line Cap)		U.S. Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Loans		Eurocurrency Rate Loans, Canadian CDOR Rate Loans and Foreign Base Rate Loans		Australian Bill Rate Loans
I		³  75%		0.25%		1.25%		1.75%
II		³  50% < 75%		0.50%		1.50%		2.00%
III		³  25% < 50%		0.75%		1.75%		2.25%
IV		< 25%		1.00%		2.00%		2.50%

 

6

Until March 31, 2018, the Applicable Margin shall be determined as if Level II were applicable. Thereafter, the Applicable Margin shall be subject to increase or decrease on each Adjustment Date based on Average Availability, as determined by the Administrative Agent’s system of record, and each such increase or decrease in the Applicable Margin shall be effective on the Adjustment Date occurring immediately after the last day of the fiscal quarter most recently ended. If the Revolving Borrowers fail to deliver any Borrowing Base Certificate on or before the date required for delivery thereof, then the Applicable Margin shall be determined as if Level IV were applicable, from the first day of the calendar month following the date such Borrowing Base Certificate was required to be delivered until two Business Days after the date of delivery of such Borrowing Base Certificate.

“ Appraisal ” shall mean an appraisal (a) with respect to any appraisal delivered on or prior to the Initial Closing Date, prepared on a basis reasonably satisfactory to the Administrative Agent (and, in the case of any appraisal of Eligible Fee-Owned Real Estate, the Revolving B Lenders; provided that any such Lenders shall be deemed satisfied with such appraisal if no objection is made within ten (10) Business Days of delivery to such Lender), or (b) with respect to any such appraisal delivered after the Initial Closing Date, prepared on a basis which is the same as the appraisal for the same property delivered pursuant to clause (a) above or on another basis reasonably satisfactory to the Administrative Agent (and, in the case of any appraisal of Eligible Fee-Owned Real Estate, the Revolving B Lenders; provided that any such Lenders shall be deemed satisfied with such appraisal if no objection is made within ten (10) Business Days of delivery to such Lender), in each case under clause (a) or (b), setting forth the Net Orderly Liquidation Value percentage of any Inventory, the IP Net Orderly Liquidation Value percentage of any Eligible U.S. Intellectual Property, or the Real Estate Fair Market Value of any Eligible Fee-Owned Real Estate (as the case may be) in each case which is subject to such appraisal, which appraisal shall be prepared by an appraiser selected by the Administrative Agent in its reasonable discretion.

“ Approved Extended Term Account Debtor ” shall mean an Account Debtor which has extended terms for payment of its Accounts and which the Company and the Administrative Agent have agreed in writing pursuant to the Approved Extended Term Account Debtor Agreement will be treated as an Approved Extended Term Account Debtor under this Agreement.

“ Approved Extended Term Account Debtor Agreement ” shall mean that certain letter agreement dated the date hereof by and between the Administrative Agent and the Company in respect of Approved Extended Term Account Debtors.

“ Approved Fund ” shall mean any Person (other than a natural Person) engaged in making and holding revolving and term loan commitments of the type and under credit facilities similar to the credit facilities contemplated by this Agreement (including in one or more of the jurisdictions of organization or incorporation of the Borrowers) in its ordinary course of business and consistent with its past practices that is administered or managed by (a) a Lender, (b) an Affiliate or branch of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“ ASIC ” shall mean the Australian Securities and Investments Commission or any successor of it.

 

7

“ Assignment and Assumption Agreement ” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit H (appropriately completed) or such other form as shall be reasonably acceptable to the Administrative Agent.

“ Australian Base Rate ” shall mean, for any day, a per annum rate of interest (rounded up to the nearest 1/8th of 1%) equal to the “RBA Cash Rate”, or comparable or successor rate approved by the Administrative Agent, determined by it at or about 10:30 a.m. (Sydney time) on such day, as published on the applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time); provided , that in no event shall the Australian Base Rate be less than zero. Any change in such rate shall take effect at the opening of business on the applicable Business Day.

“ Australian Base Rate Loans ” shall mean an Australian Revolving Loan denominated in Australian Dollars that bears interest based on the Australian Base Rate.

“ Australian Bill Rate ” shall mean a per annum rate of interest (rounded up to the nearest 1/8th of 1%) equal to the Australian BBSY Bid Screen Rate, or comparable or successor rate approved by the Administrative Agent, determined by it at or about 10:30 a.m. (Sydney time) on the first day of the applicable Interest Period, for a term equivalent to such Interest Period; provided, that in no event shall the Australian Bill Rate be less than zero.

“ Australian BBSY Bid Screen Rate ” means:

(a) the Australian Bank Bill Swap Reference Rate (Bid) administered by ASX Benchmarks Pty Limited ACN 616 075 417 (or any other person which takes over the administration of that rate) for the relevant period and displayed (before any correction, recalculation or republication by the administrator) on page BBSY of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate); and

(b) if the rate described in sub-paragraph (a) above is not available, the sum of:

(i) the Australian Bank Bill Swap Reference Rate administered by ASX Benchmarks Pty Limited ACN 616 075 417 (or any other person which takes over the administration of that rate) for the relevant period and displayed (before any correction, recalculation or republication by the administrator) on page BBSW of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate); and

(ii) 0.05% per annum.

“ Australian Bill Rate Loans ” shall mean an Australian Revolving Loan denominated in Australian Dollars that bears interest based on the Australian Bill Rate.

“ Australian Borrowers ” shall mean the Initial Australian Borrower and each Australian Subsidiary of the Company that executes a counterpart hereof and each other applicable Credit Document (or a separate joinder hereto or thereto) to become a Revolving Borrower, whether on the Australian Closing Date or after the Australian Closing Date in accordance with Section  2.21 .

 

8

“ Australian Borrowing Base ” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

(a) 85% of the aggregate Outstanding Balance of Eligible Australian Accounts of the Australian Borrowers at such time; plus

(b) the lesser of (i) 80% of the Cost of Eligible Australian Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible Australian Inventory at such time; minus

(c) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section  2.22 .

The Australian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) , adjusted, in the Administrative Agent’s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account or Eligible Inventory, renders any such Account or Inventory ineligible for inclusion in the Australian Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

“ Australian Closing Date ” shall mean the “Australian Closing Date” specified in a written notification by Administrative Agent to the Lenders that the conditions in Section  5.05 have been satisfied.

“ Australian Collateral ” shall mean all the “Collateral” (or equivalent term) as defined in the Australian Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted by any Australian Credit Parties pursuant to any Australian Security Document.

“ Australian Corporations Act ” shall mean the Corporations Act 2001 (Cth) of Australia and includes any regulations made thereunder.

“ Australian Credit Party ” shall mean each Australian Borrower and each Australian Subsidiary Guarantor.

“ Australian Dilution Reserve ” shall mean, at any date, (a) the amount by which the consolidated Dilution Ratio of Eligible Australian Accounts exceeds five percent (5%) multiplied by (b) the Eligible Australian Accounts on such date.

“ Australian Dollars ” and “ AUD ” shall mean the lawful currency of Australia.

 

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“ Australian General Security Deed ” shall mean the general security deed dated as of the Australian Closing Date by and between the Initial Australian Borrower and the Australian Security Trustee.

“ Australian Issuing Bank ” shall mean, as the context may require, (a) BANA (acting through its Australia branch) or any Affiliates or branches of BANA with respect to Australian Letters of Credit issued by it; (b) any other Revolving A Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k) , with respect to Australian Letters of Credit issued by such Revolving A Lender; (c) with respect to any Existing Letter of Credit set forth on Part E of Schedule 1.01B , the Revolving A Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

“ Australian LC Credit Extension ” shall mean, with respect to any Australian Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

“ Australian LC Disbursement ” shall mean a payment or disbursement made by the Australian Issuing Bank pursuant to a Australian Letter of Credit.

“ Australian LC Documents ” shall mean all documents, instruments and agreements delivered by an Australian Borrower, the Company, or any Subsidiary to an Australian Issuing Bank or the Administrative Agent in connection with any Australian Letter of Credit.

“ Australian LC Exposure ” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding Australian Letters of Credit at such time plus (b) the aggregate principal amount of all Australian LC Disbursements that have not yet been reimbursed at such time. The Australian LC Exposure of any Revolving A Lender at any time shall mean its Pro Rata Percentage of the aggregate Australian LC Exposure at such time.

“ Australian LC Obligations ” shall mean the sum (without duplication) of (a) all amounts owing by the Australian Borrowers in respect of any Australian LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding Australian Letters of Credit.

“ Australian LC Sublimit ” shall mean $5,000,000.

“ Australian Letter of Credit ” shall mean any standby, commercial or documentary letter of credit, foreign guaranty, bank guarantee, documentary banker’s acceptance or similar instrument issued or to be issued by an Australian Issuing Bank under the Australian Revolving Subfacility requested by an Australian Borrower pursuant to Section  2.13 .

“ Australian Line Cap ” shall mean, at any time, an amount that is equal to the lesser of (a) the Australian Revolving Commitments and (b) the Australian Borrowing Base.

“ Australian Offshore Associate ” means an Australian Tax Associate:

(a) which is a non-resident of Australia and which does not become, or would not become, an Australian Revolving Lender or receive a payment in carrying on a business in Australia at or through a permanent establishment of the Australian Tax Associate in Australia; or

 

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(b) which is a resident of Australia and which becomes, or would become, an Australian Revolving Lender or receive a payment in carrying on a business in a country outside Australia at or through a permanent establishment of the Australian Tax Associate in that country,

and which does not become an Australian Revolving Lender or receive payment in the capacity of dealer, manager, underwriter, clearing house, payment agent, custodian, funds manager or responsible entity of a registered scheme.

“ Australian PPSA ” shall mean the Personal Property Securities Act 2009 (Cth) of Australia and includes any regulations made thereunder.

“ Australian Protective Advance ” shall have the meaning provided in Section  2.18 .

“ Australian Pension Plan ” shall mean a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Credit Party in respect of its Australian employees and officers or former employees and officers.

“ Australian Priority Payables Reserves ” shall mean reserves with respect to amounts secured by any Liens, choate or inchoate, or any rights, whether imposed by applicable law in Australia or elsewhere (and including rights to the payment or reimbursement of any costs, charges or other amounts in connection with any insolvency proceeding), which rank or are capable of ranking in priority to the Liens on the Collateral in favour of Collateral Agent’s or Australian Security Trustee’s Liens including, without limitation, to the extent applicable by Requirements of Law, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, annual leave or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth) of Australia), any preferential claims as set out in the Australian Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth) of Australia (but excluding Pay as You Go income withholding tax) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan.

“ Australian Restricted Subsidiary ” shall mean any Australian Subsidiary that is a Restricted Subsidiary.

“ Australian Revolving Borrowing ” shall mean a Borrowing comprised of Australian Revolving Loans.

 

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“ Australian Revolving Commitment ” shall mean, with respect to each Australian Revolving Lender, the commitment, if any, of such Lender to make Australian Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on the Commitment Schedule under the caption “Australian Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its Australian Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section  2.07 , (b) reduced or increased from time to time pursuant to Section  2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section  12.04 .

“ Australian Revolving Exposure ” shall mean, with respect to any Australian Revolving Lender at any time, the aggregate principal amount at such time of all outstanding Australian Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s Australian LC Exposure, plus the aggregate amount of such Lender’s Australian Swingline Exposure.

“ Australian Revolving Lender ” shall mean any Lender under the Australian Revolving Subfacility.

“ Australian Revolving Loans ” shall mean advances made to or at the instructions of a Australian Borrower pursuant to Section  2.01(a)(vii) hereof under the Australian Revolving Subfacility.

“ Australian Revolving Note ” shall mean each revolving note substantially in the form of Exhibit B-6 hereto.

“ Australian Revolving Subfacility ” shall have the meaning provided in the recitals hereto.

“ Australian Security Agreement ” shall mean the Australian General Security Deed and any other general security governed by the laws of a state or territory of Australia entered into by an Australian Credit Party from time to time.

“ Australian Security Documents ” shall mean the Australian Security Agreement, and, after the execution and delivery thereof, each ADI Account Control Deed, each other document governed by Australian law executed and delivered by any Credit Party pursuant to which a Lien is granted in favor of the Australian Security Trustee to secure the Obligations, each document, if any, governed by Australian law executed and delivered by any Credit Party pursuant to the Additional Inventory Security Actions and each document, if any, governed by Australian law executed and delivered by any Credit Party pursuant to the Additional Account Security Actions.

“ Australian Security Trustee ” shall mean BANA, as Australian security trustee, and shall include any permitted successors and permitted assigns.

“ Australian Security Trust Deed ” shall mean the security trust deed dated as of the Australian Closing Date between the Initial Australian Borrower and the Company (as at the date of this Agreement), the Administrative Agent and the Australian Security Trustee.

“ Australian Subsidiary ” shall mean any Subsidiary of the Company incorporated now or hereinafter under the laws of Australia or a state or territory thereof.

 

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“ Australian Subsidiary Guarantor ” shall mean each Australian Restricted Subsidiary (other than any Australian Borrower) which is a party to this Agreement on the Australian Closing Date, as well as each Australian Restricted Subsidiary established, created or acquired after the Australian Closing Date which is required to become a party to this Agreement as a Guarantor in accordance with the requirements of the Collateral and Guarantee Requirement.

“ Australian Swingline Commitment ” shall mean the commitment of the Australian Swingline Lender to make loans under the Australian Revolving Subfacility pursuant to Section  2.12 , as the same may be reduced from time to time pursuant to Section  2.07 .

“ Australian Swingline Exposure ” shall mean, at any time, the aggregate principal amount at such time of all outstanding Australian Swingline Loans. The Australian Swingline Exposure of any Australian Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Australian Swingline Exposure at such time.

“ Australian Swingline Lender ” shall mean BANA (acting through its Australia branch), its permitted successors and permitted assigns.

“ Australian Swingline Loan ” shall mean any Loan made by the Australian Swingline Lender pursuant to Section  2.12 .

“ Australian Swingline Note ” shall mean each swingline note substantially in the form of Exhibit B-11 hereto.

“ Australian Tax Act ” shall mean the Income Tax Assessment Act 1936 (Cth) of Australia, the Income Tax Assessment Act 1997 (Cth) of Australia and the Tax Administration Act of 1953 (Cth).

“ Australian Tax Associate ” shall mean an associate as defined in section 128F(9) of the Australian Tax Act.

“ Australian Withholding Tax ” shall mean any Tax required to be withheld or deducted from any interest or other payment under Division 11A of Part III of the Australian Tax Act.

“ Availability Period ” shall mean, with respect to each Revolving A Subfacility and the Revolving B Facility, the period from the Initial Closing Date to the earlier of (a) the Maturity Date, (b) the termination of the applicable Revolving A Subfacility or the Revolving B Facility (as applicable) under Section  2.09(b)(i) and (c) the date of declaration under Section  10.01 that all amounts owing hereunder are due.

“ Average Availability ” shall mean, at any Adjustment Date, the average daily Total Excess Availability for the fiscal quarter period immediately preceding such Adjustment Date.

“ Average Usage ” shall mean, at any Adjustment Date, the average daily aggregate Revolving Exposure for the Revolving A Subfacilities (excluding any Revolving A Exposure resulting from any outstanding Swingline Loans) and the Revolving B Facility for the fiscal quarter period immediately preceding such Adjustment Date divided by the aggregate Revolving Commitments in respect of the Revolving A Subfacilities and the Revolving B Facility at such time.

 

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

“ Bail-In Legislation ” shall mean, 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 Requirement of Law for such EEA Member Country.

“ BAMLI ” shall have the meaning provided in the recitals hereto.

“ BANA ” shall mean Bank of America, N.A. and its permitted successors and permitted assigns.

“ Bank of Canada Overnight Rate ” shall mean the Bank of Canada overnight rate, which is the rate of interest charged by the Bank of Canada on one-day loans to financial institutions, for such day.

“ Bank Product ” shall mean any of the following products, services or facilities extended to any Borrower or any of Company’s Subsidiaries: (a) Cash Management Services; (b) products under Hedging Agreements; (c) commercial credit card and merchant card services; and (d) other banking products or services as may be requested by any Borrower, other than Letters of Credit.

“ Bank Product Debt ” shall mean Indebtedness and other obligations (including Hedging Obligations and Cash Management Obligations) of a Borrower or any of Company’s Subsidiaries relating to Bank Products.

“ Bankruptcy Code ” shall have the meaning provided in Section  10.01(e) .

“ Base Rate Loans ” shall mean Australian Base Rate Loans, Canadian Base Rate Loans, U.S. Base Rate Loans and/or Foreign Base Rate Loans, as the context may require.

“ Beneficial Ownership Certification ” shall mean a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

“ Beneficial Ownership Regulation ” shall mean 31 C.F.R. § 1010.230.

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

“ BIA ” shall mean the Bankruptcy and Insolvency Act (Canada), as amended.

 

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“ Board of Directors ” shall mean, with respect to any Person, (a) in the case of any corporation, the board of directors or the managing directors of such Person (as applicable), (b) in the case of any limited liability company, the board of managers of such Person, (c) in the case of any partnership, the Board of Directors of the general partner of such Person and (d) in any other case, the functional equivalent of the foregoing.

“ Borrower Designation Notice ” shall have the meaning provided in Section  2.21(a) .

“ Borrower Designation Request and Assumption Agreement ” shall have the meaning provided in Section  2.21(a) .

“ Borrowers ” shall mean the Revolving Borrowers.

“ Borrowing ” shall mean the borrowing of the same Type and Class of Loan by the Borrowers from all the Lenders having Commitments on a given date (or resulting from a conversion or conversions on such date), having in the case of Eurocurrency Rate Loans, the same Interest Period, in the case of Australian Bill Rate Loans, the same Interest Period, and in the case of Canadian CDOR Rate Loans, the same Interest Period; provided that U.S. Base Rate Loans, Australian Base Rate Loans, Foreign Base Rate Loans, Canadian Base Rate Loans and Canadian Prime Loans incurred pursuant to Section  3.01(b ) shall be considered part of the related Borrowing of Eurocurrency Rate Loans, Australian Bill Rate Loans or Canadian CDOR Rate Loans, as applicable.

“ Borrowing Base ” shall mean (a) with respect to the U.S. Revolving A Commitment, the U.S. Revolving A Borrowing Base, (b) with respect to the Revolving B Commitment, the Revolving B Borrowing Base, (c) with respect to the Canadian Revolving Commitment, the Canadian Borrowing Base, (d) with respect to the French Revolving Commitment, the French Borrowing Base, (e) with respect to the European (GNU) Revolving Commitment, the European (GNU) Borrowing Base, (f) with respect to the Dutch Revolving Commitment, the Dutch Borrowing Base and, if applicable, the Dutch Finco Borrowing Base , (g) with respect to the German Revolving Commitment, the German Borrowing Base, (h) with respect to the U.K. Revolving Commitment, the U.K. Borrowing Base, (i) with respect to the Spanish Revolving Commitment, the Spanish Borrowing Base, (j) with respect to the Australian Revolving Commitment, the Australian Borrowing Base and (k) the sum of the U.S. Revolving A Borrowing Base, the Revolving B Borrowing Base, the Canadian Borrowing Base, the French Borrowing Base, the Spanish Borrowing Base, the European (GNU) Borrowing Base and the Australian Borrowing Base, as the context may require. The Borrowing Base or any component thereof at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) .

“ Borrowing Base Assets ” shall mean any assets of the type included in the calculation of the Borrowing Base, without regard to whether such assets are eligible for inclusion in the Borrowing Base; provided that Borrowing Base Assets shall not include (a) any Intellectual Property other than Eligible U.S. Intellectual Property or (b) any Real Property other than Eligible Fee-Owned Real Estate.

“ Borrowing Base Certificate ” shall mean a certificate of a Responsible Officer of the Company in substantially the form of Exhibit D or such other form as shall be reasonably acceptable to the Administrative Agent.

 

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“ Borrowing Minimum ” shall mean (a) in the case of a Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Borrowing denominated in Canadian Dollars, C$1,000,000, (c) in the case of a Borrowing denominated in Euro, €1,000,000, (d) in the case of a Borrowing denominated in Sterling, £1,000,000, (e) in the case of a Borrowing denominated in Australian Dollars, AUD 1,000,000 and (f) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the Administrative Agent and the Company.

“ Borrowing Multiple ” shall mean (a) in the case of a Borrowing denominated in Dollars, $500,000, (b) in the case of a Borrowing denominated in Canadian Dollars, C$500,000, (c) in the case of a Borrowing denominated in Euro, €500,000, (d) in the case of a Borrowing denominated in Sterling, £500,000, (e) in the case of a Borrowing denominated in Australian Dollars, AUD 500,000, and (f) in the case of a Borrowing denominated in any other Alternative Currency, such amount as may be agreed by the Administrative Agent and the Company.

“ Business Day ” shall mean (a) for all purposes other than as covered by clause (b) below, any day except Saturday, Sunday and any day which shall be in New York, New York; Los Angeles, California; Toronto, Canada; London, England; Paris, France; Amsterdam, the Netherlands; Frankfurt, Germany; Madrid, Spain; or Sydney, Australia a legal holiday or a day on which banking institutions are authorized or required by Requirement of Law or other government action to close and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Rate Loans, any day which is a Business Day described in clause (a) above and which is also a day for trading by and between banks in the New York or London interbank Eurodollar market.

“ Canadian Base Rate ” shall mean, for any day, the greater of (a) the per annum rate of interest designated by BANA (acting through its Canada branch) from time to time as its base rate for commercial loans made by it in Dollars, which rate is based on various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate; (b) the Federal Funds Rate for such day, plus 0.50% per annum; or (c) the Eurocurrency Rate for a Eurocurrency Rate Loan with a one-month interest period commencing on such day plus 1.00%. For purposes of this definition, the Eurocurrency Rate shall be determined using the Eurocurrency Rate as otherwise determined by the Global Administrative Agent in accordance with the definition of Eurocurrency Rate. Any change in the Canadian Base Rate due to a change in the rate described in clause (a) of this definition, the Federal Funds Rate or such Eurocurrency Rate shall be effective as of the opening of business on the day of such change in the rate described in clause (a) of this definition, the Federal Funds Rate or such Eurocurrency Rate, respectively; and if the Canadian Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“ Canadian Base Rate Loan ” shall mean a Canadian Revolving Loan denominated in U.S. Dollars that bears interest based on the Canadian Base Rate.

“ Canadian Blocked Persons ” shall have the meaning provided in the definition of the term “Eligible Account Debtor”.

“ Canadian Borrowers ” shall mean the Initial Canadian Borrower and each Canadian Subsidiary of the Company that executes a counterpart hereof and each other applicable Credit Document (or a separate joinder hereto or thereto) to become a Revolving Borrower, whether on the Initial Closing Date or after the Initial Closing Date in accordance with Section  2.21 .

 

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“ Canadian Borrowing Base ” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

(a) 85% of the aggregate Outstanding Balance of Eligible Canadian Accounts of the Canadian Borrowers at such time; plus

(b) the lesser of (i) 80% of the Cost of Eligible Canadian Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible Canadian Inventory at such time; plus

(c) the lesser of (i) 80% of the Cost of Eligible In-Transit Inventory owned by the Canadian Borrowers at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible In-Transit Inventory owned by the Canadian Borrowers at such time; minus

(d) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section  2.22 .

The Canadian Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) , adjusted, in the Administrative Agent’s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Inventory or Eligible In-Transit Inventory, renders any such Account or Inventory ineligible for inclusion in the Canadian Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

“ Canadian CDOR Rate ” shall mean, for any day, a per annum rate of interest equal to the Canadian Dollar bankers’ acceptance rate, or comparable or successor rate approved by the Administrative Agent, determined by it at or about 10:00 a.m. (Toronto time) on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day) for a term comparable to the applicable Canadian CDOR Rate Loan, as published on the CDOR or other applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time); provided , that in no event shall the Canadian CDOR Rate be less than zero.

“ Canadian CDOR Rate Loan ” shall mean a Canadian Revolving Loan (other than a Canadian Prime Loan), or portion thereof, funded in Canadian Dollars and bearing interest calculated by reference to the Canadian CDOR Rate.

 

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“ Canadian Collateral ” shall mean all the “Collateral” (or equivalent term) as defined in the Canadian Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted by any Canadian Credit Parties pursuant to any Canadian Security Document.

“ Canadian Collection Account ” shall have the meaning provided in Section  8.20(c)(iii) .

“ Canadian Credit Party ” shall mean each Canadian Borrower and each Canadian Subsidiary Guarantor.

“ Canadian Defined Benefit Pension Plan ” shall mean a “registered pension plan,” as defined in subsection 248(1) of the ITA, which contains a “defined benefit provision,” as defined in subsection 147.1(1) of the ITA.

“ Canadian Dilution Reserve ” shall mean, at any date, (a) the amount (stated in percentage terms) by which the consolidated Dilution Ratio of Eligible Canadian Accounts exceeds five percent (5%) multiplied by (b) the Eligible Canadian Accounts on such date.

“ Canadian Dollars ” and “ C$ ” shall mean the lawful currency of Canada.

“ Canadian Employee Benefits Legislation ” shall mean the Pension Benefits Act (Ontario) and any regulations promulgated thereunder, and any Canadian federal, provincial or local counterparts or equivalents.

“ Canadian Issuing Bank ” shall mean, as the context may require, (a) BANA (acting through its Canada branch) or any Affiliates or branches of BANA with respect to Canadian Letters of Credit issued by it; (b) any other Revolving A Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k) , with respect to Canadian Letters of Credit issued by such Revolving A Lender; (c) with respect to any Existing Letter of Credit set forth on Part B of Schedule 1.01B , the Revolving A Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

“ Canadian LC Credit Extension ” shall mean, with respect to any Canadian Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

“ Canadian LC Disbursement ” shall mean a payment or disbursement made by a Canadian Issuing Bank pursuant to a Canadian Letter of Credit.

“ Canadian LC Documents ” shall mean all documents, instruments, and agreements delivered by a Canadian Borrower, the Company, or any Subsidiary to a Canadian Issuing Bank or the Administrative Agent in connection with any Canadian Letter of Credit.

“ Canadian LC Exposure ” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding Canadian Letters of Credit at such time plus (b) the aggregate principal amount of all Canadian LC Disbursements that have not yet been reimbursed at such time. The Canadian LC Exposure of any Revolving A Lender at any time shall mean its Pro Rata Percentage of the aggregate Canadian LC Exposure at such time.

 

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“ Canadian LC Obligations ” shall mean the sum (without duplication) of (a) all amounts owing by the Canadian Borrowers in respect of any Canadian LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding Canadian Letters of Credit.

“ Canadian LC Sublimit ” shall mean $5,000,000.

“ Canadian Letter of Credit ” shall mean any standby, commercial or documentary letter of credit, foreign guaranty, bank guarantee, documentary banker’s acceptance or similar instrument issued or to be issued by a Canadian Issuing Bank under the Canadian Revolving Subfacility requested by a Canadian Borrower, if any, pursuant to Section  2.13 .

“ Canadian Line Cap ” shall mean, at any time, an amount that is equal to the lesser of (a) the Canadian Revolving Commitments and (b) the Canadian Borrowing Base.

“ Canadian MEPP ” shall mean each “multi- employer pension plan” as defined in the Pension Benefits Act (Ontario).

“ Canadian Pension Plan ” shall mean each pension, supplementary pension, retirement savings or other retirement income plan or arrangement of any kind, registered or non-registered, established, maintained or contributed to by the Company or another Canadian Credit Party for its or any of its current or previous Affiliates’ Canadian employees or former employees and includes for greater certainty “target benefit” plans and all Canadian Defined Benefit Pension Plans but shall not include any Canadian MEPP, the Canada Pension Plan (CPP) as maintained by the government of Canada or the Quebec Pension Plan (QPP) as maintained by the government of Quebec or similar plan maintained by any other province or territory in Canada.

“ Canadian Prime Loan ” shall mean a Canadian Revolving Loan to the Canadian Borrowers denominated in Canadian Dollars which bears interest at a rate based upon the Canadian Prime Rate.

“ Canadian Prime Rate ” shall mean, for any day, the greater of (a) the per annum rate of interest designated by BANA (acting through its Canada branch) from time to time as its prime rate for commercial loans made by it in Canada in Canadian Dollars, which rate is based on various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate; or (b) the Canadian CDOR Rate for a one-month interest period as of such day, plus 1.00%; provided , that in no event shall the Canadian Prime Rate be less than zero. Any change in such rate shall take effect at the opening of business on the applicable Business Day.

“ Canadian Priority Payables ” shall mean, at any time, with respect to the Canadian Borrowing Base:

(a) the amount due on or prior to the date as of which the Canadian Borrowing Base is to be determined and remaining unpaid at the time of determination by any Canadian Borrower (or any other Person for which any Canadian Borrower has joint and several liability), for which each Canadian Borrower has an obligation to remit to a Governmental Authority or other Person pursuant to any applicable Requirement of Law,

 

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in respect of (i) pension fund obligations including unfunded liabilities, solvency deficiencies or wind-up deficiencies on any wind-up or termination of any Canadian Pension Plan and employee and employer pension plan contributions (including “normal cost,” “special payments” and any other payments in respect of any funding deficiency or shortfall), (ii) employment insurance, (iii) goods and services taxes, sales taxes, employee income taxes, excise tax and other taxes payable or to be remitted or withheld, (iv) workers’ compensation, (v) wages, salaries, commission or compensation, including vacation pay and severance pay (including amounts protected by the Wage Earner Protection Program Act (Canada)), and (vi) other like charges and demands; in each case in respect of which any Governmental Authority or other Person may claim a security interest, hypothec, prior claim, trust or other claim or Lien ranking or capable of ranking in priority to or equal in priority with one or more of the Liens granted pursuant to the Security Documents (a “ Priority Lien ”); and

(b) the aggregate amount due on or prior to the date as of which the Canadian Borrowing Base is to be determined and remaining unpaid at the time of determination of any other liabilities of the Canadian Borrowers (or any other Person for which the Canadian Borrowers have joint and several liability) (i) in respect of which a trust has been or may be imposed on Collateral of any Canadian Borrower to provide for payment or (ii) which are secured by a security interest, hypothec, prior claim, pledge, charge, right, or claim or other Lien on any Collateral of any Canadian Borrower, in each case pursuant to any applicable Requirement of Law and which trust, security interest, hypothec, prior claim, pledge, charge, right, claim or other Lien ranks or is capable of ranking in priority to or equal in priority with one or more of the Liens granted in the Security Documents.

“ Canadian Priority Payables Reserve ” shall mean, on any date of determination for the Canadian Borrowing Base, a reserve established from time to time by the Administrative Agent in its Permitted Discretion in an amount up to, but not in excess of, the amount of Canadian Priority Payables set forth on the most recent Borrowing Base Certificate (as the same may be reduced or increased by the next succeeding Borrowing Base Certificate) delivered to the Administrative Agent pursuant to Section  8.20(a) .

“ Canadian Protective Advances ” shall have the meaning provided in Section  2.18 .

“ Canadian Restricted Subsidiary ” shall mean any Canadian Subsidiary that is a Restricted Subsidiary.

“ Canadian Revolving Borrowing ” shall mean a Borrowing comprised of Canadian Revolving Loans.

“ Canadian Revolving Commitment ” shall mean, with respect to each Canadian Revolving Lender, the commitment, if any, of such Lender to make Canadian Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on the Commitment Schedule under the caption “Canadian Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its Canadian Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section  2.07 , (b) reduced or increased from time to time pursuant to Section  2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section  12.04 .

 

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“ Canadian Revolving Exposure ” shall mean, with respect to any Canadian Revolving Lender at any time, the aggregate principal amount at such time of all outstanding Canadian Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s Canadian LC Exposure, plus the aggregate amount of such Lender’s Canadian Swingline Exposure.

“ Canadian Revolving Lender ” shall mean any Lender under the Canadian Revolving Subfacility. Each Canadian Revolving Lender, unless an Event of Default has occurred and is continuing, shall be a financial institution that is listed on Schedule I, II or III of the Bank Act (Canada), has received an approval to have a financial establishment in Canada pursuant to Section 522.21 of the Bank Act (Canada) or is not a foreign bank for purposes of the Bank Act (Canada) or is not prohibited by applicable Requirements of Law, including the Bank Act (Canada) from having a Canadian Revolving Commitment, or making any Canadian Revolving Loans or having any Canadian LC Obligations under this Agreement, and if such financial institution is not resident in Canada and is not deemed to be resident in Canada for purposes of the ITA, then such financial institution is not a “specified shareholder” of a Canadian Credit Party and deals at arm’s length with each Canadian Credit Party and each “specified shareholder” of each Canadian Credit Party for purposes of the ITA.

“ Canadian Revolving Loans ” shall mean advances made to or at the instructions of a Canadian Borrower pursuant to Section  2.01(a)(iii) hereof under the Canadian Revolving Subfacility.

“ Canadian Revolving Note ” shall mean each revolving note substantially in the form of Exhibit B-2 hereto.

“ Canadian Revolving Subfacility ” shall have the meaning provided in the recitals hereto, as applicable.

“ Canadian Sanction Laws ” shall mean the Special Economic Measures Act (Canada) and similar Requirements of Law of Canada governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures in respect to sanctioned persons.

“ Canadian Security Agreement ” shall mean the Canadian Security Agreement dated as of the Initial Closing Date, by and between the Collateral Agent and each of the Canadian Credit Parties which is a party thereto.

“ Canadian Security Documents ” shall mean the Canadian Security Agreement and, after the execution and delivery thereof, each other document executed and delivered by any Canadian Credit Party pursuant to which a Lien is granted in favor of the Collateral Agent to secure the Obligations, and each document, if any, executed and delivered by any Canadian Credit Party pursuant to the Additional Account Security Actions.

 

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“ Canadian Subsidiary ” shall mean any Subsidiary of the Company organized now or hereinafter under the laws of Canada or a province or territory thereof.

“ Canadian Subsidiary Guarantor ” shall mean each Canadian Restricted Subsidiary (other than any Canadian Borrower) which is a party to this Agreement on the Initial Closing Date, as well as each Canadian Restricted Subsidiary established, created or acquired after the Initial Closing Date which is required to become a party to this Agreement as a Guarantor in accordance with the requirements of the Collateral and Guarantee Requirement.

“ Canadian Swingline Commitment ” shall mean the commitment of the Canadian Swingline Lender to make loans under the Canadian Revolving Subfacility pursuant to Section  2.12 , as the same may be reduced from time to time pursuant to Section  2.07 .

“ Canadian Swingline Exposure ” shall mean, at any time, the aggregate principal amount at such time of all outstanding Canadian Swingline Loans. The Canadian Swingline Exposure of any Canadian Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Canadian Swingline Exposure at such time.

“ Canadian Swingline Lender ” shall mean BANA (acting through its Canada branch) and its permitted successors and permitted assigns.

“ Canadian Swingline Loan ” shall mean any Loan made by the Canadian Swingline Lender pursuant to Section  2.12 .

“ Canadian Swingline Note ” shall mean each swingline note substantially in the form of Exhibit B-8 hereto.

“ Capital Expenditures ” shall mean, for any period, the aggregate of, without duplication, all expenditures (whether paid in cash or accrued as liabilities) by the Company and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as additions during such period to property, plant or equipment reflected in the consolidated balance sheet of the Company and its Restricted Subsidiaries; provided that the term “Capital Expenditures” shall not include, without duplication:

(a) expenditures made in connection with the replacement, substitution, restoration, or repair of assets to the extent made with insurance proceeds or compensation awards paid on account of a Casualty Event committed to be consummated within one year after receipt of such proceeds or awards and actually consummated within eighteen months after receipt of such proceeds or awards;

(b) the purchase price of equipment that is purchased simultaneously with the trade in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time;

(c) the purchase of property, plant, or equipment to the extent made with the proceeds of Dispositions within 180 days after receipt of such proceeds; and

 

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(d) any expenditures made as payments of the consideration for a Permitted Acquisition or other similar Investment permitted hereunder and any amounts recorded pursuant to purchase accounting required under GAAP pertaining to such Permitted Acquisition or such similar Investment.

“ Capital Stock ” shall mean:

(a) in the case of a corporation, corporate stock or shares;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“ Capitalized Lease Obligation ” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP; provided , however , that any obligations relating to a lease that was accounted for by the Company as an operating lease as of the Initial Closing Date and any similar lease entered into after the Initial Closing Date shall be accounted for as an operating lease and not a Capitalized Lease Obligation for all purposes under this Agreement.

“ Cash Collateralize ” shall mean to pledge and deposit with or deliver to the Administrative Agent for deposit into the applicable LC Collateral Account, for the benefit of the Administrative Agent, the applicable Issuing Banks and/or the applicable Swingline Lenders (as applicable) and the Revolving A Lenders under the applicable Revolving A Subfacility, cash as collateral for the LC Exposure, Obligations in respect of Swingline Loans, or obligations of Revolving A Lenders to fund participations in respect of either thereof (as the context may require), in each case under the applicable Revolving A Subfacility, in accordance with Section  2.13(j) . “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Dominion Period ” shall mean each period beginning on a date when (a) an Event of Default has occurred and is continuing or (b) Total Excess Availability shall have been less than the greater of (i) 10% of the Line Cap and (ii) $100,000,000, and ending on such date as no Event of Default shall exist and, for a period of 30 consecutive calendar days, Total Excess Availability shall have been at least equal to the greater of (i) 10% of the Line Cap and (ii) $100,000,000.

“ Cash Equivalents ” shall mean:

(a) (i) Dollars, Canadian Dollars, Euros, Pounds Sterling, yen or any national currency of any participating member state of the European Union or (ii) such local currencies held by a Foreign Subsidiary from time to time in the ordinary course of business;

 

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

(c) (i) certificates of deposit, guaranteed investment certificates, time deposits and eurodollar time deposits with maturities of 24 months or less from the date of acquisition, (ii) demand deposits, bankers’ acceptances with maturities not exceeding one year and (iii) overnight bank deposits, in each case under this clause (c) with any Lender or any other domestic or foreign commercial bank having capital and surplus of not less than $250,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;

(d) repurchase obligations for underlying securities of the types described in clauses (b), (c) and (g) entered into with any financial institution or recognized securities dealer meeting the qualifications specified in clause (c) above;

(e) commercial paper and variable or fixed rate notes rated at least “P-2” by Moody’s or at least “A-2” by S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) and in each case maturing within 24 months after the date of acquisition thereof and Indebtedness issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s with maturities of 24 months or less from the date of acquisition;

(f) marketable short-term money market and similar funds having a rating of at least “P-2” or “A-2” from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency);

(g) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

(h) readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency) with maturities of 24 months or less from the date of acquisition;

(i) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated “AAA-” (or the equivalent thereof) or better by S&P or “Aaa3” (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another rating agency);

 

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(j) securities with maturities of 12 months or less from the date of acquisition backed by standby letters of credit issued by any financial institution or recognized securities dealer meeting the qualifications specified in clause (c) above; and

(k) investment funds investing at least 90% of their assets in securities of the types described in clauses (a) through (j) above.

In the case of Investments made by a Foreign Subsidiary (or temporarily held by the Company or the Restricted Subsidiaries as part of their cash management arrangements with a Foreign Subsidiary in the ordinary course of business or consistent with past practice) in a country outside the United States, Cash Equivalents shall also include (A) investments of the type and maturity described in clauses (a) through (g) and clauses (i), (j) and (k) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (B) other short-term investments utilized by Foreign Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (a) through (k) of this definition.

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

For the avoidance of doubt, any items identified as Cash Equivalents under this definition will be deemed to be Cash Equivalents for all purposes under this Agreement regardless of the treatment of such items under GAAP.

“ Cash Management Agreement ” shall mean any agreement entered into from time to time by the Company or any of the Company’s Restricted Subsidiaries in connection with cash management services for collections, other Cash Management Services and for operating, payroll and trust accounts of such Person, including automatic clearing house services, controlled disbursement services, electronic funds transfer services, information reporting services, lockbox services, stop payment services and wire transfer services.

“ Cash Management Bank ” shall mean any Lender, any Agent or any Affiliate or branch of the foregoing at the time it provides any Cash Management Services or any Person that shall have become a Lender, an Agent or an Affiliate or branch of a Lender or an Agent at any time after it has provided any Cash Management Services (including if such Cash Management Services were provided on the applicable Closing Date, the applicable Closing Date).

“ Cash Management Obligations ” shall mean obligations owed by the Company or any Subsidiary to any Cash Management Bank in respect of Cash Management Services.

 

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“ Cash Management Services ” shall mean (a) commercial credit cards, merchant card services, purchase or debit cards, including non-card e-payables services, (b) treasury management services (including controlled disbursement, overdraft ACH fund transfer services, return items and interstate depository network services) and (c) any other demand deposit or operating account relationships or other cash management services, including any Cash Management Agreements.

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

“ CCAA ” shall mean the Companies ’ Creditors Arrangement Act (Canada), as amended.

“ CERCLA ” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 U.S.C. § 9601 et seq .

“ CFC ” shall mean a “controlled foreign corporation” within the meaning of Section 957 of the Code that is a direct or indirect Subsidiary of the Company.

“ Change of Control ” means, with respect to any Person, an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “ option right ”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 33% or more of the equity securities of such Person entitled to vote for members of the Board of Directors or equivalent governing body of such Person on a partially-diluted basis ( i.e. , taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

(b) during any period of 12 consecutive months, a majority of the members of the Board of Directors of such Person cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i)  above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i)  and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.

“ Class ” (a) when used with respect to Lenders, shall refer to Lenders having a Loan, Protective Advances or Commitment with respect to a particular Revolving A Subfacility or the Revolving B Facility, (b) when used with respect to Commitments, shall refer to Commitments under a particular Revolving A Subfacility or the Revolving B Facility, and (c) when used with respect to Loans or a Borrowing, shall refer to whether such Loans, or the Loans comprising such Borrowing, are made under a particular Revolving A Subfacility or the Revolving B Facility.

 

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“ Closing Date ” shall mean the Initial Closing Date, the Australian Closing Date, the European (GNU) Closing Date, the French Closing Date or Spanish Closing Date, as applicable.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“ Co-Documentation Agents ” shall mean HSBC Bank USA, National Association, Mizuho Bank, Ltd., MUFG Union Bank, N.A. and Royal Bank of Canada, in their respective capacities as co-documentation agents, as applicable, under this Agreement.

“ Collateral ” shall mean (a) the “Collateral” as defined in the Security Agreements, (b) all the “Collateral”, “Pledged Assets” or “Security Assets” (or similar term) as defined in any other Security Documents, (c) solely in the case of the Revolving B Loans, Mortgaged Property, Eligible U.S. Intellectual Property and Equity Interests of any Credit Party (other than the Company) described in clause (c)(i) of the definition of the term “Collateral and Guarantee Requirement” (in each case other than Excluded Assets) and (d) any other assets pledged or in which a Lien is granted, in each case, pursuant to any Security Document or is required to be granted in accordance with the Collateral and Guarantee Requirement.

“ Collateral Access Agreement ” shall mean any landlord waiver, bailee letter or other agreement, in form and substance reasonably satisfactory to the Administrative Agent, between the Collateral Agent or Australian Security Trustee and any third party (including any landlord, bailee, consignee, customs broker or other similar Person) in possession of any Collateral or any landlord for any Real Property of any Revolving Borrower where any Collateral is located.

“ Collateral Agent ” shall mean BANA, as collateral agent, and shall include any permitted successors and permitted assigns.

“ Collateral and Guarantee Requirement ” shall mean, at any time, the requirement that:

(a) the Collateral Agent or Australian Security Trustee, as applicable, shall have received each Security Document required to be delivered on the applicable Closing Date pursuant to Section  5 or, after the applicable Closing Date, pursuant to Section  8.15 or Section  8.16 at the time required by such section to be delivered in each case, duly executed by each Credit Party which is required to be a party thereto pursuant to the applicable section;

(b) (i) all Obligations shall have been guaranteed pursuant to a Guarantee by (A) on the Initial Closing Date, each U.S. Credit Party that executes this Agreement on the Initial Closing Date; and (B) after the Initial Closing Date, each additional Subsidiary that is required pursuant to Section  8.15 , Section  8.16 or Section  8.19 to become a U.S. Credit Party, (ii) all Foreign Obligations shall have been guaranteed pursuant to a Guarantee by (A) on the applicable Closing Date, each Foreign Credit Party that executes this Agreement on the applicable Closing Date; and (B) after the applicable Closing Date, each additional Subsidiary that is required pursuant to Section  8.15 , Section  8.16 or Section  8.19 to become a Foreign Credit Party or FSHCO Guarantor in each case under this clause (b) excluding any Credit Party that has been released from its obligations as a U.S. Credit Party or Foreign Credit Party or FSHCO Guarantor, as applicable, pursuant to this Agreement;

 

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(c) except to the extent otherwise provided hereunder or under any Security Document, the Obligations and the Guarantees with respect to Revolving B Loans shall have been secured pursuant to the Security Documents by a perfected security interest in, and pledges (as applicable) on, (i) all Equity Interests (other than Excluded Assets) of (A) the Persons set forth on Schedule 1.01H as of the Initial Closing Date and (B) each U.S. Credit Party from time to time, in each case under clauses (A) and (B), to the extent owned directly by a U.S. Credit Party (and, in each case, if any such Equity Interests are certificated securities, the Collateral Agent or Australian Security Trustee, as applicable, shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank, if applicable), (ii) the Eligible U.S. Intellectual Property, and (iii) all proceeds and products of the foregoing, in each case, with the priority required by the relevant U.S. Security Documents;

(d) except to the extent otherwise provided hereunder or under any Security Document and without limiting the immediately preceding clause (c), the Obligations and the Guarantees shall have been secured pursuant to the Security Documents by a perfected security interest in, and pledges (as applicable) on, (i) the Current Assets (other than Excluded Assets) of each Credit Party and (ii) all proceeds and products of the foregoing, in each case, with the priority required by the relevant Security Documents;

(e) none of the Collateral shall be subject to any Liens other than Liens permitted by Section  9.01 ;

(f) the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to each parcel of Eligible U.S. Real Estate duly executed and delivered by the record owner of such property and (ii) each other Related Real Estate Document with respect to each parcel of Eligible U.S. Real Estate; and

(g) (i) except with respect to intercompany Indebtedness, if any, if Indebtedness for borrowed money that is Collateral and is in a principal amount in excess of $2,500,000 (individually) is owing to any Credit Party and such Indebtedness is evidenced by a promissory note, the Collateral Agent shall have received such promissory note, together with undated instruments of transfer with respect thereto endorsed in blank and (ii) with respect to intercompany Indebtedness, all Indebtedness of any Credit Party (or Person required to become a Credit Party) that is owing to the Company or any Restricted Subsidiary shall be subject to the Intercompany Subordination Agreement, and the Collateral Agent shall have received such Intercompany Subordination Agreement duly executed by the Company and each such Restricted Subsidiary;

The foregoing definition shall not require the creation or perfection of pledges of, or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as the Administrative Agent and the Company agree in writing that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Secured Creditors therefrom.

 

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The Administrative Agent and the Collateral Agent may grant extensions of time for the provision or perfection of security interests in, or the obtaining of title insurance and surveys with respect to, particular assets (including extensions beyond the applicable Closing Date for the perfection of security interests in the assets of the Credit Parties on such date) where the Administrative Agent reasonably determines, in consultation with the Company, that provision or perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Security Documents.

Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary (but without limiting (x) any requirement to take any Additional Account Security Action set forth in the definition of the term “Eligible Account” solely for the purpose of determining the eligibility of Accounts originated by any Credit Party that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States or Canada) for inclusion in the applicable Borrowing Base or (y , (y) any requirement to take any Additional Purchased Account Security Action set forth in the definition of the term “Eligible Purchased Account” solely for the purpose of determining the eligibility of Purchased Accounts purchased by the Dutch Finco Borrower that are owed from Account Debtors located in any Account Debtor Approved Country (other than the United States or Canada) for inclusion in the applicable Borrowing Base or (z ) any requirement to take any Additional Inventory Security Action set forth in the definition of the term “Eligible Inventory” solely for the purpose of determining the eligibility of any Inventory owned by a Dutch Borrower and located in the United Kingdom or , France , the Czech Republic or the Netherlands for inclusion in the European (GNU) Dutch Borrowing Base), (a) with respect to leases of Real Property entered into by any Credit Party, such Credit Party shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases, (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the this Agreement, the Security Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agent, the Collateral Agent and the Company, (c) the Collateral and Guarantee Requirement shall not apply to any Excluded Assets, (d) control agreements shall not be required with respect to any Excluded Accounts, (e) promissory notes evidencing Indebtedness for borrowed money in a principal amount less than or equal to $2,500,000 (individually) owing to any Credit Party shall not be required to be delivered, (f) except with respect to any Additional Account Security Actions and any Additional Purchased Account Security Actions , no actions shall be required to be taken outside the United States, Canada, France, the Netherlands, the United Kingdom, the Czech Republic, Germany, Spain and Australia to (i) create a security interest in assets titled or located outside of the United States, Canada, France, the Netherlands, the United Kingdom, the Czech Republic, Germany, Spain and Australia or (ii) perfect or make enforceable any security interest in any such assets and (g) the parties hereto agree that any Additional Account Security Action , Additional Purchased Account Security Action or Additional Inventory Security Action shall not be a part of the Collateral and Guarantee Requirements, but rather shall only affect eligibility of Accounts , Purchased Accounts or Inventory, as applicable.

 

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“ Collection Accounts ” shall mean, collectively, the U.S. Collection Accounts, the Canadian Collection Accounts and the “Collection Accounts” set forth in the Collection Account Addenda.

“ Collection Account Addendum ” shall mean one or more addenda to this Agreement executed by Administrative Agent and the applicable Borrower.

“ Commitment ” shall mean, with respect to any Lender, such Lender’s Revolving Commitment, LC Commitment, Swingline Commitment or Extended Revolving A Commitment.

“ Commitment Adjustment Date ” shall have the meaning provided in Section  2.20(a) .

“ Commitment Schedule ” shall mean (a) with respect to Revolving A Commitments, Schedule 2.01A , as adjusted on the Australian Closing Date, French Closing Date, the Spanish Closing Date and the European (GNU) Closing Date in accordance with Schedule 2.01B , and (b) with respect to Revolving B Commitments, Schedule 2.01C .

“ Commodity Exchange Act ” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq .), as amended from time to time, and any successor statute.

“ Company ” shall have the meaning provided in the preamble hereto and shall include, if applicable, any Successor Company.

“ Competitor ” shall mean any entity identified by name as a “Competitor” by the Company to the Administrative Agent (a) in writing on or prior to the Initial Closing Date and (b) following the Initial Closing Date with the consent of the Administrative Agent in its sole discretion, or, in each case, any other entity identifiable as an Affiliate thereof by name; provided , that so long as no Event of Default has occurred or is continuing, the consent of the Administrative Agent shall not be required for the addition of Competitors; provided , further , that the Administrative Agent shall provide the list of Competitors, if any, to any Lender upon request.

“ Compliance Certificate ” shall mean a certificate of the Responsible Officer of the Company substantially in the form of Exhibit G hereto or such other form as may be reasonably satisfactory to the Administrative Agent.

“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“ Consolidated Cash Interest Expense ” shall mean, with respect to any period, Consolidated Interest Expense during such period but calculated excluding (a) any non-cash interest or deferred financing costs, (b) any amortization or write-down of deferred financing fees, debt issuance costs including original issue discount, discounted liabilities, commissions, fees and expenses, (c) any expensing of bridge, commitment and other financing fees, (d) penalties and interest related to Taxes, but including any cash costs otherwise excluded by the definition thereof, (e) any capitalized interest or payment in kind interest and (f) any other non-cash interest charges.

 

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“ Consolidated EBITDA ” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated Net Income for such period before (i) special items, (ii) minority interest and (iii) gains on reacquisition of debt, in each case for such period, plus (b) to the extent deducted in determining Consolidated Net Income, (i) income taxes accrued for such period, plus (ii) interest accrued for such period, excluding capitalized interest and without regard to interest income, plus (iii) depreciation and amortization for such period, plus (iv) non-cash share based compensation expense and other non-cash charges for such period, plus (v) other extraordinary, unusual, non-recurring or one-time cash expenses, losses and charges, including restructuring, merger and integration charges, for such period not to exceed an aggregate amount equal to $275,000,000 from October 1, 2017 through the end of the term of this Agreement; plus (c) the amount of run rate savings to be received in connection with restructurings and other transactions undertaken by the Company and its Restricted Subsidiaries during such period or prior to such period, such run rate savings (i) to be limited to a period of 24 months following the consummation of the related restructuring or other applicable transaction and (ii) not to exceed, for any Test Period, 20% of Consolidated EBITDA, so long as, in the case of this clause (c), the Global Administrative Agent shall have received, together with delivery of the related Section 8.01 Financials, a certificate of a Responsible Officer of the Company certifying compliance with the preceding clauses (i) and (ii) and demonstrating (in reasonable detail) the calculations required thereby. Notwithstanding the forgoing, the parties hereto agree that the Consolidated EBITDA for the fiscal quarter ending on (I) March 31 2017 shall be $(43,419,000); (II) June 30, 2017 shall be $43,430,000; and (II) September 30, 2017 shall be $288,782,000.

“ Consolidated Fixed Charge Coverage Ratio ” shall mean, as of any date of determination, the ratio of (a) Consolidated EBITDA for the Company and its Restricted Subsidiaries for the Test Period most recently completed on or prior to such date of determination minus the sum of (i) the aggregate amount of all Capital Expenditures made by the Company and its Restricted Subsidiaries during such Test Period (other than Capital Expenditures to the extent financed with net cash proceeds received by the Company or any of its Restricted Subsidiaries from the issuance of Equity Interests or the incurrence of long-term Indebtedness (only so long as such Capital Expenditures are made within 90 days after the receipt of such net cash proceeds from such issuance or incurrence), but including Capital Expenditures to the extent financed with proceeds of Loans) plus (ii) the amount of all cash payments made during such Test Period made by Company and its Restricted Subsidiaries in respect of income taxes (net of cash income tax refunds received during such Test Period) (excluding such cash payments related to Dispositions not in the ordinary course of business) plus (iii) the aggregate amount of all Restricted Payments paid in cash by the Company during such Test Period (other than Restricted Payments permitted under Sections 9.03(a)(iv) and 9.03(a)(v) ); provided , that, in the case of Restricted Payments constituting cash dividends paid by the Company to the holders of its Equity Interests during such Test Period, if the per-share payment rate for such cash dividends was partially reduced or reduced to zero by the Company during such Test Period, then, for purposes of the determination of Consolidated Fixed Charge Coverage Ratio for such Test Period, such cash dividends shall only be included in this clause (iii) at the per-share payment rate applicable to Equity Interests of the Company on the last day of such Test Period, to (b) Consolidated Fixed Charges for such Test Period. Notwithstanding the forgoing, for the purposes of calculating the Consolidated Fixed Charge Coverage Ratio for any Test Period, Capital Expenditures in an aggregate amount up to but not exceeding $40,000,000 shall be excluded to the extent such Capital Expenditures were made on or before December 31, 2017 in connection with the American Girl Place, New York City, store opening and Mattel’s demand planning solution (including hardware and software and other system expenses) in 2017.

 

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“ Consolidated Fixed Charges ” shall mean, as of any date of determination, the sum determined on a consolidated basis of (a) Consolidated Cash Interest Expense of the Company and its Restricted Subsidiaries for the Test Period most recently completed on or prior to such date of determination plus (b) the scheduled principal payments made during such Test Period on all Indebtedness for borrowed money (excluding (i) in the case of any Senior Unsecured Note Indenture, any balloon payments and payments at maturity to the extent funded with (A) proceeds of any Permitted Refinancing of such Indebtedness or (B) net cash proceeds received by the Company or any of its Restricted Subsidiaries from the issuance of Equity Interests, the incurrence of other long-term Indebtedness or the Disposition of assets, in each case to the extent permitted under this Agreement and so long as such net cash proceeds are applied to such prepayment within 90 days after receipt thereof and (ii) any payment of principal at maturity and termination of any working capital credit facilities extended to any Foreign Subsidiaries of the Company which are not Credit Parties) and Capital Lease Obligations of the Company and its Restricted Subsidiaries due and payable in cash during such Test Period.

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

(a) consolidated interest expense in respect of Indebtedness of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (i) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (iii) non-cash interest charges (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (iv) the interest component of Capitalized Lease Obligations, (v) net payments, if any, made (less net payments, if any, received), pursuant to interest rate Hedging Agreements with respect to Indebtedness, and excluding (A) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with any acquisition, (B) penalties and interest relating to taxes, (C) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (D) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and discounted liabilities and (E) any accretion of accrued interest on discounted liabilities); plus

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

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

 

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

“ Consolidated Net Income ” for any period, means the net income (or loss) of the Company and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP.

“ Consolidated Net Leverage Ratio ” shall mean, as of any date of determination, the ratio of (a) the balance sheet amount of all Indebtedness of the Company and the Restricted Subsidiaries (in each case other than Indebtedness under clause (j) of the definition of Indebtedness) as of the last day of the Test Period most recently completed on or prior to such date of determination minus Cash Equivalents (in each case, free and clear of all Liens, other than Permitted Liens) included on the consolidated balance sheet of the Company as of the end of such Test Period to (b) Consolidated EBITDA of the Company and the Restricted Subsidiaries for such Test Period.

“ Consolidated Total Assets ” shall mean, as at any date of determination, the total assets of the Company and the Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, as shown on the most recent balance sheet of the Company or such other Person as of the last day of the Test Period most recently completed on or prior to such date of determination.

“ Contingent Obligation ” shall mean, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“ Contractual Obligation ” shall mean an obligation under any Contractual Requirement.

“ Contractual Requirement ” shall have the meaning provided in Section  7.03 .

“ Contribution Notice ” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.

“ Corrective Extension Amendment ” shall have the meaning provided in Section  2.19(e) .

 

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“ Cost ” shall mean, with respect to any Inventory, the cost of purchase of such Inventory determined according to accounting policies used in the preparation of the Company’s Section 8.01 Financials and valued on a first in, first out basis.

“ Co-Syndication Agents ” shall mean Citibank, N.A. and Wells Fargo Bank, N.A., in their respective capacities as co-syndication agents, as applicable, under this Agreement.

“ Credit Documents ” shall mean this Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, the Australian Security Trust Deed, each Note, each Security Document, each TEG Letter, each intercreditor agreement contemplated by this Agreement (including each Acceptable Intercreditor Agreement) for and in favor of the Secured Creditors, each Incremental Revolving A Commitment Agreement and each Extension Amendment.

“ Credit Event ” shall mean the making of any Loan, including any Swingline Loan.

“ Credit Extension ” shall mean, as the context may require, (a) a Credit Event or (b) an LC Credit Extension; provided that “Credit Extensions” shall not include conversions and continuations of outstanding Loans or reimbursement obligations with respect to draws of Letters of Credit with the proceeds of Revolving Loans.

“ Credit Parties ” shall mean the U.S. Credit Parties, the Canadian Credit Parties, the French Credit Parties, the Spanish Credit Parties, the European (GNU) Credit Parties and the Australian Credit Parties, as the context requires.

“ Credit Party Guarantees ” shall mean the U.S. Credit Party Guarantee and the Foreign Credit Party Guarantee, as the context requires.

“ CRR ” shall mean (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

“ CTA ” shall mean the Corporation Tax Act 2009.

“ Current Assets ” shall mean any existing and future (a) Accounts and Inventory, (b) to the extent relating to the foregoing, Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper), Documents, General Intangibles, Instruments, Letter-of-Credit Rights and Supporting Obligations, and (c) Deposit Accounts and Securities Accounts, and, in each case, proceeds thereof, including, where applicable, fixed charges over and/or assignments of Accounts and Deposit Accounts, in each case, to the extent, and solely to the extent that they are “Current Assets” (as defined in the Senior Unsecured 2010 Note Indenture).

“ Czech DC” shall mean (a) that certain distribution center in the Czech Republic located at Mattel Europa B.V., CZDC, Zdebradska 67, 25101 Jazlovice, Czech Republic and (b) that certain distribution center in the Czech Republic located at Mattel Europa B.V., CZDC, Zdebradska 100, hall DC4, 25101 Ricany, Czech Republic.

 

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“Czech Security Agreement” shall mean the notarial deed of agreement on the pledge of movable assets governed by the laws of the Czech Republic by and among the Collateral Agent and the Initial Dutch Borrower.

“ Debtor Relief Laws ” shall mean the Bankruptcy Code, the BIA, the CCAA, the WURA, the provision of Livre VI and other relevant provisions related thereto in the French Code de Commerce and any other administration, liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, France, the Netherlands, the United Kingdom, Germany, Spain or Australia (including under the Bankruptcy Act 1966 (Cth) and the Australian Corporations Act) or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Debt to be Repaid ” shall mean the Indebtedness set forth on Schedule 1.01E .

“ Default ” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

“ Defaulting Lender ” shall mean any Lender that (a) has failed to comply with its funding obligations hereunder, and such failure is not cured within two Business Days, unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied; (b) has notified the Administrative Agent or any Borrower in writing that such Lender does not intend to comply with its funding obligations hereunder or under any other credit facility, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within three Business Days following request by the Administrative Agent or any Borrower, to confirm in a manner reasonably satisfactory to the Administrative Agent and the Company that such Lender will comply with its funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company); or (d) has, or has a direct or indirect parent company that has, (i) become the subject of an insolvency proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state, provincial, federal or foreign regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided , however , that a Lender shall not be a Defaulting Lender solely by virtue of a Governmental Authority’s ownership of an Equity Interest in such Lender or parent company unless the ownership provides immunity for such Lender from jurisdiction of courts within the United States or from enforcement of judgments or writs of attachment on its assets, or permits such Lender or Governmental Authority to repudiate or otherwise to reject such Lender’s agreements.

 

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“ Deposit Account Control Agreement ” shall mean (a) in the case of any U.S. Credit Party a Deposit Account control agreement which provides the Administrative Agent with the right to direct control of the applicable Deposit Account during a Cash Dominion Period, (b) in the case of any Australian Credit Party, an ADI Account Control Deed which provides the Administrative Agent with the right to direct control of the applicable Deposit Account at all times, (c) in the case of any French Credit Party, an agreement which provides the Administrative Agent with the right to direct control of the applicable Deposit Account at all times, (d) in the case of any Spanish Credit Party, an agreement which provides the Administrative Agent with the right to direct control of the applicable Deposit Account at all times, (e) in the case of any U.K. Credit Party, an agreement which provides the Administrative Agent with the right to direct control of the applicable Deposit Account at all times, and (f) in the case of any other Credit Party, an agreement which provides the Administrative Agent with the right to direct control of the applicable Deposit Account during a Cash Dominion Period, in each case, to be executed by each institution maintaining a Deposit Account (other than an Excluded Account) for a Borrower or any other Credit Party, in each case as required by, and in accordance with the terms of, Section  8.20 and in form and substance reasonably satisfactory to the Administrative Agent.

“ Designated Jurisdiction ” shall mean any country or territory to the extent that such country or territory itself is the subject of comprehensive country-or territory-wide Sanctions.

“ Dilution Factors ” shall mean, without duplication, with respect to any period, the aggregate amount of all bad debt write-downs, discounts, credits, returns, rebates, and other dilutive items.

“ Dilution Ratio ” shall mean, at any date, as to the Accounts owned by any Person, the amount (expressed as a percentage) that is the result of dividing (a) the Dollar Equivalent of the applicable Dilution Factors for the twelve most recently ended fiscal months with respect to such Person’s Accounts, by (b) the Dollar Equivalent of such Person’s total gross sales with respect to their Accounts for the twelve most recently ended fiscal months.

“ Dilution Reserve ” shall mean, (a) in the case of the Canadian Borrowing Base, the Canadian Dilution Reserve, (b) in the case of the U.S. Revolving A Borrowing Base, the U.S. Dilution Reserve, (c) in the case of the French Borrowing Base, the French Dilution Reserve, (d) in the case of the European (GNU) Borrowing Base, the European (GNU) Dilution Reserve, (e) in the case of the U.K. Borrowing Base, the U.K. Dilution Reserve, (f ) in the case of the Dutch Borrowing Base, the Dutch Dilution Reserve, (g) in the case of the Dutch Finco Borrowing Base, the Dutch Finco Dilution Reserve, (h ) in the case of the German Borrowing Base, the German Dilution Reserve, ( g i ) in the case of the Spanish Borrowing Base, the Spanish Dilution Reserve and ( h j ) in the case of the Australian Borrowing Base, the Australian Dilution Reserve.

“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction or the issuance or sale of Equity Interests of any Restricted Subsidiary) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

 

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“ Disqualified Stock ” shall mean, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is puttable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the Latest Maturity Date (determined at the time of issuance of such Capital Stock); provided , that if such Capital Stock is issued to any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations; provided , further , that any Capital Stock held by any future, current or former employee, director, officer, manager or consultant of the Company, any of its Subsidiaries, or any other entity in which the Company or a Restricted Subsidiary has an Investment and is designated in good faith as an “affiliate” by the Board of Directors of the Company (or the compensation committee thereof), in each case pursuant to any stock subscription or shareholders’ agreement, management equity plan or stock option plan or any other management or employee benefit plan or agreement shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or its Subsidiaries or in order to satisfy applicable statutory or regulatory obligations.

“ DMLTFPA ” shall mean the Dutch Money Laundering and Terrorism Financing Prevention Act ( Wet ter voorkoming van witwassen en financieren van terrorisme ).

“ Dodd-Frank and Basel III ” shall have the meaning provided in Section  3.01(d) .

“ Dollar Equivalent ” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the equivalent amount thereof in Dollars as determined at such time on the basis of the Spot Rate for the purchase of Dollars with such currency at such time.

“ Domestic Guaranteed Creditors ” shall mean the Guaranteed Creditors in respect of the Domestic Obligations.

“ Domestic Obligations ” shall mean any Obligations of a U.S. Credit Party and, in the case of Secured Bank Product Obligations, of a Domestic Subsidiary of a U.S. Credit Party.

“ Domestic Restricted Subsidiary ” shall mean any Domestic Subsidiary that is a Restricted Subsidiary.

“ Domestic Subsidiary ” shall mean any Subsidiary of the Company that is (a) organized under the laws of the United States, any state thereof or the District of Columbia and (b) not a FSHCO or a direct or indirect Subsidiary of a CFC or FSHCO.

“ Dutch Borrower Line Cap” shall mean, at any time, an amount that is equal to the lesser of (a) the Dutch Revolving Commitments and (b) the Dutch Borrowing Base.

“Dutch Borrowers ” shall mean the Initial Dutch Borrower and each Dutch Subsidiary of the Company (other than the Dutch Finco Borrower) that executes a counterpart hereto and to any other applicable Credit Document to become a Revolving Borrower, whether on the European (GNU) Closing Date or after the European (GNU) Closing Date in accordance with Section  2.21 .

 

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“ Dutch Borrowing Base ” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of (and subject to the Interim Czech Advance Rates set forth below in this definition)

(a) the lesser of (i) 80% of the Cost of Eligible European (GNU) Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible European (GNU) Inventory at such time; plus 85% of the aggregate Outstanding Balance of Eligible European (GNU) Accounts owned by the Dutch Borrowers at such time, provided that the Administrative Agent shall have received a Collection Account Addendum, in form and substance reasonably satisfactory to the Administrative Agent, covering any Collection Accounts into which collection proceeds of such Eligible European (GNU) Accounts owned by the Dutch Borrowers may be remitted; plus

(b) the lesser of (i) 80% of the Cost of Eligible In-Transit European (GNU) Inventory owned by the Dutch Borrowers at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible In-Transit European (GNU) Inventory owned by the Dutch Borrowers at such time ; minus (collectively, the “Dutch Inventory Advance Rate”); plus

(c) the lesser of (i) 80% of the Cost of Eligible In-Transit Inventory owned by the Dutch Borrowers at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible In-Transit Inventory owned by the Dutch Borrowers at such time (collectively, the “Dutch In-Transit Inventory Advance Rate”); minus

(d) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section 2.22;

provided, that, until such time as completion of an Appraisal with respect thereto by the Administrative Agent, (x) the Dutch Inventory Advance Rate in respect of Eligible European (GNU) Inventory located in the Czech DC shall be 71.25% of the Cost of such Eligible European (GNU) Inventory at such time and (y) the Dutch In-Transit Inventory Advance Rate in respect of Eligible In-Transit Inventory owned by the Dutch Borrowers that is in transit to the Czech DC shall be 59.52% of the Cost of such Eligible In-Transit Inventory at such time (collectively, the “Interim Czech Advance Rates”). The Dutch Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 8.20(a), adjusted, in the Administrative Agent’s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Inventory or Eligible In-Transit Inventory, renders any such Account or Inventory ineligible for inclusion in the Dutch Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

 

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“Dutch Credit Party” shall mean each Dutch Borrower, the Dutch Finco Borrower, and each Dutch Subsidiary Guarantor.

“Dutch Dilution Reserve” shall mean, at any date, (a) the amount by which the consolidated Dilution Ratio of Eligible European (GNU) Accounts of the Dutch Borrowers exceeds five percent (5%) multiplied by (b) the Eligible European (GNU) Accounts of the Dutch Borrowers on such date.

“Dutch Finco Borrower” shall mean Mattel Finco Europe B.V., a private company with limited liability ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under Dutch law, having its statutory seat ( statutaire zetel ) in Amsterdam, the Netherlands and its registered address at Gondel 1, 1186 MJ Amstelveen, the Netherlands, registered with the Dutch Chamber of Commerce ( Kamer van Koophandel ) under number 72983450.

“Dutch Finco Borrowing Base” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

(a) 85% of the aggregate Outstanding Balance of Eligible Purchased Accounts owned by the Dutch Finco Borrower at such time; minus

( c b ) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section  2.22 .

The Dutch Finco Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) , adjusted, in the Administrative Agent’s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions definition of Eligible Purchased Account , Eligible Inventory or Eligible In-Transit Inventory , renders any such Account or Inventory ineligible for inclusion in the Dutch Finco Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

“ Dutch Credit Party ” shall mean each Dutch Borrower and each Dutch Subsidiary Guarantor . Finco Dilution Reserve” shall mean, at any date, in the case of any Eligible Purchased Accounts created by a certain Subsidiary of the Company, (a) the amount by which the consolidated Dilution Ratio of such Subsidiary’s Accounts exceeds five percent (5%) multiplied by (b) the Eligible Purchased Accounts created by such Subsidiary on such date.

 

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“ Dutch Finco Line Cap ” shall mean, at any time, an amount that is equal to the lesser of (a) the Dutch Revolving Commitments and (b) the Dutch Finco Borrowing Base.

“Dutch Finco Share Pledge” shall mean the share pledge governed by Dutch law dated as of the Second Amendment Effective Date by and among Mattel Overseas, Inc., a California corporation, the Dutch Finco Borrower and the Collateral Agent.

“ Dutch Moveable Assets Pledge ” shall mean the moveable assets pledge governed by Dutch law dated as of the European (GNU) Closing Date by and among the Initial Dutch Borrower and the Collateral Agent.

“ Dutch Pension Regulations ” shall mean the Dutch pension act ( Pensioenwet ).

“ Dutch Priority Payables Reserves ” shall mean reserves in respect of claims of the Dutch tax authorities and amounts payable to or deductible by an insolvency administrator, receiver or other insolvency official in respect of his or her costs or expenses or in respect of amounts ranking as a cost or expense of the bankruptcy or suspension of payments or similar insolvency process, in each case only to the extent such amounts enjoy priority as a matter of applicable law over the claims of the Secured Creditors.

“Dutch Receivables Pledge” shall mean the receivables pledge governed by Dutch law dated as of the Second Amendment Effective Date by and among the Initial Dutch Borrower and the Collateral Agent.

“ Dutch Restricted Subsidiary ” shall mean any Dutch Subsidiary that is a Restricted Subsidiary.

“ Dutch Revolving Commitment ” shall mean, with respect to each European (GNU) Revolving Lender, the commitment, if any, of such Lender to make European (GNU) Revolving Loans hereunder up to the amount set forth and opposite such Lender’s name on the Commitment Schedule under the caption “Dutch Revolving Commitment,” or in the Assignment and Assumption Agreement pursuant to which such Lender assumed its Dutch Revolving Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section  2.07 , (b) reduced or increased from time to time pursuant to Section  2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section  12.04 .

“ Dutch Security Agreements ” shall mean the Dutch Moveable Assets Pledge and , the Dutch Share Pledge . “ Dutch Security Documents ” shall mean the Dutch Security Agreements, and, after the execution and delivery thereof, each other document, governed by Dutch law, executed and delivered by any Credit Party pursuant to which a Lien is granted in favor of the Collateral Agent to secure the Obligations, each document governed by Dutch law, if any, executed and delivered by any Credit Party pursuant to the Additional Inventory Security Actions and each document governed by Dutch law, if any, executed and delivered by any Credit Party pursuant to the Additional Account Security Actions. , the Dutch Receivables Pledge and the Dutch Finco Share Pledge.

 

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“ Dutch Share Pledge ” means the share pledge governed by Dutch law dated as of the Initial Closing Date (subject to Section  8.16 ) by and among the Company, Mattel International Holdings B.V. and the Collateral Agent.

“ Dutch Subsidiary ” shall mean any Subsidiary of the Company incorporated now or hereinafter under the laws of the Netherlands.

“ Dutch Subsidiary Guarantor ” shall mean each Dutch Restricted Subsidiary (other than any Dutch Borrower) which is a party to this Agreement on the European (GNU) Closing Date, as well as each Dutch Restricted Subsidiary (other than the Dutch Finco Borrower) established, created or acquired after the European (GNU) Closing Date which is required to become a party to this Agreement as a Guarantor in accordance with the requirements of the Collateral and Guarantee Requirement.

“ Dutch Works Councils Act ” shall mean the Netherlands Works Councils Act ( Wet op de ondernemingsraden ).

“ Dutch Works Councils Act Event ” shall mean any breach of any of the obligations of any Dutch Credit Party arising from, pursuant to or in relation to the provisions of the Dutch Works Councils Act.

“ EEA Financial Institution ” shall mean (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any Person established in an EEA Member Country that is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country that 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 ” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“ EEA Resolution Authority ” shall mean any Governmental Authority of any EEA Member Country having responsibility for the resolution of any EEA Financial Institution.

“ Electronic Platform ” shall have the meaning provided in the definition of the term “Spot Rate”.

“ Eligible Account ” shall mean, at any time, an Account created by a Revolving Borrower in the ordinary course of its business, that arises out of its sale of goods (other than promotional products not held for sale) or rendition of services:

(a) that is subject to a perfected (or the equivalent) first priority Lien in favor of the Collateral Agent or Australian Security Trustee for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

(b) that is not subject to any Lien other than (i) a Lien in favor of the Collateral Agent or Australian Security Trustee for the benefit of the Secured Creditors pursuant to the relevant Security Documents, and (ii) a Lien (if any) permitted by Section  9.01 which Permitted Lien shall rank junior in priority to the Lien in favor of the Collateral Agent or Australian Security Trustee for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 

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(c) that (i) is evidenced by an invoice which has been sent to the Account Debtor (which may include electronic transmission) and (ii) does not represent a progress billing, sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis;

(d) the Account Debtor of which is an Eligible Account Debtor and is not an Affiliate of any Borrower;

(e) that is not owing from an Account Debtor that is an agency, department or instrumentality of the federal government of the United States, any government of any state thereof, of the federal government of Canada, or the government of any province, territory or subdivision thereof or, to the extent applicable and subject to Requirement of Law having similar effect to the Assignment of Claims Act of 1940 or the Financial Administration Act (Canada), that is an agency, department or instrumentality of the government of any country other than the United States or Canada unless (A) the applicable Revolving Borrower shall have satisfied the requirements of (x) the Assignment of Claims Act of 1940 in the case of Accounts owing from any agency, department or instrumentality of the federal government of the United States, (y) the Financial Administration Act (Canada) in the case of Accounts owing from an agency, department or instrumentality of the federal government of Canada or (z) if applicable, any similar state, provincial, territorial, or subdivision legislation or any similar foreign legislation, in the case of Accounts owing from any other applicable government agency, department or instrumentality; and, in each such case, the Administrative Agent is satisfied in its Permitted Discretion as to the absence of setoffs, counterclaims and other defenses on the part of such Account Debtor;

(f) that is not subject to any late payment for longer than 60 days according to its original terms of sale or 90 days (or such longer period as agreed by the Administrative Agent, the Required Revolving A Lenders and the Company for any Account in which the Account Debtor is an Approved Extended Term Account Debtor) after the date of the original invoice therefor (other than, in the case of Accounts in which the Account Debtor is TRU, past due TRU Pre-Petition Eligible Accounts so long as such Accounts are paid by TRU according to the payment plan approved by the Company with TRU);

(g) that is not the obligation of an Account Debtor of which 50% or more of the Dollar Equivalent amount of all Accounts owing by such Account Debtor are, based on the most recent Borrowing Base Certificate, ineligible under the immediately preceding clause (f) (without double-counting of any disputed Accounts);

(h) that is not subject to any deduction, offset, counterclaim, defense or dispute (other than sales discounts given in the ordinary course of the applicable Revolving Borrower’s business and reflected in the amount of such Account as set forth in the invoice or other supporting material therefor); provided , however , that if an Account satisfies all

 

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of the requirements of an Eligible Account other than this clause (h), such Account shall be an Eligible Account, but only to the extent of the amount of such Account that exceeds any such deduction, offset, counterclaim, defense or dispute or other conditions; provided that, if the Administrative Agent in its Permitted Discretion has established an appropriate Reserve and determines to include such Account as an Eligible Account or such Account Debtor has entered into an agreement reasonably acceptable to the Administrative Agent to waive such rights, such Account shall be included as an Eligible Account.

(i) that is denominated and payable only in Dollars, Canadian Dollars, Euros, Pounds Sterling, Australian Dollars, or any other Alternative Currency approved by the Administrative Agent in its Permitted Discretion;

(j) such Account is a true and correct statement of bona fide indebtedness incurred in the amount of the Account for merchandise sold to or services rendered and accepted by the applicable Account Debtor;

(k) that, together with the contract evidencing such Account, does not contravene in any material respect any Requirement of Law applicable thereto (including, without limitation, any Requirement of Law relating to usury, consumer protection, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy) in a manner that would affect the enforceability of such Account and with respect to which none of the Revolving Borrowers or the Account Debtor is in violation of any such Requirement of Law in any material respect in a manner that would affect the enforceability of such Account;

(l) that does not arise under a contract which restricts in a legally enforceable manner the ability of the Administrative Agent, Collateral Agent, Australian Security Trustee or Revolving A Lenders to exercise their rights under the Credit Documents, including, without limitation, their right to review the related invoice or the payment terms of such contract;

(m) [reserved];

(n) that, when aggregated with all other Accounts of the same Account Debtor, is not in excess of, for an Account in which the Account Debtor is (i) Wal-Mart Stores Inc. or any of its Affiliates, (x) if the debt rating of Wal-Mart Stores Inc. is investment grade, 60%, and (y) if the debt rating of Wal-Mart Stores Inc. is below investment grade, 40%; (ii) Target Corporation or any of its Affiliates, 40%; (iii) Amazon Fulfillment Services, Inc. or any of its Affiliates, 30%; (iv) TRU or any of its Affiliates, the TRU Concentration Limit; and (v) any other Account Debtor, 15%; and provided , that, in any case, the portion of the Accounts not in excess of any such concentration limit shall not be deemed ineligible due to this clause (n);

(o) that is owing by an Account Debtor in the United States, Canada, or in any other Account Debtor Approved Country in which the Additional Account Security Actions or the Additional Purchased Account Security Actions, as applicable, have been satisfied with respect to such Account;

 

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(p) neither such Account nor any other Account in respect of the same Account Debtor as such Account is subject to or included as part of an accounts receivable factoring program or supply chain financing program (including any Supplier Financing Transaction) , in each case other than any Purchased Account which is subject to such a program with the Dutch Finco Borrower ; and

(q) (i) the Account Debtor obligated upon such Account has not notified any Revolving Borrower or the Administrative Agent that it has suspended business, or made a general assignment for the benefit of creditors or has failed to pay its debts generally as they come due, and (ii) no petition is filed by or against the Account Debtor obligated upon such Account under any Debtor Relief Law, other than, in each case, so long as such Account is not deemed ineligible due to any clause of this definition other than this clause (q) and subject to the TRU Account Advance Rates, Accounts in which the Account Debtor is TRU.

With respect to any Accounts eligible for inclusion in the Borrowing Base (as reasonably determined by the Company in consultation with the Administrative Agent) that are acquired by a Revolving Borrower (other than (A)  from another Borrower or (B) with respect to the Purchased Accounts, from a Subsidiary of the Company by the Dutch Finco Borrower, but including any Accounts of any Person that has become a Revolving Borrower) after the applicable Closing Date in a Permitted Acquisition or similar Investment, such acquired Accounts may be included in the applicable Borrowing Base only after completion of a Field Examination with respect thereto by the Administrative Agent (unless (x) the Administrative Agent shall have determined in its Permitted Discretion that no such due diligence investigation with regard to such Accounts is required or (y) such acquired Accounts would not exceed 10% of the Eligible Accounts in the applicable Borrowing Base as of the date of proposed inclusion) and satisfaction of the Collateral and Guarantee Requirement with respect to the applicable Revolving Borrower or Guarantor and such Accounts.

“ Eligible Account Debtor ” shall mean an Account Debtor that:

(a) has a billing address in an Account Debtor Approved Country;

(b) is not a Person with respect to which the European Union, the United States, Canada, Australia or any other Account Debtor Approved Country shall have imposed Sanctions;

(c) is not a Person (i) that is listed in the annex to, or otherwise subject to the provisions of, the Executive Order, (ii) that is owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order, (iii) with which a Revolving A Lender or a Revolving Borrower is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, AML Legislation, the PCMLTFA or the DMLTFPA, (iv) that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order, or (v) that is named as a “specifically designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or any replacement website or other replacement official publication of

 

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such list or any similar lists published in the European Union, Canada (that include “designated persons”, “politically exposed foreign person” or “terrorist group” as described in Anti-Terrorism Laws of Canada, collectively, “ Canadian Blocked Persons ”) or any other Account Debtor Approved Country; and

(d) is not a Person (i) whose property or interest in property is otherwise blocked or subject to blocking pursuant to Section 1 of the Executive Order or any other Anti-Terrorism Law, or (ii) that engages in any dealings or transactions prohibited by Section 2 of the Executive Order or any other Anti-Terrorism Law, AML Legislation, the PCMLTFA or the DMLTFPA.

“ Eligible Assignee ” shall mean a Person that is (a) a Lender, Affiliate of a Lender or Approved Fund; (b) an assignee approved by the Company (which approval shall be deemed given if no written objection is made within ten Business Days after written notice of the proposed assignment is received by the Company from the Administrative Agent), the Administrative Agent, the applicable Swingline Lender and the applicable Issuing Bank (which approval, in each case, shall not be unreasonably withheld, delayed or conditioned); or (c) during an Event of Default under Sections 10.01(a) or 10.01(e) , any Person acceptable to the Administrative Agent, the applicable Swingline Lender and the applicable Issuing Bank (which approval, in each case, shall not be unreasonably withheld, delayed or conditioned); provided that (i) no Competitor or natural person shall be an Eligible Assignee; (ii) no Person who is not a Non-Public Lender shall be an Eligible Assignee; and (iii) no Person who the officers of the relevant Lender being an Australian Revolving Lender involved on a day to day basis in the administration of the Transaction know to be an Australian Offshore Associate of the Australian Borrower shall be an Eligible Assignee.

“ Eligible Australian Accounts ” shall mean the Eligible Accounts owned by the Australian Borrowers.

“ Eligible Australian Inventory ” shall mean the Eligible Inventory owned by the Australian Borrowers.

“ Eligible Canadian Accounts ” shall mean the Eligible Accounts owned by the Canadian Borrowers.

“ Eligible Canadian Inventory ” shall mean the Eligible Inventory owned by the Canadian Borrowers.

“ Eligible European (GNU) Accounts ” shall mean the Eligible Accounts owned by the European (GNU) Borrowers.

“ Eligible European (GNU) Inventory ” shall mean the Eligible Inventory owned by the Dutch Borrowers.

“ Eligible Fee-Owned Real Estate ” shall mean Real Property that (a) is owned by a U.S. Revolving Borrower in fee title in the United States, (b) is at all times subject to the Collateral Agent’s duly perfected, first-priority security interest (subject only to Liens permitted by Section  9.01 ) pursuant to Mortgages and other Related Real Estate Documents in form and substance reasonably satisfactory to the Administrative Agent and not subject to any other Lien except a

 

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Permitted Lien, (c) conforms in all material respects to the representations and warranties relating to such Real Property set forth in this Agreement and the applicable Mortgage, and (d) is set forth on Schedule 5.15 (it being agreed that the Real Property set forth on Schedule 5.15 shall be deemed to have been appraised by a third-party appraiser reasonably satisfactory to the Administrative Agent and the Revolving B Lenders not more than three months prior to the Initial Closing Date).

“ Eligible French Accounts ” shall mean the Eligible Accounts owned by the French Borrowers.

“ Eligible In-Transit Inventory ” shall mean Inventory owned by a Canadian Borrower, Dutch Borrower or U.S. Revolving Borrower (each, a “ Specified Borrower ”), that, in each case, would meet all of the criteria of “Eligible Inventory” on the relevant date of determination if it were not in transit from any location to a location of a Specified Borrower within an Inventory Approved Country. Without limiting the foregoing, no Inventory shall be Eligible In-Transit Inventory unless:

(a) such Inventory is either purchased by Initial Dutch Borrower from Purchasing Agent, or purchased by another Specified Borrower from Initial Dutch Borrower which, in turn, purchased such Inventory from Purchasing Agent;

(b) Initial Dutch Borrower is not in default of any of its obligations to Purchasing Agent (whether related to such Inventory or otherwise), and either (i) Purchasing Agent does not have any right on such date, under any Requirement of Law or pursuant to any document relating to the sale of such Inventory, to reclaim, divert the shipment of, reroute, repossess, stop delivery of or otherwise assert any Lien rights or title retention with respect to such Inventory or (ii) Purchasing Agent has expressly waived in writing all such rights pursuant to an agreement satisfactory to the Administrative Agent in its Permitted Discretion;

(c) such Inventory is subject to purchase orders and other sale documentation satisfactory to the Administrative Agent in its Permitted Discretion, and title and risk of loss to such Inventory have passed (i) from Purchasing Agent to Initial Dutch Borrower at the origination point and (ii) from Initial Dutch Borrower to another Specified Borrower (A) prior to the In-Transit Eligibility Alternate Condition Date, at any time prior to inclusion of such Inventory as Eligible In-Transit Inventory or Eligible Inventory (as applicable) of such Specified Borrower, and (B) at all times thereafter, on the Specified Transfer Date;

(d) such Inventory is fully insured in a manner satisfactory to the Administrative Agent in its Permitted Discretion, naming the Administrative Agent as loss payee;

(e) at all times such Inventory is owned by Initial Dutch Borrower, the Administrative Agent has a local law security interest covering such Inventory from Initial Dutch Borrower in both its jurisdiction of organization and the Inventory Approved Country to which such Inventory is being (or has been) shipped;

(f) at all times such Inventory is owned by any other Specified Borrower, the Administrative Agent has a local law security interest covering such Inventory from such Specified Borrower in both its jurisdiction of organization and the Inventory Approved Country to which such Inventory is being (or has been) shipped;

 

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(g) such Inventory is shipped by a common carrier that is not affiliated with Purchasing Agent or any Borrower and is not subject to any Sanction or on any specially designated nationals list maintained by OFAC;

(h) such Inventory is subject to a tangible or electronic bill of lading, waybill or other shipping document while in transit satisfactory to the Administrative Agent in its Permitted Discretion;

(i) the importer of record for such Inventory into the Inventory Approved Country to which such Inventory is being shipped, and the Person that clears such Inventory through customs in such Inventory Approved Country, is (A) at all times other than during an In-Transit Inventory Trigger Period, a Specified Borrower and (B) during an In-Transit Inventory Trigger Period, Initial Dutch Borrower;

(j) each of Purchasing Agent and Initial Dutch Borrower has subordinated all obligations owed to it by the applicable Specified Borrower purchasing such Inventory from it, which subordination shall be on terms and conditions, and subject to documentation, satisfactory to the Administrative Agent in its Permitted Discretion; and

(k) such Inventory has not been in-transit for more than 60 days.

The aggregate Eligible In-Transit Inventory (after application of the applicable advance rates) shall not exceed at any time, in the case of all Revolving Borrowers, (A) prior to the In-Transit Eligibility Alternate Condition Date, an aggregate sublimit (the “ In-Transit Sublimit ”) of (x) $ 50 75  million for the period commencing December 1 through June 30 of each calendar year and (y) $ 75 100  million for the period commencing July 1 through November 30 of each calendar year; provided , that, during any In-Transit Inventory Trigger Period, the In-Transit Sublimit shall be reduced by 50%, and (B) following the In-Transit Eligibility Alternate Condition Date and at all times thereafter, an aggregate amount of $150,000,000. The Administrative Agent, in its Permitted Discretion, shall have the ability to establish Reserves for landing costs if such Eligible In-Transit Inventory is originating from a jurisdiction outside the Inventory Approved Countries.

“ Eligible Inventory ” shall mean, at any time, Inventory of the Revolving Borrowers, but excluding any Inventory:

(a) that is not subject to a perfected (or the equivalent) first priority Lien under the laws of the jurisdiction where such Inventory is located (in accordance with (i) the Collateral and Guarantee Requirement, in the case of any Inventory located in the United States, Canada or Australia and (ii) the Additional Inventory Security Actions, in the case of any Inventory located in the Czech Republic, the Netherlands, France or the United Kingdom) in favor of the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents; provided , that Inventory that is Limiting License Inventory shall not be excluded under this clause (a);

(b) that is subject to any Lien other than (i) a Lien in favor of the Collateral Agent or Australian Security Trustee for the benefit of the Secured Creditors pursuant to the relevant Security Documents, and (ii) a Lien (if any) permitted by Section  9.01 which Permitted Lien shall rank junior in priority to the Lien in favor of the Collateral Agent or Australian Security Trustee for the benefit of the Secured Creditors pursuant to the relevant Security Documents;

 

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(c) that constitutes raw materials or work-in-process;

(d) that is determined, based on the applicable Revolving Borrowers’ historical practices and procedures, in each case, which are reasonably satisfactory to the Administrative Agent (it being understood that the Revolving Borrowers’ historical practices and procedures, as of the Initial Closing Date, are reasonably satisfactory to the Administrative Agent), to be slow moving, obsolete, unmerchantable, damaged, “seconds”, defective, used, unfit for sale, or unacceptable due to age, type, category or quantity;

(e) that does not conform in any material respect to all applicable standards imposed by any Governmental Authority having regulatory authority over such Inventory or its use or sale, including the Fair Labor Standards Act of 1938, the Employment Standards Act (Ontario) and French, U.K. or Australian legislation (both state and federal, where applicable) regarding the sale and use of goods, which non-conformity would affect the ability of the applicable Revolving Borrowers to sell such Inventory;

(f) in which any Person other than such Revolving Borrower or any other applicable Borrower shall (i) have any direct ownership, interest or title (including any retention of title right) to such Inventory, other than in respect of the interest of any carrier of Inventory in transit or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;

(g) that is not located in an Inventory Approved Country or is in transit (other than in transit between locations in or between Inventory Approved Countries (excluding in transit to Australia from a location outside of Australia), controlled by the applicable Revolving Borrowers, to the extent included in current Inventory reports of any such Revolving Borrower);

(h) except with respect to Inventory that is in transit between locations in or between Inventory Approved Countries (excluding in transit to Australia from a location outside of Australia), controlled by the applicable Revolving Borrowers, and included in current perpetual Inventory reports of any one of such Revolving Borrowers, that (i) is located in any location leased by an applicable Revolving Borrower unless the Administrative Agent has given its prior written consent thereto or unless (A) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may deem reasonably necessary in the jurisdiction of such Inventory’s location or (B) a Rent Reserve with respect to such location has been established by the Administrative Agent in its Permitted Discretion; or (ii) is located at an owned location subject to a mortgage or other security interest in favor of a creditor (other than any such mortgage or other security interest that constitutes a Permitted Lien), or is located in any third party warehouse or other storage facility or is in the possession of a bailee unless the Administrative Agent has given its prior written

 

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consent thereto (provided that the Administrative Agent consents to the Czech DC, or such other location in the Czech Republic as shall be agreed by the Administrative Agent in its Permitted Discretion) or unless (A) such mortgagee, warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement or such other documentation as the Administrative Agent may reasonably require in its Permitted Discretion or the Administrative Agent or its counsel may deem reasonably necessary in the jurisdiction of such Inventory’s location or (B) a Rent Reserve has been established by the Administrative Agent in its Permitted Discretion;

(i) that is the subject of a consignment;

(j) that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party, unless either (i) such Inventory is subject to a Royalty Reserve established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section  2.22 or (ii) the Administrative Agent is satisfied in its Permitted Discretion that it could sell the Inventory on satisfactory terms upon the occurrence of an Event of Default;

(k) that is not reflected in a current Inventory report of such Revolving Borrower;

(l) for which reclamation rights have been called in by the seller;

(m) that consists of samples, promotional materials, labels, packaging materials or similar supplies used in a Revolving Borrower’s business;

(n) that is not covered by casualty insurance as and to the extent required by the terms of this Agreement;

(o) that consists of Hazardous Materials or goods that can be transported or sold only with licenses that are not readily available;

(p) in which any portion of the Cost of such Inventory is attributable to intercompany profit between any such Revolving Borrower and any of its Affiliates (but only to the extent of such portion); or

(q) that has been sold but not yet delivered, or as to which a Revolving Borrower has accepted a deposit.

With respect to any Inventory eligible for inclusion in the Borrowing Base (as reasonably determined by the Company in consultation with the Administrative Agent) that are is acquired by a Revolving Borrower (other than from another Borrower, but including any Inventory of any Person that has become a Revolving Borrower) after the applicable Closing Date in a Permitted Acquisition or similar Investment, such acquired Inventory may be included in the applicable Borrowing Base from and after the acquisition thereof only after completion of an Appraisal with respect thereto by the Administrative Agent (unless (x) the Administrative Agent shall have determined in its Permitted Discretion that no such due diligence investigation with respect to such Inventory is required or (y) such acquired Inventory would not exceed 10% of the Eligible

 

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Inventory in the applicable Borrowing Base as of the date of proposed inclusion) and satisfaction of the Collateral and Guarantee Requirement with respect to the applicable Revolving Borrower or Guarantor and (x) in the case of any Inventory located in the United States or Canada, the Collateral and Guarantee Requirement shall have been satisfied with respect to such Inventory or (y) in the case of any Inventory located in the United Kingdom , the Czech Republic, the Netherlands or France, the Additional Inventory Security Actions shall have been satisfied with respect to such Inventory.

“Eligible Purchased Account” shall mean, at any time, a Purchased Account, that, in each case, would meet all of the criteria of “Eligible Account” on the relevant date of determination if it were created by the Dutch Finco Borrower in the ordinary course of its business and not purchased by the Dutch Finco Borrower (whether as part of an accounts receivable factoring program or otherwise). Without limiting the foregoing, no Purchased Account shall be an Eligible Purchased Account unless such Purchased Account is owing by an Account Debtor in any Account Debtor Approved Country in which the Additional Purchased Account Security Actions have been satisfied with respect to such Purchased Account; provided, that any such Account Debtor Approved Country shall be subject to the prior written approval of the Administrative Agent in its sole discretion, on terms and conditions reasonably satisfactory to the Administrative Agent. With respect to any Purchased Accounts eligible for inclusion in the Borrowing Base (as reasonably determined by the Company in consultation with the Administrative Agent), such Purchased Accounts may be included in the applicable Borrowing Base only after completion of a Field Examination with respect thereto by the Administrative Agent (unless the Administrative Agent shall have determined in its Permitted Discretion that no such due diligence investigation with regard to such Purchased Accounts is required) and satisfaction of the Collateral and Guarantee Requirement with respect to the Dutch Finco Borrower and such Purchased Accounts.

“ Eligible Spanish Accounts ” shall mean the Eligible Accounts owned by the Spanish Borrowers.

“ Eligible U.S. Accounts ” shall mean the Eligible Accounts owned by the U.S. Revolving Borrowers.

“ Eligible U.S. Intellectual Property ” shall mean Intellectual Property that (a) is owned by a U.S. Revolving Borrower and registered with the United States Patent and Trademark Office in the name of such U.S. Revolving Borrower, (b) is at all times subject to the Collateral Agent’s duly perfected, first-priority security interest (subject only to Liens permitted by Section  9.01 ) pursuant to the U.S. Security Documents and not subject to any other Lien except a Permitted Lien, (c) conforms in all material respects to the representations and warranties relating to such Intellectual Property set forth in this Agreement and the U.S. Security Documents, (d) solely with respect to Intellectual Property owned by a U.S. Revolving Borrower on the Initial Closing Date, is set forth on Schedule 1.01F (it being agreed that (i) the Intellectual Property set forth on Schedule 1.01F shall be deemed to have been appraised by a third-party appraiser reasonably satisfactory to the Administrative Agent not more than three months prior to the Initial Closing Date and (ii) the Appraisals with respect to the Intellectual Property set forth on Schedule 1.01F shall be deemed to have been prepared on a basis reasonably satisfactory to the Administrative Agent and the Revolving B Lenders) and (e) solely with respect to Intellectual Property owned by any U.S. Revolving Borrower that is not set forth on Schedule 1.01F , (i) has been appraised by a third-party

 

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appraiser reasonably satisfactory to the Administrative Agent and (ii) for which the Appraisals with respect thereto shall have been prepared on a basis reasonably satisfactory to the Administrative Agent; provided that Eligible U.S. Intellectual Property shall exclude any Intellectual Property that is otherwise designated by the Company as “ineligible” by written notice to the Administrative Agent or in any Borrowing Base Certificate delivered to the Administrative Agent.

“ Eligible U.S. Inventory AG ” shall mean Eligible U.S. Inventory of America Girl Brands, America Girl Retail and American Girl Publishing; provided that for the purpose of determining Eligible U.S. Inventory AG, with respect to clause (d) of the definition of Eligible Inventory, slow moving shall mean Inventory with no sales in the last 12 months.

“ Eligible U.S. Inventory ” shall mean the Eligible Inventory owned by the U.S. Revolving Borrowers.

“ Eligible U.S. Inventory Non-AG ” shall mean Eligible U.S. Inventory of a U.S. Borrower other than America Girl Brands, America Girl Retail and American Girl Publishing; provided that for the purpose of determining Eligible U.S. Inventory Non-AG, with respect to clause (d) of the definition of Eligible Inventory, slow moving shall mean (i) Inventory with no sales in the last 12 months and (ii) Inventory on hand in excess of 24 months’ sales.

“ Eligible U.S. Real Estate ” shall mean the Eligible Fee-Owned Real Estate owned by U.S. Revolving Borrowers.

“ Environment ” shall mean ambient air, indoor air, surface water, groundwater, drinking water, land surface and sub-surface strata, sediments and natural resources such as wetlands, flora and fauna.

“ Environmental Claims ” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims and/or notices of noncompliance or violation, relating to any Environmental Law or, any permit issued, or any approval given, under any such Environmental Law, including, without limitation, (a) by governmental or regulatory authorities for enforcement investigation, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief arising out of or relating to an alleged injury or threat of injury to human health or the Environment due to any Release or threat of Release of any Hazardous Materials.

“ Environmental Law ” shall mean any applicable federal, state, provincial, foreign, municipal, local or foreign Requirement of Law, which, for the avoidance of doubt, shall include any ordinance, code and rule of common law, including any judicial or administrative order, consent decree or judgment relating to pollution or protection of the Environment, occupational safety or of human health as affected by exposure to Hazardous Materials, including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

 

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“ Environmental Liability ” shall mean any liability, loss, damage, claims and expense arising under or relating to any Environmental Law including those arising from or relating to: (a) compliance or non-compliance with any Environmental Law or permit, license or approval issued thereunder, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threat of Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Interests ” shall mean, with respect to any Person, Capital Stock of such Person and all warrants, options or other rights to acquire Capital Stock of such Person, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock of such Person.

“ ERISA ” shall mean, at any time, the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute, and the rules and regulations promulgated thereunder.

“ ERISA Affiliate ” shall mean any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414 of the Code.

“ ERISA Event ” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations by the Company or an ERISA Affiliate that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal (within the meanings of Sections 4203 and 4205 of ERISA) by the Company or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate a Pension Plan in a distress termination under Section 4041(c) of ERISA by the Company or any ERISA Affiliate with the PBGC, the treatment of a plan amendment as a termination under Section 4041(c) of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan under Section 4042 of ERISA; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate or (g) the determination that any Pension Plan is considered an “at-risk” plan or a plan in “endangered or critical status” within the meaning of Sections 430(i) and 432 of the Code or Sections 303(i) and 305 of ERISA.

“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“ Euro ” and “ € ” mean the single currency of the Participating Member States.

“ Eurocurrency Rate ” shall mean with respect to any Loan:

(a) denominated in a LIBOR Quoted Currency, the per annum rate of interest determined by the Administrative Agent at or about 11:00 a.m. (London time) two Business Days prior to an Interest Period, or on the first day of the Interest Period in the case of a Sterling-denominated Loan, in each case for a term equivalent to such Interest Period, equal to the London Interbank Offered Rate, or comparable or successor rate approved by the Administrative Agent, as published on the applicable Reuters screen page (or other commercially available source designated by the Administrative Agent from time to time); and

 

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(b) denominated in a Non-LIBOR Quoted Currency, the rate per annum as designated with respect to the applicable Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the Revolving A Lenders pursuant to Section  1.10(a) ;

provided that, to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied, if administratively feasible, in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; and if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“ Eurocurrency Rate Loan ” shall mean Loans that bear interest at a rate based on clause (a) of the definition of the term “Eurocurrency Rate.” Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency.

“ European (GNU) Borrowers ” shall mean the Initial European (GNU) Borrower Borrowers and each European (GNU) Subsidiary of the Company that executes a counterpart hereof and each other applicable Credit Document (or a separate joinder hereto or thereto) to become a Revolving Borrower, whether on the European (GNU) Closing Date or after the European (GNU) Closing Date in accordance with Section  2.21 .

“ European (GNU) Borrowing Base ” shall mean , at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of the sum of the Dutch Borrowing Base, the Dutch Finco Borrowing Base, the German Borrowing Base and the U.K. Borrowing Base, as the context may require.

(a) 85% of the aggregate Outstanding Balance of Eligible European (GNU) Accounts of the European (GNU) Borrowers at such time; plus

(b) the lesser of (i) 80% of the Cost of Eligible European (GNU) Inventory at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible European (GNU) Inventory at such time; plus

(c) the lesser of (i) 80% of the Cost of Eligible In-Transit Inventory owned by the Dutch Borrowers at such time and (ii) 85% of the Net Orderly Liquidation Value of Eligible In-Transit Inventory owned by the Dutch Borrowers at such time ; minus

(d) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section 2.22 .

 

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The European (GNU) Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) , adjusted, in the Administrative Agent ’ s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, Eligible Inventory or Eligible In-Transit Inventory, renders any such Account or Inventory ineligible for inclusion in the European (GNU) Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

“ European (GNU) Closing Date ” shall mean the “European (GNU) Closing Date” specified in a written notification by Administrative Agent to the Lenders that the conditions in Section  5.03 have been satisfied.

“ European (GNU) Credit Party ” shall mean each European (GNU) Borrower and each European (GNU) Subsidiary Guarantor.

“ European (GNU) Dilution Reserve ” shall mean, at any date, (a) the amount by which the consolidated Dilution Ratio of Eligible European (GNU) Accounts exceeds five percent (5%) multiplied by (b) the Eligible European (GNU) Accounts on such date.

“ European (GNU) Issuing Bank ” shall mean, as the context may require, (a) BANA or any Affiliates or branches of BANA with respect to European (GNU) Letters of Credit issued by it; (b) any other Revolving A Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k) , with respect to European (GNU) Letters of Credit issued by such Revolving A Lender; (c) with respect to any Existing Letter of Credit set forth on Part D of Schedule 1.01B , the Revolving A Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

“ European (GNU) LC Credit Extension ” shall mean, with respect to any European (GNU) Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

“ European (GNU) LC Disbursement ” shall mean a payment or disbursement made by the European (GNU) Issuing Bank pursuant to a European (GNU) Letter of Credit.

“ European (GNU) LC Documents ” shall mean all documents, instruments and agreements delivered by a European (GNU) Borrower, the Company, or any Subsidiary to a European (GNU) Issuing Bank or the Administrative Agent in connection with any European (GNU) Letter of Credit.

“ European (GNU) LC Exposure ” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding European (GNU) Letters of Credit at such time plus (b) the aggregate principal amount of all European (GNU) LC Disbursements that have not yet been reimbursed at such time. The European (GNU) LC Exposure of any Revolving A Lender at any time shall mean its Pro Rata Percentage of the aggregate European (GNU) LC Exposure at such time.

 

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“ European (GNU) LC Obligations ” shall mean the sum (without duplication) of (a) all amounts owing by the European (GNU) Borrowers in respect of any European (GNU) LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding European (GNU) Letters of Credit.

“ European (GNU) LC Sublimit ” shall mean $28,000,000.

“ European (GNU) Letter of Credit ” shall mean any standby, commercial or documentary letter of credit, foreign guaranty, bank guarantee, documentary banker’s acceptance or similar instrument issued or to be issued by a European (GNU) Issuing Bank under the European (GNU) Revolving Subfacility requested by a European (GNU) Borrower pursuant to Section  2.13 .

“ European (GNU) Line Cap ” shall mean, at any time, an amount that is equal to the lesser of (a) the European (GNU) Revolving Commitments and (b) the European (GNU) Borrowing Base.

“ European (GNU) Protective Advance ” shall have the meaning provided in Section  2.18 .

“ European (GNU) Restricted Subsidiary ” shall mean any European (GNU) Subsidiary that is a Restricted Subsidiary.

“ European (GNU) Revolving Borrowing ” shall mean a Borrowing comprised of European (GNU) Revolving Loans.

“ European (GNU) Revolving Commitment ” shall mean the sum of (a) the German Revolving Commitment, (b) the Dutch Revolving Commitment, and (c) the U.K. Revolving Commitment.

“ European (GNU) Revolving Exposure ” shall mean, with respect to any European (GNU) Revolving Lender at any time, the aggregate principal amount at such time of all outstanding European (GNU) Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s European (GNU) LC Exposure, plus the aggregate amount of such Lender’s European (GNU) Swingline Exposure.

“ European (GNU) Revolving Lender ” shall mean any Lender under the European (GNU) Revolving Subfacility.

“ European (GNU) Revolving Loans ” shall mean advances made to or at the instructions of a European (GNU) Borrower pursuant to Section  2.01(a)(vi) hereof under the European (GNU) Revolving Subfacility.

“ European (GNU) Revolving Note ” shall mean each revolving note substantially in the form of Exhibit B-4 hereto.

 

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“ European (GNU) Revolving Subfacility ” shall have the meaning provided in the recitals hereto.

“ European (GNU) Security Agreements ” shall mean the Dutch Security Agreements, the U.K. Security Agreement, the German Security Agreements , the Czech Security Agreement and the Spanish Security Agreements.

“ European (GNU) Security Documents ” shall mean the European (GNU) Security Agreements, and, after the execution and delivery thereof, each other document governed by Dutch, French, German, Czech, Spanish or English law executed and delivered by any Credit Party pursuant to which a Lien is granted in favor of the Collateral Agent to secure the Obligations, each document governed by Dutch, French, German, Czech, Spanish or English law, if any, executed and delivered by any Credit Party pursuant to the Additional Inventory Security Actions and , each document governed by Dutch, French, German, Spanish or English law, if any, executed and delivered by any Credit Party pursuant to the Additional Account Security Actions and each document governed by Dutch, French, German, Spanish or English law, if any, executed and delivered by any Credit Party pursuant to the Additional Purchased Account Security Actions .

“ European (GNU) Subsidiary ” shall mean any Subsidiary of the Company incorporated now or hereinafter under the laws of the Netherlands, the United Kingdom or Germany.

“ European (GNU) Subsidiary Guarantor ” shall mean each European (GNU) Restricted Subsidiary (other than any European (GNU) Borrower) which is a party to this Agreement on the European (GNU) Closing Date, as well as each European (GNU) Restricted Subsidiary established, created or acquired after the European (GNU) Closing Date which is required to become a party to this Agreement as a Guarantor in accordance with the requirements of the Collateral and Guarantee Requirement.

“ European (GNU) Swingline Commitment ” shall mean the commitment of the European (GNU) Swingline Lender to make loans under the European (GNU) Revolving Subfacility pursuant to Section  2.12 , as the same may be reduced from time to time pursuant to Section  2.07 .

“ European (GNU) Swingline Exposure ” shall mean, at any time, the aggregate principal amount at such time of all outstanding European (GNU) Swingline Loans. The European (GNU) Swingline Exposure of any European (GNU) Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate European (GNU) Swingline Exposure at such time.

“ European (GNU) Swingline Lender ” shall mean BANA, its permitted successors and permitted assigns.

“ European (GNU) Swingline Loan ” shall mean any Loan made by the European (GNU) Swingline Lender pursuant to Section  2.12 .

“ European (GNU) Swingline Note ” shall mean each swingline note substantially in the form of Exhibit B-10 hereto.

“ Event of Default ” shall have the meaning provided in Section  10 .

 

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

“ Excluded Account ” shall mean (a) any Deposit Account or Securities Account (i) which is used for the purposes of making payroll and withholding tax payments related thereto and other employee wage and benefit payments and accrued and unpaid employee compensation (including salaries, wages, bonuses, benefits and expense reimbursements), (ii) which is used for the sole purpose of paying or remitting taxes, including sales taxes, (iii) which is used solely as an escrow account or as a fiduciary or trust account, (iv) which is a zero balance account, or (v) which is granted as cash collateral in favor of a creditor with respect to a Permitted Lien and (b) any other Deposit Account or Securities Account, the aggregate average daily balance in which (in each case determined for the most recently completed calendar month) does not at any time exceed $2,500,000 in the aggregate for all such Deposit Accounts and Securities Accounts described in this clause (b).

“ Excluded Assets ” shall mean (a) any fee-owned Real Property that is not Eligible U.S. Real Estate and any leasehold interests in Real Property; (b) any governmental licenses or state or local franchises, charters or authorizations, to the extent a security interest in any such licenses, franchise, charter or authorization would be prohibited or restricted thereby (including any legally effective prohibition or restriction) after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain and Australia, other than the proceeds and products thereof the assignment of which is expressly deemed effective under the UCC, PPSA or any similar applicable Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain or Australia notwithstanding such prohibition; (c) letter of credit rights (except to the extent perfection can be accomplished through the filing of UCC-1, PPSA or RDPRM financing statements or equivalent filing under other similar Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain or Australia); (d) commercial tort claims (other than those of Canadian Credit Parties) with an individual value of less than $5,000,000; (e) assets and personal property for which a pledge thereof or a security interest therein is prohibited by applicable Requirements of Law (including any legally effective requirement to obtain the consent of any Governmental Authority) after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain and Australia, other than the proceeds and products thereof the assignment of which is expressly deemed effective under the UCC, PPSA or any similar applicable Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain or Australia notwithstanding such prohibition; (f) any “margin stock” and Equity Interests of any Person to the extent, and for so long as, the pledge of such Equity Interests would be prohibited by the terms of any applicable joint venture agreement or shareholders’ agreement applicable to such Person, after giving effect to the applicable anti-assignment clauses of the UCC, PPSA and other applicable Requirements of Law; (g) any voting Equity Interests in a CFC or FSHCO representing in excess of 65% of the outstanding voting Equity Interests in such CFC or FSHCO or any assets of a CFC or a FSHCO (including any stock held directly or indirectly by a CFC or a FSHCO); (h) assets and personal property to the extent a security interest in such assets or personal property would result in material adverse Tax consequences as reasonably determined by the Company in consultation with the Administrative Agent and notified in writing by the Company to the Administrative Agent; (i) any intent-to-use trademark application prior to the filing of a

 

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“Statement of Use” with respect thereto; (j) any Contractual Requirement, license or permit to which a Credit Party or any of their property (including personal property) is subject, and any property subject to a purchase money security interest, capital lease or similar arrangement with any Person if, to the extent, and for so long as, the grant of a Lien thereon to secure the Obligations constitutes a breach of, a violation of, or a default under, or invalidation of, or creates a right of termination in favor of any party (other than any Borrower or Guarantor) to, such Contractual Requirement, license, permit, purchase money arrangement, capital lease or similar arrangement (but only to the extent any of the foregoing is not rendered ineffective by, or is otherwise unenforceable under, the UCC, PPSA or any similar applicable Requirement of Law in France, the Netherlands, the United Kingdom, Germany, Spain or Australia); (k) any Excluded Account; (l) any property or assets acquired after the applicable Closing Date (including any property acquired through any acquisition, consolidation, amalgamation or merger of a Person, but excluding any Borrowing Base Assets of a Credit Party), if at the time of such acquisition, the granting of a security interest therein or a pledge thereof is prohibited by any Contractual Requirement to the extent and for so long as such Contractual Requirement prohibits such security interest or pledge; (m) any Intellectual Property owned by any Credit Party (other than the Eligible U.S. Intellectual Property); (n) any property subject to a certificate of title (including motor vehicles) (except to the extent perfection can be accomplished through the filing of UCC-1, PPSA or RDPRM financing statements or equivalent filing under other similar Requirements of Law in France, the Netherlands, the United Kingdom, Germany, Spain or Australia); and (o) any other assets if and for so long as the Administrative Agent and the Company agree in writing that the cost of creating or perfecting pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Secured Creditors therefrom; provided that notwithstanding anything herein to the contrary, Excluded Assets shall not include any proceeds, replacements or substitutions of Collateral (unless such proceeds, replacements or substitutions otherwise constitute Excluded Assets).

“ Excluded Subsidiary ” shall mean (a) each Subsidiary that is not required to become a Credit Party pursuant to any provision of this Agreement, (b) each Immaterial Subsidiary, (c) each Subsidiary that is not a Wholly-Owned Subsidiary on any date such Subsidiary would otherwise be required to become a Guarantor pursuant to the requirements of Section  8.15 or 8.19 (for so long as such Subsidiary is not a Wholly-Owned Subsidiary), unless otherwise excluded under another provision of this definition, (d) each Subsidiary (i) to the extent prohibited by any applicable Requirement of Law or Contractual Requirement permitted pursuant to Section  9.08(b) (only to the extent and for so long as such restriction or any replacement or renewal thereof is in effect) from guaranteeing the Obligations, (ii) that would require consent, approval, license or authorization to provide a Guarantee of the Obligations from a Governmental Authority (unless such consent, approval, license or authorization has been received) or for which the provision of such Guarantee could reasonably be expected to result in material adverse Tax consequences to the Company or one or more of its Subsidiaries (as reasonably determined by the Company in consultation with the Administrative Agent) or (iii) that is a CFC (or a direct or indirect Subsidiary of a CFC) or FSHCO; provided that such Subsidiary shall only be deemed an Excluded Subsidiary under this clause (d)(iii) with respect to guarantying or securing any Obligation of the Company or any Domestic Subsidiary or any Obligation that is treated as an obligation of a “United States person” within the meaning of Section 7701(a)(30) of the Code, (e) any other Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Company, as agreed in writing, the cost or other consequences of providing a Guarantee of the Obligations

 

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would be excessive in view of the benefits to be obtained by the Lenders therefrom, (f) each Unrestricted Subsidiary, (g) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition or other Investment permitted hereunder and financed with secured Indebtedness permitted to be incurred pursuant to Section  9.04 , and each Restricted Subsidiary acquired in such Permitted Acquisition or other Investment permitted hereunder that guarantees such secured Indebtedness, in each case, to the extent that, and for so long as, the documentation relating to such secured Indebtedness to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Acquisition or other Investment permitted hereunder and (h) any special purpose entity (including any not-for-profit entity).

“ Excluded Swap Obligation ” shall mean, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Guarantor pursuant to the Guarantee of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guarantee pursuant to the Guarantee thereof) is or becomes illegal or unlawful 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) (i) by virtue of such Guarantor’s failure to constitute an “eligible contract participant,” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving pro forma effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all applicable guarantees of such Guarantor’s Swap Obligations by other Credit Parties), at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (ii) in the case of a Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee of (or grant of such security interest by, as applicable) such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Credit Parties and counterparties to such Swap Obligations. 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 the Swap for which such guarantee or security interest is or becomes excluded in accordance with the first sentence of this definition.

“ Excluded Taxes ” shall mean, with respect to the Administrative Agent, any Lender, or any other recipient of any payment to be made by or on account of any obligation of any Credit Party under any Credit Document, (a) Taxes imposed on (or measured by) net income and franchise (and similar) Taxes imposed on it in lieu of net income Taxes by a jurisdiction (or any political subdivision thereof) as a result of (i) such recipient being organized or having its principal office or applicable lending office Facility Office (or other permanent establishment in respect of amounts received or receivable) in such jurisdiction or (ii) any other present or former connection between such recipient and such jurisdiction (other than a connection arising from the Administrative Agent, Lender or other recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Obligation or Credit Document) (any such Taxes, “ Other Connection Taxes ”), (b) any branch profits Taxes under Section 884(a) of the Code, or any similar Tax,

 

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imposed by any jurisdiction described in clause (a) above, (c) in the case of a Lender (other than an assignee pursuant to a request by the Company under Section  3.04 ), any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Lender pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement or acquires an interest in a Loan or Obligation (or designates a new lending office Facility Office ), except to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office Facility Office (or assignment), to receive additional amounts from the relevant Credit Party with respect to such withholding Tax pursuant to Section  4.01 , (d) any Tax that is attributable to such recipient’s failure to comply with Sections 4.01(c) or 4.01(d) (in each case, subject to Sections 4.01(e) ) or 4.01(f) , (e) any withholding Taxes imposed under FATCA, (f) U.S. federal backup withholding Taxes imposed pursuant to Code Section 3406, (g) solely with respect to the Canadian Revolving Subfacility, any Taxes imposed as a result of such recipient not dealing at arm’s length (within the meaning of the ITA) with a Canadian Credit Party, (h) solely with respect to the Canadian Revolving Subfacility, any Taxes imposed as a result of such recipient being a “specified shareholder” (within the meaning of subsection 18(5) of the ITA) of a Canadian Credit Party or not dealing at arm’s length with such a specified shareholder of a Canadian Credit Party, (i) any Taxes imposed pursuant to Article 17(3) of the 1969 Dutch Corporate Income Tax Act ( Wet op de vennootschapsbelasting ) on the Administrative Agent or a Lender as a result of the Administrative Agent or Lender having a substantial interest ( aanmerkelijk belang ) within the meaning of the Dutch Income Tax Act 2001 ( Wet inkomstenbelasting 2001 ), directly or indirectly, in a Dutch Borrower or the Dutch Finco Borrower , (j) any Australian Withholding Tax where such Australian Withholding Tax is imposed because the exemption in section 128F of the Australian Tax Act does not apply by reason of there being less than 2 Australian Revolving Lenders under this Agreement, (k) any French withholding tax that is imposed on amounts payable to a Lender if such Taxes are imposed solely because this payment is made to (i) an account opened in the name of or for the benefit of that Lender in a financial institution situated in a Non-Cooperative Jurisdiction or (ii) a Lender acting through a Facility Office situated in a Non-Cooperative Jurisdiction, and (l) any Spanish withholding Tax on account of Non Resident Income Tax ( Impuesto sobre la Renta de No Residentes ) that is imposed on amounts payable to or for the account of a Lender pursuant to a Requirement of Law in effect at the time such Lender becomes a party to this Agreement or acquires an interest in a Loan or Obligation (or designates a new lending office Facility Office ) and considered as an income of such Lender for Spanish tax purposes.

“ Executive Order ” shall mean Executive Order No. 13224 on Terrorist Financing effective September 24, 2001.

“ Existing Letters of Credit ” shall mean those Letters of Credit set forth on Schedule 1.01B .

“ Existing Indebtedness ” shall have the meaning provided in Section  9.04(d) .

“ Existing Revolving A Class ” shall have the meaning provided in Section  2.19(a) .

“ Existing Revolving A Commitment ” shall have the meaning provided in Section  2.19(a) .

“ Existing Revolving A Loans ” shall have the meaning provided in Section  2.19(a) .

 

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“ Extended Revolving A Commitments ” shall have the meaning provided in Section  2.19(a) .

“ Extended Revolving A Loans ” shall have the meaning provided in Section  2.19(a) .

“ Extending Lender ” shall have the meaning provided in Section  2.19(b) .

“ Extension Amendment ” shall have the meaning provided in Section  2.19(c) .

“ Extension Date ” shall have the meaning provided in Section  2.19(d) .

“ Extension Election ” shall have the meaning provided in Section  2.19(b) .

“ Extension Request ” shall have the meaning provided in Section  2.19(a) .

“ Facility Office ” means the office or offices notified by a Lender to the Agents in writing on or before the date it becomes a Lender (or following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

“ Fair Market Value ” shall mean the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party.

“ FATCA ” shall mean Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof, any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above), and any treaty, convention or intergovernmental agreements (or related legislation or official administrative rules or practices) implementing the foregoing.

“ FATCA Deduction ” means a deduction or withholding from a payment under a Credit Document required by FATCA.

“ FATCA Exempt Party ” means a Person that is entitled to receive payments free from any FATCA Deduction.

“ FCCR Test Amount ” shall have the meaning provided in the definition of the term “Financial Covenant Triggering Event”.

“ FCPA ” shall have the meaning provided in Section  7.14(c) .

“ Federal Funds Rate ” shall mean (a) the weighted average of interest rates on overnight federal funds transactions with members of the Federal Reserve System on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if no such rate is published on the next Business Day, the average rate (rounded up to the nearest 1/8 of 1%) charged to Bank of America, N.A. on the applicable day on such transactions, as determined by the Administrative Agent; provided , that in no event shall such rate be less than zero.

 

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“ Fee Letter ” shall mean that certain letter agreement dated the date hereof by and between the Administrative Agent and the Company.

“ Fees ” shall mean all amounts payable pursuant to or referred to in Section  2.05 .

“ Field Examination ” shall mean field audits and examinations prepared on a basis reasonably satisfactory to the Administrative Agent, setting forth the value of Accounts, which audits and examinations shall be prepared in accordance with this Agreement by an examiner selected by the Administrative Agent in its reasonable discretion.

“ FILO Applicable Margin ” shall mean the per annum percentage set forth below, as determined by the Average Availability as of the most recent Adjustment Date:

 

Level		Average Availability (percentage of Line Cap)		U.S. Base Rate Loans		Eurocurrency Rate Loans
I		>  75%		1.25%		2.25%
II		>  50% < 75%		1.50%		2.50%
III		>  25% < 50%		1.75%		2.75%
IV		< 25%		2.00%		3.00%

Until March 31, 2018, the FILO Applicable Margin shall be determined as if Level II were applicable. Thereafter, the FILO Applicable Margin shall be subject to increase or decrease on each Adjustment Date based on Average Availability, as determined by the Administrative Agent’s system of record, and each such increase or decrease in the FILO Applicable Margin shall be effective on the Adjustment Date occurring immediately after the last day of the fiscal quarter most recently ended. If the Revolving Borrowers fail to deliver any Borrowing Base Certificate on or before the date required for delivery thereof, then the FILO Applicable Margin shall be determined as if Level IV were applicable, from the first day of the calendar month following the date such Borrowing Base Certificate was required to be delivered until two Business Days after the date of delivery of such Borrowing Base Certificate.

“ FILO Borrowing Base ” shall mean the lesser of (a) $100,000,000 and (b) an amount equal to (i) 10% of the aggregate Outstanding Balance of Eligible U.S. Accounts at such time (excluding, at any time prior to the date that TRU has exited from bankruptcy, any Account in which the Account Debtor is TRU, but including, on and following the date that TRU has exited from bankruptcy, TRU Post-Petition Eligible Accounts but not TRU Pre-Petition Eligible Accounts); plus (ii) the lesser of (x) 10% of the Cost of Eligible U.S. Inventory at such time (excluding, for the avoidance of doubt, any Eligible In-Transit Inventory) and (y) 10% of the Net Orderly Liquidation Value of Eligible U.S. Inventory at such time (excluding, for the avoidance of doubt, any Eligible In-Transit Inventory); provided , that on July 1, 2018 and on the first day of each fiscal quarter thereafter if an Amortization Event is in effect, each percentage under this clause (b) shall reduce by 1% until such time as each such percentage is reduced to 0%.

 

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“ FILO Revolving Loans ” shall mean U.S. Revolving A Loans under the FILO Borrowing Base.

“ Finance Party ” shall have the meaning provided in Section  4.02(a) .

“ Financial Covenant Triggering Event ” shall mean, at any time, that Total Excess Availability is less than the greater of (a) $100,000,000 and (b) 10.0% of the Line Cap, as of such date (such greater of amount, the “ FCCR Test Amount ”). Upon the occurrence of any Financial Covenant Triggering Event, such Financial Covenant Triggering Event shall be deemed to be continuing notwithstanding that Total Excess Availability may thereafter equal to or exceed the FCCR Test Amount unless and until no Event of Default shall exist and Total Excess Availability, for thirty (30) consecutive days, equals or exceeds such FCCR Test Amount, in which event a Financial Covenant Triggering Event shall no longer be deemed to be continuing.

“ Financial Support Direction ” shall mean a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.

“ First Amendment ” shall mean that certain First Amendment to Syndicated Facility Agreement dated as of June 1, 2018, by and among the Borrowers, the Guarantors, the Lenders party thereto and the Administrative Agent, Collateral Agent and Australian Security Trustee.

“ First Amendment Effective Date ” shall mean June 1, 2018.

“ Flood Insurance Laws ” shall mean, collectively, (a) National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (b) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (c) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.

“ Foreign Base Rate ” shall mean, with respect to Loans (other than Canadian Base Rate Loans) denominated in Euros, Pounds Sterling and Dollars that are funded outside the U.S., the rate based on clause (a) of the definition of the term “Eurocurrency Rate” for a 30-day interest period as in effect on the first day of the current calendar month; provided , that in no event shall the Foreign Base Rate be less than zero.

“ Foreign Base Rate Loan ” shall mean a floating rate borrowing under the French Revolving Subfacility, the Spanish Revolving Subfacility, the European (GNU) Revolving Subfacility or the Australian Revolving Subfacility that, in each case, bears interest based on the Foreign Base Rate.

“ Foreign Borrower ” shall mean any Borrower that is not a U.S. Revolving Borrower.

“ Foreign Collateral ” shall mean any Collateral (other than the U.S. Collateral).

 

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“ Foreign Credit Party ” shall mean any Credit Party that is not (a) a U.S. Credit Party or (b) a “United States person” as defined in Section 7701(a)(30) of the Code.

“ Foreign Credit Party Guarantee ” shall mean the guarantee of each Foreign Credit Party and each FSHCO Guarantor pursuant to Section  14 .

“ Foreign Guaranteed Creditors ” shall mean the Guaranteed Creditors (other than the Domestic Guaranteed Creditors).

“ Foreign Joinder Agreement ” shall mean a joinder agreement, substantially in the form of Exhibit E-2 hereto.

“ Foreign LC Collateral Account ” shall mean a collateral account in the form of a deposit account established and maintained by the Administrative Agent for the benefit of the Issuing Banks under the Revolving A Subfacilities (other than the U.S. Revolving A Subfacility), in accordance with the provisions of Section  2.13(n) .

“ Foreign Master Payer/Receiver ” means Mattel International Finance B.V., a Netherlands private limited liability company, and/or any other Foreign Borrower identified in writing to the Administrative Agent as a Foreign Borrower that will act as a Foreign Master Payer/Receiver.

“ Foreign Obligations ” shall mean any Obligations (other than the Domestic Obligations and the Obligations of a “United States person” as defined in Section 7701(a)(30) of the Code).

“ Foreign Payment in Full Date ” shall have the meaning provided in Section  14.01 .

“ Foreign Pension Plan ” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States, Canada, the United Kingdom or the Netherlands by the Company or any one or more of the Restricted Subsidiaries primarily for the benefit of employees of the Company or such Restricted Subsidiaries residing outside the United States, Canada, the United Kingdom or the Netherlands, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA, the Canadian Employee Benefits Legislation, the Pensions Act 2004 or the Dutch Pension Regulations.

“ Foreign Subsidiary ” shall mean each Subsidiary of the Company that is not a Domestic Subsidiary.

“ French Bank Account Pledge Agreement ” shall mean, to the extent the Initial French Borrower has Collection Accounts domiciled in France on the French Closing Date, the account pledge governed by French law dated as of the French Closing Date, by and between the Collateral Agent and the Initial French Borrower.

“ French Borrowers ” shall mean the Initial French Borrower and each French Subsidiary of the Company that executes a counterpart hereof and each other applicable Credit Document (or a separate joinder hereto or thereto) to become a Revolving Borrower, whether on the French Closing Date or after the French Closing Date in accordance with Section  2.21 .

 

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“ French Borrowing Base ” shall mean, at the time of any determination, an amount equal to the sum of the Dollar Equivalent, without duplication, of

(a) 85% of the aggregate Outstanding Balance of Eligible French Accounts of the French Borrowers at such time; minus

(b) any Reserves established or modified from time to time by the Administrative Agent in the exercise of its Permitted Discretion in accordance with the provisions of Section  2.22 .

The French Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section  8.20(a) , adjusted, in the Administrative Agent’s Permitted Discretion (pending the delivery of a new Borrowing Base Certificate), to reflect the impact of any Significant Disposition (or any event or circumstance which, pursuant to the eligibility rules set forth in the definitions of Eligible Account, renders any such Account ineligible for inclusion in the French Borrowing Base after delivery of the most recent Borrowing Base Certificate). The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Certificate and if such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right, in consultation with the Company, to correct any such errors in such manner as it shall reasonably determine and the Administrative Agent will notify the Company in writing promptly after making any such correction.

“ French Closing Date ” shall mean the “French Closing Date” specified in a written notification by Administrative Agent to the Lenders that the conditions in Section  5.02 have been satisfied.

“ French Collateral ” shall mean all the “Collateral” (or equivalent term) as defined in each French Security Agreement and all other property (whether real, personal or otherwise) with respect to which any security interests have been granted by any Credit Parties pursuant to any French Security Document.

“ French Credit Party ” shall mean each French Borrower and each French Subsidiary Guarantor.

“ French Dilution Reserve ” shall mean, at any date, (a) the amount by which the consolidated Dilution Ratio of Eligible French Accounts exceeds five percent (5%) multiplied by (b) the Eligible French Accounts on such date.

“ French Issuing Bank ” shall mean, as the context may require, (a) BAMLI or any Affiliates or branches of BAMLI authorized to carry on credit operations in France with respect to French Letters of Credit issued by it; (b) any other Revolving A Lender that may become an Issuing Bank pursuant to Sections 2.13(i) and 2.13(k) , with respect to French Letters of Credit issued by such Revolving A Lender; (c) with respect to any Existing Letter of Credit set forth on Part C of Schedule 1.01B , the Revolving A Lender which is the issuer of such Existing Letter of Credit; or (d) collectively, all of the foregoing.

 

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“ French LC Credit Extension ” shall mean, with respect to any French Letter of Credit, the issuance, amendment or renewal thereof or extension of the expiry date thereof, or the increase of the Stated Amount thereof.

“ French LC Disbursement ” shall mean a payment or disbursement made by the French Issuing Bank pursuant to a French Letter of Credit.

“ French LC Documents ” shall mean all documents, instruments and agreements delivered by a French Borrower, the Company, or any Subsidiary to a French Issuing Bank or the Administrative Agent in connection with any French Letter of Credit.

“ French LC Exposure ” shall mean at any time the sum of (a) the aggregate undrawn Stated Amount of all outstanding French Letters of Credit at such time plus (b) the aggregate principal amount of all French LC Disbursements that have not yet been reimbursed at such time. The French LC Exposure of any Revolving A Lender at any time shall mean its Pro Rata Percentage of the aggregate French LC Exposure at such time.

“ French LC Obligations ” shall mean the sum (without duplication) of (a) all amounts owing by the French Borrowers in respect of any French LC Disbursements (including any bankers’ acceptances or other payment obligations arising therefrom) and (b) the Stated Amount of all outstanding French Letters of Credit.

“ French LC Sublimit ” shall mean $4,000,000.

“ French Lender ” shall mean a French Swingline Lender or a French Revolving Lender.

“ French Letter of Credit ” shall mean any standby, commercial or documentary letter of credit, foreign guaranty, bank guarantee, documentary banker’s acceptance or similar instrument issued or to be issued by a French Issuing Bank under the French Revolving Subfacility requested by a French Borrower pursuant to Section 2.13 .

“ French Line Cap ” shall mean, at any time, an amount that is equal to the lesser of (a) the French Revolving Commitments and (b) the French Borrowing Base.

“ French Moveable Assets Pledge Agreement ” shall mean the moveable assets pledge agreement ( convention de gage de biens meubles ) governed by French law dated as of the European (GNU) Closing Date by and between the Initial Dutch Borrower, as pledgor, the Collateral Agent, as beneficiary, and Geodis Logistics Rhône Alpes, as third party ( tiers convenu ).

“ French Obligations ” shall mean, on any date, the portion of the Obligations outstanding that are owing by the French Borrowers under this Agreement (including the Parallel Obligations).

“ French Priority Payables Reserves ” shall mean reserves in respect of (a) pension, salary and other claims of employees; (b) any VAT invoiced to customers of that French Borrower and/or received by that French Borrower but not yet paid to the relevant taxing authority; (c) claims of the French tax or other Governmental Authorities or social contributions or agencies appointed to collect the foregoing; (d) amounts payable to or deductible by an insolvency administrator, receiver or other insolvency official in respect of his or her costs or expenses; and (e) amounts referred to in articles L-622-17 and L-641-13 of the French Code de commerce in the case of a safeguard procedure, reorganization procedure or liquidation, in each case only to the extent such amounts enjoy priority as a matter of applicable law over the claims of the French Secured Parties.

 

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